Anne Speelman v. Windsor Regional Hospital, 2015 HRTO 870

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Speelman

Applicant

-and-

Windsor Regional Hospital

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: June 29, 2015

Citation: 2015 HRTO 870

Indexed as: Speelman v. Windsor Regional Hospital

APPEARANCES

Anne Speelman, Applicant

Self-represented

Windsor Regional Hospital, Respondent

Paula Trattner, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability. The applicant also cites the grounds of family status, marital status, age and reprisal which are dealt with separately in this Decision.

2On June 4, 2014, the Tribunal issued an Interim Decision (2014 HRTO 796) advising the parties that a summary hearing would be held by teleconference. The parties were also provided with instructions on how to prepare for and participate in the summary hearing. The initial teleconference took place on August 29, 2014.

3The applicant was not in attendance for the summary hearing and as a result, the Application was dismissed as abandoned on September 3, 2014 (2014 HRTO 1301). That decision was reconsidered when the applicant contacted the Tribunal and provided an explanation for her failure to attend the first summary hearing. The applicant indicated that she did not receive the Notice of Hearing. In the circumstances, I considered it appropriate to exercise my discretion to grant the applicant’s request.

4In addition to granting the applicant’s request for reconsideration, the Tribunal provided the applicant with further instructions which are contained in the Case Assessment Direction dated March 12, 2015, about the issues which would be addressed when the summary hearing resumed:

As the Tribunal indicated in the Interim Decision 2014 HRTO 796, this Application, which was filed on June 13, 2013, arose out of medical treatment the applicant received at the Windsor Regional Hospital on June 30, 2012 and July 1, 2012. The Application alleged discrimination on the ground of disability. The allegations included referral for an unnecessary consultation, improper and negligent medical care, accusations of hypochondria, and refusal to provide needed medical treatment.

On March 12, 2014, the applicant filed a Request for Order During Proceedings, asking to amend the Application to include over twenty personal and institutional respondents, to add additional allegations of discrimination involving the applicant and various family members, going back several years, and to consolidate this Application with two other Applications: one which was dismissed in Decision 2014 HRTO 204 and one which had not yet been filed.

In 2014 HRTO 796, the applicant’s requests to amend and consolidate the Application were dismissed. The remaining allegations were set down for a summary hearing.

The Tribunal noted that the original Application dealt with the applicant’s allegations and complaints about her interaction with the hospital over the course of two days. These are the only allegations which will be addressed during the summary hearing when it resumes. The Tribunal will not deal with any of the allegations which have been dismissed in the Interim Decision 2014 HRTO 796 or the final Decision 2014 HRTO 204 which related to a previous application.

5The test the Tribunal applies at this stage in the process is whether an application has “no reasonable prospect of success” to determine whether an application should be dismissed in whole or in part.

6An applicant’s role in the summary hearing is to describe their allegations in more detail and point to the evidence they intend to rely on to support their belief that they have experienced discrimination.

7While the primary focus in the summary hearing is on the applicant’s evidence, the respondent’s explanation may be considered where the parties agree on the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

8The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.

9At the summary hearing stage, the Tribunal is not assessing the applicant’s evidence or the impact of the treatment they have experienced. At this stage, the Tribunal accepts that the applicant is telling the truth unless there is some clear evidence to the contrary.

10However, accepting the applicant’s assertion that they were treated unfairly does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the unfair treatment they experienced arises from discrimination.

11In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground played a role in what they experienced. If the applicant is unable to point to evidence, beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

ANALYSIS

12The respondent made submissions in support of dismissing the Application. The respondent disputes the applicant’s factual allegations and argues that the applicant was admitted, treated, and provided with follow-up care and therefore not denied any medical services. The respondent argues that the applicant’s allegations, which are denied, are at best, allegations of medical malpractice and not Code violations.

13The applicant argues that on June 30, 2012, when she was admitted to hospital, the emergency room staff failed to acknowledge her legitimate medical concerns and failed to fully assess her medical needs because of the perception that she was suffering from a mental illness. She states that she was referred to as a “frequent flyer”, and told that she was a hypochondriac and that she required a psychiatric assessment. She also alleges that comments were made by nursing staff about the applicant being is unmarried, living on welfare, having gone through a custody battle, and lost her job with the respondent.

14The applicant stated that she attempted to bring these issues to the attention of the nurse in charge who also allegedly talked to the applicant about the need for a psychiatric assessment. The applicant argues that ultimately she was admitted and told by a psychiatrist that she should not have been referred for a psychiatric assessment.

15The allegations appear to relate to the period that the applicant was in the emergency room from June 30, 2012 to July 1, 2012 although she was discharged on July 4, 2012. The applicant stated that she had recently been evaluated by a neurosurgeon, who will allegedly testify that her symptoms are real and related to a history of “brain bleeds”.

16The primary allegations relate to the ground of disability. The applicant also alleges that the comments that were allegedly made about her engage the grounds of family and marital status. She also alleges that the referral for a psychiatric assessment arose in part as a reprisal against her for attempting to have a supervisor intervene and address the comments that the applicant alleges were being made about her.

Conclusion

17The applicant alleges that during the course of receiving medical services from the respondent, she was treated in a manner which was disadvantageous to her because of her family and marital status, age, and the perception that she required mental health services. She also alleges that she was referred for a psychiatric assessment in part as a reprisal because she complained about how she was being treated.

18The respondent disputes both the factual foundation for the applicant’s allegations and the links she is attempting to draw between the treatment she is alleged to have experienced and the grounds cited in the Application.

19However, accepting the applicant’s allegations as true, which I am required to do at this early stage in the proceeding, I cannot find that there is no reasonable prospect that she can succeed under the Code. If the applicant is able to prove that the alleged incidents occurred, that could lead to finding that the Code has been breached.

20The Application will continue to the next stage in the hearing process. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

21The applicant did not specifically address the allegation of age discrimination during the summary hearing. It appears in her materials that this allegation may be based purely on her own speculation. However, I do not consider it useful to carve that allegation out of the applicant’s narrative at this stage. Doing so would not alter the factual foundation that the applicant has advanced. The presiding adjudicator will be able to determine whether there is any basis for making any findings in relation to this ground.

Direction:

22The Tribunal makes the following directions:

• The respondent will file a Response within 35 days of the date of this Interim Decision;

• The applicant will file a Reply in accordance with the Rules if necessary;

• The parties are encouraged to participate in the Tribunal’s voluntary, confidential mediation process.

23I am not seized.