HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Curtis Barksey
Applicant
-and-
Four Corners Medical Walk In Clinic/Northwood Medical Clinics Inc.
Respondent
DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Barksey v. Four Corners Medical Walk In Clinic/Northwood Medical Clinics Inc.
APPEARANCES
Curtis Barksey, Applicant
Self-represented
Four Corners Medical Walk In Clinic/Northwood Medical Clinics Inc., Respondent
Geoff Jeffery, Counsel
Introduction
1The applicant filed an Application alleging that the respondent discriminated against him because of disability and gender expression, and that it reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged that the respondent discriminated against him because of disability when it refused to grant him access to a copy of his medical records and prohibited him from attending its clinic. He alleged that the respondent failed to accommodate his disability by prohibiting him from recording via audio or video, his interactions with clinic staff. He also alleged that the respondent reprised against him for filing a complaint with the Information and Privacy Commissioner of Ontario (“IPC”). Lastly, he alleged that the respondent discriminated against him based on gender expression by interpreting what he said some might see as a “manly” way of expressing himself as hostility toward clinic staff.
2By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application, or any part of it should be dismissed for the following reasons: (1) on the basis that there is no reasonable prospect that the Application, or any particular part of it, will succeed or (2) on the basis that the Application, or any part of it, is untimely. In the summary hearing, I also heard submissions in relation to the respondent’s request that the Tribunal dismiss the Application as an abuse of process and declare the applicant to be a vexatious litigant.
3For the reasons that follow, I find that the Application must be dismissed on the basis that it stands no reasonable prospect of making out a violation of the Code. It is clear that the applicant believes that the respondent refused to provide him with a copy of his medical records for no valid reason. It is also clear that he is committed to defending his rights and believes that he must record his interactions with others in order to protect himself. However, for the reasons detailed below, I find that the applicant’s allegations that the respondent discriminated against him based on disability and/or gender expression stand no reasonable prospect of success.
Summary/preliminary Hearing Process
4The purpose of a summary/preliminary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed or for some other reason – for example, if the application is untimely.
5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code can leave a person with significant financial and emotional damage, not to mention a good deal of frustration. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.
6The Tribunal does not hear any actual evidence (testimony) in a summary hearing. The test that is applied at the summary hearing stage is whether an application lacks a reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.
7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.
8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.
9In addition to the power to dismiss an application if it stands no reasonable prospect of success, the Tribunal also has the power to dismiss applications if they are untimely. Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident of a “series of incidents”) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed.
Factual Background as alleged by the applicant
10Having set out this basic legal framework, I now turn to the factual background of this particular case.
11As noted above, for the purposes of this summary hearing, I must accept the facts as alleged by the applicant to be true and provable unless there is clear evidence to the contrary. However, I do not have to accept the applicant’s assumptions about why the respondent took the actions it did.
12The applicant attended the respondent’s walk-in clinic as a patient. The doctors at the respondent’s clinic were not involved in the applicant’s long term treatment. The clinic did not have any detailed information about his medical condition, his medical needs or his treatment choices. Instead, he only attended the clinic to obtain prescriptions and doctors’ notes to support requests for accommodations he made of the university he attended.
13The applicant filed a separate application to this Tribunal against the university where he studied. He and the university entered into a settlement of the case. In order to support his application against the university, in April 2014, the applicant sought to obtain access to his medical records from the respondent’s clinic. When the respondent refused to provide him access to his medical records, he filed a complaint with the IPC. The IPC advised the applicant to mail an official request for the records to the respondent and provide it with 30 days to respond. The IPC then advised the applicant that he should file an Access/Corrections Complaint with the IPC if the respondent continued to refuse to provide him with a copy of his medical records. The applicant followed the IPC’s advice.
14After the expiry of the 30 day period, in or around May 14 2014, the applicant attended the clinic to ask the manager whether or not she had received the request form and whether she had prepared the documents for him to pick up. The applicant audio and video recorded his dealings with the clinic secretary who spoke to him that day. The secretary told him that his request had been forwarded to the clinic’s lawyer who was taking care of it. The secretary told the applicant to turn off his video camera and expressed her view that such a recording was not legal. She also told the applicant not to come back to the clinic. The applicant stated that there was no discussion of his disability on this day. The applicant also did not make any requests for disability-related accommodations at this time.
15In its response to the applicant’s IPC complaint dated June 23, 2014, the respondent sought to rely upon s. 52 (1)(e)(i) of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”) which permits health information custodians to refuse access to a record of personal health information in the following circumstances:
52 (e) if granting the access could reasonably be expected to
(i) result in a risk of serious harm to the treatment or recovery of the individual or a risk of serious bodily harm to the individual or another person.
16In its response to the IPC complaint, the respondent also advised the applicant that it did not want him to attend the clinic with a video camera, as this behaviour had alarmed both staff and patients.
17As a result of the involvement of an IPC mediator, the respondent agreed to provide the applicant with a copy of his medical records. It advised the applicant it would do so by letter dated October 31, 2014. In the letter, the respondent also stated that the IPC mediator had advised the respondent that the applicant wished to return to the clinic. The respondent stated as follows:
As you will recall, we took your conduct with the Northwood staff very seriously and cannot allow you to continue to video record any interaction within the clinic, nor treat the staff with any hostility.
At this time, we remain agreeable to your return to the Clinic for treatment; however, any repeat conduct of the sort as mentioned above will force us to re-evaluate our position.
18The respondent closed the letter by advising the applicant that the clinic’s director would not be available to meet with him until the end of November but would contact him upon his return to set up a mutually convenient appointment date.
19By letter dated November 3, 2014, the applicant responded by stating that he had not treated the clinic staff with hostility. The applicant also asserted that he had a disability-related need to videotape his interactions with clinic staff. He claimed that he records his interactions with clinic staff in order to protect his rights. He stated as follows:
I have the right to claim my rights and to record potential breaches of the law on the part of employees and service providers as evidence so that these rights might be protected in a court of law. I will continue to record any conversation of business or conversation with service providers that I think might be necessary for protecting my rights and protecting me from abuse and I do not waive the right to do so nor will I waive the right to do so in the future.
20He advised the respondent that he did not wish to meet with the clinic director but simply wanted the respondent to provide him with his medical records. He advised the respondent’s lawyer that he expected no other correspondence from him, as none was necessary unless it contained an apology, a cheque or an acknowledgement of his right to video record business or care providers if he feared discrimination or mistreatment.
21The respondent provided the applicant with a copy of his medical records and the IPC file was closed in November 2014.
Does the Application, or any part of it, lack a reasonable prospect of success?
Denial of access to medical file
22The applicant alleged that the respondent denied him access to his medical records between April 2014 and Novebmer 2014 because of his disability.
23The applicant stated that there was no valid reason for the respondent to deny him access to a copy of his medical records. Even if I were to accept the applicant’s view that the respondent had no valid reason to deny him access to his medical records, this alone does not establish discrimination under the Code. In order to make out a violation of the Code, the applicant must be able to show that the respondent denied him access, at least in part, because of his disability or that his disability was a factor in why the respondent denied him access to his medical records. He has failed to point to any evidence he could call in a hearing that can reasonably establish that his disability was a factor in why the respondent denied him access to his medical records.
24Taken at its highest, the applicant’s claim in relation to the respondent’s initial refusal is that there was no valid reason for the respondent to refuse him access to his medical records and therefore his disability must have been a factor in the refusal. In many cases, the Tribunal has found that it is not enough to establish a reasonable prospect of success for an applicant to suggest that there is no other explanation for a respondent’s actions than discrimination. The applicant must be able to point to some evidence from which such an inference can reasonably be made. The applicant has failed to point to any evidence that the respondent’s initial refusal to grant him access to his medical records in April 2014 was linked to his disability.
25Next, the applicant claimed that the respondent used his disability as a political tool, or stereotyped him as a person with a disability, when it sought to rely upon the exception set out in s. 52(1)(e)(i) of PHIPA in its response to the IPC on June 23, 2014. Again, the applicant argued that there was no valid reason for the respondent to take the position that granting him access could reasonably be expected to result in a risk of serious harm to his treatment or recovery, or a risk of serious bodily harm him or another person. Even if that is the case, the fact that there is no valid reason for the position taken by the respondent in the IPC proceeding is not, in itself, discriminatory under the Code.
26In order to establish discrimination, the applicant would have to establish that the respondent treated him adversely on the basis of disability by relying upon the PHIPA exception. However, the applicant has failed to point to any evidence that could reasonably show that the respondent’s reliance upon s. 52(1)(e)(i) of PHIPA discriminated against him by stereotyping him as a person who might pose a threat to himself or others. If I were to accept the applicant’s arguments in this case, it would mean that any health information custodian that relied upon s. 52(1)(e)(i) of PHIPA, when the basis for such reliance was disputed, is engaging in stereotyping amounting to discrimination. In my view, such a result would be absurd. The provision is a legislative exception that health information custodians may rely upon to deny a person access to medical records. As stated above, an unjustified attempt to rely upon the provision is not, in and of itself, discriminatory under the Code. The recourse for an invalid attempt to rely upon this exception is through the IPC. This is the recourse that the applicant successfully pursued.
27I note parenthetically that the respondent’s reliance upon s. 52(1)(e)(i) of PHIPA in the IPC proceeding is also covered by the doctrine of absolute privilege. Legal positions taken by parties in the context of legal proceedings cannot be the subject of human rights complaints because they are protected by the doctrine of absolute privilege. Absolute privilege is a common law principle that prohibits legal proceedings that are based on statements set out in pleadings or affidavits, or statements made by an adjudicator, counsel, or witness in a legal proceeding. Thus, any complaint regarding the legal position taken by the respondent or their counsel in their response to the applicant’s IPC complaint is protected by absolute privilege. See for example Mauch v. Golding, 2014 HRTO 1601 at para. 23 and Dixon v. Morrison, 2010 HRTO 2156 at para. 17.
28For the above reasons, I find that the applicant’s discrimination allegations in relation to the respondent’s failure to provide him with access to his medical records between April and November 2014 must be dismissed as having no reasonable prospect of success under the Code.
Respondent’s position regarding attending clinic
Was disability a factor?
29The applicant alleged that his disability and/or gender expression were factors in the respondent’s decision to prohibit him from attending its clinic. He argued the respondent’s decision to ban him from the clinic was offensive and humiliating. He also claimed that it was discriminatory because the respondent instituted a barrier to access the clinic’s services.
30As noted above, the respondent’s secretary told the applicant not to return to the clinic when he attended in May 2014 to follow up on his request for his medical records and video recorded his interactions with clinic staff. In its June 23, 2014 letter, the respondent informed the applicant that it did not want him to video record his dealings with staff as his conduct alarmed staff and patients. In its October 31, 2014 letter, the respondent advised the applicant he could return to the clinic if he agreed not to video record staff and to not treat them with hostility.
31When I asked the applicant what evidence he intended to rely upon to establish that his disability was a factor in the respondent’s position in relation to his attendance at the clinic, he stated that there was no reason for the respondent to perceive his conduct as hostile. The applicant stated that he was not hostile but was instead “no nonsense”, “agent in nature” and “utilitarian”. He stated that he did not “mince words” or “massage sensitivies”. As a result, he submitted that the respondent claimed that he acted in a hostile way in order to demean him and make him feel inferior. He also claimed that the respondent used behaviour known to be associated with his condition to deny him access to the clinic.
32I find that the applicant has not pointed to any evidence that could reasonably establish that his disability was a factor in relation to the respondent’s position with respect to his attendance at the clinic. The Tribunal has frequently stated that, for an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. The applicant has failed to point to any evidence that could reasonably establish that the respondent referred to his conduct as hostile in order to demean him or make him feel inferior due to his disability. He also has failed to point to any evidence that could reasonably show that his disability was a factor in why the respondent considered him hostile.
33I do accept the proposition that persons with mental disabilities may sometimes be misperceived or stereotyped as hostile; however, there must still be evidence that could reasonably establish that this is what was occurring in this particular case. The applicant has pointed to no evidence he could call in a hearing that would support his claim that the respondent considered him hostile due to his disability. He has pointed to no evidence that could reasonably establish that the respondent’s concern was not instead entirely related to his video recording of staff, as stated in its written communications with the applicant. As such, I find that the applicant’s allegations of disability-related discrimination in regards to his ability to attend the clinic must be dismissed as having no reasonable prospect of success.
Was gender expression a factor?
34I also find that there is no reasonable prospect that the applicant will be able to establish that the respondent discriminated against him based on gender expression when it told him not to return to the clinic or when it later told him in that he could only return on certain conditions.
35The Code was amended in 2012 to add “gender identity” and “gender expression” as protected grounds through legislation known as Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012, S.O. 2012, c. 7. A review of Toby’s Act, and the legislative debates in relation to it, make it clear that the Legislature intended the Act to ensure the protection of the rights of transgender and gender non-conforming persons. The Tribunal reviewed the history of these grounds in some detail in Browne v. Sudbury Integrated Nickel Operations, 2016 HRTO 62. I completely agree with the Vice Chair’s analysis of the ground of “gender experession” in that decision.
36There is no dispute that the applicant is not a transgender or gender non-conforming person. Instead, he is a “cisgender” man, meaning he was born male and self-identifies as a man. Not only is the applicant not transgender or gender non-conforming, but he is seeking protection under the Code for engaging in gender conforming expression – that is expression that may be viewed as stereotypically male. In my view, the ground of gender expression cannot reasonably be interpreted to protect the right of cisgender men to express themselves in ways that may be perceived to be stereotypically male. To interpret the ground of “gender expression” in this way is thoroughly inconsistent with, and would do violence to, the important purposes of Toby’s Act which added the ground of gender expression to the Code.
37In the summary hearing, the applicant submitted that the Code would apply to a situation where a woman was badly treated for speaking forcefully – that is, not in a stereotypically “female” way. Therefore, in his view, it should also apply when a man is treated badly for speaking forcefully. Whether or not the scenario set out above involving a woman speaking forcefully would be covered by the ground of “gender expression” or another ground such as “sex” is a matter for consideration in a case where such a situation is specifically raised. For the purposes of this decision, it is sufficient for me to find that the ground of gender expression does not protect cisgender men against adverse treatment for expressing themselves in a stereotypically male way.
38For these reasons, I find that the applicant’s allegations that the respondent discriminated against him based on disability and/or gender expression in relation to the issue of clinic attendance stands no reasonable prospect of success.
Alleged failure to accommodate
39The applicant alleged that the respondent failed to accommodate what he asserted was a disability-related need to audio or video record his interactions with clinic staff.
40When I asked him in the summary hearing why he views this alleged need to video record staff as linked to his disability, he stated that he needs to video record interactions to be able to defend his human rights. He stated that he has had to defend his human rights in the past and the only thing that ensured the protection of his rights was the fact that he was able to record the interactions in question.
41In my view, this is not a need that is linked to the applicant’s disability such that it would require accommodation under the Code. The needs or restrictions that may require accommodations under the Code are medical needs or restrictions linked to disability. Based on the applicant’s materials in this proceeding, in the IPC proceeding and his submissions at the summary hearing, it is clear that the applicant wished to video record his interactions with the respondent’s staff to prevent any abuse or mistreatment in the future. This wish is not a disability-related medical need of the kind that requires accommodation under the Code.
42For this reason, I find that his allegations regarding the respondent’s prohibition on video taping interactions with its staff have no reasonable prospect of success under the Code.
Alleged reprisal for filing IPC complaint
43The applicant alleged that the respondent reprised against him because he filed, or threatened to file, a complaint with the IPC.
44There exists a common misconception that the Code protects against all forms of reprisal or retaliation. This is inaccurate. The reprisal protections in the Code protect against reprisals for having claimed and enforced rights under the Code.
45Section 8 sets out the Code’s protections against reprisal. It states as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
46The applicant claimed that the respondent banned him from the clinic because he told them he would be making a complaint to the IPC. When I asked him whether he had ever claimed or enforced a right under the Code prior to being banned from clinic, he confirmed that he had not. There was also no suggestion that the applicant had refused to infringe the Code rights of any other person. Therefore, there is no reasonable prospect that the applicant will be able to make out a claim of reprisal as that term is defined under s. 8 of the Code.
order
47For the above reasons, the Application is dismissed on the basis that it has no reasonable prospect of success under the Code. Due to this finding, it is not necessary for me to address the issue of timeliness. It is also not necessary for me to address the respondent’s request to dismiss the application as an abuse of process and to declare the applicant a vexatious litigant.
Dated at Toronto, this 23rd day of August, 2016.
”Signed By”
Jo-Anne Pickel
Vice-chair