Campo v. Hancock, 2016 HRTO 1331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas Campo as represented by his litigation guardian Felicia Campo

Applicant

-and-

Dr. David Hancock

Respondent

DECISION

Adjudicator: Jennifer Khurana

Date: October 13, 2016

Citation: 2016 HRTO 1331

Indexed as: Campo v. Hancock

APPEARANCES

Nicholas Campo as represented by his litigation guardian Felicia Campo, Applicant

Self-represented

Dr. David Hancock, Respondent

Jennifer Hunter, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against him contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”) with respect to goods, facilities and services because of disability. His mother, who is his litigation guardian, makes the Application on his behalf and alleges that the respondent, an emergency room physician, discriminated against her son when he presented for emergency services at the hospital. Specifically, the applicant alleges that the respondent failed to perform a physical examination before referring him to the crisis team and that this was due to the applicant’s disability.

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3Both parties participated in the summary hearing and made submissions.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is whether an application has no 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 or the evidence is not disputed by the applicant.

7However, and significantly, 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 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, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

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 a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

FACTUAL BACKGROUND

10The applicant is a 19 year-old man with a developmental disability who has also been struggling with mental health issues for the past two years. The applicant attended at the emergency room approximately 10 to 15 times over the past year for various issues, including physical concerns. His last visit to the emergency room was the day prior to the incident giving rise to the Application.

11On the morning of March 20, 2015, the applicant’s mother called an ambulance to her home as the applicant had become violent towards her and had struck and hit her.

12According to medical records submitted by the respondent, emergency paramedic services attended at the applicant’s home and transported the applicant to the emergency room. His mother came to the hospital separately in her own car.

13The applicant was seen by the triage nurse and was waiting to be assessed by the respondent who was the attending physician on duty, before he could be seen by the crisis team. According to the litigation guardian, the respondent glanced at the applicant and said “[n]ot this guy again” and referred him to the crisis team without first conducting a physical examination. The applicant alleges that the respondent failed to appropriately treat him because he has a developmental disability and that this constitutes a violation of the Code.

Findings

14Even if I accept the facts put forward by the applicant as true and provable, I find that the Application stands no reasonable prospect of success under the Code. The litigation guardian was unable to point to evidence, beyond her own assumptions or beliefs, to support finding the applicant experienced discrimination under the Code.

15The litigation guardian’s position is that the applicant did not receive adequate medical care from the respondent when he presented at the emergency room and that his disability was a factor in the respondent’s decision not to perform a physical examination. The litigation guardian bases her allegations about the respondent’s failure to examine the applicant on the following: 1) the comment the respondent is alleged to have made and his dismissive approach to the applicant; 2) the applicant was given a physical examination in the past when he attended at the emergency room; and 3) the nurse had indicated the expected sequence of events, which includes a physical examination before being referred to crisis.

16There is no dispute that the applicant is a person with a disability, and that decisions made about treatment necessarily involve consideration of a patient’s disability. Indeed, the applicant presented at the emergency room that day so that a physician could treat his mental health issues and disability. However, the applicant must be able to point to some evidence beyond mere speculation that his disability was a factor in what he submits was adverse or inadequate treatment in medical services by the respondent.

17The applicant’s litigation guardian submits that, as her son had been examined on prior visits to emergency, she did not know why the respondent did not evaluate her son on this occasion. The litigation guardian also notes that as the applicant is not able to express his feelings and anxiety, a physical examination is important and that the respondent did not spend the time needed to properly review the applicant’s file. Rather, she alleges that the respondent simply glanced over at the applicant, made the remark, passed the file back to the nurse and sent the applicant on to the crisis team.

18The respondent denies making the alleged comments. In the Response, he acknowledges that he made a comment expressing frustration that the applicant had to again return to the emergency department and that his condition had not improved. The respondent later apologized to the litigation guardian and explained that it was not intended to be a negative remark about the applicant.

19I can appreciate that the comment the litigation guardian alleges she overheard upset her a great deal. The litigation guardian explained how challenging it is to ensure her son receives the care he needs, and to feel that the respondent in any way did not want to deal with her son was particularly difficult and unfair. However, as already noted above, the Tribunal cannot address allegations of unfairness that are unrelated to the Code. For an application to advance in the Tribunal’s process, there must be a basis beyond mere speculation that the applicant will be able to show discrimination on the basis of his disability.

20The respondent strongly denies that the applicant received inadequate care and relies on the ambulance call report and hospital records which indicate that the applicant presented at the hospital due to issues related to mental health and behavioural concerns. There was no evidence of physical complaints warranting a physical examination. The respondent denies that the applicant received unequal treatment as he presented with a psychiatric issue and did not report any physical complaints. After the interaction with the respondent, he was seen by a crisis nurse and a psychiatrist in keeping with the nature of his presenting problem.

21Even if I accept that the applicant received inadequate care or that the respondent made a mistake, the Tribunal does not have jurisdiction to address claims of improper or inadequate medical care. The applicant must demonstrate that the applicant’s disability was a factor in the respondent’s alleged inaction in failing to conduct the physical examination. As the Tribunal stated in Bruce v. London Health Sciences Centre, 2014 HRTO 106, “[h]uman rights tribunals have consistently held that they will not second-guess the professional decisions of medical care providers unless there exists evidence of discrimination based on a prohibited ground.”

22In Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044, at para. 43, the Tribunal explained:

An applicant cannot establish that a physician, for example, discriminated against him or her merely by showing that the doctor made a clinical decision based on the applicant’s disability, which clinical decision turned out to be disadvantageous for the applicant. Doctors may make sound clinical decisions that end up compromising their patient’s health, for some reason. They can also make mistakes that have adverse medical consequences for their patients. However, neither of these situations constitutes discriminatory treatment under the Code. As the respondent points out, a physician’s clinical decisions are necessarily based on his or her patient’s disability and, in that sense, may be said to be “linked to disability”. However, the existence of this kind of link is not indicative of discrimination. In order to establish that a physician, for example, has discriminated against someone “because of” disability, an applicant would have to establish that there [was some] arbitrariness in the manner the physician treated him because of his disability. As the Supreme Court emphasized in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4 , [2007] 1 S.C.R. 161, at paras. 48-49, the essence of discrimination is in the arbitrariness of its negative impact.

23The applicant’s litigation guardian has not pointed to any evidence she could advance in a hearing that could reasonably establish the applicant’s disability was a factor in the respondent’s decisions in providing, or not providing, certain medical care to the applicant when he presented at the emergency room. I also do not find that the respondent’s comment, even if true, is enough to make out a link to the Code, or that it is sufficient to draw an inference that the decision not to conduct the physical examination was arbitrary or otherwise the result of discrimination. The medical records and evidence available reflect that the applicant’s concerns were not physical in nature and that he was treated for the behavioural issues for which he attended at the hospital. The records also indicate that the triage nurse documented that the applicant did not report any physical complaints. While the litigation guardian may disagree strongly with the respondent’s approach in not physically examining the applicant, her suspicions, no matter how strongly held, that his actions were due to discrimination on the grounds of disability, do not have a reasonable possibility of success. See Forde at para. 17.

24In the absence of sufficient evidence linking the treatment decisions that were made and the applicant’s disability, the Application must be dismissed as having no reasonable prospect of success.

ORDER

25For the above reasons, the Application is dismissed.