Salisbury v. Independent Electrical System Operator, 2016 HRTO 1447

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gavin Salisbury Applicant

-and-

Independent Electrical System Operator and Allan Rosenfeld Respondents

A N D B E T W E E N:

Gavin Salisbury Applicant

-and-

Independent Electrical System Operator, Allan Rosenfeld, Matthew Burnstein, and Ridgeway Occupational Consultants Inc. Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: November 9, 2016 Citation: 2016 HRTO 1447 Indexed as: Salisbury v. Independent Electrical System Operator

APPEARANCES

Gavin Salisbury, Applicant Self-represented

Independent Electricity System Operator, Respondent Richard Charney, Counsel

Allan Rosenfeld, Matthew Burnstein, and Ridgeway Occupational Consultants Inc., Respondents Mira Novek, Counsel

Introduction

1These are two related Applications under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability and reprisal. The respondent Independent Electrical System Operator (“IESO” or the “employer”) employed the applicant as a systems technician in its IT department.

2In an earlier Interim Decision, 2016 HRTO 397, the Tribunal directed a summary hearing on whether Ridgeway Occupational Consultants Inc. (“Ridgeway”), Allan Rosenfeld, and Matthew Burnstein (collectively “the Ridgeway respondents”) should be removed as respondents to the Applications. Dr. Rosenfeld was named as a respondent to both Applications, while Dr. Burnstein and Ridgeway were named as respondents to the second Application (2015-22387-I). This summary hearing was held on August 11, 2016.

3In addition, the IESO and David Chong-Tai, John Hodgkinson and Terrance Young (additional personal respondents named in the second Application) (collectively “the IESO respondents”) made a request to dismiss the Application as against David Chong-Tai, John Hodgkinson and Terrance Young. In an Interim Decision dated March 30, 2016, the Tribunal noted that the applicant had made submissions on this issue, but had reserved the right to make further submissions. Vice-chair Muir directed the applicant to make any further submissions he wished within seven (7) days of the date of the March 30, 2016 Interim Decision. The applicant made no further submissions. The Tribunal will also address this issue in this instant Interim Decision.

DECISION AND ANALYSIS

4As noted in the earlier Interim Decision, the applicant alleges in the first Application that the respondents failed to accommodate his disability-related needs. He also alleges that he experienced reprisal by, amongst other things, being required to submit medical notes for what he states were medical absences.

5In his second Application, the applicant repeats some of the allegations in his first Application and also alleges that he was dismissed from employment in reprisal for having filed the first Application. He makes further allegations, without particulars, of discrimination or reprisal by the Ridgeway respondents.

6Ridgeway was retained by the applicant’s employer to provide occupational health consulting services, while Drs. Rosenfeld and Burnstein were sequentially retained by Ridgeway to provide medical opinions for the applicant’s employer on occupational health matters, including what accommodations were required to allow the applicant to work/return to work.

Dr. Rosenfeld

7Dr. Rosenfeld submitted a Response to the first Application setting out what he believed to be the salient facts. In his Reply, the applicant largely does not dispute those facts. For the purpose of this summary hearing, I am relying only on those facts with which the applicant does not take issue.

8Dr. Rosenfeld is an occupational health specialist. He was retained by the applicant’s employer, through Ridgeway, to provide an opinion on whether the applicant required accommodation at work and, if so, what kind. His retainer began on January 25, 2013.

9On that date, Dr. Rosenfeld was provided a letter from the applicant’s urologist, which stated that the applicant was experiencing symptoms consistent with prostatitis. The urologist suggested that the applicant work flexible work hours so that he was not required to work during periods of reported nausea and pelvic pain.

10The applicant requested accommodation consistent with the urologist’s suggestion. The applicant’s request was not accompanied by an “attending physician statement” from his physician, nor did the applicant provide a consent allowing Dr. Rosenfeld to communicate directly with his specialist. Dr. Rosenfeld communicated to the applicant’s employer that he required the consent because the condition with which the applicant had been provisionally diagnosed did not normally require the type of accommodation the applicant was seeking.

11On September 13, 2013, the applicant wrote directly to Dr. Rosenfeld warning him of what the applicant believed were his responsibilities under the Code and advising him that he would not consent to Dr. Rosenfeld speaking directly to his physicians. Upon review, Dr. Rosenfeld realized that the consent did not permit him to view the applicant’s medical records.

12Dr. Rosenfeld advised the employer of his need to speak directly to the applicant’s treating physicians to obtain information about the applicant’s diagnosis, his response to treatment and the reason for the accommodation recommendation. In the absence of this information, Dr. Rosenfeld advised he could not support this accommodation.

13The applicant’s union intervened on his behalf at this stage and explained in a letter dated November 13, 2013 to Dr. Rosenfeld that the applicant wanted to be involved, which is why he was not consenting to the direct communication with his physicians. In response, Dr. Rosenfeld communicated with the employer that he required objective information, either in the form of direct communication, or via an independent medical examination (“IME”) of the applicant.

14In his Reply, the applicant states that his employer did not convey the type of information Dr. Rosenfeld was seeking (as set out in para. 12 above) or the demand for either access or an IME (as set out in para. 13 above). He asserts, incorrectly, that Dr. Rosenfeld had some obligation to convey these requests for information directly to him rather than through his employer.

15The applicant further asserts that as a result of the respondents’ failure to accommodate (and the imposition of further conditions), he developed mental health problems that required him to be off work starting May 30, 2014. On July 24, 2014, the applicant wrote to Dr. Rosenfeld, in his ongoing role as the occupational health consultant for the employer, and advised him that he had named him as a respondent in a human rights Application (2014-18197-I). This letter was accompanied by an attending physician’s statement and an authorization for release of medical information.

16Following receipt of this letter, Dr. Rosenfeld supported a four-week period of absence from work, but said that he required further clarification concerning diagnosis, treatment and prognosis, as well as what the applicant’s physician meant by the term “stressful situation.” He further recommended that the applicant be referred to a specialist or undergo an IME.

17At this point, Dr. Rosenfeld withdrew from the role as occupational health consultant and responsibility for the applicant’s file was transferred to Dr. Burnstein.

18The applicant asserts that as “agent” of his employer, Dr. Rosenfeld ought to be maintained as a respondent since it is his belief that Dr. Rosenfeld has acted in a discriminatory manner in the execution of his duties. However, the applicant has failed to identify any act or omission by Dr. Rosenfeld that could constitute a discriminatory act.

19The applicant takes issue with Dr. Rosenfeld’s statement that prostatitis does not generally require the type of accommodation sought by the applicant. He goes on to state that (a) there was never a “direct medical diagnosis” of prostatitis and (b), in any event, prostatitis is an umbrella term constituting many conditions of varying degrees of seriousness. However, even accepting this as true does not mean that Dr. Rosenfeld discriminated against him.

20The Tribunal has held on multiple occasions that it is not its role to evaluate the correctness of medical judgments. In the absence of some indication that the alleged medical error was made on the basis of some discriminatory factor, the Tribunal does not have the jurisdiction to proceed in these cases. That is, not all alleged medical mistakes or errors in judgment are discriminatory. See Wilson v. Dixie Road Medical Association, 2011 HRTO 1607, Gregoire v. Ontario (Government Services), 2013 HRTO 1218, Bruce v. London Health Sciences Centre, 2014 HRTO 106, and Bristol v. Toronto (City), 2014 HRTO 1653.

21The applicant further submits that Dr. Rosenfeld’s Response to the first Application contains a statement that prostatitis is “not a disability as defined in the Code,” but “is a transient condition that is treatable by prescribing an antibiotic.” As pointed out by counsel for Dr. Rosenfeld, this is clearly a legal position asserted in response to an Application as opposed to a factual assertion made to the applicant’s employer at the time of the events giving rise to the Applications. On its own, this cannot form the basis of a claim of discrimination.

22Finally, the applicant asserts that Dr. Rosenfeld reprised against him after the applicant advised him of the fact that he had named Dr. Rosenfeld as a respondent to his first Application. It is not sufficient to establish reprisal for the applicant to experience adverse treatment after notifying a respondent that he has been named in an application. Even assuming that the applicant was able to link the adverse treatment to the conduct of the respondent, an applicant must also establish that a respondent intended to reprise against him or her for having asserted his or her human rights. See Noble v. York University, 2010 HRTO 878, especially at para 33.

23In this case, Dr. Rosenfeld states, and the applicant does not dispute, that he took minimal action post-notification: namely, he supported a portion of the applicant’s absence and suggested to the employer that independent verification of the applicant’s physician’s statement was required. He then turned over responsibility to another physician. Even assuming that any of this conduct could amount to action taken against the applicant, there is nothing on the face of these uncontested facts to support a claim that Dr. Rosenfeld intended to reprise against the applicant for having named him in a human rights application.

24For the reasons above, the applicant has not alleged facts, which, if proven, could constitute discrimination or reprisal under the Code and the allegations against Dr. Rosenfeld are dismissed as having no reasonable prospect of success.

Dr. Burnstein

25In his second Application, the applicant alleges that, in correspondence with his physician, Dr. Burnstein asserted that “there is nothing inherently stressful” in the applicant’s work. The applicant takes exception to that statement. He further alleges at paragraph 46 of the section 8 narrative:

…. I had provided extensive medical information from my treating physician concerning my medical condition and recommended accommodation. Instead of acting on this information, my Employer elected to rely on a fabricated assessment of Dr. Burnstein, a physician that had never examined me, and continued to interact with me through Mr. Hodgkinson.

26The applicant does not specify on what basis he asserts that Dr. Burnstein’s assessment is “fabricated.”

27In the Response filed by Ridgway Consultants to the second Application, they go through the chronology of Dr. Burnstein’s involvement. The applicant does not challenge this chronology in his Reply.

28Dr. Burnstein’s first involvement with the applicant occurred when he took over as the occupational health consultant on or about September 3, 2014. Shortly after that, he wrote to the applicant’s physician seeking further information, which he received in early October 2014. After reviewing the information, he concluded that the applicant had been unable to work for medical reasons from May 30, 2014 to September 15, 2014, but thereafter the barriers to the applicant’s return to work were “non-medical workplace issues.” He communicated this to the applicant’s employer on October 20, 2014.

29On November 10, 2014, the employer asked Dr. Burnstein to further opine on the applicant’s ongoing absence as a well as on correspondence from the applicant’s physician. Dr. Burnstein advised the employer that he believed the applicant could return to work and the applicant could have attended a meeting to create a return to work plan, despite the presence of a person the applicant alleges was harassing him. He made a further recommendation about a potential further absence from work.

30Again, as with the allegations against Dr. Rosenfeld, the question to be asked about maintaining Dr. Burnstein as a respondent is not whether his medical analysis is flawed in some way, but whether he exercised his medical judgment in a discriminatory manner. The applicant has not alleged facts, which, if proven, could constitute discrimination under the Code and accordingly the allegations against Dr. Burnstein are dismissed as having no reasonable prospect of success.

Ridgeway

31There are no independent allegations against Ridgeway. The applicant merely asserts that Dr. Bernstein and Dr. Rosenfeld are “agents” of Ridgeway. Accordingly, and in light of my findings above, the application against Ridgeway is also dismissed as having no reasonable prospect of success.

Should the Remaining Personal Respondents be Removed from Application 2015-22635-I?

32The IESO respondents have requested that the individual respondents, David Chong-Tai, John Hodgkinson and Terrance Young, be removed from Application 2015-22635-I as they were all acting in their capacity as employees of IESO, and IESO accepts full responsibility for their actions.

33I would note that these three individuals were also named in the applicant’s first Application (2014-18197-I) and the Tribunal removed them (and four others) in an Interim Decision dated December 15, 2015 (2015 HRTO 1685) on the basis of well-established case law (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and Persaud v. Toronto District School Board, 2008 HRTO 31). I would adopt Vice-chair Muir’s reasoning in that Interim Decision (in particular, paragraphs 6-11) and likewise remove these individuals from the second Application (2015-22635-I).

ORDER

34The Tribunal makes the following Orders:

a. Application 2014-18197-I is dismissed as against Dr. Rosenfeld as having no reasonable prospect of success and paragraph 8 is struck from the narrative found at section 8 of the Application;

b. Application 2015-22387-I is dismissed against Ridgeway Occupational Consultants Inc., Dr. Rosenfeld and Dr. Burnstein as having no reasonable prospect of success, and paragraphs 10-12 are struck from the narrative found at section 8 of the Application; and

c. The remaining individual respondents, David Chong-Tai, John Hodgkinson and Terrance Young, are removed as respondents to Application 2015-22387-I, the style of cause amended accordingly, and paragraphs 6-9 are struck from the narrative found at section 8 of the Application.

35I am not seized of this case.

Dated at Toronto, this 9th day of November, 2016.

“Signed by”

Naomi Overend Vice-chair

CORRECTION

1At paragraph 34(a), the decision is corrected to reflect that Application 2014-18197-I is dismissed against Dr. Rosenfeld. Dr. Burnstein was not named in Application 2014-18197-I.