Borba v. North York General Hospital, 2016 HRTO 160

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Borba

Applicant

-and-

North York General Hospital

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: February 3, 2016

Citation: 2016 HRTO 160

Indexed as: Borba v. North York General Hospital

APPEARANCES

Carla De Meneses Borba, Applicant

Self-represented

North York General Hospital, Respondent

Scott Williams, Counsel

Introduction

1The applicant alleged that the respondent discriminated against her because of her race and place of origin contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). In her Application, the applicant self-identified as a Caucasian Portuguese landed immigrant who speaks fluent English. She alleged that the respondent denied her medical services because of her race and place of origin because a psychiatrist practicing as part of a team at the respondent hospital was only accepting Cantonese and Mandarin speaking patients. The respondent denied any discrimination. It submitted that the psychiatrist in question, Dr. Alan Fung, was only “prioritizing” Cantonese and Mandarin speaking patients and that he was doing so because he is one of only a few psychiatrists with the necessary language skills to conduct psychiatric assessments and follow-up in these two languages. The respondent also denied that there was any denial of services in this case as Dr. Fung had agreed to see the applicant.

2At the hearing of the Application, I heard testimony from the applicant as well as Dr. Fung and Kim Burton who both provided testimony in support of the respondent’s case. Dr. Fung is a psychiatrist who has privileges to practice as part of a mental health program operated by the respondent. Ms. Burton is a nurse who is one of two people responsible for conducting intake for the program.

3The evidence in this case shows that, while Ms. Burton initially told the applicant that Dr. Fung could not see her because he was only seeing Cantonese and Mandarin speaking patients, Dr. Fung did agree to see the applicant. In these circumstances, I cannot find that the respondent denied the applicant services contrary to the Code. It may well be that the respondent did not do all it could have done to communicate with the applicant, however any inadequacies in communication in this case do not amount to discrimination under the Code.

Factual Background

4The respondent is a hospital that operates at several locations including at the Branson Ambulatory Care Center. Among the programs operated by the respondent is a program called the Ambulatory Mental Health Outpatient Program (“AMHOP” or “the clinic”).

5The applicant’s family doctor referred her to AMHOP for a psychiatric consultation in 2011 and 2012. She saw Dr. Fung for consultations in or around July 2011 and May 2012. When the applicant saw Dr. Fung for these consultations, he told her that she could call him directly at his telephone extension if she needed to see him again.

6At the hearing, the applicant testified that she called Dr. Fung a couple of times in October 2013 and left messages but did not receive a response.

7On or around November 14, 2013, the applicant’s family doctor filled out the required form to refer her to AMHOP. On the referral form, he indicated that she had seen Dr. Fung previously.

8The applicant testified that she left a message at Dr. Fung’s extension at the North York General Hospital on November 19, 2013. Dr. Fung testified that he did not recall receiving a message from the applicant on November 19, 2013.

Telephone discussions between applicant and Ms. Burton in December 2013

9There is no dispute between the parties that the applicant and Ms. Burton spoke on the phone twice in December 2013. However, there was a dispute as to when they spoke and exactly what was said. As discussed further below, I do not find that the exact date of their calls is of great relevance to this case but the content of the calls is of significant importance.

10The applicant testified that she and Ms. Burton spoke on December 16 and 17, 2013. Her testimony about the two calls was as follows. On December 16, 2013, Ms. Burton called her to tell her that she was closing her file because Dr. Fung was only accepting Cantonese or Mandarin speaking patients. Ms. Burton also referred to Dr. Fung only taking on as patients “ladies” who speak Cantonese and Mandarin. According to the applicant, Ms. Burton did not offer to refer her to another psychiatrist. She asked the applicant why she wanted to see Dr. Fung specifically. The applicant replied that she had seen him before, that she did not want to get into details, but that she needed a referral from Dr. Fung.

11According to the applicant, the next day (December 17, 2013), she called Ms. Burton back and this time audio-recorded the conversation without Ms. Burton’s knowledge. The applicant called Ms. Burton so she could get her to repeat what she had said the day before so she could record it for future use. The audio-recording of this conversation was entered into evidence in this proceeding. I summarize the content of the recording below.

12Ms. Burton testified that she and the applicant spoke on December 17 and 19, 2013. Ms. Burton did not appear to have a clear independent recollection of exactly what was said during the phone calls but instead relied upon contemporaneous notes that she took in the applicant’s medical record which was entered into evidence in this case. Ms. Burton claimed she takes notes “in real time” of every communication she has with a patient. Her testimony about the two calls was as follows. She and the applicant exchanged messages on December 16, 2013 and spoke for the first time on December 17, 2013. Ms. Burton conceded that she had no clear recollection of the content of her call with the applicant on December 17, 2013. She testified that she did remember that, in the December 17, 2013 call, the applicant asked for one-on-one ongoing counselling/psychotherapy. Ms. Burton informed the applicant that AMHOP did not offer this service and that it only offers consultations with follow-up at the physician’s discretion. Ms. Burton offered the applicant a referral to a hospital program that offered one-on-one ongoing counselling/psychotherapy. Ms. Burton did not recall anything being said in the December 17, 2013 conversation about the applicant seeing Dr. Fung. According to Ms. Burton, the conversation about seeing Dr. Fung occurred during their second conversation which she noted in the applicant’s record as occurring on December 19, 2013.

13Ms. Burton testified that the applicant called back on December 19, 2013 to complain that she was being discriminated against because she does not speak Cantonese or Mandarin. Ms. Burton testified that some months before there was an understanding that Dr. Fung would “prioritize” Cantonese and Mandarin speaking patients. Referring to her notes in the applicant’s medical record, Ms. Burton testified that she offered the applicant an appointment with another psychiatrist during their call on December 19, 2013 but the applicant declined. Ms. Burton adamantly denied ever saying that Dr. Fung was only seeing “ladies” who speak Cantonese or Mandarin.

Audio-recording of second call between applicant and Ms. Burton

14In the audio recording of the second call, the applicant said she was following up on the conversation she and Ms. Burton had “the previous day”. I note that the reference to the first call being the “previous day” suggests that the applicant’s recollection of the dates of the calls is more reliable than Ms. Burton’s recollection. It also calls into question Ms. Burton’s claim that she makes notes in “real time” since her notes in the applicant’s chart indicate that she spoke to the applicant on December 17th and December 19th. This discrepancy causes me to question the reliability of some of Ms. Burton’s charting. However, the accuracy or inaccuracy of parts of the charting is not key to the conclusion I reach below. The keys to my conclusion are the content of the audio-recording and a later e-mail exchange between Ms. Burton and Dr. Fung discussed below.

15On the recording, the applicant asked why Ms. Burton had told her that Dr. Fung would not see her. Ms. Burton replied that “the practice is that he only is seeing patients now (sic) Cantonese or Mandarin speaking.” I note that a transcript that the respondent’s counsel prepared of the recording used the word “commonly” rather than “only”. However, having listened to the audio recording several times, it is clear that Ms. Burton said “only”. This is confirmed later in the recording when the applicant said “I remember you were telling me that he only sees Asian people that speak Cantonese” to which Ms. Burton replied “at this point, yes”.

16On the recording, the applicant said she would go see another person one-on-one but repeated a few times that she wanted to see Dr. Fung since he knew about her situation. Ms. Burton replied several times that she was happy to bring the issue to Dr. Fung’s attention to see if he would see the applicant again. Ms. Burton told the applicant that she would hopefully call her back by the end of the following week or else the first week of January, 2014.

Follow up to phone calls between the applicant and Ms. Burton

17Both Ms. Burton and Dr. Fung testified that Ms. Burton contacted Dr. Fung following her second phone call with the applicant. Dr. Fung testified that this was the first time that he became aware of the applicant’s most recent referral to AMHOP.

18An e-mail exchange between them on December 19-20, 2013 was entered into evidence at the hearing. Both Ms. Burton and Dr. Fung testified that the e-mail thread produced at the hearing was a copy of the e-mail exchange they had following Ms. Burton’s second call with the applicant. On December 19, 2013, Ms. Burton asked Dr. Fung whether he would be willing to see the applicant. Among other things, she mentioned that she spoke to the applicant on December 17, 2013 and told the applicant that she would send her family doctor information on a medical clinic for psychotherapy since the applicant was seeking one-on-one counselling/psychotherapy.

19In the e-mail, Ms. Burton went on to say that she put both feet in her mouth by telling the applicant that her referral was being treated as a new referral and that Dr. Fung was seeing Cantonese/Mandarin speaking patients only. Ms. Burton then said that the applicant called back the next day and said she felt discriminated against because she was English speaking. Ms. Burton apologized for the “goof up” and asked for directions from Dr. Fung. She indicated at the end of her e-mail “the referral does NOT seem to be urgent.” She also indicated that the applicant was aware that she would contact her in the new year (that is, after the December holiday season).

20About an hour later, on December 19, 2013, Dr. Fung replied to the e-mail to ask for the applicant’s initials to identify who she was since Ms. Burton had identified by her by her patient number in the initial e-mail. After receiving a response from Ms. Burton on December 20, 2013, Dr. Fung replied that he would see the applicant again. He said he would be seeing some patients at the hospital’s “General site” starting in January, including new patients on certain dates. He said he would let Ms. Burton know about those dates later on.

21Ms. Burton testified that Dr. Fung informed her on January 28, 2014 that he could see the applicant on January 31, 2014. According to Ms. Burton she called the applicant and left messages on her voice-mail on January 28, 30 and 31, 2014 but received no response. Dr. Fung testified that he also called the applicant and left a message for her on January 29 or 30, 2014. He said he called the applicant himself when Ms. Burton told him that she had not received a response to her January 28, 2014 phone message.

22The applicant testified that she did not receive any telephone messages from either Ms. Burton or Dr. Fung in January 2014. She testified that she did receive a couple of calls from a private number on her cell phone when she was at work. However, she testified that whoever called did not leave a message and that she only heard sirens in the background when she listened to the voice mail messages. Neither party followed up with the other about the appointment, as the applicant had begun another legal proceeding against Dr. Fung by January 2014.

Dr. Fung’s practice in regards to Cantonese and Mandarin speaking patients

23As noted above, Ms. Burton told the applicant that Dr. Fung was only seeing Cantonese and Mandarin speaking patients.

24At the hearing, Dr. Fung testified that this was not in fact accurate. He said that, after he received the December 19, 2013 e-mail from Ms. Burton, he was concerned that there was a miscommunication between the applicant and Ms. Burton about his practice in regards to seeing Cantonese and Mandarin speaking patients. He testified that AMHOP would refer to him many Cantonese and Mandarin speaking patients who preferred services in Cantonese or Mandarin. According to Dr. Fung, he strives to provide patient-centered care. He said he is the only psychiatrist who is part of AMHOP who has the necessary language skills to conduct psychiatric assessments and follow-up in Cantonese or Mandarin.

25Dr. Fung testified that the number of referrals for Cantonese and Mandarin speaking patients has increased in last few years due to demographic changes in North York and also because AMHOP receives referrals from physicians across the city. Dr. Fung testified that the waiting time to see him is often more than four months. He said that AMHOP was receiving so many referrals for Cantonese and Mandarin speaking patients, during the relevant time period, that the intake office would primarily schedule these patients to see him because there are many more slots available for patients who are seeking an assessment in English.

26Dr. Fung testified that he makes a point of seeing patients for reassessments if he has seen them in the past. According to Dr. Fung, that is why he agreed to see the applicant when Ms. Burton e-mailed him to tell him about her communications with the applicant. However, Dr. Fung noted that, if more than a year has passed since the patient was last seen, AMHOP would treat them as a new referral. He testified that normally the person doing intake would check with a physician to ask whether they were willing to see a patient for a reassessment since not all physicians who are part of AMHOP agree to see patients if they have seen them in the past.

Parties’ submissions

27The applicant submitted that the respondent denied her services because of her race and place of origin contrary to the Code. Among other things, she submitted that it was clear from the audio-recording that Ms. Burton told her that Dr. Fung was only seeing Asian patients and/or Mandarin and Cantonese speaking patients. She also submitted that neither of them ever called her back to set up an appointment after she spoke to Ms. Burton in December 2013.

28The respondent submitted that there was no denial of services in this case as Dr. Fung did agree to see the applicant. In the alternative, the respondent argued that any denial was based on language and not race or place of origin and that the exception for special programs found in s. 14 of the Code applies in this case.

APPLICABLE LAW

29Under s. 1 of the Code, every person has a right to equal treatment with respect to services without discrimination because of a number of grounds including race and place of origin.

30The applicant bears the legal onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination was a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109.

31In assessing the credibility and reliability of their testimony, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances. I have also considered other recognized factors for assessing credibility including the motives of the witness, the relationship of the witness to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

32In this case, the Applicant alleged that she was discriminated against by being denied a medical service. The two questions that arise are the following: (1) was the applicant denied a service and (2) if so, was the denial discriminatory.

Was the applicant denied a service?

33Based on the evidence at the hearing, I accept the applicant’s evidence that Ms. Burton initially told her that Dr. Fung was only seeing Cantonese and Mandarin speaking patients. Although Ms. Burton testified at the hearing that Dr. Fung only “prioritizes” Cantonese and Mandarin speaking patients, in the audio-recorded call with the applicant, she told the applicant that she could not see Dr. Fung because he is “only” seeing Cantonese and Mandarin speaking patients. This was consistent with Ms. Burton’s e-mail to Dr. Fung following the call in which she told him that that she “put both feet in [her] mouth” by telling the applicant that Dr. Fung was seeing Cantonese/Mandarin speaking patients “only”.

34While Ms. Burton told the applicant that Dr. Fung was only seeing Cantonese and Mandarin speaking patients, she also offered to bring the matter to Dr. Fung’s attention to see whether he would see the applicant. As noted above, the respondent produced at the hearing a copy of an e-mail exchange between Ms. Burton and Dr. Fung in which she did bring the matter to his attention and he agreed to see the applicant. Both Ms. Burton and Dr. Fung provided testimony that was consistent with the e-mail thread and corroborated the testimony of the other. I heard no evidence at the hearing that would cause me to question the authenticity of the e-mail exchange produced at the hearing.

35In addition, the e-mail exchange is consistent with two other pieces of evidence. First, it is consistent with Ms. Burton’s statement to the applicant, recorded in the audio-recording, that she would bring the matter to Dr. Fung’s attention. Second, Dr. Fung’s agreement to see the applicant in his e-mails to Ms. Burton is consistent with what he had told the applicant in the past – that is, that he has a practice of seeing patients for reassessments if he has seen them before. For these reasons, I accept the copy of the December 19/20, 2013 e-mail exchange as authentic and the testimony by Dr. Fung and Ms. Burton in relation to the e-mail exchange to be credible.

36On the issue of whether Dr. Fung and Ms. Burton offered the applicant an appointment in January 2014, I find credible the testimony by Dr. Fung and Ms. Burton that one or both of them called the applicant and left messages on her voicemail at the end of January 2014 to schedule an appointment for her to see Dr. Fung. I find their testimony credible because I do not find it likely that Dr. Fung and Ms. Burton would have an e-mail exchange in which Dr. Fung agreed to see the applicant and then neither of them would have taken steps to contact the applicant. As noted above, in the e-mail exchange Dr. Fung agreed to see the applicant. He said he would be seeing some patients at the hospital’s “General site” starting in January and that he would let Ms. Burton know about those dates later on. The testimony of Dr. Fung and Ms. Burton that they left a message for the applicant in late January is consistent with this e-mail exchange and therefore I find it credible.

37I note that the applicant’s testimony does not exactly contradict the testimony of Dr. Fung and Ms. Burton and can be reconciled with it to some extent. As noted above, the applicant testified that she received calls marked private at the end of January but the messages were inaudible except for sirens in the background. It is possible that there was a technical problem with the recording on the applicant’s voicemail. However, for the reasons set out above, I accept as credible the evidence of Dr. Fung and Ms. Burton that they did call the applicant at the end of January 2014 and left messages to schedule her in for an appointment with Dr. Fung.

38For these reasons, I find that the respondent did not deny services to the applicant. In light of this finding, it is unnecessary for me to go further to address whether the denial was discriminatory under the Code.

39Before concluding, I wish to note that, although I have found that the respondent did not deny services to the applicant, it was clear at the hearing that Ms. Burton’s communication to the applicant that Dr. Fung was only seeing Cantonese and Mandarin speaking patients caused her a great deal of distress. Also, it was clear at the hearing that the time it took for either Ms. Burton or Dr. Fung to reply to the applicant after the December phone calls also caused the applicant a great deal of distress. All of the above understandably caused the applicant to feel like she was being poorly or unfairly treated by Dr. Fung, Ms. Burton and the respondent. However, the issue for me to resolve is not whether the applicant was treated unfairly but whether any adverse treatment amounted to discrimination under the Code. For the reasons above, the applicant has not proven that the respondent’s actions amounted to discrimination in this case.

order

40For the reasons set out above, the Application must be dismissed.