Potter v. Mount Sinai Hospital, 2016 HRTO 323

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald James Potter

Applicant

-and-

Mount Sinai Hospital

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: March 11, 2016

Citation: 2016 HRTO 323

Indexed as: Potter v. Mount Sinai Hospital

APPEARANCES

Donald James Potter, Applicant

Self-represented

Mount Sinai Hospital, Respondent

Maria McDonald, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, disability, citizenship and place of origin.

OVERVIEW

2In a Case Assessment Direction (“CAD”) issued on August 27, 2015, the Tribunal directed that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an 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. The CAD advised the applicant that during the summary hearing he would need to make submissions about why the Application should not be dismissed for having no reasonable prospect of success.

3The respondents had also made a Request for Order During Proceedings that the individual respondents be removed from the Application.

4The summary hearing was held on January 13, 2016. At the commencement of the summary hearing, I explained that the focus of the summary hearing was on the question of whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. I explained to the parties that the summary hearing was the applicant’s opportunity to provide further details of the evidence he intended to rely on to show the link between the respondents’ actions and his race, disability, citizenship and place of origin and to explain why he believes the respondents’ acts amount to discrimination under the Code.

5The issue of removing the individual respondents was also addressed during the summary hearing.

6During the summary hearing, I heard submissions from the applicant and from counsel for the respondents. The applicant and the respondents also answered questions that were put to them.

REMOVAL OF INDIVIDUAL RESPONDENTS

7Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, the Tribunal set out the general principles that apply to this issue.

8Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

9In considering whether any compelling reason exists to continue the proceeding against an individual respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

10Having heard the submissions of the applicant and respondents, I find that all of the factors in Persaud have been met. The respondent hospital, which is the employer of the individual respondents named in the Application, is also alleged to have breached the applicant’s Code rights. In accordance with section 46.3(1) of the Code, any alleged act of discrimination by an employee of the hospital, is deemed to be an act of the hospital. The personal respondents were at all times acting within the scope of their job duties. There is no concern that the hospital will be unable to respond to or remedy the alleged Code infringements.

11I have found that it is appropriate to remove the individual respondents from the Application and the style of cause is amended to reflect this change

THE FACTS

12For the purpose of a summary hearing, the Tribunal is to accept that the facts as alleged are true. The following summary of the facts is based on the allegations set out in the Application, the Response, the Reply, and the submissions made by the applicant and the respondents during the summary hearing.

13The applicant stated that on March 4, 2015, he and his fiancée went to the respondent hospital for emergency treatment. They had been in an accident while they were on vacation and wanted to have their injuries medically assessed. When they arrived at the hospital, the applicant’s fiancée was first presented for triage and his triage was to follow. He asked a nurse about the possibility of any charges for his treatment. He advised the nurse that he was from Quebec and that is why he was asking if needed to pay for any emergency assessments and treatments. He was advised that he would have to ask the triage nurse and when he asked a triage nurse, she told him that he would need to speak to the registration clerk. He states that when he was asking this question of the triage nurse, the registration clerk interrupted. When he reached the registration desk in section B, the applicant asked the registration clerk if he would have to pay any fee and again explained that he was from Quebec.

14The applicant stated that in response the registration clerk said to him, “You ask too many questions”. The applicant says that he responded by saying, “I beg your pardon. I was told to ask you.” The registration clerk repeated, “You ask too many questions”. The applicant stated that at this point he advised the registration clerk that he wanted to speak to supervisor. He asked the registration clerk for his name, telling the registration clerk, “I want to file complaint against you.”

15At one point he asked his fiancée to tape the registration clerk responding to his question about payments.

16The applicant says he then asked some nurses who was in charge and he was told that there was no one in charge in the emergency department that day. He was advised that he would need to call on Monday. The applicant stated that he could not believe there was no superior in charge that evening and said to the nurses, “Do not tell me there is no superior. Who is the head nurse?”

17The applicant stated that he left the hospital after trying to get an understanding of the process and he was not given answers. He stated that the respondent hospital did treat his fiancée.

18The next day he contacted the respondent hospital and went to meet the nursing manager at the hospital. When he met with the nursing manager, he asked for copy of videos from the triage area. The nursing manager told him there was no video recording of the area. He says he explained to the nursing manager that he still needed treatment and he needed to know if he would have to pay. He told her that he did not want to have any contact with the person he had met the previous night in registration. He says he asked the nursing manager to not let the registration clerk approach him.

19The applicant claims that the nursing manager told him she knew who the person was who had worked in registration the evening before. He states that she wrote the registration clerk’s name on a piece of paper and gave it to him. He states she told him he would not have to see the registration clerk and that she would look into whether he had to pay.

20The applicant states that once the nursing manager gave him the name of the registration clerk, he felt more comfortable that the nursing manager would help him. He states that he went back to the triage nurse and the nursing manager went to booth B and spoke to the same registration clerk he had had the interaction with the night before. He was upset that the nursing manager went to that registration clerk after she had told the applicant that she would not involve this person.

21The applicant claims that the registration clerk then approached him and said, “Oh, you want to see a doctor” while laughing in his face. The applicant states that he then felt “as if I were a piece of crap” and he just backed off because he was so scared. He states that he then went to the second triage nurse and that the registration clerk again verbally attacked him.

22The applicant claims that he was pacing in the triage area because it was too painful to sit down because of his injuries. He says that he attempted to take a video of the registration clerk’s response when he asked him if he had to pay from treatment but the nursing manager told him he had to put his phone away.

23The applicant claims that the nursing manager should not have let the interaction between him and the registration clerk happen. She should have taken him through triage to get treatment and then she could have gone back to address the payment issue. He believes that she should not have left him alone, which allowed the registration clerk to attack him again.

24When asked for his submissions on how what he experienced was connected to his race, disability, citizenship or place of origin as protected by the Code, he stated that he did not get equal treatment. He claims he did not get help and it was because he was from another province. He claims he was treated like an outcast and that is discriminatory. He claims that he was harassed. He submitted that I did not have to find the Code connection, that all he had to show was that there was an intention to block him from care and to not allow him to register.

25In his Reply, the applicant seemed to be alleging that he had an invisible disability. During the summary hearing he did not provide any indication of the evidence he would have to demonstrate that the respondents breached his rights under the Code as a person with a disability.

26The applicant did not provide any indication about the evidence that connects the alleged treatment at the respondent hospital to his citizenship.

27The respondents submit that the registration clerk’s conduct is poor customer service but it is not a breach of the Code. While the applicant may be able to show that he got inferior treatment to that of his fiancée, he has no evidence to connect this treatment to ground of Code. There is no evidence that the treatment was because he was from Quebec and that this claim is based only the applicant’s assumption. The respondents submit that what happened has nothing to do with fact he was from Quebec. This was just about personalities and how they both behaved and what they said to one another.

28The respondents submit that the administrative clerk took offence to the attempt to videotape him and to the applicant saying to him “I want your name, to make a complaint” when he was talking to patients. This was an unpleasant interaction but it had nothing to do with the applicant being from Quebec.

29The respondents submit that the applicant has not pointed to any evidence to show the connection between his experiences at the hospital and his disability.

30The respondents also submit that being from Quebec is not a protected ground under the Code. The respondents rely on Fisher v. Chicopee Park Dental, 2012 HRTO 572; Gardezi v. Insurance Corporation of British Columbia, 2010 BCHRT 262; and Dobbin v. Canada (Department of Fisheries and Oceans), [2005] FC 1020, in support of their submission that residency in a province is not a protected ground in human rights legislation.

ANALYSIS

31Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

32In Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

33I find that the applicant does not have a reasonable prospect of proving that his rights under the Code have been violated by establishing a link between the respondents’ actions and his race, disability, citizenship or place of origin.

34In considering these issues, I am mindful that the Tribunal does not have the general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Importantly, the Tribunal’s mandate is not to correct general unfairness, but to deal with alleged discrimination on Code grounds: Dabic, above.

35In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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.

36The applicant’s allegations of discrimination as set out in the Application and Reply, and as stated during the summary hearing, are based on his belief that he was not given the treatment he needed and was not shown respect because he was from Quebec.

37The applicant has made general allegations based on his own belief that the registration clerk treated him the way he did because he was from Quebec. The applicant has not provided any information about the evidence he will have to prove that the connection to being from Quebec that would show that this belief is based on anything more than speculation. Even if I were to accept that he could demonstrate that he was treated differently, without any evidence that this treatment was connected to the fact that he is from Quebec, I cannot find that he has a reasonable prospect of proving the link between place of origin and this this alleged differential treatment. As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 at para. 25:

(...) discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground.

38The applicant displayed strong emotions when he explained his experiences during the summary hearing. While I appreciate that the applicant may have been deeply hurt and angered by his experiences, he has pointed to no evidence or prospective evidence to show that his race, disability, place of origin or citizenship were a factor in the treatment he experienced.

39Having found that the applicant has not pointed to any evidence that could connect the treatment he received to the fact that he was resident of Quebec rather than Ontario, I will not address the issue of whether being resident of another province or territory could be the basis for a finding that an applicant’s rights under the ground of “place of origin” were breached. See Christie v. Trent University, 2015 HRTO 937 at para. 137.

40Having considered all the information before me, I find that there is no reasonable prospect that the Application will succeed and the Application is therefore dismissed.