Borba v. North York General Hospital, 2016 HRTO 365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Borba

Applicant

-and-

North York General Hospital

Respondent

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: March 22, 2016

Citation: 2016 HRTO 365

Indexed as: Borba v. North York General Hospital

WRITTEN SUBMISSIONS

Carla Borba, Applicant

Self-represented

Introduction

1The applicant seeks reconsideration of my Decision dated February 3, 2016, (2015 HRTO 1535) dismissing her Application.

2For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would cause me to reconsider my Decision.

The Decision being challenged

3The 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.

4I dismissed the Application on the basis that the respondent did not deny services to the applicant. Specifically I found at as follows:

The 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. (para. 3)

Applicable Principles

5The Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision to find that the conditions in Rule 26.5 have been made out. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as completed and final, subject to limited exceptions.

6The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

THE REQUEST FOR RECONSIDERATION

7The applicant seeks reconsideration under Rules 26.5 (c) and (d). In her Request for Reconsideration, the applicant takes issue with my assessment of the evidence in the case as well as my findings of credibility. The applicant claims that I “ignored” key facts that may have had an impact upon the outcome of the case. She also claims I denied her procedural fairness and that my findings and/or rulings during the hearing lead to a reasonable apprehension of bias.

Analysis

8As noted above, I am dismissing the Request for Reconsideration as the applicant has failed to establish the existence of any of the criteria in Rule 26.5 of the Tribunal’s Rules that might lead to reconsideration of the Tribunal’s decision.

9The applicant has not provided any information that could support a claim that my Decision was in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. This case was a highly fact driven case. The applicant has not pointed to any jurisprudence with which my decision is in conflict. She did claim that it was a breach of procedurally fairness and a departure from Tribunal procedure for me to permit Dr. Fung to remain in the hearing room during her evidence.

10As explained at the hearing, even when the Tribunal makes an order excluding witnesses, organizational respondents are permitted to have an advisor who is familiar with the facts of the case in the hearing room even if that person will be called as a witness. The Tribunal has held that it is not appropriate for the Tribunal to determine who the advisor is: See Capocci v. York Catholic District School Board, 2009 HRTO 1956 at para. 39 and Vanstone v. Mid-Huron Landfill Site Board, 2012 HRTO 694 at para. 15. In this case, I permitted Dr. Fung to remain in the room while the applicant testified because he was the advisor for the respondent’s counsel who had knowledge of the relevant events relating to the Application. My ruling on this issue is consistent with the caselaw cited above.

11To the extent that the applicant claims that I erred by not addressing key pieces of evidence provided at the hearing, the courts have found that a tribunal does not have to refer to every piece of evidence or set out every finding or conclusion, no matter how subordinate, in the process of arriving at its decision. See, for example, Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16 and Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670 at para. 29. In my decision, I referred to the evidence that was relevant to deciding the issues before me.

12I do not agree with the applicant that I ignored or failed to adequately consider any key pieces of evidence. The main thrust of the applicant’s argument appears to be that the violation of the Code in this case occurred when Ms. Burton initially told the applicant that Dr. Fung could not see her because he was only seeing Cantonese and Mandarin speaking patients. As noted in my Decision, Dr. Fung did ultimately agree to see the applicant and undertook steps to schedule an appointment for the applicant. In my view, the facts have to be considered as a whole to determine whether there was in substance a denial of services in this case. As I found in my Decision, there was no denial of services as the evidence showed that Ms. Burton agreed to raise the matter with Dr. Fung. When she did so, Dr. Fung agreed to see the applicant and I accepted the respondent’s evidence as credible that Dr. Fung and/or Ms. Burton contacted the applicant to schedule an appointment for her.

13Finally, I note the applicant claims that my Decision and/or conduct of the hearing gives rise to a reasonable apprehension of bias. The legal principles to be applied to reasonable apprehension of bias were set out by De Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

14The threshold test for reasonable apprehension of bias is a high standard. In my view, the applicant has not raised any concerns that could properly support a claim of reasonable apprehension of bias. What the applicant characterized as a reasonable apprehension of bias are instead disagreements with my findings and what she perceives to be breaches of procedural fairness. For the reasons set out above, I do not agree that I breached procedural fairness nor do I agree that the applicant has pointed to any information that would cause me to reconsider my Decision in this case.

Order

15For the above reasons, the applicant’s Request for Reconsideration is dismissed.