Puharich v. Ontario (Health and Long Term Care), 2016 HRTO 574

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dushica Puharich on behalf of Stanka Puharich

Applicant

-and-

Her Majesty the Queen in Right of Ontario (Minister of Health and Long Term Care)

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: April 29, 2016

Citation: 2016 HRTO 574

Indexed as: Puharich v. Ontario (Health and Long Term Care)

APPEARANCES

Dushica Puharich on behalf of Stanka Puharich, Applicant

Dushica Puharich, Representative

Her Majesty the Queen in Right of Ontario (Minister of Health and Long Term Care), Respondent

Whitney Smith, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In a Case Assessment Direction (CAD) dated September 1, 2015, the Tribunal directed that a Summary Hearing by way of conference call be convened.

3The Summary Hearing was convened and all parties participated.

ANALYSIS

Summary Hearings

4In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

The ALLEGED Facts

6The applicant states that she is paralyzed and that in order to attend at appointments with her doctor, she is required to pay $130.00 each way for transportation. She submits that she does not have the financial resources to pay this cost and it leaves her without access to healthcare due to her disability.

7In her Application, the applicant states that she requires the assistance of two paramedics to be transported by stretcher, but that “EMS is not an option as they only transport patients to hospital”. She submits that her daughter and granddaughter have to care of her around the clock, she has a wound care nurse who sees her each day, she has a nurse practitioner who comes to see her at least once per month and she has two Personal Support Workers who help her every day.

8At the Summary Hearing, the applicant submits that the lack of transportation leaves her without a way to receive health care, as she cannot simply be put in a wheelchair and taken to a doctor. With respect to the allegation of discrimination on the basis of age, she submits that the age contributes to the position she is in, but that the application is mainly about her disability.

9The respondent submits that the denial of payment for non-emergency transportation to the applicant is consistent with the fact that they have never funded non-emergency transport for anyone in the province. Transportation for routine out of hospital care is not funded by the respondent and all individuals pay for this type of transportation, be it by taxi or a specialized transport service. The respondent emphasized that there is no criteria for who receives such a service it is simply not offered by the province. It submits that it does fund doctors, house calls, other care givers, long term care homes and hospitals. The applicant does not dispute these assertions.

10The respondent submits that once a service is offered, it must be offered in such a way that is not discriminatory, but the Code does not require provision of a new service to some individuals, where it is not provided to anyone else.

11The respondent cites several Tribunal cases, including Browne v. Niagara (Regional Municipality) 2010 HRTO 2141 (Browne), in submitting that as it does not offer the service the applicant seeks, it cannot be found to discriminate in respect of such a service.

DECISION

12The Application is dismissed as having no reasonable prospect of success.

13Clearly, the applicant faces a very difficult set of circumstances. Unfortunately for her, however, the Code does not assist her in obtaining the service she seeks. In order for her to be successful in her application alleging discrimination in the provision of services, she would have to be able to establish that non-emergency transportation is a service offered by the respondent but withheld from her due to her disability. There is no indication that the applicant has or would be reasonably be able to provide evidence that the respondent provides such a service: in fact, there was no dispute that the respondent does not provide such a service.

14This Application is analogous to the application in Browne, where the applicant alleged that the respondent’s failure to create inter-municipal conventional transit discriminated against her on the basis of her disability which precluded her from driving. She needed to travel to different municipalities in the region for her work. There was provision for specialized inter-municipal transit for individuals physically unable to board a conventional transit vehicle or walk a distance of 175 metres, for certain purposes, but the applicant did not qualify for that service. The Tribunal found that the applicant did not establish unequal treatment “with the provision of conventional inter-municipal transit because Niagara does not provide this service. In the absence of establishing a service provided by Niagara, the applicant is unable to prove differential treatment”.

15As the respondent in this matter does not provide the service of non-emergency transportation to anyone, there is no reasonable prospect that the applicant will be able to establish that the respondent has discriminated against her in respect of the provision of such a service. Accordingly, the Application is dismissed as having no reasonable prospect of success.