Falodun v. Lemckert, 2016 HRTO 737

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Olumuyiwa Dotun Falodun

Applicant

-and-

Ronald Joachim Lemckert

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: May 30, 2016

Citation: 2016 HRTO 737

Indexed as: Falodun v. Lemckert

APPEARANCES

Olumuyiwa Dotun Falodun, Applicant Self-represented

Ronald Joachim Lemckert, Respondent Anne Posno and Constanza Pauchulo, Counsel

Introduction

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

2The Application was heard on February 5, 2016 in Hamilton, Ontario. During the course of the hearing, the Tribunal heard from the applicant, the respondent, and two of the respondent’s staff members.

3For the reasons that follow, the Application is dismissed.

the law

4The relevant sections of the Code are reproduced below:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

2. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

3. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

4. (1) In Part I and in this Part,

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

“equal” means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; (“égal”)

the facts

5The applicant testified he has a hearing impairment, which he says has caused him to experience social isolation, which in turn, he testified, has resulted in psychiatric illnesses. He is treated by his family physician and a number of specialists.

6The issues that form the backdrop of this dispute arose out of an attempt by the applicant’s family physician to refer him to the respondent for a consultation. The respondent is a general otolaryngologist; that is to say, he is an ear, nose, throat, head and neck specialist. He has been practicing in Hamilton for 15 years.

7The applicant wants to have cochlear surgery to treat his hearing impairment. The respondent’s evidence was that he was expecting to meet the applicant to assess and possibly refer him, if he might be a candidate for the surgery, to one of three centers in Ontario that specialize in the area.

8The parties agree that the applicant’s family doctor’s office arranged an appointment with the respondent’s office for a consultation. The appointment was scheduled for April 24, 2015 and the applicant was given a letter by his family doctor’s office with the appointment date, time and location.

9The applicant attended the respondent’s office at the appointed date and time only to be told that his appointment had been rebooked for the previous day and the doctor was not in the office to see him. He was told that the change had been communicated to his family doctor. Everyone involved in the encounter testified that the applicant was extremely upset as he had not been aware of the change to the appointment date and time.

10The applicant says that the respondent’s staff did not help him until he threatened to involve the police.

11For their part, the respondent’s staff members say that the applicant appeared very angry. The receptionist felt she could not deal with him on her own and asked the office manager to assist her in explaining to the applicant that his appointment had not been cancelled, merely rebooked.

12Given the circumstances, the applicant was told that he would be given another appointment to see the respondent for a consultation on June 2, 2015. He was given an appointment card with the newly booked appointment date and time on it. The office manager says she showed him where to catch a bus home.

13Neither party suggests that the applicant was asked to pay a “late fee” for the missed appointment on April 23, 2015, in accordance with the respondent’s standard practice for charging patients and prospective patients a fee for not attending booked appointments.

14The respondent’s office called the applicant, using the phone number provided by the applicant’s family doctor, to remind him of the June 2, 2015 appointment.

15The applicant did not attend the appointment on June 2, 2015. He says that he forgot about the appointment.

16The respondent’s office sent a fax to the applicant’s family doctor mentioning 3 patients who did not attend their appointments and makes reference to its standard practice of charging a “late fee.”

17On June 18, 2015, the applicant’s family doctor’s office called the respondent’s office to book a further appointment for the applicant. They were given an appointment for July 16, 2015 for the applicant and told that the “late fee” was waived. The family doctor’s office also asked that they be contacted as the applicant’s phone was not working.

18On the same date, June 18, 2015, the applicant wrote to the respondent’s office alleging that he had been discriminated against, requesting a copy of the respondent’s policy on Code compliance and indicating that he was contemplating initiating a proceeding against the respondent at the Human Rights Tribunal.

19The respondent wrote to the applicant on June 22, 2015 and June 25, 2015, apologizing for any role his office had played in any miscommunication that may have occurred but indicated that he could not begin or continue medical treatment given that the threat to commence legal action constituted a breakdown of trust in the doctor-patient relationship and raised a potential conflict of interest. His correspondence further indicated that he had asked the applicant’s family doctor to make a referral to another otolaryngologist and suggested that the applicant follow up with his family doctor.

decision

Assessment of credibility

20Where my resolution of the factual differences relates to a credibility assessment, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [emphasis added]

21The applicant alleges both a failure to accommodate his disability by the respondent as well as reprisal.

Failure to Accommodate

22The Code provides that discrimination may occur whether someone is treated in a differential manner that causes a disadvantage based on a prohibited ground of discrimination (direct discrimination under section 1) or where a requirement, qualification or factor which is not discriminatory on its face results in the “exclusion, restriction or preference” of a group of persons who are identified by a prohibited ground of discrimination (“adverse effect discrimination” under s.11).

23The applicant in this case argues that the respondent’s usual practice of communication by phone caused him to be disadvantaged as a result of his disability, specifically his hearing impairment. He argues that the respondent should have communicated with him in writing either by email or regular mail as a form of accommodation, given his hearing impairment.

24The respondent argues that his office was given contact information by the applicant’s family doctor which it used to get in touch with the applicant in respect of the first appointment. The respondent’s office contacted the applicant’s family doctor (the contact) to communicate the change to the first appointment.

25Once the applicant attended on the wrong date, the respondent provided the next appointment date and time with the details written down on a card.

26Subsequent contacts after the June 2, 2015 appointment was missed, without explanation, were made in writing to and calling the applicant’s family doctor’s office. There had been no changes communicated to the respondent asking his office to discontinue that method of communication. In fact, during a conversation with the family doctor’s office on June 18, 2015, the respondent’s office was specifically asked to communicate with the applicant through the family doctor.

27Assuming without finding that the applicant could not communicate by phone, the respondent’s office contacted the applicant through the method requested, specifically by communicating with him through his family doctor’s office. The respondent’s office also provided him information in writing on the occasion that he attended at the office in person.

28In the circumstances, the applicant has not established on a balance of probabilities that discrimination occurred and he experienced any disadvantage in the manner in which the respondent and his office staff communicated with him or that they failed to accommodate his hearing impairment.

Reprisal

29In order to establish that the applicant was subject to reprisal contrary to the Code, he must establish, on a balance of probabilities:

• An action taken against, or a threat made to, him;

• That the action or threat is related to him having claimed or attempted to enforce a right under the Code; and

• An intention on the part of the respondent to retaliate for the claim or attempt to enforce the Code protected right.

See Noble v. York University, 2010 HRTO 878 at paras. 31-33.

30While I am able to accept that the first two elements of the test set out in Noble may be met given that the applicant was delayed in receiving services and the decision to discontinue service followed on the heels of the applicant’s letter alleging a breach of his Code rights, I find that the applicant has not established that the respondent intended to retaliate against him for making a claim or signalling an intention to enforce a right protected under the Code.

31I accept the evidence of the respondent that he asked the applicant’s family doctor to make another referral because he was of the view that there had been a breakdown in trust between the parties and that it would not be possible to continue in a therapeutic relationship given the potential that a legal proceeding would be initiated. In my view, there is no evidence of an intention to harm or retaliate against the applicant.

32As such, the applicant has not established that he experienced reprisal contrary to the Code.

33In the circumstances, the Application is dismissed.