C.V. v. Mount Sinai Hospital, 2016 HRTO 941

Human Rights Tribunal of Ontario

B E T W E E N:

C.V.

Applicant

-and-

Mount Sinai Hospital

Respondent

DECISION

Adjudicator: Brian Cook

Date: July 18, 2016

Citation: 2016 HRTO 941

Indexed as: C.V. v. Mount Sinai Hospital

APPEARANCES

C.V., Applicant

Amir Attaran, Representative

Mount Sinai Hospital, Respondent

Katherine Pollock, Counsel

1This Application alleges discrimination with respect to services because of sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was the subject of a preliminary hearing held by telephone conference call on May 26, 2016.

2In May 2015, the applicant was pregnant with twins following in vitro fertilization (IVF). The applicant decided that she did not want to have twins and wished to reduce the pregnancy to one fetus. Her obstetrical specialist advised her that this was a complex procedure that was not generally performed. On May 6, 2015, her treating specialist wrote to an obstetrician colleague at Mount Sinai Hospital to see if that hospital would be able to perform the procedure. The Mount Sinai physician advised that the respondent hospital would not be able to perform the procedure because the circumstances did not fit with the hospital’s policy regarding fetal reduction surgery.

3On May 8, 2015, the applicant filed this Application, alleging discrimination by the respondent because of sex and family status.

4Ultimately, the applicant had the procedure done at another hospital and went on to give birth to one baby.

5In Interim Decision 2015 HRTO 897, the Tribunal granted the applicant's request that she be identified as C.V. throughout the course of the Tribunal’s proceedings. In advance of the May 26, 2016, hearing, the applicant’s representative asked that in addition, a “partial publication ban” be ordered to further protect the applicant's identity. In this Decision, I have attempted to limit any personal identifying information about the applicant. Because of my conclusions in this Decision, it is not necessary to address the request for a partial publication ban.

6On review of the Application, it appeared that there is no disagreement regarding the essential facts of the case and that the Application rests on a legal argument about whether, on the facts alleged by the applicant, the applicant experienced discrimination because of family status or pregnancy. I determined that it was appropriate to hear submissions on this legal question before the matter proceeded to a hearing on the merits. If the Application cannot succeed on the legal issue, it must be dismissed as having no reasonable prospect of success.

7For this reason, a preliminary hearing was scheduled, which was held by telephone conference call.

8In advance of the hearing, both parties filed comprehensive written submissions which were elaborated upon at the hearing.

Background facts

9According to the information provided by the applicant’s representative, at the time of the events in question, the applicant already had a child conceived by in vitro fertilization (IVF). In 2015, she had further IVF treatment and became pregnant with twins. With IVF treatment, more than one fertilized egg is typically used in order to increase the likelihood of success. The applicant’s representative says that according to the Government of Canada, women are 20 times more likely to have a multiple pregnancy after fertility treatments than if they had become pregnant naturally. The same source indicates that there are significant health risks associated with twin pregnancies, for both the fetus and the mother.

10According to the applicant’s representative, after weighing these risks, the applicant decided that she wished to reduce her pregnancy from twins to a singleton. The applicant was told by her treating obstetrical specialist that this procedure was not done locally but that there were specialists in Toronto who did perform fetal reduction procedures. The applicant’s specialist sent an email to a colleague at the respondent hospital. She provided some of the relevant history. She noted that the patient’s circumstances did not fit with the “department’s practice” but asked if he would consider performing the procedure for the applicant.

11The Mount Sinai Hospital physician replied later that day and advised as follows:

Our multidisciplinary consensus policy at MSH is not to offer reduction of twins to singleton unless one of the twins is abnormal either structurally or karyotypically. There are centres in the US that will do this but we do not.

12The respondent has confirmed that at the time, the consensus policy referred to was not a written policy. The respondent describes the unwritten policy that was in effect at the time in the following terms:

The respondent’s multidisciplinary consensus practice with respect to multifetal reductions is that the procedure will be limited to reduction of higher order (3 or more) multifetal pregnancies to twins. The purpose of the multifetal reduction procedure is to reduce the fetal and maternal risks associated with high order multifetal pregnancies. In the case of twins, if there is a medical indication (meaning a fetal or karyotypic anomaly detected in one twin or risk to mother), selective fetal reduction will be used. These procedures are both offered to address medical risk. The procedure that the applicant sought (reduction of healthy twins to singleton) is not available to anyone at the respondent hospital.

13The respondent thus confirms that the practice was to perform fetal reduction procedures only in certain circumstances. For example, if a patient had three or more fetuses, and if medically indicated, there could be a reduction procedure done. Depending on the health of the fetuses, the reduction would normally be to two. This is because health risks to the other fetuses and the mother increase with the number of fetuses. A twin pregnancy would be reduced to a singleton if one of the fetuses was structurally or genetically abnormal. However, the practice was to not consider this if such abnormalities were not present, as was the situation with the applicant.

14The respondent has further clarified that under the consensus practice, a woman with twins may request a total abortion (of both fetuses) and that this request is dealt with essentially the same as request for an abortion by a woman pregnant with a singleton. The respondent advised that the procedure used to effect fetal reduction in a multifetal situation is entirely different than an abortion procedure.

15The respondent has subsequently engaged in a process that led to a written policy. The respondent advises that the policy does not represent a change in the procedures that were in place in May 2015. The applicant believes that the policy amounts to an admission that the practice in place in May 2015 was discriminatory. I will discuss this matter later in these reasons.

Is a preliminary hearing appropriate in this case?

16The applicant's representative submits that the Application should not be subject to a preliminary or summary hearing process because, in his view, the case requires a full evidentiary basis before the issues can be properly determined.

17In his written submissions in advance of the preliminary hearing, the applicant’s representative submitted:

Currently, the Tribunal has no affidavits, no viva voce testimony, and thus no record of evidence. Applying the same reasoning as in Jane Doe #2, it is premature and unjust of the Tribunal to entertain a Rule 19A summary hearing on its own motion. While the Applicant is providing submissions on that motion, it does so under protest, and reserves all rights on reconsideration or judicial review.

18The applicant’s representative reference to Jane Doe #2 is a reference to the Manitoba Court of Appeal decision in Jane Doe v. Manitoba #2, 2005 MBCA 109 (Manitoba). In that case, the plaintiffs commenced a class action lawsuit challenging the funding regime of the Government of Manitoba for therapeutic abortions on the basis that it violates certain provisions of the Canadian Charter of Rights and Freedoms. A motions judge granted summary judgment in favour of the plaintiffs. The government appealed and the Court of Appeal found that in that case, a full evidentiary record was important in order to properly consider the complex Charter arguments and that a summary judgement was not appropriate.

19Apart from the fact that Manitoba involved access to abortion, it does not appear to me to be helpful or relevant to the present case. In that case, a class action was allowed by summary judgement. The Court of Appeal found that the motions judge accepted factual assertions made by the plaintiffs that were contested by the defendant. This is entirely different from the instant case where the issue is whether the applicant has any reasonable prospect of making out her case of discrimination claim assuming the facts alleged by her are true.

20The Tribunal’s approach to summary hearings was first described in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

21I have considered the applicant’s allegation that the respondent has not disclosed all arguably relevant documents, and the claim that these documents might prove the discrimination alleged. In particular, the applicant’s representative has sought production of documents relevant to the respondent’s policy review which has resulted in a new written policy, including any notes of meetings held during the process, any background information considered, and any drafts of the policy that may have been drafted. Following a Freedom of Information request, the applicant’s representative has obtained a copy of a written policy statement from the respondent.

22In a Case Assessment Direction of February 25, 2016, I considered the request that the respondent disclose documents. At that time, the request was limited to disclosure of drafts of the policy. I concluded that such documents could be relevant to remedy in the event that discrimination is found, but that they were not relevant at this stage of the proceeding. I indicated that the request could be renewed prior to submissions on remedy in the event that a finding of liability is made.

23I continue to be satisfied that the fact that respondent has developed a written policy is not relevant to the question of whether the applicant was denied equal treatment because of family status or pregnancy. The document could be relevant to remedy if the matter were to get to that stage.

24I continue to be satisfied that this case turns on legal issues. The applicant must be able to show that that, assuming the facts as alleged to be true, those facts establish, in the absence of an explanation from the respondent, that the applicant experienced unequal treatment because of discrimination because of family status or sex contrary to the Code. If this cannot be established, there is no purpose in holding a full hearing to determine if the facts as alleged are true.

The allegation of discrimination on the basis of family status

25The applicant alleges that she experienced discrimination on the grounds of family status. “Family status” is defined in section 10 of the Code:

“family status” means the status of being in a parent and child relationship

26As the respondent correctly notes, in this case, family status as between the applicant and an unborn fetus would not apply, as the unborn fetus is not a child for the purpose of the Code. The applicant does not dispute this.

27Nor does the applicant does not allege direct discrimination on the basis of family status – there is no suggestion that the respondent treated the applicant differently because of anything to do with her family status.

28However, the applicant argues that the decision to not offer her the fetal reduction procedure she wanted would have altered the family dynamic. In his written submissions, the applicant’s representative characterizes this aspect of the alleged discrimination in the following terms:

Further, because [the respondent] MSH and not the woman chooses whether partial abortion (or multifetal reduction) will be granted in cases of twin pregnancy, this denies the woman the choice of how many children to birth, thereby putting MSH in the position of dictating the number of new parent-child relationships a woman’s family should have, which is a very profound, discriminatory interference. MSH also interferes with the character of existing parent-child relationships in her family, which are of course fundamentally changed by the birth of new siblings. The interference by MSH with a woman’s parent-child relationships, both current and future, is adverse treatment that discriminates on the grounds of family status.

29In Canada (Attorney General) v. Johnstone, 2014 FCA 110, the Federal Court of Appeal clarified that the parental obligations that fall within the protected ground of “family status” under human rights legislation are substantive obligations that engage a parent’s legal responsibility to a child. The reasoning in Johnstone has since been accepted and applied by this Tribunal: Miraka v. A.C.D. Wholesale Meats Ltd., 2016 HRTO 41, and the cases cited at paragraph 41 of that Decision.

30The applicant’s representative submits that since the applicant had a child before the pregnancy in question in this case, the relationship between that child and the applicant would be impacted by whether that child had one or two siblings.

31This is undoubtedly true. However, while the family dynamics would be different depending on the number of children, the applicant’s substantive legal obligations to her child would not be affected by whether the child had one as opposed to two siblings.

32The applicant has identified no evidence that is available or is potentially available that would provide a basis for the allegation of discrimination on the basis of family status and that allegation is dismissed as having no reasonable prospect of success.

Alleged discrimination because of pregnancy

33Section 1 of the Code provides as follows:

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.

34Section 10(2) provides:

The right to equal treatment without discrimination because of sex include the right to equal treatment because a woman is or may become pregnant.

35The issue then is whether the applicant was denied equal treatment with respect to a service because of pregnancy.

36For the purpose of this analysis, it is accepted that the applicant was denied a medical service that she desired. There is no dispute that the medical service related to pregnancy, and that if the denial of the service was a denial of equal treatment because of pregnancy, it would be a denial of equal treatment because of sex.

37The basis for the claim of discrimination because of pregnancy is that the applicant was pregnant and the requested medical procedure related to the fact that she was pregnant. This argument was expressed in the following terms in the submissions of the applicant's representative:

Whenever a person seeking health services is denied access, and the denial is linked to a prohibited ground in the Code, that is discrimination – period – and there is no Code defence of undue hardship or bona fide justification either.

38The problem with this characterization is that to prove discrimination it is not sufficient to establish only that a person has been denied a service that is “linked to” a prohibited ground. Under section 1 of the Code, the question is whether a person has been denied equal access to a service because of a Code-protected ground, in this case, pregnancy.

39The question of whether a person has been denied equal access because of a policy may involve a determination of whether the policy creates distinctions. However, the fact alone that a policy results in distinctions does not necessarily mean that the policy is discriminatory. As Abella J. explained in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161, at paragraph 49:

Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

40While McGill was an employment case and not a service case, the observation that not every distinction is discriminatory applies notwithstanding the social area engaged.

41According to McGill, to show discrimination, it is necessary to show that there is a link between the applicant’s membership in a group identified by a Code-protected ground and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact.

42In this case, there is no distinction that is created because of pregnancy. The distinction is based on the type of pregnancy, and specifically the number of fetuses, the health of the fetuses, and the relative health risks to the other fetuses and the mother. While the applicant may disagree with the distinctions as they applied to her, the distinctions are not based on the patient’s membership in a group identified by a Code-protected ground and are not arbitrary.

43In my view, based on the facts as alleged by the applicant, there is no reasonable prospect that the applicant will be able to show that she was denied a fetal reduction procedure because she was pregnant. The evidence would show that the decision to deny the requested service was made because the applicant was pregnant with apparently healthy twins and not because the applicant was pregnant.

Abortion law

44The submissions on behalf of the applicant claim that the effect of the multidisciplinary consensus policy was to deny the applicant her constitutional right to an abortion. Leaving for the moment whether this is a correct characterization of what happened in this case, it is then necessary to consider the law concerning abortion in Canada.

45The law in Canada concerning abortion was established by the Supreme Court of Canada in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30. In that decision, the Court struck down section 251 of the Criminal Code of Canada, which made it a criminal offence to perform a medical abortion except in certain circumstances. The Court found that section 251 was unconstitutional because it infringed a woman’s rights under section 7 of the Charter, which provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

46In Morgentaler, the issue was disposed of entirely on the basis of section 7. Section 15, the equality rights provision, was not considered.

47To the extent that a woman has a right to medical abortion services in Canada, it is because of section 7 of the Charter, and to the extent that what happened in this case is that the applicant was denied a right to abortion, under the current law, any remedy lies under the Charter.

48The Tribunal is not a court of general jurisdiction and cannot grant a remedy under the Charter.

49The Tribunal is required to consider Charter values when interpreting the Code. However, the fact that a person might have a remedy under the Charter does not mean that the person also has a remedy under the Code when there is no finding of discrimination under the Code: Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388.

Medical services

50Under the Code, the issue in this case is really whether the applicant was denied a medical service because she was pregnant.

51This Tribunal does not have a general jurisdiction to review medical decisions or guidelines to determine if they are correct. As noted in Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044, at paragraph 25:

[T]he Tribunal has no jurisdiction to deal with claims that a physician has failed to meet the requisite standard of care or failed to prescribe correct medical treatments to an individual, unless it can be demonstrated that the failure to meet the requisite standard or to provide proper medical care was “because of” the individual’s race, creed or other prohibited ground under the Code. Nor does the Tribunal have jurisdiction to address a claim that the respondent failed to abide by its own policy. The Tribunal only has jurisdiction to address the claim that the respondent’s medical care of the applicant was discriminatory.

52In Kline v. Ontario (Community Safety and Correctional Services), 2013 HRTO 230, the matter was discussed in the following terms:

Human rights tribunals have recognized that differences in opinion can arise between patients and doctors when doctors decide upon the best course of treatment for a patient, including whether or not to administer medication. These tribunals have consistently held that standard of medical care issues are not within a human rights tribunal’s jurisdiction, unless the doctor’s decision amounts to differential treatment based on a Code ground, or the doctor fails to accommodate the patient’s disability-related needs up to the point of undue hardship. See Patient X v. The Clinic and another, 2012 BCHRT 118; Wilson v. Dixie Road Medical Association, 2011 HRTO 1607; TenBruggencate v. Elgin (County), 2010 HRTO 1467; Egan v. Dr. Kennedy, Dr. O’Kane and St. Paul’s Hospital, 2006 BCHRT 15; and McDonald v. O’Malley and B.C. (Ministry of Public Safety and Solicitor General), 2005 BCHRT 154.

53In the present case, the respondent’s multidisciplinary consensus policy was based on medical risk determinations. Fetal reductions are available for patients who meet certain medical criteria but not available for patients who do not meet that criteria. As noted for example, a patient with triplets would be eligible for a reduction to twins, because of the increased risks associated with triplets. Fetal reduction would be available to a patient with twins if there was a fetal abnormality with one of the fetuses because of medical risk to the other fetus and to the mother, but not if there was no fetal abnormality.

54The applicant’s representative concedes that there are risks associated with fetal reduction procedures. He notes that there are also increased risks associated with twin pregnancy as opposed to singleton pregnancy.

55The submissions of the applicant’s representative suggest that the applicant was entitled to make the decision, in consultation with her attending physician, as to how to balance the risks, and that she was then entitled to have the respondent’s physicians perform the procedure. This is clearly not correct. A doctor is not required to perform a procedure that the doctor believes is not medically appropriate. Even if the doctor (or a multidisciplinary group) is wrong about the assessment or risk, this does not, in itself, establish discrimination.

56The Tribunal does not have a general jurisdiction to review medical policies such as the multidisciplinary consensus policy that was applied in this case. The Tribunal would only have jurisdiction to review such a policy if the distinctions in the policy are based on a Code ground.

57In this case, the applicant alleges that the distinction is based on the Code-protected ground of pregnancy. However, the policy does not make a distinction based on whether the patient is pregnant. The distinctions arise because of the type of pregnancy, and factors such as the health of the fetuses and the patient.

58It is possible, as the applicant alleges, that the multidisciplinary consensus policy incorrectly balanced the medical risks as between a reduction of twins to singleton as compared with the risks of a twin pregnancy. However, this is ultimately a matter of medical judgement. Even if the medical judgement is wrong, it does not mean that it was discriminatory under the Code. The same reasoning applies if the policy considerations are later changed based on a review of the medical risk assessment.

Ethical issues

59In its Response to the Application, the respondent advised that the basis for the multi-disciplinary group consensus policy of not providing fetal reduction procedures to mothers of healthy twin fetuses included ethical concerns. In particular, that the “conscience of the clinicians would not permit them to agree to perform the procedure in the circumstances of the Applicant.”

60The respondent referred to a policy adopted by the College of Physicians and Surgeons, which addresses the rights physicians have under the Charter, including freedom of conscience, and how those rights may conflict with their obligations to patients. The College’s policy indicates that the Charter entitles physicians to limit the health services they provide for reasons of conscience or religion in some circumstances. The policy discusses the balancing that may be necessary in regard to the potentially conflicting rights of physicians and the rights of their patients. In its Response, the respondent submitted that if the Tribunal were to find that the applicant’s Code rights had been infringed the respondent and its physicians would be entitled to argue that physicians would be permitted to decline to do a procedure that is contrary to their conscience.

61The applicant’s representative asserts that this argument is “nonsense”. In his view, the fact that the respondent admits that there were ethical considerations underlying the multi-disciplinary group policy proves an intention to discriminate. In his view, the Code provides no defence to discrimination by service providers. He relies on Brockie v. Ontario (Human Rights Commission) 2002 CanLII 63866 (ON SCDC), [2002] O.J. No. 2375 (Div. Ct.). In that case, a printer refused to print business cards for a gay and lesbian organization. The Court found that this constituted a denial of service for discriminatory reasons under the Code. The Court commented, at paragraph 35:

The Ontario legislature has provided exemptions and defences in respect of the Code’s prohibitions of discriminatory conduct in the areas of housing and employment. The legislature has chosen not to provide any defence in respect of the Code’s prohibition of discrimination with respect to the supply of services, goods and facilities.

62In the instant case, it is not necessary to determine the applicant’s submission that any Charter rights that a physician may have in regard to freedom of conscience are taken away by the Code. This is because this potential issue only arises if the applicant has in fact experienced discrimination under the Code. As the applicant’s rights under the Code were not infringed, the issue of the competing rights of physicians and their patients under the Code is not engaged in this case.

Referral to another hospital

63The applicant alleges that the respondent failed to refer the applicant to another hospital until the applicant took legal action against the respondent and that the referral was then made by a lawyer and not a doctor. The applicant states this was discriminatory.

64The applicant agrees that the respondent did refer her to another hospital where the treatment was done. There is some dispute as to when the referral was made. The respondent indicates that it was made on May 8, two days after the initial contact between the applicant’s doctor and the doctor at the respondent hospital, and soon after the respondent received this Application. The applicant suggests that the referral was not made until May 12. Whenever the referral was made, there is no dispute that the availability of the service at another hospital was conveyed by the respondent’s in-house counsel only after the Application had been filed. According to the submissions of the applicant's representative:

By steering C.V.’s medical care to its lawyer instead of its doctors, [the respondent] engaged in a humiliating and dangerous sort of adverse differential treatment, namely, that where pregnant women seeking abortion services are concerned, [the respondent] does not afford them the usual dignity, respect and standard of care of its other patients but instead treats them as unworthy nuisance for its lawyer to get rid of.

65With respect, this is another good example of why not every distinction is discriminatory. The distinction in this case arises not with regard to women who are pregnant and seeking abortion services, but rather as between patients who commence legal action against the hospital and those who do not. Those who do not are not likely to have legal counsel involved at all. Those who do take legal action may very well have communications channelled through legal counsel. In my view, this is a normal consequence of litigation and not evidence of discrimination.

DECISION

66The facts as alleged by the applicant do not establish a case of discrimination under the Code. In particular, the applicant cannot show that she was denied equal treatment to the medical service she wanted because of family status or because of pregnancy. The Application is dismissed on that basis.