Moses v. Argent, 2016 HRTO 974

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Moses

Applicant

-and-

Janice Argent

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 25, 2016

Citation: 2016 HRTO 974

Indexed as: Moses v. Argent

APPEARANCES

Joseph Moses, Applicant

Self-represented

Janice Argent, Respondent

Jocelyne Maxwell, Representative

Introduction

1The applicant alleges discrimination in the provision of services because of race and ancestry contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He alleges that because of his race and ancestry as a First Nations person he, unlike others of different races, had to sign a Patient Agreement Letter (“agreement”) before the doctor would prescribe him any further prescription narcotics.

2He also alleges that the agreement is a problem because the respondent signed it as the healthcare provider when it was the doctor who should have signed it.

3In a Case Assessment Direction (“CAD”) issued on January 20, 2016 the Tribunal directed, on its own initiative, that a summary hearing would be held to determine whether this 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.

no reasonable prospect of success

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is outlined in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”), as follows:

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. [Emphasis added]

7As indicated in the CAD the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground.

8Having reviewed the Application and heard the submissions of the applicant and the respondent I find this Application must be dismissed because it has no reasonable prospect of success. The applicant can point to no evidence in his possession or that may be reasonably available to him that would tend to prove a link between the applicant’s race or ancestry and the fact that he was asked to sign the agreement or that a registered practical nurse signed the agreement instead of a doctor.

9Prior to the summary hearing, the applicant withdrew the Application as against the health centre and continued only against the respondent, who is the registered practical nurse.

submissions

10On October 28, 2014, the applicant had a telemedicine appointment with a doctor and the respondent. The doctor prescribed further medications for the applicant at that appointment, but asked the applicant to sign a Patient Agreement Letter (“agreement”) with respect to the further prescribing of narcotics for the applicant in the future.

11The applicant signed the agreement at the appointment, but asked to take a copy home. Upon review, the applicant was not pleased with it and advised that he was revoking his signature. As a result, the doctor refused to prescribe further narcotic medications for him.

12The applicant submits that it would not be bad if everyone had to sign such an agreement, but a year and a half after he signed the agreement someone of a different race, who wishes to remain anonymous, told the applicant he was not asked to sign an agreement. The applicant alleges that the reason the applicant was asked to sign the agreement was his race and ancestry.

13The applicant’s other main concern centres on paragraph 11 of the agreement that states: “I understand that if I break this agreement, the [health centre] reserves the right to stop prescribing controlled substances medications for me” because it was signed by the respondent nurse as the healthcare provider when only a doctor can sign for narcotic medications.

14The respondent submitted an affidavit signed by the doctor, which states that the health centre operates within best practice guidelines and uses an agreement with individuals who receive prescriptions for opioids, benzodiazepines and controlled substances. The doctor further states this practice is recommended by the College of Physicians and Surgeons of Ontario. She also states the applicant agreed to the terms of the agreement on October 28, 2014 but refused to follow its terms on October 31, 2014.

15The respondent submitted it is the doctor’s practice to ask every patient who gets narcotics prescriptions to sign an agreement, and she signed it as a witness after the doctor explained it to the applicant.

findings and analysis

16In my view, the applicant can point to no evidence in his possession or that may be reasonably available to him that would establish that a factor in the alleged incident of discrimination was his race or ancestry.

17As the Tribunal points out in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process 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.

18The applicant’s allegation that his race or ancestry was a factor that was considered in asking him to sign the agreement is nothing more than a bald assertion or, to use the words in Forde, “mere speculation and accusations.” The applicant was not able to point to any evidence beyond an assertion by an unnamed, anonymous person that that person was not asked to sign such an agreement while the applicant was. The applicant provided no further or more specific details with respect to this evidence. In effect, the applicant was able to point to no evidence that his race or ancestry had any bearing on his being asked to sign the agreement. This allegation has no reasonable prospect of success.

19With respect to the issue the applicant raised that it was a nurse who signed the agreement, not a doctor, I asked the applicant how his race and ancestry were factors in that. He responded by repeating his allegations about having to sign the agreement when others of a different race did not have to do so. The applicant pointed to no evidence that connected the fact that the respondent nurse, rather than a doctor, signed the agreement to the applicant’s race or ancestry. Therefore this allegation has no reasonable prospect of success.

20Given the absence of any proposed evidence, or any evidence that may be reasonably available to the applicant, on which a link to a prohibited Code ground might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of the alleged grounds.

21For these reasons the Application is dismissed because it has no reasonable prospect of success.

ORDER

22The Application is dismissed.