Hasselsjo v. ParaMed Home Health Care, 2017 HRTO 1103

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Songja Hasselsjo Applicant

-and-

ParaMed Home Health Care Respondent

A N D B E T W E E N:

Songja Hasselsjo Applicant

-and-

Hamilton Niagara Haldimand Brant Community Care Access Centre Respondent

DECISION

Adjudicator: Brian Cook Date: August 25, 2017 Citation: 2017 HRTO 1103 Indexed as: Hasselsjo v. ParaMed Home Health Care

APPEARANCES

Songja Hasselsjo, Applicant Self-represented

Hamilton Niagara Haldimand Brant Community Care Access Centre, Respondent Katharine Byrick, Counsel

ParaMed Home Health Care, Respondent Shikha Sharma, Counsel

1These are two Applications alleging a contravention of settlement contrary to section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The applicant is a person who requires home care. Hamilton Niagara Haldimand Brant Community Care Access Centre (“CCAC”) was at the relevant times responsible for co-ordinating the home care services the applicant was entitled to. At the relevant times, the applicant received home care services from two separate service providers. ParaMed Home Health Care (“ParaMed”) was one of the providers. During the week and on every other weekend, home care services were provided by Bayshore Home Health Care (“Bayshore”). ParaMed provided services on every other weekend.

3In June 2014, the applicant filed an Application with the Tribunal naming CCAC and ParaMed as respondents. The applicant made various allegations relating to the scheduling of home care services and about the services that were provided.

4The parties participated in mediation at the Tribunal on May 7, 2015. The Application was settled and the parties signed Minutes of Settlement, dated May 7, 2015.

5In May 2016, the applicant filed these Contravention of Settlement Applications, alleging that the respondents had breached the terms of the Minutes of Settlement.

6A preliminary hearing by telephone conference call was held on March 20, 2017 following which I determined that it was necessary to hear evidence from the parties to determine whether the Minutes of Settlement had been contravened. An in-person hearing was held for this purpose on August 16, 2017. I heard evidence from the applicant and her spouse. Hattie Hills testified on behalf of ParaMed. She is the District Manager and was involved in the scheduling of the applicant's home care services. Kathy Brown testified on behalf of CCAC. She was the Regional Director of the CCAC starting in September 2015. The CCAC is now incorporated into the Local Health Integration Network and Ms. Brown is the Regional Director of that organization.

THE MINUTES OF SETTLEMENT

7The May 7, 2015 Minutes of Settlement provide that the parties agree that the Applications are disposed of. For the purpose of these Contravention of Settlement Applications, the relevant provision of the Minutes is item 2, which states:

The parties acknowledge the statements in the Schedule “A” attached.

8Schedule A provides as follows:

CCAC and ParaMed are committed to arranging for (HNHB CCAC) and providing (ParaMed) the services for which the Applicant is eligible in accordance with accepted standards and her individualized care plan.

HNHB CCAC has service provider monitoring which requires that treatment and care be provided in accordance with accepted standards and the client's care plan.

ParaMed, as a service provider, is committed to and requires its staff to deliver care in accordance with accepted standards and the client's care plan.

Both HNHB CCAC and ParaMed are committed to continuing to provide care on the above terms, in accordance with their contractual rights and obligations.

HNHB CCAC and ParaMed are also committed to continue to use best efforts to arrange for (HNHB CCAC) and provide (ParaMed) services in accordance with the Applicant's preferences, including those with respect to timing.

HNHB CCAC will continue to review and update the Applicant's care plan as appropriate. Any changes to the care plan must be determined at the time of assessment and will be based on the Applicant's clinical care needs and eligibility for services.

The Applicant acknowledges that she has been advised that the service provider has, in accordance with their contract, the right to withdraw services to a client.

Should this occur, HNHB CCAC will take best efforts to arrange alternate care providers in accordance with the Applicant's stated preferences.

9Despite the somewhat ambiguous language, the respondents do not dispute that the “acknowledgement” of the statements in Schedule A included an undertaking to do the things identified in Schedule A as part of the settlement.

10In the Contravention of Settlement Applications, the applicant alleges that on four weekends she was not provided with any home care services and that this happened because the respondents failed to make the “best efforts” they had undertaken to make. She also alleges that services were not provided in accordance with her preferences.

BACKGROUND

11At the time of the May 2015 settlement, the applicant was receiving home care from Personal Support Workers (PSW) that came to her home. She was entitled to one hour of service on weekdays and two hours on Saturday and Sunday. The weekday care was provided by Bayshore. Bayshore also provided services on every other weekend. ParaMed provided services only on every other weekend.

12Section 3(1)(3) of the Home Care and Community Services Act, 1994, S.O. 1994, c. 26 provides:

A person receiving a community service has the right to be dealt with by the service provider in a manner that recognizes the person’s individuality and that is sensitive to and responds to the person’s needs and preferences, including preferences based on ethnic, spiritual, linguistic, familial and cultural factors.

13The applicant has always been clear that her preference is that any PSW be a female, non-smoking Filipina. She has also expressed a preference that she receive service at 8:00 in the morning on Sundays so that she can attend Church.

14In May 2015, the service from ParaMed was provided by a PSW by the name of Tina. Tina had been providing service to the applicant for a few years. Tina is a non-smoker but is not a Filipina. On Saturdays, she was able to come at about 8:00 a.m. but on Sundays, she always came later. At the hearing, the applicant testified that she was generally satisfied with Tina’s service even though she did not match the applicant’s preferences.

15On Saturday February 6, 2016, after Tina had provided service, the applicant discovered some bed bugs. She had a container with powder that she used to deal with bed bugs but the container was not there when she went to get it.

16The applicant testified that she made some phone calls to see if Tina had perhaps done something with the powder. According to ParaMed’s records, Tina understood that the applicant was accusing her of theft.

17Tina provided service to the applicant on the next day, which was Sunday February 7, 2016, but then told ParaMed that she no longer wanted to be assigned to provide service to the applicant. ParaMed’s policy is that it will respect the wishes of any PSW who does not want to be assigned to a client.

18ParaMed was next scheduled to provide service on Saturday February 20, 2016. Ms. Hills testified that the agency had difficulty finding a PSW to provide the service that Tina had provided. She testified that at the time, ParaMed had approximately 60 PSWs in the applicant's service area. Of these, approximately 40 were on a “do not send” list, meaning either that the PSW did not want to provide service to the applicant, or that the applicant had said she did not want the PSW to provide service.

19Ms. Hill testified that the only PSW who was available for Saturday February 20 was Penny. Penny is not a Filipina. Like Tina, she could come on Saturday morning but could only come on Sunday afternoon. The applicant testified that Penny was a heavy smoker. Ms. Hill said that their records indicated that Penny identified as a non-smoker and would not have been sent if she identified as a smoker.

20According to the applicant, Penny provided only minimal service on Saturday February 20 and mostly sat on the couch talking. The applicant testified that she sent Penny away after about an hour and she did not return on Sunday February 21.

21According to Ms. Hill, ParaMed’s records indicate that Penny attended on February 20 and 21 and that she then said she did not want to be assigned to the applicant because she was asked to do cleaning duties that were not appropriate. Ms. Hill conceded that she has no way to know for certain if Penny attended on the Sunday.

22ParaMed was next scheduled to provide service on March 5 and 6. However, on March 2, ParaMed advised the CCAC that it was withdrawing service for the applicant. The applicant agrees that ParaMed was entitled to do this. She asserts that she did not receive a copy of the March 2 letter from ParaMed to CCAC. However, she agrees that she knew that a PSW was not going to come from ParaMed on the March 5th and 6th weekend.

23The parties agree that the applicant received no service on March 5 and 6. She also received no service on the weekend of March 19 and 20.

24As discussed more below, the applicant contends that she also received no service on the weekend of April 2 and 3. However, CCAC contends that its records show that the applicant did receive service on that weekend.

25The record includes the Client Notes of CCAC regarding contacts with and about the applicant. According to the Notes, on March 4, after learning that ParaMed would no longer provide service to the applicant on March 2, the CCAC Care Co-ordinator contacted three other agencies, Able Living, Assisted Living, and the Good Shepherd, to see if service could be provided through them. She was expecting to hear from them the following week.

26According to the Notes, there was a CCAC home assessment on March 7, 2016. This seems to have been previously scheduled as part of the ongoing assessment of the applicant’s needs. The applicant recalled this meeting but was not sure that it occurred on March 7. According to the Note for the visit, a number of issues were canvassed, including the difficulty in finding an appropriate service provider. According to the Note, the applicant advised that she was not willing to consider the three possible agencies that had been identified.

27After the home assessment, Ms. Brown wrote a letter to the applicant, which is dated March 7, 2016. The letter stated in part:

We have discussed other options which may be available, in an effort to arrange for the services for which you are eligible through the CCAC.

You have advised CCAC of your preference for us to work only with Bayshore at this time. As a result of your expressed wish to have services provided only from Bayshore, you may be without PSW service, for which you are eligible, on every other weekend for an indefinite period of time.

28The applicant testified that she may not have received this letter. The applicant testified that she did say that she preferred to have her care provided entirely by Bayshore. She says that she did not refuse to consider service from a provider other than Bayshore. In fact, in the period around March 7, at the suggestion of CCAC, she was contacting some private service providers. She said she found a private agency that could provide a PSW who met her preferences, but this did not work out because of insurance issues.

29Ms. Brown testified that she recalled discussions about this. She testified that CCAC cannot contract directly with a private provider. It can only deal with the agencies that it has contracts with. It would have been possible for Bayshore to sub-contract with the private agency but this would be Bayshore’s responsibility. Ms. Brown recalled that the arrangement did not work out and that insurance may have been a reason.

30There is no recorded activity in the CCAC Client Notes from the time of the home assessment and letter on March 7, to April 1, 2016. The April 1, 2016 records a voice message from Bayshore stating that Bayshore “will try to get someone there on Saturday April 2nd and Sun. April 3rd.” The Note indicates that a message was sent to Bayshore authorizing the service on those dates. Ms. Brown testified that CCAC records show that Bayshore billed for that service, indicating that the service was provided. However, the applicant maintains that she received no service on April 2 and 3.

31The applicant testified that she had no service on the weekend of April 2 – 3.

32After that weekend, Bayshore provided all of the applicant’s home care, including on all weekends, and this arrangement continues to date.

33The applicant testified that on the occasions when no service was provided, her spouse had to drive from London to Hamilton to assist her. He incurred travel costs and she also paid him for assisting her. The applicant's spouse confirmed this in his testimony.

ANALYSIS REGARDING PARAMED

34The applicant maintains that ParaMed did not respect the commitment under the Minutes of Settlement “to continue to use best efforts to provide services in accordance with the Applicant's preferences, including those with respect to timing.”

35The applicant asserts that between May 2015, when the Minutes were signed, until the breakdown of her service relationship with Tina in February 2016, the respondents did not provide her with a non-smoking Filipina PSW who was available on Sundays at 8:00 a.m.

36The parties confirmed that at the time the Minutes of Settlement were signed, it was everyone’s expectation that Tina would continue to provide services in the future as she had for several years. At the hearing, the applicant indicated that she would have been satisfied if Tina had continued to provide service. This is so even though Tina was not a Filipina and never came at 8:00 a.m. on Sundays. The applicant’s contravention of settlement allegations concern the events after Tina withdrew her services.

37The Minutes of Settlement required the respondents to “continue to use best efforts” to provide the applicant with services in accordance with the Applicant's preferences, including those with respect to timing. I find that the use of the word “continue” combined with the mutual understanding that Tina would continue to provide services, means that the Minutes of Settlement did not require the respondents to do something different than they had been doing prior to the Minutes of Settlement in regards to providing services in accordance with the applicant’s preferences.

38It is also clear that the Minutes of Settlement did not include an undertaking to ensure that the applicant would always receive the service she was entitled to in accordance with the preferences. Rather, the Minutes required “best efforts.”

39I accept Ms. Hills’ evidence that after Tina withdrew, there were few options available that ParaMed could offer and that it was very difficult to find any PSW on its roster who could provide service to the applicant without disrupting the care of other clients. This difficulty was enhanced because most of the PSWs on the roster were also on the applicant’s “do not send” list.

40Penny was sent on the next scheduled weekend after Tina withdrew. In my view, for the purpose of this Application, it is not relevant whether Penny came only on the Saturday or also on the Sunday. It is clear that in either event, Penny would have been added to the do not send list, either on her request or at the applicant's request.

41Shortly after that, ParaMed withdrew services for the applicant, as it was entitled to do under the Minutes of Settlement.

42I conclude that ParaMed did not contravene its obligations to the applicant under the Minutes of Settlement.

ANALYSIS CONCERNING CCAC

43After Tina withdrew her services, followed by ParaMed’s withdrawal of services on March 2, 2016, the CCAC Client Notes indicate that the Care Co-ordinator very quickly started to contact other agencies to see what could be done to ensure the applicant continued to receive services.

44On the basis of the available evidence, I find that it is more probable than not that the applicant refused to be provided with service from the agencies identified by CCAC. Although the applicant testified that she did not recall hearing the name of one of the agencies, she did agree that other agencies were proposed that she was not interested in. The March 7 Client Note is fairly detailed about these discussions and indicates that the applicant rejected the agencies discussed at that time. This was also confirmed by Ms. Brown’s letter to the applicant of March 7, 2016. The applicant testified that she may not have received this letter. However, she did agree that she spoke with Ms. Brown and others at CCAC and that the other agencies were discussed and that she expressed some objections.

45I conclude that the efforts that CCAC tried to make to meet its obligations under the Minutes of Settlement were undermined by the applicant's refusal to consider services from other agencies that were under contract with CCAC. To the extent that the applicant’s refusal to consider service from these other agencies was a preference, it was not a preference that had been previously recognized and was not related to her preference for a non-smoking Filipina who was available on Sunday mornings.

46While I find that the applicant did not accept the agencies proposed by CCAC, I accept that the applicant was on her own looking into private agencies. I accept Ms. Brown’s evidence that arrangements with a private agency could not be made by CCAC and would have had to have facilitated with Bayshore. It appears to me that it is likely that everyone concerned, including the applicant, was hopeful that the private agency solution identified by the applicant would work out. These arrangements did not work out apparently because Bayshore was not satisfied about insurance issues. That decision was made by Bayshore, who is not a party to these proceedings.

47I have some concern about the fact that there is no recorded activity by CCAC in the period from March 7, when the home assessment occurred and Ms. Brown wrote to the applicant, and April 1, 2016. In the interval, there was the weekend of March 19 and 20. There was no plan in place that would have allowed the applicant to receive service on that weekend. On the other hand, Ms. Brown was clear in her March 7 letter to the applicant that it might not be possible to ensure service unless the applicant was willing to consider other agencies under contract with CCAC. The letter invited the applicant to let Ms. Brown know if she changed her mind. Even if the applicant did not receive this letter, I am satisfied that the “best efforts” that CCAC was required to make would not extent to the duty to ensure that the applicant received correspondence sent to her, especially since the same things were discussed at the time of the March 7 home assessment. In addition, as noted, in this time, there appeared to be a good possibility that the private provider might work out. It also seems likely that in the period after March 7, everyone, including the applicant, was hoping that Bayshore would be able to provide the missing service, which in fact it eventually did.

48It therefore appears that the applicant rejected the options suggested by CCAC and that CCAC and the applicant hoped that another solution would emerge through Bayshore. It seems likely that these factors explain why no service was available for March 19 and 20.

49With regard to the weekend of April 2 and 3, even if the applicant is correct that Bayshore did not provide service that weekend and that she therefore had no service, I find that CCAC believed that Bayshore was going to provide service. The available evidence indicates that CCAC received a voice message from Bayshore on April 1 stating that Bayshore would try to arrange service for April 2 and 3. CCAC then told Bayshore that the service was approved, and, according to their records was then billed for. If, after receiving approval for service on April 2 and 3 Bayshore was in fact unable to provide service, in the circumstances, it seems to me that the onus was on Bayshore to let CCAC know. On the basis of the evidence, I find that CCAC reasonably believed that the applicant would be receiving service on April 2 and 3 and that it therefore met its “best efforts” commitment in respect of that weekend.

50On the basis of the evidence before me, I conclude that CCAC did not contravene the Minutes of Settlement it signed on May 7, 2015.

DECISION

51The Contravention of Settlement Applications are dismissed. The respondents did not contravene the May 7, 2015 Minutes of Settlement.