HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shane Cantwell
Applicant
-and-
Toronto East General Hospital (currently Michael Garron Hospital – Toronto East Health Network)
Respondent
RECONSIDERATION DECISION
Adjudicator: Josée Bouchard
Indexed as: Cantwell v. Toronto East General Hospital
WRITTEN SUBMISSIONS
Shane Cantwell, Applicant
Self-represented
Introduction
1On July 14, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 872, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
BACKGROUND
2The Tribunal’s Decision found as follows:
- The Code is not a mechanism to challenge, in general, the quality of health care that a person has received or a disagreement over the nature or extent of the care that was provided.
- There must be “something more than an assertion that the applicant’s particular disability was not dealt with properly in a particular case to establish discrimination, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds”.
- Treatment decisions made by physicians based on their professional medical judgment, taking into account factors they professionally consider to be relevant, will not be considered a breach of the Code based on disability, even if it turns out that the decision was based on inaccurate information or an incorrect diagnosis.
- Dr. Mamen, the treating physician in the Emergency Room (“ER”) at the respondent’s the day the applicant requested medical care, is a fully qualified physician with more than 15 years of experience in ER medicine, including pain management.
- When treating patients who request renewals for their narcotics prescriptions in the ER, Dr. Mamen follows the College of Physicians and Surgeons of Ontario’s Prescribing Drugs Policy, more specifically the section on narcotics and controlled substances. On May 2, 2014, Dr. Mamen applied the criteria that are consistent with the Prescribing Drugs Policy to the applicant’s situation. She also considered the applicant’s medical history, including detailed notes made two weeks earlier by an orthopaedic surgeon, and she discussed the applicant’s condition with the his family physician.
- Dr. Mamen made a treatment decision on that day based on her professional medical judgment, taking into account factors she professionally considered to be relevant.
- The applicant produced no evidence to show that Dr. Mamen’s medical care was influenced by discrimination on the basis of the applicant’s disability. Even if Dr. Mamen’s decision was based on inaccurate information or an incorrect diagnosis, which was not suggested, she relied on her professional medical judgement and was not in violation of the Code.
- Once the applicant had received medical care and was discharged, he became threatening both in his demeanor and his communications. Not only did Dr. Mamen, as the recipient of such behaviour, testify to that effect but the nurse’s notes and the security guard’s incident report, written shortly after the incident, describe the applicant’s demeanor as “shouting and calling Dr. Mamen stupid” and “raising his voice and being disrespectful to Dr. Mamen”. The respondent clearly prohibits such behaviour.
- Dr. Mamen acted diligently and reasonably in requesting the security guards’ intervention when the applicant became belligerent after his discharge. There was no evidence to suggest that the applicant was discriminated against based on his disability.
- The respondent has not discriminated against the applicant because of his disability with respect to the services it provides to him in its ER department.
THE REQUEST FOR RECONSIDERATION
3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:
a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance;
b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
4Rule 26.4 of the Tribunal’s Rules of Procedure states as follows:
A party who has been served with a Request for Reconsideration need not file a response with the Tribunal unless the Tribunal directs that a response is required.
5The Tribunal did not direct the respondent to file a response.
THE LAW
6Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
7The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, effective as of January 2014). Most relevant to this Decision is Rule 26 which states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.
26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that
(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
8The Tribunal’s Practice Direction on Reconsideration includes the following statements:
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
9As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
ANALYSIS AND CONCLUSIONS
10I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
11As indicated above, the applicant relies on Rule 26.5(c) and (d). He submits that the Tribunal intentionally ignored his relevant evidence, including testimony, pleadings, witness statement, cross examination, closing arguments and overall evidence.
12In support of its Request, the applicant essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.
13I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.
14It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.
15The Tribunal also stated in Sigrist, above, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that his submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.
16In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.
Dated at Toronto, this 20th day of September, 2017.
“Signed By”
Josée Bouchard
Vice-chair