HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.E., as represented by her Litigation Guardian, B.E.
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long Term Care
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: A.E. v. Ontario (Health and Long Term Care)
APPEARANCES
A.E. by her litigation guardian B.E., Applicant
B.E., Self-Represented
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long Term Care, Respondent
Rochelle Fox and Jennifer Luong, Counsel
Introduction
1This is an Application filed on February 27, 2017, alleging discrimination with respect to goods, services and facilities because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to determine whether the 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. The Tribunal held the summary hearing by conference call on November 20, 2017.
anonymization
3B.E. is currently caring for the applicant’s minor daughter and a children’s aid society was involved in the placement. Section 45(8) of the Child and Family Services Act, RSO 1990 c. C11 prohibits a person to publish or make public information that has the effect of identifying a child who is the subject of a proceeding.
4In addition, the Tribunal’s Practice Direction on Anonymization provides that the Tribunal will use initials in its decisions to identify children under the age of 18 and the next friend of a child under 18. Initials may also be used to identify other participants in the proceeding if necessary to protect the identity of a child (Rule 3.11.1 of the Rules of Procedure).
5Consequently, the Tribunal uses initials to refer to any name that could identify the child.
Factual Background
6The parties did not contest that the applicant, A.E., is a person with substance abuse and has a mental illness. The applicant and her mother, her Litigation Guardian B.E., have made significant efforts to seek treatment for A.E. without success. These efforts are at the core of this Application.
Applicant’s Submission
7The applicant alleges discrimination against persons with substance abuse based on the following allegations:
a. The long wait, caused by the Pinewood Centre (“Pinewood”), to complete the applicant’s Admission, Discharge and Assessment Tools (“ADAT”), a prerequisite to apply for treatment.
b. The shortage of publicly funded Ontario addiction treatment centres in November 2016, available for someone in the applicant’s position. The applicant needed long-term residential addiction treatment but most centres required applicants to be drug free for 10 to 30 days, did not allow methadone treatment and did not allow smoking.
c. The long waiting lists to be admitted for treatment in Ontario, which are longer than those for cancer treatment or cardiac patients.
d. The respondent’s failure to coordinate the applicant’s treatment compared to the assistance it provides to patients that require cancer or cardiac treatment.
e. The alleged statement made by a staff at Pinewood to the applicant that the respondent only allows persons with substance abuse to apply to only two facilities.
f. The Nipissing Detox program’s (“Nipissing”) requirement that persons in their detox program be substance free for at least 10 days.
g. Nipissing’s termination of the applicant’s participation in its program after two days, which was discriminatory compared to the treatment of cancer or cardiac patients.
h. The North Bay Recovery Home’s changes to its program which made it ineffective or inadequate for the applicant.
i. The Canada Health Act, RSC 1985, c C-6, which allows private substance abuse treatment facilities that provide higher standard of care than publicly funded substance abuse treatment facilities.
DECISION AND ANALYSIS
8The nature of a summary hearing has been set out in Dabic v. Windsor Police Services, 2010 HRTO 1994 at paras. 7-9. The focus of this hearing is on whether, assuming all the allegations to be true, there is no reasonable prospect that the applicant can show a link between what happened to her and the prohibited ground of disability.
9The Tribunal has stated on several occasions that it does not have a general power to deal with allegations of unfairness. See for example: Badvi v. Voyageur Transportation, 2011 HRTO 1319 at para. 6, and Watt v. Cambridge (City), 2014 HRTO 218 at para. 6. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability. Unfair treatment is not discriminatory unless there is proof that one or more of these characteristics were a factor in the treatment the applicant experienced. It is readily acknowledged that various experiences of unfairness, not specifically defined as discrimination in the legal sense, can result in significant negative financial and emotional consequences to one degree or another.
10The test the Tribunal applies at this stage is whether the case has no reasonable prospect of success, which involves assuming the applicant’s version of events to be true, absent clear evidence to the contrary.
11Based on the particular facts of this case, I find that the allegations of discrimination based on disability have no reasonable prospect of success.
12The applicant’s allegations largely relate to decisions of public hospitals. Public hospitals such as Lakeridge Health Centre, which operates Pinewood, and the North Bay Regional Health Centre, which operates the Nipissing Detox facility, and community health service providers such as the North Bay Recovery Home are independent corporations run by their own board of directors. The following allegations fall into that category:
a. The length of time it took for Pinewood to complete the ADAT;
b. The admission criteria for various facilities, such as the number of days that the applicant has to be free of drugs before admission or the refusal to admit those who are on methadone or are smokers;
c. The length of waiting lists;
d. The changes in the way programs operate;
e. The failure to coordinate with residential addiction treatments; and
f. The way in which A.E.’s treatment at Nipissing was terminated.
13The fact that the respondent funds medical services is not sufficient to establish that the respondent is responsible for the day-to-day operations, actions or omissions of Pinewood, Nipissing Detox or the North Bay Recovery Home, or their employees.
14Even if the applicant’s allegations are true, the Tribunal has consistently recognized that the respondent is not responsible for patient`s complaints about doctors or other employees of health care teams or hospitals:
The Ministry of Health is not responsible for complaints patients may have about doctors. Doctors are not employees or agents of the Ministry and are instead either self-employed and/or are employees of organizations such as health care teams or hospitals which are independently responsible for complaints from patients. Ceschin v. Ontario (Health and Long Term Care), 2014 HRTO 978 at para. 9. See also Brodeur v. Ontario (Minister of Health and Long-Terms Care, 2013 HRTO 1229 at para. 31; Navikevicius v. Ontario (Health), 2013 HRTO 1017.
15The applicant has not pointed to any evidence upon which she could rely to establish that the respondent is responsible for her difficulties in accessing treatment other than the applicant’s hearsay claim that she was told that the respondent allows applications to only two centres.
16Finally, the Tribunal does not have jurisdiction over federal matters such as the Canada Health Act.
order
17For the reasons outlined above, the Application is dismissed.
Dated at Toronto, this 5th day of December, 2017.
“Signed by”
Josée Bouchard
Vice-chair