HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Oudit Smith
Applicant
-and-
Quest Community Health Centre and Amy Yoo
Respondents
DECISION
Adjudicator: Josée Bouchard
Indexed as: Smith v. Quest Community Health Centre
APPEARANCES
Oudit Smith, Applicant
Self-represented
Quest Community Health Centre and Amy Yoo, Respondents
Bradley J. Troup, Counsel
Introduction
1The applicant filed an Application on May 8, 2017, alleging discrimination with respect to goods, services, facilities and employment because of disability, sex, gender identity, gender expression, record of offences and that he was subjected to reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On November 21, 2017, the Tribunal held a summary hearing 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 it will succeed.
background
3The corporate respondent, Quest Community Health Centre (“Quest”), is a non-profit organization providing primary health care, health promotion, and community capacity building to residents of the St. Catharines area and Niagara Region.
4The respondent, Amy Yoo, is a registered nurse who worked at Quest, during the material time.
5The applicant maintains that on March 2, 2017, he went to Quest for the sole purpose of getting a blood work requisition. The applicant alleges that on that day, while in the examination room with Ms. Yoo, she asked him numerous questions that were irrelevant to the purpose of his visit. The questions were part of a long health questionnaire that she was reading to him from her computer. The applicant believes that he was with Ms. Yoo for about one hour and in the end she never gave him his blood work requisition. The applicant maintains that he was never told the purpose of the questionnaire or why he had to fill it out at that moment.
6The applicant also alleges that Ms. Yoo asked him if he would like a physical examination. The applicant replied that he did not. The applicant submits that he did not think a physical examination should have been offered at that time. He noted however, that he did not have a gender-based issue with being examined by a woman.
7The applicant submits that the long questionnaire and asking whether he wanted a physical examination at that particular time were acts of reprisal. The applicant did not identify a claim or event that could have triggered a reprisal.
8In his Application, the applicant alleged that Ms. Yoo asked how he got from Niagara to St. Catharines and he answered that he drove a truck. Ms. Yoo informed the applicant that she was going to report him to the Registrar of Motor Vehicles at the Ministry of Transportation. It is not contested that the applicant has a disability. However, he submits that the fact that he has a disability is not reasonable grounds for Ms. Yoo to report him under the Highway Traffic Act, R.S.O. 1990, c H.8 (“Highway Traffic Act”). He noted that he was on his medication at the time.
9The respondents clarified at the hearing that Ms. Yoo did not file the report to the Registrar of Motor Vehicles. In questioning the applicant, she found that he could be detached from reality and not always taking his medication. She spoke to a physician about the applicant’s medical condition and the physician filed the report. The applicant accepted that this happened but he questioned why Ms. Yoo had to have a physician make the decision to report.
10The applicant stated that he received a note in the mail a while after the visit indicating that someone had reported him to the Registrar of Motor Vehicles and that his license was suspended for two months. He argued that this is discrimination based on disability.
DECISION AND ANALYSIS
No Reasonable Prospect of Success
11The 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 a summary 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 him and the prohibited ground of disability, sex, gender identity, gender expression or record of offences or that he was subjected to reprisal or threat of reprisal.
12The 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, sex, gender identity, gender expression or record of offences. 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.
13The 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.
14Based on the particular facts of this case, I find that the allegations of discrimination based on disability, sex, gender identity, gender expression, record of offences or of reprisal or threat of reprisal have no reasonable prospect of success. My reasons are provided below.
Reprisal
15At the hearing the applicant argued that submitting him to a long health questionnaire unrelated to the purpose of his visit and asking at that time whether he wanted a physical examination are acts of reprisal.
16Section 8 of the Code provides as follows:
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
17Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, is a decision which has been consistently followed by the Tribunal and which considered what is required to show reprisal contrary to section 8. At paragraph 23, that Decision states:
Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.
See also Noble v. York University, 2010 HRTO 878.
18The applicant did not identify a claim or event in which he asserted a Code right that could have triggered a reprisal. In addition, the applicant did not point to any evidence that the respondents had the intention of reprising against the applicant. I find that the applicant has failed to point to any evidence, or any evidence that may be reasonably available to him, that he was the subject of reprisal or threat of reprisal. The allegations of reprisal have no reasonable prospect of success.
Discrimination Based on Disability
19The applicant contends that Ms. Yoo discriminated against him based on his disability because she felt she had to report him to a physician who in turn reported him to the Registrar of Motor Vehicles. As a result, his license was suspended for two months. I find that there is no reasonable prospect that the applicant can establish a violation of the Code in respect of his allegations of discrimination based on disability against Ms. Yoo.
20Section 203 of the Highway Traffic Act provides as follows:
- (1) Every legally qualified medical practitioner shall report to the Registrar the name, address and clinical condition of every person sixteen years of age or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle.
(2) No action shall be brought against a qualified medical practitioner for complying with this section.
(3) The report referred to in subsection (1) is privileged for the information of the Registrar only and shall not be open for public inspection, and the report is inadmissible in evidence for any purpose in any trial except to prove compliance with subsection (1).
21The respondents suggest that section 203(2) protects medical practitioners from actions for complying with section 203. While it would appear that the Application is barred by virtue of section 203(2), there is authority for the proposition that the Code has primacy over all other statutes and that a bar would only be effective if the statute specifically provides that it is to apply despite the Code (see D.F. v. Children’s Aid Society of Hamilton, 2009 HRTO 1485). However, given my findings below, it is not necessary for me to decide whether the Code prevails over this section of the Highway Traffic Act.
22In my view, there is no reasonable prospect that the applicant can prove discrimination on the basis of disability. It is evident that the applicant is not in agreement with the physician or Ms. Yoo’s assessment of his medical condition. He does not dispute that he has a disability but he specifies that at the time he was taking medication for it. Disagreeing with a medical assessment does not, in the absence of some additional indicator of discrimination, constitute an allegation of discrimination even if the assessment leads to a wrong diagnosis or is based on inaccurate information.
23The Tribunal’s jurisprudence is clear in stating that:
[…] 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. See Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044 at para. 43 (“Moshi”), Wilson v. Dixie Road Medical Association, 2011 HRTO 1607, TenBruggencate v. Elgin (County), 2010 HRTO 1467, Smith v. Lakeridge Health, 2010 HRTO 2079, Bruce v. London Health Sciences Centre, 2014 HRTO 106, and Speelman v. Hotel Dieu Hospital, 2014 HRTO 204. The same approach has been extended to claims respecting the clinical judgment and professional competencies of other health care professionals such as nurses. See Barber v. Markham Stouffville Hospital, 2015 HRTO 1257 at para. 22 (“Barber”).
See Murray Estate v. Rouge Valley Health System, 2016 HRTO 1210 at para. 13.
24Ms. Yoo, after completing a detailed health questionnaire with the applicant, made a professional decision as a registered nurse to provide medical information to a physician who has a non-discretionary statutory obligation to report the applicant to the Registrar of Motor Vehicles. The applicant does not agree with how Ms. Yoo assessed him and he does not agree with the decision to consult with the physician, which ultimately led to the report to the Registrar of Motor Vehicles. He alleges that Ms. Yoo was mistaken in thinking that the applicant was not always taking his medication, which could make his medical condition dangerous for him to operate a motor vehicle. However, a medical assessment based on an error of fact is not in and of itself sufficient to give rise to a finding of discrimination under the Code. In all the circumstances, the applicant has not alleged facts, which, if proven, could constitute discrimination under the Code.
Discrimination with Respect to Employment
25In his Application, the applicant alleges discrimination with respect to employment. However, he failed to fill out Form 1-A on employment and the factual basis for the Application does not refer to the applicant’s employment. The applicant pointed to no evidence or evidence that could be reasonably available to him to show that he was ever employed with Quest. I find that there is no reasonable prospect that the allegation of discrimination with respect to employment will succeed.
Discrimination Based on Gender Identity, Gender Expression or Record of Offences
26In his Application, the applicant explains that he believes he has been discriminated against on the grounds of sexual orientation and gender identity because “I believe and understand I’m the king, has some authority, rights and choices”. He also explained “It seemed creepy appointment that caused dissappointment (sic) (border, limits, professionality, comfort level crossed).” During the summary hearing, the applicant did not provide further information on this and he pointed to no evidence or evidence that could be reasonably available to him to show discrimination based on gender identity or gender expression. In addition, the ground of record of offences is not an enumerated ground under section 1 of the Code, which prohibits discrimination with respect to services, goods and facilities. I conclude that the allegations of discrimination based on gender identity, gender expression or record of offences have no reasonable prospect of success.
order
27The Application is dismissed.
Dated at Toronto, this 8th day of December, 2017.
“Signed by”
Josée Bouchard
Vice-chair