Etuke v. William Osler Health System, 2017 HRTO 1646

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joshua Etuke

Applicant

-and-

William Osler Health System and David Koczerginski

Respondents

DECISION

Adjudicator: Romona Gananathan Date: Dec 11, 2017 Citation: 2017 HRTO 1646 Indexed as: Etuke v. William Osler Health System

APPEARANCES

Joshua Etuke, Applicant Self-represented

William Osler Health System, Respondent Naveen Hassan, Counsel

Dr. David Koczerginski, Respondent Andrea Wheeler, Counsel

Introduction

1The applicant filed an Application alleging that the respondents discriminated and reprised against him with respect to services because of race, colour, ancestry, ethnic origin, place of origin, citizenship, creed, family status, and marital status, 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 address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence he could advance in a hearing to show that the actions of the respondents were based on any Code-related grounds including race, colour, ancestry, ethnic origin, place of origin, citizenship, creed, family status, and marital status.

Summary Hearing Process

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 whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10The applicant’s wife was a patient at the organizational respondent William Osler Health System (the “hospital”), where the individual respondent was the doctor in charge (the “doctor”). The applicant’s allegations stem from the respondents’ refusal to share information with him about his wife’s treatment, their characterization of her complex medical history including spousal abuse, and their refusal to permit him to visit his wife during her repeated stays at the hospital between September 2015 and February 2016.

Analysis and Findings

11Section 1 of the Code provides that every person has a right to equal treatment with respect to services, goods and facilities, without discrimination based on the grounds listed in that section.

12The applicant submits that the respondents’ actions constitute discrimination under the Code, because they predetermined that he was “no good” because he was a black man. The applicant made several arguments about the incidents that occurred while his wife was a patient at the hospital. The applicant’s allegations can be grouped within two areas. The first relates to the respondents’ refusal to share information with him about his wife’s treatment, and the documentation of his wife’s complex history in his wife’s patient records that he appears to have obtained after the fact. The second relates to the respondents’ refusal to permit the applicant to visit his wife.

13The respondents assert that they did not have a service relationship with the applicant, because the applicant’s wife was their patient. She was brought to their facility by emergency services and the respondents did not have the patient’s consent to share information with the applicant or to allow him to visit during her stay. In any event, the respondents deny that their actions were based on any Code-related grounds.

Refusal to Share Patient’s Medical Information

14The Tribunal has recognized that the definition of “services” under the Code must be interpreted broadly and purposively. The Tribunal and Courts have also found that a “service” is not without limits and must generally include something of benefit provided to a person or the public. See for example Braithwaite v. Ontario (Attorney General) 2005 HRTO 31, Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON SCDC) and Cooper v. Pinkofskys, 2008 HRTO 390 (“Pinkofskys”).

15However, in order to engage the social area of “services”, there must be some sort of service relationship between an applicant and a respondent. As held in Pinkofskys, above at para. 10, and Padayachee v. Peel Children’s Aid Society, 2010 HRTO 709 at para. 12, and a mere interaction between the parties is not enough to show a service relationship exists.

16Section 1 of the Code prohibits discrimination with respect to the provision of medical services to a patient by a doctor (and as in this case a hospital). However, the applicant filed his Application on his own behalf, not on behalf of his wife. The applicant indicated that his wife had filed a separate application, but none of the parties shared any particulars with the Tribunal about this application. In any event, the applicant’s wife was not a party to this proceeding.

17At the summary hearing, the applicant was unable to point to any evidence that he could bring in a merits hearing to show that the hospital and/or the doctor had the patient’s consent to share her medical information with the applicant at the time. Maintaining the confidentiality of patients is a vital statutory obligation of health professionals and healthcare institutions. The applicant was not the person who was receiving medical services. Absent his wife’s consent to disclose any medical information about her treatment, there is no reasonable prospect of success that the applicant will be able to establish the refusal to disclose this highly personal information to him was discriminatory or a form of differential treatment based on a Code-protected ground.

Refusal to Permit the Applicant to Visit

18The applicant submits that he has telephone records to show that his wife called him to request home cooked food and items to groom herself, but that the respondents did not permit him to visit her because he was “prejudged” by them as a result of the allegations of abuse, and because of his race. However, the applicant has to show that he has some evidence that could support his allegations beyond his mere speculations about the respondents’ refusal and the engagement of any Code grounds.

19Even if I accept the applicant’s bald assertions that his wife did invite him to visit, there was nothing in the actions of the hospital that would engage a Code ground. While the applicant’s phone records may show that he communicated with his wife, the applicant was not able to point to any evidence (such as comments made to the applicant by the respondents) that would link their actions to deny him visitation rights, to a prohibited ground under the Code such as race, creed or marital status. In the absence of such evidence, I must find that this Application has no reasonable prospect of success.

20The Tribunal notes that there are no allegations raised by the applicant in his own right with respect to the hospital facilities or goods, even though he indicates “goods, services and facilities” as the area of alleged discrimination in his Application.

21For all of these reasons, these allegations have no reasonable prospect of success and they are dismissed.

Order

22The Application is dismissed.