Konesavarathan v. SM Medical Centre, 2017 HRTO 1721

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan

Applicant

-and-

SM Medical Centre, The College of Physicians and Surgeons of Ontario

and The Board of Health for the Toronto Health Unit

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: December 29, 2017

Citation: 2017 HRTO 1721

Indexed as: Konesavarathan v. SM Medical Centre

APPEARANCES

Kovarthanan Konesavarathan, Applicant

Self-represented

SM Medical Centre, Respondent

Nadia Marotta, Counsel

The College of Physicians and Surgeons of Ontario, Respondent

Michelle Gibbs and Monica Tessier, Counsel

The Board of Health for the Toronto Health Unit, Respondent

Fred Fisher, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of race, colour, place of origin, citizenship, ethnic origin, disability, sex, family status, marital status and association with a person identified by a prohibited ground of discrimination.

The Application

2In the Application, the applicant describes himself as South Asian, dark coloured and Sri Lankan. The applicant also states that he has a mental health disability. The applicant has a daughter, VK. VK lives with her mother, from whom the applicant is divorced. The applicant lives in Guelph; VK and her mother live in Toronto.

3The applicant states the Court Order regarding the dissolution of the applicant’s marriage was provided to Dr. Manoharan, VK’s family physician. Pursuant to paragraph 25 of the Court Order, the applicant states that he is entitled to make inquiries about his daughter. The applicant filed the Order with his Application. The Order is dated January 29, 2015. Nonetheless, Dr. Manoharan would not return his phone inquiries and required him to attend in person despite knowing he lives in Guelph. Dr. Manoharan required him to produce VK’s health card, although she knew he was divorced.

4The applicant states that hepatitis B is highly endemic in South East Asian countries and that infants in Sri Lanka are vaccinated for hepatitis B. The applicant conferred with the Wellington-Dufferin-Guelph Public Health Unit (“WDG Public Health Unit”), who advised him that his daughter was eligible to be vaccinated for hepatitis B. The WDG Health Unit advised the applicant that he could book an appointment to have his daughter vaccinated for hepatitis B. Since VK lives in Toronto with her mother, the applicant asked his ex-wife to contact the Toronto Public Health Unit to have VK vaccinated.

5The applicant understands that his ex-wife contacted the Toronto Public Health Unit, but was directed to VK's family physician, i.e., Dr. Manoharan. The applicant states that Dr. Manoharan did not do a proper risk analysis when she advised his ex-wife that VK did not need to be vaccinated for hepatitis B. The applicant does not know what his ex-wife told Dr. Manoharan. He states, however, that his ex-wife believes he is "an idiot" because of his mental health issues. The applicant stated that it is likely that Dr. Manoharan was influenced by his ex-wife's views or satisfied his ex-wife’s beliefs by denying the hepatitis B vaccination for VK. The applicant states that Dr. Manoharan was not able to act in the best interests of VK. The applicant asserts that Dr. Manoharan made the decision not to vaccinate VK and discounted the views of a divorced parent because of stereotypes related to his Code protected characteristics.

6The applicant states that his ex-wife has constructed barriers to his access to VK. In particular, the applicant believes she has caused VK to be afraid of him. The applicant suggested that VK be enrolled in Children Mental Health Services to help her with apparent emotional distress. The applicant states that Dr. Manoharan stated, without investigation, that VK did not require this service. The applicant alleges that Dr. Manoharan was acting on stereotypes about his mental health and sex (i.e., that men are less fit to care for children).

7The applicant contacted an investigator at Toronto Public Health. She agreed that VK was eligible for hepatitis B vaccinations, but VK's family physician had to order and administer the vaccine. The applicant states that the Toronto Health Unit's requirement that a family physician must order vaccinations imposes a barrier upon children of divorced parents. The applicant stated that the investigator advised him that he was free to go to a different doctor if he wished. The applicant stated that he would not be able to convince his estranged wife to do so.

8The applicant filed a complaint to the College of Physicians and Surgeons of Ontario ("the College") against Dr. Manoharan. The applicant does not believe that the College does enough to address systemic barriers faced by divorced parents and children of divorced parents. After filing the complaint, the applicant spoke with Dr. Manoharan who confirmed that VK was receiving vaccination for hepatitis B. Their conversation was nonetheless strained in light of his complaint to the College.

The responses

9Each of the respondents denies any discrimination.

SM Medical Centre

10Dr. Manoharan states, on behalf of the SM Medical Centre (“SM”), that she had only two interactions with the applicant: one in May of 2013 and one in April 2016. Dr. Manoharan states that when the applicant first contacted her by phone in May 2013 to inquire about VK's health, she did not know him and wanted to confirm that he is VK's father. Dr. Manoharan therefore took steps to identify the applicant and confirm that he was entitled to receive health information about VK. Dr. Manoharan directed her staff to ask the applicant to attend at her office and to bring identity documents and the documents, e.g., a court order, setting out his right to access VK's medical information. On May 27, 2013, the applicant did attend at her office and showed her the Court Order confirming his entitlement to consult with VK's physician. Dr. Manoharan spoke with the applicant about VK's health and growth. The applicant did not raise the issue of hepatitis B or of VK being vaccinated for hepatitis B.

11In February 2015, VK had an appointment and attended Dr. Manoharan's office with her mother and grandmother. VK's mother advised Dr. Manoharan that the applicant wanted VK to be vaccinated for hepatitis B, but did not know why he was concerned about hepatitis B. Dr. Manoharan considered the risk factors based on the information available to her, including that VK had no known exposure to hepatitis B, she was born in Canada and that Sri Lanka is not highly endemic for hepatitis B. In these circumstances, Dr. Manoharan did not believe that VK required vaccination for hepatitis B. Dr. Manoharan's view changed when she received a letter from the applicant in November 2015 in which he disclosed that he is positive for the hepatitis B virus. Dr. Manoharan had not known the applicant was hepatitis B positive previously. The fact that VK's father was hepatitis B positive entitled her to a free vaccination. Dr. Manoharan contacted VK's mother and set up an appointment for VK. At the appointment, Dr. Manoharan recommended that VK be tested and vaccinated for hepatitis B. VK's mother agreed and Dr. Manoharan administered the vaccinations. The applicant contacted Dr. Manoharan in April 2016. Dr. Manoharan confirmed that VK was receiving the hepatitis B vaccination and that she would continue to answer his questions about VK's health.

12Dr. Manoharan denies that the applicant ever asked her to refer VK to "Children Mental Health Services" for emotional trauma.

The Board of Health for the City of Toronto Health Unit (The "THU”)

13The THU submitted that the Application does not disclose a prima facie case as against it and that the applicant lacks standing to bring what is essentially a public interest application.

14The THU acknowledged that on April 5, 2016 the applicant contacted a Public Health Inspector to determine whether his daughter qualified for a publicly funded hepatitis B vaccination. Based on the information the applicant presented, the inspector agreed that VK was eligible and that the vaccine could be ordered through a family physician. The applicant wanted the vaccine delivered to his house. This was not possible as vaccines must be sent to a doctor's office or to a medical professional with an OHIP billing number. The inspector explained that the vaccine did not have to be ordered by his family physician. Rather, he was free to choose any doctor located in the City of Toronto or a walk in clinic. The THU noted that VK's doctor had at that point administered two of the three doses of hepatitis B vaccine to her.

15The THU denies the applicant's characterization of the practices of the WDG Health Unit. Regardless, the THU submitted that the fact that practices may differ between health units does not make them discriminatory.

The College

16The College states that it is empowered to regulate the practice of medicine in Ontario and governs its member physicians in accordance with the relevant legislation.

17The College states that the applicant's allegations against it are unclear, but appear to be that (1) the College failed to design inclusive services to him and other Code protected individuals, (2) the College failed to recruit and maintain compassionate and caring physicians and (3) the College failed to deal with his complaint against Dr. Manoharan appropriately. The College states that the applicant's allegations are vague and it is unclear what the applicant believes it has done wrong. The College states that it has no role in recruiting or employing family physicians. The College states that the applicant did not identify any conduct that would reasonably amount to a violation of the Code.

The summary hearing

18By Case Assessment Direction dated November 1, 2016, the Tribunal set this matter down for a summary hearing to determine whether the application should be dismissed, in whole or in part, because it has no reasonable prospect of success and to determine whether portions of the applicant's Reply should be struck pursuant to section 36(3) of the Regulated Health Professions Act 1991, S.O. 1991, c. 18, as amended (“RHPA”). The Tribunal held the summary hearing by teleconference on September 8, 2017.

Submissions

The Applicant

19The applicant submitted that his complaint against the SM Medical Centre was not about medical standards. Rather, his complaint concerns the quality of treatment with respect to medical information for access parents. The applicant noted that pursuant to the Children's Law Reform Act, R.S.O. 1990, C.12 ("CLRA") access parents are entitled to ask for and receive medical information about their children, unless this right is limited or removed by court order. Dr. Manoharan, however, did not respect his rights because of his family status and mental health. Instead, she asked for the Court Order establishing his entitlement to medical information and forced him to attend in person to produce a VK's health card, although he was the access parent. In Dr. Manoharan's response to his complaint to the College, she admitted that she asked for his ex-wife's consent to meet and speak with the applicant. The applicant submitted that Dr. Manoharan's response to a complaint to the College may not be admissible, pursuant to section 36(3) of the RHPA, but that he was entitled to use his personal knowledge of the proceeding. He would in any event also be entitled to ask Dr. Manoharan about this in cross-examination and she would presumably answer truthfully.

20The applicant submitted that Dr. Manoharan did not give equal consideration to his concerns regarding VK's well-being when she initially declined to vaccinate VK for hepatitis B. According to the applicant, Dr. Manoharan failed to convey the benefits of vaccination and only did so after he filed a complaint against her with the College.

21The applicant also states that Dr. Manoharan disregarded his concerns about VK's emotional well-being and ignored the effects of the conflict between VK's parents on her. The applicant submitted that in doing so Dr. Manoharan was acting under societal stereotypes.

22Regarding the THU, the applicant submitted that other public-health authorities provide access to vaccination in public-health clinics. In Toronto, by contrast, one must get his or her health practitioner to order and administer vaccinations. The patient's ability to receive a vaccination is therefore subject to the medical practitioner's decision. In the applicant's view, this requirement places a burden on patients in Toronto not imposed in other jurisdictions. I asked the applicant whether, assuming vaccinations were available in Toronto at public-health clinics, he was entitled to take his daughter for a medical appointment to have her vaccinated. The applicant candidly acknowledged that at the time he asked to have VK vaccinated, he had access to her only through organized visits at a visitation center, which were eventually discontinued. The applicant's access rights had not progressed to the point where he could take VK into the community and make decisions about her care.

23In his submissions regarding the College, the applicant submitted that the College does not regulate the medical profession properly. In that regard, the applicant submitted that the College does not have a policy addressing family status disputes and does not train its staff about family status discrimination. The applicant submitted that the College's Policy Statement #8-05 (Confidentiality of Personal Health Information) misguides its members and deprives access fathers to medical information about their children to which they are entitled. Dr. Manoharan applied this policy, which caused her to hesitate in providing information to him.

24The applicant submitted that the decisions of the College’s Inquiries Complaints and Reports Committee ("ICRC") may be outside of the Tribunal's jurisdiction, but the functions of its judicial administration are not. The applicant submitted that "if the CPSO failed to recruit qualified people to its complaint committee, failed to properly train them, failed to allocate adequate resources, failed to include adequate internal or external expertise, and, if these failures result in a systemic barrier for Code protected individuals to have their Code related issues addressed, it would constitute systemic discrimination."

SM Medical Centre

25SM submitted that the applicant called her office seeking information about VK in May 2013. Dr. Manoharan wanted to identify the applicant, with whom she was not familiar, before providing him with medical information about VK. This was consistent with the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, as amended, the College's Policy Statement #8-05 (Confidentiality of Personal Health Information) and guidelines from the Canadian Medical Association. The applicant visited her office on May 27, 2013 and showed Dr. Manoharan a Court Order confirming his entitlement to information about VK. Dr. Manoharan then discussed VK's general health and growth for about 30 minutes. SM submitted that the applicant has assumed that the Dr. Manoharan acted on discriminatory motives, but made only bare assertions to support his allegations of unfair treatment.

26With respect to the vaccination issue, SM submitted that Dr. Manoharan saw VK for an appointment on February 13, 2015. VK's mother advised that the applicant wanted VK to be vaccinated for hepatitis B. Based on the information available to her, Dr. Manoharan concluded that VK did not need to be vaccinated prior to the school-based program in grade seven. In November 2015, Dr. Manoharan received a copy of a letter from the applicant which indicated that he had hepatitis B. This information caused Dr. Manoharan to re-evaluate the need to vaccinate VK. Accordingly, Dr. Manoharan arranged an appointment for VK and her mother in early December 2015. Dr. Manoharan recommended that VK receive the hepatitis B vaccine. Dr. Manoharan discussed the risks and benefits of the vaccination and VK’s mother consented to it. On April 5, 2016, the applicant called Dr. Manoharan, who confirmed VK had received the first two doses of the vaccine. At the time of the hearing, VK had received all three doses.

27SM submitted that the issue with respect to vaccination for VK was Dr. Manoharan's clinical decision, as was the allegation that she did not make a referral regarding VK's emotional and psychological health. In that regard, SM noted that the Tribunal does not have jurisdiction to evaluate decisions made by doctors. Dissatisfaction with a doctor's medical care or disagreement with medical decisions is not sufficient to establish a breach of the Code. SM submitted that the applicant must have evidence that Dr. Manoharan's decisions regarding VK's care were linked to a prohibited ground of discrimination. SM submitted that the applicant's allegations were instead based on speculation and accusations, not evidence.

The Toronto Health Unit

28The THU summarized the applicant's position to be that its practices impose barriers to its services by (a) restricting its services to the City of Toronto and (b) requiring hepatitis B vaccines to be ordered and administered by a physician.

29THU submitted that its geographical boundaries are set under the regulations to the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, as amended. The THU submitted that the Tribunal does not have jurisdiction to rewrite or declare legislation invalid. Therefore, the Tribunal may not change the THU's boundaries as the applicant requests. The THU submitted that the applicant does not allege that its practices prevented or hindered VK's vaccination. The THU noted that when the applicant contacted it, VK had already received two doses of hepatitis B vaccine. Accordingly, the THU’s practices had no adverse impact on VK.

30In that regard, the THU also submitted that the requirement to have a physician order and administer the hepatitis B vaccine did not prevent the applicant from having VK vaccinated. Rather, THU noted that the applicant was never in a position to take VK to a doctor for vaccination because of his limited access rights at the time. Consequently, it was not THU’s practices that were a barrier to VK's vaccination. The THU submitted that the effect of its practices regarding vaccination would have been on VK, not the applicant. Accordingly, the applicant has no standing to bring this application as against the THU. The THU submitted that, in any event, the applicant relied on general allegations of the existence of stereotypes but did not provide any basis for concluding that the stereotypes were applied to him.

The College

31The College described its statutory mandate to regulate the practice of medicine in Ontario, which includes investigating complaints against its members. The College noted that in carrying out its mandate the College has a duty to serve and protect the public interest.

32The College clarified that it has completed the investigation of the applicant's complaint against Dr. Manoharan. The applicant has exercised his right to appeal the outcome of the investigation to the Health Professions Appeal and Review Board ("HPARB"). The College submitted that no materials prepared for the applicant's complaint is admissible before this Tribunal pursuant to section 36(3) of the RHPA.

33The College reiterated that the applicant's complaint against it is difficult to discern, as described above. The College submitted that the applicant's allegations are based on his feelings and beliefs, as he has not described any facts to support his allegations. The College submitted that the applicant did not describe any act on its part that could amount to a Code violation. The College submitted that the only apparent allegation against it is that it failed "to ensure proper training to its members and all-inclusive services to Ontarians through its members." The College submitted that it has no role in the training, recruiting or employment of doctors practicing medicine. In any event, the College submitted that these allegations do not identify any specific actions by the College that could amount to discrimination. The College also argued that the applicant did not assert a link between the College's actions, e.g., investigating his complaint, and any of the Code grounds he relies upon.

34The College also submitted that the decisions of the ICRC are not services and in any event are protected by the doctrine of judicial immunity. Finally, the College submitted that to the extent the Application is a claim for monetary damages, it is barred by section 38 of the RHPA.

Analysis and Decision

35The relevant sections of the Code are as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

11(1). A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

36Sections 36(1) and 36(3) of the RHPA provide as follows:

36 (1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act and every member of a Council or committee of a College shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except,

(a) to the extent that the information is available to the public under this Act, a health profession Act or the Drug and Pharmacies Regulation Act;

(b) in connection with the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act, including, without limiting the generality of this, in connection with anything relating to the registration of members, complaints about members, allegations of members’ incapacity, incompetence or acts of professional misconduct or the governing of the profession;

(c) to a body that governs a profession inside or outside of Ontario;

(d) as may be required for the administration of the Drug Interchangeability and Dispensing Fee Act, the Healing Arts Radiation Protection Act, the Health Insurance Act, the Health Protection and Promotion Act, the Independent Health Facilities Act, the Laboratory and Specimen Collection Centre Licensing Act, the Long-Term Care Homes Act, 2007, the Retirement Homes Act, 2010, the Ontario Drug Benefit Act, the Coroners Act, the Controlled Drugs and Substances Act (Canada) and the Food and Drugs Act (Canada);

(d.1) for a prescribed purpose, to a public hospital that employs or provides privileges to a member of a College, where the College is investigating a complaint about that member or where the information was obtained by an investigator appointed pursuant to subsection 75 (1) or (2) of the Code, subject to the limitations, if any, provided for in regulations made under section 43;

(d.2) for a prescribed purpose, to a person other than a public hospital who belongs to a class provided for in regulations made under section 43, where a College is investigating a complaint about a member of the College or where the information was obtained by an investigator appointed pursuant to subsection 75 (1) or (2) of the Code, subject to the limitations, if any, provided for in the regulations;

(e) to a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

(f) to the counsel of the person who is required to keep the information confidential under this section;

(g) to confirm whether the College is investigating a member, if there is a compelling public interest in the disclosure of that information;

(h) where disclosure of the information is required by an Act of the Legislature or an Act of Parliament;

(i) if there are reasonable grounds to believe that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons;

(j) with the written consent of the person to whom the information relates; or

(k) to the Minister in order to allow the Minister to determine,

(i) whether the College is fulfilling its duties and carrying out its objects under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act, or

(ii) whether the Minister should exercise any power of the Minister under this Act, or any Act mentioned in subclause (i).

36(3)No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

37Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

No Reasonable Prospect of Success

38In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

39The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assesses the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

40At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

41To establish discrimination, the applicant must establish that he is a member of group protected under the Code, that he was subject to adverse treatment and that the Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396.

42The applicant must also establish that the respondent’s actions caused him to suffer a substantive disadvantage. The Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 defined discrimination at pages 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

43To amount to a violation of the Code an applicant must establish substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

44In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Ontario Court of Appeal also stated at paragraph 104 that the Tribunal must determine, among other things, whether the treatment in issue “truly creates a disadvantage.”

45The applicant submitted that the respondents’ actions had negative effects and imposed barriers on him because of his Code related characteristics. Pursuant to section 11(1) of the Code, such “adverse effect” discrimination arises when a requirement that is neutral on its face imposes a barrier to a group of persons who are identified by a prohibited ground of discrimination. Accordingly, an applicant must establish (1) that the requirement imposes a barrier to him or her and (2) that the barrier is related to a Code ground.

The Toronto Health Unit

46The applicant's concern with the THU was that it requires vaccines to be ordered and administered by a doctor. By contrast, the applicant submitted that the WDG Health Unit administers vaccines at its clinics. The applicant candidly acknowledged during the summary hearing that his access rights at the time did not entitle him to take VK into the community and make decisions regarding her care. Had he been entitled to do so, he could have brought his daughter to a walk-in clinic or to a different physician to be vaccinated. Consequently, how the THU administered vaccines was irrelevant because the applicant could not have had his daughter vaccinated whether in Toronto or in Guelph. In other words, the barrier to his having his child vaccinated was his limited access, not the THU's practices. Accordingly, the applicant cannot establish that the THU's impugned practice created a barrier for him. The THU’s practices would in any event appear to have no bearing on whether VK was vaccinated, as there appears to be no dispute that she was receiving the hepatitis B vaccine by the time the applicant contacted the THU. In these circumstances, the applicant cannot establish that the THU’s practice had a negative effect upon him or imposed a barrier upon him for the purposes of section 11(1) of the Code. As a result, his allegations against the THU have no reasonable prospect of success.

The College

47I agree that the applicant's claim against the College is hard to make out. It would appear that the applicant believes that the College's Policy Statement #8-05, Confidentiality of Personal Health Information, creates a barrier related to family status. The policy statement addresses the circumstances in which physicians may or may not disclose medical information. Amongst other topics, the policy statement addresses disclosure to custodial and/or access parents. The policy statement notes that there may be restrictions on one of the parent's entitlement to make decisions about his or her child's medical information. The policy statement advises doctors to obtain a copy of the applicable court order or separation agreement before providing medical information. In my view, the policy statement simply requires a physician to ascertain whether any restrictions have been placed on an access parent's right to medical information about his or her child following a divorce or separation. This advice is consistent with doctors' general obligation to maintain the confidentiality of medical information. There is no question that the policy statement addresses issues related to family status, but the policy statement does not restrict access parents’ ability to obtain health information about their children. Rather, any such restrictions are imposed either in agreements between the parties or by court order. The policy statement simply advises physicians to ensure that they do not give health information to parents who are not entitled to it. In my view, the applicant’s allegations about the policy statement cannot be reasonably considered to amount to a Code violation, and, accordingly they have no reasonable prospect of success.

48There is no dispute that the applicant complained to the College about Dr. Manoharan, which was investigated by the ICRC. The applicant was apparently not satisfied with the result, as he has exercised his right of appeal to the HPARB. The Tribunal has found that it has no jurisdiction with respect to quasi-judicial decisions, such as the ICRC's, because such decisions do not amount to services for the purposes of section 1 of the Code, and/or are protected by the doctrine of adjudicative immunity. See Baird v. Workplace Safety and Insurance Appeals Tribunal 2009 HRTO 99 and Cartier v. Nairn 2009 HRTO 2208.

49The applicant submitted that his concern was not the ICRC's decision, but the investigative process that led to that decision. If the applicant experienced discrimination in the investigation process, then the Tribunal would arguably have jurisdiction to deal with such a complaint. The applicant, however, did not particularize this aspect of his Application by stating how the investigation was discriminatory. Rather, his submissions were speculative, i.e., to the effect that "if" the College failed to properly recruit, train and support personnel for the ICRC and "if" these failures caused systemic barriers on Code grounds, then the College would have acted in violation of the Code. Such speculation is not a proper basis for a finding of discrimination. Again, the applicant's concern with the College is not entirely clear, but, taking his submissions as a whole, it would appear that his main complaint, and the basis for his assertion that the College does perform its regulatory function properly, is that the ICRC did not agree with him. A decision with which the applicant disagrees is not evidence of an incomplete or faulty understanding of the Code and is not discrimination. See Konesavarathan v. Law Society of Canada 2017 HRTO 1270 a paragraph 9.

50For the foregoing reasons, I find that the applicant’s allegations against the College have no reasonable prospect of success.

SM Medical Centre

51It is well-established that the Tribunal does not have jurisdiction to review medical decisions unless there is evidence that a decision was made based on discriminatory factors. See, Moshi v. Ontario (Ministry of Community Safety and Correctional Services) 2014 HRTO 1044. The applicant submitted that Dr. Manoharan's decisions that, initially, VK did not need vaccination for hepatitis B and did not recommend emotional care for VK were influenced by his family status and mental health. The applicant submitted that, as a result, Dr. Manoharan did not give equal consideration to his concerns about VK's well-being. The applicant, however, acknowledges that he does not know what Dr. Manoharan and his ex-wife discussed with respect to vaccinating VK. The applicant pointed to no evidence in his possession or that may be reasonably available to him that could support a finding that Dr. Manoharan's considered Code related factors in making her clinical decisions about VK's care. Rather, the applicant speculated that his ex-wife influenced Dr. Manoharan based on Code grounds and made bare assertions that Dr. Manoharan was influenced by societal stereotypes. Such speculation and bare assertions do not provide a proper basis for a finding of discrimination.

52The applicant did not state when he first attempted to contact Dr. Manoharan by telephone. Dr. Manoharan places the call in May 2013 and the applicant did not dispute this date. The applicant filed a Court Order giving him applicant full access to medical information about VK with his Application. The date of the Court Order is January 29, 2015. Accordingly, Dr. Manoharan could not have been provided with a copy of this Order in May 2013, as the applicant alleges. Dr. Manoharan acknowledged that the applicant showed her a Court Order that permitted to receive information about VK, but it obviously could not have been the order filed with the Application. In any event, Dr. Manoharan was obliged to ascertain that the applicant was entitled to medical information about VK and to identify the applicant was VK's father. This was accomplished when the applicant met with Dr. Manoharan in late May 2013 and there seems to be no dispute that he provided the Court Order in place at the time to establish entitlement to VK's medical information. There was nothing discriminatory, per se, in Dr. Manoharan's requirement that the applicant identify himself and establish his right to information about VK. The applicant was required to travel from Guelph to do so, but this undoubted inconvenience was a result of the location of his residence, not a Code ground.

53In any event, the applicant pointed to no evidence that he has or has reasonably available to him that in my view links Dr. Manoharan’s conduct to a Code ground. The applicant stated that in the course of the College proceeding, Dr. Manoharan provided a response document in which she acknowledged contacting the applicant's ex-wife to get her consent to speak to the applicant. Pursuant to section 36(3) of the RHPA this document is not admissible in a proceeding before this Tribunal. I do not agree that the applicant may give evidence of his knowledge of this acknowledgment gained in the course of the ICRC investigation. In Andrushko v. Ontario, [2011] O.J. No. 3693 (Div. Ct.) (“Andrushko”), the Divisional Court considered a similar argument regarding sections 69(9) and 80 of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”),which state as follows:

69(9) No document prepared as the result of a complaint is admissible in a civil proceeding, except at a hearing held under this Part.

80.Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

(a) as may be required in connection with the administration of this Act and the regulations;

(b) to his or her counsel;

(c) as may be required for law enforcement purposes; or

(d) with the consent of the person, if any, to whom the information relates.

54These provisions are very similar to sections 36(1) and 36(3) of the RHPA. In Andrushko, the Court rejected the argument that information derived from inadmissible documents could be disclosed or used in a proceeding. Rather, the Court found that these provisions of the PSA created a statutory privilege that precluded the use of information gained from privileged sources. In coming to this conclusion, the Divisional Court relied heavily on decisions interpreting section 36 of the RHPA. In my view, the impact of the Andrushko decision is that the applicant may not use any information he obtained through documents filed in the ICRC process, which would in any event be hearsay. If this matter proceeded to a hearing, the applicant would be able to ask Dr. Manoharan about whether she sought his ex-wife’s consent to speak to him. However, there is no dispute that Dr. Manoharan met with the applicant after speaking with his ex-wife. Consequently, Dr. Manoharan’s call to his ex-wife did not prevent the applicant from meeting with Dr. Manoharan about VK. In the absence of any negative effect on his ability to meet Dr. Manoharan, the applicant has no reasonable prospect of establishing that Dr. Manoharan’s actions amount to discrimination. The applicant pointed to no evidence that he has or is reasonably available to him that could establish that the short delay in meeting with Dr. Manoharan amounted to a substantive disadvantage. In these circumstances, I find the Application as against SM Medical also has no reasonable prospect of success.

55Having found that the applicant’s allegations have no reasonable prospect of success, it is unnecessary to address whether portions of the applicant’s Reply must be struck pursuant to the RHPA.

56The Application is dismissed.