Conway v. St. Josephs Health Care Hamilton, 2017 HRTO 975

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Conway Applicant

-and-

St. Josephs Health Care Hamilton, Divia Sharma, Susan Jones, and Kimberly Proctor Respondents

DECISION

Adjudicator: Dawn J. Kershaw Date: July 31, 2017 Citation: 2017 HRTO 975 Indexed as: Conway v. St. Josephs Health Care Hamilton

APPEARANCES

Paul Conway, Applicant Self-represented

St. Josephs Health Care Hamilton, Divia Sharma, Susan Jones and Kimberly Proctor, Respondents Janice Blackburn, Counsel

Introduction

1The applicant filed an Application on November 4, 2016, alleging the respondents discriminated against him with respect to services on the basis of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2Section 1 of the Code states in part:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race […]

3The applicant is detained in hospital and alleges the individual respondents applied the rules on his hospital floor more harshly to him as a Black Métis than to a white patient.

4He alleges the individual respondent, Divia Sharma, told him at 11:03 a.m. on November 3, 2015, that the individual respondents would let him leave the floor but they then would not let him leave until 11:30 a.m. because there is a rule that patients can only leave on the half-hour. The applicant asserts that later, however, the individual respondents allowed a white patient to leave the floor at 1:15 p.m. The applicant alleges the differential treatment was due to his status as a Black Métis.

5In an Interim Decision, 2017 HRTO 216 ("ID"), 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.

6The Tribunal stated in the ID:

It is far from clear how the applicant will prove that this alleged differential treatment, if true, was discriminatory or how it might relate to his race.

When it appears to the Tribunal that an Application may have no reasonable prospect of success, the Tribunal may hold a summary hearing to determine if the Application should be dismissed as having no reasonable prospect of success. A summary hearing is usually held by telephone conference call. The Tribunal does not hear from witnesses in a summary hearing and instead hears from the applicant who can explain what evidence will be available to prove that the alleged events involved his rights under the Code, and from both parties about whether the Application should be dismissed as having no reasonable prospect of success.

7A summary hearing was held by teleconference call on July 25, 2017, to address this issue. All parties made oral submissions. The respondents also disclosed in advance of the hearing documents and case law on which they relied.

8As explained below, I find 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 to show a link between the respondents' actions and the applicant's race.

Summary Hearing Process

9The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure 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.

10In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, the Tribunal provided the following guidance:

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. [Emphasis added]

11The 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.

12At this stage, the Tribunal does not determine whether the applicant is telling the truth or assess 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.

13However, 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 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.

14As the Tribunal indicated in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 ("Forde"), 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.

15Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I turn to the facts of this particular case.

preliminary issue

16All parties initially joined the summary hearing teleconference on July 7, 2017. However, the applicant was very upset and advised that he had not remembered the hearing date, nor had his patient advocate, who, although not representing the applicant, accompanied him. The applicant joined the summary hearing after one of the respondent's representatives went to the applicant's floor and reminded him.

17Ultimately I adjourned the summary hearing on the consent of the parties that day. On that teleconference call, all the parties agreed to attend again by teleconference on July 25, 2017, and did so.

18On July 25, 2017, the applicant immediately advised again that he did not want to participate in the hearing, this time because in the half-hour prior to the hearing, he asked the staff if he could get a coffee so he would have it for the hearing. Ultimately, he was not permitted to do so. Because of this, he advised me that he wanted to add this event to the Application. He further stated he was not in the right frame of mind to participate in the summary hearing.

19Because the applicant was upset, and because in my view the applicant's reason for not wanting to participate in the hearing and for asking for another adjournment was not a good reason to grant another adjournment, I asked the respondents' counsel to proceed first. I then asked the applicant for his submissions, which he gave capably.

20I did not adjourn the hearing to permit the applicant to add the new event to his existing Application, because in my view it was unrelated to the event complained of in the Application.

Respondent's Submissions

21The respondents submitted the applicant has the onus of proving that his case has a reasonable prospect of success, which he cannot.

22They point out that the applicant stated in the Application that he will not be relying on any witnesses or documents. They further pointed out that any surveillance tapes from the day in question are not available because they are taped over after 30 days. The respondents submitted that in any event surveillance tapes do not have audio.

23The respondents referred me to the contemporaneous nursing notes of the event in question made by the individual respondent, Kimberly Proctor, who is one of the nurses on the applicant's floor. These notes set out her timeline of events on the day in question. The respondents pointed out that, for privacy reasons, Ms. Proctor is not allowed to include in her nursing notes pertaining to the applicant any information about why the other patient was permitted to leave the floor at 1:15 p.m. However, the respondents submitted her notes alluded to there being a valid reason why they permitted a white woman to leave the floor on the quarter-hour. Ms. Proctor's contemporaneous notes state she tried to explain the situation to the applicant at the time.

24The respondents also referred me to the floor's Code of Conduct, and submitted the applicant had to comply with it. It states:

Please note that every half an hour patients will be let off unit starting at 8:30 am, with exceptions for mealtimes @ 12 pm, 5 pm and shift change at 7 pm. Patients must wait 30 minutes on the unit between privilege uses with the exceptions for programs.

Applicant's Submissions

25I asked the applicant to explain why he alleges that the November 3, 2015 event had something to do with his race. He stated it was racial profiling and was driven by hatred, and it has happened many times before.

26He explained the other patient who was allowed to leave on the quarter-hour was white. He stated he felt very strongly that he was treated differently because of his colour.

27He explained that racism has affected his whole life adversely. He explained it has given him an inferiority complex but has also galvanized him into standing up for himself. He denied he had any delusions with respect to how people treat him because of his race, and denied having a mental health disability.

28I asked the applicant if he had any other evidence to point to that would show that this happened to him because of his race. He admitted there is no surveillance tape of this incident, but there is a surveillance tape of a prior incident that will show that two of the individual respondents did something that was really bad, and shows how they look at, treat and disregard him in a way that evidences racism. He further submitted another patient has gone through the same thing.

29Finally, the applicant raised the issue of not having legal representation. He submitted that not having legal representation is a denial of natural justice. He submitted he does not have the same legal resources the respondent has. I reassured the applicant that many applicants do not have legal representation before the Tribunal.

30After approximately 25 minutes of submissions from the applicant (not including the submissions he made before the respondents' submissions), which included the applicant repeating himself and also making submissions with respect to other events and broader issues than were before me at this hearing, I advised the applicant I was ending the hearing. The applicant advised me he could appeal my decision and reiterated that the respondents' recitation of the facts was wrong. I advised the applicant during his submissions that it was not relevant to me at this stage whether or not the respondent got the facts wrong, and that for the purposes of the summary hearing, I would accept his facts as true.

Findings

31Even if I accept the facts put forward by the applicant as true and provable, I find the Application stands no reasonable prospect of success under the Code. There is no dispute that the respondents permitted a white woman to leave the floor not on the half-hour, and that they did not permit the applicant to leave until 11:30 a.m. However, the applicant could point to no evidence that this had any connection to his race.

32The applicant did not identify any other evidence he might call to support his assertion that his race was a factor in the respondents' decision not to permit him to leave the floor until 11:30 a.m. The applicant also did not allege that the respondents made any reference to his race when they refused to allow him to leave until 11:30 a.m., nor was there any implication from the respondents that his race was the reason he was not permitted to leave the floor until the half-hour.

33Even if the respondents were wrong not to permit the applicant to leave when he wished to do so, which I find they were not in light of the Code of Conduct, unfair treatment does not, in itself, constitute a violation of the Code. As the Tribunal points out in Forde at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal's process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

34The applicant's assertion that his race was a factor is nothing more than a bald assertion or, to use the words in Forde, "mere speculation and accusations."

35In addition, despite the applicant's strongly held belief that this was because of his race, the Tribunal repeatedly has said that an applicant's belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See, for example: Leong v. Ontario (Attorney General), 2014 HRTO 311.

36Given the absence of any proposed evidence, or any evidence that may be reasonably available to the applicant, on which a link might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of race.

37For that reason and for the reason that I find the applicant cannot point to evidence he has or is reasonably available to him to establish a link between the respondents' actions and the applicant's race, the Application is dismissed.

Order

38For the above reasons, the Application is dismissed.