One of the reasons I say this is that, while attempting to get one of the main issues of contention between the Respondent and myself, the Applicant, resolved, I can see how the process has worked in his favour. And if the process itself hasn’t, while running its natural course, then the people working in it have enabled it to benefit him.
One
The Application I made to the HRT was to declare that the Respondent – my family doctor at the time – had discriminated against me on the grounds of sex, marital and family status, and age. I followed the rules and submitted 5 ‘important documents’ and one audio recording that I would be using at the hearing, as well as providing a list of them, stating the importance of each, as required in that section of the form. As the Applicant, I also had to provide a thorough description of the two incidents of discrimination and how they affected me, and what remedies I was seeking, which did not include a monetary remedy only ones directed to the Respondent himself and recommendations within society. See Remedies sought from the HRT.
Then it was up to the Respondent to write an official Response, using an HRT form for that, which he did in July, 2015. On it he wrote the name of only one document – The Medical Chart of McMcPherson – giving the reason it was important as “describes the care provided to Ms McPherson.” It was at about this time that I inquired from the Legal Support Centre what was menat by the term ‘Document.’ I got no answer on that.
This was the first of the three times in all that the Respondent and the Applicant (myself) were required to declare what documents we were bringing to the hearing – or relying on, or might be using.
I did respond the Respondent’s official response, but the Form 3 I used said only respond to new issues, so that matter of the one bundle of documents – being my Medical Chart – remained unaddressed.
Two
The second time we were required to declare the documents - in a formal Disclosure of “Arguably relevant Documents” - was by September 1, 2015, which I did, submitting my by then 7 documents plus 2 audio recordings by the deadline, but receiving nothing in return from the Respondent.
I contacted the Respondent and the HRT via an official form and was hastily sent the bundle of items previously mentioned by the Respondent – the Medical Chart. There were no dates on them, not in chronological order, no description of each page or their importance, nor their relevance, as was stated to be the new requirement – that they be arguably relevant.
I was concerned about the bundle being passed off as a single ‘Document’ but was advised by HRT to wait as a third deadline would soon be approaching, and perhaps all would be resolved by then.
Three
The third and last deadline was Dec 29, 2015, by which time the Applicant and Respondent were to have submitted all the documents they were going to “rely on” at the hearing in February. By this time the Respondent had put numbers and titles on each of the items in the 103-page Medical Chart. But nowhere was the importance of the ‘Document’ or it relevance included, except meant to be as a “description of the care provided to Ms McPherson.”
I objected strenuously. And the Respondent’s lawyer objected in return, and in two Interim Decisions and one Case Direction, decisionmakers at the HRT sided with the doctor – the Respondent. I get to use my 7 pages, and he gets to use 103 – if he needs to.
If I need to defend myself against anything that is raised by the documents he produces in self-defence, I don’t have anything. We both submitted documents starting in April, his in July, 2015, me providing insight as to why mine were important, the doctor providing nothing, except to say they described the care provided to me.
Negotiations and arguments
Forms 10 and 11 abounded then, between the Respondent’s lawyer and myself and the HRT, as we attempted to persuade the Interim Decisionmakers, Laurie Letheren and Dawn Kershaw, of the merits of our requests – me for adjournment to allow the Respondent time to provide the relevance of each of the 103 pages, his lawyer to plead that he had the right to a speedy hearing.
As time went on, his lawyer made the argument once again that I had placed the care provided to me at the centre of this matter, while I argued that no, like Evan Solomon, Mike Duffy, Jian Ghomeshi and Joe Fontana, when accusations are made against them it isn’t the good they have done that is at the heart of the matter. It is when mistakes are made, or discrimination carried out, that it ends up at a Tribunal and these are the matters to be looked at, not the good these people did. The lawyer’s Form 11 saying what she did, there, was ignored by the Interim Decisionmaker, Dawn Kershaw, in her Jan 15, 2016 Interim Decision, as were my remarks about what this case should be about.
Each time, the Interim Decisionmakers argued that this matter of the adjournment and the relevance of the items in the Medical Chart should be left to be decided at the hearing. And then I realized that this was not going to happen. It couldn’t happen. It was an illogical decision the Interim Decisionmakers had been making every time they said it.
It would take time, if the Respondent were ordered to write down the relevance or importance of each of the items in the 103-page Medical Chart. There’s not a hope that could happen at the hearing, while we are all sitting there. It would seem that they - the HRT Registrar, Richard Hennessy, or the adjudicator, Dawn Kershaw - had no intention of deciding in my favour, that the doctor would have to provide the relevance of each of the documents.
What that means, in terms of the hearing, is that if I produce a document or an example of ill-treatment or disrespect he wishes to dispute, he can produce a document from the 103 pages to prove his argument. However, having only 7 documents and 2 audio recordings, I am limited in how I can make a point or defend myself against his accusations. I can speak, but I have not been granted credibility. So it is the harsh words and distortions in documents written by the Doctor and his receptionist that will be believed.
What’s worse is that, during this whole process, I was led to believe that the process would be fair, yet I was not given the option of seeking documents to contradict the 103 pages he decided to rely on. In fact, how could I? How could I begin to guess what he was going to produce, at the hearing, from his array of documents that he first mentioned back in July?
Three times the doctor produced that Medical Chart as his Document of importance, relevance, to rely on. And each time he not obliged to prove that the items in it were.
Discontinuity between the lead-up and the hearing
Late in the process it also sinks in that everything that happens during the initial process has nothing to do with the hearing. All that happens during these months of preparation, the HRT sending directions as to what should be submitted and when, and how they should be described, is forgotten once the hearing starts. What that means is that all the talk, all the arguments, all the lack of description regarding importance, relevance of the pages, etc. in the Medical Chart mean nothing once the hearing starts. It means that I can request that the doctor provide the relevance, right there, at the hearing, but that the adjudicator, Dawn Kershaw, can simply say No. Or, she can say, This should have been dealt with before the hearing started. There is no time now.
All those submissions I made, beforehand, about my position, mean nothing, unless they are included in the documents I submitted to the HRT to be used at the hearing. That means that the medical research I provided links to on why older women who have had given birth and have had hysterectomies ought not and do not need to be sent off for an ultrasound on their bladders will not be there as evidence. Only my word will count, though the colleague witness of the doctor has said in writing that the treatment I received – including the pelvic ultrasound on my bladder, was within the standard of care limits. What that means to me is that I would not want him as my doctor. And secondly, that giving the patient the chance to ask questions beforehand and to find out what would be expected from her doesn’t matter to either of them. As for the request by the doctor for a urine sample from me to test for “street drugs,” it is still my view that he needs to take a course or two on how to communicate in respectful ways. See details of the incidents of discrimination:
Statement on Pelvic Renal ultrasound incident
Statement on drugs, urine termination incident
Just as importantly, the doctor needs to consider the differences between women who are young and those who are growing older, and how that may affect their diagnosis and treatment in matters such as kidney disease.
What is the purpose of such a lengthy process of requests for documents from the Applicant and the Respondent? Is it to wear out the Applicant through repeated failed attempts to achieve fairness at the hearing? See SJTO and HRT Rules of Procedure p 2
p 2 of the Rules
A3 INTERPRETATION
A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:
(a) promote the fair, just and expeditious resolution of disputes,
(b) allow parties to participate effectively in the process, whether or not they have a representative,
(c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.
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