HRTO Request for Reconsideration in case on discrimination by age and sex

“The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support her belief that she has experienced discrimination under the Code. The question that the Tribunal must decide is whether there is likely to be any evidence that may reasonably be available to the applicant to connect the allegedly unfair treatment with the Code’s protections” (Para [7], Decision, Summary Hearing, Mr B, March 5, 2019. File number:   2017-30245-I).

Recently, on March 5, 2019, a Decision was made about an application I had submitted to HRTO (Human Rights Tribunal of Ontario) about a doctor and staff of LHSC, on November 6, 2017, on the grounds of age, sex, and marital and family status, following a Summary Hearing held on December 7, 2018. There was much in the Decision I did not agree with, so I delivered a Request for Reconsideration of the Decision to the HRTO and to counsel for the respondents, including the LHSC (London Health Sciences Centre), on March 28, 2019. I had experienced many problems with the procedures of the HRTO, for which there are rules, and the actual process my case went through. The reasons I give below, for requesting a Reconsideration, will shed some light on those matters of great concern to me, and perhaps will be to others, too.

I have included access to some audio recordings, See Paragraphs 27 and 40.  Recently I placed an addition piece on a new website I started, called Accountability in Health Care: ethics and aging. See
CPSO/HPARB Reconsideration Request:
 http://www.AccountabilityinHealthCare.homestead.com/CPSO-HPARBReconsiderationRequest.html 

The Decision of March 5, 2019, states,

“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 in her possession or that may be reasonably be available to her that support her claims of discrimination beyond her own speculation, suspicions or beliefs” (Para [3], Introduction, Decision, Summary Hearing, March 5, 2019, HRTO 388 (CanLII).

My responses to that Decision are in my responses to Questions 3 and 4 of the SJTO Form 20E Request for Reconsideration, stating why I am making the request and what what remedy I am seeking.  I also submitted 25 documents (pieces of evidence and facts) with the form.

The names of the respondents and others in this document, originally sent with identifying names on March 28, 2019 as a Request for Reconsideration of the Decision of the Summary Hearing, March 5, 2019, to HRTO and counsel for the respondents, have been removed.

3.  Please provide detailed reasons and representations in support your Request.

[1]  I am making this request for reconsideration on the basis of:

1.  new facts and evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier mainly because I had not realized that the adjudicator would be unfamiliar with the concept of being old and how it differs from being disabled, and how the concept of medical decision differs from making a spontaneous (arbitrary) comment about a patient’s medical condition that was ageist and discriminatory.

2.  my application, which did not go through the normal Tribunal procedure by which it would have been sent by the Tribunal to the respondents, who would then have replied according to Rule 8 of the Rules of Procedure; then, at the appropriate time, both parties would submit the documents they would be relying on at the Tribunal, according to Rule 16. This resulted in the Decision made on March 5, 2019 being in conflict with Tribunal procedure as many documents that I had listed under Questions 16 and 17 of the Application were never submitted to the HRTO, resulting in the Decision of March 5, 2019, being made on only part of the evidence I had submitted, and my not being able to access documents held by the respondents. Some pieces I submitted, but not all. Moreover, further submissions, after the summary hearing was announced, were discouraged.

[2] The evidence and facts I would ordinarily be depending on at a Tribunal hearing is essential for my case, to prove that I was discriminated against. It also is a matter of general importance, that through using case law and/or other forms of evidence, such problems of systemic ageism as well as the subtle and not-so-subtle forms of discrimination committed against older people could be made available for older people, especially older women, to read about. But if that means that people are expected to speak out in favour of improving the HRTO system, or emphasizing ageism within the health care system, one has to consider that most people are not in a position to speak out. In fact, some of the very people within the health care system now are not free to speak out.

[3] The attachments and/or titles of documents are in the test, in bold print; most will be included in support of this request; see list at end. If any additional documents from the list I provided are needed to be see, please contact me, Susan McPherson.

4] Not all Documents listed in Application were submitted as evidence

In Para [7] of his Case Assessment Direction on May 16, 2018, Mr B states that “the parties are not expected to submit documents for the summary hearing. Instead,” he wrote, “the Tribunal will make its decision based on the materials already filed by the parties and on their submissions at the summary hearing.” In Para [14] of the CAD, Mr B explains further, “The Tribunal” (meaning the adjudicator Mr B) “discourages the parties from submitting any additional documents in advance of the summary hearing,” but then adds, “if the parties do wish to refer to any additional documents at the summmary hearing, they must deliver them to the Tribunal and each other.”

[5] In effect, what this does is discourage the applicant from submitting all the documents on the list from Question 16 of the Application, unless they are prepared to refer to them in a 1½ hour hearing – on the phone, when the case is complicated to the extent that there are at least 7 respondents, as well as the hospital organization. It would not be possible to address each of the 34 documents. Furthermore, in the process, this new process, the list of documents from Question 17 of the Application has been disregarded completely. This would have been the documents that the respondents themselves would provide to me, the applicant, except this step got left out entirely, just as other steps were. Thus, documents I would be relying on, as evidence, have not so much as been acknowledged by Mr B.

[6] In Para [16] of the CAD, Mr B states that the respondents have been sent a copy of the Application and additional materials provided by the applicant since the filing. The respondents were not required to file Responses (2018 May 16, CAD, B). I requested a list of the documents the respondents received, and clarification on other matters, but received no acknowledgment from HRTO. See attachment (2018 June 14 re B CAD May 16). I did not know for sure what documents the adjudicator Mr B had in front of him at the summary hearing, and there was little communication between him, the case worker, and myself beforehand, despite my attempts to have knowledge shared. I have submitted a number of documents from the list under Question 16 in my Application, but there are others I have not.

[7] To summarize, the documents Mr B worked from, for the summary hearing and his Decision dated March 5, 2019, was not the complete set of 34 documents as listed by me under Question 16 in the Application, nor did they include the documents listed under Question 17, due to steps in the procedure being bypassed, a flaw in the process by which the Decision is in conflict with established jurisprudence and Tribunal procedure (Request for Reconsideration, Rule 26.5, Rules of Procedure, HRTO).  

[8] Misunderstandings in preparation for the summary hearing

In Para [11] of the CAD, May 16, 2018, Mr B states that “the applicant must be able to point to evidence that could establish discrimination on the facts of her own case.” Also, in the Decision, he states in a similar manner, “The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support her belief that she has experienced discrimination under the Code.”

[9] Explaining what evidence I expect to be able to point to is not the same as explaining the evidence in detail. Yet that is what I was expected to do for adjudicator Mr B at the Teleconference on Dec 7 – go into detail at a moment’s notice about pieces of evidence I expected to be able to draw upon at a Tribunal. Mr B uses the phrase, “the applicant must be able to point to evidence” (Para [11]), which to me means I should be able to point to it generally, not explain each item I have listed, in detail, during a 1½ hour session of a summary hearing even though I was required to do 95% of the talking, responding to specific questions from Mr B.  

[10]  1. The Decision of March 5, 2019, in conflict with established Tribunal procedure, not counting the Rules that give the adjudicator the power to change the rules at will. Also, as demonstrated by the differences in meaning and interpretation of instructions and evidence, between the adjudicator and the respondents on the one hand and the applicant on the other, in a situation in which a single adjudicator has most of the power, reconsideration would be of public interest.

[11] There is a general path that applicants and respondents are required to adhere to, for the HRTO, which in the current case indicates that the Decision of March 5 was in conflict with Tribunal procedure by not following procedure, which led to a disadvantage for myself, the applicant. One person – the adjudicator – holding the power to alter procedural rules, and to impose changes and elaborate on his own speculations on a case is not in the best interests of the public who attempt to seek justice through the HRTO Tribunal. On the basis of these, I wish to request a reconsideration.

[12] 2. New evidence that could not reasonably have been obtained earlier, due to Item 1. and for other reasons - for instance, regarding the issue of comments made (clinical decisions?) by Dr A being discriminatory on the grounds of age, combined with the unfamiliarity of the adjudicator with matters of ageism and discrimination on that basis nor on the basis of sex, and marital and family status.

[13] Reconsideration in this case is necessary in part due to vital steps being left out of the process and the negative consequences of that to my case not being taken into consideration.  Furthermore, not all the evidence I prepared having had a reasonable opportunity to be presented to the HRTO, and to a Tribunal familiar with the issues of discrimination on the grounds mentioned, has been a disadvantage.  Since the subject matter is primarily ageism and the consequent discriminatory acts that can result from that, reconsideration would be of public importance. 

[14]  Due to the path my particular application has taken (dated November 6, 2017), first of all by my having been sent a Notice of Intent to Dismiss (NOID) the following month, my application didn’t go through the usual sequence of events that would have resulted in the Respondents replying to my allegations (according to Rule 8 of Rules of Procedure), then some time later, both them and myself, the applicant, submitting documents under Rule 16 to all parties and to the Tribunal. That never happened. The respondents didn’t respond. The time never came to submit the documents I had listed under Questions 16 and 17 of the Application.

[15] The NOID went on to draw forth first of all a response, then a Case Assessment Direction (CAD, January 10, 2018) from adjudicator Mr M, calling for a more explicit explanation of the connections between the allegations I made under the Code and the evidence I was relying on. On January 29, 2018, I responded to the CAD from Mr M, then another Case Assessment Direction came from Mr B on May 16, 2018, calling for a Summary Hearing to determine whether my case had a reasonable chance of succeeding based on the evidence and the links I could make to the Code. Although this was in one sense repeating what I had already done for Mr M, further insights did arise after reading the Decision made by Mr B dated March 5, 2019.

[16] Evidence that could not reasonably have been obtained earlier

Mr B wrote in his Case Assessment Direction that his Decision would be based on materials already filed as well as on their submissions at the hearing, (see Para [7], CAD, May 16, 2018). However, he was not taking into account the missing steps in the process that my application took.

[17] I have facts and evidence that could potentially be determinative of the case (listed under Question 16 of my application) but could not reasonably have distributed them all to the respondents and the HRTO due to the shortcuts that were taken.  Nor did I gain access to the documents I requested under Question 17 of my application to be obtained from the respondents. I have included these lists together, here, in (2017 Nov Q 16 &17 Doc List in Application), and request that they be accepted for Reconsideration of the Decision made by Mr B, as evidence and facts to which I am pointing, some of which have not been made available yet to the HRTO due to some steps being bypassed.

[18] I am requesting that I be permitted to submit documents for reconsideration that are on the list (or in fact, all that remain, at some point) but not previously submitted due to changes in the procedure of my case, to support arguments I am making in response to Mr B’s. I will submit the list of 34 documents and audio recordings, and the other 13 documents I do not have but requested to receive from the respondents. See (2017 Nov Q 16 &17 Doc List in Application). The 34^th entry on the first list was made later, plus an additional audio recording, after I submitted the application, when I submitted the Form 10 requesting that Mr H be added to the list of applicants, on January 5, 2018. The respondents and the HRTO received a copy of those at the time.

[19] Important Documents submitted, not confirmed

At the Teleconference Summary Hearing on December 7, 2018, Mr B commented on not seeing some documents that I mentioned in front of him, so I then submitted a number of documents I thought he should see, if he hadn’t already, to him and to the respondents on December 10. I received no confirmation from HRTO, and although Mr B did make a reference to them in his Decision, in Para 

[12]. He did not mention them by name or supply a list of documents received, but simply stated. “I considered these documents in reaching my decision.” He did not put forward an argument, just pointed to them.

[20] Two of these documents are vital to my case, being reports of the second appointment (November 8, 2016) with Dr A, one report made on November 30, 2016, the second dated February 1, 2017. Mr B had been unfamiliar with them, presumably. Had the reports not existed, my future attempts to find a family doctor might not have been so hazardous, and I might have been able to accept the offer made by Dr P on August 21, 2018, to have the full diagnostic testing done at the hospital. As it stands this situation remains unresolved. Mr B did not mention these reports in the Decision, despite their significance.

[21] The reports, expressing how Dr A understood what had happened between myself and his staff, and his interpretation of what happened at the appointment, is essential in having an adjudicator understand the crux of the matter, which is the matter of the low blood pressure incident, his offer of part of a complete diagnostic test, and the behaviour he and his staff accused me of, followed by the report describing the appointment.

[22] I could go through the reports in detail at this time, including showing the emails I have from the staff at the hospital (and at this time referring to the emails I requested from the respondents themselves, under Question 17 in the application, as well as emails between staff members securely gained through LHSC FIPPA), but I believed that at the summary hearing I was expected only to point to them, and to the recordings of phone calls, confirming that the links between that evidence, and the Code is something that is definitive proof that will support my case, being additions to the circumstanital evidence I can provide.  Once again, there is a discrepancy between what I as originally asked to do at the summary hearing (by teleconference) and what I ended up having to try to do, on the spot. This contributed towards the Decision being inaccurate in its analysis and conclusions, contrary to established jurisprudence of the Tribunal, to administer justice.

[23] Misunderstood Facts: Para [16] of the Decision, claiming I had low blood pressure

In Para [16] of the Decision of March 5, 2019, the adjudicator states,

“The applicant provided an audio recording of the clinical visit with Dr. A in question. She claims that she described feeling giddy when standing up, and she asked whether this was a middle ear problem. The applicant suggests that Dr. A made assumptions about her health based on her age (in particular that he assumed she had low blood pressure because she was older), and in particular assumed that such low blood pressure was the cause of her symptoms, ignoring her suggestion that it may be due to some other cause. Her interpretation of the discussion is that Dr. A was telling her that her symptoms were because of a health issue he assumed she had because she was old” (Para [16] Decision, Mr B, March 5, 2019.

[24] There are several possible misunderstandings of the facts in Para [16], starting with the piece in brackets, “(in particular that he assumed she had low blood pressure because she was older),” which could be mistaken as meaning that it was a fact that I had low blood pressure, the reason being I was older. I know what he meant, but it wasn’t altogether clear what he meant to say. I wish to emphasize that I did not have low blood pressure. If he had stated, “because she was older, he assumed she had low blood pressure,” the meaning would have been clearer.  The words used by Mr B could sound as though I had low blood pressure at the time, which I did not. Evidence and other facts will follow.

[25]  At the end of Para [16], Mr B states, “Her interpretation of the discussion is that Dr. A was telling her that her symptoms were because of a health issue he assumed she had because she was old.” Once again, Mr B’s language is used in a manner that allows his sentence to be taken two ways. His words could mean that I did have the health issue, - low blood pressure - and that Dr A assumed I had it because I was old. Mr B is mistaken in thinking I would interpret the discussion that way, about what Dr A said about low blood pressure. Mr B makes it sound as though I did have low blood pressure, and that Dr A realized I was old and thought I must have it, which was not the way it was. As I have said, I didn’t have low blood pressure.

[26] Mr B was speculating on what I was thinking. But the subject had been one symptom only, not symptoms. Dr A attempted to lay blame for that particular symptom that I was having on age, adding that it was only going to get worse (as I got older, presumably). But I didn’t have that condition.  I didn’t have low blood pressure.  And that is ageist, for Dr A to assume I did. When Dr A continued on to offer me one part of a multiple VNG test, he discriminated against me, treating me differently than he would other patients to whom he would offer the complete series. See (2018 Jan 29 VNG Inquiry Form 12) for requested inquiry into this matter.

[27] Tapes and transcripts – the November 8, 2016 appointment

The two, brief recordings from the appointment on November 8, 2016, are of the discussion Dr A and myself had about low blood pressure and vertigo, and the offer of a partial test. In an email dated December 10, 2018, I submitted among other things to the HRTO and respondents transcripts of the two audio recordings, one recording being 90 seconds long, the other 28 secs. See (2018 Dec 10 Transcripts of brief 2016 A tapes). Having these to follow while listening to the tapes, can make the recordings easier to hear and the evidence easier to understand. See mp3 audio recordings (2016 Nov8 A 90secs) and (2016 Nov8 A 28 secs), or follow link to Evidence.

[28] Following is evidence that I did not have low blood pressure, some of it new, some of it in documents that were not readily available to HRTO or the respondents because of steps missed in the HRTO regular process, and some because Mr B has made false assumptions, or used grammatically poor sentences in his explanation. 

[29] Evidence of not having low blood pressure

Dr A made comments to me at the appointment on November 8, 2016, that indicated he thought he thought I had low blood pressure and that it was the cause of the symptom I mentioned to him while it was happening, of feeling motion continuing to go forward when I stood up. One piece of evidence in my List of Documents in response to Question 16 in the Nov 6/17 Application form I submitted is the report from the first appointment with Dr A, and with his resident at the time, Dr G. See attachment (10 2015 June 1 A-1, -2, and -3), which was the report by G/A written afterwards. On page 1 it is clearly stated that I have hypertension (high blood pressure) and mentions the two blood pressure medications I was taking at the time.  I offer that report as new facts and evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier by Mr B, due to my case being sent along a different path due to the Notice of Intent to Dismiss and subsequent Case Assessment Directions that bypassed the time for sending them to respondents and HRTO. 

[30] Dr A presumably had access to the report from our first appointment, but he chose to override that report of my medical history and suggest to me that it was low blood pressure that caused me to, in his words, feel dizzy after he had raised his examination chair to an upright position at the appointment on November 8, 2016. Mr B was critical of me in his Decision, in Para [15] on page 6, stating that “the primary allegations appear to be based on the fact that the applicant disagreed with Dr A’s diagnosis, and disagreed with his recommendations for testing.” (It is important to acknowledge that I also disagreed with his reports of the appointment of November 8, 2016, as they also are primary to the problem of discrimination on the grounds of age, gender, and marital and family status.)

[31] Not a Diagnosis or a decision – rather, a spur of the moment comment

In Para [19] of the Decision, Mr B refers also to Dr A’s advice about low blood pressure to me, who said at the appointment, “that will get worse with time. It’s not going to get any better.” Mr B argued that “A physician taking into account risk factors generally medically associated with age, or gender, any other Code ground, is not arbitrary or discriminatory. To the contrary” he wrote, “taking such factors into consideration is part of a proper diagnostic process.” 

[32] A “proper diagnostic process”?  Dr A did not go through any process of making a diagnosis. He decided to blame the symptom I explained I was having, in his appointment room, on low blood pressure rather than have to provide me with any treatment of vertigo, or a related condition. He didn’t take my blood pressure, nor look to see what medications I was taking, or read what was in his report or notes from my previous appointment.  Furthermore, Dr A was not taking into account “risk factors,” he was making low blood pressure the only possible reason for the symptom I experienced while in his treatment room. I didn’t have low blood pressure, so how could it get worse?

[33] Facts on Ms McPherson’s blood pressure

But even setting that evidence against Dr A aside, I was under the impression I did not have low blood pressure, as I had been diagnosed with high blood pressure several years previously, and my blood pressure

at the time was reasonably stable. I didn’t disagree with Dr A for the sake of disagreeing but because Dr A was placing blame on a condition I didn’t have while ignoring my symptoms of vertigo even while I was trying to explain one of the symptoms as it was happening right there in his office.

[34] Samples of blood pressure monitoring at home

New facts I am requesting to place under reconsideration are samples from how I have generally kept track of my blood pressure readings. I have no pages from that time period, in November, 2016, but am including two other pages, one page from 2008 when I was first diagnosed, and one from 2017, to demonstrate that my blood pressure was generally high. When my blood pressure readings start to change, I usually do notice. But they were stable at that time. See attachments (Blood Pressure reading-1 and -2).

[35] Evidence about blood pressure

Mr B may not even have had access to the report of the June 1, 2015 appointment with Dr A when he wrote the Decision, although it was among those in the List of Documents from Question 16 of the Application Form. I am requesting that this piece of evidence, the report of the June 1, 2015 appointment, and my reasons for drawing attention to it now, as well as others that are relevant, be part of this request for reconsideration. See (2015 June 1 A-1, -2, and -3).

[36] Also, I request that a copy of (2016 Nov 8 appt A symptoms), also in the List of Document under Question 16 in the Application form I submitted,  be included in the reconsideration. It was handwritten, and I intended to read from it, to Dr A, at the appointment we had, but I decided instead to hand him the list, and he took a quick look and handed it back, not seeming to take them seriously.

[37] Two articles about low blood pressure

Another two new pieces of evidence I request permission to include are excerpts from internet articles on Low Blood Pressure, including the special case of orthostatic hypotension, as a means of providing information on the subject to the respondents and adjudicators not familiar with it. I could not reasonably have these items of evidence available sooner as the lack of interaction between the respondents and myself, through Rule 8, prohibited me from seeing the necessity of it, for the adjudicator or anyone unfamiliar with these health issues of interest to the investigation, as discovered in Para [16] of the Decision. See attachments (Low blood pressure [hypotension]) and (Understanding Low Blood Pressure).

[38]  The fact that Dr A decided to give his opinion on what was causing that particular symptom, with no checking of my health report nor taking my blood pressure at the time, nor considering other possibilities, has reinforced my belief that he was discriminating against me, using my age against me, treating me differently than others, stereotyping me, trying to convince me my symptoms were due to age-related low blood pressure. This evidence upholds my allegations that I was discriminated against on the grounds of age. 

[39] Form 12 Inquiry request for statistics about VNG testing

The Inquiry that I requested through a Form 12, submitted to the HRTO on January 29, 2018, that remains unacknowledged, would add to the evidence available. I submitted it before my application had been formally accepted and begun to be processed. My application had not been sent out to the respondents. As far as I knew they had not been officially contacted and asked for their preferred method of contact, and my response was for the most part meant to be a response to the Notice of Intent to Dismiss, so the documents and audio recordings that I submitted were sent to the HRTO only. See attachment (2018 Jan 29 1220 email to HRTO) for list of documents sent, including my response to the Case Assessment Direction from Mr M and the Form 12 inquiry request to find statistics on Dr A’s diagnostic treatment of older patients, particularly female. This is the list only. I shall include the Form 12 Inquiry in attachment (2018 Jan 29 VNG Inquiry Form 12). Both reports written by Dr A about the November, 2016 appointment were on the list and submitted, as well as emails from Ms L and my response, sent now in case they did not get to Mr B, as they explain how I could get to have the full VNG testing after all. See (2016 Nov 28 am Ms L) and responses. I believe Mr

[40] B has seen the (2018 Jan 5 Form 10 Mr H), including the audio recording of our conversation about getting access to secure emails, contains my request to have his name added to the list of respondents.  Listen to Evidence - mp3 audio recording of this conversation

[41] The Form 12 that I requested held the possibility of evidence that would demonstrate the ways Dr A used to alot treatment to his patients, whether on the basis of age and gender, treating older women differently than other patients, in the kinds and quality of diagnostic testing that could be of benefit to them, and would be valuable in contributing to circumstantial evidence to prove my case.

[42]  Medical Decision: Moshi:  Ageing = Disability

In Para [10] of the Decision, Mr B refers to Para [43] in the case of Moshi v Ontario (Ministry of Community Safety & Correctional Services), in which the applicant has a disability for which he has been given treatment while at a correctional facility. It is stated:

“An applicant cannot establish that a physician, for example, discriminated against him or her merely by showing that the doctor made a clinical decision based on the applicant’s disability, which clinical decision turned out to be disadvantageous for the applicant.  Doctors may make sound clinical decisions that end up compromising their patient’s health, for some reason.  They can also make mistakes that have adverse medical consequences for their patients.  However, neither of these situations constitutes discriminatory treatment under the Code.  As the respondent points out, a physician’s clinical decisions are necessarily based on his or her patient’s disability and, in that sense, may be said to be ‘linked to disability’.  However, the existence of this kind of link is not indicative of discrimination.  In order to establish that a physician, for example, has discriminated against someone ‘because of’ disability, an applicant would have to establish that there some was arbitrariness in the manner the physician treated him because of his disability” (Para [43], Moshi v Ontario (Ministry of Community Safety & Correctional Services), 2014 HRTO. 1044 (CanLII) http://canlii.ca/t/g83vb ).

[43] However, this comparison is not able to be used in the current case. Mr B has argued in Para [12] of his CAD of May 16, 2018 that the Tribunal “does not have jurisdiction to review a physician’s clinical decisions based on whether they were medically correct.” He quotes the case of Moshi v Ontario, Para [43]. See attachment (2014 Moshi excerpt para [43] [44]). Mr B argues that “the applicant would have to point to evidence that could establish that there was some arbitrariness in the manner the physician treated the claimant because of her sex, family status, marital status and/or age”.  

[44] Age being the main factor in the current case, I have placed it first, and focused on the problems of comparing the Moshi case with the current one on that basis – disability = being old. The specialist’s clinical decisions in the current case were not or should not ordinarily have been based on what Mr B uses as the comparison for disability, ie age. I was not being treated by Dr A for the ‘medical condition’ of ‘age over 65’ nor was the reason I attended the appointment because I was over 65. Being old is not the same as having a disability. Having a disability depends on having certain kinds of symptoms and although the treatment can vary, there is some stability in the approach to the condition, even though mistakes can be made and treatments vary for conditions of the disabled. Old people are not all the same. Some have low blood pressure but not all, and not all at the same time, some have broken legs, and some are healthy and mobile.

[45] I went to see Dr A hoping to explain symptoms I had been having that I thought were connected to his field of expertise. Instead, he took one look and decided my symptoms were not to do with his area of medicine but were due to “ageing” or ‘the condition of being old.’And discrimination on the grounds of age is protected under the Code.  Whether he believed that my symptom was due to age or was using age against me, so he wouldn’t have to be bothered treating me, is something only he knows.  Either way, he was ageist in jumping to the conclusion that I had low blood pressure, which had nothing to do with what I was there for, nor to do with my symptoms, and continued his ageism but informing me that “that’ll get worse in time. That’s not going to get any better,” again, suggesting that ageing will make it worse and I should learn to put up with it. Not finished yet, Dr A’s ageism then translated to the discriminatory practice of offering me only one part of a VNG test at the hosptial’s VNG clinic.   

[46] Definitions of ‘Medical Decision’

I request that I be permitted to include an excerpt from the article ‘What is a medical decision? A taxonomy based on physician statements in hospital encounters: a qualitative study,’ together with evidence for the reconsideration. The excerpt contains two definitions, as follows:

"Attempts to define decisions have followed these function-specific patterns. For example, Sackettet al¹⁰define evidence-based decisions as ‘the integration of best research evidence with clinical expertise and patient values’."

and

"Braddocket al¹²developed a descriptive definition of a medical decision as ‘a verbal statement committing to a particular course of action’. This definition is broad and includes actions leading to diagnostic tests, prescriptions, referrals and instructions regarding diet and physical activity. However, it does not capture decisions that influence the subsequent ‘courses of action’, such as evaluations of findings and tests, and interpretations concerning diagnosis, prognosis and aetiology, most likely because patient involvement in such decisions is not considered relevant" (“What is a medical decision? A taxonomy based on physician statements in hospital encounters: a qualitative study” by Eirik H Ofstad et al. BMJ Open. 2016; 6(2): e010098. Published online 2016 Feb 11. doi: <10.1136/bmjopen-2015-010098> ).

[47] From what we know of Dr A’s ‘clinical decisions’ on my behalf, they must have been made on the spot because he had no warning I was coming to him that day with these new symptoms - there are virtually no acceptable ways of contacting such doctors. As the evidence shows, he disregarded the report from the June 2015 appointment as well as other facts and evidence that I did not have low blood pressure.

[48] Mr B advises in Para [10] of his Decision that “the applicant would have to point to evidence that could establish that there was some arbitrariness in the manner the physician treated the claimant because of her sex, family status, marital status, and/or age” (Decision, Mr B, March 5, 2019).

[49] The definition of arbitrary fits the evidence I have presented about the incident involving low blood pressure:

“The term arbitrary describes a course of action or a decision that is not based on reason or 

judgment but on personal will or discretion without regard to rules or standards.

An arbitrary decision is one made without regard for the facts and circumstances presented, and 

it connotes a disregard of the evidence”

 (< https://legal-dictionary.thefreedictionary.com/arbitrariness>).  See document ‘Evidence  - article: Medical Decision’ submitted for reconsideration.

[50] Dr A’s “clinical decision” could not even be considered a clinical decision. I allege his “clinical decisions” on low blood pressure and the partial diagnostic test were together a combined incident of discrimination, one following from the first. The evidence I mentioned previously demonstrates the doctor’s arbitrariness in both. The fact that he treated me for being ‘old’ instead of considering whether it was vertigo or not is evidence that he discriminated against me on the grounds of age. Furthermore, because I am an older woman, my social status in society and worth as a human being was being judged, by him, and his staff. What made it all possible was that I was alone, without a husband or man in my life - or men, or caring family to accompany me (and me to accompany them), providing mutual support. I have explained this in detail, so it wasn’t simply a matter of being single. Being an older woman is more acceptable if the woman behaves more as a younger woman would. What’s problematic is aging – becoming old, and not being part of a family in a family-oriented society.

[51] The evidence I have submitted for reconsideration here and in the preceding pages shows connections between the doctor’s view of the patient, me, as old, and his revelation regarding the medical condition I had (as he stated, low blood pressure), a condition more common among the old. These pieces of evidence and facts demonstrate that there are strong links between his actions and the grounds I have declared – age, sex, marital status and family status.

[52] Often, case law can be applied to difference cases, but in this case, mine being about being old, and Moshi’s being about being disabled, the main issue was that he was being treated for his disability, in ways he did not agree with, and I was being treated by Dr A for being old, as though being old is a health condition per se. Being old is not a disease. It does not mean something is physically or mentally wrong with the older person. Old people have health problems, sometimes acute, or chronic, but being old or growing older, or being old, is not one of them.

[53] Dr A’s two reports on the November 8, 2016 appointment

In Para [29] of the Decision, Mr B mentions the first report (not a “further report,”), written by Dr A on November 30, two weeks after the appointment. Mr B quotes from the report, stating, “This report further claimed that the applicant had been belligerent, upset and rude with the clinic staff” then adding, “the applicant disputed these claims.”

[54] Mr B also wrote in Para [25] of the Decision that in Dr A’s report, “he indicated that the applicant was ‘quite upset’ with the receptionist.” I wrote about this in the Application Form, seeing it at first as an incident of discrimination, later realizing it wasn’t. Nothing happened. I corrected it in my response to Mr M’s CAD. When the incident happened was when Dr A wrote his report and reported what his receptionist had told him and blamed me for something I did not do. See attachment (Q 8 Item 2 R J waiting room).

[55] For evidence to the contrary, about who abused who, refer to the emails and recorded phone calls to me by Ms J and Ms L, when the case resumes, although it may not be possible as time goes on to access the securely-gained emails from the IT Dept at LHSC that were refused to me by Mr H, in his role as manager of FIPPA. See mp3 recording (2017 Nov 14 H).  In the same report, written November 30, Dr A acknowledges receiving the late referral from Dr P, that I had requested from the walk-in doctor after not receiving proper attention to my symptoms from Dr A, thinking it was because that helath issue had not been included in the original referral.  See (2016 Nov 8 A 2017 Nov 30).

[56] Later, on February 1, Dr A wrote a revised report on the same appointment, leaving out that particular nasty comment that he made in the first report, but also not acknowledging the referral from Dr P that he had mentioned in the first, instead making the claim that he had “tried to obtain a history in regards to her disequilibrium, and she denied any obvious vertigo or associated otologic symptoms” (2016 Nov 8 A 2017 Feb1-1) and (2016 Nov 8 A 2017 Feb1-2).  I had requested a copy of the referral under Question 17 of the Application, but not received it due to the inconsistencies in the way this case has been processed, leaving out steps that would have resulted in all the documents being shared, not just some of them, resulting in the omission of documents that might have proven my case, at the least in terms of circumstantial evidence supporting my allegations under the Code. This was also the report in which he named the front desk receptionist and referred to what I now call the non-incident.

[57] Dr A was mistaken in his second report from February 2017 in saying I had not shared or tried to share my history of symptoms of vertigo (eg, refer to the low blood pressure incident in which he refuses to listen to me). He claims I had reported no changes in my medical history, despite the fact I was using a walker, having fractured a femur earlier that year. But my health condition was stable, still taking the two medications for high blood pressure. 

[58] The referral itself, from Dr P, that he mentioned in his first report, is a clue that one doctor had noticed my symptoms, enough to send the referral, when I requested it from him, and although Dr A must have realized that, he did not want to deal with the symptom(s), instead, blaming it on low blood pressure.

[59] Thus, I request a reconsideration on that basis, that the new evidence (new for the respondents and Mr B) but listed in my Application, not reasonably able to be accessed due to missed steps in the process, would contribute clearly to my allegations that I was discriminated against under the Code, on the grounds of age, first, and also on the intersecting grounds of sex, and marital and family status, not being attached to any man or men, and living too far from my family for regular, committed support.

[60] I have written about these reports as incidents of discrimination against me on these grounds in my Application and in the response to Mr M’s Case Assessment Direction from January, 2018. For evidence, I have emails, recordings of two staff who decided to protect him and blame me, realizing I knew that I had been treated unjustly. Mr B had access to emails and recordings of phone calls that passed between Dr A’s secretary and myself, and then between me and two Patient Relations people, though none between them and Dr A because I was unable to gain access to those emails through a secure source - the IT Dept at LHSC, because Mr H, manager of FIPPA, would not give permission for me to have them. Together, these pieces of evidence come together, if now as the kind of arbitrary evidence Mr B requests but as circumstantial evidence, adding to evidence that systemic abuse within the organization was part of the overall problem that led to my allegations against the individual respondents, and the LHSC.

[61] Audio Recordings and Emails

On February 1, 2018, I mailed the following three audio recordings to HRTO, having previously given the respondents access to them on my website. At this point, the recording of Dr A was down to 6 minutes in length, and I did later cut it down even farther, to two recordings of 90 seconds and 28 seconds, so they could be focused on more easily. The three recordings included one of Ms L, which was not mentioned by Mr B in Para [29], but perhaps could have been, in relation to the report in which Dr A reported the stories of abuse his staff told him, Ms L informing me I had been discharged from his practice. The last one is of Mr H, in his role as manager of FIPPA.  The three recordings are mp3s (2016 Nov 25 L-2 excerpt), (2016 Nov8 A 6 min), and (2017 Nov 14 H).

I request that these tape recordings, along with emails between Ms L and myself, be part of the reconsideration, as I could not reasonably have known if Mr B had received them on his desk by the time of the summary hearing on December 7, 2018.  There were also other emails and audio recordings, in the list of documents, and the very short audio recordings of the low blood pressure incident and the offer of one part of the VNG test.  For mp3 recordings of the 2 brief recordings of Dr A, go to Evidence.

[62] Circumstantial Evidence and Systemic discrimination

In his Decision, dated March 5, 2019, he refers to the first of the reports by Dr A and having taken it into consideration when he wrote Para [29] of the Decision. If that is the case, they are ‘new’ to Mr B, and ‘new’ to this request for reconsideration that I am submitting.

I have referred to circumstantial evidence being the key to understanding this case, through linking pieces of evidence and facts and incidents into a whole, so eventually it becomes clear what this was about – and makes sense according to the Code – provides the kind of evidence (as I have today) that provides solid evidence as well as details that must lead the reader to conclude that my allegations are true. Without all the evidence I have listed - and been unable to obtain - and without evidence that Mr B has not mentioned in his ‘analysis’ or that is but was not understood correctly, some of which was due to the proper procedure not being followed, I will likely be unable to receive justice.  

[63] Small details can lead to greater understanding. I had written about these in my Application and later, in my response to Mr M’s CAD. The audiologist’s remark, the comment by Ms B from Patient Experience, and the way Dr P responded in his letter, are three, not significant enough to make a case on their own, and hardly worthy of including in a formal Decision on a summary hearing when so many other important incidents of discrimination have occurred in relation to Dr A and his team. But these small incidents contribute to the whole, to the realization that ageism in that kind of environment is systemic. I have addressed the problem of systemic discrimination further on the grounds of age and sex in my response to the Mr M’s Case Assessment Direction. For now, I shall just point to it – see on p. 33, Item 13, of my January 29 response to the CAD.

[64] Prima Facie case

I intend to pursue a case of Prima Facie, and have mentioned cases and articles in some of my responses to HRTO. One case I intend to rely on, that I pointed to at the summary hearing, concerns applicant Javed Latif: (Quebec v Bombardier):

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), [2015] 2 SCR 789, 2015 SCC 39 (CanLII), < http://canlii.ca/t/gk9vn  >, retrieved on 2018-11-06.

[65] A second case is that of applicant Youkhana Moshi:

Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044 (CanLII), < http://canlii.ca/t/g83vb >, retrieved on 2018-11-05.

[66] The legal practice of prima facie, that I referred to in my response to Mr M’s Case Assessment Direction on January 29, (submitted to Mr B again on March 10, 2019), is vital to my case, as I allege that     the otolaryngologist Dr A discriminated against me, treating my age as a condition – as though I had gone to him for the condition of being old – and claimed that the symptom I felt while in his treatment room was to do with low blood pressure and it getting worse over time rather than being vertigo or a vestibular condition. I have further argued that his comments about low blood pressure did not constitute a clinical decision. Other actions he took, as well the next comment he made in which he offered me only a fraction of the VNG testing available for his patients, is evidence that following on from the first comments he made, that because of my being female and old and seemingly had served my purpose in this life, and had no man or men for mutual support, or family close, I was not worth his attention. 

The List of Documents submitted with this Request for Reconsideration is not included here.

4. If your Request for Reconsideration is granted, what remedy or relief are you seeking?

1.  I request that the decision of March 5, 2019, that my case be dismissed on the basis that there is no reasonable prospect that it will succeed, be revoked.

   2.  I request that in future that the adjudicator acknowledge Forms submitted for approval, and either accept them or reject them in writing, and acknowledge documents and evidence I submit by name.

   3.  I request that my case be resumed, taking into consideration my January 29, 2018 response to the Case Assessment Direction from Mr Mr M on January 10, 2019, with changes made, as required, to the Application.

   4.  I request that the facts and evidence I have submitted concerning Item [16] of the Decision of March 5, 2019, remain as essential evidence/facts to be included in the resumed process about the November 8, 2016 incident at the appointment, involving low blood pressure, the partial diagnostic VNG test, and the later reports of the appointment, to be included in a new Decision following the Tribunal at the end of the process. 

   5.  I request that information I pointed to and offered documents and legal case evidence in support of, to have this case recognized as legitimately based not only on arbitrary evidence but also on circumstantial evidence, with the intention of leading to a prima facie case, be permitted to be part of the process once it continues.
   6. I request that the Remedy submitted under Question 10 in the Application of November 6 2017 remain in effect.