HPARB Notice of Intention Not to Proceed with Review

2020 June 11 re Dr D                                                                         Susan McPherson

In Response to Notice of Intention not to Proceed with Review by HPARB

Following is the Response I submitted on June 11 to the Notice I received from HPARB  (Health Professions Appeal and Review Board) that they were planning not to proceed with the Review of the CPSO complaint that I had asked them to do.  I was required to submit responses to HPARB within 30 days, which I did. the case is complex, and I could see that they hadn't really understood what I had said, so I tried again to explain.  In the following document, I have omitted the names of the parties involved and other extraneous information, such as titles of attachments and their job titles, etc.

This is one of two responses I made about two doctors I had laid the complaint about to the CPSO, originally. The CPSO (College of Physicians and Surgeons), had decided not to go forward with the investigation, having saying that my complaint looked as though it was “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.” They didn't say which. HPARB followed suit, the reason being that they do not conduct an investigation of the original complaint, only looking at the CPSO ICRC (the Committee) to see if they would have reached the same conclusion. They did, by making the same mistakes and relying on staff at LHSC to be able to explain this situation to them.

If viewers have questions, you are welcome to ask, or leave a comment. Please excuse the spelling errors. 

HPARB Notice of Intention Not to Proceed with Review

by Susan McPherson, Complainant

Dr D, Respondent

Case File: Dr D  HPARB   (CPSO, Complaint June 28, 2019)

Date:   June 11, 2020                                                

Sent by email to    

   

1.  The respondent, Dr D, was and possibly still is one of the health care custodians of reports and other documents about me that are related to this case; in fact, he was one of the main ones, being the person in authority, as submitter and receiver, responsible for the sending and receiving of documents from the lab he worked in at LHSC, and possibly providing authorization for some of them.

2.  I understand what HPARB is saying, that it was simply HIS name and hospital address that appeared on documents coming and going and that to him and the hospital it meant nothing. It wasn’t as though anyone was taking responsibility for what went out or was accepted in. I can see that. I already knew that. But I would like to know Dr D’s part in that, and whether he could have done better, and whether he should have been doing that job, and whether he did it to other patients, and more. Shouldn’t the hospital, and the College of Physicians and Surgeons, be accountable for their mistakes?   

3.  In the response I received from M, formerly of P   O LHSC, on May 31, 2019, she sent an explanation about the various documents that was not accurate.

4.  In the email bundle I received from HPARB on May 13, pages from M were listed under p 2, - -  that they used in determining the Decision on this case.   They are attached here.

5.  First of all (re Item 2 of the ROI) it wasn’t me who said that EMERG was involved in my path from Bronchoscopy to being TB Suspect. That information was on the Suspect form filled out by B, as well as other forms, such as the requisition form, and was an error. I don’t know how, except that almost everything she wrote on the form was incorrect. I didn’t have symptoms not able to be explained by emphysema, for instance. She just picked things up from my medical record and plopped them into the TB SUSPECT form. I state this because HPARB has accused me of being frivolous, and I don’t want them to think I just made things up out of the blue and asked M to find out about something that didn’t exist.

6.  M, P O, LHSC, thought that an “automatic notification” was “triggered” due to the “nature” of my visit to Dr M, and presumably did not involve any human action to be taken. Somebody has to put the piece of paper into the FAX machine, or lift up the telephone, or copy an email to God knows who. It doesn’t happen automatically, unless these people at LHSC are AI robots or in a daze and things get forwarded “automatically.”  Likewise with the requisition that was said not to have been sent by anyone. It simply exists, presumably and D was not responsible, you claim.  

7. Farther down on page 2 of her letter, M tried to tell me – and I am copying again for you - that “bacteria in the TB family was found during the exam.”  Actually, bacteria cannot be seen while the bronchoscopy is being carried out. It has to be discovered at the lab – presumably at the LHSC lab if possible, or if not at the Public Health lab locally or in Toronto.  Sounds like circular reasoning on her part – using the “find” as a reason to conduct tests on the sample to try to discover what it was, if anything, no matter how many labs they had to send it to.

8. HPARB and thus, CPSO, chose to refer to P O M’s response to me, received by me on May 31, 2019.  See pages 1 and 2 of her letter attached.   HPARB wrote in Section II,    of the Notice of Intention not to Proceed with Review (May 13, 20) how they understood the process, that “possible bacteria” of the TB family was present. However, it wasn’t possible for TB to be found until some reason was found for pursuing it – as with COVID-19 - such as having symptoms, or being in contact with someone who had it. In one assessment tool at MLHU that was written on, too, for no reason, the word “contact” was added.  It was thought I might have had an infection previously, but that could have been pneumonia or bronchitis. TB wasn’t suspected at the time of the bronchoscopy. If it was, no one told me, at least, not in a way that indicated what I might be up against, which was a lot more than most immigrants are. The doctor might have wondered to himself, but there was NO INDICATION that I had TB. Sure, you can say it was “possibly TB,” or possibly anything on the list of infectious diseases, or anything not infectious. It could have been - anything. But I didn’t fit the profile for TB and had no symptoms and I didn’t have close contacts so there was no reason to pursue that avenue.  

9.  It wasn’t until B filled out the form that anyone could seriously consider that I had TB, contradicting what you claim happened, that TB was suspected from the beginning. If she had filled out the form accurately, with more care, it would have been realized right away that I probably didn’t have TB and didn’t need to be tested. It is possible that once a test was done that indicated by the AFB test that TB was possible, B would have made out the inaccurate SUSPECT form, but it would take Dr D or someone to say how that test happened, and where, and when. And I don’t mean M saying she asked someone and they said this or that was a reasonable explanation. She was not a spokesperson for the LHSC and ought not be giving her word on how things happen there (and nor is Patient Relations, if that idea comes up). We are supposed to be able to put our trust in doctors, but how can people do that when things like this happen?

10. What I mean is that someone, such as Dr D, or whoever conducted the AFB test and signed the test result as being authentic and authorized by a requisition,  and received the lab report back, should be investigated by HPARB as the person being investigated should be. If CPSO did not do this, then it can be said that in this matter, the investigation they conducted was not adequate.

11. I realize that the inadequacy of the CPSO investigation of my complaint is one of the reasons I was able to request a review.  The other part was whether or not the Decision of the Investigating Committee of the CPSO was reasonable. And it was not. I cannot state what their final conclusion was because they don’t exactly say – either I was being “frivolous” or I was “abusing the process”. What was it? HPARB says the same thing, which isn’t really anything unless it was something.

12. Still looking at Item 4 of the HPARB Notice, it is stated that TB is a mycobacterium. Tuberculosis most certainly is a contagious disease on the list of reportable diseases to Public Health. However, non-TB Mycobacterium, the query that someone had in order to have sent up a sample culture to Toronto to be identified as such, is not reportable - meaning, it is not reportable to Public Health as a public health concern and need not be investigated in samples submitted by any patient, or immigrant from countries where it is most likely to occur in large numbers. Most often, the two diseases are separated, into TB and non-TB mycobacterium. The kind that was presumably found in a test culture in (date), 2018, in a sample that was taken from me during the bronchoscopy in August, ened up being non-TB mycobacterium.  It was an unusual investigation, as most immigrants do not even have the test done upon arrival in this country.  They just have a regular TB test, perhaps a sputum test, which I did not have in the first place. I was sent straith through to having the full TB mycobacterium and non-TB mycobacterium investigated.

13. Speaking of TB mycobacterium and non-TB mycobacterium as though they are in the same family – as the HPARB Notice does - may or may not be correct, legally, but they are not talked about – nor investigated – nor in the same risk category  -  in medicine.  And it distorts the issue to write about it in that manner. Where in the Notice it is written “That testing revealed the bacteria was not one that causes tuberculosis,” (Item 4, Notice . . Dr D) that is another error. It was already known by that time that the bacteria I had, if I really did have any worth mentioning, or a conclusive test result, was not TB. The sample culture was sent to Toronto to discover whether is was a non-TB mycobacterium,  not to check whether it was not one that causes TB. And I don’t even know whether proper submitting protocols for the sample were carried out.  Based on the looks of the requisition I managed to get and the lab test result that came back with no clear dates or results, nor names of authorizing doctor, and B’s methods, one would have to question whether the lab even followed proper travel protocols of the sample. 

14. And of course, as I have said, the test result of that single test was positive, and remains unconfirmed because Dr M didn’t follow standard guidelines for the testing for TB. If it was Dr M who authorized the requisition for further testing, or Dr D2, or Dr D, I would like to know. So far, it is only Dr D’s name on the requisition, as Submitter, And he was the receiver of the finished lab result. At least, for this investigation, I would like to hear from Dr D himself, what his job description is and did he not think he was supposed to check important documents like requisitions from his department before they were sent out, with the sample culture?

15. I have included the original handwritten Dr D Requisition form here so it can be compared with the typed-up data on the lab information forms located in the bundle of documents sent to me. Both those are OLIS data, with information jumbled together not making much sense unless one already had a good grasp on the details of the lab testing, etc. But both had Dr D’s name on them, one even stating that Dr D was the “Ordering physician”. The other one refers to him as the “Provider,” while the original requisition uses the term “Submitter.”   The original requisition was not obtained through M at LHSC, although one would have thought they would have saved a copy, since it was proof that the testing done in Toronto was legitimately authorized and not simply pushed through.   There is no clinician named on that original requisition order, nor a Doctor’s name to forward the results to. It all went from Dr D back to Dr D after being carried out.  The two lab reports are attached here.

16. But I do know that the requisition with Dr D’s name on it was scribbled on, after striking out the words Final AFB (a different test, done locally) and inserting the word mycobacterium, whereas if it were going to be tested for TB, then it would say TB – the title given on the back of the form to identify the test required. I imagine TB had already been cancelled out, because I didn’t have it. And so, someone came along and put  “mycobacterium” on it, so it could be sent to Toronto, without a new requisition having to be made out and having to have someone take responsibility for adding on this extra testing, which I was not informed was going to happen, nor why, preventing me from knowing what was going on. So it wasn’t meant as this being a test for TB and “mycobacterium.” It was a meant to be for a non-TB mycobacterium. so in those Item numbers where this is discussed, eg Item 4 and Item 9 in the HPARB Notice.

17. I have attached a blank general test requisition, of the kind Dr D permitted to leave his department unchecked by him, including the back of it. If you look, you can see where TB is listed, as being mycobacterium. There is no category for non-TB mycobacterium, whether because there is a different requisition form for it, or I don’t know why. I am not a doctor and it is difficult for me to get answers from OLIS or any lab on these matters because they only answer questions from doctors, they say, about procedures. Or perhaps lawyers.

18. To be accurate, the term non-TB mycobacterium probably should have been put on the requisition at that point, and someone should have signed it, or initialed it, instead of leaving it such a difficult-to-understand document.  It makes it difficult, too, because people who access it and change it, etc, don’t put dates on it, or initial it, so no one knows for sure where it was nor when, nor who.

19. I understand the CPSO does not deal with administration, but it does deal with rules about how doctors should act if they have custody of a patient’s medical record or other important documents, and this is one of them – and Dr D had the document in his office, for it to have been stamped with his name. And it deals with ethical issues – issues of accountability. That’s why I am asking.

20. If Dr D was the only person who had access to that requisition, and if he did not instruct his staff on how to deal with them (eg, read the document and if there is anything unusual about it, such as if it is an unsigned requisition, hold it for me, he could have said). Who signed the original requisition? So whose responsibility is it if his staff did not know how to deal with it?

21. The report referred to in Item 4 was the SUSPECT form, by B. I don’t know how it got to MLHU. It got there, whether by Dr D or someone else. That should have been caught, too. The name Mrs N,  B’s boss, was on the list of witnesses to interview, in the Application, but CPSO did not bother.

22. TB WAS ruled out, by the way (Item 4 of your Notice says it was NOT ruled out). This is the problem I have been telling you about, and CPSO. I did not have TB. And then someone decided to send a requisition up to Toronto so they could look into non-TB mycobacterium. I don’t think people who have TB have to have their samples checked by LHSC lab, and MLHU lab and then by Toronto’s genome lab. Someone went out of their way to have my culture sample sent up to Toronto. But non-TB Mycobacterium is not on the Reportable Diseases list of Public Health.

23. The information you give in Item 9 has fragments of truth bu in it essence is inaccurate. Non-TB Mycobacterium is not a reportable disease. I can give you lists, but it’s not on them, because there are only lists of reportable diseases, like TB, not of non-reportable ones. I gave that information to the CPSO.

24. A sample was taken from the bronchial lavage I had (and signed a consent form that enabled them to do whatever research they wanted on it.). I asked Dr D2 if I could sign the consent form and he said wait until you are in the Procedure room. By the time I got there I was lying flat on my back with my reading glasses safely tucked away. I signed under pressure! Uniformed consent. I had not realized I would be tested in ways no other patient would ordinarily be tested, not even recent immigrants who, according to their profiles, probably came came from the major continents where their ancestors were raised in mud huts and ate off the ground and thus were more susceptible to the kind of diseases these doctors and staff were investigating me for, I allege, so that they had a guinea pig they could test these poisonous drugs on.

25.  M makes it up as she goes along, in her letter of response. She couldn’t find the requisition, she didn’t know how things got from one place to another, and she says in Item 3, p 2, that the “culturing process has to be referred out  by LHSC.”  By L H S C – by the *hospital,* by magic, because no one fills out the form and no one signs it. It is all automatic!

26. Generally, people start off this process that I went through by having symptoms they go to a doctor for. I didn’t have symptoms that could [not] be explained away. I already was short of breath due to emphysema, and had a cough that went with it. Yet B of LHSC wrote on the form that I had clinical symptoms of TB.  People at LHSC say different things about the process. M says, “the reportable disease notification was sent automatically to the Middlesex Health Unit as part of our standard protocol (which adheres to legislation).”  I am explaining again because I think it takes hearing it more than once to sink in. She knew only a small part of what this was about and the most important parts she got wrong anyway. Someone was responsible. It didn’t happen “automatically.” 

27. The College didn’t conduct an investigation prior to making a Decision. In their first paragraph in their Analysis they quoted from the CPSO’s rules on reporting and left it at that, stopping at the point of the supposedly necessary TB SUSPECT report. Non-TB Mycobacterium is not a reportable disease. I can give you lists, but it’s not on them, because there are only lists of reportable diseases, like TB, not of non-reportable ones. I gave that information to the CPSO but they must have presented it to you incorrectly.  That’s why this situation was so unjust – I was subjected to this testing, which so many others do not have to have done, even though from foreign countries where it is more known. I was subjected to it, and people hid it from me, and hid the part they played in allowing it to happen.

28. The second paragraph of the CPSO Analysis  focused on lab protocols, incomplete forms, and health policies, for the most part irrelevant. The third and final paragraph was completely false. Dr D was meant to be working under the supervision of Dr C at the time this situation took place, and only to be given tasks to do that he was capable of doing satisfactorily – or complaints would be made, which I did, while he was still uder restrictions.  

29. The CPSO’s final Decision was that they would take no action with respect to the complaint. Instead, they decided that my complaint looked as though it was “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.” They don’t say which.

30. My presence (in writing) and complaints, may leave you feeling vexatious, or show how I was feeling, but they are relevant in today’s health care system, and as far as I know, were not an abuse of process, but if they were, were made in good faith.  I put much work into this, provided extra material for the ICRC, and kept the Board up to date on the lack of attention by the CPSO to what is going on in hospital settings.

31. Doctors or not, we all know from the coronavirus pandemic that there is always some concern over patients who have symptoms and who test negative, or those who test positive and yet are asymptomatic. I only had one test and the doctor started talking about it as though I had bee diagnosed with this non-TB mycobacterium. And then other residents would mention it, as though I actually “had” it and had not simply had one unconfirmed test result. No symptoms, did not fit the profile, no contacts. Nothing! Just one test, and we don’t know whether protocols were carried out in sending it to Toronto.

32. I would like to get this matter dealt with, as it is part of a larger whole. Each piece is complex enough, so doing them all together would be impossible. I still have other people I believe need to be questioned about this. It may seem frivolous to you now, or an abuse of process, but these questions need to be asked of Dr D and others mentioned in the application, so that when I file a complaint about another doctor, you will know what has been covered. If D doesn’t respond to questions about his part in this – such as about his job description – then no one will know whether he is the one (along with Dr C) who should take responsibility and how the LHSC can become more accountable in its hiring and supervision, with the cooperation of the CPSO.

33. I am attaching what appears to be the original requisition *submitted* to PHO labs by Dr D, it states, complete with one part crossed (AFB Final) out and the word Mycobacterium written in, with no signature nor date to indicate whether it was Dr D who made the change or someone else.   No reason for the test is given. Under clinical symptoms, “respiratory symptoms” has again been listed, falsely. The patient setting was given as ER – not true. Dr D is clearly listed as the Submitter, although apparently, M may be right, No one person needs to be identified as requesting the test, or authorizing it, as a health care provider or custodian, it being a mysterious process at the best of times.

34. And who does that leave as health care custodian in this situation of documents coming to the lab and going out, if not Dr D, the one who “submitted “ the requisition to have the test in Toronto, the test that didn’t need to be done and that I was not informed about in advance! I have attached the requisition, and a copy of a blank requisition,  as well as a copy of the Fact sheet on Health care providers, since this last item, the status of Dr D, as provider, was mentioned in the responses of CPSO and HPARB to my complaint.  

35. In responding to HPARB’s decision, I would first say that there were several errors and distortions in the CPSO’s investigation, repeated in your response, to address each one in detail. I have already made this case once to the CPSO, and your making a case against me, based on what they claim I said and what they choose to believe, doesn’t do justice to my request for a review. I realize this is how a Review by the Board is undertaken, but it still doesn’t make sense. If PHARB is not analyzing the original documents from my Complaint and seeing if they come up with the same conclusion, instead of looking at CPSO’s interpretation of the Complaint, and seeing what’s wrong with it, to what purpose is having a Review?

36. An excerpt taken from my request for review, in Item 13 of the Notice, is what the HPARB has decided to hold against me, as the essence of what I am asking them to do and the reason for not proceeding with the Review. However, going back to the original Complaint I made, which presumably is what the CPSO used to base their investigation on, would be more appropriate. See attachments.  Here you will find my concerns, the start of a description, and the names of two persons who could offer more information. My concerns are not as you describe in Item 13, but this, from p 3 of my CPSO Complaint about Dr D and Dr C, which surely the CPSO used as the basis for their interpretation of my Complaint? :

37.      1. Dr D was involved in submitting information about me to MLHU in September or October 2018, that resulted in the Health Unit screening me for Tuberculosis.  After it was discovered I did not have TB, the lung sample  was sent to Toronto for further testing. I question, first, the basis on which I was deemed to be suspect for having TB, and the process by which the report was approved and sent to MLHU. Secondly, did Dr D also approve the requisition for the lungsample sent to Toronto?

             2.  My concern is that Dr D wasn’t doing his job well, and that errors were made in having my information submitted to MLHU. CPSO public information about Dr D indicates that he may practise medicine only in a setting that is approved by the Chair.  Dr C  is the Chair. I question whether he, too, was not doing his job effectively.

              3. It was the responsibility of Dr D, and thus indirectly of Dr C, to ensure that the documents sent (and received) to and from MLHU and other labs were valid and completed with accuracy. This didn’t happen with the form that was submitted by LHSC to MLHU, nor with other documents related to this situation.  If Dr D's work was not to be trusted, why was my health care entrusted to him, with no one overseeing it?

38.  As I said above, on its own, this case is not the entire story of what happened to me. This entire situation, of Drs D and C, is connected to others including Dr M, LHSC, who I have alleged mistreated me and manipulated me, with the compliance of staff and doctors including Dr D2, LHSC) employee B, Drs D and C, Ms B MLHU, and others; that said, if the participation of the various employees and physicians wasn’t done out of compliance, then it had to be out of ignorance.

39. On its own, one might see D’s actions as trivial, but connected as they are to the wider issue, of the supposed chance occurance of a patient being lied to, misrepresented, and dragged through the system to a conclusion not out of her (my) informed consent, one can see that what they did was essential to this effort by Dr M and colleagues to inveigle me into being their research subject.

40. In Item 15 of the HPARB’s Decision May /20, Dr D’s role is referred to, that HPARB is saying means he was not involved in this situation. But that is his title and address as it appears on his documents. He does do clinical work, and practical research. He has Hospital privileges at all the hosptals under LHSC. He may even have had something to do with speaking with the referring doctor (Dr M) or Dr D2, about what lab testing did they want done.

41. No, there was no doctor/patient relationship between Dr D and myself, as you suggest in Item 15 of the Notice.  I am saying he was a hac – a health care custodian. He had personal data on me (some of it incorrect) and he was the person in that environment, of the clinical lab, not as academic, who sent and received reports including requisitions, and perhaps even consulted on what kinds of lab tests could be done. He wasn’t an administrator per se. \

42.  Many professionals in hospitals have numerous titles, sometimes, as heads of Committees, and so on. Regardless of his title, whichever one it is, look at the form, reports, lab requisitions and so on. All the ones to do with me have his name on them. And the question is, regardless of whether he was away that day (see Item 15 again) should he had been a little more careful of what was happening with patients’ requisitions and lab results that had inaccurate medical information on them. It surely was his job. And of course, it was Dr C that was also at fault. I have included D’s CPSO profile as it was before it was updated.

43. Re Item 16. I am not talking about protocols in this case. I gave the CPSO the background information to my complaint. How otherwise would they have been able to comprehend what the issues were with Dr D. It wasn’t just about him. Somebody or some persons were involved in manipulating me from start to finish. If not that, then the professionals at LHSC are incompetent. And yes, again, I have given you the information on the limitations requested on Dr D on his file, before July 1. So while you are correct in what you say, “there is no persuasive information that the Respondent’s licence is restricted due to competency issues,” what you say is not correct as far as this complaint is concerned. He has a different profile now. The restrictions I was referring to were lifted.

44. On June 28, 2019, I emailed my Complaint to CPSO about Dr D and Dr C.  It was not acknowledged until Tuesday July 2, due to the long weekend.  I submitted the application before I knew what changes would be made to the restrictions on Dr D’s CPSO file but I had wanted it to be there before the file was altered and so that the CPSO and others at LHSC knew that this had happened while Dr C was supposed to be supervising him and that my Complaint was submitted before that restriction came to an end. I submitted my complaint before the restrcition was lifted. It is up to HPARB when they decide to follow up on it.

45. The damage had been done while Dr D was still under supervision, despite what HPARB believe about there not being restrictions due to his ability. He may have been competent within himself, but the question is, was he capable of overseeing incoming and outgoing documents (or even authorizing requisitions) whose existence and careless use might well have dire consequences for someone caught up in the incompetence or manipulative behaviour of others. Lacking experience, he might have been a risk being in that position.  

Thank you for taking the time to examine my response to your Notice Not to Proceed with Review. The Decision made by the board about my case against Dr D was inadequate, and was also unreasonable.

Susan McPherson    

17 Attachments follow

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.