It is trite law that not all differential treatment is discriminatory, tribunal said
In a recent case, the Human Rights Tribunal of Ontario (HRTO) has ruled that denial of services by a medical clinic to a patient potentially exposed to COVID-19 did not amount to substantive discrimination under the Human Rights Code.
In Jacobs v. MyHealth Centre, 2021 HRTO 1009, the applicant, Steven Jacobs, attended MyHealth Centre to have an x-ray done. The clinic proceeded to fill out an intake and COVID-19 screening questionnaire with the applicant. The applicant was found to be “presumptively positive” based on the Ministry of Health’s COVID-19 Patient Screening Guidance. The clinic informed the applicant that it would have to defer the appointment until a later date or visit a hospital to get the x-ray performed.
In his application, the applicant alleged that he was denied services because of his potential exposure to COVID-19, and the denial constituted discrimination on the basis of disability or perceived disability under the Human Rights Code. But the clinic argued that COVID-19 did not amount to disability and even if so, the denial of services to someone in accordance with a health guidance did not constitute discrimination.
In dismissing the application, the HRTO held that the applicant had not suffered substantial discrimination under the Human Rights Code.
According to the HRTO, it is trite law that not all differential treatment is discriminatory and establishing a prima facie case of discrimination requires the applicant to prove that substantive discrimination had occurred. “The foundation of establishing substantive discrimination is demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping.”
While it had already accepted that the applicant was disabled by reason of potential exposure to COVID-19, the HRTO found that the differential treatment − the denial of services − that the applicant experienced was not truly related to his disability or perceived disability. Rather, the differential treatment stemmed from an individual assessment of the risk posed by a “presumptive positive” who may be carrying a highly infectious disease, the HRTO added.
“This type of individual assessment does not create a disadvantage by perpetuating prejudice or stereotyping or by attributing stereotypical or arbitrary characteristics,” the HRTO noted. “Rather, it corresponds to the medical knowledge which indicates that a person with such history and symptoms is at an increased likelihood of carrying and therefore transmitting COVID-19.”
The applicant further alleged that a clinic technician made statement that the clinic was not set up for patients like him and such statement was discriminatory. The HRTO disagreed.
The HRTO determined that the statement relates to the fact that the clinic, given its size and poor ventilation, was not set up to treat patients at risk of carrying and spreading COVID-19. Although the applicant felt that he had been treated badly, there was no basis to conclude that discrimination had occurred, the HRTO said.
“To be clear, this does not mean that all actions of a medical professional are immune to the [Human Rights] Code so long as they are following medical guidance or policy,” the HRTO said. “However, in the absence of evidence which speaks to a specific discriminatory or arbitrary act, a responsive medical determination based upon medical evidence and expertise cannot in and of itself be discriminatory.”