Submission to Human Rights Ontario
Commission (HRC) and Legal Support Centre (HRLSC)
          in the matter of discrimination mainly on the
                          grounds of age and sex 

   http://www.AccountabilityinHealthCare.homestead.com/SubmissionToHumanRightsOntario.html

                                       Susan McPherson September, 2020

                          web site Accountability in Health Care: ethics in aging
​                         http://www.AccountabilityinHealthCare.homestead.com

Form 12 VNG Inquiry into stats on Dr A

In Item [21] of his March 5, 2019 Decision on the Dec 7, 2018 Teleconference, Mr B queried whether I had evidence – saying, “the issue is whether the applicant can point to some arbitrariness in how she was treated, related to some Code ground.”

In Item [32], in that Decision, Mr B referred to the VNG Study I had proposed, indirectly, however, stating, “she has not been able able to point to any evidence she has or that may reasonably be available to her that could establish that any adverse treatment she received was related to a Code ground.”  

Mr B had also briefly referred to a Tribunal Inquiry, which the VNG study was - and the only one I requested - in Item [3] of his May 16, 2018 Case Assessment Direction. See attachment 2018 May 16 CAD Mr B.

On Jan 29, 2018, at the same time I responded to HRTO after Mr M sent the Case Assessment Direction to me, I had requested through an Inquiry the statistics on Dr A’s treatment of older persons, to be determined through stats of that year, 2016, to see if more older women, for instance, were offered one or less than 4 or 5 of the number of VNG testing available, or are most of us getting less? 


p. 27

The details of the proposed study are below, on page 20. Mr B received it, commenting on it in his CAD in May of 2018. Mr M didn’t respond to it, if he got it at all. It was part of a package I submitted to the HRTO and respondents. I would like to have this matter investigated and to see what happened to the documents I submitted about the study. Mr B acts in his May 16, 2019 Decision that he hadn’t seen it, or was he saying that it wasn’t reasonable for me to request such a study about Dr A’s diagnostic treatment towards older women? 

Mr B – or Mr M - denied me the opportunity of having an Inquiry done by the HRTO to demonstrate that Dr A discriminates against some patients (older, especially older female). The Dr offered me only one test – the caloric test by the way he described it – and that was all. To get the statistics needed to show discrimination, someone would have to investigate the records of Dr A at the VNG Clinic. There would need to be a Tribunal Inquiry. I have requested it, and referred to it on more than one occasion in letters I have written. 

Tribunal inquiry

44. (1) At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,
(a) an inquiry is required in order to obtain evidence;
(b) the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and
(c) it is appropriate to do so in the circumstances (Human Rights Code. <https://www.ontario.ca/laws/statute/90h19>.)

See attachment 2018 Jan 29 VNG Inquiry Form 12, or see following:

  2018 Jan 29 VNG Inquiry Form 12

2. Describe the evidence or the nature of the evidence to be obtained.

Regarding Incident #4, Question 8 of the HRTO Application:

Examining for age and sex of the patients, this collection of statistics on Videonystagmography (VNG) testing within LHSC will provide information on basic differences according to sex and age in the individual (or complete) VNG tests ordered by Dr A for his patients at the ENT clinic during the year 2016. 

The control group will be all the patients who received one test or less than the complete VNG testing at the VNG clinic, 1st Floor, University Hospital (LHSC) during 2016. Unless this problem is more widespread than just Dr A, one might expect that only the patients of Dr A have more variation in the units of test offered to them and conducted within LHSC.


p. 28
I expect that there will be differences among Dr A’s patients, showing that he differentiated between younger adults and older ones, age 60 and over, and between older male and older female patients, in his decisions on which VNG testing gets offered to patients, indicating that older patients, and older women in particular, who were more likely to be offered a single test rather than the complete set. Those results would indicate an increased likelhood that I, Susan McPherson, was offered a only a part of the complete test because I was older, and female. The results are evidence that I was discriminated against, in response to the question, “Was there substantively differential treatment, either because of a distinction, exclusion or preference” (4.1 Age Discrimination, HRTO: General Principles: When is Differential Treatment discriminatory, (1) Differential treatment). 
(Jan 29 2018 Form 12)

3. Explain why this evidence is necessary to achieve a fair, just and expeditious resolution of the application.

At the crux of this case is the test that Dr A offered me, at the appointment on November 8, 2016, which I discovered later was called the caloric test, by his description of it. I discovered by looking online that at many VNG clinics and ENT Departments, in North America, the caloric test was only one of a multiple-test diagnostic set of tests, for the purpose of diagnosing vertigo and vestibular problems, symptoms of which I had been experiencing and he had dismissed as not being likely.

I have claimed that Dr A discriminated against me on the grounds of age and sex by offering me only a fraction (about ¼) of the complete VNG testing available at the VNG clinic at University Hospital. The statistics would show if it were common for Dr A to order only one part of the complete VNG for his patients, and if so, were patients the individual tests were ordered for more likely to be older females than older males. 

Stats from the VNG clinic would include comparing Dr A’s practices towards ordering tests and what other ENT specialists do, as to whether individual test requisitions were typical. Collecting stats from both the VNG clinic secure database and Dr A’s secure database will assist in showing up any discrepancies in the data.

I believe this evidence is necessary to achieve a fair, just and expeditious resolution of the claims I have made on my application. If it can be shown that he treated other patients this way, based on their age and/or sex, then the likelihood that he did it to me is more evident. I believe I was shown differential treatment on the basis of my age and sex by being offered only one part of a multiple part VNG test, which stood a greater chance of not providing an accurate diagnosis, leading to an increased possibility of a lowering of quality of life and increased risk of related health issues.

Conducting this study would expedite the process of coming to a resolution of the claims made if there were evidence of discrimination against some patients. But even if the results failed to uphold my claim, that Dr A discriminated against me on the grounds of age and sex, routinely using this method of decisionmaking to divide patients into those more worthy (in his view) and those not, these grounds are still the most likely reasons Dr A only offered me a fraction of the full VNG test, because he saw me as worth less than other patients of his, on the basis of age and sex, and other evidence or testimony at the hearing may well disclose this. 


p. 29
Discrimination on the basis of age and sex is so ingrained in society, so much a part of systematic differential discriminatory behaviour that it would most likely have been a misplaced ethically rational decision on the part of Dr A (in his view) that he offer some patients better health care than others based on their age and sex, rather than being a decision based on other factors unknown at this time. 

As stated in the Human Rights Legal Centre guide, 

“The evidence in discrimination cases is often indirect evidence. . . Cases that rely on circumstantial evidence are more difficult for the Tribunal to decide. Circumstantial evidence requires some reasoning in order to prove a fact” (Proving discrimination. http://www.hrlsc.on.ca/en/human-rights-ontario/self-help-materials-and-how-guides/proving-discrimination).

I also responded to these questions on the Form 12 request, Jan 29, 2019

4. Describe the efforts already made to obtain the evidence.

I called the VNG clinic in late November, 2016, and asked what VNG tests were carried out there. The only response they would give me was that they only did one test - the “VNG test.” They refused to go into specifics and name the tests. 

I called Ms J, administrative assistant to Dr A, on November 27, 2016, and asked her the same question – what kind of testing did they do at the VNG clinic on the first floor, University Hospital. She wouldn’t give me a specific answer to the question except that it was VNG testing – Videonystagmography. 

I also asked about what test, specifically, would I be getting but she did not answer that. A related matter was the new referral that I had asked a walk-in clinic doctor to send, so that Dr A would realize I had symptoms to investigate. 

I asked Ms J about the new referral, too, whether Dr A had seen it, but she did not answer me.

I had hoped to speak to Dr A directly about the test and why I was not getting the complete test, at the appointment on Dec 12, 2016, the same day the VNG test was scheduled, but when I cancelled the VNG test until I could speak with Dr A, Ms J and/or Dr A cancelled that appointment. 

5. Why is an inquiry necessary to gather this evidence?

I have been unable to gain access to the information needed to demonstrate that I was discriminated against, on the grounds of age and sex, by being given differential treatment, offered only a fraction of the complete test available routinely to patients of Dr A’s with symptoms of vertigo and/or vestibular problems. Although I know I was treated unfairly, I do not know how else to explain otherwise how the inadequate treatment I received was due to my age and sex – through being an older woman. 


p. 30
6. Describe the proposed terms of reference.

1) To collect the statistics, a list is required of separate VNG tests, or parts, including a brief description, on offer at the VNG clinic, 1st Floor, University Hospital, which were normally available for patients at the VNG clinic during 2016. 

1. Statistics to take from secure database of records from the VNG clinic, 1st floor, University Hospital (LHSC) to include: 

a. All patients attending the VNG clinic who received the complete set of diagnostic VNG testing for any one requisition by a ENT specialist: total number of patients, number of males under age 60, number of females under age 60, number of males over 60 and number of females over age 60.

b. Patients attending the VNG clinic who were referred by Dr A, who received the complete set of VNG tests during 2016: total number of patients, number of males under age 60, number of females under age 60, number of males over 60 and number of females over age 60.

c. Patients referred to the VNG clinic by Dr A who received only one individual test or less than the full VNG testing, and the names of the tests: total number of patients, number of males under age 60, 


Pointing to Evidence

In the CAD that Mr B sent, May 16, 2018, under the heading IS THERE NO REASONABLE PROSPECT THAT ALL OR PART OF THIS APPLICATION WILL SUCCEED?, it is stated in para [11], in part,  

The applicant must be able to “point to evidence” that could establish discrimination on the facts of her own case. [11]. 

Also, in [12] he refers again to pointing to evidence:

To the extent the allegations relate to the medical decisions made in her treatment, the Tribunal has also said on several occasions that it does not have jurisdiction to review a physician’s clinical decisions based on whether they were medically appropriate. See Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044 at paragraph 43. Consequently, the fact that a physician made a clinical decision with which the applicant disagreed or even a clinical decision that had a negative outcome for the claimant is not sufficient to establish discrimination. Rather, 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. 

As an aside, that ought not be “and/or age” (see last line in [12]). Age, together with sex (meaning female), points (if I may use that term) to the idea of “older woman.” My case is about age and sex, primarily, and family and marital status, secondarily. 


p. 31​
I always explained in my application and following responses the evidence I had, in detail, as much as possible, as much as I thought necessary. That evidence included the audio recording and Form 10 about Mr H, submitted Jan 5, 2018 (2018) to HRTO and the respondents. Mr H was legal counsel for LHSC and some of the respondents, also manager of FIPPA, or Privacy Office LHSC. My Form 10 and the audio tape were never even acknowledged by Mr B, let alone dealt with in an open and transparent, and honest response. In fact, Mr H was named counsel of LHSC and the respondents on the cover of the March 5, 2019 Decision of the Summary Hearing Decision.

For example, in considering the idea of “pointing to” evidence. There is so much in terms of different kinds of evidence in this case that has been made so complex by the Dr’s secretary, his receptionist, the social worker, the volunteer and others involved in making accusation against me that were not true that there would only be time to point to evidence, not explain it thoroughly though I have done that in writing, as much as possible.

How could I explain Mr H to Mr B, and Mr H’s attitude in the audio recording, which would have to be heard to be understood. Would I ever remember this definition of conflict of interest, to state to Mr B at the Teleconference, in case I was asked? How could I possibly be prepared to defend (yes, it was me who had to defend myself against Mr B!) how could I possibly be prepared enough for a Teleconference to explain anything he should ask, about evidence? 

On the LHSC web site, see Conflict of Interest definition – any real, perceived or potential situation where the personal and professional interests of individuals may have actual, potential or apparent influence over their judgment and actions. https://www.lhsc.on.ca/media/3827/download

Regarding the term “point to evidence,” the words “point to” mean “to direct attention to (someone or something) by moving one's finger or an object held in one's hand in a particular direction (Merriam Webster). That is generally how I attempted to use it at the Summary Hearing. I pointed to the evidence that I had, or had hoped to get with the cooperation of the HRTO.  

The term “point to evidence,” is sometimes stated in a different way, as evidence or conclusions (as in circumstantial evidence) that point to [guilt or innocence], which is simply changing the words around, and changing the meaning of them. 

Mr B’s Mar 5/2019 Decision of the Summary hearing by teleconference, held on Dec 7, 2018, was not favourable to me. He decided that I couldn’t win. I didn’t have evidence to prove my case, he said. Mr H, who I had sent a Form 10 in to HRTO about, more than once because it was being ignored, was LHSC’s counsel for the respondents, also the manager of the Privacy Office, who had denied me access to securely gained copies of emails between Dr A and his secretary and the Patients Relations person I sought out when I realized I was getting nowhere with the secretary from Dr A’s office.

The March 5 Decision was the point at which I was given 30 days to submit a Request for Reconsideration, which I did on March 28, 2019.


p. 32
 I wrote in detail about the incidents with the doctor, in particular, although there were 7 or 8 other respondents, not including Mr H, who was still on the team still. 

In his Reconsideration Decision, July 7, 2020, Mr B wrote that I was supposed to discuss the evidence while defending my case at the Summary hearing, not simply point to it. In his earlier Assessment Directions, Mr B stated that I must “point to it” (any evidence I may have) and that was what I attempted to do at the Summary Hearing. He wrote:

[11] The applicant takes issue with how the summary hearing itself was conducted. She understood she was expected to explain what evidence she would provide at a hearing on the merits, but interpreted this as meaning that she need only point to such evidence generally. She objects to the fact that I asked her specific questions about this evidence and that she was required to explain the evidence she would present in detail. 
[12] It is true that I asked the applicant to explain in detail how the evidence she expected to present could lead to a finding of discrimination. This is the point of a summary hearing (see 2020 July 7 2017-30245-I Recon Decision). 

I ask now, does he not realize that I have presented most of my evidence, including the information I needed from the respondents, etc, previously in responses and Forms 10 and more I submitted to the HRTO, and that much of it was being ignored?

There were 7 respondents that I named on the smart form Application, from 2017, and in addition, I named the hospital, which then got put at the top of the list of respondents by the “smart form” but was not the way I meant it. Later, I tried to have the name of an 8th individual respondent added, but my Form 10 was ignored. I tried to get clerical errors corrected, but it was impossible. 

I presented a great deal of evidence about the problem of the doctor implying I had low blood pressure when he alluded to it during the appointment, on speaking about my symptoms. No he didn’t say I had it. He said a lot of people have low blood pressure on getting up quickly. But I knew I didn’t. 

At this point, if I haven’t already done so, I would like to make clear that this was not a medical decision he made about me. He could have taken my blood pressure but didn’t. He could have referred to my file, or chart, but didn’t. He just said it because he hoped I would believe him, that my symptoms were due to low blood pressure – becasue he’s the doctor and I’m just the old woman patient. He didn’t bother responding to my allegations, nor did Mr B require him to. None of the other 7 or 8 respondents had to answer to my allegations either! The audio tape recording makes clear what Dr A was saying to me about “some people” and “low blood pressure”. He meant me!

I stated this in my Request for Reconsideration and I will say it again now. I submitted it on these grounds, Rule 26.5(c) that I have new facts and evidence, about my non-existent low blood pressure and the Decision is out of line with established jurisprudence by allowing Mr H to remain as counsel for the respondents for the Decision of March 5/19 even though my Form 10 about conflict of interest had not been addressed. As the rules say, leaving out the middle one, 

Rule 26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:


p. 33
a.there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or 
b. -
c.c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; 

The main incident I made the application to the HRTO about, on November 6, 2017, occurred at an appointment I had with the ENT specialist, Otolaryngologist Dr A at his clinic a year earlier. I included minor incidents that happened before that also, as I came to see they were part of a wider problem – systemic discrimination. See p 34. 

I was first judged on some unknown factor, delivered to me in a Notice of Intent to Dismiss (NOID) except that in the situation, where my application had been received but not formally accepted, the only basis on which I could be judged as not being within the jurisdiction of the HRTO would have been that it was not a provincial matter. But it was obviously a provincial matter and yet I never received direct acknowledgment that my case is under the jursidiction of the the Human Rights Commission and Tribunals. 

Confusing for anybody trying to follow it, first one adjudicator, Mr M, and then Mr B (he, without acknowledging that the NOID was settled as irrelevant), continued to deal with my case while skipping steps, giving no clear direction. One has to read what they wrote to realize they did not read what I wrote as far as evidence and being treated differently, and did not make clear what they wanted from me. I am not educated in the law. And what happened to me was based more on circumstantial evidence that I do have evidence for. See the recordings listed at the end of this document, available on the website.

 Mr B’s way of looking at this case did not involve using circumstantial evidence, or acknowledging that discrimination on the grounds of age was systemic. See Systemic Discrimination on p 34. 

The respondents were never required to respond to my allegations, not those in the original application nor to my response to adjudicator Mr M’s Dase Assessment direction. In the meantime no one was responding to most if not all of my requests for clerical corrections, for Orders in Form 10, nor to my request that an additional respondent – Mr H - manager of Privacy Office, LHSC, also a member of the legal team for LHSC, be added to the list of respondents and have an incident of conflict of interest added to the allegations. Practically none of these were dealt with in a proper manner.  


p. 34
Systemic Discrimination

I am repeating myself, but only because Mr B - and/or Mr M – have yet to acknowledge this.
This is Section 13 from the Jan 29, 2018 response to Mr M’s Case Assessment Direction to me on January 9/10, 2018. 

13. Systemic discrimination LHSC.  
I allege that I have been subjected to systemic or organizational discrimination on the grounds of age and sex, and marital status and family status, while an outpatient of Dr A’s ENT Clinic LHSC, in 2016, and from representatives from Patient Experience, Patient Relations and FIPPA LHSC.

I came to recognize similarities in the ways I was being discriminated against – treated differently than other patients, during the situation that occurred at the November 8, 2016 appointment at Dr A’s ENT Cllinic. It seemed excessive that so many individuals could be against me, making up accusations of various forms of rudeness, unless it was viewed as part of the culture of LHSC that they were concerned was at risk, not just one doctor’s act of discrimination.  

I could see being used on me ways of controlling or excluding unwanted patients, making life unpleasant so the patient won’t want to return, on the grounds of age and sex (older women) and marital status and family status, and possibly other additional grounds. Control can be exerted, or the environment made unbearable through employing methods of attacking such women’s credibility, emotional wellbeing, and reputation, affecting her ability to obtain health care in the future. This is what happened to me. And the people involved seemed to slip into their roles, to try to undermine me, to keep me in line, even starting with Ms B outside the Otolaryngology Department, accusing me of hanging up on Ms J, a theme that would appear over and over again, as though they had had a great deal of practice, unless such word association games came naturally to them. I allege that the use of a pattern of behaviours and practices (see excerpt below on Systemic Discrimination, OHRC) to try to keep me under their control was part of a more widespread effort by LHSC to defend the preferred cultural attitudes, practices and policies of their organization. In fact, I noted in the Remedies section of the Application of November 6, 2017, flaws in their system that served to benefit staff over vulnerable patients: 

Systemic discrimination can overlap with other kinds of discrimination, such as harassment, and may arise from stereotypes and biases. The definition of systemic discrimination used by the Commission includes the following three elements:

patterns of behaviour, policies or practices

part of the social or administrative structures of an organization

position of relative disadvantage created for persons identified by the Code.
People can experience systemic discrimination differently based on the intersection of various grounds of discrimination, such as gender, disability, place of origin, and so on. In the example above, a racialized or single woman with a disability would be at a triple disadvantage.
The following three considerations can be used to identify and address systemic discrimination:

numerical data

policies, practices and decision-making processes

organizational culture.
( f. Systemic discrimination,Human Rights at Work. Part III OHRC Principles and Concepts. What is Discrimination. http://www.ohrc.on.ca/en/iii-principles-and-concepts/2-what-discrimination ).


p. 35
Over and over again, I had some version of an accusation of rudeness used against me – the terms “negative behavior,” “negative statements,” “quite rude,” “quite upset,” or “shouting” are general enough to mean whatever the person making them wants to have understood about the person they are accusing. Without an accurate description of what is meant by the term, the patient has no way of dealing with it. There is no need for the ones saying it to explain what exactly the patient said or what made the statements “negative” or the behaviour “negative”. In what way was the patient “quite rude”? No explanations needed. Anyone hearing about it, such as Dr A, will jump on it and use it - take it as truth – to defend his practices.  

These terms have been used against me in some way or other (as forms of rudeness) as a part of the differential treatment I was subjected to by Dr A and presumably staff from the ENT clinic and Patient Experience and Patient Relations. As a means of changing the subject, trying to stop awkward or unwanted questions from being asked, or to discourage certain groups in society from trying to access what are understood to be scarce resources, these terms can be used to silence and to exclude, and possibly, with the intention of destroying their victim’s reputation. 

On the immediate level, when it occurred in 2016, I questioned whether it had happened to me, presumably starting in the waiting room of the ENT Clinic, LHSC, on November 8, 2016, because I was thought to be acting out of line based on my perceived status in society, that of an older woman whose worth in society is over, without family or spouse present. Since then, these terms related to the idea of rudeness have been used against me at LHSC by Ms RJ, Ms J, Ms B, Ms L, Dr A and Mr H. I allege that they were used to silence me, to try to push me out, to stop me from asking questions, and to ruin not only my reputation but my chances of getting decent healthcare locally in the future.

The accusations have been made to me and/or about me through emails, in a doctor’s reports, and on the telephone. The last incident, which I recorded, was a conversation on the telephone, in which Mr H, manager of FIPPA LHSC, told me 4 times during the 35 minute conversation that I was shouting. When people do that it is annnoying, when one isn’t shouting, but trying to be heard by speaking the truth or asking difficult questions. And I have heard enough accusations like that now to realize what he was trying to accomplish was to irritate me, to attempt to provoke me, and/or to shut me up – to get me to maintain silence as he believed I should, being someone outside his culture, and the way to do that is to make accusations – the same kind of accusations such people make without having to think about it – some aspect of rudeness managed the situation quite well – no evidence or details required to be believed, rather, a cultural approach to self-protection of the LHSC ‘family’. The more these incidents happen, the more wearing it is for me, affecting my emotional well-being, but more than that, they are attacks on my credibility, and my reputation, affecting my ability to obtain health care elsewhere. 
Mr H, Dr A, Ms J, Ms L and Ms RJ treated me in a manner similar to the way children are treated, or persons not seen as having the rights of adulthood - told to keep quiet and not be too loud as that is rude – and not to ask questions. Older people, particularly older women, would be more likely to be treated this way, as children, just as women historically used to treated in this way due to not being equal to men.  

p. 36
Looking specifically at systemic age discrimination in health care is this relevant information from an OHRC fact sheet:

Under the Ontario Human Rights Code, older persons have the right to be free from discrimination in health care. This right applies to health care services and facilities including hospitals, clinics, community care access centres, long-term care facilities, home care and health care programs.
Attitudes in the health care system can impact on the level or quality of service available to older persons. Unfortunately, older adults may unfairly be seen as a drain on health care services or too time consuming and difficult to serve. There may be a tendency for the medical system to normalize health concerns of older persons, i.e. assume a health problem is normal for a person of that age and therefore not worth treating in the same way as it would be treated if the person were younger.
Older persons have a right to the same level and quality of health care services as everyone else and negative attitudes toward older persons and misconceptions about aging should not stand in the way (Systemic discrimination. Age discrimination and healthcare (fact sheet) http://www.ohrc.on.ca/en/age-discrimination-and-healthcare-fact-sheet ).

I would also include gender-based harassment, for instance by Ms L, as being part of systematic discrimination. See What is gender-based harassment?, focusing on “It is often used to get people to follow traditional sex stereotypes (dominant males, subservient females). It is also used as a bullying tactic, often between members of the same sex”:

Gender-based harassment is “any behaviour that polices and reinforces traditional heterosexual gender norms” (Elizabeth J. Meyer, “Gendered Harassment in Secondary Schools: Understanding Teachers’ (Non) Interventions,” Gender and Education, Vol. 20, No. 6, November 2008, 555 at 555). It is often used to get people to follow traditional sex stereotypes (dominant males, subservient females). It is also used as a bullying tactic, often between members of the same sex. . . .
Unlike some other forms of sexual harassment, gender-based harassment is not generally motivated by sexual interest or intent. It is more often based on hostility and is often an attempt to make the target feel unwelcome in their environment (What is gender-based harassment? Policy on preventing sexual and gender-based harassment. http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment-0 ).

Following on from that, several examples of sexual and gender-based harassment are listed, among them, “making comments or treating someone badly because they don’t conform with sex-role stereotypes” p.( p10, 11/33. Examples of sexual and gender-based harassment. Policy on preventing sexual and gender-based harassment. http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment-0 ).

I see also that the topic of subtle discrimination is relevant here, in considering systemic discrimination. For me, it started in 2015, when the diagnosis of my ear pain was led off in the wrong direction, and continued in 2016, when th diagnostic treatment that was ordered for me would have been ineffective on its own, in ensuring a reasonably accurate diagnosis. See:

Subtle discrimination:

Subtle forms of discrimination can often only be detected after looking at all of the circumstances. Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture, may lead us to think that discrimination based on a ground in the Code was a factor in how the person was treated.

It can be hard to determine if subtle discrimination is a factor in such situations. You may need to investigate and analyze the total context of the alleged behaviour, comment or conduct. This would include thinking about evidence that compares how others were treated in a


p. 37
 similar situation, or evidence that a pattern of behaviour exists. Discrimination based on a Code ground may be found even if there were other legitimate reasons for decision or treatment, as long as it was one of the factors (Subtle discrimination. What is Discrimination. OHRC. http://www.ohrc.on.ca/en/iii-principles-and-concepts/2-what-discrimination ).

For this also, refer to the Inquiry I have requested, on Form 12. See attachment (2018 Jan 29 VNG Inquiry form 12).

Some of the following material, from the OHRC policy on harassment and the poisoned environment, also applies to what I have stated about systemic discrimination within LHSC: 

The Code prohibits harassment on the basis of age. Harassment means a course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome. The phrase “ought to have known” introduces an objective element to the test. In addition, the Code prohibits creation of a poisoned environment. A poisoned environment is a form of discrimination and can arise from even a single incident. It may be created by the comments or actions of any person, regardless of his or her status. The comments or conduct do not have to be directed at a particular individual. Ongoing jokes and comments or derogatory statements made about older persons in a workplace or service setting may constitute harassment or create a “poisoned environment” for older persons by making them feel uncomfortable, threatened or unwelcome. p.24/33.

Even though comments and conduct on the basis of age may be perceived by some to be less offensive than if based on other Code grounds, there may be situations where it has the same negative effect on the recipient. It is important to remember that for harassment to occur, behaviour must be known or ought reasonably to be known to be unwelcome, but that this determination will be made based on the perspective of “reasonable person” which includes the perspective of the person who is being harassed. (p.27/33. Policy on discrimination against older people because of age. http://www.ohrc.on.ca/sites/default/files/attachments/Policy_on_discrimination_against_older_people_because_of_age.pdf 


Systemic Discrimination Section: by Susan McPherson. Submitted Jan 29, 2018 
HRTO file 2017-30245-I McPherson v Dr A et al  

Forms Attached - not attached here  
2018 Jan 5 Form 10 Mr H 
2018 Jan 29 VNG Inquiry Form 12
Supporting Documents attached - from List of Documents in Application: not attached here
USB mp3 recording mp3 2016 Nov8 Dr A 6min – to be mailed
2016 Nov8 Dr A 2016 Nov30 report – 1st report on appointment
2016Nov8 Dr A 2017Feb1-1 – 2nd report on appointment p1
2016Nov8 Dr A 2017Feb1-2 – 2nd report on appointment p2
2016 Nov 9 VNG Appt - date of VNG test Dec 12, 2016
2016 Nov 9 re VNG Instr – Instructions for VNG clinic patients
2016 Nov 21 VNG instr – additional page of Instructions for VNG patient
2016 Nov24 to Ms B Videonystagmography
USB mp3 recording 2016 Nov 25 Ms L-2 excerpt - to be mailed 
2016 Nov 28 am Ms L
2016 Nov 28 am S McPherson
2016 Nov 28 pm Ms L
2017 November 14 Mr H mp3 recording, a year after – to be mailed
Susan McPherson Jan 29, 2018 2017-30245-I McPherson v Dr A et al  


p. 38​
List of Items in Response to CAD/NOID not these 
1. p.2 November 8, 2016. ENT clinic appointment, Dr Al 
2. p.5 November 24, 2016. Dr A and Ms J. Cancelling appointment
3. p.7 November 28, 2016. LHSC email system, Dr A. 
4. p.9 February 1, 2017. Ms RJ. Front desk.
5. p.12 February 1, 2017. Dr A’s Feb Report on Nov 8, 2016 appt.  
6. p.15 November 30, 2016. Dr A’s Nov report on Nov 8, 2016 appt 
7. p.17 November 24 - 28, 2016. Ms L, Patient Relations, LHSC. 
8. p.19 November 23 & 24, 2016. Ms B, Patient Experience. 
9. p.21 November 8, 2016. Waiting room, ENT clinic, LHSC. Having to wait. 
10. p.24 August 21, 2017. LHSC. Dr P’s letter. 
11. p.26 June 1, 2015. Dr G and Dr Ag. ENT Clinic, LHSC.
12. p.29 November 14, 2014. Mr H, FIPPA, LHSC. Phone conversation.
13. p.33 Systemic discrimination LHSC
________________________________________________________________________









p. 39​
Attachments submitted Sept 4, 2020 to the HRC and HRLSC 
revised and resubmitted Sept 15, 2020

2020 Sept 4 2017-30245 t HRC et al today’s letter to Human Rights Legal Centre and 
  to the Human Rights Commission et al

Attachments with a star may were not sent previously, or not got listed. Sorry for inconvenience.

2020 Sept 15 new 2017-30245 t HRC et al - new document with changes to list of attachments 
  only, sent to HRLSCO and HRTO et al
2017 Nov 10 confirm-1 - HRTO info about application received & NOID possibility 
2017 Nov 10 confirm-2 same
2018 Jan 2 Form 10 – clerical and other errors
* 2018 Jan 5 Form 10 Mr H Request that Mr H be added to list of respondents
2018 Jan 9 CAD Mr M - Mr M’s CAD to me
2018 Jan 29 CAD NOID Response my response to Mr M  
2018 Jan 29 VNG Inquiry form 12 - details of my request for the study on Dr A 
2018 Feb 8 Form 10 respondent - to request Dr A’s name be first, as main respondent
2018 May 16 CAD Mr B Mr B’s CAD to me 
2018 May 29 Mr H to HRTO - informing HRTO of his being legal counsel  
2018 June 22 Mr B complaint SJTO submitted by me to SJTO
2018 June 29 fr Ms R HRTO re the Complaint against Me B
2018 July 3 Form 10 Ms R to revoke Ms R’s Decision of June 29  
* 2018 July 12 f Ms R treating my Form 10 as a followup and not as a request
2018 Aug 24 to Registrar re Mr H outlining my concerns again
* 2019 Mar 28 SJT0 20 Request Recon McPherson - Form 20 March 28, 2019 
2020 July 7 2017-30245-I Recon Decision Mr B Decision on my Reconsideration Request

* Discrimination medical decision medical decision based on personal characteristics
* SJTO Code of Conduct  
* SJTO Conflict of Interest Rules re Ms R

Audio Recordings: Dr A, LHSC clinic appointment. 
  Mr H, speaking as Manager of FIPPA at LHSC 
  (also as legal counsel for LHSC)
  Go to Evidence  
  http://samcpherson.homestead.com/Evidence.html



Susan McPherson 2020 File 2017-30245-I McPherson v Dr A

p. 1
HRTO File 2017-30245-I (Application Nov 6, 2017) by Susan McPherson 
Respondents: Dr A, Ms J, Ms B, Ms L, RJ, Mr G, Dr P, Mr H, and LHSC (London Health Sciences Centre). 
[The names of the respondents and others in this document, originally sent with identifying names, have been withheld.]

To: Human Rights Legal Support Centre legal@ohrc.on.ca

Human Rights Commission info@ohrc.on.ca

HRTO Email: hrto.registrar@ontario.ca (including Mr B and Ms R)

Lerners LLP c/o Ms SM  

London Health Sciences Centre c/o Ms SN  

Mr M, HRTO  

Mr H LHSC

From: Susan McPherson s.a.mcpherson@sympatico.ca 

Sent through letter-by email in attachment (intended to be read in that manner, due to links).
Date: Sept 4, 2020

Subject: 
1. Request for intervention by HRC in the attempt by HRTO to dismiss my Application completely and its cover up of errors and omissions made by HRTO adjudicators adjudicators Mr M, Mr B, and of Ms R in her capacity in SJTO Complaints Dept, HRTO. 

2. Overall, seeking a resolution of the attempt to cover up what was a relatively minor incident of discrimination on the grounds of age and sex, by Dr A, exacerbated through family and marital status (meaning I had no support present usually), while seeing it turn into something so over-the-top that the Human Rights Tribunal would not be able to deal with it effectively and would keep blaming me when they couldn’t see the evidence or my requests for witnesses, evidence, and an additional respondent by the name of Mr H. 

3. Remedy – see p 5


p. 2
Often, case law can be applied to different 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 is not one of them (Susan McPherson. Refer to Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044 (CanLII), < http://canlii.ca/t/g83vb > , retrieved on 2018-11-05.

Contents
p. 2 Introduction
5 Remedy  
5 Manager/counsel, adding new respondent Mr H, Conflict of Interest; adjudicator Mr M 
9 More about Mr H
14 Background information: Dr S
16 The Medical (Clinical) Decision
17 Request for Reconsideration, March 28, 2019
19 Cultural and Historical differences 
20 Values of SJTO members and staff
21 Mr B: his CADs and Decisions, and my responses
25 Age vs Disability. Mr B
25 The Moshi Case
26 Form 12 VNG Inquiry into stats on Dr A
30 Pointing to Evidence (re Mr B)
34 Systemic Discrimination
39 Attachments

Introduction  

I am requesting that the Human Rights Legal Support Centre take whatever steps are necessary to move forward with this. 

I am requesting that the Human Rights Commission intervene, to set into motion whatever is required to set this case back on track, and then to file an Application to take the original case to Divisional Court. 

I am also sending this document to HRTO (since it is not possible to get through to anyone at SJTO) so they will be aware of what is going on there.

I am requesting an intervention, possibly under Sect 37 of the Ontario Statutes, as follows:

Intervention by Commission

37. (1) The Commission may intervene in an application under section 34 on such terms as the Tribunal may determine having regard to the role and mandate of the Commission under this Act (<https://www.ontario.ca/laws/statute/90h19#BK46>).


p. 3
I can’t see that the Tribunal would agree to having its own bad behaviour investigated, but perhaps it could happen. However, part of the problem I am dealing with is about the adjudicator of my HRTO case, Mr B, and also Ms R who responded to my SJTO Complaint against Mr B but scarcely dealt with it (more on that below, but she did tell me to wait until the final decision was made, and it was, on July 7, 2020, through the Decision made on my Request for Reconsideration).  

Until this situation with the members is dealt with, I don’t know how it is possible to have the Human Rights Commission intervene in the Application I made against the respondents. A second Decision on my Request for Reconsideration is a possibility, but not by Mr B, who has ignored most of what I have stated, including several mentions, again, of Mr H, about conflict of interest and refusing to grant me securely-gained emails, which would have been part of the evidence Mr B required. What did happen, at some point, was that Mr H of LHSC, was not actively working at either of his two conflicting jobs at LHSC. Although I have read in the information put out by HRTO and/or the Commission, that Applicants are not doing what they do mainly for themselves, the fact is, if these situations of discrimination that I have experienced are not addressed, it is not only me who people will blame and we have only the integrity of the LHSC to ensure it doesn’t happen again. Thus, I am making this request of the Human Rights Commission. I do not accept the blame, and yes, I wish to see a Remedy put in place. 

At this late stage, it may be too late for the Human Right Commission to intervene under section 34. (1) , but there is also the second part of Section 37, as follows:

Intervention as a party

37. (2) The Commission may intervene as a party to an application under section 34 if the person or organization who made the application consents to the intervention as a party (<https://www.ontario.ca/laws/statute/90h19#BK46>).

I will agree to consent to allowing the HRC to intervene, if the matter of Mr H is pursued, and the inadequacy of Mr B as adjudicator for this case is recognized and dealt with, Ms R is disciplined, and if the matter then proceeds to deal with the case itself, that I made the Application about, to the Human Rights Tribunal of Ontario. 

The intervention on the basis of pursuing the same path as I have taken, might be past the due-by date, but because I hadn’t realized that the adjudicators and staff at HRTO would take every opportunity to block my Application (submitted Nov 6, 2017). I didn’t realize that it would end up here, with adjudicator Ms R having also blocked me – in my attempt to lay a Complaint against Vice-Chair HRTO Mr B with the Social Justice Tribunal. She assured me she would deal with my Complaint - or the remainder of it that she ignored completely, I’m not sure – after the final decision was made. See attachment 2018 June 22 Mr B Complaint SJTO. (Attachments not included here).

What Ms R wrote was, 

 In this case, to preserve the fairness and impartiality of the proceeding, I will postpone dealing with this complaint until the final decision in your case has been issued. If you wish to pursue your complaint at that time, please write to me then (Ms R, Acting Associate Chair, HRTO, June 29, 2018) . See attachment 2018 June 29 fr Ms R HRTO. 


p. 4
Her attitude in other emails reflects a problem with being able to address her job objectively. See SJTO Conflict Rules and in particlar Item 32, which I allege applies to Ms R, being about Prior Involvement. <http://www.sjto.gov.on.ca/documents/sjto/Conflict%20of%20Interest%20Rules.html>.  

This case has reached its final decision, by Mr B, in his July 7, 2020, which was his Reconsideration Decision, following my Reconsideration Request on March 28, 2019. This is as far as I can take this matter alone, though it is by far not yet resolved. My health is not good enough to continue, and I do not have a family doctor. See 2020 July 7 2017-30245 Recon Decision.

I did write, in a letter-by-email to Ms R, SJTO, and to HRTO, and to her secretary, on Aug 12, 2020, and a reminder (to different email addresses she has advertised online) on Aug 18 but did not hear back. This case has reached a final decision with the HRTO – and Ms R wrote that if I still wanted to lay a Complaint to contact her. She hasn’t responded. 

I am asking the Human Rights Commission to intervene on my behalf, either as a party to the Application I submitted originally, or with their own, under Item 37 of the Statutes, either (1) or (2), or to solve this matter, using its powers <https://www.ontario.ca/laws/statute/s06030>. If the Human Rights Commission can see their way forward to do this, then when the problems with the adjudicators (Mr M and the two previously mentioned – Mr B and Ms R) are sorted out, might it be possible for them to take the case to Divisional Court (Rule 37):

STATED CASE TO DIVISIONAL COURT
27.1
Where the Tribunal has made a final decision or order in a proceeding in which the Commission was a party or intervenor, the Commission may, under s. 45.6 of the Code, apply to the Tribunal to have the Tribunal state a case to the Divisional Court.
“Commission” means the Ontario Human Rights Commission (Rule 1.4)  http://www.sjto.gov.on.ca/documents/hrto/Practice%20Directions/HRTO%20Rules%20of%20Procedure.html 

See Functions of the Commission, (item 29) including:

(a)  to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;

and
(e)  to initiate reviews and inquiries into incidents of tension or conflict, or conditions that lead or may lead to incidents of tension or conflict, in a community, institution, industry or sector of the economy, and to make recommendations, and encourage and co-ordinate plans, programs and activities, to reduce or prevent such incidents or sources of tension or conflict (Item 29, Functions of Commission <https://www.ontario.ca/laws/statute/90h19#BK33>).

In this case, the source of the conflict is the HRTO administration and members thereof, which have to be dealt with before, or possibly at the same time as, dealing with the various errors, omissions and distortions of justice made in the process of dealing with my Complaint I made against Dr A his team, other involved parties, and LHSC. 


p. 5
Thus, I would ask the Commission to make an application, as follows (under section 35 in the Statutes): 
Application by Commission
35 (1) The Commission may apply to the Tribunal for an order under section 45.3 if the Commission is of the opinion that,
(a) it is in the public interest to make an application; and
(b) an order under section 45.3 could provide an appropriate remedy. 2006, c. 30, s. 5.  (<https://www.ontario.ca/laws/statute/90h19#BK46>).

I would appreciate having HRC take this matter farther. I believe it is in the interests of the public to consider ageism and potentially discriminatory practices against older people, especially against older women, since it is women who are often seen as being of little use as they grow older (compared to older men or young women).


Remedy

A suitable Remedy would also be appreciated, including
1. acknowledgment of the unfair practices of Mr H (manager of FIPPA and legal counsel for all the respondents except Dr A, even for the March 5, 2019 Decision of the Summary Hearing)
2. changes to policies ineffectual in preventing personal opinions of adjudicators to get in the way of seeing justice done,
3. financial compensation for the injury to my dignity and reputation, and for not being able to live free of discrimination. 
4. Further consideration of the study referred to on pages 25-26, specifically about Mr B not giving reasons why it couldn’t be done, considering it would be the main piece of evidence that would bring him satisfaction.
5. securely-gained copies of the emails that were about this situation with Dr A and his staff attempting to distort my involvement, beginning November 2016.  
6. I am requesting also of the Commission that the Complaint I made on June 22, 2018 to SJTO about Vice Chair Mr B be investigated, in its entirety, under section 45.3. Only when this Complaint is addressed can my Application to the HRTO be dealt with properly – and as fairly as possible to all.  


Manager/counsel, adding new respondent Mr H, Conflict of Interest; adjudicator Mr M 

Unless my concerns with the adjudicators and staff of HRTO are addressed, it is unlikely that the issue of conflict of interest and my not being allowed access to securely-gained emails by Mr H, LHSC, will be dealt with.


p. 6 

After sending in a Form 10 and an audio recording (re Mr H) on January 5, 2018, a month after I submitted the Application to HRTO, and the audio recording of our telephone conversation, to all respondents, nothing happened. I had sent the Form 10 H to all the respondents in 2018, and to Ms SB, as the hospital contact until my case was formally accepted and legal counsel appointed. 

Mr M was the first adjudicator assigned to respond to my case, not counting the adjudicator or other employee who sent me a NOID (Notice of Intent to Dismiss) on Dec 11, 2017. Mr M did not respond to my Form 10 Mr H. Perhaps he did not get it, or was not given it. Perhaps it was not filed. I sent a Form 23, as required, to the HRTO, and respondents, and Ms SB, contact person for LHSC. See official letter signed by Georgios Fthenos, attachments 2017 Nov 10 confirm-1 and 2, explaining about the Notice of Intent to Dismiss. [Georgios Fthenos was and still is, as far as I know, the Registrar of the HRTO].

In fact, I was never informed as to whether my Application had been accepted, or which if any of my Forms 10, or 12, or other forms had been received and were under consideration. I never even knew who wrote the NOID. They just kept me in the dark. And the respondents did nothing. They did not have to respond. Going against the Code of Conduct, as Mr B did, didn’t help the situation, as he did not try to treat me fairly, and didn’t even do his job as he would have been expected to. See more below, on p 20, about the Code of Conduct, and Values of the SJTO. 

I had sent another Form 10 to the respondents on January 2, 2018, 3 days before I sent the Jan 5 Form 10 Mr H. I submitted this one to the HRTO and the respondents, inquiring about the clerical errors that were mounting up and other problems due to no one actually considering the case at hand. Mr H, in his job as legal counsel, emailed me on Jan 3, signing as legal counsel for LHSC employees, regarding a different matter. As far as I was concerned, he ought not have been legal counsel for LHSC and manager of FIPPA at the same time, and because I had been trying to have him named as additional respondent, he ought not have been involved in this case at all, as legal counsel. 

The difficulty in having to submit an Application within one year of the last incident of discrimination was that I didn’t know if the incidents involving the staff would be considered to be discrimination, so I had to apply within a year of Dr A’s incident towards me of discrimination at the appointment in 2016, as well as the two derogatory reports of the appointment, which were untrue. As well, I was given only limited time restrictions on when to submit responses, such as 2 weeks, or 23 days, or 30 days. I am explaining because I was always rushed, and behind. However, I did submit another Form 10 Amendment by mail, including a request for two witnesses to be called (patients of Dr A’s) on Feb 1, 2018. 

On Jan 9/10, 2018, Mr M, the original adjudicator, sent me a CAD (Case Assessment Direction). On Jan 29, 2018, I responded to it, as required, together with a Form 10 about two witnesses I wished to have contacted, plus a Form 12 about an inquiry into stats about Dr A as evidence, but not the Form 10 about Mr H. He should already have received that Form 10 Mr H, I thought, because I had already sent it out, on Jan 5, 2018. See 2018 Jan 29 CAD NOID Response for my response to Mr M. See 2018 Jan 9 CAD Mr M for his Case Assessment Direction.

p. 7
I sent a Feb 1, 2018 package only to the HRTO, and was never informed whether it was filed with the HRTO or thrown out. But I still had not received notice about the NOID, and where my Application stood, and still had not received responses to my allegations from the respondents. So I didn’t know what was happening. 

I did not hear back from Mr M about my response to his CAD (Case Assessment Direction) or anything else. 

On Feb 8, 2018, I submitted a Form to the respondents and the HRTO. I named Mr H as one of the respondents in the heading, with a question mark after it, as I was not sure whether my request form for an order, submitted on Jan 5, had been dealt with. I submitted a “Form 10 respondent” to HRTO and the respondents, requesting amendments be made as the hospital had been named as the main respondent, instead of Dr A, in the Jan 9/10 CAD that I had received from Mr M. I sent the email to the respondents and to HRTO to SK, one of the admin staff. I did not hear back. See attachment 2018 Feb 8 Form 10 respondent.

On March 14, 2018, I wrote a letter to Mr M and Georgios Fthenos (Registrar) at HRTO, asking about the status of my application. I included the previous “Form 10 respondent” of Feb 1, and included the Form 10 Mr H from January 5. It was received by HRTO on Feb 16. I never did receive a response to my concerns. When one’s Application has not been formally accepted, one simply doesn’t know what is going on. Not having any responses from respondents about my allegations, and not even receiving an official letter about how they can best be contacted, I was left completely without knowing. If my Application had been accepted, I assume each one of them would have received a copy of my Application. Why is it that information only flows one way? They obviously knew of my allegations, at some point, at least by the time of the Summary Hearing, but I was rarely told anything. 

I didn’t hear back from Mr M after sending my response to his CAD to the HRTO. Instead, I received a Case Assessment Direction from a Mr B, two months later, dated May 16, 2018. In Item [3] he acknowledged that I had requested an additional respondent be added, and other information, stating,

[3] The applicant has since filed additional materials, including documents attempting to clarify the nature of her allegations, requests to amend her Application and to add an additional respondent, and a Request for a Tribunal-ordered inquiry. She clarified that the primary allegations are against one of the individual respondents, Dr. A, as set out in paragraphs 4-1 to 4-19 of Section 8 of her Application (Mr B, CAD May 16, 2018). 

Despite reviewing these, he apparently saw no worth in them, writing this:
[4] After having reviewed the materials filed, I direct that the Tribunal hold a summary hearing in this matter. The summary hearing will decide whether the Tribunal should dismiss all or part of the Application because there is no reasonable prospect that the Application will succeed (Mr B, CAD May 16, 2018) . 

In Item [7] Mr B says that the Tribunal would make its decision on the Summary Hearing based on materials already filed and on submissions by both parties at the Teleconference. In Item [8] he warns that the Summary Hearing was to be about determining the likelihood of my Application succeeding. See 2018 May 16 CAD Mr B.  

p. 8
In Item [10] Mr B says it is not clear what evidence the Applicant would present, no longer referring to the request for witnesses, or the Form 12 to have stats on Dr Al’s tendencies to short change older women when it comes to quality of tests available. Nor did he mention the audio recordings of Dr A implying it was low blood pressure causing those symptoms, or on the “offer” he made, that he could let me have one test, then describing the caloric test, which would prove nothing. 

Even back then, Mr B was ignoring the evidence I sent him or the HRTO – and to the other parties. I allege that adjudicator Mr B did not follow the laws on conflict of interest when he ignored documents for my Application in his Decisions and Case Assessment Direction, and ignored evidence I submitted. See 58 (1) Every public servant and every former public servant who works or, immediately before ceasing to be a public servant, worked in a public body shall comply with the conflict of interest rules that apply to him or her (Public Service of Ontario Act, 2006, S.O. 2006, CHAPTER 35, Schedule A. HTTPS://WWW.ONTARIO.CA/LAWS/STATUTE/06P35 )

The fact that Mr H, manager of FIPPA (about whom I also had a recording, of the phone conversation) would not permit me to have securely-gained emails from Computer IT at LHSC, of conversations between the doctor and his staff (and the social worker at Patient Relations) about me when they invented behaviour about me that was not true, were not mentioned, nor were the copies of emails I had and conversations with his staff. Nothing I had given to him already was referred to by him, except in passing, in the comment in Item [3] of his CAD, dated May 16, 2018. 

Mr B states in Item [10] of the CAD that he wants me to explain verbally, at a Summary Hearing on the telephone, complex ideas that I had already written about. If I tried to explain to someone verbally all that is in this Request I am writing now, I wouldn’t be able to – and Mr B knew that. He speaks at a Teleconference and makes mistakes, but it doesn’t matter, because he has the power. He has said nothing to demonstrate that Mr H should not be a respondent, that what he did wasn’t a conflict of interest, nothing about the study I proposed. Why was he even assigned to adjudicate this case, if he was unfamiliar with age discrimination, or being female and old in this country I don’t know! I laid a Complaint against him with the SJTO to do something about him and they simply sent my Complaint to one of his fellow adjudicators – Ms R, who in turn did nothing!

It is stated on the Application Form:
In the space below, describe each event you believe was discriminatory. page 8
For each event, be sure to say:
· What happened
· Who was involved
· When it happened (day, month, year)
· Where it happened
Be as complete and accurate as possible. Be sure to give details of every incident of discrimination you want to raise in the hearing.

And that’s what I did. And the adjudicators complained that what I wrote was too much detail. 
What I wrote about Mr H for Mr M should have gotten into the hands of Mr B. I shall include separately here the last two of 13 sections that I wrote for Mr M, including the end of the Response to his CAD on January 9 and 10, 2018. The rest of the CAD Muir Response was an


p. 9
attempt to solve the problem of the NOID and do a better job of writing up the incidents. The Response was submitted by me on Jan 29, 2018, by attachment 2018 Jan 29 CAD NOID Response.

Two weeks later I received a copy of an email from Mr H informing HRTO and myself that he was corporate counsel with LHSC and would be representing some of the respondents. See 2018 May 29 Mr H to HRTO.

I allege that Mr H did not follow the laws on conflict of interest by involving himself with the LHSC Legal Dept and the FIPPA Privacy Office. See 58 (1)  Every public servant and every former public servant who works or, immediately before ceasing to be a public servant, worked in a public body shall comply with the conflict of interest rules that apply to him or her (Public Service of Ontario Act, 2006, S.O. 2006, CHAPTER 35, Schedule A. HTTPS://WWW.ONTARIO.CA/LAWS/STATUTE/06P35 )

I’m not sure how long a person should wait for a response from those at HRTO attending to this case but I did send a letter-by-email to the Registrar of HRTO once more, outlining again my concerns, but did not hear back. See 2018 Aug 24 to Registrar re Mr H.

Mr H is also mentioned in the Request for Reconsideration I submitted on the Form 20, in Items [55] and [61]. See attachment 2019 Mar 28 SJT0 20 Request Recon McPherson. Still, nothing in response. Whatever happened to him means nothing unless what the girls did, and what Dr A did, gets investigated so I no longer get blamed for their horrendous actions to try to shut me up. 

More about Mr H 

A few days after I submitted the HRTO application on Nov 6, 2017, due to the situation evolving I submitted a Form 10 requesting that Mr H be made an additional respondent regarding concerns of conflict of interest, as I had requested that the Privacy Office, or FIPPA, at the hospital, gain access to emails for me, between the Dr and his staff. I spoke to Mr H on November 14, 2017, about getting securely-gained emails, from the IT Dept, but he refused. He also made a snide remark that some people with power make, to ensure the one with less power knew their vulnerable situation. He accused me of shouting, which I wasn’t. He did it several times. If I hadn’t been recording him, his word would probably have been enough to get me in trouble. He must have known by that time of the trouble I got into while at the ENT Clinic the year before, through no fault of my own.  

Mr H was the manager of the FIPPA Dept. He was also legal counsel for the LHSC. He said something when we spoke, I think, about letting me know that so that I could be forewarned (as though I might decide not to request the emails, because his two jobs were in conflict with one another, and so that would make it MY decision whether to continue. His committment to the LHSC would have made it easy to decide how to continue with this. And Ms K M, his staff employee, would have Dr A’s team send her, not reconstructions of emails even, just pretend emails with no headings or anything, just words, like short narratives or tweets. And the farther on one went, the worse they got, because they knew that without the cooperation of the manager of FIPPA and the staff on my side, they were in control.  

At some point, Mr H was no longer in that job, as manager, I understand. And at the end, he was no longer involved as legal counsel for the LHSC for LHSC and the hospital’s employees. 


p. 10
Probably on leave, just waiting for the case to end. But he was saved from being made another respondent, through the Form 10 I sent on several occasions to the respondents and the LHSC being ignored. 

I would never have insisted that Mr H lose his jobs; that’s not up to me. But what I did want was acknowledgment that I had the right to request that an adjudicator name him as an additional respondent, for taking the actions he did that prevented me from accessing accurate emails and acting in two jobs with a conflict of interest. I have a right, now, to have those emails, that I was not allowed to have before. While there is still a risk that the IT people would side with them and alter the emails, one can only hope that at some point people would stop covering up for these people and allow the truth to be told. It’s unfortunate that the Dr sided with his staff when they started to get nasty with me. 

What I wanted then was to be able to discuss the situation with him, at the appointment his staff said I cancelled but which I didn’t. Two appointments were made for the same day. One was for a single test – the caloric test, he had told me – after which we – he and I, would meet for an appointment. But I had rather cancel the test, which his secretary encouraged me to do, and keep the appointment with him, so we could talk about this problem. But as soon as I cancelled the test, she called the Dr, presumably, and he - or she - cancelled the appointment for the same day as the test, because the appointment was to discuss the test that I had just had, was their excuse. Not being able to speak with the doctor can make things difficult. 

Early in the process, writing up the revised descriptions of the incidents for Mr M, the last incident was about Mr H - Item 12. The last in the set - Item 13, was about Systemic discrimination on the grounds of age (see page 33). They are in the Response to the CAD/NOID, from 2018. Mr H is mentioned in both, following my first attempt to have him named additional respondent in this case, on January 5, 2018. See Item 12 in attachment 2018 Jan 29 CAD NOID Response.

Following is Section 12, about Mr H, from the NOID CAD Mr M 2018. 
 See Section [13], Systemic discrimination, on p 34.  

January 29, 2018 Response to Notice of Intent to Dismiss (December 11, 2017) and Case Assessment Direction (January 9, 2018), by attachment (2018 Jan 29 CAD NOID Response)

Following is my response to the statement in the Case Assessment Direction (CAD) from adjudicator Mr M, January 9, 2018, who explained: “There did not appear to be any allegations of differential treatment of the applicant related to any grounds of discrimination cited. That is, there were no allegations that the applicant experienced differential treatment because of any of the grounds of discrimination cited in the Application” (2018 Jan 9, Mr M CAD). 

12. November 14, 2017. Mr H, FIPPA, LHSC. Phone conversation.
I allege I was discriminated against by Mr H on the grounds of age and sex, and marital status and family status, by the manner in which I was treated by him on the telephone on November 14, 2017, and his refusal to be helpful in a situation that warranted it.

Referring specifically to discrimination on the grounds of family and then also, age, is this excerpt from a piece on Discrimination in a Substantive Sense, that mentions stereotyping and/or viewing certain groups in society as being less worthy, of respect, consideration, etc.,

p. 11
 all of which is relevant to the allegations I have made against Mr H:

Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?” (Discrimination in a Substantive Sense. p 17. OHRC Policy and Guidelines on Discrimination because of Family Status. 2007. http://www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_discrimination_because_of_family_status.pdf .  
p8,9/33. Policy on discrimination against older people because of age. http://www.ohrc.on.ca/sites/default/files/attachments/Policy_on_discrimination_against_older_people_because_of_age.pdf ).

While on the phone with Mr H, manager of the LHSC branch of FIPPA (Freedom of Information and Protection of Privacy Act), on November 14, 2017, he used the same tactic as Dr A and his team of women, accusing me of being rude, in this case either to change the subject or try to silence me - to keep me quiet – or perhaps even to be able to place blame on me at a later date with a clear conscience. We spoke on the phone a year after the appointment I had with Dr A, for the reason of my attempt to have secure records, not informal ones, in the form of emails, collected from the respondents’ files. At four different times he said to me on the phone to stop shouting, but there was no good reason for him to be saying I was. I was not happy about the way the FIPPA office at LHSC was handling my request. But I wasn’t rude towards him. I wasn’t shouting. See USB flash drive mp3 audio recording (2017 Nov 14 mp3 Mr H). 

Without the recording I made of our phone conversation he could have claimed to anyone that he had had to tell me not to shout at him on the phone and he would be believed. I suspect that Mr H knew something about the problems I had with the ENT Clinic by the time we spoke, and wasn’t just talking to me on November 14, 2017, a year after the appointment with Dr A, as he would have to a patient interested in applying to FIPPA to gain access to routine health records. 

The FIPPA office at LHSC was more used to dealing with requests for information from individuals who needed health records for health plans or other insurance. When I talked to the office clerk the first time, by phone, she informed me that she would inform the people whose emails I had wanted copies of that she was going to access their files to obtain these emails, and then she was going to do that. Within a matter of days, that procedure had changed to her asking the people involved – some of the respondents in this case – if they could send her copies of their emails about me, for her to go through and send to me. Then she asked me for an extension of time, because Dr A would be away until November 20, 2017. I agreed, but noticed shortly after a change in the wording of her previous emails to me, saying she had “received” a part of the emails that she had “asked for” from one of the persons involved. The method of gaining access to the emails had changed. No longer was it going to be a secure process. When I emailed her, I discovered that she, too, had left town, as had Dr A, for a week, until November 20, 2017. That was when I called her manager, Mr H.


p. 12
I allege that a burden was imposed on me by Mr H refusing to provide the documents I requested from FIPPA from a secure data location instead of from the respondents, on the grounds of age, sex, marital status and family status. The question is asked, from the Policies on Family, and Policies on Aging,

Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity? (Family. Discrimination in a Substantive Sense. March 2007, p 17. OHRC Policy and Guidelines on Discrimination because of Family Status. http://www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_discrimination_because_of_family_status.pdf . 


I allege I was treated differently than other patients byMr H, on the grounds of age and sex, and marital and family status, by refusing to access the documents for me, and for contributing towards an insidious form of harasssment and contributing towards a poisoned environment and systemic discrimination at LHSC. See Item #13. Also see the following on the intersection of age with other grounds: 

The intersection of age with other grounds of discrimination 
The experience of age discrimination may differ based on other components of a person’s identity. For example, certain groups of older persons may experience unique barriers as a result of the intersection of age with gender, disability, sexual orientation, race, ethnicity, religion, culture and language. Please see Time for Action for a more detailed discussion of “age and intersectionality” and the particular barriers faced by certain groups. This understanding of the complexity of how people experience age discrimination means that, where appropriate to the circumstances of the alleged discrimination, all relevant grounds must be considered along with age. . . . 

It may be necessary to examine any stereotypes as well as the historical, social and political context associated with the particular combination of grounds. In some cases persons may be put at a ‘double disadvantage’ as a result of age combined with other grounds of discrimination. (p.7/33. 3. The intersection of age with other grounds of discrimination Policy on discrimination against older people because of age. http://www.ohrc.on.ca/sites/default/files/attachments/Policy_on_discrimination_against_older_people_because_of_age.pdf ).

On January 5, 2018, I submitted a Form 10 to the HRTO, requesting an order that Mr H, manager of FIPPA LHSC, be included in my Application as a respondent and that the mp3 audio recording of our telephone conversation be included as a document in the Documents List. I explained in the Form 10 that Mr H used the accusation of rudeness against me during our conversation, even though I hadn’t been rude. I think he may have been referring to my tone of voice, or words spoken, or manner of speaking as shouting, which it was not. I refer to it generally here as rudeness because shouting is a form of rudeness, and rudeness, probably in many variations, is used against people when someone wants to discredit them or blame them for behaviour that can get them discharged from a doctor’s practice, in effect damaging their reputation to the extent that other doctors will not want to take them on as patients. In this way, his actions and motives appear similar to Dr A’s and friends’. See attachment 2018 Jan 5 Form 10 Mr H.


p.13 
This perceived feature known by several names but which I shall refer to as rudeness might also be a feature of older persons, particularly women, who might no longer be speaking in a traditionally feminine manner. For instance, the OHRC discusses gender-based harrassment, as follows: 

Gender-based harassment is “any behaviour that polices and reinforces traditional heterosexual gender norms” (Elizabeth J. Meyer, “Gendered Harassment in Secondary Schools: Understanding Teachers’ (Non) Interventions,” Gender and Education, Vol. 20, No. 6, November 2008, 555 at 555). It is often used to get people to follow traditional sex stereotypes (dominant males, subservient females). It is also used as a bullying tactic, often between members of the same sex. 
 . . . 
Unlike some other forms of sexual harassment, gender-based harassment is not generally motivated by sexual interest or intent. It is more often based on hostility and is often an attempt to make the target feel unwelcome in their environment (What is gender-based harassment. Policy on preventing sexual and gender-based harassment (http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment-0 ).

Following on from that, several examples of sexual and gender-based harassment are listed, among them, “making comments or treating someone badly because they don’t conform with sex-role stereotypes” p.( p10, 11/33. Examples of sexual and gender-based harassment. Policy on preventing sexual and gender-based harassment.  http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment-0  ).

The accusations of rudeness in various forms, by Mr H and others from LHSC, which I believe were acts of discrimination on the grounds of age and sex due to one of stereotypes that exists about older women are alike in many ways. They are difficult to disprove, they are subjective, and they do lead to the person accused being seen as a nuisance and governed by emotions, the latter quality often being attributed to women. 

My request for secure data was not unreasonable, but what I found was that the person I was talking to was unreasonable. Mr H was reluctant to ensure that I was provided with secure documents from a database instead of copies forwarded to the LHSC FIPPA office from unreliable sources, and from there to me. The most likely reason for that was because he knew the purpose of the data. It was meant as evidence for this HRTO case. 

I allege that Mr H discriminated against me on the grounds of sex and age, and marital and family status, by implying in his conversation with me that I was rude, a term favoured by anyone wishing to discredit a particular group of people, such as older women, in part because they are more likely to be without a husband or family close by for support. Likewise, Dr A and four of his female supporters – Ms RJ, Ms B, Ms J and Ms L – discriminated against me in the same way, using the same method as Mr H, claiming I was rude when I had not been, treating me differently than they would have their other patients. It was this similarity that led me to thinking about this in terms of systemic discrimination. See Item #13. 

Older women may be viewed as overstepping the bounds of gender norms, and may at times undergo attempts from others to persuade them to conform to acceptable norms of gender and aging, possibly leading to a poisoned environment, in which the patient feels (and quite likely is) at risk of being accused no matter what she says or how quiet she is: 




p. 14​
“A poisoned environment” says the OHRC Policy and Guidelines on Discrimination because of Family Status, “is based on the nature of the comments or conduct and the impact of these on the individual, rather than on the number of times the behaviour occurs. A consequence of creating a poisoned environment is that certain individuals are subjected to terms and conditions of employment, tenancy, services, etc. that are quite different from those experienced by individuals who are not subjected to those comments or conduct” (p. 21/85, http://www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_discrimination_because_of_family_status.pdf ).
See Section [13] on p 34.


Background information: Dr LPS

These women are among those who form Dr A’s staff – from an inexperienced receptionist, and his secretary, to the Patient Relations social worker who participated in attempting to shut me up and get me to apologize, even though I had done nothing wrong. I had told his secretary on the phone, once, about the doctor who had referred me to Dr A, who treated me so badly, and who I had made an Application against to the HRTO a couple of years before.  

There was no one I could trust then, against that family doctor – Dr LPS - who had attempted to shut me up or perhaps destroy my reputation by accusing me of being a drug addict. I took that case to the CPSO, then the HRTO, but got nowhere, because he is allowed to do such things to patients he doesn’t approve of, because they are older, and female, and don’t toe the line. I didn’t know how to approach the case, having little evidence. The end of our association came because I questioned him about things I didn’t understand, and he got defensive and told me if I wished to continue being prescribed Tylenol 2 (with codeine) I would have to be tested every month. At the hearing, that never got mentioned, because I was unfamiliar with the process, and the adjudicator, and reluctantly agreed to a mediation process. So the Doctor came out of it looking good, and I came out of it appearing as though I was guilty of something – I don’t know what. 

On that last day as Dr LPS’s patient, April 28, 2014, I had given him a letter requesting a copy of the report he had received from an ENT Dr he had sent me to - at a hearing clinic. I resisted going there and getting my hearing checked because that was not the problem, and since it was a hearing clinic I was reluctant to start off on the wrong foot. So I didn’t have the hearing test, after asking the receptionist if that was okay not to. But when the report arrived, Dr LPS refused to show it to me, and so it was several months of asking before I presented him with a letter. The secretary then said, We don’t have it. A week later I got a copy of a letter, most likely not the original letter that the Dr wrote, I assumed, because it was pretty normal. 

It was at that appointment that Dr LPS got very hostile towards me, telling me I would have to provide him with a sample then, if I wished to be prescribed Tylenol 2. I took about 4 tablets a day, for pain from broken ankle 2 or 3 years earlier. I went to provide a urine sample and then saw that the container had no label on it – my name was not on it. Not trusting him to put my name on it afterwards and not the name of a patient known to be addicted to substances, while his or her sample got my name on it, I decided not to get tested there. I left, but returned momentarily to ask for a form,

p. 15
 so I could get the test done elsewhere. He refused to give me one. I left, and went to a walk-in clinic down the road, that I had been to before, and asked to be tested for opioids. I hardly took any, certainly not enough to be considered an addict. But I had walked out of Dr LPS’s building without being tested, and I needed proof that my sample, on that same day, was normal. The walk-in clinic took my sample, but when I called to get the result, I was told they had lost it. They spent a lot of time humming and hawing about it, not knowing where it went, but eventually they said it wasn’t there. 

I am providing you with that information now because it is possible that this could have influenced my situation negatively, if it were assumed that I did not have the test done at the other walk-in clinic at all, but had simply refused to have it done when asked, by Dr LPS, and walked out. We don’t know what doctors are saying to employees at HRTO, or to one another.  

It was after that, a year later, that I finally attended the first appointment in 2015 with Dr A. I hadn’t realized that the report from Dr A, a short while afterwards, would be going to Dr LPS, but [I found out later that] apparently it was automatic to send the first report to the referring doctor unless the patient had another family Dr, which I did not. 

It was at the following appointment, about 16 months later (delayed due to broken leg limiting mobility), on Nov 8, 2016, that I asked about how to prevent reports from going to the referring Dr. And that was how, after the Summary Hearing, in the Mar 5, 2019 Mr B Decision (see <http://canlii.ca/t/hxz6j>) it was reported by Mr B in Item [25] that “the applicant was ‘quite upset’ with the receptionist” due to the first report going to Dr LPS 16 months previously. It was obviously a logical, technical computer software progamming problem, of how to stop the report from automatically being printed with the address of that Dr on it, although Dr A finally remembered, or was informed by someone, after talking for 20 minutes about it in his office, that first reports always go to the referring doctor and it wouldn’t, or shouldn’t happen again. So, a simple response to a simple problem. But it added to all the horrendous lies and stories Dr A invented about me and Mr B perpetuated.  

By then, I had attended the Tribunal about Dr S, which turned into a mediation, which I was not prepared for but decided to on the spur of the moment, not a good way to make such an important decision. And so it ended, because I signed a form at the end, which later I wondered about as it didn’t seem to be altogether what I had agreed to, but no one at HRTO would speak to me again. The girls at the Chamber of Commerce had typed up the forms, and after the first one, the adjudicator/mediator said not to bother reading the next one because they were all the same. I believed her, but wondered afterwards. I didn’t come out of that very well, still recovering from a broken femur at the time, with little stamina or ability to keep going. 

I wanted to say this now, because I never had the chance before, and because the Tribunal did not go well, and because life got worse after I went to Dr A and he behaved the way he did and then made false accusations against me. I figured there might have been a connection between the Dr LPS case and Dr A, as well as involving discrimination on the basis of age and sex. I think perhaps I was being blamed or punished for supposedly making up stories about doctors’ bad behaviour. So Dr A attempted to turn the tables against me, blaming me for bad behaviour against his team. I have evidence, some of it, and if adjudicators Mr B and Ms R, and manager/legal counsel Mr H would only cooperate, I could have had more, proving that discrimination took place, that I was treated differently than other patients, and also that systemic discrimination on the grounds of age and sex was rampant at LHSC.  

p. 16
Patients who are alone, older, and female, with no career, and no money, are not going to get decent care. Forget the last part - not having a career and not being wealthy are not listed in the HRTO Code. Only discrimination on the grounds of age, sex, family status, and marital status (in my case) and race, ablebodiedness, etc, are allowed to be alleged as forms of discrimination in Ontario under the HRTO, Goods and Services Section.  

If you want to have someone take responsibility for making this case so complicated, blame the secretary who thought her boss was at risk because he had discriminated against me, the receptionist who was so inexperienced she exagerrated her interaction with me when I tried to find out how to stop future appointment reports from going to the referring doctor who hadn’t been my doctor for over a year by the time I got to see the specialist Dr A. That doctor didn’t have my best interests at heart either, seeing me as a woman who should just submit and not try to live alone without a man, he seemed to be implying, when he suggested I needed to be tested monthly while I took Tylenol 2 for pain, from a broken ankle that was didn’t heal well, due to torn ligaments! 

Later, Mr H was not present on the job at the Privacy Office FIPPA – LHSC, or at the Legal Dept – on leave or what, I don’t know. But that does nothing to solve the problem I had, of not being able to get emails of the Dr and his staff that would have been less likely to have been tampered with – or at least, of less chance of being tampered with than simply asking the girls and their boss to submit their emails themselves to the Privacy Office (FIPPA) at LHSC.

As a result of that non-action on the part of Mr H, of not allowing me to have securely-gained emails of the Dr and his staff, back and forth, about me, the team and Dr A had the opportunity to invent scenarios which resulted in blame being placed on me by Dr A in his appointment reports, that were harmful to my reputation and resulted in my not being able to find a family doctor who would treat me with respect and dignity – and nor some specialists either.

Once more, Mr B wanted to know what evidence I could point to, and I wish I could have been able to say I have gotten securely-gained emails but no, I didn’t get them. I got a lot of garbage!  

Everything I had, Mr B dismissed. He couldn’t see it, he said. Or he made some other excuse. It wasn’t on his desk, he said. I can’t ask the HRTO to look into a medical decision, he said. I can’t look into his life and determine what he had seen or not seen. His secretary should have been doing that for him, or Ms R.


The Medical (Clinical) Decision

The idea that a medical decision made by a doctor cannot be questioned is based on the Doctor doing a medical examination, or conducting tests, based on his professional knowledge. Dr A made assumptions when he implied that the symptoms I pointed out to him were due to low blood pressure. I supplied the audio tape of that part of the appointment I had with the doctor, and where he offered me a test which was only one part of a series of tests. He made his diagnosis before he decided to offer me only one part of the testing available.  

p. 17
Those audio recordings of Dr A with me are available in my HRTO file, as well as the transcript or explanations, of short excerpts that get to the point, a minute or so in length, some of them, made shorter from the original, which is also available. I cannot email them due to their size. 

When the Dr said, after I sat up after he checked my eyes (for vertigo), and I said I could feel the same sensation then, he said that a lot of people have low blood pressure (as though that was why I felt the symptoms I did). It wasn’t a medical diagnosis. It was an explanation he hoped I would accept. In my Request for Reconsideration, submitted March 28, 2019, I presented all the evidence I had to show that I did not have low blood pressure at that time. 

And still, Mr B dismissed my request, ignoring the evidence I had, or wanted help in getting, from LHSC. He referred to the medical decision made by Dr A as a clinical decision, but either way, the decision has to be based on professional knowledge, having tests done, and hearing from the patient. Dr A did none of that. See attachment Discrimination medical decision, for the perspective from a justice point of view. I don’t know what law would cover this, but I imagine someone in the Legal Department of HRTO would. Mr B may try to say that Dr A was speaking in generalities, about this is what peple have – low blood pressure – but I was his patient and he was making incorrect assumptions.

The way the HRTO (and CPSO) have this set up - re medical decisions – is that a doctor can say or invent practically anything and the patient is not allowed to dispute even the means by which the decision was made. Right out of the blue, a doctor says something he hopes the patient will accept as truth - and it’s considered to be a “medical decision.” According to research on the subject, the term can mean something said informally, or be based on informed research, but a decision isn’t something set in stone, fixed forever, as the one and only truth. I know the doctor wasn’t right because I know what the feeling was, of being sat up and feeling like I was going farther forward than I really was - it was a distortion in space, and I have had it more severely than that. 


Request for Reconsideration, March 28, 2019

I explained in my Request for Reconsideration, see Paragraphs 46 and 47, following:

[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, Sackett et al (10) define evidence-based decisions as ‘the integration of best research evidence with clinical expertise and patient values’."
and
"Braddock et al (12) developed 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

p. 18
 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: <http://dx.doi.org/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. (See Susan McPherson. March, 2019 HRTO Request for Reconsideration in case on discrimination by age and sex. <http://www.AccountabilityinHealthCare.homestead.HRTOReconsiderationRequest.html>). END

I included much evidence in the Request for Reconsideration including pages of blood pressure entries that indicated that my blood pressure was high. Also, the fact that I have been taking blood pressure medication since about 2009 for high blood pressure. If he had taken my blood pressure it would be be noted in his report that it was low, but unless it was electronically secure, and it was entered in a reasonable time frame, it could have been altered (like the emails). 

There are criteria even a medical decision has to adhere to. And what Dr A did was NOT make a medical decision. What he did was abuse his power! Mr B tries to claim I did not provide any evidence, but he it appears he has not read anything I wrote. 

To continue with what happened, based on his premature decision Dr A’s decided to “offer” me - the only thing he could offer me – he said, was a test that he then described (and it was the caloric test that he described, one of several tests available – certainly not enough by which to make a diagnosis). A week or two later I looked it up online and saw that it was only a partial VNG testing series, and inadequate as the only test to have done. But I could not call him because patients don’t do that – we don’t have their number, for one thing. We are left to talk to the administrative secretary who, in this case, only knew that asking questions as I was, about the testing, meant problems for her boss, if patients realized they were getting second-class health care because they old, or worse yet, old and female, and not made of money. Forget the last part. The HRTO has not yet acknowledged that economic status is another factor that plays a part in discrimination in the HRTO category Access to Goods and Services. 

The staff for Dr A invented stories that I had been rude, and so I requested in my HRTO Application that two witnesses be located, from Sarnia, who I spoke to for more than an hour that day - Tuesday, Nov 8, 2016 - in the waiting room of Dr A’s clinic. He had a walker; she was accompanying him to his appointment. I was using a walker, too, with a broken leg, due to which I had to postpone the appointment at the clinic to this date. 

I had spoken to the secretary about it on the phone, to change the appointment, and I recall telling her I wasn’t up to it, although I had recently had to attend a Tribunal in London, at which my family doctor was supposed to be defending himself in an HRTO Application I made against him. I recall telling the secretary, he had treated me very badly while I was his patient – again, likely because he could, because I was older, female, no husband, or family nearby, and possibly because his cultural values were different than people’s here in Canada.  

p. 19
In the situation with Dr A et al, I never got any responses from any of the respondents. The HRTO did not require them to respond to my allegations. Their abusive behaviour should have been investigated by the HRTO. What was strange was that, in spite of the Dr apparently believing at the time that I had been shouting at the receptionist at the clinic, he still saw me in his clinic (after making me wait until the first half of his patients had been seen and others were pouring in), and even scheduled a VNG test with an appointment afterwards to see him. It was only when I complained about being shortchanged on the test that he responded with accusations (mostly by his female staff) that I had been rude while at the clinic. 


Cultural and Historical differences 

I know people are not supposed to consider the country a person is from, or they might be considered racist. But I don’t care what country a person is from. In fact, I like to hear about different life experiences and lifestyles. I have interviewed women from other cultural backgrounds, some of which are on my website, Diversity in Retirement, and on other pages of research I have done. But when the culture of their country could be the problem, of why they treat me with disrespect, then they are the one with the problem. When all they know about me is that I don’t have a lot of money and no husband or family close, then it is easier for them to take advantage of the situation. I spent what I had on a university education, but once again, because of my age, and being female, I didn’t have the same academic opportunities. I ended up with nothing, and then, was expected to conform to social norms nothing to do with me, having already gone through a marriage and had children.  

I wasn’t the one who made this situation so complex. It was the girls in the doctor’s office, and the doctor’s appointment secretary, the Patient Experience volunteer, and the Patient Relations worker who colluded amongst themselves first, trying to make me apologize when I had done nothing wrong. They wanted to control me, drew in the doctor, and later, more of the staff. 

That’s why I wanted to have the witnesses from Sarnia, and wrote a Form 10 to request that, which was never acknowledged. I talked to the man and his wife for some time, an hour or so, before I was called out to have an audio test done (before going in to see the Dr). The staff had said I made a fuss with the receptionist, but they were not telling the truth. All these incidents I experienced, regardless of whether I had evidence or not, are included in my original application and other documents, as I had to revise a piece of it. That’s what the instructions said – when, where, who. Write out all the details, so I did. It said to do it chronologically, so I did, even though it didn’t make sense. The most important problem should have been first, that being Dr A, who wrote the reports about me that prevented me from getting a family doctor. 

Values of SJTO members and staff

SJTO (Social Justice Tribunal of Ontario) being the umbrella organization over HRTO and others such as Child and Family Services, when Complaints are made about one section, such as the HRTO, they go to the head organization, I came to understand, which is the SJTO. And yet, when I laid a Complaint against adjudicator Mr B, it went directly to another adjudicator, or acting Associate-Chair, Ms R, in the HRTO section of SJTO. I mentioned a little on page 2 about Ms R. 


p. 20
She appeared to have great admiration for Mr B, and did not want to interfere with his work as an individual, making his own decisions. She did not deal with my Complaint, and as so often happens, misunderstood or couldn’t be bothered and didn’t read or acknowledge what I wrote. She said something about not being allowed to question a Decision, which effectively silences any complainant trying to get answers about the whys of a case.  

The point was not that the Decision was right and I was questioning it. The point was, the adjudicator, Mr B, had not come across all the evidence I submitted, or was overwhelmed by the amount of material. Even the clerical errors had not been corrected. He was not able to do his job. Ms R focused on one small part of my Complaint and ignored the rest. And so, Mr B didn’t correct the errors, or acknowledge the evidence I submitted.  

Based on their non-actions, and personal biases, I concluded that the online section in SJTO was a good source for understanding what an applicant should find when applying to the HRTO, or to the SJTO with a complaint. The section on Values of the SJTO is included in the Code of Conduct, which is meant to apply to adjudicators in all sections, from Landlord and Tenant Board, or Child and Family. Services, etc. See as follows:

Code of Conduct

All SJTO adjudicators/mediators are responsible for maintaining the integrity, competence, and effectiveness of SJTO. SJTO is committed to: ensuring that its core values are adhered to in all proceedings; and, impartial decision making (2017 Code of Conduct. <http://tribunalsontario.ca/documents/sjto/Code%20of%20Conduct.html>).

View the Core Values under the heading,  Mandate, Mission, Values  <http://tribunalsontario.ca/en/mandate-mission-values/>

Our Values
Ensures that the private interests of SJTO staff and members are not in conflict with their public service responsibilities
The core values inform how the SJTO and its constituent tribunals approach their mandate. They set the foundation for rules and policies, how those rules and policies will be applied, and how we deliver service to the public. The core values are:

Accessibility
We will strive for full and informed participation of parties, whether or not they have legal representation.
We are committed to diversity and inclusiveness.
We will provide resolution processes that are proportionate and appropriate to the issues in each case.


p. 21
Fairness and Independence
SJTO and its tribunals must be, and be seen to be, impartial and independent in our decision making functions.
Our decisions will be based on the evidence and the law, and will be supported by clear, concise and coherent reasons.

Timeliness and Transparency
We are committed to providing timely resolution services and decisions.
Our processes, procedures and policies will be clear, understandable and consistently applied.

Professionalism and Public Service
We are committed to being an organization where people want to work and feel inspired to contribute and innovate.
Members and staff will exemplify the highest standards of public service, integrity and professionalism.
We will be responsive to stakeholder needs by engaging in meaningful outreach and consultation. (Mandate, Mission, Values <http://tribunalsontario.ca/en/mandate-mission-values/>)

This list of values is difficult to reconcile with the kind of situations I have encountered at HRTO. 


Mr B: his CADs and Decisions, and my responses

The adjudicator for my Application, next after Mr M, was Mr B, who wrote three main Directions or Responses to me: a Case Assessment Direction (May 16, 2018); a Decision on a Summary Hearing (March 5, 2019); and a Reconsideration Decision (July 7, 2020). 

Although I submitted a Request for Reconsideration, on March 28, 2019, the Decision that resulted, dated July 7, 2020, did not reflect the evidence I referred to, or the evidence I wished to have gotten from the HRTO. See 2020 July 7 2017-30245-I Recon Decision.
As a result, I came to see that he was unable to maintain impartiality, as described in the Code of Conduct (more on that to come). See under Code of Conduct http://www.sjto.gov.on.ca/documents/sjto/Code%20of%20Conduct.html

Impartiality

33.SJTO adjudicators/mediators must be, and should appear to be, impartial about the disputes before them.

34.SJTO adjudicators/mediators will approach every proceeding and every issue arising in a proceeding with an open mind, and avoid doing or saying anything to cause any person to think otherwise.

p. 22
35.When making a decision, SJTO adjudicators/mediators must apply the relevant law to the evidence presented in good faith and to the best of their ability. Reasons will be clear, concise and intelligible and provide a clear, logical path to the conclusion.

36.The prospect of disapproval from any person, institution, or community must not deter a SJTO adjudicator/mediator from proceeding in a manner they believe is correct based on the law and the evidence.  

I allege that Mr B was unable to be impartial, or did not wish to be, in dealing with my Application. Items, 33, 34, and 37 of the Code of Conduct apply to his situation, when all documents are examined. His Decisions may pass the legal test, in 35, except for being made in good faith. But when the adjudiators are allowed to change the Rules at will, saying they are not following the law may not be possible – except for not being made in good faith. 

I did make a Request for Reconsideration, within the 30 day requirement, because Mr B was not taking the evidence I had and the evidence I wanted (from a Tribunal Inquiry into Dr A’s stats), nor the abominable behaviour of Mr H, and probably more.

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

Question 3 and my response on the Request Form 20, March 28, 2019, are as follows:

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. 

I could not have predicted the response from Mr B in his previous Decision, the one made on March 5, 2019, following the Dec 7, 2018 Summary Hearing, therefore it was not reasonable at the time for me to think I needed to provide more evidence than I did about the medical (clinical) decision made by Dr A that I had low blood pressure. Me, saying I had high blood pressure, or just contradicting his belief, should have been enough, I thought. But I have no credibility, I can see that. So nothing I say is believed. And it ends up being me who has to defend myself and what I have taken for granted for years – that I have high blood pressure. 

I find it remarkable that doctors can simply state their opinion, wish, or off-the cuff remark, and have it accepted as truth – as a medical decision – simply because they are doctors, and then to have it prevented from being questioned is too much. But that is the law, and for some people, and organizations, such as HRTO, it is the law that counts, even if it is wrong, unjust, and even a bit ridiculous. 


p. 23
According to Mr B paraphrasing from the case Moshi v Ontario (2014 HRTO 1044 at paragraph 43) the Tribunal has does not have jurisdiction to review a physician’s clinical decisions based on whether they were medically appropriate. “Rather,” Mr B states, “the applicant would have to point to some evidence that could establish that there was some arbitrariness in the manner that manner the physician treated the claimant because of her sex, family status, marital status, and/or age” (Item [10] March 5, 2019 Decision, Mr B). 

In my original Application and in the Request for Reconsideration, I did that, as much as I could. I have explained how Dr A treated me with no regard for my symptoms and possible health condition, offering only a fraction of the testing available. I gave him a list of my symptoms which he glanced at and handed back with no comment. I accepted it graciously when he suggested I had low blood pressure by asking him if he was sure it it couldn’t be something else. And I took him up on the offer to have just the caloric test done (at least until I had a chance to look it up online). And I looked up Low Blood Pressure and saw that it was a condition old people often had. But not me. I had high blood pressure and was not bothered by standing up quickly. 

Furthermore, I had asked for a study to be done, to collect statistics on Dr A’s practices during 2016, the year this occurred. It would have been to find out whether older men and women, older women in particular, were offered lesser VNG testing than older men or young people. See p 26.  

Mr B never mentioned that proposed study specifically, except briefly but not by Form #, just saying about “additional materials, including documents attempting to clarify the nature of her allegations, requests to amend her Application and to add an additional respondent, and a request for a Tribunal-ordered inquiry” (Item 3, Case Assessment Direction, May 16, 2018). He never gave me a response to most of those requests I made. The Form 12 I submitted on January 29, 2018 (the Tribunal-ordered Inquiry) was ignored. All can do now is point to it! See p 26. 

As I explained in the Request for Reconsideration, I am alleging that the doctor did not make a decision based on professional knowledge or research, or testing of the patient but on personal attributes of the patient, that she – I – was older and female. Being old seemed to mean to Dr A. Listen to brief audio recordings of Dr A’s main points about my condition, as he saw it, and one of Mr H, with explanations, on this website, on this page:  http://samcpherson.homestead.com/Evidence.html .

I realize that the rules of Procedure enable the adjudicator to skip some evidence, and change the rules at will, but this one has done nothing to further my case. He acknowledges nothing, and refers to nothing I have said or provided as being of importance at all. He does not critique them; he simply does not address them. I remind the Human Rights Commission once again that this document I am writing here is primarily to get the HRC to agree to intervene in some way, to deal with the Complaint I made to SJTO about Mr B, and about Ms R, both of which reached a dead end. After that, if it is possible to address the substance of the original Complaint I made, about Dr A et al, I would be happy to cooperate with the HRC in any way I can. See attachment 2018 June 22 Mr B complaint SJTO.

I would like to state this again, that I did in my Request for Reconsideration, from March, 2019, because it is another indication that the process itself, for this case that I was involved in with Mr B, was fraught with injustice: 


p. 24
[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 (see Request for Reconsideration, Rule 26.5, Rules of Procedure, HRTO) (SJT0 20E Request for Reconsideration McPherson. March 28, 2019). See attachment 2019 Mar 28 SJT0 20 Request Recon McPherson.

I was obliged to provide all this information and evidence about myself, in the form of pages of entries of blood pressure, and prescriptions, etc, because the adjuicator either doesn’t believe a word I say, or because he does. I said before, I didn’t have low blood pressure. But my word means nothing. I end up being the one who has to prove I had low blood pressure while the Dr isn’t required to prove anything – simply because he has power. He is The Doctor. I hadn’t realized before that I would have to provide evidence that I do not have low blood pressure. I ask now, why doesn’t the Dr have to respond to my allegations and state himself why he believed his decision was correct? It is not me who has to defend my self, supposedly. It is the Dr who should state his case.  

Ordinarily, at least, if there is something to be gained by having respondents respond, then that is what they are asked to do. Why wouldn’t they want to ask the doctor about his medical decision, that he decided I had low blood pressure?  

Despite providing all that evidence, Mr B, in his July 7, 2020 Reconsideration Decision, ignores it completely. The heading on p 4 states, New Facts or Evidence, but he does not talk about the new evidence I provided. Right underneath in Item [8], he says, among other things, that I claimed wrongly that procedure was not followed. The respondents do not have to respond, the process of the case can change, if the HRTO decides to. See 2020 July 7 2017-30245-I Recon Decision.

I understand that the point of the Summary Hearing was to discuss the case, but I already had given pages and pages of evidence to read. I cannot simply present it from memory. I sit here, with the page from Mr B’s Decision open, and with my Request for Reconsideration to refer to, but I am not able to do that quickly, during a phone conversation. Some things have to be written out, and the adjudicator has to read them. The fact that he never responded to my Form 10, or the audio recordings of Dr A or Mr H, indicate that he has not read my responses thoroughly enough!  


Age vs Disability. Mr B

Mr B says in Item [13], in his Reconsideration Decision: A summary hearing is only held if it appears that an application may have no reasonable prospect of success, based on what the applicant had already put forward (July 7, 2020). See 2020 July 7 2017-30245-I Recon Decision.

I don’t think Mr B even looked at the CAD/NOID Response that I submitted on Jan 29, 2018 – to Mr M. If he had, or if he had read the Form 10 Mr H dated January 5, 2018, he surely would have acted on it - and told me his response, either way - either accepting my argument


p. 25
 that Mr H acted in conflict of interest, being manager of the department that provided personal information to patients, while also being legal counsel for LHSC employees, which went against rules of the Code of Conduct. Mr H, or giving his reasons why he would not add Mr H’s name as respondent. Why would Mr B NOT ask Dr A about the incident where he implied I had low blood pressure!

Regardless of what adjudicators Mr B, or Ms R, or others may tell you, my complaints have not been about a “medical decision” per se. My concerns have been about the way a decision has been made – thoughtlessly, on the spur of the moment, with no evidence, and no reason for stating so. Mr B wrote about it in Item [18] in his CAD, dated Dec 7, 2018. Again, this is a situation that Mr B cannot “see”, meaning he cannot understand. He doesn’t know that low blood pressure is associated with older people. But it is. What can I say? Mr B says low blood pressure is not associated with age and I say it is. Google “low blood pressure and aging”. In Item [18] he makes it clear that he takes Dr A’s side, denying that Dr A used a stereotype about old people. I didn’t feel dizzy or woozy. I did not feel as though I was going to faint. I felt as though the action begun by raising me up in the chair to a sitting position was going to continue and thrust me forward. That’s to do with vertigo, not low blood pressure. I use the idea of giddiness, because that’s how a person would feel - how a child would feel if she spun around and around – she would feel wonky and hardly able to keep her balance. That feeling has nothing to do with feeling as if you’re going to faint.

See also, the Moshi Case, following, about age and disability, and the difference between them.


The Moshi Case

Mr B mentions the Moshi case, but as I stated in Item 66 in 2019 Mar 28 SJT0 20 Request Recon McPherson, “Dr A discriminated against me, treating my age as a condition – as though I had gone to him for the condition of being old” (March 28, 2019).  

With the idea of “disability,” it doesn’t work the same way. Please read this – Item [52] in my Request for Reconsideration:

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 (Request for Reconsideration March 28, 2019).

Here's another explanation. I can keep giving them, but Mr B refuses to see it. 

[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


p. 26
 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 ( Request for Reconsideration March 28, 2019).

You shouldn’t treat someone on the basis that they’re old. But Dr A did, with me. Conducting the study described in the Form 12 Inquiry would enable comparisons to be made, as to whether Dr A was treating some patients, on the basis of age and possibly sex, differently than others.

I have not been questioning adjudicators’ Decisions because I do not agree with them but because I am stating my objections due to their not understanding or not even reading the material I have sent to them. They are making a mockery of the HRTO! Ever since the NOID was sent to me (Notice of Intention to Dismiss) the only thing I keep hearing over and over is that I have no chance of succeeding at this case. Yes, I know I don’t. I know where their prorities lie, and it’s not with me or older people in general who they see as a drain on the system. 


                                                  This page was created Sept, 2020. 
                                           Title: Submission to Human Rights Ontario
                                 Commission (HRC) and Legal Support Centre (HRLSC)
                             in the matter of an HRTO case of discrimination mainly on the
                                                        grounds of age and sex 

   http://www.AccountabilityinHealthCare.homestead.com/SubmissionToHumanRightsOntario.html

                                               Susan McPherson September, 2020

                                web site Accountability in Health Care: ethics in aging
                              ​  http://www.AccountabilityinHealthCare.homestead.com



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