The Ontario Human Rights Commission (the “Commission”) is pleased to make this submission in response to the College’s draft policy, “Physicians and the Ontario Human Rights Code” (the “draft policy”).
The Commission would like to acknowledge the work of the College in developing this draft policy to improve the understanding of physicians across the province of their responsibilities as service providers under Ontario’s Human Rights Code. In particular, we are pleased that this draft policy addresses a number of the concerns the Commission set out in our February 2008 submission to the College, such as in detailing the obligations of doctors to ensure that they do not make professional decisions based on their personal moral or religious beliefs in a way that has a discriminatory impacts relating to Code grounds.
This said, the draft policy also raises a number of new concerns. The following pages detail the Commission’s concerns and provide suggestions for how to address them. We hope that our comments assist the College in providing greater clarity and ensuring that physicians have correct and sufficient information about their obligations under the Code.
The Code Grounds:
Although many of the Code grounds are fairly easily understood, some Code protections relating to these grounds may not be clearly evident to members of the public. Where the draft policy lists the Code grounds (such as in footnote 1, and at pp 2-3), we suggest that the College add language to clarify that the ground of “sex” includes pregnancy, breastfeeding, and gender identity. The latter is particularly important, as transgendered people and those perceived to be gender variant face significant and ongoing social stigma and discrimination, and many members of the public are unaware of the related Code rights.
The policy should apply not only to situations where physicians are providing medical services, as stated here, but also where a physician may potentially provide services. This is set out in the "Policy" section of the draft policy, but is not made clear in the "Scope" section.
The Commission acknowledges that it is essential that physicians practice medicine in keeping with their clinical competence. However, as the College is aware, there have been cases in which potential patients have felt that physicians have cited “clinical competence” to explain a refusal of service that may actually have been based on a Code ground. We commend the College for setting out guidelines encouraging physicians to consider the possibility of providing basic care complemented by referrals to address the specific elements of care in which clinical competence is a concern. Similarly, the Commission agrees with the College’s stated expectation that physicians clearly communicate with the patient where they feel they must turn a patient away, end a physician-patient relationship, or refrain from providing a specific procedure.
The Commission suggests that, where a physician declines a prospective patient, ends an existing relationship with the patient, or declines to provide a particular procedure, this decision should be made based on a thorough assessment of the patient, the relevant medical records (if available), and relevant discussion with the patient. This is important to ensure that:
- the decision is made for non-discriminatory reasons,
- the patient understands the reasons for the physician’s decision and has the opportunity to address any misconceptions, and
- if the decision were to become the subject of a human rights proceeding, the physician could justify it based on actual clinical competence concerns rather than Code-related assumptions and/or stereotypes.
For example, a person who is turned away by a physician after disclosing that he is 95 years old, or that she is transsexual, may, without this individualized assessment and discussion, reasonably believe that the decision was based in biased assumptions relating to sex or age, rather than clinical competence.
A final question that arises is whether a physician should provide written reasons. The clearest form of communication is always in writing. It is suggested that where a physician declines a prospective patient, ends an existing relationship with the patient, or declines to provide a particular procedure for reasons related to clinical competence, but where the potential exists that the decision could be related to a Code-ground, the physician may wish to confirm his/her decision in writing to the patient.
Moral or Religious Beliefs
In this section of its draft policy (1.ii, pp. 4-6), the College has provided valuable information to doctors to clarify the important distinctions and appropriate divisions between their personal beliefs and their professional actions. We wish to note that “moral beliefs,” per se, are not protected by the Code, whereas religious beliefs and practices are protected under the ground of “creed.” Claims of competing or conflicting rights may potentially arise relating to any Code ground, but the Commission has most frequently addressed situations in which actions based in religious belief have had a discriminatory impact on others relating to sex, gender identity, sexual orientation, marital status, or disability.
As the College indicates in its Backgrounder to the draft policy, the Commission does not have specific procedural guidelines for doctors or other service providers relating to balancing competing rights claims. However, the Commission has addressed a number of complaints relating to this issue, and provides discussion of case law and relevant principles in section 3.3 of our Policy on Discrimination and Harassment Because of Sexual Orientation, and in other public documents.
We note that some of the language in the first two paragraphs of “Contravention of the Code” (top of page 5), while aiming to address the complexity of situations in which rights are said to be competing or in conflict, inadvertently downplays the significance of refusal to provide service as prima facie discrimination. The use of the word “may” (“...may be acting contrary to the Code...”) and the fact that it is italicized are of particular concern. We also suggest that reference to the complexity of legal analysis in such cases, the importance of case-specific context, and the general principles set out in the subsequent bullet points, may be more helpful to physicians than indication that the law is “unclear.”
We therefore recommend that the second and third sentences under “Contravention of the Code” be replaced with the following:
Therefore, a physician’s refusal to provide a service or accept a patient on the basis of a prohibited ground, such as sex or sexual orientation, is prima facie discrimination, even if the refusal is based on the physician’s moral or religious belief. This means that the physician could be subject to a human rights complaint, in which a Tribunal or Court would then assess:
- whether the physician’s actions can be justified as bona fide and are therefore not in violation of the Code, and
- whether there are genuine competing rights claims, and, if so, how the rights of the parties may appropriately be balanced.
Courts balance these complex claims based on the particulars of each case. The College is therefore unable to advise physicians how the Courts will decide cases where they must balance the rights of physicians with those of their patients.
We also suggest that addition of the following points would be of assistance to physicians in weighing these matters:
- As plainly stated by the Supreme Court of Canada in the Trinity Western decision, a line may be drawn between belief and conduct, and “...the freedom to hold beliefs is broader than the freedom to act on them.”
- Human rights protections are to be interpreted broadly, while defences for discrimination are interpreted narrowly.
- It is the Commission’s position that doctors, as providers of services that are not religious in nature, must essentially “check their personal views at the door” in providing medical care.
The Commission is pleased that the draft policy addresses the duty of physicians to accommodate patients based on disability. However, we have four concerns regarding the discussion of accommodation, focusing on the following:
- Code grounds and the duty to accommodate
- the right to accommodation vs. the duty to accommodate
- the accommodation process and shared responsibilities
- “undue hardship” vs. “reasonableness” as the standard for accommodation
Relevant Code Grounds
Section 2 of the draft policy refers to accommodation of disability. The Commission is pleased to see discussion of the need to remove barriers, and to provide service in a way that is respectful of the dignity of the person. However, we are concerned that the discussion of duty to accommodate addresses only accommodation of disability.
While accommodation requests addressed in human rights complaints have most commonly related to disability, the duty to accommodate is not limited to this ground, but may arise in relation to other Code grounds. The Commission has frequently heard concerns and addressed cases relating to accommodation of family status, age, creed (religious belief and practice), and sex (such as relating to pregnancy, breastfeeding and gender identity). Situations may also arise in which accommodation could be required relating to other Code grounds.
We therefore suggest that the language in the draft policy be amended to clarify that the duty to accommodate may arise in relation to a number of Code grounds, and is not limited to disability.
The Right to Accommodation vs. the Duty to Accommodate
Section 2 (pg. 7) of the draft policy states that the duty to accommodate is shared by both the physician and the individual seeking care. As the draft policy indicates, both parties have responsibilities in the accommodation process.
However, in stating that the “duty to accommodate is one that is shared,” the language of the draft policy may unintentionally reinforce a number of common misunderstandings about responsibilities in the accommodation process. For example, the Commission has heard parties responsible for providing accommodation inappropriately assert that those who request the accommodation:
- must provide the resources required for accommodation,
- must provide them with copious information or all possible accommodation solutions before the accommodation request is honoured (that is, relieve the organization of any inconvenience associated with identifying and implementing an appropriate accommodation)
- “accommodate” the organization, service provider, or employer by settling for an insufficient or undignified accommodation due to business inconvenience, or other excluded factors
These assertions do not reflect correct interpretation of the concept of “accommodation” in the context of the Code.
We therefore suggest that the College clarify that the right to accommodation rests with the person requesting the accommodation, whereas the duty to provide the accommodation rests with the service provider, employer or other organization.
The Accommodation Process and Shared Responsibilities
The draft policy refers to the responsibility of the individual to inform the physician of his or her needs, and of the physician to accommodate those needs. Although there is, as the draft policy states, no “set formula” for providing accommodation, the Commission does provide guidance about the accommodation process, which may be of assistance to the College and to physicians.
The Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (the “Disability Policy”) was written in language relating to employment, due to the high frequency of cases relating to disability in that context. However, the principles and processes described in the Disability Policy are relevant in services and other areas, and have frequently been used in Tribunals and the Courts. Section 3.4 of the Disability Policy, “Duties and Responsibilities in the Accommodation Process,” is particularly relevant to the draft policy, in that it describes a number of duties relevant to service providers such as physicians.
The College may therefore wish to refer physicians directly to Section 3.4 the Disability Policy, or to cite the Policy and paraphrase the responsibilities in greater detail, amending the language where it refers specifically to the employment context. For example, the draft policy could state that physicians should:
- accept requests for accommodation in good faith, unless there are legitimate reasons for acting otherwise;
- obtain expert opinion or advice where needed;
- take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate;
- keep a record of the accommodation request and action taken;
- maintain confidentiality;
- limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request;
- grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
The Undue Hardship Standard
Section 2 of the draft policy is titled “Reasonable Accommodation of Disability,” and the document refers to “reasonable” accommodation and “reasonable” steps throughout this section and elsewhere (e.g. page 2). However, in Meiorin, the Supreme Court of Canada set out a framework for examining whether the duty to accommodate has been met, and established that accommodation must be provided to the point of “undue hardship.” This standard is reflected in the Code (s. 11(2)) and in Commission documents.
Specifically, the Code and Commission documents establish that appropriate factors for assessment of undue hardship include cost, outside sources of funding, if any, and health and safety requirements, if any. As clarified in the Disability Policy, factors that may be incorrectly seen by some to be “reasonable” (such as third-party preference, business inconvenience, and employee morale), are excluded – that is, not part of a defence to a refusal to accommodate.
Section 4 of the Disability Policy (“Undue Hardship”) describes both appropriate and excluded factors in detail. Of particular note is the sub-section on cost (4.3.1), which states that:
Costs will amount to undue hardship if they are:
- shown to be related to the accommodation; and
- so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.
This information is important in helping physicians, as service providers responsible for providing accommodation, to understand the high standard that has been set out by the Supreme Court of Canada relating to the duty to accommodate.
We therefore strongly recommend that the draft policy be amended to:
- indicate that the service provider has a duty to accommodate to the point of undue hardship, and to provide information about the appropriate and excluded factors, or to provide reference to Commission policy.
- remove the heading worded “Reasonable Accommodation” and other language that incorrectly indicates that the standard is one of “reasonableness,” rather than “undue hardship.”
In closing, the Commission would like to acknowledge the pressures that physicians face in managing their caseload and their interactions with patients in a context of doctor shortages, and an aging and increasingly diverse society. At the same time, as providers of such an essential service as health care, their efforts to ensure that their policies, practices, and decisions are free of bias and discrimination can have a significant positive impact on the lives of Ontarians. We hope that this submission is of assistance in ensuring that physicians understand how to meet these challenges.
The Commission thanks the College for developing this draft policy, and for providing the opportunity for public input. In keeping with the Commission’s commitment to public accountability and its duties in serving the people of Ontario, this Submission will be made public.
 The Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario regarding the draft policies relating to establishing and ending physician-patient relationships can be found on the Commission’s Website, at http://www.ohrc.on.ca/en/resources/submissions/surgeons.
 For more information, please see the Commission’s Policy on Discrimination and Harassment because of Gender Identity (2000), and also the Policy on Discrimination Because of Pregnancy and Breastfeeding (revised 2001). All Commission policies are available online at www.ohrc.on.ca.
 In British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 [hereinafter “Meiorin”], the Supreme Court of Canada set out a test by which prima facie discrimination may be justified if the person can establish on a balance of probabilities that the standard, factor, requirement or rule: was adopted for a purpose or goal that is rationally connected to the function being performed; was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
 For example, see the Commission’s February 2008 Submission to the College, supra note 1; also, in a December 2004 letter to the Attorney General on the issues of performing same-sex marriages, the Commission discussed the distinction between religious officials and providers of secular public services in terms of the appropriateness of expressing religious beliefs in the course of their work. This letter may be found on the Commission’s Website at: http://www.ohrc.on.ca/en/resources/news/NewsRelease.2006-05-19.6799638944
 The College may wish to retain the explanatory footnote from the original text.
 See Meiorin, supra note 3.
 Trinity Western University v. British Columbia College of Teachers,  1 S.C.R. 772 at para.36.
 Ruth Sullivan, Drieger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994), at 383.
 See the Commission’s December 2004 letter to the Attorney General, supra note 4.
 Supra note 3
 See section 11(2) of the Code, and, for greatest detail, the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (in particular, see s. 3.2 and s.4).
 See section 11(2) of the Code, and section 4, of the Disability Policy, particularly subsection 4.3.
 See section 4.1 of the Disability Policy.