Same-Sex Care (Resident Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2442
Page Categories:	[Care Homes (LTB)], [Human Rights]
Citation:	Same-Sex Care (Resident Rights), CLNP 2442, <https://rvt.link/e6>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/11/19

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Forrester v. Peel (Regional Municipality) Police Services Board et al, 2006 HRTO 13 (CanLII)

[456] Certainly, by way of analogy, both section 24 (1)(c) of the Code and jurisprudence allow for the rights of patients in the provision of personal intimate care to trump employment equity, so that the nurses and health care workers who provide such care as their “primary duty” may be of the same sex as the patients, even if that flies in the face of a prima facie case of discrimination in the workplace based on sex, including hiring. See: Reynolds v. British Columbia Mental Health Society [1992] B.C.C.H.R.D. No.2, and McKale v. Lamont Auxiliary Hospital and Nursing Home (District No.23), (1987) 1987 CanLII 3341 (AB KB), 37 D.L.R. (4th) 47.

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[466] The Code itself is a quasi-constitutional law of fundamental importance that “must be recognized as being the law of the people,” see: Tranchemontagne v. Ontario (Director, Disability Support Program) 2006 SCC 14 at paragraph 33. It calls for meaningful remedial measures to redress injustice. The Tribunal should be reluctant to provide an “opt out” if that perpetuates the discrimination, either directly or indirectly. As noted by Chair Gottheil in Chornyj v. Trus Joist (2006) HRTO 10 at paragraph 24:

…Human rights tribunals and the Courts have long recognized the special “quasi- constitutional” status of human rights legislation. The Code must be interpreted and applied in a large, liberal and purposive manner. The approach to human rights adjudication should never be overly legalistic and technical, but rather should enhance accessibility and ensure that determinations are made on the true merits of the case. As the Court said in Action Travail des Femmes v. Canadian National Railway Co., 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 at 1134, “[w]e should not search for ways and means to minimize those rights and to enfeeble their proper impact.” (See also: Ontario Human Rights Commission et al. and Simpsons Sears Ltd. (“O’Malley”) 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 546-547; Toneguzzo v. Kimberly Clark, 2005 HRTO 45.)

McKale v. Lamont Auxilliary Hospital & Nursing Home District No.23, 1987 CanLII 3341 (AB KB)

Summary: The Court rejects an appeal by Anne McKale from a decision by a Board of Inquiry (1986 CanLII 6545 (AB HRC), 8 C.H.R.R. D/3659) which found that she was not discriminated against because of her sex when she was refused a position as a temporary nursing assistant.

Ms. McKale applied for the position of temporary nursing assistant with Lamont Auxiliary Hospital and was refused in May 1985. The position was given to a less experienced male because the Hospital wished to replace a male attendant who had resigned with another male. The Board of Inquiry accepted the Hospital's argument that being of the male sex was a bona fide occupational qualification for the position because some of the male residents specifically requested that they be given intimate care by a person of the same sex. Since the staff ratio was ten females to three males, the Board considered that the Hospital was not violating the Individual's Rights Protection Act by maintaining this female/male ratio.

The Court confirms the Board of Inquiry decision, and the appeal is dismissed.

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[45] My conclusion upon applying the objective test to the evidence is the same as that of Mr. Stewart, but it is more broadly based. I conclude on all of the evidence that the claim by a patient in an auxiliary hospital for intimate, personal care to be given by a nursing attendant of the same sex has a basis in his contract with the institution, in public expectations and is reasonable in the opinion of experts based on their research and experience in the area. The claim must, so far as possible, be met by the respondent not only to assure the efficient and economical performance of its job but to fulfill its obligations to the patient to treat him with respect and dignity.

[46] I find that the respondent's selection of a male for the position of nursing attendant was based on a bona fide occupational requirement pursuant to section 7(3) of the Individual's Rights Protection Act. Unlike the Chairman, I find that in this case the occupational group is composed of all nursing attendants. All that I have said supports the need to allow for adaptability of an institution to reflect the nature of its patient population and their needs.

[47] I find there is no necessity to interpret section 11.1 of the Act.

Commission des droits de la personne et des droits de la jeunesse c. Hôpital général juif Sir Mortimer B. Davis, 2007 QCTDP 29 (CanLII)

3.1 The rights of patients

[138] The scope of the right of patients to receive intimate care from a beneficiary attendant of their own sex is based first and foremost on the fundamental rights guaranteed by the Charter, such as inviolability, the right to respect for one's private life and the right to freedom of religion. In addition, rules are set forth in the Act respecting health services and social services.[10] I will come back to them later.

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3.1.1 The right to inviolability

[139] In the 1982 legislative amendments, the term "physique", which had modified the word "intégrité" in the French version of section 1 of the Charter, was deleted.

[140] In Dufour, reiterating the reasons of Wilson J. in Morgentaler, the Tribunal analysed the concept of inviolability, as amended:

[TRANSLATION]

… the right to inviolability more specifically concerns respect for personal autonomy in decision-making regarding matters closely tied to a person's fundamental values and convictions. It is therefore a patient's right to receive personal care from someone of the same sex.

[141] In Hôpital St-Ferdinand, the Supreme Court clarified the meaning to be ascribed to "inviolability", as set forth in the Charter:

… s. 1 [of the Charter] refers inclusively to physical, psychological, moral and social inviolability.

The common meaning of the word "inviolability" suggests that the interference with that right must leave some marks, some sequelae which, while not necessarily physical or permanent, exceed a certain threshold.

[142] It is also interesting to note that, when called on to interpret the meaning of the right to security under section 7 of the Canadian Charter, the Supreme Court ruled that the principle of security of the person encompassed the concept of inviolability and, more specifically, respect for autonomy in decision-making. In Rodriguez, Sopinka J. wrote:

… personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.

[143] Accordingly, it may be concluded that section 1 of the Charter does not protect only the physical aspect of inviolability, but also its psychological, moral and social aspects.

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[177] According to the arbitration jurisprudence, failure to comply with requests to establish gender requirements for positions constitutes a violation of the fundamental right of patients to be given intimate care by a beneficiary attendant of their own sex. The arbitrators found gender requirements to be reasonable and rational, on the basis of the preferences expressed by users. Moreover, all patients did not have to express a desire to be given intimate care by a person of their own sex in order to justify the establishment of gender requirements for a given position.

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[224] As mentioned earlier, the right of patients to receive, if they so wish, intimate care from a person of their own sex is based on Charter-protected fundamental rights, such as inviolability, the right to respect for one's private life, the right to the safeguard of one's dignity and freedom of religion. This is reinforced by the principles set forth in the Act respecting health services and social services,[72] namely, the right of users to receive appropriate, personalized health and social services in a context conducive to respecting the right to be treated with respect and dignity.

[225] It may be concluded, by applying the facts to the applicable rule of law, that the standard stipulated in the Arrangement is rationally connected to the performance of the job.

[226] This first criterion is therefore satisfied.

College of Nurses of Ontario v Lekiqi, 2013 CanLII 91854 (ON CNO)

Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(a), (b), (c), (d) and (e); 4 (a)(i), (b)(i), (c)(i), (d)(i) and (e)(i); of the Notice of Hearing dated June 14, 2013. Those allegations related to conduct of a sexual nature. The panel granted this request. The remaining allegations as set out in the Notice of Hearing are as follows.

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2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while working as a Registered Nurse for [the Facility], in [ ] Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

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(e) with respect to [Client E], on or about December 9, 2006:

i. you failed to properly assess and/or document your care and assessment of [Client E];

ii. you failed to obtain informed consent of [Client E] to perform care and assessment of [Client E]; and/or

iii. you breached the therapeutic boundaries of the nurse-client relationship with [Client E]; and/or

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40. In respect of each of the C[l]ients, the Member acknowledges that he should have established and maintained therapeutic communication with them, provided care that was client-centered, and established and maintained appropriate boundaries.

41. The Member acknowledges that it was inappropriate to identify himself as an internationally trained physician to [Client A], [Client B] and [Client C]

42. The Member acknowledges that with respect to all five Clients, he failed to adequately explain procedures involving care and/or touching of intimate areas to the Clients before he began the procedures. He also failed to provide alternate options to intimate care. With respect to all five Clients, the Member failed to obtain informed consent.

43. The Member acknowledges that clear and appropriate communication is necessary to minimize the possibility that a Client will interpret contact with intimate areas as touching for a sexual purpose, and that such an interpretation can confuse and cause harm to a client. All five Clients were concerned that the Member’s touching of their genitalia was motivated by a sexual purpose. Accordingly, the Member acknowledges that the Clients did suffer harm as a result of his failure to use appropriate therapeutic communication to explain the therapeutic purpose for his interventions.

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Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed acts of professional misconduct as alleged in paragraphs 2(a)(i), (ii), (iii); (b)(i), (ii), (iii); (c)(i), (ii); (d)(i), (ii), (iii); (e)(i), (ii), (iii); 3(a), (b), (c), (d); 4(a)(ii), (iii), (iv); (b)(ii), (iii), (iv); (c)(ii), (iii); (d)(ii), (iii), (iv) and (e)(ii), (iii), (iv) of the Notice of Hearing in that the Member failed to meet the standards of practice, failed to obtain consent where consent was required, and engaged in conduct or performed an act, relative to the practice of nursing, that having regard to all the circumstances, would be reasonably regarded by Members of the profession as unprofessional.