SK v. Dr. F (No. 2), 2025 BCHRT 105
Date Issued: May 6, 2025
File: CS-004601
Indexed as: SK v. Dr. F (No. 2), 2025 BCHRT 105
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
SK
COMPLAINANT
AND:
Dr. F
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section27(1)(c)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Respondent: Andrew T. Tang
I INTRODUCTION
[1] SK is a person with multiple complex mental health issues. SK alleges her primary physician, Dr. F, discriminated against her in the area of services on the basis of mental disability contrary to s. 8 of the Human Rights Code when Dr. F dismissed her as a patient because of the symptoms of her mental disability.
[2] Dr. F denies discriminating and applies to dismiss the complaint under s. 27(1)(c) on the ground that the complaint has no reasonable prospect of success. She says she acted appropriately in providing care to SK and the decision to terminate the doctor/patient relationship was based solely on non-discriminatory reasons, specifically SK’s problematic conduct and declaration that she no longer trusted Dr. F.
[3] For the following reasons, I deny the application to dismiss. Because the parties disagree on whether SK’s behaviour was a factor in Dr. F ending the doctor/patient relationship, the credibility of the parties is the foundational issue in this complaint. Based on the materials before me, I am not satisfied that there is no reasonable prospect SK could prove at a hearing that her mental disability was a factor in Dr. F’s decision to end their relationship.
[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[5] The background facts are taken from the parties’ materials. I make no findings of fact.
[6] SK has multiple mental health issues including complex Post Traumatic Stress Disorder ( PTSD ), Borderline Personality Disorder ( BPD ), chronic pain and Depression.
[7] In or around 2017, Dr. F became SK’s primary care physician. Dr. F addressed SK’s physical and mental health concerns and referred her to specialists for further investigation and care when appropriate.
[8] Dr. F says that while SK was under her care, between May 2020 to February 2021, SK made statements expressing a lack of confidence in Dr. F’s treatment of her symptoms and the quality of care she was receiving. Specifically, she says SK expressed her lack of satisfaction with Dr. F in the following ways.
a. On July 10, 2020, SK expressed to a staff member at Dr. F’s clinic that she found it difficult to communicate with Dr. F.
b. On July 12, 2020, SK said appointments with Dr. F were causing more harm than good.
c. On September 22, 2020, SK saw another primary care physician outside of Dr. F’s clinic.
d. On December 14, 2020, SK expressed to Dr. F that her pain was not being adequately managed.
e. On February 3, 2021, SK told Dr. F that she does not trust her medical judgment and diagnosis.
[9] Dr. F says that she decided, based on SK’s repeated expression of doubt about her treatment, to terminate the doctor/patient relationship.
[10] On February 16, 2021, Dr. F phoned SK to advise her of her decision to end the doctor/patient relationship. Dr. F sent a letter the same date summarizing the phone conversation and saying:
A productive patient doctor relationship is based on a foundation of trust and mutual respect. Your comments have lead me to conclude that this foundation has been irretrievably lost. I must insist that you seek care elsewhere. In accordance with the College of Physician and Surgeons of BC standard, I will continue to provide care for urgent health concerns for the next 30 days.
[11] SK concedes that she is a challenging patient but disagrees that she said she did not trust Dr. F. She presents a different version of events from Dr. F.
[12] She says that on July 10, 2020, she expressed to a registered nurse that she found it difficult to communicate with Dr. F in the context of describing her mental health symptoms. She says she has no recollection of saying that appointments with Dr. F were causing more harm than good or seeing a physician outside of Dr. F’s clinic. She concedes she told Dr. F her pain was not being managed but says this was in the context of explaining her symptoms of discomfort and pain levels. She disputes that on February 3, 2020, she told Dr. F that she does not trust her medical judgment and diagnosis. Instead, she says she told Dr. F that she had a good consultation with another doctor with whom she felt seen and heard.
III DECISION
A. Preliminary Issue – Scope of Complaint
[13] SK originally filed her complaint alleging discrimination on the grounds of her mental disability and race. In her response submissions, SK says she is no longer pursuing her complaint on the basis of race, colour, place of origin, or ancestry. I understand from this that SK is only pursuing her complaint on the basis of her mental disability. Accordingly, I only consider this complaint in the area of mental disability.
B. Preliminary Issue – Dismissal Application Grounds
[14] Through the Tribunal’s Case Path, Dr. F was granted permission to file a dismissal application under s.27(1)(c) only. In the dismissal application before me, Dr. F also argues for the complaint’s dismissal under s. 27(1)(f). I decline to consider this argument because it was put forward despite the Tribunal’s instructions. In her response to the dismissal application, SK has not addressed any of Dr. F’s arguments under s. 27(1)(f). There is nothing before me to explain or justify the Respondent’s departure from the Tribunal’s instructions, or to persuade me that it would be fair and appropriate to expand the scope of the application permitted under the Case Path. I will only address the application under s. 27(1)(c).
C. S. 27(1)(c) – Is there no reasonable prospect the complaint could succeed?
[15] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[16] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.
[17] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[18] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[19] To prove her complaint at a hearing, SK will have to prove that she has a characteristic protected by the Code , she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[20] For the purposes of this application, there is no issue that SK has a mental disability. However, Dr. F argues that there is no reasonable prospect SK will prove the second and third prongs of her case: adverse impact and nexus. Dr. F argues that SK was able to find a new family physician so there was no adverse impact to ending the doctor/patient relationship. She says that her reason for ending the doctor/patient relationship was wholly because of SK’s repeated declaration of non-confidence in her which is a non-discriminatory reason unrelated to SK’s mental disability.
[21] I deal first with whether there is no reasonable prospect that SK will be able to establish that she suffered an adverse impact when Dr. F ended the doctor/patient relationship. Dr. F argues that because she agreed to provide emergency medical services for 30 days and SK was able to find a new primary care doctor within that 30-day timeframe, there is no reasonable prospect SK could succeed in establishing she suffered an adverse impact. I disagree. SK’s complaint does not just allege that she was without medical care, but alleges she experienced adverse impacts because of Dr. F informing her she would be terminating the doctor/patient relationship including worsening symptoms of her mental disability, suicidal ideation, and injury to her dignity.
[22] Further, and in any event, this argument seems to misunderstand adverse impact as contemplated by human rights law. It is no answer to an allegation that someone was denied services (or that a service was withdrawn) to say the service was available elsewhere.
[23] At this stage, SK is only required to establish that she was denied a service generally available to the public. I am satisfied that ending a doctor/patient relationship is in and of itself an adverse impact. As such I am satisfied this element of the Moore test has been taken out of the realm of conjecture.
[24] Further to this, I note that in addition to the denial of services, SK alleges other adverse impacts in her complaint. Based on the materials before me, I am not persuaded that SK has no reasonable prospect of establishing that her mental health was adversely impacted as a result of Dr. F’s termination of their relationship.
[25] I next turn to whether there is no reasonable prospect the Tribunal would find after a full hearing that SK’s mental disability was a factor in the adverse impact. To succeed in her claim, SK does not have to prove that her mental disability was the sole or overriding factor. Rather, the question is whether her protected characteristic was a factor in the adverse impact: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 at paras. 49-52.
[26] Dr. F says she ended the doctor/patient relationship solely because SK expressed mistrust and lack of confidence in the treatment she was receiving. Dr. F says SK’s mental disability is distinguishable from her conduct. She argues that her decision was in accordance with standards set by the College of Physicians and Surgeons of BC who upheld her decision to end the doctor/patient relationship when SK made a complaint.
[27] I am not persuaded on the materials before me that SK has no reasonable prospect of establishing a nexus between her protected characteristic and the adverse impact.
[28] First, Dr. F says her decision to terminate the doctor/patient relationship was based on SK’s expressions of mistrust and lack of confidence in the quality of the care Dr. F was providing. Dr. F says SK’s behaviour is distinct from her mental disability. However, there is evidence before me that such expressions of mistrust and critical behaviour is related to SK’s mental disability. Specifically, the medical documents submitted support that SK is diagnosed with BPD and that individuals with BPD may exhibit paranoid ideation, inappropriate, intense anger, and feelings of alienation and disconnection. When viewed in light of this medical information, the specific behaviour that Dr. F cites as the reason she ended their relationship may give rise to a finding of fact that her behaviours – some of which are disputed – were connected to SK’s mental disability.
[29] Further, the evidence before me suggests that Dr. F understood SK’s behaviour to be connected to her disability. SK says on or about March 16, 2021, when confirming that she was ending the doctor/patient relationship Dr. F said to her, “I know some of your behaviours are due to mental health.”
[30] Second, the parties disagree on what are in my view, foundational issues in the complaint. The issue that the Tribunal must decide at a hearing is whether SK’s mental health issues were a factor in Dr. F’s termination of the doctor/patient relationship. The parties disagree on what SK said to Dr. F and other clinic staff, the context of any statements made, and whether SK was being treated by other physicians. The parties have not provided documentary evidence such as medical records or contemporaneous notes to show which appointments occurred or what was discussed so I am unable to resolve the conflicts in evidence on these foundational issues.
[31] Finally, I acknowledge that Dr. F consulted with the College about terminating the doctor/patient relationship and the College found that Dr. F’s conduct met its standards. However, on its own, I am not persuaded that this fact is determinative on the issue of whether SK has no reasonable prospect of establishing that her protected characteristic was a factor in Dr. F’s decision to end their relationship. It may go to whether she can establish a bona fide reasonable justification for withdrawing her services from SK, but that was not argued on this application.
[32] The Tribunal’s role in the context of complaints against physicians is not to assess the standard of medical care provided or interfere with the care decisions made by healthcare professionals. However, it is the Tribunal’s role to ensure those decisions are not tainted by discrimination: Hamilton v. BC Medical Services Plan , 2024 BCHRT 309 at para. 18.
[33] Dr. F may well have had legitimate concerns about SK’s expressions of mistrust and that may have been a reason for ending the doctor/patient relationship. However, as I have noted, SK only needs to prove her mental disability also factored into the decision to succeed in her complaint. Based on the materials before me, notably the medical information suggesting a connection between SK’s behaviour and her mental disability, I cannot say there is no reasonable prospect that SK could do so at a hearing.
[34] In my view, on the basis of the materials, Dr. F has not persuaded me that there is no reasonable prospect that SK’s complaint could succeed at a hearing. I find that the submissions of the parties raise foundational issues of credibility about SK’s conduct, whether it is connected to her disability, and whether it was a factor in Dr. F’s decision to terminate the doctor/patient relationship.
[35] I am not finding that SK will succeed in her case at a hearing. I am merely finding that on the evidence before me the complaint rises above the level of conjecture and a hearing is required to decide its merits.
IV CONCLUSION
[36] I deny the application to dismiss.
[37] Allegations relating to the ground of race are dismissed and the complaint will proceed in the area of mental disability.
Edward Takayanagi
Tribunal Member