Judge orders Horizon to pay patient’s brother over language violation

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A Court of King’s Bench judge has ordered Horizon Health Network to pay the family member of a patient $5,000 for being unable to provide him service in French, and another $7,500 in legal costs.

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Plaintiff Paul Ouellet said in his statement of claim filed against Horizon and the Department of Health that he had a sister who was a patient in The Moncton Hospital’s psychiatry department.

In the statement, Ouellet gave examples of occasions where he believed his linguistic rights were violated between Aug. 4, 2018, and Aug. 2, 2020, when he said he spoke French to Moncton Hospital employees either in person or over the phone, and the staff member answered him in English.

In most of the cases, the call or visit was to get an update on his sister’s condition. In the majority of instances, the employees were unable to speak French, and asked him to speak in English, Ouellet stated in his filing.

Ouellet, represented by lawyer Dominic Carron, was looking for the judge to rule that the health authority violated his linguistic rights, according to the Canadian Charter of Rights and Freedoms, and the Official Languages Act (OLA) by not offering him services in French.

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His case was presented in a hearing in the Court of King’s Bench on Feb. 5 and Justice Maya Hamou chose to render a summary judgement, meaning she ruled on the matter without going to a full trial.

In a written judgement dated Oct. 31, Hamou wrote in French that Horizon had violated the Charter and the OLA.

“The understanding of the other language, by a member of the public, does not eliminate his or her right to choose to communicate and obtain services in the language of their choice,” Hamou said. “This certainly does not imply that all employees must be but rather that employees are able to direct the member from the public to a person who can communicate in the chosen language.”

Horizon, represented by lawyers Talia Profit and Roxanne Lamarche, had argued that Ouellet had chosen to contact the psychiatry department mostly in the evening and he showed “intimidating and threatening” behavior toward staff, and he spoke interchangeably in French and English.

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The health authority had pointed out that no affidavits from the nursing staff directly involved in the interactions with the plaintiff were presented as evidence, and Horizon said it was unable to link the allegations to the staff in question.

Horizon had also argued that Ouellet was a visitor and was not receiving health services, but Hamou said in her judgement she did not accept the argument, noting the Charter and OLA refer to an institution’s responsibility to communicate and deliver services in the language of choice for members of the public.

The court has already determined that regional health authorities are considered an institution in the context of those pieces of legislation, Hamou wrote in the ruling.

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“The obligation does not lie with the member of the public to request the communication or service in the language of their choice; the obligation lies with the institution to offer it,” she wrote.

Ouellet’s statement of claim also points to a report from the Commissioner of Official Languages for New Brunswick on the same allegations between February 2019 and June 2019. The report determined that Ouellet’s complaints were “in large part founded.”

According to that report, the investigation by the commissioner’s office found that for 12 of the 13 incidents, the hospital did not respect the complainant’s language rights.

The commissioner’s office had made several recommendations to Horizon, including implementing a strategy for respecting language rights, employee training and patient and visitor satisfaction surveys.

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She said she did not accept Ouellet’s argument that the Department of Health was responsible for Horizon’s language rights violations and the province was not ordered to pay any money to the plaintiff.

In an email to Brunswick News on Wednesday, Carron said his client was satisfied with the judge’s ruling.

“He fought hard for this,” Carron said. “One thing to understand is that these language rights breaches were not a one-off. They occurred repeatedly over many years while he was taking care of his sister who suffers from serious mental-health challenges.”

The $5,000 Ouellet received will not fully compensate for the loss he suffered, but “it’s impossible to put the genie back in the bottle,” said Carron, noting his client would have liked to see a higher amount.

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“In that sense, we are very happy that the Court ordered a monetary compensation as a form of reparation for breaching his language rights,” he said. “It sends a strong signal that in the future, public institutions must be vigilant in respecting the language rights of New Brunswickers.”

Ouellet remains hopeful there will be further progress with respect to language rights in New Brunswick, said Carron.

Gail Lebel, Horizon’s vice president and chief human resource officer, said in a statement the health authority accepts the court’s ruling and do not intend to appeal.

“Horizon remains committed to providing services in both official languages to all patients and members of the public in accordance with our obligations under the Official Languages Act,” Lebel said.

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