Barton v. Progress Place Rehabilitation Centre, 2009 HRTO 598

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Craig Barton

Applicant

-and-

Progress Place Rehabilitation Centre and Brenda Singer

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: May 8, 2009

Citation: 2009 HRTO 598

Indexed as: Barton v. Progress Place Rehabilitation Centre

AppearanceS BY

Craig Barton, Applicant ) on his own behalf

Progress Place Rehabilitation Centre ) and Brenda Singer, Respondents ) Richard J. Worsfold, ) Counsel

1This is an Application dated July 11, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on June 10, 2008.

2The Case Resolution Conference (CRC hearing) in this matter was held on April 7, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. I took the lead in questioning the witnesses and heard from the applicant, the personal respondent and one witness.

3Progress Place Rehabilitation Centre (“Progress Place”) is a psychological rehabilitation centre that provides a full range of social, vocational, housing and recreational opportunities for individuals with serious mental illness. Progress Place operates a “clubhouse” facility on Church Street in Toronto where clients, known as “members”, attend to access the available services. In the “clubhouse” model, members and staff work cooperatively to perform the functions that are necessary to ensure the operation of the clubhouse, in accordance with the International Standards for Clubhouse Programs.

4The admission policy for Progress Place is governed by the International Standards. Membership in the clubhouse is open to anyone with a history of mental illness, unless that person poses a significant and current threat to the general safety of the clubhouse community. The process for obtaining admission to the clubhouse requires a potential member to provide consent to allow Progress Place to obtain medical and other information to confirm that the potential member meets the criteria for admission.

5On December 14, 2005, a Progress Place employee met with the applicant to conduct a membership interview pursuant to an application for membership made by the applicant on November 15, 2005. Part of the application process includes asking questions about the prospective member’s correctional history, which the applicant stated at the time included bike theft as a juvenile and that he was just about to finish a probationary order for drinking. The witness states that this was not a cause for concern at the time.

6The witness states that he also discussed with the applicant obtaining consent to speak with the applicant’s physician and a new psychiatrist that the applicant was seeing. While the standard practice is to have the applicant fill out a consent form indicating who Progress Place could speak to, no consent form was completed at that time. Rather, the witness states that he was given verbal consent to speak with the applicant’s doctors. This is disputed by the applicant.

7Nonetheless, the witness did speak with the applicant’s doctors on January 18, 2006. In particular, the witness spoke to the applicant’s new psychiatrist, who revealed that the applicant had a history of convictions for sexual assault and had recently been released from incarceration for a sexual assault. The witness states that this caused concern about the applicant’s application for membership, as he may have posed a significant threat to other members. The witness was specifically concerned about the safety of women members, who are vulnerable due to their mental health issues, and the witness was concerned about inappropriate sexual contact within the clubhouse program.

8The witness states, however, that at this stage, no final decision had been made about the applicant’s application for membership. However, the witness wanted to follow up with the applicant’s probation officer to obtain more details about the nature and timeframe of the assault convictions, and was specifically concerned about the recent nature and frequency of the sexual assaults.

9Accordingly, the witness met with the applicant again on January 30, 2006 to seek his consent to speak with the applicant’s probation officer. At that time, the applicant refused to provide his consent. The witness states that the application for membership was kept open for a period of time in the event that the applicant changed his mind and agreed to provide the required consent. This is confirmed by a letter dated January 31, 2006 that the witness provided to the applicant, which states that he was requesting to make contact with the applicant’s current probation officer regarding the applicant’s history of sexual assaults. When nothing further was heard from the applicant, his application for membership was declined.

10The applicant alleges that he experienced discrimination because of race, colour, disability, receipt of public assistance and record of offences. At the CRC hearing, the applicant’s main concern appeared to be that Progress Place had not obtained his consent to speak to his doctors. I share the applicant’s concern that there is no written record that he provided this consent. I was told that, since the time of the events at issue, Progress Place has changed its application procedures to require that written consent be provided in order to proceed further with an application. However, whether or not the failure to obtain a written consent from the applicant is a violation of some other legislative scheme, I do not find that this constitutes a violation of the Ontario Human Rights Code. Given the nature of the services provided by Progress Place, I accept that it is necessary for them to speak with the doctor of a prospective member in order to confirm the member’s eligibility for the program and to satisfy themselves that the prospective member does not pose any significant threat to the clubhouse community. While the applicant would be free to withhold this consent, this would not mean that he was entitled to membership at Progress Place. To the contrary, this would result in his application not being processed.

11The evidence clearly indicates that the applicant was denied membership because he refused to provide his consent for Progress Place to speak with his current probation officer in order to obtain more information about the applicant’s history of sexual assaults. While, on its face, this may appear to relate to the applicant’s “record of offences”, this ground has a restricted meaning under the Code and applies to Criminal Code offences only if a pardon has been granted. There is no evidence before me that the applicant has been granted a pardon for the sexual assaults.

12With regard to the allegation of racial discrimination, the applicant states that he was treated disrespectfully by the Progress Place employee who interviewed him. However, the only specifics of this allegation provided by the applicant as it related to his membership allegation pertain to the failure of Progress Place to obtain his consent to speak to his doctors. A subsequent incident was raised by the applicant, where his mother, who is White, was allowed access to the clubhouse whereas access was denied to the applicant. The witness explained that this was because the applicant’s mother was a clubhouse member and thus was entitled to access their services at any time, whereas the applicant was not a member. I accept this evidence and find no basis to support the applicant’s allegation of racial discrimination.

13For all of these reasons, the application is dismissed. I have considerable sympathy for the applicant, as he is clearly struggling to overcome his mental health issues and his correctional history, and may greatly benefit from the kinds of services provided by Progress Place. Nonetheless, I accept that Progress Place has a responsibility to ensure the overall safety of its community, which is particularly vulnerable, and requires accurate and complete information in order to carry out this responsibility. The applicant’s refusal to provide Progress Place with the consent it needed to obtain the necessary information from his probation officer put Progress Place in a position where it had no real alternative but to deny his membership application.