HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tibor Berger Applicant
-and-
Homewood Health Centre, Edgardo Perez, Pauline Lysak, Satu Repo-Hendsbee and Wilson Lit Respondents
Case Resolution Conference Decision
Adjudicator: David Muir Date: June 25, 2009 Citation: 2009 HRTO 893 Indexed as: Berger v. Homewood Health Centre
APPEARANCES BY
Tibor Berger, Applicant — Gurpreet Gill, Counsel Homewood Health Centre and Edgardo Perez, Respondents — Charlotte Burkhardt, Representative Pauline Lysak, Satu Repo-Hendsbee and Wilson Li, Respondents — John Judson and Yola Ventresca, Counsel
1This is an Application filed on December 12, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2A Case Resolution Conference ("CRC" or "hearing") was held on May 28 and 29, 2009 in Toronto in accordance with the expectation, expressed in the Code and the Tribunal's Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from Tibor Berger (the "applicant"), Dr. Pauline Lysak, Dr. Satu Repo-Hendsbee and Dr. Wilson Lit (the "respondent physicians"). Dr. Edgardo Perez did not attend the CRC but did file a response and was represented by an employee of the corporate respondent, Homewood Health Centre ("Homewood"). A significant number of documents were introduced as exhibits on consent. A letter in support of the applicant from a long time treating counselor was introduced over the objection of the respondents. Later, a purported record of a telephone conversation with this same counselor was introduced by the respondent physicians. Given their hearsay nature, neither document has been given much weight in what follows.
3The applicant self-identifies as a man with a number of health concerns including ADHD, anxiety and panic disorders, high blood pressure, diabetes, high cholesterol, sleep apnea, hormonal dysfunction and morbid obesity due to an eating disorder. In the Application, the applicant alleges he was subject to differential treatment by the respondents in the provision of their services on the grounds of disability and receipt of public assistance. The applicant also alleges that he was subject to reprisal.
4In January 2006, the applicant applied to be admitted to Homewood and was admitted on August 21, 2006. During his residence at Homewood, he reacted with agitation to the preferential treatment of other patients and what he perceived as their failure to follow the rules of the institution. He attributes his reactions to his ADHD, panic and anxiety disorders. As a consequence of his disability caused behaviours, the applicant alleges, he was chastised, disciplined and threatened with discipline and talked down to. In particular the applicant alleged that:
a) Dr. Repo-Hendsbee constantly chastised the applicant for his behaviour and treated him differently from other patients because of his difficulty in listening and in accepting her demands, obeying the institutional rules and for not being an exemplary patient.
b) Dr. Repo-Hendsbee threatened him with suspension for 48 hours and ultimately dismissed him from the program on September 6 for resisting the suspension.
c) He was threatened by staff for calling 911. The applicant alleges that staff threatened to contact the police if 911 was called again.
d) Homewood's admission policy is discriminatory. Patients with private insurance are able to receive earlier admissions than those relying upon public heath plans.
Preliminary matters
5On April 30, 2009, the applicant, through his counsel, wrote to the parties and the Tribunal setting out his position. The respondent physicians brought a motion to, in effect, strike these submissions on the basis that they raised totally new allegations and were in the nature of an attempt to expand the subject matter of the complaint contrary to Rule 6.3.
6At the CRC, I ruled that, to the extent that the applicant's submissions included new allegations expanding the scope of the complaint, I agreed with the respondents. But, it also seemed to me that these submissions were more in the nature of a pre-emptive attack on any accommodation defence that the respondents might raise and to that extent I was not prepared to entirely disregard the submissions before evidence was called.
7The respondents also stated that the Application was outside of the jurisdiction of the Tribunal because the complaint was more appropriately dealt with under other statutes. In particular, the respondent physicians state that this complaint in its essence is an allegation of unethical or sub-standard medical practice and should have been brought to the College of Physicians and Surgeons pursuant to the provisions of the Health Professions Procedural Code and the Medicine Act, 1991, S.O. 1991.
8A similar but not identical request was brought by the respondents, Homewood and Edgardo Perez. The respondents did not submit that any of the alternative complaint mechanisms were given exclusive jurisdiction over the issues raised by the applicant.
9At the CRC, I ruled that while there may have been other proceedings that the applicant could have commenced to vindicate his claims arising out of his stay at the Homewood, the fact that he chose not to do so did not deprive the Tribunal of jurisdiction over the Application.
Decision
10The Application is dismissed. My reasons follow below.
Evidence
11The applicant self identifies as a person who has had or has a serious eating disorder and a number of moderate to severe emotional, medical and psychological disorders. He has a self reported history of childhood emotional and physical abuse at the hands of his parents. He was diagnosed with ADHD in 1994. He was diagnosed with a panic and anxiety disorder in 2003. All of these issues were reported to Homewood as part of the admissions process.
12Homewood's eating disorders program is a group based, recovery oriented program. A brief description from the material filed by the applicant included the following introduction to the program offered by Homewood:
The Homewood Health Centre's eating disorders Program views eating disorders as constituting an extreme pole on the continuum of weight and size pre-occupation prevalent in today's society. (...)
The program has a voluntary, group based, recovery oriented approach, which encourages self responsibility and healthy coping from the start of treatment. Patients are immediately able to access a supportive community of