Bulimaibau v. Workplace Safety and Insurance Board, 2008 HRTO 351

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florence Bulimaibau

Applicant

-and-

Workplace Safety and Insurance Board, J. Brewer and A. Danos

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 3, 2008

Citation: 2008 HRTO 351

Indexed as: Bulimaibau v. Workplace Safety and Insurance Board

1This is an Application filed November 3, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On November 14, 2008 the Tribunal scheduled mediation for February 6, 2009. On November 26, 2008 the respondents filed their Response to the Application.

2The respondents refused to participate in the mediation.

3The personal respondent, Danos, was responsible for deciding the applicant’s claim for WSIB benefits. By way of a decision letter dated August 9, 2007 she denied the applicant’s entitlement to loss of earnings benefits beyond April 18, 2007 based on a finding that the modified work offered by the employer was suitable. The Application alleges that by so deciding the respondents aided and abetted the employer in refusing to accommodate her disability. The respondents submit that review of their decision-making is not within the jurisdiction of the Tribunal.

4The respondents raise the jurisdiction issue as a preliminary objection and ask the Tribunal to dismiss the Application on that basis. In addition, there is an issue whether, even if all of the facts contained in the Application are assumed to be true, the applicant could establish the respondents have violated the Code. In effect, does the Application raise a “prima facie” case of discrimination?

5The expectation is that most section 53(3) applications will be scheduled for mediation prior to the hearing and determination of preliminary matters. However, the Tribunal retains the discretion to control its process and will hear preliminary requests prior to the mediation in appropriate circumstances. Rule 4.1 provides that the Tribunal may exercise any of its powers under these Rules on its own initiative. Rule 4.3(d) provides that the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined.

6In this case, the Tribunal determines that it is most fair, just and expeditious to decide the preliminary issues first.

7Accordingly, the parties are directed as follows:

a. Within 10 days following the date of this decision, the applicant shall advise the Tribunal and the parties of the status of any proceedings commenced by the applicant against her employer and/or union, if any.

b. Within 30 days following the date of this decision, the respondents shall deliver to the applicant and file with the Tribunal, their submissions, documents and case law on the jurisdiction of the Tribunal to decide this Application and whether the Application discloses a prima facie violation of the Code.

c. Within 30 days of the receipt of the respondents’ submissions, the applicant shall deliver to the respondents, and file with the Tribunal, her submissions, documents and case law on the preliminary issues.

d. Within 10 days of the receipt of the applicant’s submission, the respondents shall their response, if any.

e. The mediation scheduled for February 6, 2009 is cancelled.

8The Tribunal will contact the parties to set a date for the case resolution conference. The parties are reminded that the Section 53(3) Rules contemplate that applications under section 53(3) of the Code be dealt with in an expedited manner.