Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1483

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sami Jacob

Applicant

-and-

Workplace Safety and Insurance Board, Shelley Caissie and Rachelle St. Jacques

Respondents

DECISION

Adjudicator: Kaye Joachim Date: September 15, 2009 Citation: 2009 HRTO 1483 Indexed as: Jacob v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS BY

Sami Jacob, Applicant ) ) Anna Rosenbluth, Counsel

Workplace Safety and Insurance Board, ) S. Caissie and R. St. Jacques, ) Respondents ) Gurjit Brar, Counsel

Crawford and Company (Canada) Inc. ) Steven Smith, proposed respondents ) Veronica A. Kenny, Counsel )

1This is an Application filed March 2, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The complaint filed with the Ontario Human Rights Commission on February 21, 2008 was abandoned upon the filing of the present Application.

2The purpose of this Decision is to address the respondents’ Request for Order during Proceedings seeking dismissal on the basis that the alleged acts of discrimination do not amount to a service within the Code and therefore do not fall within the jurisdiction of the Tribunal. The applicant has also filed a request for order During Proceedings to add Crawford and Company (Canada) Inc. as a respondent.

3This Decision is based on the written submissions of the parties.

BACKGROUND

4The applicant self-identifies as a person with a workplace injury. The respondents are the Workplace Safety and Insurance Board (WSIB) and two WSIB employees, Shelley Caissie and Rachelle St. Jacques. Respondent Caissie adjudicated many of the applicant’s requests for benefits. Respondent St. Jacques was Caissie’s manager and communicated with the applicant. Steven Smith is the employee of Crawford and Company (Canada) Inc., an independent company that provides support to the WSIB in the implementation of the applicant’s Labour Market Re-entry program.

5The applicant alleges that the WSIB and the three personal respondents discriminated against him on the basis of disability and creed (anti-Semitism) in the manner in which they handled his participation in a WSIB LMR program. The applicant alleges that the respondents failed to accommodate his disabilities while he was enrolled in the LMR, which led to his loss of benefits at various times. The applicant also alleges that respondent Caissie characterized the applicant’s actions as “penny pinching and money-focused” and exhibited anti-Semitic stereotypes in her dealings with him. He also alleges that the respondents denied him a 30 day leave of absence for mourning, as required by his religion.

ANALYSIS

6There are elements of a statutory tribunal’s process that are not encompassed by the Code’s meaning of “service” and the purely adjudicative function is one of them: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 at para. 13 and Christianson v. Ontario (Information and Privacy Commissioner) 2009 HRTO 203.

7The applicant submits that LMR services are a service offered by the WSIB (whether delivered in-house or through an external agency) and the respondents are obliged to deliver the service in a non-discriminatory manner. Failing to adapt the LMR program to accommodate for the applicant’s non-compensable disabilities amounts to discrimination.

ALLEGATIONS OF DISABILITY-RELATED DISCRIMINATION

8The applicant alleges that the respondents failed to accommodate his requests for accommodation of his pain because the WSIB found that the increasing pain was not related to a compensable injury.

9In December 2005 the WSIB determined that the applicant’s depression was non-compensable and therefore failed to consider the condition in the provision of LMR and other benefits.

10In fall of 2006 the applicant’s LMR benefits were reduced as a result of non-participation due to a non-compensable heart infection.

11In January 2007 the applicant’s non-compensable psychiatric condition rendered him incapable of participating in the LMR program without modification. His LMR benefits were terminated in July 2007.

12The applicant’s requests for taxi support due to his inability to drive because of mediation taken for non-compensable injuries were denied.

13In this case, the applicant specifically raised the above allegations of failure to accommodate within the WSIB benefit system. In a decision dated August 28, 2007, an Appeals Resolution Officer allowed some of the applicant’s appeals from the denial of benefits by respondent Caissie. The ARO concluded that the applicant’s back pain was compensable and that he suffered from chronic pain disability related to the compensable injury. The ARO concluded that he was unable to participate in the LMR due to a combination of his compensable and non-compensable injuries and therefore reinstated his benefits from July 2007 until age 65. As the ARO determined that the applicant was unable to continue in the LMR, it was unnecessary to consider the appeal of the requested taxi support.

14It appears that all the alleged failure to accommodate and resulting loss of benefits have been raised and dealt with by the WSIB. The applicant quite properly raised the alleged breach of the Code within the adjudicative system of the WSIB. Regardless of the correctness of the decision, the actions complained of by the applicant fall within the meaning of adjudicative services and are therefore not within the jurisdiction of the Tribunal.

RELIGIOUS BEREAVEMENT LEAVE

15In a second decision dated July 11, 2008 the ARO addressed the applicant’s claim for a 30 day bereavement leave. The ARO noted that in fact the applicant was paid three weeks of benefits during the bereavement leave and was required to use one week of vacation entitlement for the final week of the leave. The ARO concluded that sufficient efforts to accommodate the applicant’s request for bereavement leave had been made.

16Regardless of the correctness of the decision, the actions complained of by the applicant fall within the meaning of adjudicative services and are therefore not within the jurisdiction of the Tribunal.

OUTSTANDING APPEALS

17It appears that the applicant has an outstanding appeal at the WSIB related to the alleged failure to accommodate his disability during the LMR program and the resulting loss of benefits in the fall of 2006.

18The actions complained of by the applicant fall within the meaning of adjudicative services and are therefore not within the jurisdiction of the Tribunal.

ANTI-SEMITISM

19The Application also makes a vague allegation that there was underlying anti-Semitism which pervaded respondent Caissie’s handing of his file, including that she stereotyped the applicant as penny pinching and money-focused.

20However, the applicant has not set out any facts which could lead to a finding of a breach of the Code by the respondents.

CONCLUSION

21In light of my conclusion that the allegations against the respondent are not within the jurisdiction of the Tribunal, it is unnecessary to determine the requests to add an additional respondent.

22The Application is dismissed.