Smith v. Workplace Safety and Insurance Board, 2009 HRTO 1705

Human Rights Tribunal of Ontario

B E T W E E N:

Carlton Smith Applicant

-and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: October 19, 2009 Citation: 2009 HRTO 1705 Indexed as: Smith v. Workplace Safety and Insurance Board

1This is an Application filed on June 2, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In this Application, the applicant alleges discrimination on the ground of disability, in the provision of goods, services or facilities. The applicant describes a series of interactions with the Workplace Safety and Insurance Board (the "WSIB") in dealing with a claim for benefits. He states that the WSIB delayed in dealing with his claim, ignored his concerns and thwarted his efforts to have a reassessment of his non-economic loss settlement. He alleges that the WSIB engaged in a "deliberate act of discrimination."

3The applicant claims that the failure to refer him to a pain clinic was discriminatory. He claims that the WSIB deliberately mishandled his claim for certain expenses, resulting in delayed payment to him.

4As financial remedy, the applicant asks for $3.9 million, which he explains by stating that the WSIB "would normally have costs over the natural course of my life over $400,000."

5The WSIB filed a Response as well as a Request for an Order During Proceedings. The WSIB makes two requests. First, the WSIB asks the Tribunal to dismiss the Application as failing to disclose discrimination contrary to the Code. The WSIB states that the applicant is expressing dissatisfaction with the handling of his claim for benefits, but there is no factual basis to establish that the alleged treatment amounts to discrimination on the basis of disability.

6Further, and in the alternative, the WSIB states that the applicant is seeking, in essence, to challenge decisions made by the WSIB respecting his entitlement to benefits. Such decisions are within the exclusive jurisdiction of the WSIB and to the extent the Application challenges decisions of the WSIB, it is beyond the jurisdiction of the Tribunal.

7In his Response to the Request for Order, the applicant states that he is not challenging any decisions of the WSIB. He states that what he is challenging is that "the vast majority of the services provided had to be corrected or renegotiated. I had to force the adjudicator to correct their mistakes by numerous phone calls and or written communications to both the adjudicators and or their supervisor." The applicant further submits that the services provided by a WSIB adjudicator are subject to the Code.

8The Tribunal finds it appropriate to hear the oral submissions on the WSIB's requests to dismiss the Application, and will accordingly convene a conference call for this purpose.

9The issues to be addressed in the conference call are:

• whether the facts alleged in the Application, even if assumed to be true, amount to discrimination against the applicant on the ground of disability and
• whether the actions of the WSIB as alleged in the Application are within the definition of a "service" for the purpose of the Code and therefore within the Tribunal's jurisdiction to consider.

10If either party wishes to rely on any written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other party and file it with the Registrar no later than two weeks before the date of the conference call.

11I am not seized of this matter.