Mary Dopelhamer v. Workplace Safety and Insurance Board, 2009 HRTO 2056

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Dopelhamer

Applicant

-and-

Workplace Safety and Insurance Board, Enid Hervey, Carolyne Joly, Dan Paris, Kim Hill-Potvin, Sharon Barrier, Steven Dell, and Darcy Bowman

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: November 30, 2009

Citation: 2009 HRTO 2056

Indexed as: Dopelhamer v. Workplace Safety and Insurance Board

1The applicant filed an Application on April 15, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the grounds of disability and age with respect to goods, services and facilities in the course of the applicant’s dealings with the Workplace Safety and Insurance Board (“WSIB”). This Interim Decision deals with a Request for an Order During Proceedings (“RFOP”), and gives a Case Direction.

2In its Response to the Application the respondents submit that the applicant, in essence, seeks to challenge decisions made by some of the respondents respecting the applicant’s entitlement to benefits and that, to the extent the Application challenges decisions of the respondents, it is beyond the jurisdiction of the Tribunal. The respondents submit that the balance of the Application conveys dissatisfaction about how the applicant believes she was treated by the respondents, and that, on the face of the Application, there is no factual basis to establish that this alleged treatment amounts to discrimination on the alleged grounds. Accordingly, the respondents also request that this aspect of the Application be dismissed as failing to disclose discrimination contrary to the Code.

3The respondents also filed a RFOP, asking that the Application be dismissed because it is outside the jurisdiction of the Tribunal. The respondent referred briefly to three Tribunal decisions in which the Tribunal held that the content, reasons and result contained in a decision of a statutory decision-maker were not “services” under the Code. The respondents did not identify the titles of the employees named in the Application, nor did it provide a description of the functions of these employees.

4The applicant has not filed a Response to the respondents’ RFOP.

5It is clear that the applicant has filed with the Tribunal and served on the respondents correspondence that includes decisions made by some of the respondents (titled “Claims Adjudicator” or “Adjudicator”) dated August 29, 2007, and May 2, 2008, so it would appear that these decisions are at issue in this Application. Jurisdiction questions raised by the respondents will be dealt with below, but it should be noted that this Application also contains allegations that fall beyond the decisions made to date by employees of the WSIB. The applicant says that she was “accused of having arthritis due to my age, other health problems due to my age”. She names a “case nurse” and physiotherapists as involved in this incident or incidents. The applicant appears to allege that the respondents, or some of them, assumed that she had certain disabilities only because of her age.

Are the decisions of a WSIB Adjudicator or Claims Adjudicator a “service” for the purposes of the Code?

6It is not plain and obvious that the decisions that appear to be of concern to the applicant do not fall within the definition of “services” for the purposes of the Code.

7In numerous decisions, the Supreme Court of Canada has ruled that a broad, policy-based and liberal interpretation must be given to human rights legislation and the policies behind such legislation: see Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665; B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403), at para. 44.

8The Supreme Court of Canada has also stated that when the legislature intends to limit the scope of a statutory provision, it usually says so clearly: Pharmascience Inc. v. Binet, 2006 SCC 48; Glykis v. Hydro-Québec, 2004 SCC 60 at para. 13; Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70 at para. 3.

9The Code being a quasi-constitutional statute, a legislature would have to use very clear language to limit the ambit of a term; it is not open to the Tribunal to read in a limitation that the legislature has not created: Canada (House of Commons) v. Vaid 2005 SCC 30, [2005] 1 S.C.R. 667 at para 81. In University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, the Supreme Court declined to "import" a defence into human rights legislation where none existed, even where the fact situation, which involved safety, was compelling. Reading in limitations could not be said to be interpreting the legislation to advance the policy behind it.

10The Hon. Peter Cory, in Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 at para. 22, defined “services” as follows:

(…) “service” must mean something which is of benefit that is provided by one person to another or to the public. The Human Rights Code of Ontario is certainly remedial in its purpose and must therefore have the least restrictive definition applied to it.

11The Divisional Court confirmed that decision: Braithwaite v. Ontario (Attorney General), 2007 CanLII 56481 (Div. Ct.).

12The Code reveals no legislative intention to limit the general scope of the term “services”: Peel Board of Education v. Ontario Human Rights Commission, 1990 CanLII 6605 (ON HCJ), 72 O.R. (2d) 593 (Div. Ct.); Braithwaite v. Ontario (Attorney General), supra; Hogan v. Ontario (Ministry of Health & Long-Term Care) 2005 HRTO 49.

13The broad application of Part I of the Code is further signalled by the use of the term “with respect to”. It is not qualified in any way. A phrase similar to “with respect to” was interpreted by the Supreme Court of Canada in Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29 at 39:

The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters.

14For the most part, the Tribunal has continued to apply a broad, policy-based and liberal approach to interpretation of the Code (see for example Thavarajasoorier v. Incorporated Synod of the Diocese of Toronto, 2009 HRTO 314). For the reasons noted above, I prefer this approach.

15Individuals entrusted with the responsibility of exercising statutory powers of decision-making are, in my view, providing a service to both individuals and the public as contemplated in Braithwaite, above.

16It is important to draw a distinction between the substantive reach of the Code itself and the jurisdiction of this Tribunal to deal with the subject-matter of an Application. Inclusion of decision-making within the definition of “services” will not in all cases resolve the issue of this Tribunal’s jurisdiction, and where the appropriate forum for review of a particular matter is elsewhere than at this Tribunal, a court or other tribunal may apply the substantive law of the Code.

17Some of the limits of Tribunal jurisdiction are stipulated in the Code. Others may exist as part of the operation of other legislation (subject to s. 47 of the Code) or of the common law. One example of a limitation arising from the common law can be seen in Freitag v. Penetanguishine (Municipality), 2009 HRTO 1712, in which the Tribunal dismissed, on the basis of parliamentary privilege, that part of an Application that alleged that an Act of the Legislature in itself was discriminatory.

18Another example of a limit to Tribunal jurisdiction may arise in respect of judicial or quasi-judicial decision-making. A decision of a quasi-judicial administrative tribunal was discussed in Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595. In that decision, the Tribunal noted that the law generally does not impose civil liability on adjudicators for the decisions they make, citing Edwards v. Law Society of Upper Canada (2000), 48 O.R. (3d) 329 (C.A.); aff’d 2001 SCC 80, [2001] 3 S.C.R. 562.

19In this case, it is not clear that the decisions of WSIB Claims Adjudicators would qualify for judicial or quasi-judicial immunity; there is no assertion by the respondents that the Claims Adjudicator was deciding a dispute “purely between others”, the term used in Zaki, above. However, the respondents have provided no description of the functions of the Claims Adjudicator and Adjudicator named as respondents by the applicant. Further, it may be that some or all of the respondents are affected by section 179 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, as set out below.

20The respondents’ RFOP is denied, but the respondents will be given the opportunity to address the issue of jurisdiction, below.

Does the Application allege a breach of the Code?

21As noted above, this Application contains allegations that the applicant was “accused of having arthritis due to my age, other health problems due to my age”. She names a “case nurse” and physiotherapists as involved in this incident or incidents. She does not, however, clearly explain how the Code has been breached and by whom. Thus she has not provided sufficient details to assess whether these allegations are connected to a breach of the Code.

22The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination with respect to services, goods and facilities on the grounds of, among others, age and disability. The Tribunal does not have a general power to inquire into claims of unfairness outside the areas and grounds listed in the Code.

23To deal with this matter in a fair, just and expeditious manner, the Tribunal requires more information from both applicant and respondents. The Registrar will schedule a hearing by conference call to deal with any further issues of jurisdiction. For the purposes of the conference call:

• The respondents should be prepared to make any arguments it wishes to make in regard to why, despite the fact that decision-making is a “service”, the decisions at issue might be beyond the jurisdiction of the Tribunal to review.

• The respondents should make any arguments they might wish to make in respect of the application of s. 179 of the Workplace Safety and Insurance Act, which provides as follows:

179 (1) No action or other proceeding for damages may be commenced against any of the following persons for an act or omission done or omitted by the person in good faith in the execution or intended execution of any power or duty under this Act:

1. Members of the board of directors, officers and employees of the Board.

2. The chair, vice-chairs, members and employees of the Appeals Tribunal.

3. Persons employed in the Office of the Worker Adviser or the Office of the Employer Adviser.

4. Persons employed by a safe workplace association, a medical clinic or a training centre designated under section 6.

5. Physicians who conduct an assessment under section 47 (degree of permanent impairment).

6. Persons who are engaged by the Board to conduct an examination, investigation, inquiry, inspection or test or who are authorized to perform any function.

(2) Subsection (1) does not relieve the Board of any liability to which the Board would otherwise be subject in respect of a person described in paragraph 1, 4, 5 or 6 of subsection (1).

• The applicant should be prepared to explain what actions or omissions, and by whom, are alleged by the applicant to amount to a breach of her right to equal treatment with respect to services on the grounds of age and disability.

24If the parties wish to rely on any additional supporting material for the purposes of the hearing of this issue (including submissions, facts or legal authorities), the parties are directed to serve the material on the other party and file it with the Tribunal by no later than two weeks before the date scheduled for the conference call.