[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application names the Workplace Safety and Insurance Board and one of its claims adjudicators as respondents and alleges discrimination on the basis of disability and reprisal in goods, services and facilities and employment.

[3] In a previous Interim Decision, [2009 HRTO 1596](https://www.minicounsel.ca/hrto/2009/1596), following the issuance of a Notice of Intent to Dismiss, the Tribunal held that it was not “plain and obvious” that the subject-matter of the Application was outside the Tribunal’s jurisdiction, for the following reasons, at paras. 2-3:

On July 23, 2009, the Tribunal issued a Notice of Intent to Dismiss, which noted that the Application appeared to relate to an adjudication by another statutory body….

At this stage of the proceedings (before the Application has been delivered to the respondent), the Tribunal will only dismiss an Application if it is “plain and obvious” that it is outside its jurisdiction: Morin c. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63. In Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595, released concurrently, the Tribunal addressed the issue of statutory decisions and the definition of “services” under s. 1 of the Code. In view of the principles discussed in Zaki, it is not plain and obvious that this matter falls outside the Tribunal’s jurisdiction. Accordingly, the tribunal will continue to deal with the Application.

[4] The respondents filed their Response and a Request for Order During Proceedings asking that the Application be dismissed. In the Response, the respondents take a different view of the facts from the applicant. They state that on March 19, 2009, the adjudicator called the applicant to advise that no new medical information had been received to support the continued payment of loss of earnings benefits. They state that on April 1, 2009, the adjudicator called the applicant and advised him that the medical evidence received did not provide objective findings which would preclude his return to work in his pre-injury job, and that consequently loss of earnings benefits would not be extended. On April 16, 2009, according to the respondents, the adjudicator left the applicant a voicemail message regarding the above matters, and advised the applicant of his right to appeal the decision. They state that on that date, the applicant also inquired about benefits for chronic pain disability. They state that the adjudicator advised that there was no diagnosis of chronic pain disability, which precluded consideration of such benefits, although there was reference in the physician’s materials to psychological issues.

[5] It appears that the applicant has not filed an objection to the decision under the WSIB’s processes, nor brought the matter before the WSIB’s Fair Practices Commission.

[6] The respondents take the position that the Tribunal does not have jurisdiction over the matters in the Application and request that the Tribunal dismiss the Application in its entirety. The respondents subsequently filed a Request for an Order During Proceedings, seeking the same remedy.

[7] The respondents rely on section 118 of the Workplace Safety and Insurance Act, S.O. 1997, c. 16, Sched. A, as amended (the Act), which they state gives the WSIB broad and exclusive jurisdiction to hear and decide all matters and questions arising under the Act. They submit that the substance of this Application concerns decisions made by the respondents in respect of the applicant’s claim for loss of earnings and other benefits under the Act, and that these decisions are under the exclusive jurisdiction of the WSIB.

[8] The respondents also submit that decisions of the Tribunal have found that the adjudicative functions of a statutory tribunal are not “services” under the Code, such as Baird v. Workplace Safety and Insurance Appeals Tribunal, [2009 HRTO 99](https://www.minicounsel.ca/hrto/2009/99) and Christianson v. Ontario (IPC), [2009 HRTO 203](https://www.minicounsel.ca/hrto/2009/203).

DECISION

[9] The Tribunal’s jurisprudence on the application of the Code to agencies that make decisions under statutes has been evolving since the decisions upon which the respondent relies were decided. In particular, in Zaki, supra, the Tribunal held as follows, at para. 13:

Other circumstances involve not merely the adjudication of rights between others but also the provision of a benefit or other privilege by the agency itself. The social area of “services” clearly covers the underlying benefit. Therefore, in determining whether an application relates exclusively to the “content, reasons or result” of an administrative decision under the Baird analysis, the Tribunal must examine whether the claim is exclusively about the adjudication or decision or whether the applicant is making a claim about his or her inability to obtain benefits or other services from the respondent. In the latter case, while there is a statutory decision involved, the provision of the benefit or privilege is a “service” within the meaning of s. 1 of the Code, and the applicant may argue that he or she has experienced discrimination in the provision of that service. However, the content of the decision itself is not a service within the meaning of the Code. It is not the content of the decision or reasons that is the alleged violation of the Code, but the alleged inability of the applicant to obtain the services, but for the alleged discrimination.

[10] The Tribunal went on to state as follows, in para. 16:

I add that this does not mean that the Tribunal has any general power to review the exercise of discretion by ministries or agencies administering benefits schemes, nor that the Tribunal will sit on appeal from or review such decisions. The Tribunal only has the power to determine whether there has been discrimination in the provision of services on one of the grounds set out in the Code. Moreover, s. 45.1 of the Code permits the Tribunal to dismiss an application, in whole or in part, where another proceeding has appropriately dealt with the subject-matter of the Application: see generally, Campbell v. Toronto District School Board, 2008 HRTO 62. (I note, parenthetically, that in this case neither respondent has relied upon s. 45.1).

[11] Since Zaki, the Tribunal has considered the application of these principles to decision-making at the WSIB in two cases: Dopelhamer v. Workplace Safety and Insurance Board, [2009 HRTO 2056](https://www.minicounsel.ca/hrto/2009/2056) and Frankson v. Workplace Safety and Insurance Board, [2009 HRTO 2084](https://www.minicounsel.ca/hrto/2009/2084). In Dopelhamer, which like this case involved alleged statements by WSIB claims adjudicators in the course of decision-making, the Tribunal held that “decision-making” falls under the definition of “services” but that there might be other legal reasons why the alleged actions of the respondents were outside the Tribunal’s jurisdiction. The Tribunal sought further submissions from the parties on these issues.

[12] In Frankson, which addressed alleged changes to the applicant’s Labour Market Re-Entry program, the Tribunal held that the issue of whether the matters covered by the Application were within the jurisdiction of the Tribunal was “important and complex” and “should not be considered without an understanding of the ‘full factual matrix’ of the relationship between the WSIB and the applicant, the nature of the alleged services and the administration of the Act by the WSIB”. Accordingly, the Tribunal determined that it was premature to decide the issue as a preliminary matter on the basis of the written submissions.

[13] In my view, the issue of whether these allegations in fact fall within the Tribunal’s jurisdiction should not be determined at this stage on the basis of written submissions. This Application requires the Tribunal to determine whether (i) a WSIB claims adjudicator’s allegedly discriminatory comments, and (ii) the alleged denial of WSIB benefits when the applicant’s mental disability was allegedly taken into account in an adjudication about his knee, may constitute a violation of the Code. The Tribunal may also consider whether such an application may proceed without the applicant having pursued internal mechanisms for complaint or appeal within the WSIB process. These issues are important and the subject of developing Tribunal jurisprudence.

[14] Given, in particular, the Tribunal’s developing jurisprudence in this area, I exercise my discretion under Rule 1.7(g) and direct that the matter proceed, making no determination on the issue of jurisdiction at this stage. This will allow the Tribunal adjudicator hearing the matter to determine the best manner of hearing the issues following the exchange of materials required by Rules 16 and 17. It will also allow the parties, and any potential intervenors, to develop more detailed arguments about how the Tribunal should deal with applications such as these. As set out at para. 16 of Zaki, it is clear that the Tribunal has no jurisdiction to review, in a general sense, the application of the Workplace Safety and Insurance Act to the applicant’s claim for benefits.

[15] As neither party agreed to mediation, the matter will be scheduled for a one-day hearing.

[16] In the particular circumstances of this case, I direct that the parties and any intervenors deliver and file an outline of their legal argument no later than two weeks prior to the date set for the hearing. The parties may wish to consider, in making their arguments, issues of concurrent or overlapping jurisdiction, whether there is an obligation on a party making a claim such as this one to pursue internal WSIB appeals before bringing an Application to the Tribunal, the definition of “services” and the concept of judicial immunity.

[17] Given the potential significance of the issues that arise in this case, Dopelhamer and Frankson, the Tribunal will send a copy of this decision to the Ontario Human Rights Commission, the Office of the Worker Advisor, the Office of the Employer Advisor, and the Crown Law Office – Civil of the Ministry of the Attorney General, so that they may make a request to intervene should they wish. Should any wish to intervene they shall file their request within one month of the date of this Interim Decision.

[18] The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office. The Guide, at pages 2-3, provides a list of resources available to applicants appearing before the Tribunal.

[19] I am not seized.

Dated at Toronto, this 15th day of December, 2009.

“Signed by”

David A. Wright

Interim Chair

Timothy Cochrane v. Workplace Safety and Insurance Board and James Strachan, 2009 HRTO 2182

Case Summary