Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 250

Human Rights Tribunal of Ontario

Between:

Scott Lindberg Applicant

-and-

Workplace Safety and Insurance Board and Denise Caron-Adam Respondents

Interim Decision

Adjudicator: Faisal Bhabha Date: March 5, 2009 Citation: 2009 HRTO 250 Indexed as: Lindberg v. Workplace Safety and Insurance Board

1This is an Application filed November 11, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Application as filed was incomplete and the applicant filed additional information on December 12, 2008. The Application alleges discrimination in employment and/or contract based on disability, though it appears the applicant actually means discrimination in services.

2The respondents jointly filed a complete Response to the Application on January 29, 2009, which included a request for early dismissal on jurisdictional grounds pursuant to Rule 13.1 and an alternative request for deferral pursuant to Rule 7 and s. 45 of the Code. The applicant filed a Reply dated February 8, 2009.

Dismissal

3In his Application, the applicant requests that his WSIB benefits be reinstated retroactively and with interest. He claims that the WSIB Claims Adjudicator erred in her decision regarding the applicant's employability. While he claims discrimination, the allegations the applicant makes relate only to the determination of his disability status and employability within the meaning of the Workplace Safety and Insurance Act. The respondents therefore raise a jurisdictional objection and ask that the Tribunal dismiss the Application pursuant to Rule 13.

4The Tribunal's authority is limited to dealing with claims of discrimination under the Code. The Tribunal does not have a general power to enquire into whether another tribunal or agency has erred in its decision-making: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99. The applicant must therefore explain how his Application raises matters which the Tribunal has the power to decide.

Deferral

5The respondents make the alternative argument that, should the Tribunal not dismiss this Application, it should defer to the appeal process available to the applicant internally through the WSIB and ultimately to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). In correspondence dated December 16, 2008 from the applicant's counsel to the WSIB Claims Adjudicator, the applicant disclosed his intent to appeal the Adjudicator's decision through the available internal process.

6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically granted simply because the parties are involved in other legal proceedings.

7Assuming the Tribunal has the jurisdiction to entertain this Application, the parties must address whether it should be deferred pending the outcome of the WSIB process as requested by the respondents.

Order

8The Tribunal requests submissions from the parties on the following issues:

a. Whether the substance of this Application is within the jurisdiction of the Tribunal; and, if so,

b. Whether it is appropriate to defer the Application pending the outcome of the WSIB and/or WSIAT avenues of appeal.

9Accordingly, the parties are directed as follows:

a. Within 10 days following the date of this decision, the applicant shall deliver to the respondent, and file with the Tribunal, submissions, including documents and case law, if any, on the two issues identified above; and

b. Within 5 days of the receipt of the applicant's submission, the respondent shall file its reply, if any.

10I am not seized of this matter.