Bulimaibau v. Workplace Safety and Insurance Board, 2009 HRTO 413

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florence Bulimaibau

Applicant

-and-

Workplace Safety and Insurance Board, J. Brewer and A. Danos

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim

Date: April 9, 2009

Citation: 2009 HRTO 413

Indexed as: Bulimaibau v. Workplace Safety and Insurance Board

Appearances

Florence Bulimaibau, Applicant ) ) Glen Morrison, Representative

Workplace Safety and Insurance Board, ) J. Brewer and A. Danos, Respondents ) Gurjit Brar, Counsel

1This is an Application filed November 3, 2008 under section 53(3) 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 August 22, 2007 was abandoned upon the filing of the present Application.

2A Case Resolution Conference was held on April 6, 2009 to hear the parties’ submissions on the respondents’ Request for early dismissal. For the reasons below, the Application is dismissed.

3The applicant experienced a workplace injury while working for her employer as a personal support worker. She was diagnosed by a psychologist appointed by the WSIB with Post Traumatic Stress Disorder and received loss of earnings benefits from November 24, 2006 until April 2007.

4The personal respondent Ms. J. Brewer, a Claim Adjudicator with the WSIB, advised the applicant, based on a report from the applicant’s treating psychologist, that she was considered fit to return to work but not at the same location and that the work offered by the employer at another location was suitable. On April 12, 2007, the employer offered the applicant a position as a personal support worker at an alternative location. The applicant did not agree that she was fit to return to work at all.

5The applicant’s benefits were terminated effective July 7, 2007 as a result of the decision of the personal respondent, Ms. A. Danos, an Adjudicator with the WSIB, dated August 9, 2007. Ms. Danos decided that the applicant was disentitled to benefits beyond April 18, 2007 because she had had refused suitable employment. Her employment was subsequently terminated by the employer.

6The applicant filed a formal objection and Ms. Danos rejected her request for reconsideration. She filed a subsequent appeal which was upheld by an Appeals Resolution Officer in a decision dated January 15, 2008. Loss of earnings benefits were reinstated from April 2007 and continuing.

7The applicant alleges that the WSIB and adjudicators Brewer and Danos “aided and abetted” the employer in refusing to accommodate her disability, by instructing or encouraging the employer not to accommodate the applicant except by offering an alternative location.

8The only factual allegations of discrimination set out in the Application are those set out above. It is clear that what the applicant is challenging is the adjudicative decisions of respondents Brewer and Danos, and through them, the WSIB. There 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.

9Assuming (without finding) that the employer acted upon the WSIB adjudicative decision that the applicant had refused suitable employment and subsequently terminated the applicant’s employment, this does not make the WSIB or the personal respondents parties to the employer’s alleged discrimination.

10The Application is dismissed.