Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 463

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Lindberg

Applicant

-and-

Workplace Safety and Insurance Board and

Denise Caron-Adam

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: April 22, 2009

Citation: 2009 HRTO 463

Indexed as: Lindberg v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS BY

Scott Lindberg, Applicant ) On his own behalf

Workplace Safety and Insurance Board, ) Gurjit Brar, Counsel

Respondent )

INTRODUCTION

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”). In an Interim Decision, 2009 HRTO 250, I invited submissions from the parties on two preliminary issues: First, whether the substance of this Application is within the jurisdiction of the Tribunal; and, if so, whether it is appropriate to defer the Application pending the outcome of the Workplace Safety and Insurance Board (WSIB) and/or Workplace Safety Insurance Appeals Tribunal (WSIAT) avenues of appeal.

2Upon reviewing the submissions of the parties, I have reached the decision to dismiss the Application for lack of jurisdiction.

DECISION

3The jurisdiction of the Tribunal is based on the provisions of the Code. Where an application is beyond the jurisdiction of the Tribunal, it will be dismissed pursuant to Rule 13.1 of the Rules.

4The applicant has made a number of allegations against the respondent, which is an agency established by legislation to exercise exclusive powers over the substance of its statutory mandate.

5In his Application, the applicant characterized his complaint as arising in the area of employment and/or contract. The applicant is not currently or formerly in an employment relationship with the respondent and the allegations do not arise in the context of any purported contractual relationship. Rather, the circumstances giving rise to the Application involve the applicant’s unsuccessful claim for statutory benefits administered by the WSIB pursuant to its enabling legislation.

6It is therefore more appropriate to analyze the applicant’s claims in the context of “services”. Section 1 of the Code provides that every person has the right to equal treatment “with respect to services, goods and facilities”. While the Code does not define “services”, former Justice of the Supreme Court of Canada, the Honourable Peter Cory, sitting as adjudicator with the Tribunal, stated in Braithwaite v. Ontario (Attorney General) (No. 1) 2005 HRTO 32, rev’d, but not on this point:

“service” means any service or procedure that is provided to the public by a government agency or institution of the Legislature and includes all communications for the purpose.

7The Tribunal has ruled that the services offered by statutory tribunals do not extend to their final adjudicative decisions: Baird v. Workplace Safety and Appeals Tribunal, 2009 HRTO 99 at para. 13. This does not mean, however, that statutory tribunals enjoy blanket immunity from complaints grounded in the Code. In providing their services to the public, it is possible that statutory tribunals could run afoul of the Code.

8In the present case, the applicant has failed to allege incidents or actions that involve the services of the WSIB, within the meaning of the Code. Rather, the allegations all fall squarely within the adjudicative function of the WSIB and specifically to its interpretation and application of its enabling legislation.

9I appreciate that the applicant is frustrated with the conclusions of the WSIB and what he alleges to be an inordinate delay in the handling of his case, which he believes amount to discrimination. He is presently exercising his right to pursue an appeal to the WSIAT, which is the appropriate agency to consider his arguments. This Tribunal’s power to address allegations of discrimination extends only to the social areas that are identified in the Code. The Tribunal does not possess a general or inherent power to entertain complaints of discrimination that are beyond its statutory mandate.

10In the light of my finding regarding jurisdiction, it is therefore unnecessary for me to decide the question of deferral. The Application is dismissed.