Debowska v. Workplace Safety and Insurance Board, 2009 HRTO 488

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eva Debowska Applicant

-and-

Workplace Safety and Insurance Board and Lorna Francis Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mary Anne McKellar Date: April 27, 2009 Citation: 2009 HRTO 488 Indexed as: Debowska v. Workplace Safety and Insurance Board

APPEARANCES BY

Eva Debowska, Applicant ) on her own behalf Workplace Safety and Insurance Board and Lorna Francis, Respondents ) Gurjit Brar, Counsel

1This is an Application under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H-19 as amended (the "Code"). Upon its filing with the Human Rights Tribunal (the "Tribunal") on October 3, 2008, the applicant abandoned her complaint to the Human Rights Commission filed August 30, 2007.

2I convened a Case Resolution Conference on April 16, 2009 to hear the parties' submissions on the respondents' request for early dismissal of this application (the "Request").

3This Application is dismissed, for reasons set out below.

4The applicant suffered a workplace injury while working for her employer. She filed a claim with the responding party, the Workplace Safety and Insurance Board (the "WSIB") on April 30, 1998. The respondent Lorna Francis is a Claims Adjudicator with the WSIB.

5The applicant received WSIB benefits and participated in a labour market re-entry program. She complains that she was pressured into pursuing a program that was not of her choosing. Her benefits ceased at the end of August 30, 2007, when it was determined that her program was complete and she was ready to re-enter the workforce. Prior to that date, there had been a two-week period in which the applicant's benefits were reduced. The person responsible for dealing with the applicant and making those decisions was the respondent, Lorna Francis. The applicant has appealed those decisions internally to the WSIB. Her appeal was partially successful, and she acknowledged that she has the right to make a further appeal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT").

6The applicant's allegations all relate to the administration of WSIB benefits and to WSIB's adjudicative processes and decision making. Her only relationship with the respondents is that she is a claimant in the WSIB system and Lorna Francis is a decision maker handling her file. The adjudicative functions of a statutory tribunal are not "services" under the Code, as the Tribunal has noted in a number of recent decisions. See Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 at ¶13; Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 203, reconsideration denied 2009 HRTO 424; and Bulimaibau v. Workplace Safety and Insurance Board, 2009 HRTO 413.

7After counsel for the respondents had made his submissions in support of the Request for early dismissal of this Application, and after I had provided the applicant with a copy of the Bulimaibau decision and a recess in which to review it, she returned to the hearing room and requested some days to consult with a lawyer before responding. I confirmed that she was asking me to adjourn the hearing, and then declined to do so, providing oral reasons, which I summarize below.

8The applicant has been on notice since the Response in this matter was filed on December 15, 2008, that the respondents would seek early dismissal of the Application based on their position that their relationship with the applicant is not a "service" and not susceptible to review under the Code. Subsequently, the applicant was served with the respondents' Request on or shortly after January 30, 2009. By letter dated February 2, 2009, the Tribunal's Registrar-Transition advised her that she could file representations in response to the Request by February 27, 2009. She did not do so because she was busy moving. The Registrar-Transition's letter also clearly indicated that the Request would be dealt with at the Case Resolution Conference scheduled for April 16, 2009. In short, the applicant had more than adequate notice of the matter to be addressed at the hearing, and ample opportunity to have retained counsel and or sought an adjournment at an earlier date.

9Once I had declined to adjourn the hearing, the applicant simply indicated that she opposed the Request but had no submissions to make in support of her position.

10In summary, this Application relates entirely to the respondents' exercise of their statutory decision making responsibilities which are not susceptible of review by the Tribunal. This Application is dismissed.