Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Baird Applicant

-and-

Workplace Safety and Insurance Appeals Tribunal Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: January 29, 2009

Citation: 2009 HRTO 99

Indexed as: Baird v. Workplace Safety and Insurance Appeals Tribunal

WRITTEN SUBMISSIONS BY

WSIAT, Respondent ) Daniel S. Revington )

Leslie Baird, Applicant ) Don Menzies )

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 29, 2008 alleging discrimination in the provision of goods, services and facilities. In particular, the applicant alleges that the respondent, Workplace Safety and Insurance Appeals Tribunal (WSIAT), violated the Code by failing to find that sexual harassment in the applicant’s former place of employment gave rise to an entitlement to benefits pursuant to the Workplace Safety and Insurance Act. The applicant argues that the WSIAT had a legal obligation to adjudicate in compliance with the Code and seeks damages for the alleged failure to do so.

2In its Response the respondent asserts that the Tribunal has no jurisdiction over a decision of the WSIAT and requests dismissal of the Application.

3For the reasons set out below, the respondent’s request for early dismissal is granted and the Application is dismissed.

BACKGROUND TO THE APPLICATION

4After leaving employment with a company that is not a party to these proceedings in 2000, the applicant commenced a number of legal proceedings seeking redress for alleged sexual harassment. She filed complaints with the Ontario Human Rights Commission against her former employer and with the Labour Relations Board against her former union. In April 2004, she filed a claim with the Workplace Safety and Insurance Board (WSIB) seeking damages for lost wages. She claimed that she had been subject to sexual harassment and a poisoned work environment that left her unable to work. Her claim was denied and the decision was upheld by an Appeals Resolution Officer. The applicant appealed to the WSIAT.

5In a decision dated October 2, 2008 (624/07), the WSIAT dismissed the applicant’s appeal, finding no causal relationship between the alleged harassment and her lost wages.

THE APPLICATION

6The Application is filed against the WSIAT, citing alleged shortcomings in its hearing and decision-making with respect to the applicant’s appeal. Specifically, the applicant alleges the following:

I. The WSIAT violated the Code in its decision;

II. The WSIAT failed to follow the precedent set by the Supreme Court of Canada in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 with regard to upholding the Code.

7In support of its position, the applicant makes the following arguments:

I. The WSIAT’s decision is unreasonable because it does not adhere to the Code;

II. The WSIAT panel refused to address the human rights issues in the case before it;

III. The WSIAT must follow the precedents set by higher courts;

IV. This Tribunal has the authority to ensure that other government tribunals, including WSIAT, follow the Code in their decisions;

V. The applicant was denied natural justice as a result of the decision of the WSIAT.

RESPONDENT’S REQUEST TO DISMISS

8In its Response, the respondent disputes both the substance of the applicant’s allegations and the jurisdiction of this Tribunal to undertake a review of the WSIAT’s decision. The respondent argues that the Application is based entirely on the applicant’s allegation that the WSIAT did not come to the correct conclusion on her appeal. It refers to legislation that confers exclusive jurisdiction on the WSIAT to hear all appeals, and which provides a strong privative clause insulating decisions of the WSIAT from further review. Further, it points to the applicant’s history of litigation arising from the same issues as evidence that the Application is frivolous and vexatious. The respondent asks the Tribunal to dismiss the Application.

9While there is no general right of appeal from WSIAT decisions, the respondent notes that there are avenues available to the applicant. The respondent suggests that the applicant could ask the WSIAT to reconsider itself; she could complain to the provincial Ombudsman; or she could commence an application for judicial review in Divisional Court. The respondent argues that all of these options are available to the applicant and that any one of them would be more appropriate than filing an Application with the Tribunal, which has no power to review decisions of the WSIAT.

10In Reply, the applicant notes that she did indeed file a complaint with the Ombudsman on October 22, 2008, addressing the same issues that are raised in the Application. A decision has not yet been released and, in any event, she argues that the Tribunal is the most appropriate agency to hear and decide the issues in this case. Further, the applicant asserts that it would be futile to seek reconsideration at the WSIAT because the decision was a unanimous one and the panel is ill-equipped to deal with matters pertaining to the Code. The applicant has not addressed the appropriateness or availability of judicial review.

JURISDICTION OF THE TRIBUNAL

11The 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.

12The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment “with respect to services, goods and facilities”. While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal’s jurisdiction.

ORDER

13It is clear to me that this Application relates to issues that are entirely outside the jurisdiction of the Tribunal. The applicant is effectively asking the Tribunal to review the WSIAT’s interpretation of the Code and substitute its own decision for WSIAT’s. This is beyond the Tribunal’s statutory authority. The Application is dismissed.