Field v. Workplace Safety and Insurance Board, 2010 HRTO 1028

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Field

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: May 7, 2010

Citation: 2010 HRTO 1028

Indexed as: Field v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS BY

Paul Field, Applicant )

) Self-represented

Workplace Safety and Insurance Board, ) Gurjit Brar, Counsel

Respondent ) )

1This is an Application filed June 30, 2009 under section 53(5) 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 February 5, 2006 was abandoned upon the filing of the present Application.

2The purpose of this Decision is to address the respondent’s Request for Order during Proceedings seeking dismissal on the basis that the alleged acts of discrimination do not fall with the jurisdiction of the Tribunal.

3This Decision is based on the written submissions of the parties.

BACKGROUND

4The applicant alleges that the Workplace Safety and Insurance Board (“WSIB”) discriminated against him in the manner in which the various Claims Adjudicators directed his Labour Market Re-entry Program (”LMR”) and his related entitlement to WSIB benefits.

5The applicant filed a claim for benefits with the WSIB in 1998. In 2000 the applicant was referred to a LMR assessment to identify a suitable employment or business. The LMR plan was prepared in June 2000. The applicant began training in the LMR program in January 2002. The applicant asserts that he was too ill to begin the program in January and sought a deferral of the program with the result that his benefits were inappropriately reduced.

6By decision dated February 1, 2002 a WSIB Claims adjudicator advised the applicant that his benefits would be reduced until he commenced the LMR program in the spring.

7By decision dated March 13, 2002 the Claims Adjudicator reconsidered the decision based on further information and reinstated benefits until the applicant commenced the LMR program in the spring.

8By decision dated September 9, 2002 the Claims Adjudicator advised that the LMR program would be further deferred until September/October 2002 due to a number of issues, including that the accommodations needed in order to be successful were not totally in place.

9In a decision dated May 1, 2003 the Claims Adjudicator confirmed that the applicant’s LMR program was cancelled as it appeared that the applicant was unable to successfully complete it even though the accommodations were in place for his non-compensable disability. The Claims Adjudicator concluded that the applicant was no longer a candidate for formal retraining because the “non-compensable issues continue to pose barriers despite the accommodations put in place for you. Therefore, a formal structured academic environment does not appear to be appropriate.” Accordingly, the Claims Adjudicator identified a direct entry Suitable Employment and Business (SEB) and deemed him to be earning the wages of the SEB. The Claims Adjudicator calculated the applicant’s Loss of Earning (LOE) benefits accordingly.

10The applicant alleges that the above WSIB decisions failed to take adequate appropriate account of his disabilities in the design and implementation of the LMR, resulting in the wrongful termination or reduction of benefits from time to time.

11The respondent notes that while the applicant initially filed an objection to the May 1, 2003 decision, it was subsequently withdrawn. He has not filed an appeal of any decision made by the WSIB regarding his entitlement to benefits or his participation in the LMR. Instead he filed a human rights complaint in February 2006.

NEW APPLICATION

12On March 26, 2010 the applicant advised the Tribunal that he intended to file a new Application against the respondent with respect to post-complaint events and he asked me to consider this in making my determination on this preliminary issue. At this stage, no section 34 Application having been filed and no request for consolidation of the Applications having been made, I conclude that notwithstanding the applicant’s intentions, it is fair, just and expeditious to determine the preliminary jurisdictional issue with respect to the transitional Application before me. The events complained of are already many years old and further delay would be detrimental to the parties.

ANALYSIS AND DECISION

13The respondent asserts that the Tribunal has no jurisdiction over the contents and reasons of the WSIB decisions in respect of the applicant: Baird v. WSIAT, 2009 HRTO 99 (“Baird”); Bulimaibau v. Workplace Safety and Insurance Board, 2009 HRTO 413; Christianson v. Ontario (Community Safety and Correctional Services), 2009 HRTO 752.

14The applicant relies upon the cases of Zaki v. Ontario (Community and Social Services) 2009 HRTO 1595; Cochrane v. Workplace Safety and Insurance Board, 2009 HRTO 1596, and Frankson v. Workplace Safety and Insurance Board, 2009 HRTO 2084.

15In Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 710, I reviewed the above cases and other Tribunal case law on this issue and concluded:

In my view, after carefully considering the various approaches taken by the Tribunal, I conclude that the term “services” in section 1 of the Code, does not include the content and reasons of a WSIB claims adjudicator decision determining entitlement to benefits under the WSIA.

16I recognize that in the case of Dopelhamer v. Workplace Safety and Insurance Board, 2009 HRTO 2056 and 2010 HRTO 765 the Tribunal has taken a different approach and has, in similar circumstances, determined that the functions of a WSIB Claims Adjudicator are a “service” within the meaning of the Code.

17For the reasons set out in Ballieram, I continue to hold the view that the Tribunal has no authority to review the various Claims Adjudicator decisions at issue in this Application. I note that when I issued Ballieram I was aware of the position taken by the Vice-Chair in the first Dopelhamer decision which position was simply confirmed and expanded upon in the subsequent Dopelhamer decision.

18The Legislature has set up a specific legislative scheme for the determination of entitlements to benefits under the WSIA. The WSIB has set up an elaborate system of adjudication beginning with decisions of Claims Adjudicators, moving to appeals to Appeals Resolution Officers and ultimately a right to appeal to the WSIAT.

19If an injured worker believes that the determination of benefits by a claims adjudicator is discriminatory, he or she can and must raise that allegation within the context of the WSIB appeals system. I note that in making determinations, the WSIB and the WSIAT must apply and interpret the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513.

20The Legislature did not intend the Tribunal to usurp the function of the Divisional Court and act as a tribunal of appeal from all other adjudicative decisions within the WSIB system.

21I conclude that the Tribunal has no authority to review the content and reasons of the Claims Adjudicator’s decisions listed above determining the applicant’s entitlement to and continued participation in an LMR program and the related benefits associated with such decisions.

22If the applicant believes that these Claims Adjudicator’s decisions were wrong or had a discriminatory effect on him, those issues must be raised within the context of the WSIB appeal procedures, and ultimately, in the Divisional Court.

CONCLUSION

23The Application is dismissed.