HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Frank Hansen
Applicant
-and-
Workplace Safety and Insurance Board and Cathy Sabev
Respondents
INTERIM DECISION
Adjudicator: Sheri D. Price
Indexed as: Hansen v. Workplace Safety and Insurance Board
1In this Application, filed pursuant to s. 34 of the Ontario Human Rights Code, RSO c. H.19, as amended, ("the Code"), the applicant alleges that he was discriminated against by the respondents on the basis of age in respect of services.
2This Interim Decision addresses the applicant's request to reactivate the Application which was deferred by the Tribunal pending the completion of another proceeding. It also seeks submissions from the parties with respect to whether the personal respondent, a claims adjudicator of the Workplace Safety and Insurance Board ("WSIB"), is immune from this Application pursuant to s. 179 of the Workplace Safety and Insurance Act, R.S.O. S.O. 1997, c. 16, Sch. A, as amended ("WSIA"); and directs that a hearing be scheduled to determine whether all or part of the Application should be dismissed because another proceeding has dealt with the substance of the Application within the meaning of s. 45.1 of the Code.
Request to reactivate
3In a previous Interim Decision in this matter, 2009 HRTO 1134, the Tribunal ordered that the Application be deferred pending the conclusion of a proceeding before the WSIB and the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"). The Tribunal's Rules set out the manner in which a matter which has been deferred may be brought back on for hearing before the Tribunal. Rule 19 states that a request to reactivate a deferred application must be made no later than 60 days after the conclusion of the other proceeding and that a copy of the decision issued in the other proceeding must be attached.
4The other proceeding to which the Tribunal deferred appears to have concluded with the issuance of the WSIAT's decision on March 12, 2010. The applicant made the request for reactivation on March 24, 2010, well within the 60 days contemplated by the Tribunal's Rules. The respondents did not file any submissions with respect to the applicant's request. The request to reactivate the Application is granted.
Section 45.1
5Section 45.1 of the Code seeks to avoid duplicative proceedings and provides that the Tribunal may dismiss all or part of an application where another proceeding has appropriately dealt with the substance of the Application.
6In his Application to the Tribunal, the applicant alleges that he was eligible to participate in WSIB's labour market re-entry ("LMR") program, and was found by a third party assessor to be suitable for a specific program, but the individual respondent, a claims adjudicator with the WSIB, decided to reject the assessor's recommendation and to sponsor the applicant in a less suitable and less expensive program because of the applicant's age.
7In his case before the WSIAT, the applicant appealed two decisions of the WSIB, one of which addressed whether the worker was entitled to the LMR program originally recommended by the LMR service provider. The applicant made arguments under the Code and the Canadian Charter of Rights and Freedoms (The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11) in respect of the LMR issue. The applicant succeeded in his appeal before the WSIAT, although the WSIAT found that it was not necessary to specifically address the applicant's arguments under the Code and the Charter in light of the outcome of the appeal.
8Since the WSIAT allowed the applicant's appeal on the LMR issue, there is a question whether the proceeding before the WSIAT appropriately dealt with the substance of the Application and whether the Tribunal ought therefore to dismiss all or part of the Application.
9The Code provides that the Tribunal shall not dismiss any application within its jurisdiction without affording the parties an opportunity to make oral submissions. Accordingly, the Tribunal shall convene a half-day hearing to give the parties an opportunity to make oral submissions on this issue.
10The Registrar will schedule a half-day hearing in order to hear the parties' submissions on whether the proceeding before the WSIB and/or WSIAT appropriately dealt with the substance of the Application and whether the Tribunal ought to dismiss all or part of the Application.
Statutory Immunity of the Personal Respondent
11Section 179 of the Workplace Safety and Insurance Act, provides as follows:
(1) No action or other proceeding for damages may be commenced against any of the following persons for an act or omission done or omitted by the person in good faith in the execution or intended execution of any power or duty under this Act:
Members of the board of directors, officers and employees of the Board.
...
- Persons who are engaged by the Board to conduct an examination, investigation, inquiry, inspection or test or who are authorized to perform any function.
Exception
(2) Subsection (1) does not relieve the Board of any liability to which the Board would otherwise be subject in respect of a person described in paragraph 1, 4, 5 or 6 of subsection (1).
12The personal respondent is a claims adjudicator employed by the WSIB. Accordingly, she appears to fall within the category of people who are immune from legal proceedings for damages which are based on her acts or omissions in the good faith execution (or intended execution) of her powers and duties under the WSIA.
13The applicant is directed to provide written submissions with respect to whether the personal respondent is a proper party to the Application in view of s. 179 of the WSIA within 14 days of the date of this Interim Decision. The respondents are directed to provide their submissions on this issue within 28 days of the date of this Interim Decision. The Tribunal will determine whether the personal respondent is a proper party to the Application upon receipt and consideration of the parties' submissions in this regard.
14I am not seized of this matter.
Dated at Toronto, this 5th day of May, 2010.
"signed by"__________________
Sheri Price
Vice-chair