Keck v. Workplace Safety and Insurance Board, 2010 HRTO 1122

Human Rights Tribunal of Ontario

B E T W E E N:

Donald Keck

Applicant

-and-

Worplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: May 19, 2010

Citation: 2010 HRTO 1122

Indexed as: Keck v. Workplace Safety and Insurance Board

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of age in the context of employment. In essence, the applicant alleges that his non-economic loss (“NEL”) benefit was calculated based on his age at the time of his workplace accident. He argues this is discriminatory because, had he been younger, he would have been entitled to greater benefits.

2The respondent filed a Response and a Request for an Order During Proceedings (“Request”) seeking the dismissal of the Application.

3The respondent states that it calculated the applicant’s NEL based on its policy for calculating NEL benefits. The respondent states that section 2.1(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, is a complete bar to this Application. This provision states:

A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it, that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code.

4In the alternative, the respondent argues that the Application is outside the jurisdiction of the Tribunal because it is an attempt to challenge an adjudicative decision, which is not a “service” pursuant to the Code.

5The applicant has not filed a Reply, nor has he responded to the Request. The time for doing so under the Tribunal’s Rules has now elapsed.

6In the circumstances, it is appropriate to give the applicant an opportunity to make oral submissions regarding the respondent’s request that the Application be dismissed. If the applicant wishes to make submissions on the dismissal issue, he must either:

a. within ten days of the date of this Interim Decision, advise the Tribunal and the respondent in writing of his desire to make oral submissions. If the applicant selects this option, the Registrar will schedule an oral hearing by way of a telephone conference call; or

b. within ten days of this Interim Decision, provide the respondent and file with the Tribunal written submissions regarding the dismissal issue.

7If the applicant does not advise the Tribunal and the respondent of his desire to make further submissions according to paragraph 6, the Tribunal may determine the dismissal issue based on the materials already filed.

8I am not seized with this matter.