Frank Hansen v. Workplace Safety and Insurance Board, 2010 HRTO 1260

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Hansen

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 3, 2010

Citation: 2010 HRTO 1260

Indexed as: Hansen v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Workplace Safety and Insurance Board and Cathy Sabev, Respondents Gurjit Brar, Counsel

1In this Application, filed pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. c. H.19, as amended (“the Code”), the applicant alleges that he was discriminated against on the basis of age in respect of services.

2This Interim Decision addresses whether the named personal respondent, a claims adjudicator employed by the Workplace Safety and Insurance Board (“WSIB”), is a proper respondent to the Application or whether she is immune from this Application pursuant to s. 179 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, as amended (“WSIA”).

3In an earlier Interim Decision in this matter, 2010 HRTO 1076, I directed the parties to provide their written submissions on this issue. The applicant did not file submissions as directed. The respondents filed written submissions in which they submit that the personal respondent is not a proper party to the Application pursuant to s. 179 of the WSIA. The respondents point out that the removal of the personal respondent does not relieve the WSIB from any liability to which it would otherwise be subject in respect of its employees, including the personal respondent.

4The respondents further submit that the personal respondent ought to be removed as a proper party to the Application pursuant to the factors outlined in the Tribunal’s decision in Persaud v Toronto District School Board, 2008 HRTO 31.

Statutory Immunity under the WSIA

5Section 179 of the WSIA provides as follows:

179. (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:

180. Members of the board of directors, officers and employees of the Board.

181. Persons who are engaged by the Board to conduct an examination, investigation, inquiry, inspection or test or who are authorized to perform any function.

(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).

6Based on the plain and ordinary meaning of the words in s. 179(1) of the WSIA, the personal respondent falls within the named class of persons in s. 179(1) of the WSIA who are statutorily immune from proceedings for damages for acts or omissions in the good faith execution of any power or duty under the WSIA. There is no dispute that the personal respondent is an “employee” of the WSIB and is “authorized to perform” functions on its behalf. The allegations against her are based on things said and done by her in the course of carrying out her duties as a claims adjudicator under the WSIA. There is nothing before me to suggest that the claims adjudicator was not exercising her duties in good faith.

7The respondents submit that the Application to the Tribunal is a “proceeding for damages” within the meaning of s. 179(1). They point out that the applicant is seeking damages in his Application before the Tribunal. The Tribunal clearly has the authority to award damages pursuant to its remedial authority under the Code to order monetary compensation. Accordingly, I am persuaded that the Application to the Tribunal is a type of “proceeding for damages” within the meaning of s. 179(1) of the WSIA. The personal respondent is statutorily immune from such a proceeding. She is therefore not a proper respondent to the proceeding and is hereby removed as a party. The style of cause is amended accordingly.

8In light of the above, it is not necessary for me to consider whether the personal respondent ought also to be removed as a party to the Application upon consideration of the factors in Persaud. Moreover, I note that the applicant was not given a specific opportunity to make submissions on that issue.

9I am not seized.