Keck v. Workplace Safety and Insurance Board, 2010 HRTO 1825

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Keck Applicant

-and-

Workplace Safety and Insurance Board Respondent

DECISION

Adjudicator: Michelle Flaherty Date: September 7, 2010 Citation: 2010 HRTO 1825 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 (the “Act”) 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 did not file a Reply, nor did he respond to the Request.

6In an earlier Interim Decision, 2010 HRTO 1122, the applicant was given an opportunity to make oral submissions regarding the respondent’s request that the Application be dismissed. The applicant was directed to advise the Tribunal and the respondent of his desire to make oral submissions or, in the alternative, to provide written submissions. The applicant has not communicated with the Tribunal following the Interim Decision and the time for doing so has elapsed.

7Accordingly, this decision is based on the materials already filed by the parties.

DECISION

8The Tribunal’s powers are limited to those set out in the Code. It does not have a general power to address claims of unfairness. The Tribunal can simply determine whether or not the provisions of the Code have been complied with.

9In these circumstances, the Legislature has decided to exempt from review under the Code any age-based distinction contained in the Act. The effect of section 2.1 of the Act is to permit distinctions based upon age, despite the provisions of the Code. See Fontaine v. Workplace Safety and Insurance Board, 2010 HRTO 1185.

10The Application is therefore dismissed. Based on section 2.1 of the Act, the Tribunal cannot conclude that the distinction in question made on the basis of age is discriminatory according to the Code.

11In light of this conclusion, it is not necessary for me to determine whether or not the Application relates to a service for the purposes of the Code.