Stahlbaum v. Workplace Safety and Insurance Board, 2010 HRTO 183

Human Rights Tribunal of Ontario

B E T W E E N:

Douglas Stahlbaum Applicant

-and-

Workplace Safety and Insurance Board and Healthcare Management Services, a Division of Crawford & Company (Canada) Inc. Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: January 26, 2010 Citation: 2010 HRTO 183 Indexed as: Stahlbaum v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS BY

Workplace Safety and Insurance Board, Respondent: Gurjit Brar from WSIB Healthcare Management Services, a Division of Crawford & Company (Canada) Inc., Respondent: Veronica A. Kenny, Counsel

1This Interim Decision addresses the Requests for an Order During Proceedings (the “Requests”) made by the respondents to dismiss the Application on the grounds that the Tribunal does not have jurisdiction.

2The Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the applicant was subject to discriminatory treatment while he was participating in a Labour Market Re-entry (“LMR”) program. The applicant’s LMR program was administered by Healthcare Management Services, a Division of Crawford & Company (Canada) Inc. (“Crawford”) on a contract basis for the Workplace Safety and Insurance Board (“WSIB”). The applicant alleges that he has a learning disability and bipolar disability that were not appropriately accommodated while he was in the LMR program and that as a consequence he had difficulties performing in the program. WSIB then decided to terminate his involvement in the program. Once no longer in a LMR program WSIB reduced the applicant’s benefits.

3WSIB and Crawford’s Requests rely on similar submissions. The respondents submit that the Tribunal does not have jurisdiction to consider the Application because Section 118 of the Workplace Safety and Insurance Act S.O. 1997, C. 16, Sched. A, as amended (the “Act”) gives the WSIB exclusive jurisdiction to hear and decide “all matters and questions arising under the Act.” This includes the jurisdiction to determine whether a person is co-operating in the preparation and implementation of a LMR plan pursuant to section 42 of the Act and whether loss of earnings benefits should be reduced or suspended.

4The respondents submit that the applicant has a right of appeal under the Act which can apply to decisions related to an LMR plan and that he has a further right of appeal to the Workplace Safety and Insurance Appeal Tribunal (“WSIAT”) which has, under the Act, the exclusive jurisdiction to hear and decide all appeals from final decisions of the WSIB.

5Both the WSIB and Crawford argue that the Tribunal has accepted that adjudicative decisions of statutory tribunals, including the WSIB are not “services” under the Code. In this regard the respondents rely upon the Tribunal’s decisions in Debowska v Workplace Safety and Insurance Board, 2009 HRTO 488, Bulimaibau v. Workplace Safety and Insurance Board, 2009 HRTO 413 and Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1483, reconsideration refused 2009 HRTO 1745.

6The Tribunal received no submissions from the applicant in response to the respondent’s Requests.

DECISION

7The Tribunal denies the respondents’ Requests. It is not plain and obvious that the Tribunal is without jurisdiction in this matter. The actions taken by both Crawford and WSIB in relation to the applicant while in the LMR program, and the subsequent decisions to remove him from the program and as a result to change his benefits may constitute “services” under the Code. In making this decision I adopt the line of reasoning in Frankson v. Workplace Safety and Insurance Board 2009 HRTO 2084). Frankson is a more recent Tribunal decision than those cited by the respondents and it is a decision that follows the Tribunal’s evolving jurisprudence. I find it and the recent Tribunal decisions it cites to be persuasive.

8In Frankson the Tribunal was also considering a request to dismiss an Application made against the WSIB on the grounds that the Tribunal did not have jurisdiction. In Frankson the applicant was alleging that WSIB did not appropriately accommodate him in his LMR program because of his learning disability, an allegation similar, in part, to the allegations before me.

9In Frankson the Tribunal identified that the WSIB carries out a range of functions and makes a broad range of decisions not all of which can be clearly identified as adjudicative decisions. Frankson also refers to another recent Tribunal decision, Zaki v. Ontario (Community and Social Services) 2009 HRTO 1595, that addresses the issue of what functions of a statutory tribunal might be considered a service. As stated in Frankson:

While it is true that previous decisions of the Tribunal have found that adjudicative decisions of the WSIB are not “services” for the purpose of the Code, the subsequent decision in Zaki necessitates some reflection by the Tribunal on the application of the Code to actions of the WSIB, whether they are said to constitute “services”, “decisions” or “adjudicative decisions”. In Zaki, the Tribunal distinguished between agencies adjudicating disputes amongst others, and those that provide benefits themselves, stating:

Other circumstances involve not merely the adjudication of rights between others but also the provision of a benefit or other privilege by the agency itself. The social area of “services” clearly covers the underlying benefit. Therefore, in determining whether an application relates exclusively to the “content, reasons or result” of an administrative decision under the Baird analysis, the Tribunal must examine whether the claim is exclusively about the adjudication or decision or whether the applicant is making a claim about his or her inability to obtain benefits or other services from the respondent. In the latter case, while there is a statutory decision involved, the provision of the benefit or privilege is a “service” within the meaning of s. 1 of the Code, and the applicant may argue that he or she has experienced discrimination in the provision of that service. However, the content of the decision itself is not a service within the meaning of the Code. It is not the content of the decision or reasons that is the alleged violation of the Code, but the alleged inability of the applicant to obtain the services, but for the alleged discrimination.

Frankson further notes:

In Cochrane v. Workplace Safety and Insurance Board, 2009 HRTO 1596, a decision released concurrently with Zaki, the Tribunal decided to proceed with an Application against the WSIB on the basis that it was “not plain and obvious” that it was without jurisdiction.

10Having regard to Frankson, Zaki and Cochrane and the nature of the Application before me I find that it is not plain and obvious the Application is outside the Tribunal’s jurisdiction and so it will not be dismissed at this preliminary stage. This is not a final decision about the Tribunal’s jurisdiction but rather a determination that it is premature to decide the question without giving the parties an opportunity to provide evidence and submissions on the issue.

11If no mediation is scheduled or does not result in a settlement of the Application the Vice-chair assigned to adjudicate this matter may make further directions as to the hearing including directions about whether the issue of jurisdiction will be heard separately from the merits of the Application

12I am not seized of this matter.