Rogers v. Surex Community Services, 2010 HRTO 2086

Human Rights Tribunal of Ontario

B E T W E E N:

Denis Rogers

Applicant

-and-

Surex Community Services, Lily Smith, Wanda Lougheed and Nancy Dell’Osso

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 14, 2010

Citation: 2010 HRTO 2086

Indexed as: Rogers v. Surex Community Services

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 25, 2009, alleging discrimination on the basis of disability with respect to employment.

2The purpose of this Interim Decision is to address the respondent Nancy Dell’Osso’s Request for Order during Proceedings. The Request seeks that the Application be dismissed as against Ms Dell’Osso on the basis that the allegations of misconduct on her part do not fall within the jurisdiction of the Tribunal.

3Neither the applicant nor the other respondents have filed any submissions in response to the Request to dismiss and the timeline for providing written submissions has elapsed.

4The Application pertains to the applicant’s employment and alleges that the respondents failed to accommodate the applicant’s disability. The applicant made a claim with the Workplace Safety and Insurance Board (“WSIB”) and Ms Dell’Osso was a WSIB Return to Work Specialist assigned to facilitate the applicant’s return to work. The narrative appears to suggest that the applicant was dissatisfied with Ms Dell’Osso’s handling of the applicant’s WSIB claim and Ms Dell’Osso’s failure to address the applicant’s disability-related needs.

5Ms Dell’Osso submits that the Tribunal does not have jurisdiction to consider the Application because 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”, including whether a person is cooperating in returning to work (s.118(2)). She submits that her decisions and conclusions as a Return to Work Specialist are within the exclusive jurisdiction of the Act. She argues that a number of Tribunal decisions have held that the WSIB’s adjudicative functions and decision making process are not “services” under the Code: Baird v. WSIAT, 2009 HRTO 99 (“Baird”); and Bulimaibau v. Workplace Safety and Insurance Board, 2009 HRTO 413.

6The Request to dismiss is denied. I find that Ms Dell’Osso’s role in the WSIB return to work program and the steps she took in facilitating and implementing such a plan for the applicant may constitute “services” under the Code.

7In Frankson v. Workplace Safety and Insurance Board, 2009 HRTO 2084, the applicant alleged that WSIB did not appropriately accommodate him in his labour market re-entry program because of his learning disability. In Frankson, the Tribunal, relying on Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595, distinguished between agencies adjudicating disputes amongst others, and those that provide benefits themselves. 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. See also Stahlbaum v. Workplace Safety and Insurance Board, 2010 HRTO 183.

8Based on my review of the Application and the Responses, the applicant’s claims against Ms Dell’Osso do not appear to impugn any adjudicative functions. The applicant challenges aspects of the accommodation plan developed by the respondents jointly, such as the expectation that she transfer her location of work and arrange travel to the new location with twenty-minute break stops. The acts and omissions complained of regarding Ms Dell’Osso may pertain to “services” as they appear to relate to accommodation and ergonomic support and do not appear to relate to adjudicative decision-making.

9Having regard to all the information in the Application and Responses, I find that that this Application is within the Tribunal’s jurisdiction. This is not a final decision regarding the issue of “services”, but rather, a determination that it is premature to decide the question without providing the parties with an opportunity to present and test evidence, as well as argue submissions on the issue at a hearing.

10I am not seized of this matter.