Guydos v. Workplace Safety Insurance Appeals Tribunal, 2010 HRTO 2177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Guydos

Applicant

-and-

Workplace Safety Insurance Appeals Tribunal

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: October 29, 2010

Citation: 2010 HRTO 2177

Indexed as: Guydos v. Workplace Safety Insurance Appeals Tribunal

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), raises allegations that the respondent, the Workplace Safety Insurance Appeals Tribunal (“WSIAT”) discriminated against the applicant on the basis of disability, sex, and family status in the provision of goods, services and facilities. The Application also alleges ongoing reprisal or threat of reprisal.

2In the Application, in response to question 8, the applicant describes the facts in support of the Application as follows:

WSIAT covered up sexual harassment and domestic violence (sic) also did not recognize PTSD from such but covered it up.

3On August 25, 2010, the Tribunal administratively issued a Notice of Intent to Dismiss (“Notice”) indicating that the Application appears to be outside the Tribunal’s jurisdiction (power to decide) because it does not appear to allege a ground or area of discrimination and because it appears to be challenging the decision or outcome of an adjudicative process.

4The applicant filed submissions in response to the Notice on August 26 and on August 27, 2010. She also filed additional documents and correspondence on September 6 and 10, 2010.

5The applicant argues that the Application is not about the WSIAT’s decision itself, but about the unequal and unfair service provided by WSIAT. In essence, I understand her to argue that alleged denials in natural justice or procedural fairness constitute discrimination in the circumstances.

6In the documents and submissions filed since the Notice was issued, the applicant has expressed the following concerns:

a. the WSIAT decision was based on a falsehood;

b. the WSIAT published its decision about the applicant on a website. The decision refers to mental illnesses and its publication is humiliating for the applicant;

c. the WSIAT made a decision without considering relevant information;

d. the WSIAT decided the applicant need not attend the WSIAT hearing and her non-attendance may have unfairly affected the WSIAT’s assessment of the applicant’s credibility;

e. the WSIAT unfairly denied her a benefit;

f. although it ultimately accorded her an adjournment in order to obtain representation, the WSIAT initially denied the applicant’s right to representation and initially denied her request for an adjournment;

g. a panel of four members decided her claim rather than the usual three, which is a denial of fairness; and

h. the WSIAT failed to consider federal human rights issues and questions of criminal harassment.

ANALYSIS

7Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

8The principal issue raised in the Notice is whether or not this Application relates to the provision of services, within the meaning of section 1 of the Code.

9In a series of cases, the Tribunal has considered whether statutory decision making, or aspects of it, fall under the definition of “services” in the Code. See, for example, Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595; Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; and Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765.

10It follows from these cases that, while a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public.

11In Zaki, supra, the Tribunal explained:

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.

12In essence, the applicant complains about substantive and procedural (natural justice) decisions rendered by the WSIAT. Most of the issues raised in the applicant’s submissions appear to relate to the results of the WSIAT decision and the adjudicative process the WSIAT adopted in reaching that decision. This is the case for the allegations set out in paragraph 6 (a), (c), (d), (e), (f), and (g).

13The applicant’s submissions regarding the Notice raise issues that are very different from the allegations contained in the Application (cited in their entirety at para. 2 of this decision). In responding to the Notice, the applicant seems to have introduced new issues, but she has not clarified how the allegations contained in her Application relate to the Code or fall within the meaning of “service”. In other words, she has not explained how the WSIAT, in rendering a service within the meaning of the Code, covered up sexual harassment and domestic violence and failed to recognize post-traumatic stress disorder.

14At this stage of the proceedings (before the Application has been delivered to the respondent), the Tribunal will only dismiss an Application if it is “plain and obvious” that it is outside its jurisdiction: Morin c. Alliance de la fonction publique du Canada, 2008 HRTO 58 and Hotte v. Ontario (Finance), 2008 HRTO 63.

15Although I have some difficulty seeing how, in light of the legal principles summarized above, the Application falls within the Tribunal’s jurisdiction, I cannot conclude that it is plain and obvious that it does not.

16Accordingly, within two weeks of the date of this Interim Decision, the applicant is directed to file with the Tribunal a detailed statement in response to question 8 of the Application. Her statement must describe each element that she believes constitutes discrimination. For each element, she must describe what happened, who was involved, and when and where it happened. If the applicant fails to respond by this deadline the Tribunal may dismiss the Application as abandoned.

17The Application and the applicant’s detailed statement in response to question 8 will be delivered to the respondent along with a copy of this Interim Decision.

18The Tribunal may address issues regarding its jurisdiction at a later stage in the proceedings, either of its own initiative or at the request of a party.