HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Radash Ballieram
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
reconsideration DECISION
Adjudicator: Kaye Joachim
Indexed as: Ballieram v. Workplace Safety and Insurance Board
Written Submissions by
Radash Ballieram, Applicant ) Jo-Ann Seamon, Counsel
1On May 5, 2010, the applicant filed a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) of my decision 2010 HRTO 712.
45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
2Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:
A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
Request for Chair to hear the Reconsideration Request
3The applicant submits that this reconsideration request would be most appropriately decided by the Tribunal Chair. The Application raises complex and precedent-making issues that ought to be decided by the Chair. The applicant referred to the WCAT Decision No. 1248-87R in which the then Chair of the Workers’ Compensation Appeals Tribunal assigned himself a reconsideration request involving issues of significant and general important to that Tribunal. Whatever the practice of the Workplace and Safety insurance Tribunal, this Tribunal has not developed a practice of assigning reconsideration decisions of significance to the Chair. The Tribunal’s practice Direction on Reconsideration states that in most cases the member who heard the original matter will be assigned to determine the reconsideration request. The decision whether to assign a different adjudicator rests with the Chair and in the Chair assigned this Reconsideration request to me.
4One basis for the reconsideration request is that the decision is in conflict with established case law and involves a matter of general or public importance. The applicant also asserts that the Tribunal breached the principles of natural justice in failing to offer the applicant an opportunity to make oral submissions, in deciding an issue not properly before the Tribunal without affording the applicant an opportunity to make submissions, and in failing to provide sufficient reasons.
background
5A review of the chronology of the processing of the Application which resulted in my decision is necessary. The applicant experienced a work-related injury and made a clam for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (“WSIA”).
6The applicant alleges that the Workplace Safety and Insurance Board (“WSIB”) discriminated against him on the basis of disability in several respects. The WSIB mediator conducted a return to work mediation with the accident employer on May 15, 2007. The purpose of the mediation was to address whether there was suitable employment available at the accident employer which the applicant could do, so that he could return to work. The applicant submits that there was such suitable employment and the employer and the WSIB mediator were both aware of that. Rather than working towards an agreement whereby the applicant could return to employment, the WSIB mediator facilitated an agreement in favour of the employer which stated that there was no suitable employment. The applicant signed this agreement, but asserts that he felt coerced by the mediator to do so. The mediator’s facilitation of this signed agreement is the first alleged act of discrimination.
7Following the signed agreement, a WSIB Claims Adjudicator issued a decision on the applicant’s entitlement to WSIB benefits. The decision of the Claims Adjudicator dated July 25, 2007, determined that, based on the signed agreement of the parties and the results of an ergonomic review conducted by a WSIB consultant, there was no suitable employment for the applicant with the accident employer. The decision also stated that the applicant was entitled to a Labour Market Re-entry Program (“LMR”).
8The applicant alleges that the decision of the WSIB Claims Adjudicator is wrong because there were suitable positions at the employer which he could do. He alleges that the content and result of the Claims Adjudicator’s decision has a discriminatory impact on him in the sense that the decision condones the employer’s failure to meet its obligations under the Code to accommodate his needs and re-employ him and, as a result of the decision, he lost his employment.
9In a subsequent decision dated October 15, 2007, the WSIB Claims Adjudicator determined that the applicant was entitled to an LMR program consisting of six weeks of retraining to retrain him for the position of electronics assembler. The applicant alleges that this particular LMR was chosen because the Claims Adjudicator determined that the applicant, a person of colour with an accent, was not worthy of a more comprehensive LMR. The applicant alleges that the content of the Claims Adjudicator’s decision is therefore discriminatory.
10The applicant filed a complaint with the Ontario Human Rights Commission against the Workplace Safety and Insurance Board on November 13, 2007. On March 13, 2009 the applicant filed this transitional Application with the Tribunal under section 53(5) of the Code.
11On April 7, 2009 the respondent filed a Response and on August 4, 2009 filed a Request for Order seeking dismissal of the Application on the basis that the applicant’s allegations relate to the administration of WSIB benefits and to the WSIB’s adjudicative processes and are therefore outside the jurisdiction of the Tribunal. The Tribunal sought further submissions from the parties.
12The respondent characterized the Application as challenging two aspects of the WSIB process: the mediation process engaged of May 15, 2007 and the WSIB adjudicative decisions to regarding the appropriate LMR. The respondent reiterated its position that those processes were outside of this Tribunal’s authority to review.
13The applicant’s submissions dated September 8, 2009 stated that the applicant was not “seeking to overturn or appeal any WSIB adjudicative decision” but was alleging discrimination in the service provided to the applicant by the WSIB during the May 15,2007 “return to work” mediation. The applicant alleges that the WSIB officer condoned the employer’s discrimination in failing to offer him a return to work. The applicant points to this submission as “withdrawing” that aspect of the original complaint that appeared to challenge the appropriateness of the WSIB decision regarding the LMR.
14On January 6, 2010 the Tribunal sought the parties’ submissions on the impact of the recent tribunal decision in Hazel v. Ainsworth Engineered, 2009 HRTO 2180.
15The respondent submitted that the Hazel decision stood for the proposition that some aspects of the mediation process are not a “service” within the meaning of the Code. In particular, a claim against a mediator which alleges the outcome in a settlement is contrary to the Code is not a claim that falls with the scope of the section 1. The case of Hazel also stands for the proposition that the principle of judicial or adjudicative immunity applies to the conduct of the mediator in how they exercise their dispute resolution functions. The respondent submitted that the Hazel decision supported their request to dismiss the Application.
16The applicant submitted that the Hazel case was not applicable to the present circumstances. In Hazel the adjudicator determined that there are two prerequisites to attract judicial immunity: that the person is acting as an independent and that the person is engaged in a quasi judicial process. The applicant submitted that the WSIB return to work mediator was not independent nor was he engaged in a quasi-judicial dispute resolution process in the circumstances of this Application. The applicant further distinguished the present Application on the basis that the return to work mediation agreement was not a settlement because the applicant was not allowed to participate in the mediation meeting and the RTW mediator coerced the applicant into signing the document.
Is a Claims Adjudicator Decision a Service?
17My Decision addressed two issues: was the Content of the Mediation Agreement a Service? and Is a Claim Adjudicator Decision a Service?
18The applicant objects to this Tribunal’s authority to rule on the latter issue for two reasons. First the applicant asserts that the claims adjudicator decisions did not form part of the original complaint or was withdrawn. Second, the applicant was not given an opportunity to make submissions on this issue which is a breach of natural justice.
19In my view, the complaint as originally framed clearly challenged the claims adjudicator decision of October 15, 2007 by asserting that the LMR was chosen because the Claims Adjudicator determined that the applicant, a person of colour with an accent, was not worthy of a more comprehensive LMR.
20From my perspective, there were two aspects of the complaint, a challenge to the “mediation” process and a challenge to the “adjudicative” process. The respondent disputed my authority to enquire into either process and relied upon Tribunal case law to that effect. The Tribunal sought further submissions from the parties on this objection. The respondent identified further case law on the adjudication issue. The Tribunal subsequently sought further submissions in light of the release of the Hazel decision.
21Upon reviewing the applicant’s submissions of September 9, 2010 I recognize that the applicant stated that he was not seeking to overturn or appeal any WSIB adjudicative decision but was only challenging the service provided by the WSIB during the May 15, 2007 “return to work mediation”. In hindsight, I acknowledge that this could have been interpreted as a withdrawal of part of the complaint. The lack of detailed submissions on the “adjudicative process” decisions also underlines the applicant’s perspective that the claim adjudicative decisions were not at issue.
22I accept therefore that the applicant did not understand that the issue of whether a claims adjudicator decision was a service within the meaning of section 1 of the Code was before me and therefore did not make submissions on this issue.
23What is the consequence of this? I note that the applicant is now asserting that he is not challenging the appropriateness of any claims adjudicator decision. Therefore, at worst, I have decided that I have no authority to determine an issue that the applicant does not want me to determine.
24In these particular circumstances, I see no basis for reconsidering that aspect of the Decision. The issue of the claims adjudicator decision was before me at the start of these proceedings. The respondent objected to my authority to inquire into whether the claim adjudicator decision was contrary to the Code. The Tribunal sought further submissions on this issue. The parties responded (the applicant apparently withdrawing this issue). The parties are in agreement that they do not want me to inquire into the claims adjudicator decisions. In my view there is little purpose in reconsidering that aspect of the decision that neither party wishes me to determine.
Is the WSIB return to work mediation a Service?
25The applicant seeks reconsideration of that aspect of my Decision which concludes that the WSIB return to work mediation is not a service within the meaning of section 1 of the Code and/or is protected by immunity.
26The applicant asserts that it was a breach of natural justice that he was not offered an opportunity to make oral submissions when they specifically requested an opportunity to do so. I acknowledge that the applicant requested an opportunity to make oral submissions. However the Tribunal is not obliged to offer an applicant the opportunity to make oral submissions in every case.
27Section 43(2) 1.of the Code provides “An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.
28In my view, the Tribunal has the authority to make a determination on its jurisdiction without offering the parties an opportunity to make oral submissions. In this case, I am satisfied that the parties’ written submissions on the “mediation” aspect of the Decision were comprehensive and the parties had a full and fair opportunity to address this issue in writing. I am satisfied that the applicant was not denied any aspect of procedural fairness by not being invited to make further oral submissions on this issue.
29The applicant argued that what occurred on May 15, 2007 was not a “mediation” and thus no settlement outcome resulted from it. In support of this argument, the applicant made several important factual assertions which were:
His employer was trying to avoid accommodating his disability;
He was not allowed into the “mediation” meeting”
He was not present for any discussion about whether or not the employer could accommodate him;
He was forced by threat of loss of his WSIB benefits to sign the document entitled return to work mediation agreement, and
He did not agree that that his employer was unable to accommodate his disability.
30The applicant argues that I concluded that the events of May 15, 2007 were in fact a “mediation” and in reaching this conclusion I would have had to reject the above factual assertions without hearing any evidence.
31I do not agree. My Decision was based on the assumption that even if those assertions were true, I still had no authority to inquire into the situation.
32In my decision at paragraph 17 I note that the applicant alleged that he was coerced into signing the agreement. I concluded that even if that were true, this would not affect my conclusion that the mediation process engaged in was not subject to review by this Tribunal. I noted that it may be that in other circumstances, the agreement could be set aside but that was not at issue before me.
33For greater certainty I would hold that a “mediation” process can occur even if all the parties are not in the same room and a form of “shuttle” mediation takes place. I conclude that a mediation process takes place even if the applicant does not agree with the employer’s position that there is not suitable work available and even if the applicant signs a return to work agreement because he is fearful of losing his WSIB benefits. None of these factual assertions would preclude a finding that the process engaged in is a “mediation” process that is immune from review under the Code.
34The fundamental issue before me was whether the mediator’s facilitation of a signed agreement that did not return the applicant to work was a “service” within the meaning of the Code. The applicant argued that it was.
35Before I reached a decision on this issue, the Tribunal issued the decision of Hazel. In Hazel, the applicant had filed a human rights application against various actors, including an adjudicator appointed under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, to hear the applicant’s grievance. Rather than conducting a hearing, the adjudicator, with the consent of the parties, offered to act as a mediator and facilitate the parties’ attempts to reach an agreement of their workplace dispute.
36In Hazel the Tribunal determined that a mediator acting under the Labour Relations Act was not providing a service within the meaning of section 1 of the Code when he assisted the parties to reach a specific agreement, regardless of the content of the agreement. I agreed with that analysis.
37The parties were offered an opportunity to make further submissions on the applicability of Hazel.
38The applicant sought to distinguish the present case from the situation in Hazel. In Hazel the mediator was acting as a neutral, independent mediator in a quasi-judicial process. The applicant asserts that the WSIB return to work mediator was not independent, nor was he engaged in a quasi-judicial dispute resolution process.
39The applicant noted that a return to work mediator under the WSIA has the task of facilitating a specific goal, to return the worker to his or her workplace, and thus is not neutral. I appreciate that a WSIB mediator may be perceived by the employer as less than neutral, as they are assigned the statutory task of attempting to return the worker to work. I do not accept that this perspective removes the process the parties engage in a form of dispute resolution.
40I fail to understand the applicant’s argument that the return to work mediation is not a “quasi-judicial dispute resolution process.” The WSIA provides for a process to attempt to mediate a return to work. If unsuccessful, the WSIA adjudicates the issue (whether the employer has suitable work for the worker). In this sense I find that the return to work is part of quasi-judicial dispute resolution process.
Conclusion
41The request for reconsideration is denied.
Dated at Toronto, this 18^th^ day of November 2010.
“Signed by”
Kaye Joachim
Member