Coish v. Workplace Safety and Insurance Board, 2010 HRTO 31

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lloyd Coish

Applicant

-and-

Workplace Safety and Insurance Board, Tracy Redding and Bob Goodfellow

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim

Date: January 7, 2010

Citation: 2010 HRTO 31

Indexed as: Coish v. Workplace Safety and Insurance Board

1The applicant filed an Application on May 8, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging the personal respondent Redding sexually solicited him and when he refused her advances she punished him in the manner in which she adjudicated his claims for benefits under the Workplace Safety and Insurance Act, 1987, S.O. 1987, C. 16 (“WSIA”).

2A hearing was held on December 18, 2009. The applicant testified as did the personal respondent Ms. Redding, a claims manager with the organizational respondent the Workplace Safety and Insurance Board (“WSIB”) and the personal respondent Bob Goodfellow, a manager with the WSIB.

Sexual Solicitation

3The applicant experienced a work-related back injury on December 5, 2005, and became entitled to receive benefits under the WSIA.

4The applicant testified that he was scheduled to meet his claims manager, Ms. Redding on March 31, 2006 but was unable to attend because he was ill. On April 3, 2006, he met Ms. Redding for the first time. She stated that they should get used to each other because they would be dealing with each other for a long time to come. After a discussion of his situation, the applicant testified that Ms. Redding looked him up and down and asked to look at his feet. He felt that she was suggesting that he owed her something.

5The applicant testified that he met with Ms. Redding again on April 24, 2006, when she looked at his mid-section, licked her lips and said “You know Lloyd; this might be a blessing in disguise:” The applicant understood this to be a sexual suggestion.

6From April 3 to 28, 2006, Ms. Redding frequently called him about his claims.

7The applicant asserts that Ms. Redding deliberately reduced his benefits, delayed his payments and otherwise administered his claims in an unfair manner because he had refused her sexual advances.

8Ms. Redding agrees that she met the applicant for the first time on April 3, 2006 and that she did indicate that they would be dealing with each other for some time. The room in which she met with him was videotaped. She testified that she asked him to remove his shoes in response to his statement that he had limitations due an injury to his feet earlier in life. The applicant was not wearing socks and as a result of the smell she opened the door. She denies making any gesture or comment that could be construed as a sexual advance. She specifically denies meeting with the applicant on April 24, 2006 and stated that he met with another colleague that day. Ms. Redding agreed that she did telephone him in April 2006 in relation to the administration of his claim.

9Mr. Goodfellow testified that he viewed the videotape of the April 3, 2006 meeting and did not see any actions that appeared to be a sexual advance. The applicant first raised the alleged sexual advance on May 15, 2006 around the same time that the applicant was told that his benefits would be stopped pending an investigation into possible misrepresentation as to the extent of his disability.

10Section 7(3) of the Code prohibits sexual solicitations and reprisal for refusing sexual solicitations:

7 (3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

11I prefer the evidence of the respondents over that of the applicant. The applicant contradicted himself several times during the hearing, and his evidence at the hearing was different from the allegations set out in the complaint. In a letter dated April 10, 2006, the applicant thanked Ms. Redding for her “professional” handling of his file.

12Further, most of the alleged sexual advance was a matter of interpretation. I find that the actual words alleged to have been said do not suggest any sexual innuendo.

13Accordingly, the allegation of sexual solicitation is dismissed.

Investigation into allegations

14In early May, an inquiry officer alerted Ms. Redding and Mr. Goodfellow that the applicant was claiming sexual solicitation by Ms. Redding. At that time, they took no immediate action on the allegation.

15On May 15, 2006, the applicant spoke with Mr. Goodfellow and alleged that Ms. Redding had been making sexual advances and calling him frequently. Mr. Goodfellow agrees he told he applicant that his allegations were nonsense. Mr. Goodfellow explained that the applicant lacked credibility in his mind because he had recently been seen on video surveillance working beyond his restrictions. Also, as Ms. Redding had been absent on vacation and suffering from loss of voice since her return, it was not possible that she had been speaking to the applicant frequently. Finally, based on his knowledge of Ms. Redding, he believed the allegations to be unfounded.

16Having regard to all the circumstances, I find that there was no obligation on the corporate respondent to undertake any further investigation into the matter. In June 2006, the applicant’s file was transferred to another claims adjudicator.

Reprisal

17The assertion that the personal respondent administered his file in a way to punish him for refusing a sexual advance must similarly fail. As the personal respondent did not make any sexual advances, she could not have administered his file differently for having her advances refused.

18I considered whether there might have been a reprisal by Ms. Redding based on the fact that she became aware of the allegation in early May 2006 and continued to be the case adjudicator for a few weeks.

19I am satisfied based on Ms. Redding’s evidence that she did not administer the claim any differently despite the allegation.

20In the alternative, in my view, the administrating of benefits under WSIA falls within the exclusive jurisdiction of the WSIB and the Workplace Safety and Insurance Appeals Tribunal: s. 118 of the WSIA.

21For all of these reasons, the Application is dismissed.