Ballieram v. Workplace Safety and Insurance Board of Ontario (No. 1)

TR-0168-09

2010-04-06

2010 HRTO 712

Ontario Human Rights Tribunal

CHRR Doc. 10-0858

Radash Ballieram Applicant

v.

Workplace Safety and Insurance Board Respondent

Date of Decision: April 6, 2010

Before: Human Rights Tribunal of Ontario, Kaye Joachim

File No.: TR-0168-09

Appearances by:

Jo-Ann Seamon, Counsel for the Applicant

Gurjit Brar, Counsel for the Respondent

HUMAN RIGHTS TRIBUNALS — authority to review actions of another administrative tribunal — ADMINISTRATIVE TRIBUNALS — court of competent jurisdiction to review mediator's decision — judicial immunity — JURISDICTION — jurisdiction to hear complaint concerning mediator's decision — PUBLIC SERVICES AND FACILITIES — mediation services — EXEMPTIONS — adjudicative agencies — INTERPRETATION OF STATUTES — legislative intent as an aid to interpretation — definition of "service" and "services"

Summary: The Human Rights Tribunal of Ontario dismissed a complaint filed by Radash Ballieram against the Workplace Safety and Insurance Board of Ontario ("WSIB").

Mr. Ballieram experienced a workplace injury and made a claim for benefits under the Workplace Safety and Insurance Act ("WSIA"). He alleges that the WSIB discriminated against him with respect to a service because of his disability by coercing him to sign an agreement that stated that there was no suitable employment for him to return to. Mr. Ballieram claims that there was suitable employment for him to return to and the WSIB mediator facilitated an agreement that favoured the employer and excused him from his duty to accommodate.

In addition, Mr. Ballieram alleged that he was discriminated against by a decision of a WSIB Claims Adjudicator who determined that he was eligible for six weeks of retraining as an electronics assembler, instead of a more comprehensive Labour Market Re-entry Program. He claimed that he was assigned to the lesser program because he is a person with an accent and was not deemed worthy of a more comprehensive program.

The Tribunal ruled that the term "services" does not include the content and reasons of a decision of a WSIB claims adjudicator determining entitlement to benefits under the WSIA. If an injured worker believes that the determination of benefits by a claims adjudicator is discriminatory, he or she can and must raise that allegation within the context of the WSIB appeals system. The basis for this decision, the Tribunal said, was that the Legislature did not intend the Human Rights Tribunal to usurp the function of the Divisional Court and act as a tribunal of appeal from adjudicative decisions within the WSIB system.

The Tribunal concluded that it had no authority to review the content and reasons of the decision that there was no suitable employment for Mr. Ballieram or determining the particular Labour Market Re-entry Program for which he was eligible.

However, the Tribunal can deal with complaints alleging that the services that an adjudicative Tribunal offers or the conduct of its employees are discriminatory. For example, complaints that a claims adjudicator sexually solicited an applicant, or made discriminatory comments, or complaints that services are provided in inaccessible locations or without translation for the deaf, can be accepted.

The complaint was dismissed.

CASES CITED

B. v. Ontario (Human Rights Comm.), 2002 SCC 66, [2002] 3 S.C.R. 403, 44 C.H.R.R. D/1, 2002 SCC 66: 33

Babineau v. Ontario (Municipal Affairs and Housing) (No. 2) (2009), CHRR Doc. 09-1777, 2009 HRTO 1301: 44

Baird v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2009), CHRR Doc. 09-0154, 2009 HRTO 99: 21, 28

Barker v. S.E.I.U., Local 1 (No. 2) (2009), CHRR Doc. 09-1711, 2009 HRTO 1253: 21

Bulimaibau v. Workplace Safety and Insurance Board of Ontario (No. 2) (2009), CHRR Doc. 09-0589, 2009 HRTO 413: 21

Caldeira v. Workplace Safety and Insurance Board of Ontario (2009), CHRR Doc. 09-1382, 2009 HRTO 973: 21, 29

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210: 33

Cartier v. Northeast Mental Health Centre (No. 4) (2009), CHRR Doc. 09-2875, 2009 HRTO 2208: 25

Christianson v. Ontario (Community Safety and Correctional Services) (No. 2) (2009), CHRR Doc. 09-1013, 2009 HRTO 752: 21

Christianson v. Ontario (Information and Privacy Commissioner) (No. 3) (2009), CHRR Doc. 09-0310, 2009 HRTO 203: 21

Christianson v. Ontario (Social Benefits Tribunal) (No. 1) (2009), CHRR Doc. 09-1259, 2009 HRTO 886: 21, 29

Cochrane v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-2131, 2009 HRTO 1596: 23

Cochrane v. Workplace Safety and Insurance Board of Ontario (No. 2) (2009), CHRR Doc. 09-2849, 2009 HRTO 2182: 44

Coish v. Workplace Safety and Insurance Board of Ontario (2010), CHRR Doc. 10-0042, 2010 HRTO 31: 44

Dann v. Wallace (No. 2) (2009), CHRR Doc. 09-0556, 2009 HRTO 392: 21

Deane v. Workplace Safety and Insurance Board of Ontario (2009), CHRR Doc. 09-2030, 2009 HRTO 1516: 21

Debowska v. Workplace Safety and Insurance Board of Ontario (2009), CHRR Doc. 09-0689, 2009 HRTO 488: 21, 29

Dopelhamer v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-2683, 2009 HRTO 2056: 24

Edwards v. Workplace Safety and Insurance Board of Ontario (2009), CHRR Doc. 09-1600, 2009 HRTO 1158: 21, 29

Frankson v. Workplace Safety and Insurance Board of Ontario (No. 2) (2009), CHRR Doc. 09-2711, 2009 HRTO 2084: 23

Garandi v. Ontario (Human Rights Comm.) (No. 2) (2009), CHRR Doc. 09-1231, 2009 HRTO 858: 21

Hazel v. Ainsworth Engineered Corp. (2009), 69 C.H.R.R. D/155, 2009 HRTO 2180: 2, 11, 25, 44

Hogan v. Ontario (Ministry of Health and Long-Term Care) (No. 4) (2006), 58 C.H.R.R. D/317, 2006 HRTO 32: 42

Hudler v. London (City) (1997), 1997 CanLII 24809 (ON HRT), 31 C.H.R.R. D/500 (Ont. Bd.Inq.): 42

Humphries v. General Electric of Canada Inc. (No. 1) (2009), CHRR Doc. 09-2449, 2009 HRTO 1869: 21

Jacob v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-1997, 2009 HRTO 1483: 21, 29

Lindberg v. Workplace Safety and Insurance Board of Ontario (No. 2) (2009), CHRR Doc. 09-0651, 2009 HRTO 463: 21, 29

McKinnon v. Ontario (Community and Social Services) (2009), CHRR Doc. 09-1603, 2009 HRTO 1161: 21

Ontario (Attorney General) v. Ontario (Human Rights Comm.) (No. 1) (2005), 54 C.H.R.R. D/116, 2005 HRTO 31: 42

Ontario (Attorney General) v. Ontario (Human Rights Comm.) (2007), 2007 CanLII 56481 (ON SCDC), 62 C.H.R.R. D/315, [2007] O.J. No. 4978 (QL) (Div.Ct.): 42

Ontario (Human Rights Comm.) and Roberts v. Ontario (Ministry of Health) (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387, 21 C.H.R.R. D/259 (C.A.): 42

Pederson v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-1866, 2009 HRTO 1375: 21, 29

Québec (Comm. des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal (Ville), 2000 SCC 27, [2000] 1 S.C.R. 665, 37 C.H.R.R. D/271, 2000 SCC 27: 33

S.B. v. Children's Aid Society of Toronto (No. 1) (2009), CHRR Doc. 09-1257, 2009 HRTO 884: 21

Tranchemontagne v. Ontario (Dir., Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, 56 C.H.R.R. D/1, 2006 SCC 14: 38

Zaki v. Ontario (Community and Social Services) (No. 1) (2009), CHRR Doc. 09-2130, 2009 HRTO 1595: 21, 28

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 1: 13, 19, 24, 32

s. 53(5): 1

Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A: 11

Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A: 4

1This is an application filed March 16, 2009, under s. 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The complaint filed with the Ontario Human Rights Commission on November 13, 2007, was abandoned upon the filing of the present application.

2The purpose of this decision is to address the respondent's request for order during proceedings seeking dismissal on the basis that the alleged acts of discrimination do not fall within the jurisdiction of the Tribunal. The Tribunal sought further submissions from the parties on the application of the Tribunal's decision in Hazel v. Ainsworth Engineered, 2009 HRTO 2180 [reported 69 C.H.R.R. D/155] ("Hazel"), to this application.

3This decision is based on the written submissions of the parties.

FACTS

4The applicant experienced a work-related injury and made a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A ("WSIA").

5The 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.

6Following 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").

7The 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.

8In 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.

ANALYSIS AND DECISION

Was the content of the mediation agreement a service?

9The applicant alleges that the content of the agreement facilitated by the WSIB mediator discriminated against him because it effectively condoned the employer's refusal to provide him with suitable employment.

10I note that the applicant signed the agreement which states that the parties (including the applicant) agree that the accident employer did not have suitable employment in which to re-employ the applicant.

11The applicant is asserting that the WSIB mediator's actions in facilitating the specific agreement in this case are a form of discrimination contrary to the Code. That was precisely the issue considered in the Hazel decision. 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, Sched. 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.

12An agreement was reached and the applicant and the other parties to the arbitration signed the agreement.

13One of the issues before the Chair in Hazel was whether the mediator's facilitation of an agreement was a "service" within the meaning of s. 1 of the Code.

14In Hazel, as in this case, the applicant asserted that the content of the agreement facilitated by the mediator was discriminatory because the agreement effectively condoned discrimination by the employer.

15The Chair determined in Hazel that a mediator acting under the Labour Relations Act was not providing a service within the meaning of s. 1 of the Code when he assisted the parties to reach a specific agreement, regardless of the content of the agreement. I agree with that analysis.

16The applicant seeks 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. 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 do not accept that these statutory differences justify a departure [from] the approach set out in Hazel. The mediation service offered by the return-to-work mediator may be more constrained in terms of the potential outcomes, but it was nonetheless a form of mediation. In my view, the reasoning in Hazel that the content of a mediated settlement is not within the Tribunal's authority to review remains applicable.

17The applicant also seeks to distinguish Hazel on the basis that the applicant in Hazel was not alleging that he was coerced into signing the agreement, whereas in this case, the applicant is alleging coercion. In my view, the issue of coercion is not relevant for the purpose of this decision.

18In some cases before the Tribunal, respondents have attempted to rely upon signed agreements by applicants which release their rights to pursue their human rights applications before the Tribunal. Where the applicant alleges that he or she was coerced into signing the agreement, the Tribunal will generally offer the applicant an opportunity to call evidence regarding the alleged coercion. If the Tribunal were to find that the agreement was coerced or signed under duress, the Tribunal might determine that it should hear the human rights application, notwithstanding the signed agreement.

19In this case, however, the WSIB is not raising the signed agreement as a bar to the application. They are not saying that the applicant cannot proceed with his application against the WSIB because the applicant signed an agreement to which the WSIB was also a signatory. Rather, the WSIB is asserting that the facilitation of the specific content of the agreement by a WSIB mediator is not a service within the meaning of s. 1 of the Code. Therefore, the issue of coercion is not relevant to my analysis.

Is a claims adjudicator decision a service?

20As stated above, the applicant is alleging that the content of two claims adjudicator decisions dated July 25, 2007, and October 2007 discriminated against him contrary to s. 1 of the Code.

21The Tribunal has stated that it does not have jurisdiction to review decisions of other statutory tribunals on the basis that 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": see for example Baird v. WSIAT, 2009 HRTO 99 [CHRR Doc. 09-0154] ("Baird") concerning a decision of the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"); Christianson v. Ontario (Information and Privacy Commissioner) (No. 3), 2009 HRTO 203 [CHRR Doc. 09-0310] concerning a decision of the Information and Privacy Commission; Dann v. Wallace (No. 2), 2009 HRTO 392 [CHRR Doc. 09-0556] concerning a decision of the Landlord and Tenant Board; Bulimaibau v. Workplace Safety and Insurance Board (No. 2), 2009 HRTO 413 [CHRR Doc. 09-0589]; Lindberg v. Workplace Safety and Insurance Board (No. 2), 2009 HRTO 463 [CHRR Doc. 09-0651]; Debowska v. Workplace Safety and Insurance Board, 2009 HRTO 488 [CHRR Doc. 09-0689]; Edwards v. Workplace Safety and Insurance Board, 2009 HRTO 1158 [CHRR Doc. 09-1600]; Pederson v. Workplace Safety and Insurance Board (No. 1), 2009 HRTO 1375 [CHRR Doc. 09-1866]; and Deane v. Workplace Safety and Insurance Board, 2009 HRTO 1516 [CHRR Doc. 09-2030], concerning decisions of WSIB claims adjudicators; Caldeira v. Workplace Safety and Insurance Board, 2009 HRTO 973 [CHRR Doc. 09-1382] and Jacob v. Workplace Safety and Insurance Board (No. 1), 2009 HRTO 1483 [CHRR Doc. 09-1997] concerning decisions of WSIB Appeals Resolution Officers; Christianson v. Ontario (Community Safety and Correctional Services) (No. 2), 2009 HRTO 752 [CHRR Doc. 09-1013] concerning a decision of the Ontario Civilian Commission on Police Services; Garandi v. Ontario (Human Rights Commission) (No. 2), 2009 HRTO 858 [CHRR Doc. 09-1231] concerning a decision of the Ontario Human Rights Commission; S.B. v. Children's Aid Society of Toronto (No. 1), 2009 HRTO 884 [CHRR Doc. 09-1257] concerning a decision of the Child and Family Services Review Board; Christianson v. Social Benefits Tribunal (No. 1), 2009 HRTO 886 [CHRR Doc. 09-1259]; McKinnon v. Ontario (Community and Social Services), 2009 HRTO 1161 [CHRR Doc. 09-1603] and Zaki v. Ontario (Community and Social Services) (No. 1), 2009 HRTO 1595 [CHRR Doc. 09-2130] ("Zaki") all concerning decisions of the Social Benefits Tribunal; Barker v. Service Employees International Union, Local 1 (No. 2), 2009 HRTO 1253 [CHRR Doc. 09-1711] and Humphries v. General Electric of Canada (No. 1), 2009 HRTO 1869 [CHRR Doc. 09-2449] concerning decisions of labour arbitrators.

22The Tribunal has also held that the law does not generally impose liability upon adjudicators for the decisions they make: Zaki at § 9:

Adjudicative decision-makers must make decisions independently based upon the law, and the law generally does not impose civil liability on adjudicators for the decisions they make: see Edwards v. Law Society of Upper Canada (2000), 48 O.R. (3d) 329 (C.A.); aff'd 2001 SCC 80, [2001] 3 S.C.R. 562. The Code and the Tribunal rules include various provisions dealing with the existence of other proceedings about the same matter and the circumstances in which an application will be deferred or dismissed: see especially ss. 45, 45.1, s. 34(11) of the Code. This scheme, in my view, is inconsistent with the imposition of Code liability against a statutory decision-maker for the content of a decision. [Emphasis added.]

23In Zaki, the Tribunal agreed that an application that relates exclusively to the "content, reasons or result" of an administrative decision will not be reviewed by this Tribunal. However, the Tribunal stated that the denial of the underlying benefit itself could amount to a breach of the Code if the denial of the benefit was contrary to the Code. In Zaki, the Tribunal sought further information from the applicant to understand the nature of the allegations being made. A similar approach was taken in Cochrane v. Workplace Safety and Insurance Board (No. 1), 2009 HRTO 1596 [CHRR Doc. 09-2131], and Frankson v. Workplace Safety and Insurance Board (No. 2), 2009 HRTO 2084 [CHRR Doc. 09-2711].

24Another Tribunal decision concluded that the individuals exercising a statutory power of decision are providing a service within the meaning of s. 1 of the Code: Dopelhamer v. Workplace and Insurance Board, 2009 HRTO 2056 [CHRR Doc. 09-2683], although the adjudicator recognized that there may be other principles which limit the Tribunal's reach, such as parliamentary privilege or immunity. The adjudicator in that case sought further submissions from the parties on whether the WSIB was protected under various provisions of the WSIA.

25Recent decisions of the Tribunal have accepted that, while administrative tribunals provide services within the meaning of the Code, the doctrine of judicial immunity restricts this Tribunal's authority to inquire into the content of an adjudicative decision or a mediated agreement: Hazel, supra, and Cartier v. Nairn (No. 4), 2009 HRTO 2208 [CHRR Doc. 09-2875] ("Cartier").

26I note that the Chair in Hazel was clear that while the dispute resolution service must be provided in a non-discriminatory manner (i.e., that the arbitration must be conducted in a barrier-free environment) he did not dispute that the meaning of "service" within s. 1 of the Code did not relate to the outcome of the decision-making process (Hazel at § 74)

27While the legal analysis has varied, the Tribunal has been consistent in refusing to exercise the functions of a reviewing court and serve as a forum for review of the reasons and contents of another adjudicator's decision in the context of a system with a robust internal review process, leading to a hearing before an adjudicative tribunal with quasi-judicial powers.

28This has been the case regardless of whether the decision-maker adjudicated disputes between others (Hazel, Cartier) or adjudicated disputes involving the provision of benefits by the statutory agency itself (Baird, Zaki).

29It has also been the case regardless of whether the adjudicative decision arose from the final decision-maker (the WSIAT in Baird, the SBT in Christianson v. Social Benefits Tribunal, supra) or a lower-level adjudicator (the WSIB Claims Adjudicator in Pederson, supra; Lindberg, supra; Debowska, supra; Edwards, supra, or the Appeals Resolution Officer in Jacob, supra, and Caldeira, supra).

30Clearly, the Tribunal is still searching for guiding principles to illuminate the meaning of "services" and the limits on the Tribunal's authority to review decisions of other statutory agencies and this decision will not end the analysis.

31However, I conclude that the initial Baird analysis was correct and that 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.

32In my view, after carefully considering the various approaches taken by the Tribunal, I conclude that the term "services" in s. 1 of the Code does not include the content and reasons of a WSIB claims adjudicator decision determining entitlement to benefits under the WSIA. My reasons for preferring the Baird approach are these.

33I recognize the general principle that a broad, policy-based and liberal interpretation must be given to human rights legislation and the policies behind such legislation: see Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 [8 C.H.R.R. D/4210]; Québec (Comm. des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 [37 C.H.R.R. D/271]; B. v. Ontario (Human Rights Comm.), 2002 SCC 66, [2002] 3 S.C.R. 403 [44 C.H.R.R. D/1] at § 44.

34However, I am also cognizant that the meaning of the term "service" is not unlimited.

35The Legislature has set up a specific legislative scheme for the determination of entitlements to benefits under the WSIA. The WSIB has set up an elaborate system of adjudication beginning with decisions of Claims Adjudicators, moving to appeals to Appeals Resolution Officers and ultimately a right to appeal to the WSIAT.

36The 2008 WSIB annual report records receipt of over 300,000 claims. Of those that are accepted, there are numerous decisions that need to be made, including the amount of benefits, entitlement to an LMR, the type of LMR and other matters. Each decision made by a Claims Adjudicator may be appealed. The final level of decision-maker is the WSIAT.

37In my view, it was not the Legislature's intention that any of those 300,000 annual applicants within the WSIB system could opt out of that system and bring applications to the Tribunal challenging any decision from a Claims Adjudicator upwards to the WSIAT on the basis that the reasons or content of a decision or the denial of benefits under the WSIA was allegedly contrary to the Code.

38If an injured worker believes that the determination of benefits by a claims adjudicator is discriminatory, he or she can and must raise that allegation within the context of the WSIB appeals system. I note that, in making determinations, the WSIB and the WSIAT must apply and interpret the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 [56 C.H.R.R. D/1].

39The fundamental basis of my decision is that the Legislature did not intend the Tribunal to usurp the function of the Divisional Court and act as a tribunal of appeal from all other adjudicative decisions within the WSIB system.

40I conclude that the Tribunal has no authority to review the content and reasons of the Claims Adjudicator's decision dated July 25, 2007, determining that there was no suitable employment for the applicant at the accident employer, or the Claims Adjudicator decision dated October 15, 2007, determining the particular LMR program to which the applicant was entitled.

41If the applicant believes that these Claims Adjudicator decisions were wrong or had a discriminatory effect on him, those issues must be raised within the context of the WSIB appeal procedures, and ultimately, in the Divisional Court.

What this Decision Is Not About

42I emphasize that this decision should not be taken as a general statement that the Tribunal has no authority to review any decision taken by any official acting under a statutory authority. The Tribunal has held in many circumstances that government officials exercising their functions under a statute have been subject to the Code: Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387 [21 C.H.R.R. D/259] (C.A.); Braithwaite v. Ontario (Attorney General) (No. 1), 2005 HRTO 31 [reported 54 C.H.R.R. D/116]; upheld 2007 CanLII 56481 (ON SCDC), [2007] O.J. No. 4978 (QL) [62 C.H.R.R. D/315]; Hogan v. Ontario (Ministry of Health and Long-Term Care) (No. 4), 2006 HRTO 32 [reported 58 C.H.R.R. D/317]; Hudler v. London (City) (1997), 1997 CanLII 24809 (ON HRT), 31 C.H.R.R. D/500.

43The distinction between those cases and the case before me is the existence of a robust system of internal appeals resulting in a final appeal before a quasi-judicial tribunal. That was not the case in the cases cited in § 42 above, whereas it is the case before me.

Other Statutory Tribunals not Exempt from the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

44This is not to say that administrative Tribunals such as the WSIB or the WSIAT cannot be named as respondents to human rights applications with respect to the services they offer or the conduct of their employees. In Coish v. Workplace Safety and Insurance Board, 2010 HRTO 31 [CHRR Doc. 10-0042], the Tribunal accepted that it had jurisdiction to hear and did hear the applicant's claim that he had been sexually solicited by the WSIB claim adjudicator who was assigned to adjudicate his benefits. The Tribunal also refused to dismiss at the outset a claim that the WSIB claims adjudicator made discriminatory comments during the course of his/her communications with the applicant: Cochrane v. Workplace Safety and Insurance Board (No. 2), 2009 HRTO 2182 [CHRR Doc. 09-2849]. In Babineau v. Ontario (Municipal Affairs and Housing) (No. 2), 2009 HRTO 1301 [CHRR Doc. 09-1777], the Tribunal added the Landlord and Tenant Board to an application on the basis that the Landlord and Tenant Board may have failed to provide its adjudicative services in an accessible manner to a lawyer with a hearing impairment. These types of claims of discrimination fall squarely within the service that adjudicative agencies offer and over which the Tribunal has jurisdiction: the service of processing claims (which may include an obligation to provide forms in accessible formats), and holding hearings (which may include an obligation to hold hearings in an accessible location). Every tribunal in Ontario must offer their dispute resolution services in this non-discriminatory manner: Hazel, supra.

The Denial of WSIA Entitlements Is Subject to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

45When I say that the term "services" does not include the content or reasons of a WSIB Claims Adjudication decision, this does not mean that the WSIB or the WSIAT can deny benefits for discriminatory reasons.

46I note that the WSIAT has held that the denial of entitlements under the WSIA is a service under the Code, such that the Code applies: WSIAT decision No. 1529/0412, February 21, 2008.

47This decision confirms and enhances my analysis above that the proper forum to raise the allegation that a denial of entitlements under the WSIA which is contrary to the Code is before the WSIB and WSIAT.

CONCLUSION

48In light of my conclusion that the allegations against the respondent are not within the jurisdiction of the Tribunal, the application is dismissed.