Human Rights Tribunal of Ontario
CHRR Doc. 10-0913
Mary Dopelhamer Applicant
v.
Workplace Safety and Insurance Board, Enid Hervey, Carolyne Joly, Dan Paris, Kim Hill-Potvin, Sharon Barrier, Steven Dell and Darcy Bowman Respondents
Date of Decision: April 7, 2010 Before: Human Rights Tribunal of Ontario, Judith Keene File No.: 2009-01974-I
Appearances by: Mary Dopelhamer, on her own behalf Gurjit Brar, Counsel for the Respondents
HUMAN RIGHTS TRIBUNALS — review actions of another administrative tribunal — discretion to defer complaint — ADMINISTRATIVE TRIBUNALS — court of competent jurisdiction to review adjudicator's decision — judicial immunity — JURISDICTION — complaint concerning adjudicator's decision — concurrent jurisdiction — exclusive jurisdiction — PUBLIC SERVICES AND FACILITIES — adjudication services — EXEMPTIONS — adjudicative agencies — INTERPRETATION OF STATUTES — legislative intent — definition of "service", "services" and "with respect to" — HUMAN RIGHTS — nature and purpose of human rights legislation
Summary: The Human Rights Tribunal of Ontario rejected an application by the Workplace Safety and Insurance Board of Ontario ("WSIB") for dismissal of a complaint filed by Mary Dopelhamer.
Ms. Dopelhamer suffered an injury to her left shoulder at her workplace and made a claim to WSIB. She alleged that WSIB discriminated against her in three ways: (1) a WSIB Case Manager assumed, because of her age, that her injury or its failure to heal, was due to arthritis, despite there being no diagnostic information about arthritis in her WSIB case file; (2) a Case Nurse stated that "age was a factor" and advised her to find another job; and (3) when she returned to work, her disability was not accommodated because WSIB does not ensure that its standards for "modified work" conform to the accommodation requirements of the Code.
WSIB challenged the jurisdiction of the Tribunal to deal with Ms. Dopelhamer's complaint, and requested that the complaint be dismissed.
The Tribunal answered these questions: (1) are the functions of the WSIB in issue "services" within the meaning of the Code; and (2) is the Tribunal barred from dealing with this complaint because judicial immunity should be extended to the decisions of the WSIB Case Manager and Case Nurse, or because the WSIB has exclusive jurisdiction?
The Tribunal found that the functions performed by the Case Manager and the Case Nurse were not protected by judicial immunity. Neither person was an independent decision-maker deciding a dispute "between others". The Case Manager and Case Nurse collected and analyzed information and decided to grant or refuse a benefit. They did not make adjudicative decisions in a hearing process.
The Tribunal concluded that the individuals in question were entrusted with exercising statutory powers of decision-making, and were providing a service both to Mary Dopelhamer and to the public. While the Tribunal did not make a ruling on the merits, it found that the allegations that decisions regarding Ms. Dopelhamer were made based on assumptions about age could result in a finding that the Code was breached.
Finally, the Tribunal determined that the WSIB does not have exclusive jurisdiction to deal with the subject matter of this application. The Code has paramountcy and the WSIB does not have exclusive jurisdiction over a claim that WSIB staff breached the Code.
The complaint can proceed.
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: 26
Baird v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2009), CHRR Doc. 09-0154, 2009 HRTO 99: 46
Ballieram v. Workplace Safety and Insurance Board of Ontario (No. 1) (2010), 70 C.H.R.R. D/124, 2010 HRTO 712: 35
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129, 1999 CanLII 646: 29
British Columbia (Workers' Compensation Board) v. Figliola (2010), 70 C.H.R.R. D/163, 2010 BCCA 77: 69
Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, 17 C.H.R.R. D/349: 62
Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, 52 C.H.R.R. D/294, 2005 SCC 30: 28
Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 62
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: 26
Cartier v. Northeast Mental Health Centre (No. 4) (2009), CHRR Doc. 09-2875, 2009 HRTO 2208: 48
Christianson v. Ontario (Information and Privacy Commissioner) (No. 3) (2009), CHRR Doc. 09-0310, 2009 HRTO 203: 46
Dann v. Wallace (No. 2) (2009), CHRR Doc. 09-0556, 2009 HRTO 392: 46
Dopelhamer v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-2683, 2009 HRTO 2056: 5, 23, 57
Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80; (2000), 48 O.R. (3d) 329 (C.A.): 48
Freitag v. Penetanguishine (Town) (No. 2) (2009), CHRR Doc. 09-2274, 2009 HRTO 1712: 42
Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285, 2004 SCC 60: 27
Hazel v. Ainsworth Engineered Corp. (2009), 69 C.H.R.R. D/155, 2009 HRTO 2180: 48
Hogan v. Ontario (Ministry of Health and Long-Term Care) (No. 4) (2006), 58 C.H.R.R. D/317, 2006 HRTO 32: 32
Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, 3 C.H.R.R. D/1163: 62
Lindberg v. Workplace Safety and Insurance Board of Ontario (No. 2) (2009), CHRR Doc. 09-0651, 2009 HRTO 463: 46
Merk v. International Assn. of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425, 2005 SCC 70: 27
Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54: 52
Nowegijick v. Canada, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29: 33
Ontario (Attorney General) v. Ontario (Human Rights Comm.) (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455, 62 C.H.R.R. D/315, 2007 CanLII 56481 (Div.Ct.): 31
Ontario (Attorney General) v. Ontario (Human Rights Comm.) (No. 1) (2005), 54 C.H.R.R. D/116, 2005 HRTO 31: 36
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.): 29
Peel Board of Education v. Ontario (Human Rights Comm.) (1990), 1990 CanLII 6605 (ON HCJ), 72 O.R. (2d) 593, 1990 CanLII 12517 (ON HCJ), 12 C.H.R.R. D/91, [1990] O.J. No. 322 (QL) (Div.Ct.): 32
Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, 2006 SCC 48: 27
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: 26, 62
Thavarajasoorier v. Incorporated Synod of the Diocese of Toronto (2009), CHRR Doc. 09-0450, 2009 HRTO 314: 34
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: 29, 60
University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, 18 C.H.R.R. D/310, 1993 CanLII 89: 28
Winnipeg School Div. No. 1 v. Craton, 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150, 6 C.H.R.R. D/3014: 62
Zaki v. Ontario (Community and Social Services) (No. 1) (2009), CHRR Doc. 09-2130, 2009 HRTO 1595: 48, 53
LEGISLATION CITED
Canada
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11: 52
British Columbia
Human Rights Code, R.S.B.C. 1996, c. 210: 69
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53, s. 1: 25
Human Rights Code, R.S.O. 1990, c. H.19
s. 1: 17, 22, 38
s. 10: 41
s. 11: 8, 39
s. 17: 8, 39
s. 32(3): 68
s. 34(1): 1, 64
s. 34(1)(a): 45
s. 34(11): 65
s. 44: 68
s. 45: 72
s. 45.1: 68, 74
s. 45.2: 68
s. 45.8: 68
s. 47: 41, 63
s. 47(2): 66
Rules of Procedure (Part IV), r. 14: 73
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A
s. 118: 60
s. 118(1): 60, 70
s. 179: 57
1The applicant filed an application on April 15, 2009, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination on the grounds of disability and age with respect to goods, services and facilities in the course of the applicant's dealings with the Workplace Safety and Insurance Board. This interim decision deals with the Tribunal's jurisdiction to proceed with the application.
2The respondent Workplace Safety and Insurance Board (the "WSIB") submitted a Request for an Order During Proceedings ("RFOP") asking that the application be dismissed because it is outside the jurisdiction of the Tribunal. Counsel for the WSIB represented all named respondents at this early stage of the proceedings.
3The respondents' stated position concerning the Tribunal's jurisdiction was that the applicant was challenging decisions of the respondents, and that such decisions could not be considered "services" for the purpose of the Code. The respondents also claimed that the applicant's application amounted to no more than dissatisfaction with the treatment of her claim by the WSIB and did not allege a breach of the Code. Finally, the respondents claimed that the WSIB has exclusive jurisdiction to deal with the matters raised in the application.
4The applicant is unrepresented. Her application raised a myriad of factual issues, and it has taken some time to clarify which allegations implicate Code rights. In addition, it was not clear from the wording of the application what positions within the WSIB were held by the individuals named in the allegation; that has now been clarified.
5The Tribunal issued an interim decision, 2009 HRTO 2056 [CHRR Doc. 09-2683], dismissing the argument related to services as raised in the RFOP, but arranging a teleconference hearing to clarify the nature of the allegations and enable the parties to give submissions as to jurisdiction once that was done.
6This decision deals with all of the jurisdictional issues raised in the respondents' RFOP, and with the issue of deferral.
The Allegations Relevant to this Application
7The applicant suffered an injury to her left shoulder at her workplace, and made a claim to the WSIB. In the course of dealing with her claim, the WSIB made several decisions, including the above-noted decisions of June 2007 denying a claim for loss of earnings and decisions dated, respectively, August 29, 2007, May 2, 2008, and July 17, 2008, dealing with other issues. It appears that the June 2007 decision was successfully appealed to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT") and is not in any case at issue in this application.
8The applicant expressed a number of concerns about the way her WSIB claim was handled. However, the Code addresses only allegations of discrimination, so many of the applicant's concerns cannot be dealt with in this application. After hearing the applicant's submissions, I conclude that the allegations that raise issues relevant to the Code are the following:
(a) The applicant alleges that a WSIB Claims Adjudicator (now called Case Manager), Dan Paris, assumed that the applicant's left arm injury, or the fact that the injury failed to heal, was due to arthritis, despite there being no diagnostic information about arthritis on the applicant's WSIB case file. The applicant alleges that this assumption was made on the basis of her age. The applicant alleges that this assumption resulted in a decision or decisions adverse to her by Mr. Paris in regard to WSIB benefits.
(b) The applicant alleges that Sharon Barrier, a "Case Nurse" involved with her Case, stated that "age was a factor" in regard to her injury, and advised that the applicant find another job. The applicant is concerned that this also may have adversely influenced decisions about her benefits.
(c) The applicant alleges that, when she returned to work as part of the WSIB process, her disability was not accommodated, in the sense used in ss. 11 and 17 of the Code, by her employer. However, she alleges that the respondent denied her the right to continue on WSIA benefits because the WSIB does not ensure that its standards for "modified work" conform with the accommodation requirements of the Code.
9The allegations at issue in this application are confined to actions or omissions on the part of WSIB Case Adjudicators/Case Managers and a nurse employed by the WSIB.
10At this initial stage of the application, there is no requirement to disclose evidence. The respondents have sent the Tribunal a copy of a document entitled "Workplace Violence, Discrimination and Harassment (Admin. Policy 60.01.02)". The applicant has sent the Tribunal some medical records, and copies of some correspondence, including correspondence on WSIB letterhead. Among the correspondence from the respondent is a letter refusing "LOE benefits" dated July 17, 2008, a letter refusing to approve "further LOE entitlement" dated May 2, 2008, and a letter dated August 29, 2007, denying "entitlement to partial loss of earnings benefits subsequent to June 24, 2007".
11During the teleconference hearing, counsel for the respondents was not able to inform me whether the applicant had filed one or more "objections" to the decisions at issue in this claim. The respondents also indicated, and the applicant agreed, that the applicant had successfully appealed a decision of the WSIB to the WSIAT, which was new information. It appears that the June 2007 decision was the one successfully appealed to the WSIAT, and that this decision is not, in any case, at issue in this application.
Submissions of the WSIB Concerning the Allegations
12In the course of his submissions, counsel for the respondents indicated, for the purposes of clarity, that the job title used by the WSIB for decision-makers at this level has changed from Case Adjudicator to Case Manager.
13The respondents confirmed that a "Case Nurse" is a nurse employed by the WSIB who is often involved in providing at least part of the information on which decisions of Case Adjudicators/Case Managers are made.
14The respondents' counsel also assisted the Tribunal with a brief general description of the WSIB decision-making process relevant to this application. decisions made by Case Adjudicators/Case Managers are made on the basis of medical and other information obtained from various sources. Sources of information may include the WSIB claimant, the claimant's employer, health professionals consulted by the claimant, health professionals who are WSIB staff, health professionals independent of any party to the claim, and other consultants. There is no routine disclosure of this information to the parties before the decision is made, and it appears that there was little or no disclosure in the course of the applicant's claim.
15Counsel for the respondents indicated that, if the applicant had filed any "objections", the objections would have gone on to the Appeals Branch of the WSIB. The applicant would have been given a copy of the contents of her case file, and an opportunity to respond to the information in her case file.
ANALYSIS
16I stress that, at this stage of the application, what is at issue is only whether the allegations in this application are within the Tribunal's jurisdiction to determine. Proving or rebutting allegations, and any other legal issues that may arise, are matters for another day.
17There are two questions of jurisdiction at issue in this case. The first is substantive in nature: whether the functions at issue in this application are "services" for the purposes of the Code, and, if so, whether a denial of the right to equality set out in s. 1 is alleged. I find that the functions at issue in this application are "services" for the purposes of the Code, and that the allegations, if proven, could amount to a denial of the right to equality in respect of services.
18The second jurisdictional question is whether this Tribunal is nonetheless barred by operation of law from dealing with the subject-matter of this particular application, because judicial immunity should be extended or because the WSIB has exclusive jurisdiction over the subject-matter of the application. I find that there are no such bars in operation in this case.
19Finally, there is an issue, raised during the teleconference in response to facts adduced by the respondents, as to whether the Tribunal should exercise its discretion to defer to another process. I find that the facts brought forward to date do not justify deferral.
20My reasons for these findings are set out below.
Substantive Jurisdiction
The Definition of "Service" for the Purposes of the Code
21The primary consideration in questions of substantive Code jurisdiction is whether the allegations in an application implicate a right protected by Part I of the Code. Part I sets out the social areas addressed by the Code and establishes the right to equal treatment in those areas on the grounds listed as pertaining to each social area. If an application does not implicate one of these social areas, the Code does not apply to the situation as alleged.
22The respondents in this case have acknowledged that age and disability are grounds of discrimination listed in s. 1 of the Code, but have asserted that the individuals whose alleged actions or omissions are the subject of the application are not involved in the social area of "services" for the purposes of the Code.
23I had dismissed the respondents' argument based on "services" in the above-noted interim decision. However, in the light of the fact that part of the teleconference was directed to clarifying the facts, the respondents were given another opportunity to speak to the definition of "services", and in particular to distinguish the appellate jurisprudence, cited in the previous interim decision in this matter, that supports a broad definition of "services". Counsel could not assist me in that respect, although he did raise some decisions of this Tribunal that I will address below.
24The primary focus of statutory interpretation is to discern the intention of the legislature. Because the current version of s. 1 of the Code dates from 1981 without intervening amendment, there has been time for the Ontario Legislature's intention in respect of the definition of "services" to become a matter of settled law.
25The legislative debates on the two successive Bills that resulted in the Human Rights Code, 1981, S.O. 1981, c. 53, reveal that both the government in power and members of the Opposition were anxious that the term "services" should have a very broad application. Hansard from December 10, 1980, records (at p. 5178) the following speech from the then Minister of Labour, the Hon. Robert Elgie, who was responsible for the Bills that became the 1981 Code:
The member for Windsor-Sandwich (Mr. Bounsall) raised some concerns about the issue of services, implying that it was a very limited and narrow definition. That surprises me, because services in the context of section 1, when used with goods and facilities, is used in the sense of any help, benefit or advantage. As such it includes any public or administrative help, benefit or advantage offered or made available under an act of the Legislature, any help, benefit or advantage offered or made available by municipal authority, a board or commission, and any help, benefit or advantage offered or made available by an individual or a corporation.
I do not know how one can have a broader definition of service. . .
26In numerous decisions since then, the Supreme Court of Canada has ruled 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] ("Boisbriand") and B. v. Ontario (Human Rights Comm.), 2002 SCC 66, [2002] 3 S.C.R. 403 [44 C.H.R.R. D/1] at § 44.
27The Supreme Court of Canada has also stated that when the legislature intends to limit the scope of a statutory provision, it usually says so clearly: Pharmascience Inc. v. Binet, 2006 SCC 48; Glykis v. Hydro-Québec, 2004 SCC 60 at § 13; Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70 at § 3.
28The Code being a quasi-constitutional statute, the legislature would have to use very clear language to limit the ambit of a term. It follows that it is not open to the Tribunal to read in a limitation that the legislature has not created: Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 [52 C.H.R.R. D/294] at § 81. In University of British Columbia v. Berg, [1993] 2 S.C.R. 353, 1993 CanLII 89 [18 C.H.R.R. D/310], the Supreme Court declined to "import" a defence into human rights legislation where none existed, even where the fact situation, which involved safety, was compelling. Reading in limitations could not be said to be interpreting the legislation to advance the legislature's policy.
29Decisions made by statutory decision-makers have been held to be within the ambit of "services" as defined in human rights legislation. An example is British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, 1999 CanLII 646 [36 C.H.R.R. D/129]. In that case, the refusal of a driver's licence by the British Columbia Superintendent of Motor Vehicles was successfully challenged under that province's Human Rights Act. In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 [56 C.H.R.R. D/1] ("Tranchemontagne"), which dealt with the obligation of statutory tribunals other than this Tribunal to apply the Code, the "service" at issue was a statutory administrator's denial of ODS benefits. Ontario (Human Rights Comm.) v. Ontario (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387 [21 C.H.R.R. D/259] (C.A.), involved an ultimately successful challenge under the Code to the decision of an administrator under the Ministry of Health's Assistive Devices Program.
30The Hon. Peter Cory, sitting as a member of this Tribunal in Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 [reported 54 C.H.R.R. D/116] found that a Coroner's decision on whether to grant an inquest was a "service". Mr. Cory defined "services" as follows at § 22:
. . . "service" must mean something which is of benefit that is provided by one person to another or to the public. The Human Rights Code of Ontario is certainly remedial in its purpose and must therefore have the least restrictive definition applied to it.
31The Ontario Divisional Court confirmed that definition: Braithwaite v. Ontario (Attorney General) (2007), rev'd on other grounds, 88 O.R. (3d) 455, 2007 CanLII 56481 [62 C.H.R.R. D/315] at § 40 (Div.Ct.).
32Earlier, in Peel Board of Education v. Ontario (Human Rights Comm.) (1990), 1990 CanLII 6605 (ON HCJ), 72 O.R. (2d) 593, [1990] O.J. No. 322 (QL) [1990 CanLII 12517 (ON HCJ), 12 C.H.R.R. D/91] (Div.Ct.), the applicant board of education had sought an interpretation of s. 1 of the Human Rights Code, 1981, S.O. 1981, c. 53, that would exclude education and educational services from the application of the right to equal treatment with respect to services, goods and facilities. The Court denied the application, holding that there is no reason or justification for reading s. 1 restrictively (at § 2 and 5):
Applicant's counsel submits that s. 1 should be read to exclude education, and in effect, educational services. We are not persuaded that this section should be read in a restrictive fashion. Specifically, we are not persuaded that education is not a service or facility within the meaning of that section. There is nothing in the section itself that would justify such a restrictive interpretation. The words themselves are broad and general and unqualified by anything in the section. There is, moreover, nothing in the statute itself that would require such a confinement of the meaning of these general terms. . .
As to the other submission that the Education Act, R.S.O. 1980, c. 129, as amended, is a complete code, we note the provision in the Human Rights Code, 1981, namely s. 46, which expresses the marginal note, that is, giving the Human Rights Code, 1981 primacy over other legislation. [Emphasis added.]
See also the decision of a three-member panel of this Tribunal in Hogan v. Ontario (Ministry of Health and Long-Term Care) (No. 4), 2006 HRTO 32 [reported 58 C.H.R.R. D/317], which held that the express exclusion of fees, levies and taxes and periodic payments imposed by law implies that "the definition and the list, which identify the specific objects that are precluded from being services, are exhaustive" (at § 16).
33The broad application of Part I of the Code is further signalled by the use of the term "with respect to". It is not qualified in any way. A phrase similar to "with respect to" was interpreted by the Supreme Court of Canada in Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29 at 39:
The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters.
34The Tribunal has continued to apply a broad, policy-based and liberal approach to interpretation of the Code (see for example Thavarajasoorier v. Incorporated Synod of the Diocese of Toronto, 2009 HRTO 314 [CHRR Doc. 09-0450]).
35I have read with care the recent decision of my colleague in Ballieram v. Workplace Safety and Insurance Board (No. 1), 2010 HRTO 712 [reported 70 C.H.R.R. D/124]. That decision, like several decisions of this Tribunal since 2008, reads certain category-based restrictions into the scope of the term "services". While I recognize the value of consistency in Tribunal jurisprudence, I prefer to draw upon the consistency which was well established, from the 1980s until 2008, in the decisions of the Courts which bind this Tribunal, as well as in most of the Tribunal's own jurisprudence on this question. That body of law, consistent with a clear legislative record, interprets the term "services" in a way which does not import category-based limitations which are not found in the Code itself. Although the procedural parts of the Code were extensively revised in 2007, nothing in those amendments, nor their legislative history, suggests any legislative intention to narrow the substantive reach of the Code, nor reduce the role of this Tribunal. It appears to me that, if any relevant inference can be drawn from the 2007 amendments, they point to an intention to expand the role of the Tribunal in the application of the Code. In those amendments, the Legislature gave the Tribunal the right both to defer any application and the express jurisdiction to consider whether another proceeding had dealt appropriately with the human rights matters raised in any application. In this case, I need not consider the full import of these provisions, but cite them only for what they say about the lack of any discernable intention to reduce the substantive reach of the Code.
Are the functions performed by a WSIB Claims Adjudicator/Case Manager, or a WSIB Case Nurse, a "service" for the purposes of the Code?
36Individuals entrusted with the responsibility of exercising statutory powers of decision-making are, in my view, providing a service to both individuals and the public as contemplated in Braithwaite, supra. It follows that I consider decisions of a WSIB Claims Adjudicator/Case Manager a "service" for the purposes of the Code.
37A "Case Nurse" employed by the WSIB, who is often involved in providing at least part of the information on which decisions of Case Adjudicators/Case Managers are made, is also engaged in a "service" by this definition.
Does the application allege actions or omissions that could amount to a breach of the Code?
38As noted above, the applicant alleges that assumptions were made concerning a medical condition germane to her claim for benefits by a Case Adjudicator/Case Manager and by a Case Nurse employed by the WSIB, on the basis of her age rather than on the basis of any medical evidence in her file. The applicant alleges that this assumption resulted in a decision or decisions adverse to her by the respondents. If proven, these allegations could result in a finding of a breach of s.1 of the Code.
39The applicant also alleges that, when she returned to work as part of the WSIB process, her disability was not accommodated, in the sense used in ss. 11 and 17 of the Code, by her employer. She alleges that, nonetheless, the respondents denied her the right to continue on WSIA benefits because the WSIB does not ensure that its standards for "modified work" conform with the accommodation requirements of the Code. Case Adjudicators/Case Managers involved with her case discontinued benefits on the basis that she had been given "modified work", despite the fact that her disability was not in fact being accommodated, in the sense used in ss. 11 and 17 of the Code, by her employer. Denial of benefits based on a consideration that has an adverse impact related to disability could also amount to a breach of s.1 of the Code.
Is the Tribunal barred by operation of law from dealing with the subject-matter of this application?
40It is important to draw a distinction between the substantive reach of the Code itself and the jurisdiction of this Tribunal to deal with the subject-matter of a particular application. If the functions of a WSIB Claims Adjudicator/Case Manager or a WSIB Case Nurse were not encompassed within the definition of "services", the Code would not apply, and neither this Tribunal nor any other could apply the Code in reviewing actions or omissions in the course of these functions. But even where an area covered by the Code is at issue, the factual circumstances of a specific application may by law bar this Tribunal from dealing with an application.
41Some of the limits of this aspect of Tribunal jurisdiction are stipulated in the Code. For example, fees, levies and taxes and "periodic payments imposed by law" are expressly excluded from the definition of the term "services" (s.10). Other limits may exist as part of the common law, or through the operation of other legislation, subject to s. 47 of the Code.
42An example of a limitation arising from the common law to the Tribunal's ability to deal with the facts of a specific application can be seen in Freitag v. Penetanguishine (Town) (No. 2), 2009 HRTO 1712 [CHRR Doc. 09-2274], in which the Tribunal dismissed, on the basis of parliamentary privilege, that part of an application that alleged that an Act of the Legislature in itself was discriminatory. Parliamentary privilege is one of several types of privilege created by the common law. Other aspects of common-law privilege may arise in respect of judicial or quasi-judicial decision-making.
43An example of a limitation arising from the terms of other legislation to the Tribunal's ability to deal with the facts of a specific application could arise if legislation were to give another tribunal or legal entity jurisdiction to deal with a claim of discrimination, in a way that ousts the jurisdiction of this Tribunal.
44Both the extension of judicial privilege and an exclusive jurisdiction clause in the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A ("WSIA") have been raised as issues in this case.
Are the functions performed by a WSIB Claims Adjudicator/Case Manager, or a WSIB Case Nurse, protected by judicial privilege?
45Arguments that the Tribunal might be barred by law from dealing with the subject-matter of a specific application raise relatively new issues for the Tribunal. Prior to the changes in procedure for dealing with enforcement of the Code brought about in 2007 by Bill 107, requests that the Tribunal deal with the application of the Code to decisions by statutory decision-makers rarely reached the Tribunal or its predecessor, the Board of Inquiry. This was due to the operation of the now-repealed s. 34(1)(a) of the Code, which authorized the Human Rights Commission to dismiss a "complaint. . . that could or should be more appropriately dealt with under an Act other than this Act".
46The respondents argued that the reasoning in Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 [CHRR Doc. 09-0154], one of the first decisions of this Tribunal to deal with the issue of this type of jurisdictional barrier, should be applied in this case, despite the fact that Baird dealt with a decision of the WSIAT, the appellate body for decisions made by WSIB officials. In Baird, as in several other decisions (examples are Christianson v. Ontario (Information and Privacy Commissioner) (No. 3), 2009 HRTO 203 [CHRR Doc. 09-0310], Dann v. Wallace (No. 2), 2009 HRTO 392 [CHRR Doc. 09-0556], and Lindberg v. Workplace Safety and Insurance Board (No. 2), 2009 HRTO 463 [CHRR Doc. 09-0651]), the Tribunal took the position that all or part of statutory decision-making processes was not a "service". For the reasons given above about the substantive reach of the Code, I cannot agree with this approach, although I agree with the result in Baird insofar as judicial privilege can be extended to decisions of the WSIAT.
47The Tribunal's approach to barriers to its jurisdiction to deal with the subject-matter of a specific application continues to evolve with the facts and arguments put before it in specific cases. In Lindberg, supra, the Tribunal suggested the possibility that some actions of an adjudicative body might be subject to the Code (at § 7):
. . . This does not mean, however, that statutory tribunals enjoy blanket immunity from complaints grounded in the Code. In providing their services to the public, it is possible that statutory tribunals could run afoul of the Code.
48A more precise focus on the nature of the decision-maker is evident in Zaki v. Ontario (Community and Social Services) (No. 1), 2009 HRTO 1595 [CHRR Doc. 09-2130], in which the decision of a quasi-judicial administrative tribunal, the Social Benefits Tribunal, was at issue. In that decision, the Tribunal noted that the law generally does not impose civil liability on adjudicators for the decisions they make, citing 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. More recently, the Tribunal focussed squarely on extension of the doctrine of judicial immunity as a valid restriction on the Tribunal's authority to inquire into the content of an adjudicative decision in the course of dealing with an application: Cartier v. Nairn (No. 4), 2009 HRTO 2208 [reported 69 C.H.R.R. Doc. 09-2875] ("Cartier"). A review of the principles upon which courts have extended judicial immunity is set out in Hazel v. Ainsworth Engineered, 2009 HRTO 2180 [reported 69 C.H.R.R. D/155] ("Hazel").
49The Tribunal's approach to the extension of judicial immunity is obviously at an early stage, and this decision does not purport to delineate limits. However, I note that judicial immunity has not been extended, by the courts or by this Tribunal, to all individuals who make decisions with reference to a statute. The extension of the doctrine has been limited to those responsible for deciding the outcome of a dispute between two or more persons (the term "persons" being used in the extended legal sense). The cases have also focussed on individuals functioning as independent and impartial arbiters of such disputes.
50As noted in Cartier and Hazel, judicial immunity has been extended to various non-judge decision-makers in respect of their decisions, but it is important to note that the extension has been from the role of judges in court proceedings and is focussed on the nature of the service; the function that is performed, which is to be the neutral arbiter of a dispute between two or more persons. The term used in Cartier (at § 12) was "judicial actors".
51Clearly, the reason for judicial immunity is the maintenance of independence in the context of deciding disputes between two or more persons (Cartier at § 12).
The doctrine of judicial immunity prohibits legal proceedings against judicial actors which are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences. [Emphasis added.]
52Thus, it may be fair to say that this Tribunal, in deciding whether to extend the doctrine of judicial immunity, looks at both the function being performed and whether there are any indicia of a legislative intention that the decision-maker should be independent. In recent years, the courts have undertaken a similar inquiry into legislative intention in deciding whether non-judge decision-makers have the power to apply the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. In dealing with this question, the Supreme Court in Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 at § 53, considered when a process is "adjudicative in nature". In reaching the conclusion that an Appeals Tribunal was adjudicative in nature, the Court cited independence and the ability to establish rules of procedure, as well as the "powers, privileges and immunities" of Tribunal members. While the Court did not go so far as to enunciate the requirements that would be necessary to establish an "adjudicative" process, the decision is instructive in this regard.
53Close attention to the facts of each case is required in deciding whether the doctrine of judicial immunity applies. In this case, there is no assertion by the respondents that the Claims Adjudicator/Case Manager was an independent and impartial decision-maker deciding a dispute "purely between others", the term used in Zaki, supra. Nor does the description provided by the respondents of the process used by the Claims Adjudicator/Case Manager to arrive at a decision resemble the process of deciding a dispute between two or more persons. It appears that the Claims Adjudicator/Case Manager simply collects and analyzes information, and decides whether to grant or continue a benefit with the guidance of legislation, regulations and policies. In contrast to a dispute-hearing process, there may be no party opposing the granting/continuation of a benefit, and there is no routine disclosure of the information relevant to the decision, or opportunity to argue for or against a decision.
54There was also no claim by the respondents that the Claims Adjudicator/Case Manager is independent of the WSIB.
55For the above reasons, I conclude that the decisions of WSIB Claims Adjudicators/Case Managers do not attract judicial immunity.
56The function of the Case Nurse in this process appears to be no more than to make assessments and give reports; it has not been suggested that the Case Nurse decides whether to grant or continue a benefit. It is not clear that the respondents took the position that decisions of Case Nurses should attract judicial immunity, but in the interests of clarity, I also conclude that actions or omissions of Case Nurses are not subject to judicial immunity.
Does the WSIB have exclusive jurisdiction to deal with the subject-matter of this application?
57In the interim decision and during the teleconference, I requested that the respondents speak to certain provisions of the WSIA. In respect of s. 179, which immunizes individuals named by their function within the WSIB from civil actions "or other proceeding for damages" in respect of good-faith acts or omissions done in the course of their duties, the respondents agreed that this provision does not affect this application, as the applicant has properly named the WSIB as a respondent. Counsel did not raise the issue of whether the personal respondents should be continued as named respondents. No argument was made and I make no finding as to whether an application is an "action" or "other proceeding for damages".
58The respondents briefly addressed s. 118 of the WSIA. That provision states:
18(1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise.
(2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters:
Whether an employer has fulfilled his, her or its obligations under the insurance plan to return a worker to work or re-employ the worker.
Whether loss of earnings has resulted from an injury.
Whether permanent impairment has resulted from an injury, and the degree of the impairment.
59Section 118 does not specifically oust the jurisdiction of the Human Rights Tribunal of Ontario. It is therefore necessary to decide whether the provision should be interpreted to do so.
60While s. 118(1) is expressed generally, the language of the provision confines the WSIB's exclusive jurisdiction to "all matters and questions arising under this Act"; that is, the WSIA. It is not clear that a claim that WSIB staff breached the Code in the course of their duties should be interpreted as a "[matter or question] arising under" the WSIA, with the effect of ousting the jurisdiction of the Human Rights Tribunal of Ontario. Even if that interpretation could be said to arise from the wording of s. 118, considered purposefully in its full legislative context, such an interpretation would run counter to Ontario's "legislative policy shift towards concurrent jurisdiction" as noted by the Supreme Court of Canada in Tranchemontagne, supra, at § 39.
61It would also run counter to the law relating to the primacy of the human rights legislation. There are two aspects of primacy: the law as established by the Supreme Court of Canada in the absence of legislated primacy clauses, and the primacy clause that is a part of the Code.
62The Supreme Court has repeatedly asserted that, given its fundamental and quasi-constitutional status, human rights legislation prevails over other legislation: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 [3 C.H.R.R. D/1163]; Winnipeg School Division No. 1 v. Craton, 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150 [6 C.H.R.R. D/3014]; Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 [8 C.H.R.R. D/4326]; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554 [17 C.H.R.R. D/349]; Boisbriand, supra.
63Section 47 of the Code (the primacy clause) must also be considered in interpreting s. 118 of the WSIA. Section 47 provides as follows:
47(1) This Act binds the Crown and every agency of the Crown.
(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.
64The first aspect of the primacy clause was recently referred to by the Supreme Court in Tranchemontagne at § 34: the "Ontario legislature has seen fit to bind itself and all its agents through the Code: s. 47(1)". The effect of s. 1 is that the WSIB is bound by the provisions of the Code. Section 34(1) of the Code provides that
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2
65Subsection 34(11) goes on to specify the only conditions under which an application is barred. The provision refers only to court proceedings; it makes no mention of any other subject-matter that would bar an application. Specifically, the Code does not contemplate any other agency or tribunal having exclusive jurisdiction that would oust the jurisdiction of the Tribunal.
66The second aspect of the Code's primacy clause is s. 47(2). The Supreme Court in Tranchemontagne, in noting that the Code has primacy over other legislative enactments, stated that [at § 38]
. . . the legislature put its mind to conflicts between the Code and other enactments, declared that the Code will prevail as a general rule and also developed instructions for how it is to avoid application of Code primacy. Given that the legislature did not follow the procedure it declared mandatory for overruling the primacy of the Code, this Court is in no position to deduce that it meant to do so or that it came close enough. This is especially so given that the consequence of this deduction would be that the application of human rights law is curtailed.
The Court's conclusion about the intention of the Legislature is instructive. In my view, if the legislature had intended that s. 118 of the WSIA were to be understood to oust the jurisdiction of this Tribunal over an application that alleges a breach of the Code in the administration of the WSIA, it would have stated this specifically.
67The new procedural provisions of the Code provide further evidence that, far from excluding this Tribunal from reviewing matters within its substantive jurisdiction, the Legislature intended the Tribunal to have a broad and flexible role in promoting Ontario's human rights legislation and the policies behind it.
68The 2007 provisions require that Tribunal members be expert (s. 32(3)), give the Tribunal broad inquiry powers (s. 44), continue the Tribunal's extremely broad remedial powers (s. 45.2), remove the right of appeal, and impose the highest standard for judicial review of Tribunal decisions (s. 45.8). Further, s. 45.1 contemplates that where the subject-matter of an application might be dismissed as having been dealt with in another proceeding, the Tribunal may not dismiss the application unless it is satisfied that the other proceedings dealt with the application of the Code "appropriately". These provisions were enacted in 2007, some time after the Supreme Court's decision in Tranchemontagne confirmed that administrative tribunals other than the HRTO are obliged to apply the Code in cases otherwise properly before them.
69In a recent decision, the British Columbia Court of Appeal considered very similar provisions in British Columbia's Human Rights Code, R.S.B.C. 1996, c. 210 (the "BC Code"). In Workers' Compensation Board v. British Columbia (Human Rights Tribunal), 2010 BCCA 77 [reported 70 C.H.R.R. D/163], the Court found that it was open to the British Columbia Human Rights Tribunal to hear a complaint alleging that the chronic-pain policy of the British Columbia Workers' Compensation Board ("WCB") is discriminatory, when the Review Division of the WCB had held that that policy was not discriminatory. The Court confirmed several previous decisions holding that the WCB does not have exclusive jurisdiction in regard to matters involving the BC Code, "i.e., that the Board and the Tribunal have concurrent jurisdiction" (at § 15).
70In the light of these considerations, I cannot conclude that s. 118(1) can properly be read to give the WSIB exclusive jurisdiction over a claim that that WSIB staff breached the Code in the course of their duties.
Should the Tribunal defer this application, or dismiss it under section 45.1?
71In the course of the teleconference, there was some discussion of a further procedure at the WSIB (pursuant to an "objection") that might be open to the applicant, but the respondents did not assert that such a process is in fact open to the applicant at this point.
72The Tribunal may "defer an application in accordance with the Tribunal rules" according to s. 45 of the Code. The Tribunal's deferral power is a matter of Tribunal discretion rather than a jurisdictional bar. There has been no request for deferral of this application, but the Tribunal may and frequently does consider deferral on its own motion.
73Rule 14 of the Tribunal's Rules of Procedure contemplates that the Tribunal might defer for a wide range of reasons; no restrictions are stated. Often, the Tribunal defers because there is another legal proceeding, based wholly or in part on the facts alleged in an application, in progress. Whatever the reason for the deferral, where the Tribunal defers, an applicant may request that the application be reopened.
74On the reopening of a deferred application, or at any other time, the Tribunal may dismiss the application if it is satisfied that the other proceeding "has appropriately dealt with the substance of the application" (s. 45.1 of the Code).
75In this case, it appears that the applicant appealed to the WSIAT at least one decision of the WSIB in regard to her claim. She was successful on that appeal, but, at this early stage of her application to this Tribunal, no evidence was led that would make it possible to assess whether that proceeding dealt with any of the allegations that are the substance of this application, and the only submissions from either party were that it did not deal with these allegations. At this point, there appears to be no other proceeding to which the application might be deferred.
76If the facts are other than they appear at this early stage, it remains open to the respondents to serve and file a Request for an Order During Proceedings and provide evidence to support a request for deferral, or dismissal under s. 45.1. However, at present, there appears to be no reason to defer, or to dismiss.
ORDER
77The respondents' RFOP is denied in its entirety. The application may proceed as noted in this interim decision.