Timothy Cochrane v. Workplace Safety and Insurance Board and James Strachan, 2010 HRTO 913

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Cochrane

Applicant

-and-

Workplace Safety and Insurance Board and James Strachan

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: April 27, 2010

Citation: 2010 HRTO 913

Indexed as: Cochrane v. Workplace Safety and Insurance Board

BACKGROUND

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination in services by the Workplace Safety and Insurance Board (“WSIB”). This Application has been the subject of three previous Interim Decisions by the Tribunal, 2009 HRTO 1596; 2009 HRTO 2182; and 2009 HRTO 2234.

2The applicant alleges that he was receiving WSIB benefits as a result of an injury to his knee which occurred in April of 2008. He alleges that in the course of the adjudication of that claim, the claims adjudicator asked for clinical notes and records from his physician. The applicant states that during a telephone call with the adjudicator on April 17, 2009, the adjudicator told the applicant that his loss of earnings benefits had ceased mid-March because the adjudicator was not satisfied with the physician’s opinion. The applicant states that the adjudicator then stated that he noticed (presumably in the physician’s clinical notes and records) that the applicant was taking antidepressants, and stated that “chronic pain is not acceptable” and that “the WSIB does not entertain claims based on depressive disorders”. The applicant argues that the adjudicator’s comments about depression, made in a case where his mental health was not at issue, constitute discrimination on the basis of disability. He appears to allege that the adjudicator’s views about his mental disability affected the WSIB’s denial of benefits related to his physical disability.

3The applicant has filed an appeal of the claims adjudicator’s April 9, 2009 decision to the WSIB appeals branch. This process may result in a re-determination of the applicant’s claim for lost wages. In its decision of December 21, 2009, the Tribunal sought submissions on whether this matter should be deferred.

DEFERRAL

4The respondents argue that to the extent the Application relates to the entitlement of benefits, it should be deferred pending the completion of the internal WSIB proceedings. However, they argue that the allegation of discrimination because of certain statements alleged to have been made by the claims adjudicator to the applicant does not fall within the WSIB’s jurisdiction and that this aspect of the Application should not be deferred. Although he sent various correspondence to the Tribunal, the applicant did not specifically address the issue of deferral.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

6The Tribunal has not used the deferral power to defer an Application in part. In my view, this would not be an appropriate approach in this case. The issue of whether the WSIB claims adjudicator made allegedly discriminatory comments is intimately linked with the allegation that discrimination considerations were a consideration in the decision-making process. In my view, it is difficult to see how these allegations can be separated in the HRTO process as the respondents suggest.

7In the circumstances, it is appropriate to defer consideration of this Application, in whole, until the completion of the WSIB appeal process, and any appeals to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The issues raised in the Application focus on the interpretation and application of WSIB legislation, and it is fairest to the parties, and most consistent with the statutory schemes, that the issues be determined within that process before any proceedings at the HRTO. The WSIB proceedings will deal with some of the same issues that the applicant seeks to raise at the HRTO, and the result could affect the remedies available to the applicant. It would be an improper duplication of proceedings for the matters to proceed simultaneously. I note that the issue of the Tribunal’s jurisdiction remains to be decided, in accordance with the Interim Decision of December 15, 2009, 2009 HRTO 2182.

THE APPLICANT’S COMMUNICATIONS WITH THE TRIBUNAL

8Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

9It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

10In this case, the applicant has filed various submissions that do not respect these requirements. Various letters filed with the Tribunal have insulted the respondents and their counsel, at times using language inconsistent with the principles of equality and respect protected in the Code. This language is not acceptable for submissions in the Tribunal’s quasi-judicial process. The applicant is cautioned that, if this matter is reactivated following the deferral, a resumption of such conduct may lead to further steps being taken by the Tribunal.

ORDER

11The Application is deferred pending the completion of the applicant’s appeal of the April 2008 decision of the WSIB. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the WSIB proceedings have been concluded.

12I am not seized of this matter.