Leacock v. Workplace Safety and Insurance Board, 2011 HRTO 1065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marc Leacock Applicant

• and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: June 6, 2011 Citation: 2011 HRTO 1065 Indexed as: Leacock v. Workplace Safety and Insurance Board

1The applicant filed this Application on December 30, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of ancestry, ethnic origin, creed, disability and age with respect to the areas of contracts, services, goods and facilities.

2The applicant alleges that the respondent, the Workplace Safety and Insurance Board (“WSIB”), discriminated against him by failing to provide him appropriate labour market re-entry (“LMR”) services, specifically education and retraining that addressed his needs as someone of a French background with a learning disability and Attention Deficit Hyperactivity Disorder (“ADHD”). The applicant indicates that he advised various WSIB caseworkers that he was raised French, only attended French Catholic schools and, as a result, was experiencing difficulty at the English college he was enrolled in by the WSIB. The applicant alleges that he required French language instruction to “minimize” his ADHD. The applicant also alleges that for retraining he was placed, without experience, in a field that was primarily “dominated” by younger individuals.

3The respondent filed a Response on April 26, 2011 denying the allegations of discrimination and, in particular, refuting that the applicant’s language related concerns are within the Tribunal’s jurisdiction. Along with its Response, the respondent filed a Request for Order During Proceedings (“Request”) requesting that the Tribunal dismiss the Application because (i) language is not a protected ground under the Code, (ii) the WSIB’s adjudicative decisions are outside of the Tribunal’s jurisdiction, and (iii) there is no prima facie case of discrimination.

4The applicant filed Reply submissions on May 18, 2011 opposing the respondent’s Request to dismiss. The applicant reiterates his allegations that the respondent was well aware of his language needs and assigned his claim to a French caseworker only after he filed this Application.

DECISION

Language

5The respondent argues that language is not a protected Code ground and, therefore, the Application should be dismissed because the applicant’s allegations relate to discrimination on the basis of language.

6I find that the question of whether the Application raises allegations within a Code-protected ground cannot be determined at this preliminary stage. Based on the applicant’s citation of various Code grounds, including ancestry, ethnic origin, creed, disability and age, it is unclear whether the applicant’s allegations pertain solely to language or language in intersection with other Code grounds and/or as a proxy for other Code grounds. These matters will require an assessment of the facts and evidence, along with an interpretation of the law in the area, in order to determine whether the allegations come within the cited Code-protected grounds. In these circumstances, it is not appropriate to determine at this preliminary stage whether the applicant’s allegations come within the meaning of the Code.

WSIB’s Adjudicative Decisions

7The respondent submits that the Application challenges the WSIB’s adjudicative decisions. The respondent points out that the Tribunal has held that adjudicative decisions of other adjudicative bodies are not within the Tribunal’s jurisdiction, citing Baird v. WSIAT, 2009 HRTO 99 (“Baird”) and Makhi v. Ontario Human Rights Commission, 2010 HRTO 1047.

8The Tribunal in Baird held that the “services” in section 1 of the Code does not include the “content, reasons and result” contained in a decision of an adjudicative decision-maker. Subsequent case law has interpreted that, in certain instances, adjudicative decision-making, and specifically the “content, reasons and result” of adjudicative decision-making, is outside the Tribunal’s jurisdiction because of judicial immunity. I find that this case is not one of those types of circumstances. Rather, this Application is more akin to Frankson v. Workplace Safety and Insurance Board, 2009 HRTO 2084 (“Frankson”).

9In Frankson, the applicant alleged that the WSIB did not appropriately accommodate him in his LMR program because of his learning disability. The Tribunal, relying on Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595, distinguished between agencies adjudicating disputes amongst others and those that provide benefits themselves. The Tribunal decided to proceed with an Application against the WSIB on the basis that it was “not plain and obvious” that it was without jurisdiction. Following Zaki and Frankson, other Tribunal decisions have also highlighted that the WSIB carries out a range of functions and makes a broad range of decisions not all of which can be clearly identified as adjudicative decisions (see Stahlbaum v. Workplace Safety and Insurance Board, 2010 HRTO 183 and Rogers v. Surex Community Services, 2010 HRTO 2086).

10Based on my review of the Application and the Response, the applicant’s concerns appear to pertain to how WSIB caseworkers have handled his claim and, in particular, he alleges that during the administration of his claim the respondent failed to address his needs in providing him with an appropriate LMR program. As such, at this preliminary stage, I am unable to conclude the WSIB functions and decisions challenged in the Application come strictly within the purview of adjudicative decision-making.

Prima Facie Case

11The respondent argues that the Application does not establish a prima facie case with respect to age discrimination. The respondent submits that the applicant makes blanket claims in this regard and does not provide particulars or evidence in support of the allegations.

12In the Application, the applicant alleges that it was harder for him to find work because of his age and that the WSIB placed him in a field that was primarily “dominated” by younger individuals. In his Reply submissions, the applicant indicates that he had not been in school for over 25 years and that his age, time out of school, French first language, poor English writing and reading skills, all constituted “additional circumstances” to his adverse experience.

13It is well-established that the threshold for establishing a prima facie case of discrimination is not high. At this stage of the proceeding, in the absence of any submissions or evidence of the parties, it will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code.

14In the present case, the applicant has specified the prohibited grounds of ancestry, ethnic origin, creed, disability and age and appears to suggest that the alleged discrimination was related to a combination of these factors. The applicant perceives that he was subjected to differential treatment that had adverse effects, which the respondent denies. I am satisfied that the applicant’s allegations, if accepted to be true, are sufficient to raise a prima facie case under the Code. As such, having heard no evidence, I am not prepared to dismiss the Application on the basis that the applicant has not made out a prima facie case.

CONCLUSION

15Having regard to all the information in the Application and Response, I find that at this stage the Application cannot be dismissed as outside the Tribunal’s jurisdiction. For the reasons set out above, the respondent’s Request that the Application be dismissed on a preliminary basis is denied. I emphasize this is not a final decision regarding the issues raised by the respondent.

16In conclusion, the respondent’s Request to dismiss is denied. Within seven days of the date of this Interim Decision, the respondent is directed to write to the Tribunal, copied to the applicant, indicating whether or not it is amenable to participating in mediation.

17If no mediation is scheduled or does not result in a settlement of the Application, the Vice-Chair assigned to adjudicate this Application may make further directions as to the hearing, including directions about whether the issue of jurisdiction will be heard separately from the merits of the Application. I am not seized of this matter.

Dated at Toronto, this 6th day of June, 2011

”signed by”________________

Ena Chadha Vice-chair