Russell v. Workplace Safety and Insurance Board, 2011 HRTO 1302

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam Russell

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 7, 2011

Citation: 2011 HRTO 1302

Indexed as: Russell v. Workplace Safety and Insurance Board

INTRODUCTION

1This is an Application filed on November 9, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in the area of goods, services and facilities. The applicant alleges that he was subjected to discrimination by a Workplace Safety and Insurance Board (“WSIB”) adjudicator, in the provision of the WSIB’s labour market re-entry (“LMR”) services, when his learning disability was not accommodated. He also indicates that the facts of his Application are part of a proceeding before the WSIB that is ongoing.

2On January 21, 2011, the respondent filed a Response to the Application, with a Request to Defer the Application pending completion of proceedings before the WSIB, or, possibly, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT). The respondent also filed a Request for an Order During Proceedings (“RFOP”) seeking dismissal of the Application on the basis that the allegations in the Application do not fall within the jurisdiction of the Tribunal. Alternatively, in its RFOP, the respondent reiterates its request to defer the Application. The applicant provided submissions in response to the respondent’s RFOP on February 2, 2011.

3This Interim Decision addresses the issues of dismissal and deferral raised by the respondent in its materials.

DISMISSAL

4The respondent submits that the applicant’s allegations focus squarely on a decision made in the course of administering the applicant’s claim under the Workplace Safety and Insurance Act, 1997 (the “WSIA”). Citing the Tribunal’s Decision in Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99, the respondent submits that the Tribunal has held that there are elements of the statutory decision-making process that are not encompassed by the meaning of “services” in the Code, such as the “content, reasons and result contained in a decision” of a statutory decision-maker. The respondent submits that the applicant is challenging an adjudicative decision made by the respondent in determining “the employment or business that is suitable for the worker”, within the meaning of section 42(3) of the WSIA. The respondent submits that the content, reason or result of that decision is not a service under the Code, and, therefore, the Application should be dismissed as being outside the jurisdiction of the Tribunal.

5The applicant submits that the respondent’s decision was a decision with respect to the provision of services and, as such, it was a service that the WSIB must provide in a manner consistent with the Code. The applicant also submits that he is challenging a discriminatory policy of the WSIB, he is seeking changes to that policy, and the Tribunal has the jurisdiction to deal with challenges to policies and procedures of the WSIB.

6In my view, the circumstances in this Application are similar to those in Frankson v. Workplace Safety and Insurance Board, 2009 HRTO 2084, wherein the applicant alleged that the WSIB did not appropriately accommodate him in his LMR program because of his learning disability.

7In Frankson, the Tribunal relied on Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595, and distinguished between agencies adjudicating disputes amongst others, and those that provide benefits themselves. The Tribunal, in Frankson, also relied on Cochrane v. Workplace Safety and Insurance Board, 2009 HRTO 1596, and determined that the Application could proceed on the basis that it was “not plain and obvious” that the Tribunal was without jurisdiction. Similarly, in Stahlbaum v. Workplace Safety and Insurance Board, 2010 HRTO 183, the applicant’s allegations included that his learning disability was not appropriately accommodated in the WSIB’s LMR program. The Tribunal in Stahlbaum also determined that it was not plain and obvious that the Application was outside of its jurisdiction and, therefore, the Application would not be dismissed at a preliminary stage.

8Based on my review of the parties’ materials, including the allegations in the Application concerning the provision of the respondent’s LMR program, I find that it is not plain and obvious that the Application concerns matters of adjudicative decision-making that fall outside the Tribunal’s jurisdiction. At this preliminary stage, the respondent’s request that the Application be dismissed is denied. This is not a final decision regarding the issues raised by the respondent.

DEFERRAL

9The respondent submits that the applicant objected to the WSIB’s decision regarding his LMR plan and is proceeding to the WSIB’s Appeal Branch. The respondent submits that the facts and issues in the WSIB proceeding and the present Application before the Tribunal are the same, raising both a likelihood that proceedings dealing with the same issues will run concurrently and a risk of inconsistent decisions. The respondent cites Hansen v. Workplace Safety and Insurance Board, 2009 HRTO 1134, as a case with similar facts, wherein the Tribunal held that deferral was appropriate.

10In Hansen, the applicant alleged in his Application that the WSIB’s decision concerning his participation in its LMR program was discriminatory, and he also proceeded with an objection to that decision to the WSIB’s Appeal Branch. The Tribunal found that the applicant was raising the same facts and issues related to discrimination before both the WSIB and the Tribunal and determined that deferral was appropriate.

11In the present case, the applicant submits that he expects a decision from the WSIB’s Appeal Resolution Officer shortly. He submits that, if the decision is negative, he will appeal to the WSIAT. Given the nature of his case, the applicant submits that it could be processed relatively quickly, however, even quick appeals at the WSIAT take from one year to eighteen months to complete. Lastly, the applicant submits that the Tribunal ought to follow the decision in Hansen, supra, because the facts are similar.

12Rule 14.1 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

13In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

14In my view, deferral is the most fair, just and expeditious way of proceeding with this Application. The applicant is raising the same facts and issues related to his allegations of discrimination concerning his participation in the WSIB’s LMR program before both the WSIB and the Tribunal. Although it is not clear what stage of the proceeding his WSIB appeal is at, it appears that the applicant’s objection was before the WSIB Appeal Branch and he expected a decision shortly.

15In the circumstances, the Tribunal determines that it is appropriate to grant the respondent’s request that the Application be deferred. The Tribunal orders the deferral of the Application, pending the conclusion of the WSIB proceedings before the WSIB and any further appeal to the WSIAT.

16The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WSIB proceedings. If the WSIB proceedings have already concluded, a request that this Application proceed may be made to the Tribunal within 60 days of the date of this Interim Decision.

17I am not seized.