Bourne v. Dufferin Oaks Long Term Seniors Care Facility, 2011 HRTO 1366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Elizabeth Bourne

Applicant

-and-

Dufferin Oaks Long Term Seniors Care Facility and Acclaim – Ability Management

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: July 21, 2011 Citation: 2011 HRTO 1366 Indexed as: Bourne v. Dufferin Oaks Long Term Seniors Care Facility

WRITTEN SUBMISSIONS BY

Janice Elizabeth Bourne, Applicant ) Self-Represented

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on January 27, 2011, alleging discrimination in employment on the basis of disability.

2When initially filing her Application, the applicant alleged that the final incidents about which she complains occurred on September 4, 2009, and January 12, 2011. This was the date of her second workplace injury and hearing at the Workplace Safety and Insurance Board (“WSIB”), Appeals Branch, respectively. When directed by the Tribunal to provide one date for a final incident, she indicated July 16, 2009.

3The applicant indicates that the claim before the WSIB has not appropriately dealt with the substance of her Application, as there has been a “lack of appropriate payments since January 2010”. She also alleges that this is the employer respondent’s fault as well as “maybe Acclaim-ability Mgmtt whom they hire to deal with this.” The remedy she seeks in her Application is monetary compensation, amount “unknown” and has written “WSIB”.

4A Notice of Intent to Dismiss (“NOID”) was issued on April 18, 2011, indicating that the Application appears to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination and because to the extent she is challenging the decision or outcome of a WSIB adjudicative process, the Tribunal has held it has no jurisdiction over such outcomes or decisions adjudicated by other statutory bodies, as they are not “services” under the Code.

5On May 18, 2011, the applicant provided written submissions in response to the Notice of Intent to Dismiss.

BACKGROUND

6The applicant was employed at the respondent long term care facility where she suffered two workplace injuries. After the first injury, which occurred on August 26, 2006, she returned to work in March 2007 and performed modified duties. The second injury occurred on September 4, 2009; she has not returned to work since that time. In her narrative, the applicant alleges that she cannot perform the work previously assigned to her due to her injuries, which continue to deteriorate.

7The applicant alleges that the modified duties she was given after her first injury were not suitable given her medical restrictions and that she sought different modified duties from her employer, but these were denied. She alleges that her employer advised her on several occasions that nothing else was available and that given the fact that she was 60 years old, it was not worthwhile to retrain her. She continued to perform the modified work provided by the employer.

8The applicant indicates that the second injury occurred on September 4, 2009, and alleges that she has not been able to return to her modified work due to her permanent limitations. She alleges that the respondent employer and WSIB have ignored her doctor’s reporting and have demanded that she continue to perform duties which she cannot perform, with WSIB finding her to have “permanent partial disabilities”. She alleges that she has suffered physically and financially due to the respondent employer, the WSIB and Acclaim-ability Management. She alleges that if the respondent employer would tell WSIB to pay her benefits “for the past year owing and for the future it might be different”.

9The applicant indicates that on January 12, 2011, there was a hearing into her appeal of a WSIB decision, but that at the time of filing her Application, there was not yet any decision.

10In response to the Notice of Intent to Dismiss issued by the Tribunal, the applicant has alleged that her workplace accidents would not have occurred had the respondent employer adopted different practices. Further, she alleges that her injury was exacerbated by the second injury, leaving her with permanent leg and back injuries. She argues that she “believed that WSIB should have paid me fair and square but they have not done so and I believe that Dufferin Oaks and Acclaim-ability Mgmt also have had a hand or a say in whether I get paid or not”. The applicant alleges that “After these accidents/injury’s [sic], Dufferin Oaks, Acclaim-ability Mgmt and WSIB have chosen to ignore the numerous Doctor’s reports”. She states that the “delay has been on the WSIB, Dufferin Oaks, Acclaim-ability Mgmt’s side”, and not on hers. She states that as of the date of her submissions, she had been waiting 17 weeks for a decision following the January 2011 appeal hearing.

Adjudicative Functions of the WSIB and the Definition of “Services”

11I note that although the Application states that the allegations relate to discrimination in the area of employment, the applicant has nowhere alleged that she was employed by the WSIB. She does not allege discrimination in the area of services but as she is not and has not been an employee of the WSIB, it is more appropriate to analyze her claim against the WSIB in the context of “services”.

12In a series of cases, the Tribunal has considered whether statutory decision making, or aspects of it, fall under the definition of “services” in the Code. In Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99, the Tribunal explained as follows, at para. 12:

The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment “with respect to services, goods and facilities”. While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. 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. The decision is, therefore, not subject to the Tribunal’s jurisdiction.

13In Christianson v. Ontario (Community Safety and Correctional Services), 2009 HRTO 752, the Tribunal expanded upon these principles, noting that aspects of a tribunal’s functions do fall within the definition of “services”. At paras. 8-12, it stated:

It is true that within the Tribunal’s jurisprudence, the scope of what may constitute a service within the meaning of the Code, as it pertains to the activities of adjudicative bodies is not yet fully developed. For example, in Dann v. Wallace, 2009 HRTO 392 the Tribunal held that an adjudicator’s comments at a hearing, about her findings, are an element of the decision making process that is not a “service” under the Code. However, in Lindberg, the Tribunal suggested the possibility that some actions of an adjudicative body might be subject to the Code.

The Tribunal has ruled that the services offered by statutory tribunals do not extend to their final adjudicative decisions: Baird v. Workplace Safety and Appeals Tribunal, 2009 HRTO 99 at para. 13. 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.

In the present case, the applicant has failed to allege incidents or actions that involve the services of the OCCPS, within the meaning of the Code. Rather, the allegations all fall squarely within the adjudicative function of the OCCPS and specifically to its interpretation and application of its enabling legislation.

Whatever aspects of a tribunal’s functions may fall within the scope of the Code, I am satisfied that in this case, the Application relates to the adjudicative functions of OCCPS.

The Application takes issue with OCCPS decision, and the fact that by dismissing the complaint, OCCPS is denying the applicant the right to a full and proper investigation by the police of the various allegations of perjury and misconduct. The applicant has not alleged any facts which suggest that OCCPS, as an agency, in the exercise of its administrative functions, denied him services based on a prohibited ground of discrimination. Neither is there anything in the Application which alleges that the adjudicative process was exercised in a discriminatory way, or posed barriers to him because of a disability, even assuming that such a claim would fall within the scope of the Tribunal’s jurisdiction.

14Adjudicative 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.

15These principles have been applied in various other cases: see, for example, Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 250; Gibson v. Ontario (Attorney General), 2009 HRTO 870; S.B. v. Children’s Aid Society of Toronto, 2009 HRTO 884; Christianson v. Social Benefits Tribunal, 2009 HRTO 886; Kentebe v. Haggerty, 2009 HRTO 1163; Barker v. Service Employees International Union, 2009 HRTO 1253; Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1483.

16The WSIB has made a decision at the operational level and the applicant has objected to that decision, proceeding to the Appeals level in January 2011. As of the date of the Applicant’s submissions following the NOID, no decision had yet been reached by the WSIB Appeals level. In any event, it is evident that the applicant has named the WSIB as a respondent because she disagrees with the initial decision. The fact that the remedy she seeks in her Application appears to be WSIB benefits supports this conclusion.

17The applicant’s allegations, being related to the WSIB’s decision regarding her benefits, all fall squarely within the adjudicative function of the WSIB and specifically to its interpretation and application of its enabling legislation. This Tribunal’s power to address allegations of discrimination extends only to the social areas that are identified in the Code. The Tribunal does not possess a general or inherent power to entertain complaints of discrimination that are beyond its statutory mandate. The Application as against the WSIB appears to relate solely to the fact that the applicant disagrees with the ruling it has made and accordingly, the Application as against the WSIB cannot proceed as it is not within the jurisdiction of this Tribunal.

DELAY

18Section 34 states, in part:

(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

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

19The applicant has alleged that the respondent employer cited her age as 60, which, given the birthdate she provided, would mean the conversation took place between December 1, 2009 and December 1, 2010. However, according to the narrative the applicant provided, it appears that her allegations regarding a failure to accommodate and comments regarding her age relate to discussions she allegedly had with the respondent employer prior to her second injury on September 4, 2009.

20The allegation that the employer failed to accommodate her disability following her first injury relates to a time frame prior to the one-year period contemplated by the Code. The applicant has not provided an explanation for her delay in filing an Application relating to that allegation within the one-year time frame. She has not indicated how that she considers the events to be a series of events and I have therefore considered the two workplace accidents as distinct events. I cannot find that the delay has been incurred in good faith and accordingly, I do not find that the considerations in s. 34(2) apply. The portions of the Application relating to allegations of a failure to accommodate her disability following the first workplace injury are not within the Tribunal’s jurisdiction to consider and are accordingly dismissed.

OTHER

21With regard to the second injury, the applicant has stated that it has left her unable to perform the duties previously assigned. She alleges that the employer has ignored her doctors’ reports and notes and “demanded that I do what I can no longer do because of my permanent limitations”. She states that she has not returned to work since her second accident. She indicates that this has all had a significant financial and personal impact on her. While she alleges that the respondent employer ignores her medical condition and that it demands she do what she can no longer do, it is unclear from her narrative whether she is saying that there is modified work she could perform following her second injury and whether she has requested that the employer provide work which would accommodate her disability. The applicant has not requested an order that the employer respondent provide her with accommodation at work.

22The applicant has also alleged that the respondent employer and the respondent Acclaim-ability Management have had “a hand” in the WSIB decision regarding benefits and that her employer has ignored her doctor’s reporting. She has not alleged that Acclaim-ability was her employer. She has simply made bald assertions that the employer and Acclaim-ability have discriminated against her in their dealings with the WSIB and has not provided any particulars to indicate how she intends to prove a violation of the Code on the part of her employer or Acclaim-ability Management in this regard.

ORDER

23The applicant is directed to deliver to the respondents and to provide the following particulars to the Tribunal within two weeks:

1. Particulars regarding her allegation that the employer has discriminated against her following the second workplace injury, Specifically, any particulars relating to any attempts she has made to secure accommodation from the employer following her second injury and the employer’s response.

2. Particulars regarding her allegation that the employer has discriminated against her in its dealings with the WSIB.

3. Particulars regarding her allegation that Acclaim-ability Management has discriminated against her in the area of employment in its dealings with the WSIB.

24The respondents are directed to file their Response to the Application in Form 2 no later than 35 days after the applicant has provided particulars pursuant to the Order at paragraph 23 above.

25The style of cause will be amended to reflect the fact that the Application as against the WSIB has been dismissed.

26The portions of the Application relating to allegations of a failure to accommodate her disability following the first workplace injury are not within the Tribunal’s jurisdiction to consider and are accordingly dismissed.