HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Stevens
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Stevens v. Workplace Safety and Insurance Board
WRITTEN SUBMISSIONS
Timothy Stevens, Applicant ) Self Represented
Workplace Safety and Insurance Board, )
Respondent ) Gurjit Brar, Counsel
BACKGROUND
1This is an Application filed on October 15, 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 disability was not accommodated. He also indicates that the facts of his Application are part of a proceeding before the WSIB that is ongoing.
2In the Application the applicant states:
If my appeal with WSIB is successful I will only then be pursueing [sic] through the Human Rights Tribunal discrimination and non-accomodation [sic] for my secondary injury whether related or not related to my work related back injury.
However, if my WSIB appeal is unsuccessful for full re-instatement of my LMR and full loss of earnings (LOE) I will then be pursueing [sic] my appeal through the Human Rights Tribunal retro-active from October 16, 2009.
3On May 24, 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.
4This Interim Decision addresses the issues of dismissal and deferral.
DISMISSAL
5The 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.
6In my view, the circumstances in this Application are similar to those in Frankson v. Workplace Safety and Insurance Board, 2009 HRTO 2084 (“Frankson”), and the Tribunal’s very recent decision in Russell v. Workplace Safety and Insurance Board, 2011 HRTO 1302 (“Russel”), wherein the applicants alleged that the WSIB did not appropriately accommodate them in their LMR programs because of disability.
7In Frankson and Russel, 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 and Russell 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 parties agree that the applicant’s objection to the WSIB’s decision regarding his LMR plan is proceeding to the WSIB’s Appeal Branch. The parties appear to concur that at least a significant portion of 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.
10In Hansen v. Workplace Safety and Insurance Board, 2009 HRTO 1134, 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 appears to consent to deferral of his Application pending the outcome of the WSIB/WSIAT proceedings.
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 Russel the Tribunal quoted from Baghdasserians v. 674469 Ontario, 2008 HRTO 404, where 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. The applicant’s objection is presently before the WSIB Appeal Branch and the parties expect a decision shortly.
ORDER
15On consent of both parties I order consideration of the Application deferred pending the conclusion of the appeal proceedings before the WSIB and any further appeal to the WSIAT.
16I direct 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/WSIAT proceedings.
17I am not seized of this matter.
Dated at Toronto, this 29th day of July, 2011.
”signed by”_____________
Alan G. Smith
Member