Haskins v. Great-West Life, 2011 HRTO 1661

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Haskins

Applicant

-and-

GWL a.k.a. Great-West Life Scarborough Disability,

The Great-West Life Assurance Company

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: September 7, 2011

Citation: 2011 HRTO 1661

Indexed as: Haskins v. Great-West Life

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on February 16, 2010 in which she alleges discrimination on the basis of disability in employment, contracts, and goods, services and facilities.

2The applicant alleges that the respondent On-Line Support Inc. (“OSI”), her employer, failed to accommodate her return to work to part time hours after a medical leave of absence. The applicant alleges that the respondents GWL a.k.a. Great-West Life Scarborough Disability, and Great-West Life Assurance Company (collectively “GWL”) discriminated against her when it denied her claim of long-term disability benefits. The Application also names Assure, Telus Health Solutions (“Telus”) and Emergis as respondents.

3The applicant alleges that on GWL’s card, the logos are displayed of the respondent Emergis and the respondent Assure, and as such these respondents are presented as being partners or service providers to GWL. The applicant requests proof from the respondents Emergis and Assure that they have conducted interactions with respect to her in their dealings with GWL.

4While the applicant identifies the respondent Telus as owning the respondent Emergis, it does not appear that she makes any allegations against it. The applicant submits that she formerly resided in Nova Scotia, but has relocated to Ontario.

5GWL filed a joint Response and submits that the applicant applied for but was denied long-term disability benefits because she did not satisfy the definition of disability as set out in the insurance policy. GWL denies discriminating against the applicant and submits that the dispute is one of interpretation of a contract of insurance that is not within the jurisdiction of the Tribunal. GWL did not raise any other jurisdictional issues.

6The respondents Assure, Telus and Emergis Inc. filed a joint Response in which they submit the Application should be dismissed against them. The respondent Emergis submits that it is in business of managing drug, dental and extended health claims on behalf of insurance companies throughout Canada, including GWL. The respondent Telus is a brand name or trade name of the respondent Emergis. The respondent Assure was a federal corporation based in Ontario and was amalgamated with BCE Emergis Inc., also a federal corporation, in January 2000.

7The respondent Emergis submits it does not know the details of any relationship between GWL and OSI. Pursuant to an agreement between GWL and the respondent Emergis, GWL directs employees of OSI to submit claims to the respondent Assure’s system for processing so that the respondent Emergis can administer drug, dental and extended health care benefits to them. The respondent Emergis does not manage disability benefits on behalf of GWL, nor does it administer disability benefits to GWL’s policy holders such as employees of OSI. Any decisions with respect to the acceptance or denial of disability claims submitted by GWL are made by GWL and not the respondent Emergis. They submit that they have no contractual or service relationship with the applicant.

8OSI filed a Response and a Request for Order During Proceedings. In both filings, OSI submits that the applicant was its employee in a Nova Scotia location until January 2010, when the employment relationship was severed. OSI submits that the Tribunal does not have the jurisdiction to determine an Application filed by an applicant whose employment was located outside of Ontario. OSI agrees with the submissions filed by GWL and submits that the issue of the denial of long-term disability benefits is one for the courts and not the Tribunal to determine.

9The applicant filed a Reply in which she submits that the issues raised in her Application are within the jurisdiction of the Tribunal.

10The Tribunal issued an Interim Decision, 2010 HRTO 1724, in which it directed the applicant to provide submissions addressing the following:

a) is the Application with the allegations as described against all the respondents outside the jurisdiction of the Tribunal because the events described seem to have occurred outside of Ontario?

b) Is the issue of the denial of long-term disability benefits an issue that is within the jurisdiction of the Tribunal?

c) Are there allegations against the respondents Assure, Telus Health Solutions, and Emergis Inc. that fall under the Code?

11The applicant sent an email dated August 23, 2010, to the Tribunal and the respondents stating, amongst other things, that she was reluctant at this time to transmit electronically without a personal hearing any documentary evidence or submissions because of potential “fraud” or the “possibility of persons attempting to duplicate her claim with another insurance company”. She also submitted that GWL is within the jurisdiction of the Tribunal because correspondence from GWL was sent from its Scarborough office and she attended that office while she was in Ontario to sign some of its documents.

12Counsel for the respondents Assure, Telus Health Solutions and Emergis delivered submissions reiterating their position that there are no allegations against them within the scope of the Code. The other respondents have not filed submissions and the time for doing so has passed.

Allegations against Assure, Telus Health Solutions and Emergis

13The Tribunal’s power to hear and determine human rights applications is based upon the Code which, among other things, prohibits discrimination and harassment with respect to employment on the basis of the grounds set out in the Code. The Tribunal does not have a general power to evaluate relationships or claims of unfairness unless affected by a ground in the Code. See Lewis v. Niagara Regional Housing, 2009 HRTO 1766; and Bisbee v. The Hudson’s Bay Trading Company, 2009 HRTO 1284.

14The applicant alleges that Emergis’ logo is displayed on a GWL card and that Emergis is now owned by Telus. She alleges that Assure’s name is displayed on a GWL card and that it appears to carry on the business of administering health care benefits such as prescription drugs. She submits that by these respondents being named on GWL’s cards, they are partners or service providers of “the Plan Administration”. She seeks proof from both of them that they had her consent to use and exchange personal information with GWL and submits that she did not sign an agreement with Assure.

15On its face, the Application does not allege any facts that come within the scope of the Code as against Assure, Telus or Emergis. The mere existence of a business relationship between Assure, Telus or Emergis and GWL is not sufficient to ground a Code claims. The fact that information about the respondents Emergis, Telus and Assure may appear on GWL materials does not, by itself, amount to an allegation that the Code has been violated. Accordingly, the Application is dismissed against the respondents Assure, Telus and Emergis and the style of cause is amended.

Allegations against OSI

16The Tribunal was created by a provincial statute and the rights provided for in the Code are statutory in nature. As a provincial statute, the Code is subject to the constitutional limitation that provinces may not legislate “extra-territorially”. The Constitution Act, 1867, makes it clear that provincial legislative jurisdiction is confined to “property and civil rights in the Province” (s. 92(13)), and “generally all matters of a merely local or private nature in the province” (s. 92(16)).

17A provincial statute may, however, cover acts occurring outside the province where the acts, in pith and substance, relate to matters within the province. Thus, where an act of discrimination with respect to employment is alleged to have occurred outside Ontario, but relates to an employment relationship that in other respects is an Ontarian one, the Tribunal will have jurisdiction to consider the complaint. (See Cash v. Stryker Canada, 2009 HRTO 1738, at paras. 3 and 4.)

18In DesRoches v. Hardt, 2009 BCHRT 300, the British Columbia Human Rights Tribunal (“BCHRT”) held that the employment in issue must have a “sufficient connection” to the province, and that some of the relevant factors to consider are whether the employer’s place of business was in the province, the employee’s residence and usual place of employment was in the province, and the employee’s terms of employment required the employee to work both in and out of the province. The Tribunal has agreed with the BCHRT’s approach and held that the same test applies in Ontario. (See Cash, supra, and Smith v. 507417 Ontario, 2010 HRTO 802.)

19In my view, the applicant’s allegations against OSI do not have a sufficient connection to Ontario. While OSI may have had some offices in Ontario, and the applicant may have been located in Ontario during discussions about her commencing employment with OSI, and later been in Ontario (and perhaps Quebec and New Brunswick) while off work for medical reasons, OSI’s place of business was in Nova Scotia. Nova Scotia constituted the applicant’s place of employment and, while working for OSI, she resided in Nova Scotia.

20On the basis of the information before me, it appears that the allegations raised in the Application as against OSI lack a sufficient connection to Ontario. For these reasons, the Tribunal does not have jurisdiction over the Application as against OSI and, accordingly, it is dismissed against OSI. The style of cause is amended accordingly.

Allegations against GWL

21Attached to the applicant’s Application form, and in response to question 8 “What Happened” is “Schedule A” (collectively “the Application”). It appears in the form of a statement of claim and contains long excerpts from various websites describing group benefits and the companies providing these benefits, legal textbooks explaining insurance terms, medical websites explaining medical conditions which the applicant apparently has, and various statutes from various jurisdictions including Nova Scotia, the United Kingdom and British Columbia. At the heart of the Application, the applicant takes issue with GWL’s denial of her application for long-term disability benefits to which she asserts she is entitled.

22GWL submits that it issued a policy of group insurance to OSI which provided for the payment of long-term disability (“LTD”) benefits to eligible employees of OSI. The applicant was denied LTD benefits because GWL determined that she did not meet the definition of disability as set out in the policy. GWL denies that it discriminated against the applicant and submits that the dispute between them is one of interpretation of a contract of insurance and not within the jurisdiction of the Tribunal.

23The Tribunal has dismissed an application against an insurance company when it only administers a federally-regulated company’s self-insured disability plans and when the federally-regulated company retains all liability and responsibility for paying the disability benefits to individuals under the plan. See Wint v. First Canada ULC, 2011 HRTO 1524.

24In this case, it appears that the Application is within the Tribunal’s jurisdiction because the allegations relate to GWL’s interpretation and administration of its insurance policy. There is no information before the Tribunal from either GWL or OSI to suggest that the policy was self-insured by OSI and that OSI retained all liability and responsibility for paying out the disability benefits. The respondents were given an opportunity following the issuance of the Interim Decision to provide that information and neither OSI nor GWL filed any submissions. This issue is similar to Craig v. Brinks Canada, 2010 HRTO 1875, in which the Tribunal allowed an application to continue to proceed against an insurance company after the Tribunal found that the employer was federally regulated yet the insurance company was provincially-regulated.

25Accordingly, the Application as against GWL will continue. The Tribunal will issue further directions in a Case Assessment Direction that will be sent along with this Interim Decision.

26I am not seized of this matter.