Balla v. Workplace Safety and Insurance Board, 2011 HRTO 176

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Balla

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: David A. Wright

Date: January 25, 2011

Citation: 2011 HRTO 176

Indexed as: Balla v. Workplace Safety and Insurance Board

APPEARANCES

Cheryl Balla, Applicant ) Peter Mancini, ) Representative

Workplace Safety and Insurance Board, ) Gurjit Brar, Respondent ) Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the respondent violated s.1 of the Code because her age was one of the reasons for the respondent’s decision about placing her in a particular Labour Market Reentry (“LMR”) program.

2Initially, the applicant alleged that the respondent had discriminated against her on the basis of age and disability. The respondent made various arguments in its Response, including that the Tribunal had no jurisdiction over the claim based on age because of s. 2.1 (1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 18, Sched. A. as amended, (“WSIA”) and because the respondent was not providing a “service” within the meaning of s. 1 of the Code. On July 12, 2010, the Tribunal directed that a Summary Hearing be held pursuant to Rule 19A of its Rules of Procedure on the issue of whether the Application has a reasonable prospect of success. The Summary Hearing was held by teleconference on January 20, 2011.

3The applicant’s representative confirmed during the Summary Hearing that the applicant is only pursuing the Application on the ground of age. For the reasons that follow, I find that the Application has no reasonable prospect of success because it is outside the Tribunal’s jurisdiction as a result of s. 2.1(1) of the WSIA. Accordingly, there is no need to address the other issues raised.

4Section 2.1 (1) of the WSIA reads as follows:

A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code.

5Section 47 (2) of the Code reads as follows:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

6The applicant argued, first, that the WSIA cannot take precedence over the Code. This is not correct, as s. 47(2) of the Code provides that the Code prevails unless another Act or regulation specifically provides that it is to apply despite the Code. The Tribunal has applied this provision to dismiss other applications alleging age discrimination in the WSIA or decisions under it: see Fontaine v. Workplace Safety and Insurance Board, 2010 HRTO 1185; Keck v. Workplace Safety and Insurance Board, 2010 HRTO 1825.

7The applicant also argues that s. 2.1(1) of the WSIA does not apply to decisions regarding retraining such as LMR. I cannot accept this submission. The wording of the provision is clear that it applies to any decisions or provisions of the WSIA that make or authorize a distinction because of age.

8Finally, the applicant suggests that the decision is in contravention of the WSIB’s policies. The Tribunal has no power to apply WSIB policies, but only to determine whether the Code has been violated. The compliance of the decision with the WSIB’s policies is irrelevant to this Application.

9The Tribunal has no power to deal with this Application and it is dismissed.