Robinson v. Workplace Safety and Insurance Board, 2011 HRTO 1826

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Robinson

Applicant

-and-

Workplace Safety and Insurance Board and Duro-Shed Inc.

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: October 11, 2011

Citation: 2011 HRTO 1826

Indexed as: Robinson v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS BY

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

Brian Robinson, Applicant ) Patrick James, Counsel

1The purpose of this Interim Decision is to provide direction regarding the next steps in this proceeding in light of a request to dismiss the Application.

2This Application was filed on October 29, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in services on the basis of disability under section 5 and reprisal under section 8 of the Code. The Application names two respondents, Duro-Shed and the Workplace Safety and Insurance Board (“WSIB”) and alleges that they failed to accommodate the applicant’s disability. The Application alleges that a WSIB case manager decided that the applicant could return to work based on modified duties that were inappropriate and then communicated to the applicant’s employer, Duro-Shed, that the applicant could return to full time work without any accommodations, contrary to the directions provided by the applicant’s treating physician. The Application alleges that Duro-Shed is relying on WSIB’s determinations and expects the applicant to return to regular duties when the applicant continues to require workplace accommodations.

3On February 16, 2011 Duro-Shed filed its Response denying that it failed to accommodate the applicant. On February 24, 2011 the Workplace Safety and Insurance Board (“WSIB”) filed its Response along with a Request for an Order During Proceedings (the “Request”) to dismiss the Application in its entirety on the grounds that the Tribunal does not have jurisdiction.

REQUEST TO DISMISS

4The WSIB submits that it had broad jurisdiction under the Workplace Safety and Insurance Act, 1997 and that its adjudicative decisions are outside the Tribunal’s jurisdiction. The WSIB submits that advising the applicant of its finding that the work offered by Duro-Shed was suitable and that the applicant had the ability to return to work was within its adjudicative function. The WSIB submits that the Tribunal has consistently ruled that that it does not have the jurisdiction to review the decisions of another adjudicative body that are within the jurisdiction of that other body. The WSIB relies on the Tribunal’s decisions in Makhi v Ontario Human Rights Commission, 2010 HRTO 1047 and Baird v Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99.

5The WSIB denies the applicant’s allegations that it advised Duro-Shed that the applicant was capable of performing his full-time duties with no restrictions and contends that there is clear evidence that the WSIB case manager advised the applicant the modified work offered by the employer was suitable for him given his medical restrictions.

6On June 13, 2011 the applicant filed his Response to WSIB’s Request. The applicant submits that he does not seek to review or challenge any adjudicative decision of the WSIB. He submits that he is challenging the actions taken and the comments made by the WSIB case manager in relation to the applicant’s return to work. He submits that WSIB’s discriminatory acts include advising Duro-Shed that it was not obligated to accommodate the applicant’s physiotherapy and other medical appointments related to his workplace injury. He states that the WSIB (not the applicant’s physicians) determined the applicant’s accommodation needs and the suitability of the work offered by Duro-Shed. He submits that it was discriminatory for the WSIB to inform Duro-Shed that it was not obligated to accommodate the applicant’s disability beyond providing him suitable work. The applicant submits that, as a result of the comments made and the actions taken by the WSIB case manager, Duro-Shed was led to believe that it was not required to accommodate the applicant up to the point of undue hardship and that it could disregard the restrictions imposed by the applicant’s physicians.

NEXT STEPS

7I am of the view that the Application against the WSIB and Duro-Shed should not be dismissed at this preliminary stage based on the information before the Tribunal. It is not clear, at this early stage, that the allegations contained in the Application relate to the WSIB’s adjudicative function. The Request is denied without prejudice to the respondents’ right to argue, at the hearing of this matter, that the Tribunal does not have jurisdiction over the Application either in whole or in part.

8The Application will be continued to be processed by the Tribunal in the normal course.

9I am not seized of this matter.