Bradley v. Workplace Safety and Insurance Board, 2011 HRTO 2021

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Bradley

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 7, 2011

Citation: 2011 HRTO 2021

Indexed as: Bradley v. Workplace Safety and Insurance Board

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging that the respondent, the Workplace Safety and Insurance Board (WSIB) discriminated against the applicant by failing to accommodate a disability.

2The respondent filed a Response on August 16, 2011 in which it asked the Tribunal to dismiss the Application or in the alternative, to defer further consideration of the Application until the applicant has pursued appeals available to her under the Workplace Safety and Insurance Act, 1997, Chapter 16 Schedule A as amended.

3The applicant filed a Reply in which she opposes the dismissal request but does not oppose the respondent’s request that the Application be deferred.

Background

4The applicant is an injured worker. The WSIB determined that she was entitled to a labour market re-entry (LMR) plan and she was sponsored in an educational upgrading program, and a computer training course at a training facility. Pursuant to the LMR plan, the applicant was then going to be sponsored in a program at a community college that was to lead to employment as a Community and Justice Worker. The applicant started the computer training program in approximately September 2008. Her progress in the program was delayed for a number of reasons. In about November 2009, she advised the WSIB that she could not attend the program for the 20 hours a week that it required. She provided a note from her family doctor indicating that she was not able to attend the LMR program 20 hours per week. She asked if she could attend the program on a more part-time basis. The Claims Manager determined that there was not sufficient medical evidence to show that the applicant could not continue in the program at 20 hours per week. The Claims Manager found that the applicant was not entitled to further LMR services and her benefits were reduced. These decisions were communicated in a letter from the Claims Manager dated December 2, 2009.

5The Application was filed with the Tribunal on December 1, 2010.

6According to the respondent, the applicant objected to the Claims Manager’s decision, and in May 2011, the Board reconsidered the decision but came to the same conclusion. The respondent states that the applicant’s objection was then referred to the Board’s internal Appeals Branch for consideration. The parties have not provided any further information about the progress of the Board’s consideration of the applicant’s objection.

7The respondent submits that the Tribunal does not have jurisdiction to deal with the Application because, under sections 118 and 123 of the Workplace Safety and Insurance Act, the WSIB and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) have exclusive jurisdiction to deal with the issues raised in the Application. The applicant submits that this does not mean that the Human Rights Tribunal of Ontario lacks jurisdiction to deal with human rights issues that arise in the adjudication of claims by the WSIB and the WSIAT.

8Both parties agree that, if the Tribunal has jurisdiction to deal with the Application, it should defer further consideration until the process underway under the Workplace Safety and Insurance Act are complete.

9Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

10The issues in the Application concern decisions made by the WSIB in the course of adjudicating the applicant’s claim for benefits and labour market re-entry services under the Workplace Safety and Insurance Act. Whether or not this Tribunal has jurisdiction to deal with the issues raised in the Application, it is clear that the WSIB and WSIAT have the jurisdiction to deal with the issues raised in the Application.

11In these circumstances, it is appropriate for the Tribunal to defer consideration of the Application until the applicant has completed the appeal process available to her at the WSIB and WSIAT. If at the end of that process, the applicant feels that the human rights issues have not been appropriately dealt with, she may ask the Tribunal to re-activate the Application. The process by which an Application may be brought back after it has been deferred is set out in Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure.

12I am not seized.