Frankson v. Workplace Safety and Insurance Board, 2011 HRTO 2107

Human Rights Tribunal of Ontario

B E T W E E N:

Mike Frankson Applicant

-and-

Workplace Safety and Insurance Board Respondent

-and-

Office of the Worker Advisor Intervenor

DECISION

Adjudicator: Sherry Liang

Date: November 22, 2011

Citation: 2011 HRTO 2107

Indexed as: Frankson v. Workplace Safety and Insurance Board

APPEARANCES:

Mike Frankson, Applicant ) Jo-Ann Seamon, Counsel ) Clara Matheson, Counsel

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

Office of the Worker Advisor, Intervenor ) Teresa Gianfelice, Counsel

1This is an Application filed on June 15, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the Workplace Safety and Insurance Board (the WSIB) discriminated against the applicant on the ground of disability, when it changed his Labour Market Re-Entry (LMR) program because of his learning disability. The applicant states that he was moved from a 3 year LMR program to a 5 week program because of the refusal of the WSIB to provide accommodation of his learning disability in his original program.

2The WSIB takes the position that the Tribunal does not have jurisdiction over the matters in the Application and requests that the Tribunal dismiss the Application in its entirety. Among other things, it relies on section 118 of the Workplace Safety and Insurance Act, S.O. 1997, C. 16, Sched. A, as amended (the “WSIA”), which it states gives it broad and exclusive jurisdiction to hear and decide all matters and questions arising under the WSIA. The WSIB also relies on certain decisions of the Tribunal finding that the adjudicative functions of a statutory tribunal are not “services” under the Code.

3In the alternative, the WSIB states that it has not discriminated against the applicant.

4In my Interim Decision of December 3, 2009, 2009 HRTO 2084, I denied the WSIB’s request for early dismissal without a hearing, deciding that the issues raised by the Application, including the question of whether it is within the jurisdiction of the Tribunal, are important and complex and should be considered within the context of the “full factual matrix”.

5On August 4, 2010, 2010 HRTO 1642, I granted the request by the Office of the Worker Advisor (OWA) to intervene in the Application, to address the issue of the Tribunal’s jurisdiction over the matters raised in the Application.

6I heard the Application over three days in Sarnia in October 2010. I was greatly assisted by the efforts of counsel in arriving at an Agreed Statement of Facts, which was supplemented by the oral evidence of the applicant. The parties also relied on documents entered into evidence on agreement, including correspondence and reports relating to the applicant’s LMR benefits, various WSIB policies and other material.

BACKGROUND – THE WSIB

7Ontario’s workers’ compensation system is administered by the WSIB, a statutory government agency, which is responsible for the provision of benefits for injured workers pursuant to the WSIA. The WSIB is funded entirely by employer premiums. The WSIB maintains an Insurance Fund, and the return on investments of the Fund also provides funding for benefits.

8There is a wide range of monetary and non-monetary WSIB benefits available to injured workers to reduce the impact or and compensate for their work-related disabilities. Monetary benefits include loss of earnings benefits, non-economic loss awards, independent living allowances and personal care allowances. Non-monetary benefits include health care, assistive devices, home or vehicle modifications and LMR plans for injured workers who are unable to return to the employment in which they were injured.

The Operations Division

9The WSIB has an Operations Division, which is responsible for the first level of claims administration for workers and employers, and an Appeals Branch which provides an internal mechanism for appealing decisions of the Operations Division. Final decisions of the Appeals Branch can be externally appealed to the Workplace Safety and Insurance Appeals Tribunal (the WSIAT), which is the last level of appeal in the workers’ compensation system. Decisions of the WSIAT are subject only to judicial review by the Divisional Court.

10The initial decision made on a claim to the WSIB is whether the injury in question is compensable under the WSIA. This initial decision is made by an “eligibility adjudicator”. Following this initial decision, a case manager (formerly also called an adjudicator) is assigned the file, to make determinations about the worker’s benefits. Some of the decisions that may be made by a case manager include whether the injured worker has suffered a wage loss and qualifies for loss of earnings (LOE) benefits, the length of such benefits, and entitlement to health care, assistance devices and LMR.

11Case managers may make a series of decisions. Fresh entitlement decisions may be made in response to changes in factors such as the worker’s medical condition, availability of suitable work, and the worker’s post-accident earnings. The decision-making process is based on information gathered by the case manager, which can be in the form of written information from the worker, the employer and the treating health care practitioner, and telephone contacts.

12Where a party disagrees with a decision made within the Operations Division, he or she may complete an Objection Form. The adjudicator or case manager may reconsider their decision based on the information contained in the Objection Form or new evidence provided with the Form. If the decision remains unchanged, the file will be referred to the Appeals Branch.

The Appeals Branch

13Appeals from decisions of the Operations Division are assigned to Appeals Resolution Officers (ARO), who are employees of the WSIB. The non-objecting party is given the opportunity to participate in the appeal, but in many cases, employers do not participate in appeals brought by injured workers.

14Appeals are often resolved solely on the basis of written submissions and the contents of the WSIB file. If the parties do not agree to this, and if the ARO determines that it is required, an oral hearing will be scheduled. Generally, these hearings are not open to the public. Rules of evidence are not strictly followed. Cross-examination and other hallmarks of the adversarial adjudication model are discouraged.

15After the hearing the ARO will release a written decision which may provide a resolution of the issues in dispute, or may send aspects of the appeal back to the Operations Division for reconsideration or re-assessment.

16Upon receipt of the written decision of an ARO, the parties are notified of their ability to appeal the decision to the WSIAT.

The WSIAT

17Unlike the decision-makers at the WSIB, the WSIAT is an independent appeals tribunal, whose sole function is to adjudicate appeals which are initiated by either the injured workers or their employers. The hearing process is considerably more formal than that before the Appeals Branch of the WSIB. The parties to an appeal are the injured worker and the accident employer.

18At the WSIAT, parties are given the opportunity to proceed in writing or by way of an oral hearing. However it proceeds, the case will be heard “de novo”, in other words, the WSIAT makes its decision based on the evidence it hears and is not bound and does not give deference to the decision of the WSIB. Pursuant to section 123(3) of the WSIA, the WSIAT can confirm, vary or reverse the decision of the WSIB. It is required to apply WSIB policies. The WSIAT has no authority to review the WSIB’s internal operations including whether or not WSIB staff have complied with the WSIB policies or the Code. However, the WSIAT has the jurisdiction to consider and apply the Code. The WSIAT has adopted a Practice Direction to address “Procedure when Raising a Human Rights or Charter Question.”

19The parties agreed that the WSIAT’s jurisdiction to consider human rights issues includes considering whether a WSIB policy is discriminatory, or whether a particular LMR plan or SEB (suitable employment or business) is inconsistent with the duty to accommodate a disability.

[Sections 118](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html#sec118_smooth) and [123](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html#sec123_smooth) of the [WSIA](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html)

20Section 118 of the WSIA states, in part:

(1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise.

(2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters:

4. Whether a person is co-operating in reaching his or her maximum medical recovery, in returning to work or in the preparation and implementation of a labour market re-entry plan.

5. Whether a labour market re-entry plan for a person is to be prepared and implemented.

21Section 123 states in part:

(1) The Appeals Tribunal has exclusive jurisdiction to hear and decide,

(a) all appeals from final decisions of the Board with respect to entitlement to health care, return to work, labour market re-entry and entitlement to other benefits under the insurance plan;

Labour Market Re-Entry

22If an injured worker is unable to return to his or her previous job and the accident employer does not have suitable work available, the case manager must provide the injured worker with a LMR assessment. For this purpose, the case manager usually refers the injured worker to a service provider with whom the WSIB has contracted.

23The service provider assesses the injured worker’s skills, interests and workplace restrictions, and previous earnings. The service provider then attempts to identify two suitable employment or business options (SEBs) which could form the basis of a LMR plan, the completion of which will reduce or eliminate the injured worker’s ongoing wage loss. One of the SEBs is recommended and the other is an alternative. The service provider’s assessment includes a detailed costing of all of the identified SEBs including the ongoing cost to the WSIB of income replacement benefits that may be payable to the injured worker.

24The LMR Assessment is given to the case manager who then makes a decision on whether a LMR plan is required for a worker to re-enter the labour market and if so, which SEB to implement.

25LMR plans vary widely and range from minor job search assistance to university degree programs. The service provider monitors the progress of the worker through the LMR plan, providing updates to the case manager. Service providers may make further recommendations to the case manager about amendments to the LMR plan, which are up to the case manager to decide.

26After completion of a LMR plan, the WSIB assesses the amount of ongoing LOE benefits based on the difference between pre-injury earnings, and earnings the worker earns or is able to earn through employment following the LMR.

27Since June 2010 the WSIB has started to phase out the use of LMR service providers, so that the LMR assessment, plan development and supervision of LMR plans will be done by WSIB staff.

WSIB Policies

28A defining feature of the WSIB is its ability to determine its own practices and procedures pursuant to its mandate. This is largely accomplished though the creation of WSIB policies for interpreting the WSIA. Policy is created and adopted by way of a formalized process. The WSIB polices play a pivotal role in the workers’ compensation system because the WSIB and the WSIAT are required to apply WSIB policies in their decisions: see section 126 of the WSIA.

29The WSIB has a number of policies dealing with Labour Market Re-entry. In its documents, and at the hearing, the WSIB explicitly acknowledges that in formulating a LMR plan, the WSIB has a duty to provide equal treatment under the Code, including accommodation of a disability. WSIB Document 19-03-02, in relation to LMR Assessments, states that “[i]n determining entitlement to LMR plans the WSIB must have regard for workers’ rights under the Ontario Human Rights Code. Therefore, when conducting a LMR assessment, the WSIB considers any non-work-related disability, handicap, or condition a worker may have.”

30In WSIB Document 19-03-03 (Determining Suitable and Available Employment or Business, and Earnings), it states that “[i]n accordance with the Ontario Human Rights Code, when determining a SEB, the WSIB considers any pre-existing non-work-related disability or condition a worker may have.”

31In WSIB Document 19-03-04 (Entitlement to LMR Plans), the WSIB sets out how it determines whether a LMR plan is appropriate. A LMR plan is provided when “it is the most appropriate and cost-effective way to enable a worker to re-enter the labour market and reduce or eliminate any loss of earnings resulting from the injury.” The WSIB considers the information gathered in the LMR assessment for each SEB option as well as other factors such as whether “the worker has the aptitude and ability to complete the activities set out in the LMR plan” and “the worker is likely to be successful in completing the LMR plan”. The WSIB states that it evaluates the cost-effectiveness of a LMR plan by comparing the total estimate cost of the proposed plan and the benefits to be paid for future loss of earnings, the estimated costs of alternative plans and the estimated cost of future benefits payable to the worker if a LMR plan is not provided.

The applicant

32The applicant, Mike Frankson, experienced a workplace injury in November of 2000, while working as a forklift operator at an auto parts manufacturing plant in Petrolia, Ontario. Mr. Frankson had been working as a forklift operator for about 7 years. Previous to that, he had done maintenance and repair at a woodworking plant for 22 years. He has worked in residential construction, and also as a carpenter on a golf course.

33Mr. Frankson grew up in the United States. He did not complete high school. He states that from when he was a young student, he realized that he had difficulty in reading. He was assessed for it, and placed in a remedial reading program, but through a combination of lack of meaningful assistance and his own frustrations, he gave up on school. He stated that it was easier for him to go out into the workforce and find manual work than to struggle with written literature.

34Mr. Frankson described his difficulties in reading. He stated that he mixes up the order of words, so that the text does not make sense. He then has to read and re-read slowly, until it makes sense. He does the same thing with numbers.

35When he was injured in November 2000, he filed a claim with the WSIB and received LOE benefits until he returned to work on modified duties. Over the next few years, he experienced recurrences of his injury and increased symptoms, as a result of which, in August 2007, his employer informed the WSIB that it was no longer able to accommodate him in the workplace.

36As a result, Mr. Frankson received LOE benefits and was referred to LMR services. At the time, he was also in receipt of “non-economic loss” (NEL) benefits, on account of his permanent neck and shoulder injuries.

37Mr. Frankson was referred to Cascade Disability Management Inc. (Cascade), a service provider, for a LMR assessment in April 2008. At the time, he was 57 years old. Mr. Frankson underwent a Psycho-Vocational Assessment in May 2008, which concluded that he was suitable for academic upgrading, as well as academic training, to a maximum of a Grade 12 diploma and a one or two year college diploma. At the assessment, Mr. Frankson told the assessor that he believed he had dyslexia. The assessor noted a potential learning disability in the report, and that this may be a barrier in his LMR plan. The assessment did not in itself confirm the presence of a learning disability.

38Mr. Frankson’s goal in the LMR assessment process was to look for a new career that would lead to a job with benefits. He did not wish to be given short-term training that would lead to a part-time or low paying job. He spent time researching new careers and actively sought out upgrading facilities and formal training institutions in his community, even undergoing academic assessments at some of these facilities including the Lambton Kent District School Board and Lambton College, located in Sarnia, the place of his residence.

39As indicated above, during psycho-vocational assessment, Mr. Frankson reported that he believed he suffered from dyslexia. He also made this known to Cascade. Although he had never been formally diagnosed with dyslexia or another learning disability, he knew he had always struggled with reading and writing, and sought a clear diagnosis. He wished to have a diagnosis in order to understand what learning strategies and coping mechanisms would help in the re-training process.

40After conducting his own research, Mr. Frankson proposed a retraining program to Cascade through which he would obtain academic upgrading and then enter a Social Service Worker Program or Child and Youth Worker Program at Lambton College. These programs would take him four to five years to complete. Cascade did not view these options as suitable and, in the LMR Assessment provided to the WSIB on June 27, 2008, recommended that Mr. Frankson be retrained as an Administrative Clerk. Cascade also recommended that Mr. Frankson undergo further testing to determine if he had a learning disability.

41At this time, Wade Spencer, a claims adjudicator with the WSIB, was responsible for the decisions on Mr. Frankson’s file. As indicated above, persons in Mr. Spencer’s position are now referred to as “case managers” rather than “adjudicators”.

42Mr. Spencer approved the Administrative Clerk SEB and the LMR plan which consisted of the following components:

• Computer upgrading from July 14, 2008 to August 31, 2008

• Academic upgrading at Lambton College from September 2008 to August 2010 (ACE Certificate program)

• Formal training at Lambton College in the Office Administration Certificate Program from September 2010 to August 2011

• Job search training in September 2011

43Mr. Frankson did not agree with the WSIB’s decision to retrain him as an Administrative Clerk. Through his research, he had learned that few men of his age enter this field. He believed that he would have a better chance of finding work as a Social Worker rather than as an Administrative Clerk. Despite his concerns, he decided to cooperate in the Administrative Clerk retraining plan. He did not want to have his benefits cut off for failure to cooperate. Mr. Frankson decided that he would work to complete the academic upgrading. Once that was done, he could appeal the Administrative Clerk SEB and hopefully be given the opportunity to enter into a social work program.

44On August 21, 2008, Mr. Frankson underwent a Psycho-Educational Assessment conducted by Dr. Henry Svec as directed by Mr. Spencer in response to Cascade’s recommendation. The ensuing report indicated the existence of a learning disability as well as a hearing impairment. It noted that Mr. Frankson had taught himself coping strategies to compensate in part for his difficulties in reading comprehension, but that these strategies “would be somewhat problematic in a formalized training or educational program”. Dr. Svec stated that Mr. Frankson’s expressive language deficits would “prevent [him] from returning to an environment of re-education without significant and excessive support.”

45While the report identified these learning barriers, and gave the opinion that Mr. Frankson would require “significant and excessive support”, it did not provide any suggestions about what supports might be needed.

46On learning that Dr. Svec’s report confirmed the presence of a specific learning disability, Mr. Frankson spoke to Mr. Spencer requesting that he be able to see Dr. Svec again in order to learn about what possible coping strategies could assist him in his academic training. He was not given the opportunity to consult with Dr. Svec for this purpose, and was advised that the WSIB was reviewing his LMR plan.

47On September 15, 2008, Mr. Frankson began his academic upgrading at Lambton College which focused on language skills and math. Over the next few months, he continued with this program, while the WSIB reviewed his LMR plan. He experienced challenges from both his learning disability and physical limitations (which restricted the number of hours he could attend College daily). In his evidence, Mr. Frankson indicated that he was permitted to advance on his own pace and as a result was able to successfully complete most of the work as required.

48In October 2008, Mr. Spencer advised Mr. Frankson that the WSIB intended to change his LMR plan. The WSIB determined that based on Mr. Frankson’s academic barriers, the Administrative Clerk SEB was not appropriate, the current LMR plan was not cost effective and that a new SEB would be selected involving less academic and shorter term training. Mr. Spencer’s notes of September 24, 2008 indicate, among other things, that the WSIB now viewed the current SEB as not suitable “due to workers ability to learn and the extent of assistance that will be required to achieve the SEB requirements”. Physical difficulties with meeting the requirements were also noted. On October 3, 2008, his notes indicate “the review showed [Mr. Frankson] is not capable of achieving the requirements required to be successful in the training and that it is not cost effective.”

49On November 19, 2008, Mr. Spencer issued a new decision changing the SEB from Administrative Clerk to Retail Sales Representative and ordering a new LMR plan. Under the new plan, Mr. Frankson would end his academic upgrading at Lambton College on December 31, 2008 and would then participate in Retail/Customer Service training at Goodwill Industries in Sarnia for approximately eight weeks. The new LMR plan would end on February 28, 2008. In a letter from Mr. Spencer on January 12, 2009, he provided further explanation for the WSIB’s decision, stating:

Originally you were assessed and to participate in LMR for Administrative Support Clerks. While starting out in this you has [sic] asked that we review and consider another SEB regarding social services. In taking this into consideration further vocational testing was conducted. The results of this identified many barriers including the identification of a learning disability which upon review provided evidence that the original SEB of Administrative Support Clerks was not suitable.

To provide appropriate support regarding these barriers and the identified learning disability would add considerable cost and time to the original plan with no guarantee of correcting these issues and allowing a likely completion and success of the original program.

It is with the above noted that your plan has been changed to retail sales person and sales clerk as it is within your physical abilities, job potential in the labour market is good, it is most cost effective and you are likely to succeed in the training and securing a job after the plan ends.

50Mr. Frankson did not agree with the change to the LMR plan. He stated that he felt devastated when he learned of it. He had started the 2-year ACE program at Lambton College to obtain a Grade 12 equivalency, which would have enabled him to apply for any college program upon its completion. He believed he was receiving excellent instruction, and passing grades. Mr. Frankson’s goal in doing the ACE program was to eventually revive the possibility of entering into a social work program. With the change in the LMR, he was compelled to leave the ACE program, and enter into the retail retraining program as of January 2009. To Mr. Frankson, the loss of the opportunity of receiving a Grade 12 equivalency meant the end of his hopes for a new career. He stated that “I felt that if I at least had grade 12, I had a real chance to do something”.

51Mr. Frankson testified that he took the initiative, early in the LMR assessment process, to advise the WSIB of his potential learning disability. He wished to participate in the LMR process so that he could upgrade his skills and be able to move into another field of work. He knew he would need assistance in coping with his learning disability in any academic upgrading, however and thought that the WSIB would help him identify more specifically the nature of his barriers and ways to manage them.

52He felt that the result of his disclosure of his learning disability was that the WSIB decided he simply was not capable of the academic upgrading, and decided to move him into a truncated retraining program leading into low paying work.

53It should be remembered that the applicant has permanent physical limitations, which meant that he was no longer able to engage in the type of work he had been doing. He was therefore looking for the tools to enable him to move into a different field of work.

54Mr. Frankson filed a notice of his intent to appeal the change in his LMR program, but ultimately did not follow through with it. He states that he decided instead to file bring the Application to the Tribunal. He believed the WSIB’s decision was discriminatory, and that he would be better off dealing with the issue at the Tribunal rather than through the WSIB appeals process.

55After completing the LMR plan based on the retraining as retail clerk, Mr. Frankson looked for work but was unsuccessful in obtaining full-time employment.

56In December 2009, the WSIB once again reviewed Mr. Frankson’s LMR plan, and reconsidered its decision on the Retail Sales SEB. It identified a number of direct entry positions, such as a dispatcher or a construction supervisor, that he could perform with very little re-training. The WSIB’s report noted that his employment history over the last four decades was predominantly in the construction trades. Mr. Frankson was not afforded an opportunity to return to college level studies. At the same time, the WSIB increased his NEL so that it is now 40%. Mr. Frankson decided to not proceed with a new LMR plan. He did not believe that the training being offered would lead to full-time employment in any of the fields that the WSIB had identified. At the time of the hearing, Mr. Frankson had neither full-time nor regular part-time work.

SUBMISSIONS OF THE PARTIES

Jurisdiction of the Tribunal over this Application

57The parties provided thorough and thoughtful submissions on the issue of whether the Tribunal has the jurisdiction to consider the Application. As indicated above, the WSIB does not dispute that the Code applies to decisions made under the WSIA about benefits. However, it takes the position that it is not for the Tribunal to decide whether the WSIB’s decisions under its statute are made in compliance with the Code, in the circumstances raised by this Application.

58The WSIB relies on the Tribunal’s decisions finding that the “content, reasons and result” of adjudicative decisions are not “services” within the meaning of the Code. In this case, it submits, the applicant disagrees with an adjudicative decision by the WSIB to change the SEB that formed part of his LMR. That, in its view, is the essence of this Application.

59The WSIB also submits that an analysis of the legislative framework, taking into account the nature of this dispute, leads to the conclusion that the WSIB has the exclusive jurisdiction to determine matters falling under the WSIA, including the appropriate SEB. Counsel referred me to decisions of the Supreme Court of Canada that provide an analytical framework for deciding whether different tribunals have concurrent, overlapping or exclusive jurisdiction over a dispute, including Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R 185 (Morin), Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 (Weber) and Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223 (Charette). These decisions were considered by the Alberta Court of Queen’s Bench in Workers’ Compensation Board v. D.W., 2007 ABQB 585 (WCB v. DW), in arriving at the conclusion that the Alberta Human Rights and Citizenship Commission did not have jurisdiction over a claim that the Alberta Workers’ Compensation Board discriminated in denying services to a particular claimant.

60In the case before me, the WSIB further submits that the concept of judicial immunity applies to decisions made by the WSIB. Referring to the Tribunal’s decisions applying this concept, counsel acknowledges that there may be a question about whether the decision-makers within the WSIB are independent in the same sense as arbitrators and judges. However, the WSIB has obligations under law to be fair and impartial, and must consider the interests of both workers and employers. To the extent that the concept of judicial immunity rests on the concern that decision-makers must be able to perform their functions without the fear of civil suits, this same concern is recognized in section 179 of the WSIA, giving immunity to employees of the Board.

61Counsel for the applicant submits that neither the Code nor the WSIA supports the conclusion that the Tribunal has no jurisdiction to determine the issues in this Application. Sections 118 and 123 of the WSIA may speak to exclusive jurisdiction of the WSIB and WSIAT, but the intent of these sections is to establish the respective jurisdiction of these two bodies, and not to exclude the jurisdiction of the Tribunal under the Code.

62Counsel submits that the provisions of the Code are inconsistent with the exclusive jurisdiction model put forward by the WSIB. Section 47 of the Code establishes the primacy of the Code over other statues and regulations, with specific exemptions. Section 2.1 of the WSIA contains such a specific exemption. In expressing a legislative intent to remove the Tribunal’s jurisdiction over allegations related to age discrimination, it also indicates a legislative intention to leave other issues of discrimination within the Tribunal’s jurisdiction.

63Section 45 and 45.1 of the Code, it is submitted, support a concurrent jurisdiction model, giving the Tribunal the power to defer to another authority’s disposition of a discrimination claim.

64Counsel provided a number of decisions from other jurisdictions which have considered, directly or indirectly, the relationship between workers compensation issues and human rights issues and the respective jurisdiction of the statutory authorities charged with determining those issues. Counsel also referred to the Supreme Court of Canada decision in Morin, submitting that in deciding whether a matter is in the exclusive, concurrent or overlapping jurisdiction of several tribunals, the first step is to review the legislative scheme. Then the nature of the dispute must be determined. Here, the nature of the dispute is the refusal or failure to accommodate the applicant’s learning disability in the provision of LMR services. This is an issue, it is submitted, which goes to the core of the Tribunal’s expertise.

65With respect to the merits of the Application, counsel submits that the WSIB discriminated against the applicant by withdrawing services that would have been made available but for his learning disability. Instead of accommodating his learning disability, the WSIB changed his re-training program, denying him the opportunity to obtain his Grade 12 equivalency. This in turn reduced his employment prospects, and caused injury to his self-worth and dignity.

66Counsel for the intervener generally supported the submissions of counsel for the applicant, urging me to find that the Tribunal has jurisdiction to consider the Application. In addition to the authorities cited by the other parties, she referred to decisions of the WSIAT. In one, Decision No. 1529/04, the WSIAT concluded that benefits under the WSIA are not excluded from the definition of “services” under the Code. Among the decisions included in the intervener’s book of authorities is WSIAT Decision No. 213/07, in which it ordered the WSIB to re-do a worker’s LMR plan because it did not meet the requirements under the WSIB’s policies and the Code to take into account the worker’s alcohol and drug addiction disability in establishing the LMR. The intervener submits that this case provides useful context about the interplay between human rights remedies and remedies under the WSIB and WSIAT processes. Although the worker was successful in obtaining a LMR assessment, it took several years to arrive at a determination that his LMR was not appropriate, time for which the worker will never be made whole.

67The intervener and the applicant also pointed out the difficulty for a worker like Mr. Frankson who disagreed with a SEB that ultimately increased, rather than decreased, his loss of earnings benefits. If he chooses to appeal the LMR plan to the WSIAT while receiving those benefits, he puts those benefits at risk.

68Further, neither the WSIB nor the WSIAT can provide remedies for a violation of the Code. The WSIAT’s jurisdiction under the WSIA is limited to confirming, varying or reversing a decision of the WSIB (s.123(3)). Also, where there is no dispute about benefits, the WSIAT will not inquire into whether the WSIB may have discriminated under the Code.

FINDINGS AND ANALYSIS

69I find it useful at the outset to state what this case is not about. It is not about whether, in providing benefits under the WSIA, the WSIB is obliged to act in accordance with the provisions of the Code. The WSIB acknowledged before me that the Code applies to its operations, and this is reflected in its policies requiring that decisions on benefits be consistent with Code requirements. This general principle is subject only to the exclusion of age-related distinctions expressed in section 2.1 of the WSIA. The WSIAT has also confirmed that benefits payable under the WSIA are not excluded from the definition of “services” under the Code, and are therefore subject to the protections under the Code (see Decision No. 1529/0412, 2008 ONWSIAT 547). In hearing appeals from WSIB decisions, including those involving a LMR plan, the WSIAT has the authority to decide whether the WSIB has met the requirements of the Code (see Decision No. 213/07, 2007 ONWSIAT 279)

70In stating the above, I wish to emphasize that the question of whether this Tribunal has the jurisdiction to hear and determine the applicant’s claim of discrimination arising out of the administration of the WSIA should not be confused with the question of the substantive reach of the Code, which is not in dispute here.

71This leads me to the main issue I must determine in this Application and that is whether Mr. Frankson, who claims discrimination in the provision of benefits under the WSIA and who has decided not to pursue an appeal under the WSIA, may make an application to the Tribunal seeking a remedy for the alleged discrimination. In sum, is Mr. Frankson obliged to raise his claim of discrimination through the appeal process available under the WSIA, or may he choose to pursue his claim of discrimination to the Tribunal instead?

72Here, there is no dispute that the WSIB must provide its services consistent with the guarantees of equal treatment under section 1 of the Code. The applicant has made an application under section 34 to remedy an alleged infringement of his right to equal treatment under section 1. Where there is no dispute about the substantive reach of the Code, the starting point in answering the issues before me must be a general presumption, based on section 34, that individuals may bring an application to the Tribunal about alleged violations of their rights under the Code.

73This however is only the starting point, for the law has recognized limits to the Tribunal’s jurisdiction. I will consider them in turn.

"Services" under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

74In several cases, the Tribunal has decided that the allegation that a decision of a WSIB claims adjudicator is discriminatory does not raise an issue about a “service” under the Code: see, for example, Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712 and cases cited there. On this basis, the Tribunal found it did not have jurisdiction over the application that was before the Tribunal in those cases. I have some reservations about the reasoning in those decisions. Indeed, the Tribunal’s decision in Zaki v. Ontario (Community and Social Services) (Zaki), 2009 HRTO 1595 has suggested that the Tribunal’s prior reasoning should be re-visited.

75As I have indicated, the WSIAT has decided that benefits under the WSIA are a “service” within the meaning of the Code. I see no reason to doubt the reasoning of the WSIAT in this regard and, as I have stated, the WSIB does not challenge this conclusion.

76If this is so, does the fact that the change to Mr. Frankson’s SEB benefits was accomplished through a decision by a claims adjudicator remove the Tribunal’s jurisdiction over a claim of discrimination?

77Many government programs depend at some stage on the exercise of a statutory decision-making power. These include, as described by the Tribunal in Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765, driver’s licenses, a Coroner’s inquest, or disability support benefits. It is reasonable to surmise, without reviewing every benefit-granting statute, that the primacy of the Code means that the benefits under most such statutes must be administered without discrimination. If this is so, it would, in my view, be a curious result if no claim of discrimination under the Code could be made, simply because the denial of the benefit or change in the benefit rests on a decision made under a statutory scheme.

78In the case of the WSIB, the function of the claims adjudicators is to make decisions on certain aspects of claims, as an integral component of the overall WSIB’s operations in administering the benefits under the WSIA. I see no basis to distinguish between the action of amending or denying benefits to a claimant, and the decision that led to the action. The decision to deny benefits to Mr. Frankson does not stand alone as a “service” provided by the WSIB and claims adjudicators do not provide a freestanding decision-making “service” to claimants that can be separated from the result of their decisions. As the Tribunal stated in Zaki,

It is not the content of the decision or reasons that is the alleged violation of the Code, but the alleged inability of the applicant to obtain the services, but for the alleged discrimination. [para. 13]

79In rejecting a similar challenge to the jurisdiction of a human rights board of inquiry, the Saskatchewan Court of Appeal noted, in Saskatchewan (Workers’ Compensation Board) v. Saskatchewan (Human Rights Board of Inquiry), (1999), 1999 CanLII 12368 (SK CA), 34 C.H.R.R. D/400 (Wiebe), that the role of the human rights board of inquiry was not to consider how the WCB arrived at its decision, nor the merits of the decision itself, but at the effect of the decision.

80I therefore do not accept the argument that the Tribunal is deprived of jurisdiction over a claim about discrimination in the administration of WSIA benefits, based on a theory that the decision of a claims adjudicator to deny benefits is not a “service” for the purposes of the Code.

Judicial Immunity

81An alternative theory put forward by the WSIB rests on the principle of judicial immunity. As discussed in Cartier v. Nairn, 2009 HRTO 2208,

[t]he doctrine of judicial immunity prohibits legal proceedings against judicial actors which are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences.

82The concept of judicial immunity protects not only judges from legal proceedings based on the execution of their duties as judicial actors, but also tribunals and certain other statutory-decision makers: see Agnew v. Ontario Association of Architects, (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) and the Tribunal’s decisions in Cartier, Hazel v. Ainsworth Engineered, 2009 HRTO 2180.

83Although it does not appear that the Tribunal has explicitly relied on the concept of judicial (or adjudicative) immunity in finding that decisions of claims adjudicators cannot be the basis of a claim under the Code, there is a suggestion in some decisions that the principles may apply to claims adjudicators. On considering the submissions of the parties and reviewing the legal authorities in this area, I agree with the reasoning in Dopelhamer that the doctrine does not extend so far.

84The touchstone for the application of judicial immunity is independence. In addition to the discussion in Cartier, the Tribunal stated in Hazel that “[j]udicial immunity is necessary to protect the public’s interest in a fair, impartial and independent justice system.” Claims adjudicators are not independent from the WSIB and cannot be equated to members of an administrative tribunal such as the WSIAT, the Social Benefits Tribunal or this Tribunal. Although obligations of fairness and impartiality apply to their decision-making, they are part of the institutional framework for the administration of benefits under the WSIA, and are not arms-length from the WSIB. It can be said that the benefits provided through the WSIB are fairly unique in the landscape of government benefits, being funded entirely through employer contributions. It might also be argued, as it was before me, that in making their decisions, claims adjudicators must consider the interests of both workers and their employers. While this may be, claims adjudicators are nonetheless employees of the WSIB with the attendant employment-related loyalties and responsibilities. They do not decide or resolve disputes between parties from whom they are functionally and legally separate.

85Section 179 of the WSIA does not support the application of judicial immunity to deprive the Tribunal of jurisdiction. The Tribunal has relied on that section in removing an individual claims adjudicator as a respondent to an application under the Code (Hansen v. Workplace Safety and Insurance Board, 2010 HRTO 1260) and has thus confirmed that this provision of the WSIA protects employees of the WSIB from personal liability for a human rights claim. However, subsection 2 of that same provision also states that the immunity granted to employees and others “does not relieve the Board of any liability to which the Board would otherwise be subject in respect of a person described…” I therefore do not find s. 179 helpful to my decision on the Tribunal’s jurisdiction.

86My reasons for rejecting the argument that this Application does not raise an issue of “services” under the Code also apply to my analysis here. In order to access benefits under the WSIA, an injured worker must make a claim. A claim for benefits in turn requires individuals employed by the WSIB to make a decision. In this case, it was Mr. Spencer’s role to decide what LMR plan the applicant should be granted under the WSIA. In this role, he was not acting akin to an independent adjudicator or a member of administrative tribunal, but as part of the bureaucratic framework established for the administration of WSIA benefits.

87In concluding that claims adjudicators or case managers are not covered by the doctrine of judicial immunity, I make no determination about whether the outcome of an appeal to a WSIB Appeals Resolution Officer may lead to the dismissal of an application under section 45.1 of the Code, which is not an issue before me.

Exclusive Jurisdiction

88This brings me to what I consider to be the most difficult question, and that is whether the applicable legislative scheme leads to the conclusion that the WSIB and the WSIAT have exclusive jurisdiction to determine the issues raised by this Application.

89I am grateful to counsel who have provided me with much case law from other jurisdictions that have considered the relationship between human rights law and other statutory regimes, and the respective jurisdiction of the agencies having a role in administering those laws. Ultimately, no one decision addresses the full factual and legal context before me, although some of them provide significant insight on the analysis I ought to adopt.

90The governing principles for determining which of two possible tribunals has jurisdiction over a dispute have been thoroughly reviewed by the Supreme Court of Canada in the Weber, Morin and Charette decisions. In Morin, the Court stated:

Weber holds that the model that applies in a given situation depends on the governing legislation, as applied to the dispute viewed in its factual matrix. In Weber, the concurrent and overlapping jurisdiction approaches were ruled out because the provisions of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, when applied to the facts of the dispute, dictated that the labour arbitrator had exclusive jurisdiction over the dispute. However, Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction; see, for example, Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495. As stated in Weber, supra, at para. 53, “[b]ecause the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator.” [para. 11]

91And at para. 15:

This question suggests two related steps. The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction. The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the arbitrator. The second step is logically necessary since the question is whether the legislative mandate applies to the particular dispute at issue. It facilitates a better fit between the tribunal and the dispute and helps “to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties”, according to the underlying rationale of Weber, supra; see Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at para. 39.

92Accordingly, I must have regard to the relevant legislation and what it states about the jurisdiction of the WSIB/WSIAT and the Tribunal. I must also consider the nature of the dispute, in its full “factual matrix”.

93As set out above, sections 118 and 123 of the WSIA give the WSIB exclusive jurisdiction to determine whether a labour market re-entry plan should be prepared and implemented, and the WSIAT exclusive jurisdiction to hear appeals concerning entitlement to labour market re-entry and other benefits. On appeal, the WSIAT may review the suitability of a LMR plan. There is no dispute between the parties that included in the WSIAT’s jurisdiction is the authority to determine whether a LMR established by the WSIB complies with the Code, and if it does not, to order that a new LMR be developed. As indicated above, in one of the decisions referred to me, the WSIAT found that a LMR plan failed to incorporate any measures to take account of a worker’s alcohol addiction, and the WSIB therefore had not meet the requirements of its policies and the Code: Decision No. 213/07, above. The WSIB was directed to provide a new LMR assessment.

94A person who believes that any of his or rights under the Code have been infringed may apply to the Tribunal for a remedy. Certain provisions of the Code bar applications to the Tribunal in specified circumstances, such as where a civil proceeding has been commenced seeking a remedy for the same alleged infringement of human rights: s.34(11). However, the Tribunal is not precluded from proceeding with an application where no such civil suit has been commenced.

95The Code and the applicable caselaw establish a general regime of concurrent jurisdiction over human rights claims amongst various tribunals. There is nothing in the Code stating that the Tribunal is the exclusive forum through which to seek a remedy of an infringement of the Code; there is likewise no provision excluding the Tribunal’s jurisdiction over a human rights claim because of the potential availability of an alternative forum. In some areas, the Tribunal may be the only adjudicative forum available to hear and decide a claim of discrimination; in other areas, its jurisdiction may be concurrent or overlap with other authorities.

96The Supreme Court of Canada (“SCC”) has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513. Statutory tribunals, like the WSIAT, that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them. Where the same issues have been brought to both the Tribunal and another forum, the Tribunal has been given the power to defer its application pending the completion of the other proceeding, and to determine that the disposition in the other forum should be the end of the matter: ss. 45 and 45.1.

97In this case, had the applicant decided to appeal the change in his LMR plan to the WSIB’s Appeals Resolution Officer and then to the WSIAT, making the claim that the decision of the Case Manager was discriminatory, the Tribunal may have had to consider what effect to give to the results of that appeal under 45.1 of the Code. However, this is not the case before me.

98Here, the issue is whether sections 118 and 123 of the WSIA preclude this applicant from bringing his claim of discrimination to the Tribunal. It is whether the applicant was limited to bringing an appeal to the ARO and WSIAT, in order to have his claim of discrimination heard.

99The Supreme Court of Canada decisions to which I was referred establish that the existence of provisions granting exclusive jurisdiction over a subject area, such as sections 118 and 123 of the WSIA, does not preclude the possibility of concurrent jurisdiction over matters that originate within the subject area but extend into areas where another tribunal also has jurisdiction. In Morin, the Supreme Court found that a dispute about whether a collective agreement provision was consistent with the equality guarantee under the Quebec Charter of Human Rights and Freedoms was not within the exclusive jurisdiction of an arbitrator. The Court referred to its statement in Weber that, “[b]ecause the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator.” (Weber, para. 53)

100In this case, I have the applicant and the intervener on the one hand urging me to find that the “nature of the dispute” is fundamentally a human rights issue, whereas the WSIB on the other hand submits that the nature of the dispute is about the appropriateness of a SEB as part of a LMR program. What I take from Morin is that it is not useful to apply a category-based approach to the issue of whether the WSIB has exclusive jurisdiction over an issue that an applicant seeks to bring before the Tribunal. As the Court stated in Morin,

We must look at the dispute in its full factual context. Its legal characterization – whether it is a tort claim, a human rights claim, or a claim under the labour contract – is not determinative. The question is whether the dispute, viewed in its essential character and not formalistically, is one over which the legislature intended the arbitrator to have exclusive jurisdiction…[para. 20]

101On my review of this dispute in its full factual context, I find that it is not one over which the Legislature intended the WSIB and WSIAT to have exclusive jurisdiction.

102In arriving at this answer, it must be recognized that the dispute arises out of a change to the applicant’s LMR plan and that the development of a LMR plan is a matter at the heart of the WSIB’s expertise. Various WSIB policies govern different elements of the LMR process, including the initial decision to conduct a LMR assessment and the components of that assessment, which can, but does not necessarily, include psycho-vocational evaluations, functional abilities evaluations and other assessments. Based on that assessment, the WSIB then makes a decision about whether a LMR plan is required to enable the worker to re-enter the labour market and restore pre-injury earnings.

103In developing a LMR plan, the WSIB identifies a category of jobs suitable for the worker (the SEB), based on a set of criteria including the worker’s functional abilities and whether the worker will, after the LMR, be able to achieve his or her pre-injury earnings. The last criterion in turn requires an assessment of the local labour market and the likelihood of the worker finding employment in the SEB following completion of the LMR. In selecting a SEB, the WSIB also takes into account the cost of implementing different SEB options. Under the WSIB’s policies, academic upgrading may be part of a LMR plan if it will enable the worker to re-enter the labour market or it is a prerequisite of a formal training program.

104Interestingly, a lengthier, more expensive LMR program including several years of academic upgrading may well lead to a greater reduction of benefits in the long run, if it results in a higher paying job, than a short LMR program leading to a minimum wage job. In determining whether a LMR plan is “cost effective”, therefore, an investment in a lengthy re-training program may or may not turn out to be the most cost effective option from the WSIB’s point of view, if the result is a significant reduction in the loss-of-earning benefits over the long run to the particular worker.

105In this case, the WSIB initially determined that a SEB that required academic upgrading was appropriate, and the applicant accordingly began a program at Lambton College. The allegation before me is that once it was confirmed that he had a learning disability, the WSIB decided on that basis alone to change the SEB and accompanying training, and decided on a LMR plan that was much less beneficial to the applicant. The allegation is that in making its decision, the WSIB acted in contravention of the Code in assuming, without any further investigation, that Mr. Frankson would be unable because of his disability, to complete a LMR plan that it had previously considered appropriate. This, it is asserted, violated the applicant’s rights to equal treatment in the provision of services because the WSIB decided he was incapable of completing the current LMR plan without exploring whether accommodating his disability would enable him to do so.

106In making this claim, Mr. Frankson does not assert that the change in his LMR plan resulted in direct monetary losses, as the change from the SEB of Administrative Clerk to Retail Sales actually meant a greater loss of earnings benefit from the WSIB, due to the low-wage expectation of a retail sales job. The loss he identifies is the deprivation of the opportunity to re-train to a position that would not only restore his pre-injury earnings (which he points out is the purpose of LMR plans), but provide the basis for long-term meaningful employment.

107In considering these circumstances, I find that although the dispute arises out of the WSIB’s determinations in relation to Mr. Frankson’s LMR plan, it is not about the appropriateness of one or another LMR plan; is about whether the WSIB discriminated against him by failing to take into account accommodation of his disability in devising the LMR plan.

108This Tribunal does not have the jurisdiction, or indeed the expertise, to decide when a LMR plan is appropriate, and what comprises the appropriate LMR plan for a particular injured worker. However, it does have the expertise to consider issues of disability-related discrimination in the provision of services, and the role of the duty to accommodate in the provision of services. The nature of the dispute before me is whether the WSIB discriminated against Mr. Frankson in the manner in which it provided him with LMR services. Although I am precluded from deciding what comprises an appropriate LMR plan for the applicant, I find that I am not precluded from deciding whether the manner in which the WSIB dealt with the question of the appropriate LMR plan violated his right to equal treatment with respect to services.

109In British Columbia (Workers' Compensation Board) v. British Columbia (Council of Human Rights) (“Khun-Khun”), 1990 CanLII 310 (BCCA), the British Columbia Court of Appeal upheld a decision by the Council to proceed with a hearing of a human rights complaint against the WCB. In rejecting the argument that the WCB had exclusive jurisdiction over the matter, the Court found that the complaint that the WCB refused to provide service to an individual because he was wearing a kirpan was not about suspension or termination of benefits (although this was the effect of the events), but about an allegation of discrimination on the ground of religion.

110Although the facts of the above case are different from those before me, I also view the dispute before me to be about discrimination in the manner in which LMR services were provided, and not about the appropriateness of a LMR plan under the WSIA.

111Returning briefly to my analysis of the legislative framework. In my view, one of the factors weighing against an “exclusive jurisdiction” approach is that the scope of a tribunal’s jurisdiction may not always be apparent. Although the boundaries of a tribunal’s jurisdiction should ideally be unambiguous, sometimes those boundaries emerge more clearly with evolving case law. Decision No. 1529/0412, above, demonstrates this point, insofar as the WSIAT decided to depart from a number of its previous decisions excluding the application of the Code to various types of benefits under the WSIA. There may be times when a human rights claim arises in circumstances where the ability to raise an issue before the WSIAT (or another tribunal) is not firmly established. In such a case, in order to determine whether its own jurisdiction is ousted under an “exclusive jurisdiction” model, this Tribunal may find itself interpreting the scope of the other tribunal’s jurisdiction. The hazards of such an approach argue in favour of a regime of concurrent jurisdiction.

112Further, on a reading of sections 118 and 123, it appears that the matters over which the WSIB has been given “exclusive jurisdiction” are broader than those which can be the subject of an appeal to the WSIAT. This raises the possibility that a claim of discrimination in the provision of services by the WSIB may or may not, depending on the circumstances, be dealt with through an appeal to the WSIAT. I also note that the decisions given to me establish the jurisdiction of the WSIAT to apply the Code, but none of these specifically analyze these issues in the context of an appeal to the ARO.

113In arriving at my conclusion, I have reviewed all the decisions relied on by the parties. In Charette, in finding that the Commission des affaires sociales (CAS) had exclusive jurisdiction over a claim that the denial of certain social assistance benefits discriminated against a claimant on the grounds of sex and pregnancy, the Supreme Court commented:

Jurisdictional issues must be decided in accordance with the legislative scheme governing the parties. In the case at bar, the Quebec legislature did not give the Tribunal exclusive jurisdiction to decide human rights issues. The legislature's intention to give the CAS exclusive jurisdiction is, however, explicit. I am therefore of the opinion that where there is a comprehensive administrative scheme, such as the one established by the CAS Act and the Income Security Act, that gives a specialized administrative body and that body alone the jurisdiction to apply and interpret that scheme, this administrative body will not lose its exclusive jurisdiction simply because a case raises a human rights issue or involves declaring a legislative provision to be of no force or effect.

114In Charette, the statutory provision in question stated:

21. The object of the Commission is to hear, to the exclusion of every other commission, tribunal, board or body, except as regards the requests contemplated in paragraph d of this section:

(a) the appeals brought under section 78 or section 81 of the Act respecting income security . . . .

Act respecting the Commission des affaires sociales, R.S.Q., ch. C-34

115In WCB v. DW, the court considered the above decision in finding that the Chief Commissioner of the Alberta Human Rights and Citizenship Commission did not have jurisdiction to hear a claim that the Alberta Workers’ Compensation Board discriminated against a worker in deciding that he did not have a compensable brain injury.

116I find the circumstances before me different than those in either Charette or WCB v. DW. The human rights complaint in WCB v. DW arose out of a dispute at the heart of that Board’s expertise, in assessing whether an injury was a compensable one under the workers’ compensation scheme. In the case before me, the issue relates to the treatment of a worker with a disability unrelated to the workplace injury, and an allegation that he was treated unequally in the provision of services because of that disability. The statutory language under consideration in Charette was more specific than the provisions of the WSIA under consideration in ousting the jurisdiction of any other “commission, tribunal, board or body” to hear appeals respecting income security.

117The decision in Workers’ Compensation Board v. British Columbia (Human Rights Tribunal), 2010 BCCA 77, has been overturned by the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (Figliola). Neither the Supreme Court nor the Court of Appeal decisions turn on the issue of whether the British Columbia Human Rights Tribunal (BCHRT) had the jurisdiction to inquire into an allegation that a WCB policy violated the Human Rights Code. Rather, the issue before the courts was whether the BCHRT should exercise that authority in the face of a decision by the WCB upholding the policy, or whether it should have dismissed the complaint as having been appropriately dealt with by the WCB. The cases were thus premised on a framework of concurrent jurisdiction over the issues as between the WCB and the BCHRT.

118Moreover, prior to the decision in Figliola, the BCHRT had come to the conclusion, based on statutory language in the British Columbia Workers’ Compensation Act (BCWCA) similar to section 118 of the WSIA, that its jurisdiction was not ousted by the BCWCA.

119I have also considered the Tribunal’s decision in Snow v. Honda, 2007 HRTO 45, which rejected the submission of the respondent employer that the WSIB had jurisdiction, to the exclusion of this Tribunal, to determine whether it failed to accommodate an injured worker on a return to work. I am in agreement with the decision in Snow, and although it arises out of different circumstances than those before me, the reasoning there supports my conclusion.

120The decisions in Wiebe, above, and Nova Scotia (Workers’ Compensation Board) v. O’Quinn (No. 1), (1995), 1995 CanLII 18144 (NS CA), 27 C.H.R.R. D/146 (N.S.C.A.) (O’Quinn) were made prior to the Morin and Charette decisions and do not squarely deal with the issue of exclusive jurisdiction. The issue in O’Quinn was whether in dealing with claims for benefits, the WCB there provided a “service” within the meaning of the Nova Scotia human rights legislation, whereas in Wiebe, the issue was whether a Board of Inquiry was usurping the function of a court under s.96 of the Constitution Act, 1867. In both cases, the courts upheld the jurisdiction of human rights tribunals to consider complaints of discrimination against the WCB of those provinces.

121In short, having regard to all of the above and after a consideration of the legislative framework and the nature of the dispute giving rise to this Application, I conclude that this Tribunal has jurisdiction over Mr. Frankson’s claim of discrimination, and I turn to consider the merits of that claim.

THE MERITS OF THE CLAIM

122The WSIB did not dispute that a learning disability could be a disability under the Code, but questioned whether the evidence clearly established its existence. I am satisfied, based on the report of Dr. Svec combined with the applicant’s evidence, that his learning barriers meet the definition of a disability under the Code. The WSIB’s own documents also establish that it accepted that the applicant had a specific, identified, learning disability.

123On the evidence, I find that the applicant was denied equal treatment in the provision of LMR services, because of his learning disability. In arriving at this conclusion, I have regard to the Tribunal’s decisions in Ball v. Ontario (Community and Social Services), 2010 HRTO 360 and Cochrane v. Ontario (Health and Long-Term Care), 2010 HRTO 1477, which considered the analytic approach to claims of differential treatment in the administration of a government benefits scheme. In Ball, the Tribunal stated:

The jurisprudence is clear that analyzing discrimination in circumstances like these requires a consideration of the purpose or underlying rationale of the special diet allowance [the issue in the Ball case], and whether individuals with different disabilities are given different benefits in a manner that is inconsistent with that purpose. The analysis must consider the differential treatment, as it relates to the purpose of the program, between the benefits received by others and the claims of the complainants. [para.76]

124As described by the parties and the WSIB’s policies, the purpose of LMR services is to ensure that injured workers have the skills, knowledge and ability so that they can re-enter the labour market and restore their pre-injury earnings. The achievement of this goal will therefore reduce or eliminate the need for continuing loss-of-earnings benefits.

125In this case, a SEB which had been considered suitable was found no longer suitable, based purely on the identification of the learning disability and without any further assessment of possible accommodations of the disability as part of a LMR plan. Although Dr. Svec opined that the necessary supports would be “significant and excessive”, the purpose of his report was not to assess what supports might be required and he was not asked subsequently to detail those supports. As indicated, Mr. Frankson himself wished to have further information on what supports might assist him in his academic upgrading, but was not given the opportunity to explore that further with Dr. Svec.

126The WSIB made the determination that, because of the learning disability, Mr. Frankson would not likely be successful in completing the LMR plan. It made no efforts to investigate what kind of accommodation may be required in order to enable him to continue with his academic upgrading and thereby attempt to fulfil the purpose of the LMR services. It does not appear that the WSIB contacted Lambton College, or Mr. Frankson’s instructor there, to assess whether he was capable, with accommodation, to complete the program in which he was enrolled. It assumed, based on the identification of the disability, that Mr. Frankson would not likely be successful in completing his academic upgrading.

127By contrast, the applicant’s physical restrictions were taken into account by the WSIB in the LMR assessment. The possibility of assistive devices in Mr. Frankson’s retraining was factored into the assessment of costs of the different SEB options. However, the possibility of accommodation of Mr. Frankson’s learning disability was not explored and not taken into account in an assessment of the SEB options.

128It is the WSIB’s duty under the WSIA to provide an injured worker with a LMR assessment in certain circumstances. It is the WSIB’s duty under the Code to conduct that assessment without discrimination on the ground of, among other things, disability. In this case, I find that the manner in which the WSIB conducted the LMR assessment violated section 1 of the Code, in that the applicant was denied equal treatment with respect to the assessment, because of his learning disability. The WSIB’s assessment considered the requirements for accommodating the applicant’s physical disabilities in his re-training, but failed to consider accommodation of his learning disability. There was no evidence to the effect that this inequality of treatment serves any purpose consistent with the goal of LMR services to ensure that injured workers have the skills, knowledge and ability so that they can re-enter the labour market and restore their pre-injury earnings.

Remedy

129The applicant spoke eloquently about his disappointment about being denied the opportunity to complete his academic upgrading. It is not difficult to have considerable sympathy for this applicant, who believed he would be given the opportunity to complete the formal education that he felt he had been unfairly denied as a youth. However, while I have found that the WSIB discriminated against him in failing to explore the possibility of accommodation of his learning disability as part of a LMR plan, I cannot conclude that the result of a proper assessment would have been the continuation of his academic upgrading. It is possible that a proper assessment that considered the possibility of providing accommodation for the learning disability might still have concluded that a SEB requiring academic upgrading was not the appropriate one for Mr. Frankson, having regard to all of the factors assessed in a non-discriminatory fashion and taking into account the purpose of LMR services.

130In awarding a remedy, I am mindful of the limits of my jurisdiction. It is not my role to decide what an appropriate LMR plan would have been for Mr. Frankson. Had it been requested, I might have directed the WSIB to conduct a new LMR assessment taking into account the measures necessary to accommodate Mr. Frankson’s learning disability in a determination of an appropriate LMR plan for him. This would be consistent with the remedy ordered by the WSIAT in Decision No. 1529/0412, above. It would also respect the exclusive jurisdiction of the WSIB to decide on the LMR plan.

131However, it is not appropriate for me to order a compensatory remedy on the basis that had the proper assessment been done, Mr. Frankson would have continued with his academic upgrading, because this would require me to find that an appropriate LMR plan would include such upgrading.

132At the end of the day, I find the discrimination consists of the loss of opportunity to be assessed for a LMR on an equal footing with other workers without a learning disability, and it is on that basis that I must assess the appropriate remedies.

133The applicant relied on ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), among others, to support his request for $20,000 in compensatory damages. I find that the facts before me are different from the circumstances in those other cases cited to me. As I have stated, my finding of discrimination is a limited one, based on the failure to conduct a non-discriminatory LMR assessment. It does not extend to a finding that he was deprived of the opportunity to participate in a LMR, or that he was deprived, for discriminatory reasons, of the opportunity to complete his academic upgrading. In all the circumstances, I find that an award of $5,000 is appropriate.

134The applicant also requested remedies to promote future compliance with the Code, including an order that the WSIB retain a qualified consultant to conduct an “accessibility review” of its practices for injured workers with learning disabilities and to make recommendations to the WSIB where its practices do not comply with the Code. Further, he requests an order that within 6 months of my decision, the WSIB develop and issue a policy and protocol, if necessary, providing guidelines for accommodation of workers with learning disabilities who have been referred to LMR assessments. Further, the applicant requests that within 4 months of issuing that policy, all front line WSIB staff involved in LMR services be trained on the new policy. The applicant requests that the Tribunal remain seized with respect to the future compliance remedies.

135I find some future compliance remedies to be appropriate. Although the WSIB’s LMR policies refer to its obligations under the Code, it is apparent from this case that those references do not adequately explain the right to equal treatment in the case of workers with non-physical disabilities, such as a learning disability. I will therefore direct the Board to include in its policies on LMR assessments a statement that the references to the requirement to have regard to non-work related disabilities in conducting a LMR assessment, and to the WSIB’s accommodation of disabilities in a LMR plan, include non-physical disabilities such as a learning disability.

136I am not convinced that the broader future compliance remedies are warranted by this case, nor that it is necessary for me to remain seized. Among other things, I am aware that the WSIB is in the process of reviewing and transforming the way in which LMR services are provided and I am confident that my determinations here will inform this process.

137I therefore direct as follows:

• The WSIB shall pay the applicant the amount of $5,000 as compensation for injury to dignity, feelings and self-respect;

• The WSIB shall amend its LMR policy documents so that any references to the requirement to have regard to non-work related disabilities in conducting a LMR assessment, and to the WSIB’s accommodation of disabilities in a LMR plan, include non-physical disabilities such as a learning disability.