Hayes v. Workplace Safety and Insurance Board, 2011 HRTO 2152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daryle Hayes Applicant

-and-

Workplace Safety and Insurance Board Respondent

interim DECISION

Adjudicator: Michelle Flaherty Date: November 30, 2011 Citation: 2011 HRTO 2152 Indexed as: Hayes v. Workplace Safety and Insurance Board

appearances

Daryle Hayes, Applicant ) David Ingraham and ) Elizabeth Heenan, Representatives

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

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in the provision of goods, services or facilities.

2The applicant receives loss of earnings benefits from the respondent, the Workplace Safety and Insurance Board (“WSIB”). He alleges that the respondent discriminated against him on the basis of his disability because it refused to deposit his benefits directly into his bank account.

3The Tribunal held a summary hearing in this matter on October 17, 2011. For the reasons that follow, the Application is dismissed in part. The Application may proceed on the following issue only:

Did the respondent’s failure to provide direct deposit services to the applicant amount to constructive discrimination or otherwise discriminate against him on the basis of disability because the applicant did not have the same access to benefits as injured workers whose mobility is not limited?

OVERVIEW

4Until recently, the applicant’s WSIB benefits were paid to him by cheque. The applicant states that, because of his disability, he is not able to go to the bank to deposit the cheque. In August 2010, he asked the respondent to provide him with a direct deposit service. His request was refused. At that time, the respondent stated that it did not have the necessary structures to direct deposit bi-weekly loss of earnings benefits.

5The parties agree that, at the materials times, the WSIB did not directly deposit loss of earnings benefits, generally. The applicant states that the WSIB had a direct deposit service for loss of earning benefits at sometime in the 1980’s, but that this was discontinued. The applicant states that some individuals who were receiving benefits when the direct deposit service was available continued to have their benefits deposited directly into their accounts.

6Counsel for the respondent could not confirm or deny the alleged existence of direct deposit services in the 1980’s or the grandfathering in of that service, as alleged by the applicant. The respondent states that if any such differential treatment existed, it is not based on the applicant’s disability, but on the date of the worker’s entitlement to benefits. Further, the respondent argued that the allegation that the applicant is being treated differently from workers injured when a direct deposit system was in place in the 1980s goes beyond the scope of the Application.

7The applicant states that because the respondent did not deposit his benefits directly into his account, he was forced to ask a friend to do his banking for him. He states that his friend used his banking information to steal money from him and that this lead to him to declare bankruptcy.

8In November 2010, the respondent introduced a direct deposit system that is available to recipients of bi-weekly loss of earnings benefits. At the date of the hearing, the applicant’s benefits were being deposited directly into his account.

9Originally, in the Application, the only remedy requested was that the respondent introduce a direct deposit system. In a Case Assessment Direction (“CAD”) dated March 2, 2011, the Tribunal indicated that the issues raised in the Application may be moot given that the respondent had made direct deposit available. The Tribunal directed the applicant to file submissions regarding the mootness issue.

10The applicant provided submissions, as directed. He argued that the issues raised in the Application are not moot. In a CAD dated April 8, 2011, the Tribunal directed the applicant to deliver to the respondent and file with the Tribunal (by May 8, 2011): a detailed outline of the remedies he is now seeking; a detailed outline of the theory of his case, namely how the applicant alleges he was discriminated against; and any medical or other expert evidence upon which he intends to rely to establish that the failure to provide direct deposit discriminated against him.

11On May 4, 2011, the applicant provided submissions as directed. In these submissions, he includes an outline of his legal argument and a breakdown of the damages he is now seeking. The damages sought include general damages, damages for fees associated with late payment or N.S.F. cheques, creditor reimbursement, and costs associated with his bankruptcy. Together, they total over $100,000.

12As I understand it, the applicant’s legal theory of his case is that the respondent’s past failure to provide direct deposit services to him are discriminatory because:

a. direct deposit has been available in Canada since 1990 and other organizations make direct deposit services available;

b. the respondent has made direct deposit available to employees and to some benefits’ recipients, based on the date of their eligibility for benefits;

c. the failure to provide direct deposit services to the applicant creates an undue hardship for him.

13The applicant’s submissions also include medical reports that show he has a number of heath-related issues and “tremendous” knee pain, both of which limit his mobility. Based on Dr. Strike’s report, it appears that the applicant’s mobility has been limited from at least 2004 to 2010.

14In a CAD dated May 13, 2011, the Tribunal directed that this matter proceed by way of a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. In the May 13, 2011 CAD, the Tribunal indicated that the issue to be determined in this case is whether, assuming the applicant’s allegations to be true, his legal theory may reasonably be considered to amount to a Code violation.

15On September 28, 2011, the applicant requested an adjournment of the summary hearing in order to obtain documents regarding a hearing involving other parties before the Canadian Human Rights Tribunal. The request for adjournment was denied: 2011 HRTO 1822.

16The Tribunal held a summary hearing on October 17, 2011 during which it heard oral submissions from the representatives of both parties.

ANALYSIS

17Section 1 of the Code states:

Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

18To establish a violation of section 1 of the Code, the applicant must show that the respondent’s failure to deposit his benefits directly into his account meant that the applicant was treated differently from others on the basis of his disability.

19The issue before me in determining this summary hearing is whether the Application has a reasonable prospect of success within the meaning of Rule 19A.1. In other words, I must determine whether the applicant has a reasonable prospect of showing that, in denying his request for direct deposits, the respondent treated the applicant differently from others and that his disability was a factor in this treatment.

20I have set out, at paragraph 12, above, the applicant’s legal arguments. I address each of these in turn.

Other organizations use direct deposit

21The applicant argued that, at the material times, other federal and provincial agencies and government entities offered a direct deposit service to benefit recipients. The thrust of the applicant’s argument is that he is being treated differently from others who received benefits from other organizations. As I indicated at the hearing, this is not a basis for a finding of discrimination under the Code.

22In considering whether the respondent discriminated against the applicant, it is entirely immaterial that other entities offered a service that the respondent did not. The issue before the Tribunal is whether the respondent treated the applicant differently from the way in which it treated others. The purpose of the Code is not to define the services that an organization ought to offer, but to consider whether a service that is offered is provided differentially based on a Code-related ground.

23I find that this argument has no reasonable prospect of success.

The WSIB uses direct deposit with its employees and workers injured in the 1980’s

24The applicant also argues that the respondent treated him (a benefit recipient) differently from employees. He states that employees’ salaries were deposited directly into their accounts, while benefit cheques were mailed to benefit recipients. He also alleges that he is being treated differently from workers who were injured at a time when direct deposit was available, and who have benefited from direct deposit since.

25In order to determine the summary hearing, it is not necessary for me to determine whether individuals were grandfathered into a direct deposit service. Nor is it necessary for me to determine whether employees received their pay through direct deposit. I make no finding in either regard.

26In my view, even if some benefit recipients were grandfathered into a direct deposit system and even if employees received their salaries by direct deposit, this does not assist the applicant in showing that the Application has a reasonable prospect of success.

27Any difference between the grandfathered individual and the applicant is not a distinction on the basis of disability or any other ground of discrimination prohibited under section 1 of the Code. Rather, any alleged difference in treatment is based on the fact the applicant was not in receipt of the benefit in the 1980’s, when he alleged direct deposit was available. This alleged distinction is based on the date of entitlement to benefits and not on disability. See Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, and Basic v. Ontario (Health and Long-Term Care), 2010 HRTO 2007.

28Similarly, the fact that the respondent’s employees are treated differently from benefit recipients is not a basis for a finding of discrimination. There, the difference in treatment is based on the status of the individual (employee or benefit-recipient) and not on the basis of a Code-related ground. There is no basis to conclude that the applicant’s disability was a factor in the respondent’s decision to differentiate between him, a recipient of benefits, and its employees.

29For the above reasons, I find that these arguments have no reasonable prospect of success.

“Undue hardship”

30The applicant’s argument on this issue is somewhat difficult to make out. As I understand it, he argues that, because his disability limits his mobility, he does not have access to benefits in the same way or to the same extent as other injured workers whose injuries do not limit their mobility. While the applicant and his representatives use the term “undue hardship”, the substance of the applicant’s argument appears to actually be about equal access to benefits.

31I find that the Application should proceed on this issue. I make no finding as to the merits of this argument or the applicant’s chances of success going forward. My conclusion is simply that, as it relates to this argument, it is not appropriate to dismiss this aspect of the Application because it has no reasonable prospect of success.

DECISION

32For all of these reasons, part of the Application is dismissed in part as having no reasonable prospect of success. The Application may proceed on the following issue only:

Did the respondent’s failure to provide direct deposit services to the applicant amount to constructive discrimination or otherwise discriminate against him on the basis of disability because the applicant did not have the same access to benefits as injured workers whose mobility is not limited?

33The applicant has indicated that he wishes to participate in a mediation. If the respondent wishes to take part in a mediation, it must advise the applicant and the Tribunal in writing within one week of this Interim Decision.

34If both parties do not agree to participate in a mediation, the Tribunal will schedule a one-day hearing.

35I am not seized of this matter.