Barron v. Workplace Safety and Insurance Board, 2011 HRTO 2168

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rusty Barron

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Sherry Liang

Date: December 2, 2011

Citation: 2011 HRTO 2168

Indexed as: Barron v. Workplace Safety and Insurance Board

APPEARANCES

Rusty Barron, Applicant ) Self-represented

Workplace Safety and ) Gurjit Brar, Counsel

Insurance Board, Respondent )

1This is an Application filed on July 13, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges he was discriminated against on the ground of disability, in the area of goods, services or facilities.

2By Case Assessment Direction (“CAD”) dated July 19, 2011, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3At the summary hearing, which was held by conference call on November 30, 2011, I heard submissions from the applicant. I indicated that I did not need to hear submissions from the respondent, and that I would issue my decision in writing. Having considered the applicant’s submissions and reviewed the material before me, I have concluded that there is no reasonable prospect that this Application will succeed and it is dismissed.

4The Applicant is in receipt of benefits from the respondent the Workplace Safety and Insurance Board (the “WSIB”). The WSIB assigned a Return to Work Specialist (“RTWS”) to meet with the applicant and his employer at the workplace, to review the suitability of the applicant’s job and accommodations. The RTWS attended at the workplace in December 2009 and then in October 2010, following which she wrote a report on October 6, 2010, called the RTWS Intervention Memo/Plan.

5The applicant objects to some of the conclusions or observations of the RTWS in her report. Specifically, he objects to the view expressed by the RTWS that he was not medically required to be wearing wrist splints on an ongoing basis. He also objects to the fact that the RTWS did not consider his personal laptop to be a required assistive device. The report documents that the employer requires him to use only its equipment while performing his work tasks and that the applicant will not be allowed to bring in his own laptop.

6Although in his Application the applicant objects to certain actions taken by the WSIB following this report, he stated at the hearing that he has narrowed the Application to only two issues, namely, the decision by the RTWS that his wrist splints and laptop were not necessary assistive devices.

7At the hearing, I reviewed the CAD with the parties, and its description of the summary hearing process and issues to be addressed at the hearing. In the CAD, the Tribunal referred to the following passage from Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

8In the CAD, the Tribunal also stated:

The Tribunal does not have the general power to deal with allegations of unfairness or refusal of benefits, even if such benefits relate to disability. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, that there was discrimination on a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove discrimination.

9At the hearing, I asked the applicant to explain how the respondent’s actions, even if they were true, amount to discrimination against him on the ground of disability. I asked him to explain how the WSIB treated him unequally, because of his disability.

10Generally, the applicant’s submissions were to the effect that the conclusions of the RTWS have caused him harm, in that necessary supportive devices are no longer available to him. He believes that, with respect to the wrist splints, the RTWS concluded that they were not necessary supportive devices as a means of enabling the employer in transferring him to a different work location. With respect to the laptop, he states that his employer had unofficially recognized that it was a supportive device and the comments of the RTWS conflicted with that. He is now longer able to use his personal laptop as part of his work, which causes him hardship.

11Having considered the applicant’s submissions and the material he provided, I find that there is no reasonable prospect that the events he describes could amount to a violation of the Code. Even if the assessment or opinions of the RTWS were wrong or unfair, there is nothing to suggest that the applicant was being treated unequally because of a disability. The circumstances of this case are similar to those in Smith v. Workplace Safety and Insurance Board, 2011 HRTO 896, in which I stated:

The essence of discrimination is unequal treatment. Leaving aside constructive discrimination, which does not apply here, section 1 of the Code, on which this Application is based, guarantees the “right to equal treatment” in the sense of a right not to be treated adversely because of one of the listed personal characteristics. It does not provide a general guarantee of fair treatment or protection against arbitrary, uncaring or even deceitful conduct. There may be other remedies for such wrongdoing, but unless an applicant can show that he or she was treated adversely in this manner because of a personal characteristic protected by the Code, there is no basis for a remedy under the Code.

In the case before me, the applicant’s argument in essence is that the conduct about which he complains is so egregious that it must be discriminatory. He also claims that while a single incident of poor customer service may not amount to discrimination, a pattern of poor service is discriminatory. But he has not stated how the alleged poor service was related to his disability, other than the fact that he, along with other WSIB claimants, qualifies as a person with a disability under the Code [section 10(1)(e)]. That fact alone cannot support a claim of discrimination. It cannot be said that there is a disadvantage being imposed on the applicant that is not being imposed on others receiving the same service from the WSIB.

There is no group of non-disabled WSIB claimants or claimants with different types of disabilities, with whom the applicant compares himself. There is no “distinction” as described in Andrews, above. This is not a case like Ball v. Ontario (Community and Social Services), 2010 HRTO 360, where the claim was that the Ontario Disability Support Program, whose purpose is the provision of certain benefits to disabled persons, discriminates between individuals with different types of disabilities.

Even if the absence of an identifiable group with whom the applicant could be compared is not essential to establish that his disability was a factor in his adverse treatment, there must be some basis in the facts to support a finding that a non-disabled person would have, taking the applicant’s theory, received better service from the WSIB. I do not find any basis in the facts before me to support such a finding or that could give rise to such an inference.

12The Tribunal has also stated, in Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797, that in order to establish discrimination in the administration of a disability-based benefits program, “[t]here must be something more than an assertion that the applicant’s particular disability was not dealt with properly…” (para. 15).

13In this case, the applicant has not provided any basis that could support a finding of discrimination by the respondent. He disagrees with the conclusions or opinions of the RTWS, but there is no basis for concluding that they were discriminatory, and as such, there is no reasonable prospect that the Application will succeed.

14This Application is dismissed.