Deborah Guydos v. Workplace Safety Insurance Appeals Tribunal, 2011 HRTO 479

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Guydos Applicant

-and-

Workplace Safety Insurance Appeals Tribunal Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: March 8, 2011 Citation: 2011 HRTO 479 Indexed as: Guydos v. Workplace Safety Insurance Appeals Tribunal

WRITTEN SUBMISSIONS

Deborah Guydos, Applicant: Self-represented Workplace Safety Insurance Appeals Tribunal, Respondent: Daniel S. Revington, Counsel

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), raises allegations that the respondent, the Workplace Safety Insurance Appeals Tribunal ("WSIAT"), discriminated against the applicant on the basis of disability, sex, and family status in the provision of goods, services and facilities. The Application alleges also alleges ongoing reprisal or threat of reprisal.

2For the reasons that follow, the Application is dismissed in part. The bulk of the applicant's allegations do not raise issues that are within the Tribunal's jurisdiction (power to decide).

3The only allegation that falls within the Tribunal's jurisdiction is the applicant's allegation that the respondent discriminated against her by failing to provide funding for child care in order for her to attend the hearing. I find that this allegation relates to a "service" within the meaning of the Code. However, I reach no conclusion regarding the merits of this allegation.

4For the reasons that follow, what remains of the Application is deferred pending the determination of an application for reconsideration currently before the WSIAT.

OVERVIEW

5Before the Application was served on the respondent, the Tribunal issued a Notice of Intent to Dismiss ("NOID"). In an earlier Interim Decision considering the NOID, 2010 HRTO 2177, the Tribunal held that it was not plain and obvious that the Tribunal lacked jurisdiction over the allegations contained in the Application.

6In the Interim Decision, the Tribunal noted that the allegations contained in the Application were different from the information contained in the applicant's response to the NOID. Accordingly, the Tribunal directed the applicant to provide a written statement setting out the details of each incident or element that she believes constitutes discrimination.

7The applicant filed a detailed statement of fact in accordance with the Tribunal's direction.

8The Application was then served on the respondent. The respondent has filed an incomplete Response. It has also filed a Request for an Order During Proceedings ("Request") seeking the early dismissal of the Application because it raises issues that are outside the Tribunal's jurisdiction. In the alternative, the respondent seeks the deferral of the Application pending the outcome of reconsideration proceedings before the WSIAT.

9The applicant has filed a Response to the Request in which she objects to the early dismissal of the Application.

THE NATURE OF THE ALLEGATIONS

10The applicant filed lengthy submissions in response to the earlier Interim Decision. The information she provides is somewhat difficult to follow. I have reviewed her submissions carefully and I understand her to be alleging discrimination because:

a. the WSIAT panel that decided her case did not accept that her post-traumatic stress disorder arose because of workplace issues; b. the WSIAT panel did not find her to be credible and made findings inconsistent with the evidence before it and the evidence the applicant says existed but was no longer attainable; c. the WSIAT panel lied, distorted, manipulated and dismissed all evidence that supported the applicant's claim; d. the WSIAT panel made a finding that the workers' compensation and human rights legislation did not apply; e. the panel retaliated against her for not filing a human rights complaint even thought the applicant had, in fact, filed an application. The applicant does not specifically explain how the panel allegedly retaliated against her; f. the alleged discrimination by the respondent perpetuates discrimination the applicant suffered in the workplace; g. during the hearing, a panel member "kept kicking the tape recorder off", which the applicant says was disturbing and interrupted the witnesses' train of thought; h. counsel to the WSIAT directed the proceeding, which the applicant says is a conflict of interest and meant that she did not have a fair chance to represent herself at the hearing; i. the WSIAT initially denied the applicant's request for an adjournment so that her lawyer could have time to review the file, but then adjourned the matter with no warning to her or her representative; j. the applicant participated in the WSIAT hearing by telephone. She states that she was unable to attend in person because she had moved. She also states that she had child care responsibilities. She alleges that she was discriminated against because the WSIAT did not offer to pay for child care in order for the applicant to attend the hearing; k. the WSIAT took contradictory positions regarding a medical report; l. the WSIAT refused to consider medical information or police reports; m. the WSIAT only compensates\ physical injuries not those resulting from mental disabilities and it assumed, in the applicant's case, that she had mental health issues; n. the panel refused to investigate alleged discrimination by the applicant's employer; o. the panel colluded with the applicant's employer to cover up domestic violence; and p. the panel allowed irrelevant evidence about the applicant's past to be introduced at the hearing.

ANALYSIS

Jurisdiction

11Section 1 of the Code states:

Every person has a 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.

12In a series of cases, the Tribunal has considered whether statutory decision making, or aspects of it, fall under the definition of "services" in the Code. See, for example, Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595; Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; and Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765

13It follows from these cases that, while a statutory decision-making process is a "service" for the purposes of the Code, there are elements of that process that are not encompassed by the Code's meaning of "service", such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the "service" a statutory tribunal is providing to the public.

14In Zaki, supra, the Tribunal explained:

Therefore, in determining whether an application relates exclusively to the "content, reasons or result" of an administrative decision under the Baird analysis, the Tribunal must examine whether the claim is exclusively about the adjudication or decision or whether the applicant is making a claim about his or her inability to obtain benefits or other services from the respondent. In the latter case, while there is a statutory decision involved, the provision of the benefit or privilege is a "service" within the meaning of s. 1 of the Code, and the applicant may argue that he or she has experienced discrimination in the provision of that service.

15In this case, the applicant essentially complains about substantive and procedural (natural justice) decisions rendered by the WSIAT. With one exception, the issues raised in the applicant's submissions relate exclusively to the results of the WSIAT decision and the adjudicative process the WSIAT adopted in reaching that decision.

16The Tribunal does not have jurisdiction over these adjudicative or decision-making issues. They fall outside the meaning of "service" within section 1 of the Code. While the applicant is clearly dissatisfied with the WSIAT's decision, an application under the Code is not the appropriate venue to challenge the substantive or procedural elements of that decision.

17The one exception to this is the allegation contained in paragraph 10(j) above, regarding the respondent's alleged failure to fund child care in order for the applicant to attend the hearing. While I make no findings regarding the merit of this allegation, I do conclude that the WSIAT's decision regarding funding for child care for the purposes of attending the hearing relates to a benefit or privilege and is a service within the meaning of section 1 of the Code.

18With the exception of the allegation described at paragraph 10(j) of this Interim Decision, the Application is dismissed.

19The allegation at paragraph 10(j) falls within the Tribunal's jurisdiction to decide. The Application may proceed on that sole issue.

Deferral

20The applicant has commenced an application for reconsideration with the WSIAT. In essence, she has asked the respondent to reconsider the decision that gave rise to this Application.

21In its Request, the respondent has asked that, in the event that the Application is not dismissed on jurisdictional grounds, the Application be deferred pending the determination of the reconsideration.

22Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure ("Rules").

23Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

24The Tribunal will generally defer an application where there is an ongoing proceeding based on the same facts and issues. Deferral of an application ensures that proceedings dealing with similar or overlapping issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

25The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues. When human rights issues are not clearly engaged in the other proceeding, but the application raises facts or issues which overlap with those in another concurrent proceeding, the Tribunal may nonetheless defer determination of the application. In making this determination the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.

26In the circumstances, I find that it is appropriate to defer this Application pending the completion of the reconsideration by WSIAT.

27While it is not, at this stage of the proceedings, apparent that the reconsideration raises the same legal issues as the Application, I am satisfied that there is significant factual overlap and that the most fair, just and expeditious manner of proceeding is to defer the Application.

28Accordingly, the Application is deferred pending the conclusion of the reconsideration.

29The Tribunal directs the parties' attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed once the reconsideration is complete.

30I am not seized of this matter.