Human Rights Tribunal of Ontario
B E T W E E N:
Hoda Morsi Applicant
-and-
Workplace Safety & Insurance Board, Amelita Isaac, Diane Shepherd and Monika Anisko Respondents
DECISION
Adjudicator: Sherry Liang Date: March 29, 2011 Citation: 2011 HRTO 609 Indexed as: Morsi v. Workplace Safety and Insurance Board
WRITTEN SUBMISSIONS
Hoda Morsi, Applicant | Alison Gowling, Representative Workplace Safety & Insurance Board, Amelita Isaac, Diane Shepherd and Monika Anisko, Respondents | Gurjit Brar, Counsel
1This is an Application filed on August 16, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").
2The applicant alleges that the respondents, the Workplace Safety and Insurance Board ("WSIB") and members of its staff, discriminated against the applicant on the ground of age when it denied her WSIB appeal. The applicant also alleges a reprisal.
3The applicant refers to a decision of a WSIB Appeals Resolution Officer ("ARO") dated June 28, 2010 which denies her claim to benefits on the basis that the applicant's shoulder condition does not arise from employment. In the decision, the ARO finds, among other things, that the "worker's shoulder condition is most likely related to a combination of activities of daily living and age-related tendon degeneration."
4The applicant states that the WSIB has violated the Code "by referencing the Applicant's age in the decision, and using age as a factor." As remedy, the applicant seeks the loss of earnings benefit that she was denied.
5On October 26, 2010, the Tribunal issued a Notice of Intent to Dismiss the Application, directing the applicant to file submissions on an issue identified in the Notice. In a Case Assessment Direction ("CAD") dated January 24, 2011, the Tribunal directed both the applicant and the respondent to file submissions on whether to defer the Application pending the conclusion of an appeal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"), as well as on the issue of whether the Tribunal has the power to deal with a claim of age-based discrimination arising out of a decision of the WSIB.
6In the CAD, the Tribunal directed the parties' attention to the decision in Fontaine v. Workplace Safety and Insurance Board, 2010 HRTO 1185 ("Fontaire"), in which the Tribunal considered section 2.1(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, ch. 16, Sch A, as amended (the "WSIA"), which states
2.1 (1) A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it, that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code.
7In Fontaine, the Tribunal stated
(...) the Legislature has decided to exempt from review under the Code any age-based distinction contained in the Act. The effect of section 2.1 of the Act is to permit distinctions based upon age, despite the provisions of the Code.
Based on section 2.1 of the Act, the Tribunal cannot conclude that the distinctions made on the basis of age, including the two-year limit for those aged 63 and over, are discriminatory according to the Code.
8Both the applicant and the respondent made submissions in response to the CAD. The applicant states that the facts in Fontaine are different from the ones in this Application. In Fontaine, the issue was a provision of the WSIA limiting benefits with respect to workers who are 63 years of age or older at the time of injury. The applicant's representative states that in this case, the WSIB determined that
[t]he injury in question that Ms. Morsi was claiming on was not a workplace injury, but basically due to Ms. Morsi's age, wear and tear, and age-related deterioration as well. I believe that this is a distinction that the Board ought not to be allowed to make, as it is discriminatory.
9The applicant's representative submits that the "Board and its employees made a convenient, discriminatory distinction as to age so as to avoid paying LOE benefits at all, despite there being evidence of a workplace injury..."
DECISION
10I find that, based on the reasoning in Fontaine, with which I agree, the Tribunal cannot conclude that any distinction based on age in the decision to deny the applicant benefits under the WSIA is discriminatory under the Code.
11I am not convinced that there is any meaningful distinction between the circumstances in Fontaine and this Application. The applicant alleges a violation of her right to equal treatment without discrimination because of her age. She alleges that the WSIB in effect treated her differently, and adversely, because she is an older worker.
12The Tribunal found in Fontaine that section 2.1(1) permits such distinctions to be made under the WSIA, despite the Code. Section 2.1(1) applies to distinctions contained in the WSIA itself, a regulation, policy, or (as here) a decision.
13As stated in Fontaine, the Tribunal's powers are limited to those set out in the Code. It does not have a general power to address claims of unfairness. Nor does it have the power to determine as a general proposition whether the WSIB was wrong when it decided that the applicant's injury was not employment-related.
14Based on section 2.1 of the WSIA, the Tribunal cannot conclude that distinctions made under that Act on the basis of age, including any distinction allegedly made in the decision to deny the applicant benefits, are discriminatory under the Code. Finally, although the applicant claimed a "reprisal" in her Application, there are no allegations linking any action taken to an attempt to enforce rights under the Code, within the meaning of section 8. The Application is therefore dismissed. In view of my conclusion, it is not necessary to consider the other issues raised in the Notice and the CAD.
Dated at Toronto this 29th day of March, 2011.
"signed by"____________
Sherry Liang Vice-chair