Burke v. Workplace Safety and Insurance Board, 2011 HRTO 642

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Burke

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECIsiON

Adjudicator: Brian Eyolfson

Date: April 4, 2011

Citation: 2011 HRTO 642

Indexed as: Burke v. Workplace Safety and Insurance Board

1This is an Application filed on August 31, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination on the basis of age and disability in the area of employment. In particular, the applicant suffered a workplace injury and was determined to be entitled to benefits for non-economic loss (“NEL”). The applicant’s base NEL benefit is subject to a reduction for every year over 45 years of age for a maximum of 20 years. The applicant claims that this deduction discriminates against him because of his age and disability.

2In its Response to the Application, the respondent submits that section 2.1 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A (“WSIA”), bars the Application with respect to the ground of age. Section 2.1 of the WSIA states:

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.

3In his Reply, the applicant refers to a violation “of the Charter of Rights of Canada.”

4In a Case Assessment Direction (“CAD”), dated November 24, 2010, the Tribunal indicated that it appeared that the applicant may wish to challenge the constitutional validity of legislation. The Tribunal directed the applicant to either deliver and file a Notice of Constitutional Question by December 23, 2010, or write to the Tribunal by that date, with a copy to the respondent, advising that he does not intend to challenge the constitutional validity of any law. The applicant did not comply with the Tribunal’s direction.

5On January 11, 2011, the Tribunal wrote to the applicant and advised him that if he wished to continue with his Application, he was to comply with the above direction, set out in the Tribunal’s November 24, 2010 CAD, by January 21, 2011. The Tribunal advised the applicant that if he failed to comply with the Tribunal’s direction by that date, the Application may be dismissed as abandoned.

6On January 14, 2011, the Tribunal received a request for an extension of time to file submissions from the applicant. By letter dated January 21, 2011, the Tribunal granted the applicant until February 4, 2011 to complete and file submissions as directed in the CAD dated November 24, 2011.

7On February 2, 2011, the applicant wrote to the Tribunal and copied the respondent. Although the applicant indicated an interest in furthering his case under the “Charter of Rights”, the applicant did not comply with the Tribunal’s direction. In his correspondence, the applicant also made reference to the Tribunal’s legal department contacting him and providing him with information.

8In email correspondence dated February 9, 2011, the Tribunal’s Registrar explained to the applicant that it was not the Tribunal that contacted him. The Tribunal’s Registrar explained that he believed the applicant was referring to the Human Rights Legal Support Centre, which is a separate organization from the Tribunal.

9The applicant was provided with two extensions to comply with the Tribunal’s direction set out in the CAD dated November 24, 2010, the last deadline to comply being February 4, 2011. To date, the applicant has not complied with the Tribunal’s direction, and the Tribunal has not otherwise heard from the applicant since receiving his February 2, 2011 correspondence. In the circumstances, the Application is dismissed as abandoned.