HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jillian Ahee
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Ahee v. Workplace Safety and Insurance Board
APPEARANCES
Jillian Dempster Ahee, Applicant
Self-represented
Workplace Safety and Insurance Board, Respondent
Gurjit Brar, Counsel
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services, or facilities because of disability and marital status. The Application also alleges reprisal or threat of reprisal.
2For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success. While I appreciate that the applicant is frustrated by errors she alleges were made by the respondent and by lengthy gaps in its communications with her, she has presented no basis to suggest that the Code has been breached.
OVERVIEW
3The applicant’s husband had filed claims with the Workplace Safety and Insurance Board (“WSIB”). These claims were ongoing when he passed away suddenly in December 2010.
4The applicant states that when she initially contacted WSIB following her husband’s death, she was told to provide a copy of a marriage and a death certificate and that WSIB would then be in a position to communicate with her directly regarding her late husband’s claims. The applicant did so and, for a period of time, she and the respondent communicated regarding the ongoing claims.
5The applicant states that in July 2011 she challenged the WSIB’s decision dismissing a claim. She submits that for several months after she began questioning WSIB’s decision, she received no response to her inquiries. During this time, she also received no indication from the respondent that she ought to provide further documents regarding her authority to represent her late husband. The applicant alleges that this failure to communicate with her is discriminatory and an act of reprisal.
6The respondent has filed a Response in which it denies the allegations of discrimination. It relies on its confidentiality policy, which outlines the information that must be provided by a representative in order to obtain disclosure of WSIB information. The respondent acknowledges that from approximately December 2010 to July 2011, it communicated with the applicant even though she had not provided the requisite information pursuant to its policy.
7Although the applicant wrote to the respondent a number of times from July to October 2011, the respondent did not respond to her inquiries.
8The respondent states that a new caseworker began handling Mr. Ahee’s file in September 2011. The respondent wrote briefly to the applicant on October 25, 2011. On November 2, 2011, it sent her a letter outlining the requirements that she provide documents establishing that she is authorized to act on her late husband’s behalf.
9In early January 2012, the applicant provided information confirming that she is the executor of her husband’s estate. The parties agree that communication has now been re-established.
10In a Case Assessment Direction dated March 15, 2012, I directed that this matter proceed by way of a summary hearing. The hearing was conducted on May 18, 2012. I heard oral submissions from the applicant and from counsel for the respondent.
ANALYSIS
11Section 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.
12As the Tribunal indicated in its CAD, the issue at the summary hearing is whether the application has a reasonable prospect of success and, in particular, whether there is a reasonable prospect that the applicant can show a link between the respondent’s alleged actions and a Code ground.
13In considering these issues, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code: see Dabic v. Windsor Police Service, 2010 HRTO 1994. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.
14Further, as the Tribunal explained in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, an application alleging merely misapplication of rules or policies cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.
15I explained these principles to the applicant at the outset of the summary hearing. I then invited her to explain why she felt Code grounds were a factor in the respondent’s behaviour. The applicant argued that it was unfair and inappropriate for the respondent to reverse its position and not communicate with her for a period of time, particularly since (until November 2, 2011) it gave her no indication that additional documents were required. She explained that this was a particularly difficult period of time for her and that she had a number of questions for WSIB for which she wanted answers.
16While the applicant alleged that the respondent had been unfair and that it had made mistakes, she did not point to any argument, evidence or prospective evidence that could show that the applicant’s Code grounds were a factor in the respondent’s behaviour. I understand that the applicant disagrees with and is frustrated by how the respondent treated her. However, applying the principles I have outlined in paragraphs 11 – 14, above, I find that she has provided no basis to suggest that any of this was in breach of the Code.
17The Application raises a further issue as to whether or not there is a reasonable prospect of establishing that the respondent reprised against the applicant in the sense that it acted or made a threat with the intention of retaliating against the claimant because she had asserted rights under the Code: Noble v. York University, 2010 HRTO 878, at paras. 33-34.
18The applicant states that communication between the parties ceased when she raised concerns about the WSIB’s determination of her husband’s claim. However, the applicant has provided no basis to suggest that, in challenging WSIB’s determination, she asserted rights under the Code. In any event, I find that there is no reasonable prospect that the applicant can establish that the WSIB’s failure to communicate with her between July 14, 2011 and October 25, 2011, although unfortunate, is discriminatory.
In all of the circumstances, I cannot conclude that the respondent’s failure to communicate with the applicant in a timely manner was discriminatory or that it constitutes a reprisal measure within the meaning of the Code. For all of these reasons, I find that the Application has no reasonable prospect of success. The Application is dismissed.
Dated at Toronto, this 4th day of June, 2012.
”signed by”
Michelle Flaherty
Vice-chair