HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ronnie Bundzeak
Applicant
-and-
Workplace Safety and Insurance Board and Sibley and Associates
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Bundzeak v. Workplace Safety and Insurance Board
APPEARANCES
Ronnie Bundzeak, Applicant
Self-represented
Workplace Safety and Insurance Board, Respondent
Gurjit Brar, Counsel
Sibley and Associates and Mary Virio, Respondents
Mark Klaiman, Counsel
Introduction
1This is an Application filed on October 15, 2010, 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 employment and contracts because of disability and reprisal. The applicant identifies October 16, 2009, as being the last date of discrimination. While the applicant did not mark off “contracts” as a social ground on the Application form, he completed a Form 1-D pertaining to contracts and a Form 1-C pertaining to goods, services and facilities. He also provided responses to the questions on the Application form pertaining to the grounds of race, colour, ancestry, place of origin, citizenship, ethnic origin, age, and the basis of association although he did not specifically mark off these grounds as being those upon which his Application was based.
2On August 29, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) in which it ordered, on its own initiative, that a Summary Hearing be held, pursuant to Rule 19A of the Tribunal’s Rules of Procedure, to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.
3At para. 4 of the CAD, the Tribunal stated:
The Tribunal does not have the general power to deal with allegations of unfairness or refusal of benefits. It can only deal with alleged discrimination or harassment on the grounds set out in 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.
Following the summary hearing, the Application may be dismissed against one or both respondents, or the Tribunal may determine that only some allegations may proceed.
4In the CAD, the Tribunal issued a timetable directing the parties to deliver to each other and file with the Tribunal copies of any further documents or cases that they intended to rely upon at the summary hearing. The parties did not file additional materials.
5A Notice of Summary Hearing was issued by the Tribunal, dated November 21, 2011, scheduling the summary hearing by teleconference on January 17, 2012 (“the hearing”). All the parties participated in the hearing. Approximately one and one half hours into the hearing, the applicant’s mother, wife and uncle entered the teleconference. I stated that they could continue to listen in during the hearing, but I was not going to hear evidence from them as the Tribunal was determining the issues identified in the CAD and not hearing evidence.
6In his Application, the applicant provided more than six single-spaced pages of narrative in lengthy paragraphs, typed in capitals, providing details about his workplace accident with his former employer, his return to work, and details of his dealings with the respondents and the concerns and issues that he has had with them. His narrative is disjointed and repetitive.
7Essentially, the applicant’s Application is about his participation in a labour market re-entry (“LMR”) program that is administered by the respondent Workplace Safety and Insurance Board (“WSIB”) pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, C. 16, Sch. A, as amended (“the WSIA”). At the time, WSIB used the services of a service provider, the respondent Sibley and Associates (“Sibleys”). Sibleys was contracted to manage and provide assistance to the applicant whom, it was determined, should undergo academic upgrading and then training, through a different academic program, as part of his LMR program. The applicant’s academic upgrading commenced in November 2008.
8The Application raises a number of allegations about the respondents, which fall generally into the following points:
Sibleys failed to properly accommodate the applicant’s disability during the LMR, including failing to provide him, in a timely manner, with an ergonomic chair and other assistive devices such as a computer and a calculator;
WSIB and Sibleys took too long to consider the applicant’s accommodation requests which resulted in the applicant not having a chance to prepare “normally” for his LMR program;
An employee of Sibleys threatened to report him to WSIB for failing to cooperate in the LMR program when the applicant did not attend his academic course to take care of a sick child and when the instructor was sick and the course was cancelled for the week;
WSIB failed to provide guidance to Sibleys about the applicant’s accommodation needs during the LMR;
Sibleys and WSIB harassed the applicant and his wife by telephoning them at “all hours” including late in the evening and on weekends;
Sibleys and WSIB failed to respond, or took too long to respond, to letters and telephone calls the applicant made to them with concerns he raised about their conduct which caused him to experience further medical conditions;
Sibleys and WSIB treated him with disrespect, attacked his character, and traumatized his health;
Sibleys attacked the applicant’s wife’s character and its failure to pay for the computer that the applicant purchased caused credit card problems for the applicant and his family;
WSIB failed in its contractual duties to ensure that Sibleys adhered to the requirements of the LMR program, and failed to take any action against Sibleys;
The personal respondent told an employee of Sibleys not to talk to him;
Sibleys filed false, incorrect, and inaccurate reports about the LMR program to WSIB;
WSIB and Sibleys did not recognize the applicant’s medical condition of post-traumatic stress disorder (“PTSD”);
The respondents have cost the applicant and his family “…. years of enjoyment and future success due to cri[min]al acts conflicted by big business, their firms, and associated partners reaping benefits rather than the injured”; and
Due to Sibleys’ actions:
a. the applicant was waitlisted for his primary studies program, and his LMR program was placed in limbo;
b. the applicant’s registration fees were withheld resulting in a second academic irregularity;
c. the applicant completed his academic studies “out of order” by taking higher level courses before taking lower level courses.
9WSIB filed a Response. WSIB also filed a Request for Order During Proceedings (“RFOP”) in which it requests that the Application be dismissed because the allegations are too vague, fail to raise a prima face case, and that adjudicative functions made by WSIB do not fall within the meaning of “services” under the Code. WSIB elaborated upon these submissions during the hearing, including submitting that a delay in accommodating does not constitute a violation of the Code.
10Sibleys and the personal respondent filed a joint Response. They also request that the Application be dismissed because the allegations against them are vague and fail to disclose a prima face case of discrimination. Further, they submit that there are no specific allegations against the personal respondent and elaborated upon their Responses during the hearing.
11On January 18, 2011, the applicant also filed a RFOP seeking to add “family status” to his Application in light of the allegation contained in the third bullet point in para. 8. The respondents did not file a Response to the RFOP and the time for filing one has elapsed. At the hearing, WSIB opposed the applicant’s request because the allegation appeared to be in relation to Sibleys rather than against it. Sibleys and the personal respondent submitted that while they did not have any instructions with respect to the applicant’s request, even if the Application were amended to include family status, the allegations on the basis of family status are still generalized allegations of wrongdoing and are factually disputed by them.
LAW AND analysis
12Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
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.
14In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an Application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.
15It is important to keep in mind, as the Tribunal pointed out in Abdul v. York University, 2011 HRTO 1851, at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process 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.
See also Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.
16In Frankson v. Workplace Safety and Insurance Board, 2011 HRTO 2107, the Tribunal held at paras. 107 to 108:
In considering these circumstances, I find that although the dispute arises out of the WSIB’s determinations in relation to Mr. Frankson’s LMR plan, it is not about the appropriateness of one of another LMR plan; it is about whether the WSIB discriminated against him by failing to take into account accommodation of his disability in devising the LMR plan.
This Tribunal does not have the jurisdiction, or indeed the expertise, to decide when a LMR plan is appropriate, and what comprises the appropriate LMR plan for a particular injured worker. However, it does have the expertise to consider issues of disability-related discrimination in the provision of services, and the role of the duty to accommodate in the provision of services. The nature of the dispute before me is whether the WSIB discriminated against Mr. Frankson in the manner in which it provided him with the LMR services. Although I am precluded from deciding what comprises an appropriate LMR plan for the applicant, I find that I am not precluded from deciding whether the manner in which the WSIB dealt with the question of the appropriate LMR plan violated his right to equal treatment with respect to services.
The Personal Respondent
17In this case, the only allegation the applicant makes about the personal respondent is at point 10, in paragraph 8 above, that she told an employee at Sibleys not to talk to the applicant. This is not sufficient, in my view, to establish a connection between the alleged conduct and a Code ground. Therefore, there is no reasonable prospect of success on this point, the entire Application is dismissed as against the personal respondent, and the style of cause is amended accordingly. The Application with respect to point 10 is dismissed as against WSIB and Sibleys.
Reprisal
18With respect to reprisal, the Tribunal stated in Forde, supra, at para. 23, “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878, at para. 31.
19The applicant has not provided any evidence to support that the raising of the issues in his Application was related to him claiming or attempting to enforce a right under the Code. Further, he has not asserted that he raised a Code concern with either WSIB or Sibleys prior to filing his Application. Accordingly, the reprisal part of his Application is dismissed against WSIB and Sibleys.
Race, Colour, Ancestry, Place of Origin, Citizenship, Ethnic Origin, Age, Basis of Association
20With respect to the applicant marking off the other grounds of race, colour, ancestry, place of origin, citizenship, ethnic origin, age, and the basis of association, the applicant provided no details about any of these allegations either in his Application or during his submissions during the hearing. Accordingly, there is no link between the allegations in the Application with respect to these Code grounds, and these grounds are dismissed against WSIB and Sibleys.
Points 4, 5, 6, 7, 8, 9 and 11, 12, 13, and 14
21I also find that the Application has no reasonable prospect of success with respect to the issues identified in points 4, 5, 6, 7, 8, 9, 11, 12, 13 and 14, as set out in paragraph 8 above. The applicant has not established a nexus to connect the conduct complained of in these points to the remaining Code ground, which is disability. Specifically, he has failed to establish how his disability was a factor in the respondents’ treatment towards him. Certainly in these points he alleges that the respondents treated him unfairly; however, as stated in Abdul, supra, and Forde, supra, the Tribunal does not have the power to deal with general allegations of unfairness. Accordingly, the Application has no reasonable prospect of success with respect to points 4, 5, 6, 7, 8, 9, 11, 12, 13 and 14 of the Application as against WSIB and Sibleys on these issues is dismissed.
Family Status and Point 3
22Point 3 of paragraph 8 alleges that an employee of Sibleys threatened to report the applicant to WSIB for failing to cooperate in the LMR program when the applicant did not attend his academic course to take care of a sick child and when the instructor was sick and the course was cancelled for the week. Subsequent to filing his Application, the applicant filed a RFOP seeking to amend his Application by including the Code ground family status in addition to disability.
23Despite WSIB objecting to the applicant’s RFOP, and Sibleys not having any instructions pertaining to this amendment, I grant the applicant’s request to amend his Application by including “family status” as an additional ground. In granting his request, I note that the applicant’s allegations pertaining to family status are already included in his Application as identified in point 3 above, but the Code ground was not marked off. The amendment is a minor one, sought at the beginning of the Tribunal’s process, and the respondents have not argued that they are prejudiced. Given that there may be a legal issue as to whether or not WSIB is responsible for Sibley’s actions and/or alleged comments, the Application is permitted to continue against both WSIB and Sibleys with respect to the issue identified in point 3.
Points 1 and 2
24As set out in Fransen, supra, the Tribunal does not have the jurisdiction to determine the appropriateness of a LMR program, but it does have the expertise to consider issues of disability-related discrimination in the provisions of services, and the role of the duty to accommodate in the provision of services.
25In Points 1 and 2 of paragraph 8 above, the applicant alleges that WSIB and Sibleys failed to properly accommodate his disability during the LMR, including failing to provide him, in a timely manner, with an ergonomic chair and other assistive devices, such as a computer and a calculator. Their delay in accommodating the applicant’s disability resulted in the applicant, he alleges, not having a change to prepare “normally” for his LMR program. With these allegations, the principles set out in Fransen, supra, are triggered. Accordingly, I am not satisfied that there is no reasonable prospect of success with respect to the allegations contained in points 1 and 2 of paragraph 8 and these allegations are permitted to continue against WSIB and Sibleys.
26Of course, permitting parts of this Application to continue does not provide any guarantee that the Application will be successful.
Social areas of employment, contracts, goods, services and facilities
27The applicant marked off the social area of employment on his Application form. He did not mark off the social areas of contracts, or goods, services and facilities on his Application form, although he did complete Forms 1-C and 1-D pertaining to them.
28During the hearing, the applicant did not provide any submissions about how his allegations, as against WSIB and Sibleys, fell under the social areas of employment, contracts, goods or facilities, but instead, concentrated on services.
29As the applicant has failed to provide a connection between the grounds of disability and family status with respect to employment, contracts, goods and facilities, there is no reasonable prospect of success in these social areas. Accordingly, the Application is dismissed on all social areas except for services.
order
30The Tribunal orders that:
a) the entire Application as against the personal respondent is dismissed;
b) points 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, as set out in paragraph 8, are dismissed as against WSIB and Sibleys;
c) points 1, 2, and 3, as set out in paragraph 8, are permitted to continue against WSIB and Sibleys;
d) the social areas of employment, contracts, goods, and facilities are dismissed against WSIB and Sibleys;
e) the Application is amended to include “family status” as well as disability; and,
f) the grounds of reprisal, race, colour, ancestry, place of origin, citizenship, ethnic origin, age and basis of association are dismissed against WSIB and Sibleys.
Dated at Toronto, this 5th day of October, 2012.
“Signed by”
Alison Renton
Vice-chair
correction
The decision released on October 5, 2012 incorrectly substituted the word “contracts” for the word “services” in the last sentence of paragraph 29 of the decision. The error is corrected.
Dated at Toronto, this 19th day of October, 2012.
“Signed by”
Alison Renton
Vice-chair