Wilson v. Financial Services Commission of Ontario, 2012 HRTO 2341

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Wilson

Applicant

-and-

Financial Services Commission of Ontario

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 13, 2012

Citation: 2012 HRTO 2341

Indexed as: Wilson v. Financial Services Commission of Ontario

APPEARANCES

Julie Wilson, Applicant Self-represented

Financial Services Commission of Ontario, Respondent Larissa Easson, Counsel

1This is a transitional Application dated June 30, 2009 and filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on November 8, 2005.

2The applicant alleges that the respondent Financial Services Commission of Ontario (“FSCO”) discriminated against her because of her cognitive disability when it failed to intervene in response to a complaint she made arising from an alleged failure to accommodate her needs in the context of a medical assessment.

3The hearing in this matter was held on November 15, 2011 and February 2 and May 2, 2012, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. As an accommodation for the applicant’s disability, the hearing days were limited to two hours or such longer period as the applicant was able to continue. The first hearing day was held in person in Sudbury and, with the parties’ consent, the following two hearing days were held by teleconference. The applicant was assisted at the hearing by two other individuals.

4In advance of the hearing, in order to make the best use of the limited time available, I directed that the parties file complete statements of evidence with the intention that these statements would be affirmed and would be subject to cross-examination or any necessary questioning by me as the adjudicator. I heard from the applicant on her own behalf, and from Bruce Green (Team Leader, Automobile Insurance Policy Unit at FSCO) for the respondent. The parties also filed voluminous document briefs which were entered into evidence before me.

5On consent, the parties agreed to make final argument by way of written submissions. The final reply submissions were received from the applicant on June 27, 2012.

BACKGROUND

6The applicant was involved in a car accident in 1997, and was subsequently diagnosed with a brain injury.

7In 2004, she was involved in a dispute with her insurer regarding medical and rehabilitation benefits. Under the legislative scheme that existed at the time, the next step in the process was for the dispute to be referred to a Designated Assessment Centre (“DAC”). Under that scheme, if the DAC found that the insured was entitled to benefits, this finding would bind the insurer. If not, the insured had access either to the mediation and arbitration process at FSCO or to the civil courts.

8On November 18, 2004, the assigned DAC wrote to the applicant to advise her that she had been referred to it for a medical and rehabilitation assessment.

9On November 29, 2004, the applicant wrote to the assigned DAC requesting confirmation that it would accommodate the applicant’s disabilities by allowing the use of a facilitator during the assessment process.

10On December 7, 2004, the assigned DAC responded by advising that its standard policy was to allow only the insured to sit in the assessment with the examiner, other than specific instances where there was a need for a chaperone or interpreter. As a result, it advised that a facilitator would not be allowed to participate in the assessment process.

11On December 14, 2004, the applicant replied by advising that the accommodation of the applicant’s disability was a requirement of, among other things, the Code.

12On December 21, 2004, the assigned DAC wrote again to the applicant to advise that it would accommodate any disability she may have. It reiterated its standard policy to only allow the insured to attend the appointment with the examiner. It stated that if the examiner felt that the insured required assistance, then the examiner would advise of the need for same. However, the assigned DAC made it clear that only the applicant would be allowed to sit with the examiner, unless the examiner at her or his discretion agreed to have someone else sit in the examination.

13On December 23, 2004, the applicant wrote to her insurer with a copy to the assigned DAC and to FSCO, to state that the assigned DAC had refused to accommodate her disability through the use of a facilitator during her assessment. As such, the applicant expressed her view that the referral would have to be sent back to FSCO for an alternate DAC selection.

14Under the Statutory Accident Benefits Schedule (“SABS”) at the time, which was Regulation 403/96 under the Insurance Act, R.S.O. 1990, c. I.8, there were limited circumstances in which an alternate DAC could be selected. These were: where the previously selected DAC had a declared conflict of interest that was not waived by the parties; where the previously selected DAC was unable to conduct the assessment within the required time frame; or where the insured was being sent for an additional assessment as required by the SABS and the parties did not jointly select a DAC in the manner required by the SABS. None of these circumstances applied in the instant case; thus selection of an alternate DAC was not permitted.

15The applicant’s December 23, 2004 letter, while copied to FSCO, did not specifically request any action by FSCO. As a result, no action was taken.

16On February 7, 2005, the applicant wrote to FSCO to ask when she would be receiving a response to, among other things, what she described as her “complaint” about the assigned DAC as set out in her December 23, 2004 letter.

17The evidence before me indicates that a draft response to the applicant’s February 7, 2005 letter was prepared on March 9, 2005. However, due to inadvertence, this response was not sent out. A response ultimately was sent to the applicant by letter from FSCO dated June 15, 2005.

18In the June 15, 2005 letter, the applicant was advised that the DAC Committee had no policy with respect to the issue of whether facilitators were allowed to attend an assessment with an insured and had asked the DACs to develop their own policies with respect to such requests. In addition, the applicant was advised that any dispute involving whether an insured had made herself reasonably available for an assessment was a matter to be resolved through the dispute resolution process at FSCO, and was not something that could be determined through a complaint to the Automobile Insurance Policy Unit (“AIPU”) at FSCO. If the applicant was unsatisfied with the manner in which a DAC assessment was completed and the conclusions reached by the DAC in its report, she was advised that she could choose to pursue dispute resolution through the Mediation Unit of the Dispute Resolution Group at FSCO.

19The applicant subsequently filed complaints with the Ontario Human Rights Commission alleging that she had experienced discrimination because of her disability by both the assigned DAC and FSCO. As these complaints had not been resolved by the time the changes to the human rights system in Ontario took effect, the applicant filed transitional Applications under s. 53(5) of the Code against both the assigned DAC and FSCO. At the first day of hearing in this matter, the Application against the assigned DAC was resolved by settlement and so is no longer before this Tribunal.

20The applicant did not attend the medical and rehabilitation assessment with the assigned DAC. She did not initiate any application under the dispute resolution process offered by FSCO, as she did not believe that this process had the ability to address an accommodation issue with a DAC. The applicant subsequently settled all of her claims arising out of the motor vehicle accident with the insurer.

FSCO’S ROLE IN RELATION TO DACS

21DACs were created as a result of the enactment of Bill 59 on November 1, 1996. Provisions relating to DACs were removed from the SABS in March 2006 and DACs subsequently ceased to exist.

22At the time DACs were created, the Minister of Finance established the DAC Committee, which was responsible for overseeing DACs. The DAC Committee was comprised of a cross-section of stakeholders representing insurers, the health care profession, the legal community and consumers. The DAC Committee met monthly and worked on enforcing the principles of the DAC system through assessment guidelines, operating guidelines, reviewing complaints, and ensuring the DAC system operated smoothly.

23The AIPU at FSCO provided operational and administrative support to the DAC Committee. One of the AIPU’s roles was to review written complaints about DACs, under the auspices of the Operations Subcommittee of the DAC Committee. The applicant’s allegations relate to this aspect of the AIPU’s role.

24The responsibilities of the AIPU did not extend to complaints relating to the conduct of the DAC assessments themselves, for example what medical assessments were completed, how the assessment process was conducted, who participated on the assessment team, and the outcomes or conclusions of the assessors. The AIPU and the DAC Committee felt that conflicts over these matters fell under the jurisdiction of the dispute resolution process at FSCO, in that they related to an insured’s entitlement to accident benefits or the amount of accident benefits.

25There was a dispute between the parties before me as to whether the dispute resolution process at FSCO was capable of addressing an allegation of a failure by an assigned DAC to accommodate an insured’s disability of the nature raised by the applicant. Both parties were in agreement that, under the dispute resolution process at FSCO, a claimant could not file an application directly against a DAC to raise such an issue. Rather, the jurisdiction of FSCO’s dispute resolution process related to an issue as between a claimant and an insurer regarding entitlement to, or the quantum of, accident benefits.

26However, it is noted by FSCO that, where a DAC assessment did not proceed for whatever reason, which would include an alleged failure to accommodate a claimant’s disability, this invariably would give rise to an issue as between the claimant and the insurer. The very reason for the selection of a DAC in the first place was indicative of some dispute between the claimant and the insurer as to entitlement to or quantum of benefits. If the DAC assessment did not proceed, then either the insurer would be paying benefits that it did not believe the claimant was entitled to or the claimant would not be receiving benefits to which she believed she was entitled. Either way, the insurer or the claimant could bring that dispute forward to FSCO’s dispute resolution process for determination.

27In the context of such a dispute between a claimant and an insurer, a preliminary issue may arise arising out of the fact that the DAC assessment did not proceed. Pursuant to s. 50(c) of SABS, if it was found that the claimant failed to make herself reasonably available for the DAC assessment, then she would be denied access to arbitration. On the other hand, if it was determined that the claimant did not fail to make herself reasonably available for the DAC assessment, then the matter would be allowed to proceed to arbitration either in the absence of a DAC assessment or with a further opportunity afforded for a DAC to be conducted in accordance with directions provided by the FSCO arbitrator.

28For example, in Cameron v. Pilot Insurance, [2004] O.F.S.C.D. No. 113, the claimant refused to proceed with a DAC assessment when he was denied the ability to have the assessment videotaped. Without the DAC assessment, the insurer refused to pay the applicant certain extended benefits to which he felt he was entitled. Accordingly, the claimant filed an application under FSCO’s dispute resolution process. A preliminary issue was raised by the insurer that the applicant should not be permitted to proceed to arbitration because the claimant had failed to make himself reasonably available for the assessment. The FSCO arbitrator disagreed, on the basis that the insurer and the DAC had not sufficiently explored why the claimant felt he needed to videotape the assessment or had not sufficiently considered alternatives that would address the claimant’s concerns. As a result, the application was allowed to proceed.

29Similarly, in Onno v. Wawanesa Mutual Insurance Company, [2000] O.F.S.C.I.D. No. 173, the claimants refused to attend a DAC assessment that was scheduled for a time when they were working, unless they were compensated for their lost income. Because the claimants failed to attend the DAC assessment, the insurer refused to pay them medical benefits to which they believed they were entitled. Accordingly, the claimants filed an application against the insurer under FSCO’s dispute resolution process to seek payment of these medical benefits. Once again, a preliminary issue was raised by the insurer that the application should not be allowed to proceed to arbitration on the basis that the claimants had not made themselves reasonably available for the DAC assessment. The FSCO arbitrator determined that the claimants had not failed to make themselves reasonably available, on the basis that the DAC had failed to reasonably consult with them about the appointment date. The application was allowed to proceed to arbitration, once again in the absence of any DAC assessment having been conducted.

30A similar result was achieved in Hashi v. Security National Insurance Co., [2006] O.F.S.C.D. No. 103. The claimant failed to attend a first DAC appointment because at that time she was in considerable distress and had moved to an emergency shelter. A second DAC appointment was scheduled, which the claimant also failed to attend. The FSCO arbitrator found that the claimant had failed to make herself reasonably available for this second DAC appointment. However, because the insurer had demanded payment from the claimant for the no-show fees from the first two appointments as a pre-condition to scheduling a third DAC appointment, which was not permissible, the claimant was still allowed to proceed to arbitration, notwithstanding that no DAC assessment had been completed.

31Alternatively, in Ndem v. General Accident Assurance Co. of Canada, [2001] O.F.S.C.I.D. No. 47, the issue was whether a claimant had the right to have a DAC conducted in French pursuant to the French Language Services Act (“FLSA”). In that case, the claimant refused to attend a DAC assessment as a result of his insistence that the assessment be conducted by a French-speaking person. As with the preceding cases, when the claimant’s refusal to attend the DAC assessment resulted in a denial of benefits by the insurer, the claimant filed an application under FSCO’s dispute resolution process. In that process, the preliminary issue as to whether the claimant had failed to make himself reasonably available for the DAC assessment was raised by the insurer. Ultimately, it was determined that, because the FLSA applied to the DAC assessment process and gave the claimant the right to be assessed in French rather than through an interpreter, he was not barred from proceeding to arbitration. However, in this case, the FSCO arbitrator directed the applicant to advise within a set time period whether he was prepared to attend a DAC assessment conducted in French, failing which his application would be barred from arbitration.

32As stated above, there is no doubt that the applicant could not have accessed the FSCO dispute resolution process to file an application directly against the assigned DAC to address its alleged failure to accommodate her disability. However, based on the FSCO jurisprudence, it appears that she could have accessed the FSCO dispute resolution process to address the insurer’s failure to pay medical and rehabilitation benefits to which she felt she was entitled. In this context, an issue may have arisen as to whether she failed to make herself reasonably available to attend the DAC assessment. If such an issue were raised by the insurer, then the applicant could have raised in response the DAC’s alleged failure to accommodate her disability.

33The applicant takes the position that the insurer never raised any issue that she had failed to make herself reasonably available to attend the DAC assessment. That may be true. However, this issue would only have arisen if the applicant had filed an application against the insurer under the FSCO dispute resolution process, at which time the insurer may have raised a preliminary objection to her proceeding to arbitration on the basis that she had failed to make herself reasonably available. But it does not appear to be necessary for an insurer to raise such a preliminary issue in order for a claimant to have access to the FSCO dispute resolution process. Rather, what is required is an issue as between the claimant and the insurer as to her entitlement to or quantum of accident benefits.

34Another issue raised by the parties before me relates to the fact that the AIPU, on behalf of the Operations Subcommittee of the DAC Committee, did act in response to a complaint filed by a claimant with a physical mobility issue that the offices of an assigned DAC were not accessible. The DAC Committee had issued a “DAC Physical Resource Checklist” which included such requirements as that the DAC facility be accessible with ramps and elevators. In respect of the complaint about which I heard evidence, the DAC facility was located on the second floor of a building which was not accessible. The AIPU acted on the claimant’s complaint and looked into the matter. It turned out that, while the DAC facility was located on the second floor, the DAC had made arrangements with a medical office on the first floor to use that facility to conduct the assessment, which was accessible, but there had been a miscommunication between the parties about this arrangement.

35The applicant takes issue with the fact that the AIPU intervened in relation to an accessibility complaint filed by a physically disabled person, but did not intervene in response to her accessibility complaint as a cognitively impaired person. In response, the respondent distinguished these two complaints on the basis that the AIPU was prepared to intervene in regard to a complaint relating to a claimant’s inability to gain access to a DAC facility but did not believe that it was within its proper jurisdiction to intervene in relation to complaints relating to required accommodations within the context of the DAC assessment process itself.

ANALYSIS AND FINDING

36The issue before me can be framed as whether the respondent discriminated against the applicant because of her cognitive disability by failing to act or intervene in response to her complaint about having been denied required accommodation by the assigned DAC, arising out of her request to be accompanied in the assessment by a facilitator.

37At the outset of the hearing, I raised with the parties the issue of whether proof of the applicant’s allegation that she had been denied a required accommodation by the assigned DAC was a necessary pre-condition or foundation for her application against FSCO to succeed. The applicant made detailed submissions on this issue. In my view, it is not necessary for me to address this issue.

38In its written submissions, FSCO has raised the issue of whether the AIPU’s role in responding to complaints made by claimants or others about DACs amounts to a “service” within the meaning of s. 1 of the Code. Once again, in my view, it is not necessary for me to determine this issue.

39Even assuming that the AIPU’s role in responding to complaints about DACs was a “service”, it is my view that the applicant has failed to establish that she experienced discrimination because of disability in relation to the respondent’s failure to intervene in response to her complaint.

40The evidence before me indicates that the respondent did not intervene in response to the applicant’s complaint for two inter-related reasons. First, it did not intervene because it believed that the issue raised by the applicant was properly within the jurisdiction of FSCO’s dispute resolution process. For the reasons already canvassed above, it is my view that the respondent is correct in that view based upon the jurisprudence of the FSCO arbitrators. In my view, the belief that the applicant’s complaint was not properly within the jurisdiction of the AIPU to address through the complaints process provides a reasonable, non-discriminatory reason for its failure to intervene that is unrelated to the applicant’s disability. While the applicant’s complaint arose from an alleged failure by the assigned DAC to accommodate her cognitive disability by allowing her to attend the assessment with a facilitator, the evidence indicates that it was not the specific nature of the complaint itself that caused the AIPU to determine that it could not properly intervene, but rather the fact that the complaint related to the conduct of the DAC assessment itself. This was felt to be properly within the jurisdiction of the FSCO dispute resolution process, regardless of the basis for the objection to the DAC assessment process. As a result, the respondent’s reason for not intervening does not amount to discrimination against the applicant because of her disability.

41The second reason that the AIPU failed to intervene in response to the applicant’s complaint is that, unlike the complaint made by the claimant who was unable to access the DAC facility at all, the applicant’s complaint did not relate to any inability to access the assigned DAC facility but rather related to the conduct of the DAC assessment itself and who would be allowed to attend the assessment. The applicant submits that this amounts to discrimination on the basis of different types of disabilities, with the AIPU prepared to intervene on behalf of physically disabled persons where they are denied accommodations needed to access a DAC facility, while the AIPU is not prepared to intervene on behalf of cognitively disabled persons who similarly require accommodations in the DAC assessment process.

42In my view, that is not an apt comparison of the circumstances where or where not the AIPU will intervene in response to a complaint. The evidence before me is that the AIPU will intervene where the complaint relates to an inability to access the DAC facility itself, but will not intervene where the complaint relates to the conduct of the DAC assessment. In my view, it is not correct to say that, just because the specific accommodation issue raised by the applicant in the instant case arises from a cognitive disability, this means that the AIPU will not intervene to address accommodation issues raised by persons with cognitive disabilities. One can imagine a myriad of accommodation and other issues that may arise in the context of the conduct of a DAC assessment that pertain to a variety of disability (whether physical, cognitive or otherwise) or non-disability related issues, where the AIPU similarly would not have intervened not because of the nature of the issue raised but because the issues relate to the conduct of the DAC assessment.

43One way to consider this issue is to analyze it as an allegation of constructive or adverse effect discrimination, as addressed in s. 11 of the Code. From this perspective, the AIPU had a “neutral rule” that was not discrimination on a prohibited ground: it would intervene in response to complaints about a claimant’s inability to access a DAC facility, but not in response to complaints about the DAC assessment process itself. In order for the applicant to establish that this “neutral rule” amounts to constructive or adverse effect discrimination, she would need to establish that this rule “results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member”. In my view, this has not been established by the applicant. It is not sufficient for her to say merely that this rule resulted in the exclusion of her from the complaints process and that she has a cognitive disability. Rather, she needs to establish that the rule results in the exclusion of a “group” that is identified by a prohibited ground of discrimination, whether it be “disability” generally or cognitive disability in particular. As I have stated above, it is my view that this rule does not result in any particular exclusion of persons with disabilities or cognitive disabilities, but rather impacts an inchoate group of persons with a variety of potential disability or non-disability related issues relating to the conduct of a DAC assessment. This is not a sufficient basis upon which to prove discrimination in violation of the Code.

44Accordingly, for all of the above reasons, I find that the respondent’s failure to intervene in response to the applicant’s complaint about who would be allowed to attend the assigned DAC’s assessment process does not amount to discrimination by FSCO because of her disability.

45As a result, the Application is dismissed.