HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mariam Tadese
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
DECISION
Adjudicator: Naomi Overend
Indexed as: Tadese v. Workplace Safety and Insurance Board
APPEARANCES
Mariam Tadese, Applicant
Mike Parente, Representative
Workplace Safety and Insurance Board, Respondent
Agnes Wintersinger, Representative
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that the Workplace Safety and Insurance Board (“WSIB”) discriminated against him in a series of decisions that failed to find the “severe extent” of his disabilities and, thereby, denied him entitlement to benefits under the Workplace Safety and Insurance Act (“WSIA”).
2The Tribunal issued a Case Assessment Direction (“CAD”) on August 23, 2012 ordering that a summary hearing take place on the basis that there appeared to be no allegation(s) of discrimination in the Application. The CAD made specific reference to Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 (“Seberras”), a decision in which the Tribunal held that an allegation that a decision-maker has “misapplied the rules of a program or misinterpreted medical documentation” is not one that constitutes a violation of the Code.
3The summary hearing was held on December 19, 2012. The applicant’s representative was unable to distinguish the facts of his case from the reasoning in Seberras. On that basis I dismissed the Application orally and advised the parties that written reasons would follow.
decision
4Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
5Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at para. 8:
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.
6The Seberras decision was made by a three-member panel of the Tribunal, constituted to address the extensive and somewhat conflicting case law on whether decisions made by WSIB (and other statutory benefit providers) come within the jurisdiction of this Tribunal. At paragraph 5 of the decision, the Tribunal set out four principles to be applied in cases concerning applications against statutory benefit providers, the last of which has direct application to the instant case:
This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success. In addition, under s. 45.1 of the Code, the Tribunal cannot reevaluate the substantive or procedural correctness of a decision under another statutory scheme. [Emphasis added]
7In the body of the decision, the panel in Seberras expanded on the reasons for the above principle:
We agree that the Legislature did not intend for the Tribunal be a mechanism for appeal of decisions of the WSIB and other statutory decision makers. We believe that this concern is addressed by a proper understanding and definition of substantive discrimination under the Code. Indeed, in various decisions since Ballieram the Tribunal has dismissed applications that allege merely that a decision relating to government or private disability benefits has been incorrectly made: see, for example, Barron v. Workplace Safety and Insurance Board, 2011 HRTO 2168, and Matthews v. Chrysler Canada Inc., 2011 HRTO 1939.
As emphasized in Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797 (“Zaki #2”), at para. 15, to proceed through the Tribunal’s process there must be something more than an assertion that the applicant’s particular disability was not dealt with properly in a particular case to establish discrimination, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds. …
8Although the parties were directed to the Seberras decision in the CAD setting up the summary hearing, the applicant’s representative focussed instead on what he alleged was the unreasonableness of the WSIB’s determinations concerning the severity of his client’s disability. In response to the CAD, he filed further medical documents for the purpose of bolstering his claim that the WSIB decisions were wrong.
9I explained to the applicant’s representative during the course of the summary hearing that the Tribunal has held that it does not sit as an appeal body to the WSIB; that in order for the Tribunal to have jurisdiction over this matter, the applicant must establish that the WSIB decisions at issue were discriminatory, not merely incorrect. The applicant’s representative merely repeated his assertion that his client had a disability and, in failing to fully recognize that disability, the WSIB was discriminating against his client. As noted above, he made no attempt to explain why the reasoning in Seberras did not apply to the facts of the instant Application.
10The respondent submitted that the principles set out in the above paragraphs of Seberras were directly applicable, and on that basis the Application had no reasonable prospect of success. It also noted that the applicant has availed himself of the first level of the WSIB appeal process. Indeed, the applicant included an Objection Form (Appeals) (the first step in the WSIB appeals process) concerning four decisions of the WSIB at issue in this Application in the material he submitted.
11In light of the above, this Application was dismissed at the conclusion of the summary hearing as having no reasonable prospect of success.
Dated at Toronto, this 21st day of December, 2012.
”signed by”
Naomi Overend
Vice-chair