HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Victoria Flett
Applicant
-and-
Workplace Safety and Insurance Appeals Tribunal and Workplace Safety and Insurance Board
Respondents
DECISION
Adjudicator: Judith Keene
Indexed as: Flett v. Workplace Safety and Insurance Appeals Tribunal
APPEARANCES
Victoria Flett, Applicant
John Batttaglio, Representative
Workplace Safety and Insurance Appeals Tribunal, Respondent
Danielle Allen, Ana Rodriguez Garcia, Counsel
Workplace Safety and Insurance Board, Respondent
Agnes Wintersinger, Representative
Introduction
1This is a Decision in respect of 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 services, goods and facilities because of disability.
2On July 4, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The Application was delivered to the respondents with the CAD, which directed that the respondent need not file a substantive Response. The CAD provided that either party could file any cases or documents they intended to rely upon at the Summary Hearing no later than 14 days prior to the teleconference.
3The CAD noted that “it appears that the Application concerns an incident (or incidents) that took place in 1989 and as such the allegations may be untimely” (at para 4). The CAD also addressed the apparent subject-matter of the Application: “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” and citing Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 .
4Counsel for the Workplace Safety and Insurance Tribunal filed brief written submissions. The submissions pointed out that the respondents had been misnamed in the application. The correct name of the respondents is, respectively, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) and the Workplace Safety and Insurance Board (“WSIB). The style of cause is amended accordingly.
5The summary hearing was held by teleconference.
THE ALLEGATIONS AGAINST THE WSIAT
6In her written submissions, counsel for WSIAT noted that the applicant's appeal of a relevant decision of the WSIB was in fact ongoing; there has been no final decision or findings of fact. Counsel also noted that the Application did not appear to contain any allegation that WSIAT had violated the Code. I agreed with this observation, but gave the representative for the applicant an opportunity to explain.
7The position of the applicant was that WSIAT should have issued a summary ruling indicating that the WSIB, which the applicant characterized as WSIAT’s “service provider” had breached the Code and that, therefore, the applicant was entitled to certain benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, as amended (“WSIA”). The applicant could provide no authority for the proposition that WSIAT had the jurisdiction to do this; her representative cited the AODA “customer service” regulations OM429/07 s. 3 (3-5). In answer to my question, the applicant’s representative indicated that the applicant had not applied to the WSIAT for such an order.
8Ms. Rodriguez pointed out that WSIAT and the WSIB are separate organizations, that the WSIB cannot be characterized in the way suggested by the applicant, that the WSIAT has no general supervisory authority over the WSIB. She also stated that nothing in the Act requires the WSIAT to issue summary judgment on its own initiative.
9In any event, the relevant question here is whether an allegation that the WSIAT breached the Code by failing to issue summary judgment on its own initiative under these circumstances would have a reasonable prospect of success at a hearing. In this case, it is clear to me that the applicant’s position is that the WSIAT did not correctly interpret its obligations under its own legislation, and the reasoning in Seberras (above) indicates that the applicant has no reasonable prospect of success in respect of the allegations against the WSIAT.
THE ALLEGATION AGAINST THE WSIB
10Aside from allegations of breaches of the Canadian Charter of Rights and Freedoms; The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11) (“Charter of Rights), which will be dealt with briefly below, the Application alleges that the WSIB had created on inappropriate accommodation plan for the applicant, and that it had breached s. 156 of its own Act, and had therefore committed an offense under that Act.
11The applicant’s representative stated that the WSIB did not allow the applicant funding for assessment by a psychiatrist of her own choosing (as opposed to one chosen by the WSIB), and that this constitutes a breach of the Code. The applicant did not allege that the WSIB differentiated between persons with mental disabilities and persons with other disabilities, or between types of mental disability. She did not allege that the decision by WSIB had an adverse affect on the basis of disability for the purposes of section 11.
12In regard to her allegation that the WSIB had committed an offense under the Act, the applicant’s representative had no submissions to make as to why this Tribunal should be considered to have jurisdiction to determine whether the WSIB had breached its own legislation. As noted in the CAD, the Seberras decision (above) stated, at para. 5:
…A Code application alleging merely that a decision-maker misapplied the rules of a program…cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.
13I conclude that the allegation in respect of the WSIB has no reasonable prospect of success.
The timeliness issue
14Section 34 of the Code provides as follows:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
15The applicant admitted that the impugned actions of the WSIB had taken place 22 years ago. Their argument was that the alleged breach of the Code should be considered ongoing because the alleged effect of the WSIB’s actions is ongoing, and that the applicant has never abandoned her WSIAT appeal.
16The continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination; see Mafinezam v. University of Toronto, 2010 HRTO 1495, and Visic v. Ontario (Human Rights Commission), 2008 CanLII 19784 (ON SCDC), (2008) 236 O.A.C. 110 (Ont. Div. Ct.). The fact that the applicant has not abandoned her WSIAT appeal indicates that she has continued to pursue a remedy, but in these circumstances cannot obviate the fact that the act complained of occurred 22 years ago.
17It is open to the Tribunal to accept an Application in which the alleged events took place over a year before the Application was filed, in the circumstances set out in s. 34(2). The applicant’s representatives did not make submissions in respect of this provision. In any event, I have concluded that there is no reasonable prospect of success in regard to the allegations; in my view this is not an appropriate case in which to exercise this discretion.
CHARTER CLAIMS
18The application also contains allegations that both respondents have violated the Canadian Charter of Rights and Freedoms; The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11) (“Charter of Rights). Having found that there is no reasonable prospect of success in respect of the allegations in the Application, I will not deal with these claims.
19For the reasons given above, the Application is dismissed.
Dated at Toronto, this 27th day of December, 2012.
“Signed by”
Judith Keene
Vice-chair