Hamel v. Workplace Safety and Insurance Board, 2012 HRTO 830

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Hamel

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Sherry Liang

Date: April 24, 2012

Citation: 2012 HRTO 830

Indexed as: Hamel v. Workplace Safety and Insurance Board

APPEARANCES:

John Hamel, Applicant ) Self-represented

Workplace Safety and Insurance Board, ) Gurjit Brar, Counsel

Respondent )

1This is an Application filed on October 6, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges he was discriminated against by the Workplace Safety and Insurance Board (the WSIB) on the ground of disability, in the area of goods, services or facilities.

2By Case Assessment Direction (CAD) dated December 30, 2011, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3At the summary hearing, which was held by conference call on April 12, 2012, I heard submissions from the applicant. I indicated that I did not need to hear submissions from the respondent, and that I would issue my decision in writing. Having considered the applicant’s submissions and reviewed the material before me, I have concluded that there is no reasonable prospect that this Application will succeed and it is dismissed.

4The applicant states in his Application that he suffered a back injury in the workplace in January 2008. He states that in May 28, 2010, during a conference call with his WSIB Case Manager and a manager with his employer, the applicant was told that he needed to change his medications, apparently because the medications he was taking for his back condition made him sleepy at work. The applicant states that as a result he approached his family doctor, who changed his prescription.

5The applicant states that subsequent to this, he lost his temper at work, causing him to be suspended and then dismissed from his employment. The WSIB denied him loss of earnings benefits. The applicant alleges that his new medications caused side effects of anger, anxiety and irritability, which resulted in his work termination. He alleges that under a WSIB policy on “Secondary Conditions Resulting from Work-Related Disability”, the WSIB should have recognized the relationship between his new medications (required because of his back injury) and the incident leading to his termination.

6The applicant appealed the denial of benefits to the WSIB Appeals Branch, which denied his appeal. The applicant has appealed further to the Workplace Safety and Insurance Appeals Tribunal (the WSIAT) which has not yet scheduled a hearing.

7In the Application, in explaining why he believed he was discriminated against based on a disability, the applicant wrote “los[s] of benefits – due to medications causing serotonin syndrome from back injury and depression, which resulted in los[s] of employment due to anger issues.” He also wrote that “no one took my depression, back injury and medications that caused serotonin syndrome seriously. I was told that none of these issues were related to my termination of my job and therefore my WSIB benefits were terminated.”

8At the hearing, I reviewed the CAD with the parties, and its description of the summary hearing process and issues to be addressed at the hearing. In the CAD, the Tribunal referred to the following passage from Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

9In the CAD, the Tribunal also stated:

The Tribunal does not have the general power to hear appeals of Workplace Safety and Insurance Board (“WSIB”) decisions. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an application alleging discrimination, an applicant must be able to show discrimination on a Code ground, not merely disagreement with a decision. See Barron v. Workplace Safety and Insurance Board, 2011 HRTO 2168. On reviewing the Application it appears that the Application focuses merely on disagreement with the WSIB’s decisions, including on appeal.

10At the hearing, I asked the applicant at the hearing to explain how the respondent’s actions, even if they were true, amount to discrimination against him on the ground of disability. I asked him to explain how the WSIB treated him unequally, because of his disability.

11I explained to the applicant during the conference call that the Tribunal’s authority does not extend to dealing with general allegations of unfairness, incorrect decision-making by the WSIB, or even a refusal by the WSIB to follow its own policies. Given that there are many WSIB claimants who believe they are wrongfully denied benefits and are pursuing appeals to the WSIAT, I asked the applicant to explain how his situation raises issues of unequal treatment under the Code, as opposed to a dispute like others about benefits.

12Generally, the applicant’s submissions were to the effect that the WSIB discriminated against him when it refused to give weight to the opinion of his doctor that his new medications led to serotonin syndrome, manifesting in anger issues and resulting in his loss of employment. The loss of employment has led to great financial hardship to him and his family and he has had difficulty finding new employment because of his ongoing back condition.

13Although in his Application, the applicant seeks as part of his remedy that his loss of earnings benefits be reinstated back to the date of his termination, he stated during oral submissions that he realizes this is not within the Tribunal’s role. He clarified that he is seeking compensation from the Tribunal for the hardship caused by the WSIB’s actions. Essentially, he believes that it was at the instigation of the WSIB that his medications were changed, and when this led to behavioural changes which caused his dismissal, the WSIB refused to recognize the link between his medication and the events leading up to his dismissal. He alleges that in dealing with his claim, the WSIB refused to follow its own policy on secondary conditions arising out of a workplace injury.

14Having considered the applicant’s submissions and the material he provided, I find that there is no reasonable prospect that the events he describes could amount to a violation of the Code. Even if the decisions of the WSIB Case Manager and Appeals Officer were wrong or unfair, there is nothing to suggest that the applicant was being treated unequally because of a disability. The circumstances of this case are similar to those in Smith v. Workplace Safety and Insurance Board, 2011 HRTO 896, in which I stated:

The essence of discrimination is unequal treatment. Leaving aside constructive discrimination, which does not apply here, section 1 of the Code, on which this Application is based, guarantees the “right to equal treatment” in the sense of a right not to be treated adversely because of one of the listed personal characteristics. It does not provide a general guarantee of fair treatment or protection against arbitrary, uncaring or even deceitful conduct. There may be other remedies for such wrongdoing, but unless an applicant can show that he or she was treated adversely in this manner because of a personal characteristic protected by the Code, there is no basis for a remedy under the Code.

15The Tribunal has also stated, in Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797, that in order to establish discrimination in the administration of a disability-based benefits program, “[t]here must be something more than an assertion that the applicant’s particular disability was not dealt with properly…” (para. 15)

16In this case, the applicant has not provided any basis that could support a finding of discrimination by the respondent. He disagrees with the conclusions of the WSIB Case Manager and Appeals Officer, but there is no basis for concluding that they were discriminatory. To the extent he believes the decisions were wrong and not consistent with a WSIB policy, he will have the opportunity to make those arguments before the WSIAT.

17This Application is dismissed.