HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Frank Fata
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
INTERIM DECISION
Adjudicator: Leslie Reaume
Indexed as: Fata v. Workplace Safety and Insurance Board
APPEARANCES
Frank Fata, Applicant
John Bartolomeo, Counsel
Workplace Safety and Insurance Board, Respondent
Greg Bullen, Counsel
Introduction
1This is 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 and reprisal with respect to services because of disability and age.
2By Case Assessment Direction (“CAD”) dated December 18, 2012, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The parties were given an opportunity to make oral submissions by teleconference on whether the Application should be dismissed for no reasonable prospect of success.
3The applicant is diabetic. He has been in receipt of benefits from the respondent since 1985 as the result of an accident. At some point in the late 1980’s the applicant moved his residence. He alleges that as a result of his disability and the distance he travels to access medical services, he was provided with travel expenses and two meal allowances. The applicant alleges that the provision of the meal allowances is not a benefit provided by the respondent but a disability-related accommodation. The applicant alleges that he received this assistance until 2011 when his meal allowance was reduced from two meals to one.
4With respect to the ground of age, the applicant alleges that because of the age of his claim, his file was never converted into electronic form. He alleges that he is at a disadvantage in dealing with issues arising from his file with the respondent because his file remains in paper form and can only be accessed by one person at a time. By comparison, the applicant alleges that those individuals whose files can be accessed electronically by any employee of the respondent, have an advantage in receiving more timely service.
5The Tribunal determined that it would be appropriate to refer this matter to the summary hearing process to determine whether the Application should proceed further in the hearing process.
6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to assess applications at an early stage to ensure that they meet the minimum requirements under the Code to proceed to hearing. The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation and it is important that the parties be advised of this at the earliest opportunity.
7The test that is applied at this stage is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. Discrimination generally involves an allegation of unfair treatment by a person who identifies with one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.
8At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness which would not be considered discrimination in the legal sense, can leave a person with significant financial and emotional damage. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence to support the applicant’s belief that they have experienced discrimination.
9The real question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.
10In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that their personal characteristic played a role in what they experienced. That evidence comes in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. Many circumstances play a role in assisting the Tribunal in determining whether one has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.
11The parties are permitted an opportunity to make oral submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.
12The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.
13Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.
ANALYSIS
14The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically the applicant was asked to address two issues set out in the CAD of December 18, 2012:
The 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. The Tribunal held as follows in Seberras v. Workplace Safety and insurance Board, 2012 HRTO 115 at para. 5:
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.
15The applicant argues that the Seberras case does not apply to his circumstances because he is not challenging the accident-related benefits which were conferred pursuant to the legislative mandate of the respondent. The applicant alleges that he is challenging the withdrawal of an accommodation which was in place to assist him in accessing his benefits.
16The respondent argues that the changes to the meal allowance were made by way of an adjudicative decision which is currently the subject of an appeal within the WSIB system. The respondent argues that the applicant should not be permitted to pursue both the appeal and this Application to the Tribunal.
17In my view, this matter cannot be resolved at this early stage in the proceeding on the basis of a finding of no reasonable prospect of success. Whether or not the applicant is able to demonstrate a distinction between the benefits he receives and what he alleges to be accommodations for his disability is an issue which should be determined after hearing evidence.
18I have also come to the same conclusion about the applicant’s allegations of age discrimination. The presiding adjudicator will need to hear evidence about the disadvantage alleged to be experienced by the applicant and evaluate whether there is a connection between the disadvantage and the applicant’s age. Even if I agreed that this argument appears novel or unlikely to succeed, that is not sufficient to dispose of it on the basis that there is no reasonable prospect of success.
19Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.
20It is not clear whether this issue will be the subject of an adjudicative decision by the respondent. However, in the event that applicant is pursuing a process with the respondent which could result in an adjudicative decision to reinstate or deny the meal allowance, the respondent may seek to have this Application deferred pending the outcome of that process. I will remain seized of the file for the purpose of determining the issue of deferral if necessary.
Directions
The Application will proceed to the next stage in the hearing process.
The applicant will have 10 days from the date of this Interim Decision to advise the Tribunal whether or not he consents to mediation;
The respondent will file a Response within 35 days of the date of this Interim Decision and will indicate in the Response whether or not the respondent consents to mediation;
The applicant will file a reply, if required, in accordance with the Rules;
I will remain seized of the Application for the purpose of determining any request to defer the Application.
Dated at Toronto, this 11th day of July, 2013.
“Signed By”
Leslie Reaume
Vice-chair