HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Brown
Applicant
-and-
Manion, Wilkins & Associates Ltd.
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Brown v. Manion Wilkins & Associates Ltd.
APPEARANCES
William Brown, Applicant
Self-represented
Manion, Wilkins & Associates Ltd., Respondent
Jesse Nyman, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination because of disability with respect to the operation of an employment disability and health and welfare plan. The Application was filed on January 24, 2012.
2In a Case Assessment Direction dated August 27, 2012, the Tribunal directed that a hearing be held by telephone conference call to determine if the Application should be dismissed in whole or in part because:
The allegations concern events that occurred more than one year before the Application was filed;
The allegations are part of a civil proceeding in court;
There is no reasonable prospect that the Application can succeed.
3Section 34(1) of the Code provides:
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.
4Section 34(11) provides:
34(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
5Rule 19A of the Tribunal’s Rules of Procedure provides in part:
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.
6A hearing by telephone conference call was held on January 18, 2013. The applicant appeared. Mr. Nyman appeared on behalf of the respondent.
Background
7The applicant suffered a work-related injury on July 13, 2009. A claim was submitted to the Workplace Safety and Insurance Board. The applicant states that the claim was not allowed and he was not granted any benefits. The applicant indicated that he has filed an appeal with the Workplace Safety and Insurance Appeals Tribunal but he does not know the status of the appeal.
8He applied for and received sick benefits from the Employment Insurance Commission. These expired after a two-week waiting period and 15 weeks of benefits. The applicant applied for long term disability benefits and his claim was denied by Manulife Financial (“Manulife”), the long term disability insurance carrier.
9The applicant was a member of the United Brotherhood of Carpenters and Joiners of America, Local 1410. According to the respondent, the Local is an affiliated constituent union of the Millwright Regional Council of Ontario (“the Millwrights”). The Millwrights have negotiated contracts with the various employers it deals with providing for various employment benefits. The ones that are relevant in this Application are short-term disability, long term disability, and health and welfare benefits.
10The respondent is a corporation that provides services to unions and employers as a benefit administrator. The respondent was the benefit administrator for the applicant’s claims in respect of short-term disability, long term disability, and health and welfare benefits although its role was different in respect of the three types of benefits.
Short-term Disability
11According to the respondent, the short-term disability coverage in effect for the applicant provided that short-term disability benefits would be paid in an amount equivalent to the amount the member would receive from the Employment Insurance Commission. Benefits were only payable however if the member was not qualified for employment insurance benefits, for example, if the member did not have enough weeks of insurable earnings. If the member qualified for employment insurance benefits and received those benefits, the member was not entitled to any additional short-term disability benefits. In this case, the applicant received fifteen weeks of employment insurance sick benefits, the maximum amount payable under the employment insurance legislation for a sick claim.
12At the hearing, the applicant indicated that he believes that the contract provided that the member would be eligible for an “EI top up” to top up the employment insurance benefits to the equivalent of the member’s regular salary. The respondent clarified that there was a top up provision, but only for “regular” employment insurance benefits and not for sick employment insurance benefits.
13With this information, the applicant agreed that there was no discrimination in respect of short-term disability benefits.
Long Term Disability Benefits
14The applicant’s claim for long term disability benefits was denied. He has commenced an action in court against Manulife about this. The Application alleges that the respondent was involved in the decision to deny him benefits and this involvement was discriminatory.
15At the hearing the respondent explained that it had no involvement in the decision to deny the applicant’s claim for long term disability and that the decision was made only by Manulife. The respondent explained that its role was limited to providing the applicant with a copy of the application for long term disability benefits and to providing the application to Manulife.
16At the hearing the applicant indicated that he feels that the respondent was nevertheless involved in the decision to deny him benefits. However, he did not provide a clear explanation for why he believes this.
17At the hearing the applicant alleged that the respondent may have discriminated against him in the way that it communicated with him in the period from October 2009 to October 2010. He alleged that the person from the respondent that he spoke to was sometimes difficult to understand because she had an accent and that she sometimes spoke quietly so he couldn’t hear her. He also alleged that she sometimes called him early in the morning despite the fact that she should have known that he would be sleeping and that waking him would aggravate his disability.
18Even if the allegations were true it is not clear that they could lead to a finding of discrimination contrary to the Code. In addition, they relate to events that allegedly occurred more than one year before the Application was filed. The applicant was asked if there was a good faith explanation for the delay. He said that he didn’t know what to do until he eventually retained a lawyer in late 2011 or early 2012.
19Based on the information before me I am satisfied that there is no reasonable prospect that the applicant could show that the respondent was involved in the decision to deny him long term disability benefits or that any involvement it did have in the administration of his claim was discriminatory contrary to the Code.
20It appears that even if the allegations about the way the respondent communicated with the applicant were true and if they constituted discrimination contrary to the Code, they occurred more than one year before the Application was filed. The Tribunal has generally found that the fact that an applicant was not sure what to do about alleged discrimination does not constitute a good faith explanation for a delay: Lutz v. Toronto (City), 2009 HRTO 1137.
Health and Welfare benefits
21The applicant was entitled to health and welfare benefits, which covered things such as health care costs and prescription medications. The applicant’s entitlement to these benefits ended in July 2011.
22According to the respondent, entitlement to these benefits requires that a member has coverage. While working on a full-time basis, a member can “bank” this coverage so that it can be extended for a maximum of 18 months after the member stops working. This is what happened in this case. After that, the member can self-fund coverage by paying a premium every month for up to one year. After one year, the member can no longer self-fund coverage and coverage ends unless the member returns to work. In this case, the applicant self-funded coverage by paying a monthly premium for one year. His coverage then ended.
23The applicant did not dispute this information, but indicated that he feels that it is unfair and discriminatory to end benefits for a disabled member.
24I find there is no reasonable prospect that the applicant could successfully show that the respondent discriminated against the applicant in respect of its administration of his Health and Welfare benefit entitlement. It appears that the applicant received the entitlement he was entitled to under the plan. To the extent that the plan itself is discriminatory because it results in the termination of benefit entitlement to members who are disabled, there is no reasonable prospect that the applicant could successfully show that the respondent could be liable as it only administered the plan and did not design or contract for the coverage.
DECISION
25The Application is dismissed. The allegations concerning the applicant’s entitlement to short-term disability, long term disability, and Health and Welfare benefits are dismissed because there is no reasonable prospect that the applicant could successfully show that the respondent discriminated against the applicant in respect of his entitlement to these benefits.
26The allegations about the way the respondent communicated with the applicant occurred more than one year before the Application was filed and there is no good faith explanation for the delay in filing an Application in respect of them and those allegations are dismissed on that basis.
27It is not necessary to consider whether the Application should be dismissed because of section 34(11) of the Code.
Dated at Toronto, this 25th day of January, 2013.
“Signed by”
Brian Cook
Vice-chair