Hala Malek v. Workplace Safety and Insurance Board, 2013 HRTO 1470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hala Malek

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: August 29, 2013

Citation: 2013 HRTO 1470

Indexed as: Malek v. Workplace Safety and Insurance Board

APPEARANCES

Hala Malek, Applicant

Adel Malek, Representative

Workplace Safety and Insurance Board, Respondent

Eric Kupka, Counsel

Sears Canada Inc., Proposed Respondent

Stephanie White, Counsel

Carmen Sacco, Proposed Respondent

Ramon V. Andal, Counsel

Introduction

1The applicant alleged that the Workplace Safety and Insurance Board (“WSIB”) discriminated against her with respect to services because of place of origin, ethnic origin, race, family status and disability. She also alleges that the WSIB reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among other things, the applicant alleged that the WSIB treated her differently once it became aware of her place of origin. She also alleged that case managers for the WSIB made discriminatory comments because of her place of origin, family status and disability.

2By Case Assessment Direction (“CAD”) dated April 5, 2013, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The Tribunal directed the parties to address two issues in the summary hearing: (1) whether there is a reasonable prospect that the applicant will be able to prove a link between the WSIB’s alleged actions and the grounds listed in her Application, and (2) whether there is reasonable prospect that the applicant will be able to prove that the WSIB’s actions were intended as a reprisal because she claimed and enforced her human rights under the Code.

3Following this CAD, the applicant filed a Request for an Order During Proceedings in which she confirmed that she wished to withdraw her previous request to add Carmen Sacco as a respondent. In the summary hearing, the applicant confirmed that she was no longer seeking to add Mr. Sacco as a respondent. She indicated that she wished instead to add Sears Canada as a respondent. By CAD dated June 12, 2013, the Tribunal directed that this issue should be dealt with at the same time as the summary hearing.

4The summary hearing was held on July 19, 2013. The applicant’s representative as well as counsel for the WSIB and the proposed respondent made oral submissions at the hearing.

5For the reasons that follow, I find that the applicant’s Application must be dismissed as having no reasonable prospect of success under the Code.

whether there is no reasonable prospect of success

Summary Hearing Process

6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal has consistently held that it does not have the jurisdiction to address general allegations of unfairness unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is evidence or proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

8The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which can reasonably support the applicant’s belief that they have experienced discrimination.

9The question that the Tribunal must decide in a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment allegedly experienced by the applicant with personal characteristics that are protected under the Code. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated against. In such a situation, an application may be found to have no reasonable prospect of success.

10As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

Applicant’s Application

11The applicant received WSIB benefits following a work-related injury that occurred in November 2010. She claimed that the WSIB began to treat her differently and adversely when it became aware of her place of origin on May 24, 2011. The applicant claimed that she did not experience any unfair treatment by the WSIB before May 24, 2011. However, she claimed that various WSIB representatives made discriminatory comments and treated her more harshly after May 24, 2011.

12The applicant listed six examples of comments and actions she claimed were inappropriate, unfair, discriminatory and created a poisonous environment for her. The six examples were the following:

a. In or around June 2011, a WSIB nurse suggested that the applicant travel to Toronto for an assessment. The applicant explained that she felt that all necessary assessments had already been done or were available in Ottawa. She also told the nurse that she could not leave her children alone to travel to Toronto. In response, the nurse said “I knew that you travelled to Egypt for 4 weeks to visit your family there, and you left your kids alone, why don’t you go to Toronto for three weeks?!” The applicant claimed that after she complained, the nurse reprised against her. According to the applicant, although the nurse approved her physiotherapy treatment, he was responsible for a two month delay in her treatment. She claimed that this delay was a reprisal for claiming her human rights.

b. A memo dated May 26, 2011 in the applicant’s WSIB file referred to her taking holidays in Egypt. The memo stated “She [the applicant] has to explain further noting we have been advised she is taking holidays to Egypt in the past and has not brought her children.”

c. On May 24, 2011, a WSIB return to work specialist observed in a memo that the applicant had advised that she was hardly able to eat while she also complained of weight gain. The return to work specialist noted in the memo that she noticed that the applicant had gained weight. The applicant claimed that this same return to work specialist was much more cooperative and helpful prior to May 24, 2011.

d. A memo dated May 24, 2011 in the applicant’s file stated the following “She was able to sit three hours meeting today (sic) and do considerable amount of talking, but indicate (sic) her jaw injury prevents her from doing the sedentary work offered.”

e. In October 2011, the supervisor of the applicant’s case manager allegedly questioned her in an aggressive and sarcastic manner about why she said she could not go to Toronto because of her children. According to the Application:

When I told her I cannot leave my kids to go to Toronto, she kept asking about my family and kids in a sarcastic way; when I told her I cannot leave my kids alone, she asked sarcastically if they lead “normal lives” and “go to school”. Even she inquired if my “daughter is carrying on a normal life”.

The applicant claimed that, when she reminded the supervisor of her rights, the supervisor said “but I have the authority.” As a result of this incident, the applicant feared that WSIB employees would violate her daughter’s rights relating to her private medical information. She feared that the WSIB might influence her daughter’s doctors or involve her daughter’s school in the dispute, or circulate private and sensitive health information about her.

f. The applicant claimed that, in March 2012, the WSIB falsified the accident description in her file. A memo dated August 2011 describes the applicant’s condition as follows: “Accident history: caged door of freight elevator hit worker on top left side. Areas Accepted: general head injury, neck and jaw. Diagnosis: mild traumatic brain injury, acute disc displacement in it, Temporomandibular Joint (TMJ), C 3-7 disc bulges.” However, WSIB correspondence dated March 13, 2012 stated that the applicant had no “ongoing or permanent impairment”.

13In addition to these examples of the allegedly harassing and poisonous treatment she was subjected to, the applicant referred to other factors in her Application that in her view provide circumstantial evidence from which an inference of discrimination can be drawn. She referred to the termination of her WSIB benefits because she refused to travel to Toronto for an assessment when a note in her file mentions the possibility of cancelling the Toronto assessment. She also referred to the termination of her medical treatments against the recommendation of her family doctor and her other health providers. In addition, she referred to incidents of rudeness and mistreatment by WSIB staff. Finally, she claimed that WSIB management failed to investigate and respond to her complaints.

14The WSIB denied that it discriminated or reprised against the applicant.

Submissions

15At the summary hearing, I asked the applicant’s representative what evidence he would seek to advance at a hearing to connect the unfair treatment allegedly experienced by the applicant with the grounds of discrimination alleged in her Application. He replied that all of the incidents of alleged mistreatment or unfairness listed in the Application occurred after the WSIB became aware of the applicant’s place of origin. He argued that there were no incidents of mistreatment occurring before this time.

16Further, the applicant’s representative argued that it was unnecessary and inappropriate for the WSIB to have specifically noted in the applicant’s file that she travelled to Egypt. In his view, it would have been sufficient to note that the applicant had traveled out of the country. He also argued that it was inappropriate to record that the applicant had left her children. He argued that, by recording such information, the WSIB sought to portray the applicant as a negligent mother. According to the applicant’s representative, there should be a clear prohibition against including any unnecessary personal information in a claimant’s WSIB file. He submitted that, by recording such information, the WSIB risks creating a totalitarian system where personal information could be misused and inappropriately disclosed to other entities such as doctors, hospitals, and insurance companies.

17The WSIB submitted that the Application has no reasonable prospect of success. Specifically, it submitted that, even accepting the applicant’s description of the incidents and comments listed in her Application, there was no nexus between these incidents and the grounds of discrimination listed in the Application.

Findings

Allegations of Discrimination

18It is clear that the applicant has serious concerns about the recording of her personal information in her WSIB file. It is also clear that she believes that the recording of such information could lead to potential abuse or discrimination. However, for the reasons that follow, I find that her Application has no reasonable prospect of success in terms of making out an actual violation of the Code in this case.

19Even if I accept the applicant’s allegations as true, there is no reasonable prospect that the she will be able to advance evidence to establish, on a balance of probabilities, that any of the grounds of discrimination alleged in her Application were a factor in the way the WSIB treated her. It is clear from the parties’ submissions one of the main tensions between them arose around the time that the applicant refused to travel to Toronto for an assessment that was ordered by the WSIB. The WSIB considered it necessary for the applicant to attend the assessment in Toronto, but the applicant disagreed. In my view, there is no reasonable prospect that the applicant would be able to establish that the WSIB’s actions with respect to her file were linked to any ground listed in her Application rather than to the WSIB’s concern about perceived inconsistencies in her account of her injuries.

20For example, it is evident on the applicant’s own account of events that WSIB staff raised the fact that she had travelled to Egypt in the past without her children in order to dispute her claim that she could not travel to Toronto for the assessment it had ordered. While the applicant claimed that she could not travel to Toronto due to her childcare obligations, it is clear from the materials that the WSIB was concerned about the inconsistency between this claim and her previous travel without her children. In my view, the applicant has not pointed to any evidence that could reasonably show that the WSIB noted her travel to Egypt for a discriminatory purpose rather than to challenge what it saw as an inconsistency in relation to her claims and her previous actions.

21Similarly, in my view, there is no reasonable prospect that the applicant would be able to advance evidence that could reasonably show that the other comments allegedly made by the WSIB’s staff constitute discrimination under the Code. All of the comments listed in the Application could reasonably be expected to have been made to call attention to what the WSIB perceived to be inconsistencies between the applicant’s claims about her disability and her actions. Part of the WSIB’s statutory mandate is to investigate claims and test information provided by claimants to ensure that their benefits claims are valid. The applicant has not pointed to any evidence that can reasonably show that the comments about her weight gain, her ability to speak, or her children formed part of a pattern of discrimination under the Code.

22I also find that there is no reasonable prospect that the applicant would be able to show that the WSIB “falsified” the accident description in her file. The WSIB initially documented the applicant’s disability as “mild traumatic brain injury, acute disc displacement in it, Temporomandibular Joint (TMJ), C 3-7 disc bulges” in August 2011. By letter dated March 2012, the WSIB stated the applicant had no ongoing or permanent impairment. It is evident from the materials that the first account was a description of the applicant’s injury and the later account was a reference to the applicant’s prognosis as of March 2012. In my view, the applicant has pointed to no evidence that can reasonably show that the WSIB “falsified” the description of her disability or that it did so for discriminatory reasons.

23Finally, in my view, none of the other factors in the Application provide circumstantial evidence from which an inference of discrimination can be drawn in this case. The applicant has not pointed to any evidence which could allow the HRTO to infer, on a balance of probabilities, that the WSIB terminated her WSIB benefits for discriminatory reasons rather than the fact that she failed to comply with the WSIB’s direction that she attend an assessment in Toronto. While the applicant claims that the WSIB terminated her medical treatments against the recommendation of her family doctor and her other health providers, this alone does not provide evidence of discrimination or allow the HRTO to draw an inference of discrimination. At best, this factor would support an appeal of the WSIB’s decision rather than an Application under the Code. Incidents of rudeness and mistreatment may be inappropriate but, absent other indicia of discrimination, they do not amount to a violation of the Code.

24Although the applicant’s representative claimed otherwise, it appears that the applicant’s concerns relate more to what she views as a breach of her privacy rights due to the recording of what she viewed as unnecessary personal information. I note that, prior to filing her Application, the applicant filed a complaint with the Office of the Privacy Commissioner but the Office found it did not have jurisdiction to deal with her complaint. The Tribunal does not have jurisdiction to deal with violations of privacy rights unconnected to the Code. For all reasons set out above, I find that there is no reasonable prospect that the applicant will be able to advance sufficient direct or indirect evidence to establish a link between the respondents’ alleged actions and a ground protected under the Code.

Reprisal Allegation

25I also find that the applicant’s reprisal allegations stand no reasonable prospect of success.

26In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code. See Noble v. York University, 2010 HRTO 878.

27The applicant claims that the nurse initially assigned to her file reprised against her by delaying her treatment. The nurse did approve the applicant’s claim for treatment. However, according to the applicant, he failed to respond to inquiries with the result that her treatment was delayed for two months. The applicant submits that this was a reprisal because she complained about his comment that he knew that she had travelled to Egypt without her children in the past.

28In my view, there is no reasonable prospect that the applicant will be able to show that the nurse’s actions were taken with an intention to reprise against her for complaining about his comment. According to the applicant, the nurse “ignored” calls from the clinic providing treatment to book earlier appointments and did not provide the clinic the applicant’s phone number. In my view, there is no reasonable prospect that the applicant will be able to advance evidence that the nurse intentionally ignored the calls from the clinic and refused to provide the applicant’s phone number out of an intention to reprise against her. I find it significant that the nurse did in fact approve the applicant’s treatment. In my view, there is no reasonable prospect that the applicant will be able to establish that the two month delay in treatment was intended as a reprisal against her for complaining about the nurse’s reference to her travel to Egypt.

29In her Application, the applicant makes a general allegation that the more she complained about the WSIB’s actions, the more they reprised against her. However, she has failed to point to any direct or indirect evidence that can reasonably show that the WSIB took any of these actions with an intention to retaliate against her for claiming her rights under the Code.

Request to Add Sears Canada as a Respondent

30The applicant sought to add Sears Canada as a respondent to the Application. The applicant had previously sought to add Carmen Sacco as a respondent since he is the person who allegedly informed the WSIB that the applicant had travelled to Egypt to visit her family without her children in the past. At the hearing, the applicant confirmed that she was withdrawing her request to add Mr. Sacco as a respondent. However, she requested that Sears Canada be added as a respondent on the basis that Mr. Sacco was allegedly an agent of Sears Canada. The applicant claimed that, by relaying information to the WSIB about the applicant, Sears Canada was a party to the discrimination she claims to have experienced from the WSIB.

31Since I have found that the Application must be dismissed, I do not have to address whether Sears Canada should be added as a respondent to the Application. In any event, I find that the there are no allegations in the Application that could support a finding of a Code violation by Sears Canada. Even if I were to accept that Mr. Sacco, as an agent of Sears, informed the WSIB that the applicant had travelled to Egypt and also provided information from surveillance conducted on the applicant, this alone has no reasonable prospect of establishing a violation of the Code. As well, since I have found that the applicant’s claim that the WSIB treated her differently due to her place of origin has no reasonable prospect of success, her claim against Sears for providing information relied upon by the WSIB also stands no reasonable prospect of success.