HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Margaret Craig
Applicant
-and-
Sarnia Marriott Reservation Centre and Workplace Safety and Insurance Board Carol Kameka, Marie Frew, John Johnson, Marianne Gibbs, Linda Ryan
Respondents
DECISION
Adjudicator: Leslie Reaume
Indexed as: Craig v. Sarnia Marriott Reservation Centre
APPEARANCES
Margaret Craig, Applicant
Self-represented
Workplace Safety and Insurance Board, Respondent
Greg Bullen, Counsel
Sarnia Marriott Reservation Centre and Carol Kameka, Marie Frew, John Johnson, Marianne Gibbs, Linda Ryan, Respondents
Jonathan Dye, Counsel
1This Application alleges discrimination on the basis of disability and gender identity in the context of the applicant’s employment.
2On March 20, 2013, the Tribunal issued a Notice of Intent to Defer (“NOID”) and sought written submissions from the Applicant on this issue. Following receipt of the applicant’s submissions the Tribunal issued a Case Assessment Direction (“CAD”) dated May 17, 2013, directing that a hearing by teleconference would be held to address the following issues:
whether the Application should be dismissed, in whole or in part, on the basis of delay;
whether the doctrine of adjudicative immunity may apply to the respondent Workplace Safety and Insurance Tribunal (“WSIB”); and
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 respondents need not file a Response at this time.
3The decision followings the hearing by teleconference that was held on September 10, 2013. The basic facts of this case are not in dispute. The applicant was injured at work on January 16, 2010. She received initial benefits from the WSIB but was denied ongoing entitlement to benefits. The applicant continues to appeal that decision through the Workplace Safety and Insurance Appeals Tribunal.
4The applicant’s employment was terminated on February 22, 2011. The applicant attributes the termination to discrimination on the basis of her disability and her identity as an older woman.
5Since February, 2011, the applicant has taken numerous steps to advance her allegation that she was improperly terminated as a result of discrimination. In addition to the various steps she has taken with WSIB and WSIAT, the applicant filed a successful claim with the Ministry of Labour. She has also complained to the Ministry of Health, her local MPP, and the president of Marriott Hotels. In every case, she raised her concern that she was improperly terminated because of discrimination.
6The CAD of May 17, 2013 referenced the timeliness provision of the Code and the Decision of Miller v. Prudential Real Estate, 2009 HRTO 1241 which deals with the issue of “good faith”:
Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:
(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.
7The applicant filed this Application with the Tribunal on January 17, 2013, almost two years after her termination. The applicant argued that the delay in filing her Application is attributable in part to her ongoing injury and need for medical attention. The applicant also explained that she was representing herself and unaware of how best to pursue her rights. The applicant indicated that she made contact with the Tribunal at some point in February or early March of 2012 and that it took some time for her to fill out the Application. It was not until January, 2013 that the applicant filed her Application with the Tribunal.
8The applicant never had any doubt that her termination was based on her disability. Immediately after her termination in February 2011, she sought out various avenues of redress and complained to a number of individuals and institutions that she had experienced discrimination. Even if she could demonstrate that she was unaware of the Tribunal’s mandate to deal with allegations of workplace discrimination until a year after her termination, she waited an additional 11 months to file. In all of the circumstances, it is my view that the applicant is unable to establish a good faith explanation for failing to file her Application within the one-year limitation period under the Code which would have expired one year after her termination. Accordingly, that portion of the Application which involves the applicant’s former employer and the individual respondents who are employees of the same employer, is dismissed.
9With respect to the allegations against the WSIB, it is clear from the narrative of the Application, the oral submissions of the applicant, and the submissions of counsel for the WSIB, that the applicant is dissatisfied with the decisions rendered in relation to her ongoing eligibility for benefits. However, this Tribunal is not a mechanism for the appeal of statutory decisions that relate to disability benefits. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, the Tribunal stated:
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. 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. In addition, under s. 45.1 of the Code, the Tribunal cannot reevaluate the substantive or procedural correctness of a decision under another statutory scheme.
10Given that there is no other basis for pursuing allegations of discrimination against the respondent WSIB except the allegation that the decision to deny benefits is incorrect, that portion of the Application is also dismissed.
11Accordingly, the Application is dismissed
Dated at Toronto, this 6th day of December, 2013.
“Signed By”
Leslie Reaume
Vice-chair