Fiordimondo v. Workplace Safety and Insurance Board, 2013 HRTO 2086

Human Rights Tribunal of Ontario

Between:

Richard Fiordimondo, Applicant

-and-

Workplace Safety and Insurance Board, Respondent

Decision

Adjudicator: Jo-Anne Pickel Date: December 17, 2013 Citation: 2013 HRTO 2086 Indexed as: Fiordimondo v. Workplace Safety and Insurance Board

Appearances

Richard Fiordimondo, Applicant Anna Del Curto, Representative

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

Introduction

1By Application dated January 14, 2013, the applicant claimed that the respondent discriminated against him because of disability and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was injured at work and received Workplace Safety and Insurance Board (“WSIB”) benefits. In his Application, he described a number of actions by the WSIB and other entities that he claimed amounted to discrimination and reprisal under the Code.

2By Case Assessment Direction (“CAD”) dated May 14, 2013, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed as having no reasonable prospect of success. The Tribunal noted in the CAD that it appeared that the Application primarily alleged that that the WSIB had misapplied the rules governing its benefit scheme. The Tribunal directed the parties’ attention to case law in which it has held that an allegation that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation.

3It is clear that the applicant is dissatisfied with the WSIB regime in general and various actions and/or inactions by the WSIB and other entities. However, for the reasons set out below, I find that there is no reasonable prospect that he will be able to establish a link between the respondent’s actions or inactions and a ground of discrimination under the Code. As a result, the Application must be dismissed as having no reasonable prospect of success under the Code.

Reasonable Prospect of success

Summary Hearing Process

4The 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 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.

5The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27, and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10.

6Discrimination 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 proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

7The 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.

8However, 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 tend to support the applicant’s belief that he or she has experienced discrimination or reprisal under the Code.

9The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the application or the Code’s reprisal provision. 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 or reprised against. In such a situation, applications 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 (“Forde”), 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 reprisal or discrimination on the basis of one of the grounds alleged in the Code.

11Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

12The applicant began receiving benefits from the WSIB after he was injured at work in August 2011. In his Application, he set out various incidents that, in his view, support his allegations of discrimination because of disability and reprisal under the Code. Specifically, in his Application, he set out the following incidents:

a. The WSIB told the applicant that his benefits would be cut off because his employer had brought evidence that his injury was not a workplace injury. The applicant’s benefits were eventually reinstated when he brought evidence to show that his injury was work-related. The applicant claimed that he had to go one month without receiving benefits due to the above.

b. The WSIB advised his physiotherapist that his benefits were being cut. The applicant eventually resolved the situation with his case manager and was told that the issue likely arose when his case was transferred to a different case manager.

c. A nurse at the WSIB refused to approve the use of a brace unless prescribed by a specialist. This meant that the applicant had to use crutches, which he claimed aggravated his injury.

d. The applicant appeared to allege that a case manager determined that he was able to return to work on full duties despite a contrary opinion by his doctor.

e. The applicant requested an interpreter for a medical assessment at a department within the University Health Network (“UHN”) that focuses on the delivery of health care services to injured workers. The respondent told him an interpreter would be provided on site. No interpreter was provided. An interpreter was eventually provided after the applicant made a formal written request to his WSIB case manager.

f. The applicant makes a variety of allegations that professionals who treated him at the UHN department treated him adversely because he was receiving WSIB benefits.

g. The WSIB allegedly required the applicant to follow a more intensive rehabilitation program in order for him to return to work quickly.

h. The applicant’s WSIB case manager allegedly denied his request to attend a physiotherapist of his choice. The WSIB eventually approved his request but approved fewer weeks than had been prescribed by a specialist. The WSIB reduced the applicant’s benefits when he failed to attend a program required by the WSIB because he preferred to continue with his own physiotherapist.

i. The WSIB allegedly deducted Canadian Pension Plan contributions from the applicant’s benefits even though he had not requested this option when informed about it.

j. The applicant claimed the interpreter assigned to interpret for him during his psychological and vocational tests did not provide accurate interpretation. When the applicant complained to the WSIB, his case manager told him that the WSIB contracts with an external interpretation service and cannot be responsible for the quality of the interpretation.

k. The respondent ultimately approved a work transition plan for the applicant that involved attending English courses at a language school. The applicant claims that students in a conversation class at the school made comments about the mafia and other comments he considered discriminatory. When he informed the WSIB about these comments, the applicant felt that the WSIB Work Transition Specialist did not take the situation seriously. However, the WSIB did arrange for the applicant to be taught by one teacher and to minimize his contact with other students. In his Application, the applicant acknowledged that the situation improved after this change was made.

l. The applicant claimed his WSIB benefits were improperly eliminated due his absences from the school. He claimed this action was improper because his absences were medically substantiated.

m. The applicant claimed that the WSIB mistakenly approved his enrollment in a social service worker program even though he does not meet the educational prerequisite for the program. The applicant stated that the WSIB promised to address the situation but had not done so by the time he filed his Application.

13Overall, the applicant claimed that the WSIB discriminated against him by unreasonably denying him benefits and opportunities. He claimed that it was discriminatory for the WSIB to force workers to comply with requirements set by the WSIB and to threaten that their benefits would be eliminated if they failed to comply with these requirements.

Analysis

14Even assuming all the allegations in the Application to be true, I find that it has no reasonable prospect of success. In my view, the applicant’s allegations cannot reasonably be considered to amount to a violation of the Code by the WSIB.

15The only connection between the WSIB’s actions and the applicant’s disability is the fact that he receives WSIB benefits because he is an injured worker. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5, the Tribunal held that it 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 in Seberras that an application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation has no reasonable prospect of success.

16I find that the allegations in subparagraphs 12 a.-d., g.-i., and l.–m. are allegations that the WSIB acted unreasonably or incorrectly in applying its governing legislation, regulations or policies. As held in Seberras, the Tribunal does not have the power to review such decisions and therefore these allegations stand no reasonable prospect of success.

17There is no reasonable prospect that the applicant will be able to show a breach of the Code by the WSIB with respect to his allegations against the professionals who treated him at UHN and the school where he attended English classes (subparagraphs 12 f. and k. above). These allegations are allegations against separate entities. The applicant provided no information that could reasonably make the WSIB responsible for the actions of these entities.

18At the summary hearing, the applicant claimed that the WSIB discriminated against him because of ethnic origin when it failed to take seriously his complaints against the school. In my view, there is no reasonable prospect that this allegation could succeed based on the fact, set out in the Application, that the WSIB made arrangements to address the issues raised by the applicant in his complaint. As well, in his Application, the applicant himself acknowledged that the situation eventually improved after the arrangements made by the WSIB.

19I find that the applicant’s allegations about the WSIB’s failure to provide timely or accurate interpretation services in subparagraphs 12 e. and j. also stand no reasonable prospect of success. Although the applicant alleged disability-related discrimination with respect to these incidents in his Application, he sought to characterize these allegations at the summary hearing as being allegations of discrimination because of ethnic origin. As noted above, in one instance interpretation services were provided by the WSIB after the applicant filed a formal written request. In the other situation, the WSIB contracted for interpretation by a third party interpreter but the applicant was not satisfied with the quality of the interpretation by this interpreter. The applicant has not provided any evidence from which the Tribunal could reasonably find that the delay or inadequacy with respect to the interpretation services in this case amounted to a violation of the Code.

20Finally, I find that the applicant’s reprisal allegations stand no reasonable prospect of success. Section 8 of the Code provides specific protections against reprisal for claiming and enforcing one’s rights under the Code. The applicant did not provide any indication that he sought to claim and enforce his rights under the Code prior to the incidents in question. Therefore, there is no basis on which to conclude that these incidents constitute a reprisal under the Code.

Order

21For the reasons set out above, I find that the Application must be dismissed as having no reasonable prospect of success under the Code.