Hale v. Workplace Safety Insurance Board, 2013 HRTO 2121

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Hale

Applicant

-and-

Workplace Safety Insurance Board, Martin Waller, Michele Simmonds-Belanger and Pauline Hoskins

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: December 27, 2013

Citation: 2013 HRTO 2121

Indexed as: Hale v. Workplace Safety Insurance Board

APPEARANCES

Steven Hale, Applicant

Self-represented

Workplace Safety Insurance Board, Martin Waller, Michele Simmonds-Belanger and Pauline Hoskins, Respondents

Greg Bullen, Counsel

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 with respect to goods, services and facilities because of disability and reprisal.

background

2The applicant receives benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”), as a result of a workplace injury to his back in 1986 and a recurrence of this injury at work in 2006. The applicant underwent surgery on his back in January 2012 because of deterioration in his condition. The parties dispute the level of deterioration incurred by the applicant, but there seems to be no dispute that the applicant was left with significant mobility restrictions and requires a wheelchair and/or a scooter to move because, at best, he has limited ability to stand and walk.

3The applicant states in the Application that he kept the organizational respondent (the “WSIB”) informed of his circumstances, and of the accommodations and home renovations he required as a result of his restrictions. The applicant states that following his surgery his letters and calls to the WSIB and individual respondents (all of whom are or were WSIB employees involved in the management of the applicant’s WSIB file) were ignored. The applicant states that he was eventually able to contact the individual respondent, Ms. Hoskins, who informed him of the amount paid by the WSIB for his surgery and stated that he should be happy that WSIB covered this substantial expense.

4The applicant states that he was unable to return to his own residence following his surgery because it required extensive renovations to make it accessible to him. The applicant decided to move into the walkout basement of his wife’s home, rather than being placed in a nursing home. The applicant states that the WSIB refused to pay for any of his personal daily care needs. The applicant states that the individual respondent, Ms. Simmonds-Belanger, attended at the applicant’s home with a contractor from Aecon Construction to review the necessary modifications to his living space. The applicant states that he was presented with forms to complete and Ms. Simmonds-Belanger stated that he could review them at his leisure and she would retrieve them upon her next visit. Thereafter, the applicant states that he waited for news regarding the renovations, but heard nothing. He therefore attempted to contact the WSIB, but was unable to make contact with either Ms. Hoskins or Ms. Simmonds- Belanger. The applicant states that he called the Fair Practices Commission for assistance, but was informed that it could not assist. The applicant called the individual respondent, Mr. Waller, Ms. Hoskins’ supervisor at the WSIB, who did not return his call. The applicant therefore called the Ontario Ombudsman for assistance. The applicant learned that no action had been taken with respect to renovations of his living space as he had not signed and returned the documents left for him to review, which he understood Ms. Simmonds-Belanger would retrieve when she next visited. The applicant sent the documents to the WSIB by fax on May 8, 2012.

5The applicant participated in a conference call with Ms. Simmonds-Belanger and Ms. Hoskins, regarding his home renovations. The applicant states that during this conference call he was chastised for contacting the Fair Practices Commission and the Ombudsman. According the applicant, Ms. Simmonds-Belanger questioned him about his place of residence prior to the surgery and why he had not returned there, although the respondents were well aware of why he could not live there safely. The applicant states that when he raised the difficulties posed by his current living environment, Ms. Simmonds-Belanger became abusive, castigating him for seeking help from outside agencies and for challenging the WSIB’s decisions. According to the applicant, Ms. Simmonds-Belanger was uninterested in his predicament and asked him why he could not “just go home”. Shortly thereafter, Ms. Simmonds-Belanger hung up the phone. At a later date, the individual respondent, Mr. Waller, spoke to the applicant and again asked him why he could not return to his pre-surgery residence and why he needed help with his daily care, which, again, was information in the WSIB’s possession.

6The respondents deny any improper conduct in the management of the applicant’s claim with the WSIB. The respondents state that delays in the modifications to the respondent’s residence were caused by the applicant’s own delay in completing the necessary documents and by his insistence on major renovations, outside the scope of his entitlements under WSIB policy. The respondents assert that the applicant’s allegations do not in any event disclose a violation of the Code.

Summary Hearing

7By Case Assessment Direction (“CAD”) dated March 25, 2013, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal noted that 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. The CAD highlighted the Tribunal’s decision in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, where the Tribunal held as follows, at paragraph 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.

8The Tribunal held the summary hearing on October 4, 2013, by teleconference.

Analysis and Decision

9Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

10In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments with respect to summary hearings at paragraphs 8-9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

11The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of 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 one or more of these personal characteristics was a factor in the treatment the applicant experienced. At 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 are not defined as discrimination in the legal sense, can cause significant financial and emotional damage.

12At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true, unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The 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 unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

13The Tribunal has noted that the Code is concerned with substantive discrimination and does not aim to eliminate all differences in treatment. Rather, the purpose of the Code is to address discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code. See C.M. v. York Region District School Board, 2010 HRTO 1494 at paragraph 4. Not all actions that may have an impact on people identified by a prohibited ground under the Code constitute substantive discrimination.

14A reprisal claim, under section 8 of the Code, is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant because he or she asserted his or her Code rights. The Tribunal set out the elements for a reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

15In my view, the applicant failed to establish that the Application has a reasonable prospect of success.

16Taking the reprisal claim first, the applicant submitted that the delays and abusive behaviour he experienced at the hands of the respondents were in retaliation for questioning their decisions and for reaching out to the Fair Practices Commission and the Ontario Ombudsman for assistance. As noted in Noble, above, a reprisal under the Code occurs only when an applicant meets with retaliatory action or a threat of retaliation in response to an attempt to enforce his or her Code rights. In this case, the applicant alleges the respondents retaliated against him for attempting to enforce his rights under the WSIA, not the Code, which cannot amount to a reprisal under section 8. Consequently, this allegation has no reasonable prospect of success.

17With respect to the second allegation alleging discrimination with respect to goods, services and facilities because of disability, the applicant pointed to the fact that some of the medical practitioners treating him had informed him that, in their experience, the WSIB treated him differently than other recipients in terms of the abusive behaviour, unnecessary questioning, and retaliatory behaviour. Accordingly, the applicant pointed to evidence that he was treated differently than other recipients of benefits under the WSIA. He did not, however, point to any evidence that he has or has reasonably available to him that could link this differential treatment to his disability. The behaviour the applicant attributed to the respondents would be, assuming the allegations to be true, unprofessional and abusive. As noted above, the Tribunal has no jurisdiction to remedy unfair behaviour, including unprofessional and abusive conduct, unless there is evidence linking it to a Code ground. Accordingly, I asked the applicant several times during the summary hearing to indicate how this alleged behaviour is related to the prohibited ground of disability under the Code. The applicant stated that if he was not disabled, the respondents would not have informed him of the cost of his surgery or questioned him regarding his residence. The applicant also stated that the respondents verbally abused him because of his disability. The applicant pointed to no evidence to support these allegations, which in my view amount to bare assertions. The fact that the applicant came into contact with the respondents because of a disability caused by workplace injuries is not evidence that their alleged conduct was related to his disability. In these circumstances, the applicant’s allegations of discrimination because of disability have no reasonable prospect of success.

18The applicant also pointed to evidence that the respondents did not provide him with his WSIB file in a timely manner. The applicant also stated that after he filed this Application the respondents did not renew his physiotherapy promptly, did not respondent to his psychologist’s calls and would not commit to paying for his treatment. The applicant asserted that this conduct amounted to a reprisal for his complaints about Ms. Hoskins and Ms. Simmonds-Belanger. It appears that these allegations also relate to the applicant’s pursuit of his rights under the WSIA, not the Code, and therefore cannot amount to a reprisal under section 8 of the Code. In any event, none of these allegations are set out in the Application and the applicant did not seek to add them to the Application. Consequently, these allegations are outside the scope of the Application and were not properly before me for the purposes of the summary hearing.

19The Application is dismissed.