HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jaime Castellanos
Applicant
-and-
Workplace Safety & Insurance Board, Steven Mahoney, David Marshall, Dave Whitney, Mike Curtis, Michelle Foley, Craig Pollock, and Robert Goodfellow
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Castellanos v. Workplace Safety & Insurance Board
APPEARANCES
Jaime Castellanos, Applicant
Self-represented
Workplace Safety & Insurance Board, Steven Mahoney, David Marshall, Dave Whitney, Mike Curtis, Michelle Foley, Craig Pollock, and Robert Goodfellow, Respondents
Agnes Wintersinger, Representative
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 with respect to services because of race, place of origin, citizenship, disability, family status, marital status and reprisal. At the hearing the applicant also clarified that he is alleging discrimination on the basis of age.
2On September 10, 2012, the Tribunal issued a Case Assessment Direction which directed at its own initiate that a half-day summary hearing be held to determine whether the Application had no reasonable prospect of success. The Tribunal also directed the applicant to make submissions on whether all or part of the Application was outside the Tribunal’s jurisdiction on the basis that it was not filed within one year of the last incident of alleged discrimination. The Tribunal also advised the respondents that they did not have to file a Response.
3The Tribunal allowed the applicant’s request to hold the summary hearing in person and retained the services of a Spanish-English Interpreter to assist the applicant in making in his oral submissions. The summary hearing was held on January 18, 2013 and further documents were received from the applicant on January 28, 2013.
The Allegations
4The applicant’s submissions and Application recounts events going back to November 2004 when he was injured at work and made a claim for workplace insurance benefits. The applicant alleges that he was reprised against when he made complaint about the company administering his LMR program to the Fair Practices Commission. The reprisal included that the applicant’s benefits were reduced in February 2010.
5During the hearing the applicant raised the issue that he was discriminated on the basis of age. He advised that he believed that a number of decisions were made against him on the basis of his age, such as being denied a knee surgery because he was not yet 65 years old. He could not give me a specific time period but stated that it was some time in 2005. He also claims that he was denied the opportunity to obtain a College degree on the basis of his age. The applicant explained that he was initially approved into a college program, however the applicant did not successfully pass the testing and he was not allowed into the program. He believes that he did in fact pass the testing and that his withdrawal from this program is a reprisal for complaining about the LMR administrators.
6During the course of the summary hearing I repeatedly asked how the respondents infringed his Code rights. The applicant could not particularize any comments made by any of the respondents in support of his Application. With respect to family status the applicant stated that the respondents are taking advantage of him because he is a single father which makes him very vulnerable economically.
7The applicant brought a number of documents to the hearing and I asked him to review them and tender any document that was in support of his Application. The applicant advised that he would need some time to review these documents so I gave him an additional week to deliver and file any documents that he relies on in support of his position.
8On January 28, 2013, the applicant filed copies of numerous correspondences with the respondents.
The Law
9Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 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.
10With respect to the reprisal allegation, in the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 3 and 4:
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.
Decision
11Having reviewed the submissions of the parties and the Application, I find that this Application has no reasonable prospect of success and should be dismissed for the reasons that follow.
12It is clear in this case that the applicant is taking the position that he was reprised against because he complained about the LMR administrators. Though, eventually the applicant did allege in numerous correspondence that the reduction in benefits and withdrawal from the college program was discriminatory this occurred after these decisions were made. Therefore, I am not satisfied that the applicant made a claim or attempted to enforce any rights under the Code prior to the reduction in benefits or withdrawal from the college program. Regardless, the applicant was unable to point to any evidence from which he could successfully establish a breach of the Code with respect to reprisal. As such, I find that there is no reasonable prospect that the applicant can establish that any of the respondents reprised against him for having sought to enforce his rights pursuant to the Code.
13With respect to the applicant’s allegations of age discrimination I note the section of the Workplace Safety and Insurance Act, states,
2.1 (1) A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it, that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code. 2005, c. 29, s. 7.
(2) Subsection (1) applies with necessary modifications to any predecessor to this Act or the regulations under it, or any decision or policy made under such an Act or regulation. 2005, c. 29, s. 7.
(3) Subsections (1) and (2) apply even if the facts in respect of which the requirement or distinction is made occurred before the day on which this section comes into force.
14As such, I am not satisfied that the applicant, in light of this section, has a reasonable prospect of establishing that the respondents discriminated against him on the basis of age.
15With respect to the other allegations of discrimination made by the applicant the Tribunal has given the applicant numerous opportunities to explain what evidence he relies on to establish a breach of the Code. The applicant was not able to suggest any evidence to support his assertion that he has been discriminated against on any Code ground. The applicant believes that he has been treated unfairly by the respondent, however, it is not the role of the Tribunal to enquire into issues of unfairness that are not linked to the Code. It is also not the role of this Tribunal to entertain appeals of decisions made pursuant to other statutes. In these circumstances, I find that the applicant has no reasonable prospect of establishing that any perceived unfairness is linked to a Code ground.
16Given my finding that the Application has no reasonable prospect of success, it is not necessary for me to deal with the issue of timeliness.
Order
17The Application is dismissed.
Dated at Toronto, this 22nd day of April, 2013.
”signed by”
Geneviève Debané
Vice-chair