Markovik v. Workplace Safety and Insurance Board, 2014 HRTO 1065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Slave Markovik

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Sheri Price

Date: July 21, 2014

Citation: 2014 HRTO 1065

Indexed as: Markovik v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Slave Markovik, Applicant

Self-represented

1This is an Application, filed pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging that the respondent, the Workplace Safety and Insurance Board ("WSIB"), discriminated against the applicant because of disability with respect to services.

2In the Application, the applicant claims that the WSIB infringed his rights under the Code when it decided, through a case manager's September 13, 2011 decision and an Appeal Resolution Officer's December 31, 2012 decision, to deny the applicant certain Loss of Earnings benefits beyond August 30, 2011. The applicant also complains about the WSIB's decision about his entitlement to benefits for non-economic losses arising out of a workplace injury, and the rate used to calculate the applicant's WSIB benefits. In addition to challenging the substance of the WSIB's decisions, the applicant contends that the WSIB unreasonably delayed dealing with his claim for benefits and that this constituted a violation of his human rights.

3In Interim Decision 2014 HRTO 750, dated May 26, 2014, the Tribunal noted that there was an issue with respect to whether the Application is outside the Tribunal's jurisdiction because it fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The Tribunal directed the applicant to file written submissions addressing this issue, and the applicant has done so. The Tribunal stated in its Interim Decision that it would dismiss the Application, if it found, after considering the applicant's submissions, that it is plain and obvious that the Application does not raise an issue that is within the Tribunal's jurisdiction to decide.

4As stated in the Tribunal's May 26, 2014 Interim Decision, the Tribunal does not have a general power to deal with claims of mistreatment or abuse that are not based on prohibited grounds under the Code. The Tribunal's jurisdiction to hear and determine human rights Applications derives from the Code, which, among other things, prohibits discrimination with respect to services on the basis of the grounds set out in the Code.

5Consistent with this, the Tribunal has held that it does not have the jurisdiction to deal with Applications that allege merely that a decision relating to government or private disability benefits has been incorrectly made, because such Applications do not allege discrimination within the meaning of the Code (i.e. differential and disadvantageous treatment "because of" a prohibited ground, such as disability). See, Barron v. Workplace Safety and Insurance Board, 2011 HRTO 2168; Matthews v. Chrysler Canada Inc., 2011 HRTO 1939; and Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115.

6In order for an Application to raise an issue that is within the Tribunal's jurisdiction to decide, there must be something more than an assertion that the applicant has been improperly denied disability benefits, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds. (Seberras, above, at para. 22)

7In his Application and his other written materials, the applicant certainly asserts that the WSIB discriminated against him because of disability. He also repeatedly states that the WSIB had "discriminatory motives" and that it used "discriminatory methods" in dealing with the applicant's claim for WSIB benefits. However, a careful review of the applicant's allegations do not identify any specific acts of discrimination allegedly committed by the respondent WSIB. Rather, in his Application and in his written submissions, the applicant complains that the WSIB's decision to cut off and/or deny the applicant's claim for certain Loss of Earning benefits and non-economic loss benefits was unfair, wrong, and contrary to the Workplace Safety and Insurance Act. The applicant also alleges that a physician's report on which the WSIB's decision(s) were based was "false"; that the applicant was not referred to or given an opportunity to select a "neutral" physician for a medical assessment; that the WSIB did not give the applicant an opportunity to respond to the "false" physician's report; that the WSIB "ignored" all of the applicant's written and oral submissions; that the WSIB failed to give the applicant an opportunity to make oral submissions before rendering certain decisions; and that the WSIB gave the applicant wrong information about how and to whom he could appeal the WSIB's decisions, among other things.

8None of the applicant's allegations is an allegation that the WSIB discriminated against the applicant because of his disability, within the meaning of the Code. Accordingly, the allegations are not within the Tribunal's jurisdiction. The Tribunal does not have jurisdiction to deal with a claim that the WSIB misapplied the legislation and/or policies governing the applicant's entitlement to WSIB benefits or to correct the WSIB's decisions on the basis that they were wrong or procedurally unfair. The applicant may be able to pursue those issues through the appeal mechanisms established under the Workplace Safety and Insurance Act. However, he cannot pursue them before this Tribunal as it has no jurisdiction to deal with them.

9In sum, it is plain and obvious that the Application regarding the WSIB's decisions regarding the applicant's entitlement to WSIB benefits and/or its handling of the applicant's WSIB claim fails to raise an issue that is within the Tribunal's jurisdiction to decide. Accordingly, the Application is dismissed.

10Before concluding, I wish to address the applicant's submission that the Tribunal decided, in its May 26, 2014 Interim Decision, that it did have jurisdiction over the Application and that any issue with respect to whether the Tribunal lacks jurisdiction over the Application is therefore "res judicata" and cannot be revisited by the Tribunal.

11Contrary to the position taken by the applicant, the Tribunal did not decide in Interim Decision 2014 HRTO 750 that the Application did fall within its jurisdiction. Rather, the Tribunal found that it was not plain and obvious that the Application fell outside its jurisdiction because of the doctrine of judicial immunity. The Tribunal also found that it was not plain and obvious that the Application did not relate to "services". However, deciding that the Application was not outside the Tribunal's jurisdiction for these reasons is not the same as deciding that the Application was definitively within the Tribunal's jurisdiction or that there were no other jurisdictional issues with respect to the Application. Indeed, the Tribunal's May 2014 Interim Decision very clearly identified that there continued to be a question regarding whether the Application was outside the Tribunal's jurisdiction, because it failed to identify an act of discrimination, within the meaning of the Code, allegedly committed by the respondent. This is the jurisdictional issue that is addressed in this decision, and, ultimately, the reason for the dismissal of the Application.

12Finally, at an earlier stage in this proceeding, the applicant filed a Request for Interim Remedy, pursuant to Rule 23 of the Rules of Procedure. Obviously, insofar as the Application does not raise an issue within the Tribunal's jurisdiction, the Tribunal has no power to order the respondent to provide the applicant with an interim remedy.

ORDER

13The Application is dismissed.