Martin v. Workplace Safety and Insurance Board, 2014 HRTO 283

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Martin

Applicant

-and-

Workplace Safety and Insurance Board and Hotel Dieu Hospital

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 4, 2014

Citation: 2014 HRTO 283

Indexed as: Martin v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Daniel Martin, Applicant

Self-represented

Introduction

1In his Application, the applicant alleged that the respondents discriminated against him because of disability and age contrary to the Human Rights Code, R.S.O. c. h. 19, as amended (the “Code”).

2In the Application, the applicant claimed that the Workplace Safety and Insurance Board (WSIB”) discriminated against him when his claim for WSIB benefits was denied. The applicant claimed that a WSIB case manager told him that his slow healing was due to his age and diabetes when in fact the applicant claims that his slow healing is due to the fact that the WSIB would not authorize surgery on his shoulder.

3The applicant’s only reference to the Hotel Dieu Hospital in the Application is his statement that he saw a specialist at the Hospital who recommended surgery for his shoulder. A WSIB case manager subsequently decided that surgery was not appropriate in his case.

4On January 28, 2014, the Tribunal issued a Notice of Intent to Dismiss Application (“NOID”) because some or all of the Application appeared to be outside of the Tribunal’s jurisdiction. Specifically, the NOID noted that the Tribunal may have no jurisdiction over the WSIB on the basis that the Tribunal has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision making because of the doctrine of judicial or adjudicative immunity. The NOID also indicated that the narrative setting out the incidents of alleged discrimination in the Application failed to identify any specific acts of discrimination committed by Hotel Dieu Hospital.

5The Tribunal directed the applicant in the NOID to provide written submissions regarding these jurisdictional issues within 30 days. The applicant filed submissions on February 15, 2014 opposing dismissal.

ANALYSIS AND DECISION

6At this preliminary stage in the proceeding, the Tribunal will dismiss an application only if it is “plain and obvious” that it is outside the Tribunal’s jurisdiction. I find that it is plain and obvious that the applicant’s claim against Hotel Dieu Hospital is outside the Tribunal’s jurisdiction as the Application does not identify any acts of alleged discrimination committed by Hotel Dieu Hospital. The Applicant also does not identify any acts or grounds of alleged discrimination in his written submissions filed with the Tribunal in response to the NOID.

7I do not find that it is plain and obvious that the applicant’s claim against the WSIB is covered by the doctrine of adjudicative immunity. The Tribunal has held that the doctrine of adjudicative immunity applies to neutral third parties deciding a dispute between others. See, for example, Taucar v. University of Western Ontario, 2013 HRTO 597 at paras. 37-48 and 62 and Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at paras. 5 and 17. I do not find it plain and obvious that the WSIB was acting as a neutral third party deciding a dispute between others in this case.

Summary Hearing

8In my view, it is appropriate that a summary a hearing be held by teleconference to address the following issues: (1) whether the doctrine of adjudicative immunity may apply to the respondent Workplace Safety and Insurance Board (“WSIB”) in the circumstances of this case; (2) whether the Application is outside the Tribunal’s jurisdiction on the basis that it is alleging that the WSIB case manager misapplied its governing legislation, policies, rules and/or process and/or misinterpreted medical documentation; and (3) 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 respondent WSIB need not file a Response at this time.

9First, the Application against the WSIB may be outside of the Tribunal’s jurisdiction on the basis of adjudicative immunity. The Tribunal has held that it has no jurisdiction to hear applications against quasi-judicial decision makers based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity. See Taucar v. University of Western Ontario, 2013 HRTO 597 at paras. 37-48 and 62, Cartier v. Nairn, 2009 HRTO 2208 and Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180. At the teleconference hearing, the parties shall make submissions on whether the Application against the WSIB is outside the Tribunal’s jurisdiction for this reason. The parties may wish to address the analysis in the above cases as well as Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at paras. 5 and 17 at the hearing.

10Second, the Tribunal does not have the jurisdiction to review the decisions under benefit programs, including disability benefit programs, to determine whether they are correct under the legislation, regulations and policies governing the program. In Seberras, the Tribunal held:

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.

11It appears that the Application primarily alleges a misapplication of the WSIB’s rules and/or a misinterpretation of medical documentation by the WSIB case manager.

12Third, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities.

13Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

14Details 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.

15Having reviewed the Application, it appears that the applicant’s allegations of a Code violation may not stand a reasonable prospect of success in this case. No witnesses shall give evidence in the summary hearing. However, the applicant should be prepared to provide information as to the alleged violation of the Code by the WSIB in this case.

16The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website: www.hrto.ca.

Order and direction

17For the reasons set out above, the Application against the respondent Hotel Dieu Hospital is dismissed as outside the Tribunal’s jurisdiction.

18The Tribunal’s Registrar shall schedule a half-day hearing by teleconference into the Application against the WSIB. The parties shall address the two issues identified in para. 8 above in the summary hearing.

19A copy of the Application is delivered to the WSIB with this Interim Decision. The WSIB must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered.

20A Notice of Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

21I am not seized.