Boris Shvarstuhk v. Workplace Safety and Insurance Board, 2014 HRTO 500

Human Rights Tribunal of Ontario

B E T W E E N:

Boris Shvarstuhk

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: April 9, 2014

Citation: 2014 HRTO 500

Indexed as: Shvarstuhk v. Workplace Safety and Insurance Board

APPEARANCES

Boris Shvarstuhk, Applicant

Self-represented

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This Decision addresses the respondent's request in its Response that some or all of the allegations in the Application should be dismissed because:

a. the allegations are untimely (section 34(1) of the Code); and

b. the issues have already been adjudicated and appropriately dealt with in another proceeding (section 45.1 of the Code); and

3A half day telephone hearing took place with respect to these issues on February 27, 2014. Both parties provided documents and made oral submissions.

background

4The applicant was injured on the job in 2003. In May 2010 he signed a Labour Market Re-entry (LMR) plan with the respondent to retrain as a travel counsellor rather than for his preferred occupation as a health and safety inspector, which would have required the applicant to obtain a university education that the respondent would not fund due to the applicant's age. The applicant advised the respondent that he wished to appeal this decision, but later advised he did not wish to appeal, but did so to preserve the time limit to do so.

5Prior to retraining, the applicant reported back pain, which was considered by the respondent to be non-compensable. An ergonomic assessment was done in October 2010 and recommendations were made for equipment to assist him with his back pain. The respondent denied these because the respondent does not pay for ergonomic equipment for a non-compensable injury or pay for equipment for a worker's home unless the worker's non-economic loss is greater than 60%. The applicant's was 36%.

6When the applicant completed his retraining in August 2012, his benefits were adjusted. The respondent began paying him the difference between his pre-injury earnings of $33.00 per hour and the $11.77 the respondent felt he could earn as a travel counsellor.

7The applicant appealed three decisions to WSIB:

a. The denial of his first LMR plan to retrain as a health and safety inspector, and the chosen occupation of travel agent;

b. The denial of ergonomic equipment; and

c. The partial loss of earnings lock in and the amount.

8The applicant was represented on his appeals with respect to the ergonomic equipment and the calculation of benefits. On March 28, 2013 his appeals were denied and he did not appeal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT").

9The applicant commenced this Application on June 3, 2013 alleging:

a. discrimination based on age by being denied the opportunity to retrain as a health and safety inspector which necessitated he attend university;

b. discrimination based on disability because the respondent denied him ergonomic equipment for his back pain; and

c. that the respondent failed to provide him with details of his wage loss calculation.

analysis and decision

Delay

10Section 34 provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last in a series of incidents) of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

11In order to establish good faith, there must be more than an absence of bad faith: see Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

Discrimination Based On Age

12The applicant alleges discrimination based on age because of the respondent's choice of LMR plan for the applicant, which did not give him the opportunity to attend university. The applicant signed the LMR plan in May 2010, more than three years prior to commencing this Application. As a result, the claim is untimely, unless the applicant can establish a series of incidents or good faith.

13The applicant ultimately agreed with the respondent that he knew in 2010 that his age was a factor in the respondent's choice of LMR plan. He agreed he was told that WSIB could not justify allowing him to pursue university because he would not have many years left in the workforce by the time he completed it. The applicant filed an appeal of the WSIB decision but chose not to pursue the appeal.

14The applicant's argument that he only realized in 2012 it was more cost effective to send him to university and that, in his view, age was the respondent's only reason for the choice of LMR plan, does not change the fact that the applicant knew his age was a factor in 2010. His allegations with respect to discrimination on the basis of age are untimely.

15The applicant gave no evidence to show why his delay was in good faith and has not met the fairly high onus the Tribunal requires to show that the delay in the filing of an application was incurred in good faith pursuant to section 34(2) of the Code.

16The only way therefore that the Tribunal can find that the applicant's allegations are not untimely is if he can show that that there was a series of incidents, with the last one occurring within a year prior to the commencement of the Application, pursuant to s. 34(1)(b).

17In Garrie v. Janus Joan Inc., 2012 HRTO 1955 ("Garrie"), the Tribunal set out the factors to be considered in establishing whether there was a series of incidents, which include the following:

First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code. This interpretation flows from the court's language in Visic, supra. It also finds support in the arbitral jurisprudence, which has generally held that, even where the conduct complained of has continuing effects, there is no series of incidents unless the respondent takes a fresh step that could constitute a separate breach of the collective agreement. See Port Colbourne General Hospital (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett).

Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code. See, for example, Longtin, supra.

18In the instant case, the applicant was aware that the LMR plan would result in his being trained in a profession in which he would earn less money than in his desired profession of health and safety inspector. The fact that three years later he was capable of earning less money because of the allegedly discriminatory act in 2010 of refusing to allow the applicant to train as a health and safety inspector was not a separate act of discrimination, and therefore, in my view, does not constitute a series of incidents. Therefore, the applicant's allegations of discrimination with respect to his age are dismissed as untimely.

Discrimination Based on Disability - Denial of Ergonomic Equipment

19The applicant's claim for ergonomic equipment was first denied by letter dated February 22, 2011, more than two years prior to his commencing this Application.

20Leaving aside the issue of whether the applicant's claim should be dismissed because WSIAT would be the proper forum in which to appeal the decision, the applicant's allegation is untimely. Section 34(1) requires that a person must bring his claim within a year of when he believes his rights have been infringed. This occurred when he received the February 22, 2011 decision of the respondent to deny his request: see Thomas v. Toronto Transit Commission, 2009 HRTO 1582.

21The applicant gave no evidence to support any good faith explanation for the delay in commencing this Application, as required pursuant to s. 34(2) of the Code.

22The applicant alleged that the denial of ergonomic equipment was a series of events, but he provided no evidence to support this, other than that he continued to pursue his claim with the respondent to get the equipment, which does not constitute a series of incidents. As in Garrie, there was no further separate act of discrimination after the initial refusal to pay for the equipment. The applicant's pursuit of an appeal in the WSIB process and any decisions made by the WSIB in that appeal process after the initial decision to deny him entitlement are not separate acts of discrimination. If there was discrimination in the respondent's refusal to fund ergonomic equipment, the applicant knew of it when he was first denied in 2011.

23The applicant's claim with respect to discrimination based on the respondent's failure to provide him with ergonomic equipment is dismissed.

Failure of the Respondent to Provide Details of Benefits Entitlement Calculation

24The only timely allegation is the reduction in the applicant's loss of earnings benefits from full to partial, effective August 6, 2012. The applicant alleges that the respondent has not provided him with details of how the benefits were calculated.

25The applicant provided no details to show any link between the respondent's alleged failure to provide the applicant with details of how it calculated his benefits entitlement and a Code ground. This claim therefore is dismissed.

26Given the above findings, there is no need for me to consider the arguments made with respect to s. 45.1 of the Code.

order

27The Application is dismissed.