Bedri v. Workplace Safety and Insurance Board, 2014 HRTO 631

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sahira Bedri Applicant

-and-

Workplace Safety and Insurance Board Respondent

DECISION

Adjudicator: Kevin Cleghorn Date: May 2, 2014 Citation: 2014 HRTO 631 Indexed as: Bedri v. Workplace Safety and Insurance Board

APPEARANCES

Sahira Bedri, Applicant Self-represented

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in goods, services and facilities on the basis of disability and/or reprisal or threat of reprisal. The applicant alleged discrimination in “employment” in the Application. However, subsequent documents have indicated that the Application is more appropriately framed as discrimination in “goods, services and facilities.”

2By Case Assessment Direction dated January 30, 2014, the Tribunal directed that a Summary Hearing be held in this matter by teleconference. An earlier Case Assessment Direction dated October 30, 2013 directed a teleconference hearing to be conducted on whether it is appropriate to re-activate the Application as the applicant’s re-activation request was delayed by three months. The parties were directed to make arguments relating to whether the Application, in whole or in part, has any reasonable prospect of success and, if so, whether the Application should be re-activated. I will first consider the issue of whether there is a reasonable prospect of success. If I find that there is a reasonable prospect of success, I will then consider, if necessary, the issue of re-activation.

3The matter is being heard as a Summary Hearing on the basis that the applicant appears to allege the misapplication of the rules of a benefits program. She has been directed to point to allegations in the Application which do not allege that the respondent as a decision-maker misapplied its legislation, regulations or policies or misinterpreted medical documentation or other material before it. As well, she has been directed to point to evidence which can establish a link between the respondent’s actions and her disability and/or reprisal or threat of reprisal.

ANALYSIS

Reasonable Prospect of Success

4Rule 19A of the Tribunal’s Rules of Procedure reads 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 of witness statements.

5The test on a summary hearing is whether the Application has a reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing so as to assess whether the Application should be dismissed in whole or in part on the basis of no reasonable prospect of success:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by the respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Background

6The applicant was an employee of Canada Post Corporation. She was injured in a workplace accident on March 14, 2006. Her original diagnosis involved a sprained left leg and lower back strain. She was off work for various times and engaged in the process to obtain benefits from the respondent. The process involved a number of appeals which occurred over several years.

7Following the workplace injury, the work duties of the applicant were modified at various times. She had difficulty performing the modified work assigned to her. The respondent considered extensive medical information and an ergonomic assessment to determine what, if any, modified work could be performed by the applicant. The Application alleges that the respondent discriminated against the applicant by consistently denying her reasonable and appropriate accommodations, rotation of duties and a suitable stool from which she could perform her work duties.

8In essence, the Application alleges discrimination on the basis of the denial of benefits arising from a decision or series of decisions of the respondent.

The Law & Analysis

9This Tribunal stated in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at paragraph 5:

An application related to 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.

10The Application itself and the submissions of the applicant are devoid of particulars of any discrimination. The argument of the applicant is essentially that there has been discrimination against her because she has been denied benefits or that her claim for benefits has been handled badly/sloppily/carelessly. Beyond that, there are no specific Code-related allegations of discrimination. The issue of reprisal or threat of reprisal was not argued or articulated in any manner whatsoever either in the Application or in her submissions during the Summary Hearing process.

11The allegations against the respondent are that it took actions during the course of processing her claim that disadvantaged the applicant or impacted her adversely. She did not agree with the decisions made by the respondent with respect to entitlement to benefits and suggests that it never applied its policies, as opposed to misapplying them. That is a distinction without a difference. The crux of her position is that she disagreed with decisions made by the respondent and how it was done. To that extent, the issue of denial of benefits was, therefore, a proper matter for the respondent’s appeal process or, if warranted, judicial review. The applicant has no reasonable prospect of establishing that the actions of the respondent were discrimination on the basis of her disability; the determination to be made by the respondent in this context was entirely about the nature and scope of her disability and benefits that would or would not flow in relation thereto. To allow the Application to proceed beyond the Summary Hearing process, the applicant would need to show some evidence that there was some form of differential treatment afforded to her that was somehow linked to her disability. She would have to establish that any discrimination she experienced was in respect of goods, services or facilities – one of the social areas covered by the Code. In light of the Tribunal’s case law, and taking into account the applicant’s submissions, she has no reasonable prospect of doing so.

12The Code provides a right to be free from discrimination in respect of services because of, for example, disability. Although she may have been disadvantaged by the denial of benefits, or been unhappy or angry about the manner in which her claim was handled, the applicant has not pointed to any evidence that she was either treated differently than anyone else or that she was otherwise disadvantaged because of her disability.

13The Tribunal has stated on several 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; Badvi v. Voyageur Transportation, 2011 HRTO 1319; and Watt v. Cambridge (City), 2014 HRTO 218. 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 unless there is proof that at least one of these characteristics was a factor in the treatment the applicant experienced. At this stage, the Summary Hearing, the Tribunal is not determining matters of credibility or assessing the degree of impact on a person of the alleged behaviour. It is readily acknowledged that various experiences of unfairness, not specifically defined as discrimination in the legal sense, can result in significant negative financial, emotional or even physical consequences to one degree or another.

14At the Summary Hearing, the test the Tribunal applies is that of no reasonable prospect of success, which involves assuming the applicant’s version of events to be true, absent clear evidence to the contrary. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of, in her view, disagreeable or unfair treatment, is not generally sufficient to support an inference of discrimination. The issue for the Tribunal now 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 his or her own assumptions or belief, the Application may be found to have no reasonable prospect of success.

15There is no evidence in this instance that the respondent engaged in unfair treatment of the applicant, or more significantly, that the treatment related in any way to her disability. Although it is conceivable that individuals making decisions adverse in interest to the applicant may engage in discriminatory conduct or practices or use intemperate or insensitive language, the evidence in this case is utterly lacking in that regard. There is a significant difference in discrimination which can be linked to a prohibited ground under the Code and the impact of actions experienced by a disabled person through conduct which does not amount to a breach of the Code. Her unhappiness with the outcome or the process of seeking workers’ compensation benefits simply does not rise to the level of a Code violation.

16I have come to the conclusion that the Application has no reasonable prospect of success. I do not need to consider the issue of re-activation of this Application.

DECISION

17For all the foregoing reasons, the Application is dismissed.