Slave Markovik v. Workplace Safety and Insurance Board, 2014 HRTO 750

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Slave Markovik

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: May 26, 2014

Citation: 2014 HRTO 750

Indexed as: Markovik v. Workplace Safety and Insurance Board

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. The applicant’s main claim appears to be 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. (There is also an issue about the rate at which the applicant’s benefits were calculated.) In addition to challenging the substance of the WSIB’s decision denying his claim for benefits, the applicant contends that the WSIB unreasonably delayed dealing with his claim for benefits and that this constituted a violation of his human rights.

2On January 29, 2014, the Tribunal sent the applicant a Notice of Intent to Dismiss the Application on the basis that the Application appeared to be outside of the Tribunal’s jurisdiction because the respondent was protected by the doctrine of judicial or adjudicative immunity and/or because the applicant appeared to be challenging the decision or outcome of an adjudicative process and that such decisions by adjudicative or statutory bodies are not “services” within the meaning of the Code.

3The applicant made written submissions on the issues raised in the Notice of Intent to Dismiss on February 6, 2014. The applicant disputes that the WSIB is the sort of judicial actor that is immune from Applications under the Code. The applicant also submits that the WSIB’s treatment of him did fall within the social area of “services”.

4The Tribunal will dismiss an Application at a preliminary stage, without the opportunity for oral submissions, only if it is “plain and obvious” that it is outside the Tribunal’s jurisdiction.

ADJUDICATIVE IMMUNITY AND WHETHER APPLICATION RELATES TO “SERVICES”

5In this case, having considered the Application and the applicant’s submissions in response to the Notice of Intent to Dismiss, I am not persuaded that it is plain and obvious that the WSIB is immune from the applicant’s human rights Application because of the doctrine of judicial or adjudicative immunity or that the WSIB’s decision to deny the applicant certain benefits does not fall within the definition of “services” in s. 1 of the Code.

6Although the Tribunal has found that the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) is protected by the doctrine of judicial immunity, because it is a neutral third party that determines disputes between others (Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115; Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765), it has not found that the WSIB itself is immune from claims under the Code. Indeed, in Dopelhamer, above, at para. 45-55, the Tribunal specifically concluded that decisions of WSIB claims adjudicators/case managers do not attract judicial or adjudicative immunity from claims under the Code. In addition, in both Frankson v. Workplace Safety and Insurance Board, 2011 HRTO 2107, and Hayes v. Workplace Safety and Insurance Board, 2012 HRTO 2126, the Tribunal found the WSIB to have infringed the Code and ordered it to provide remedies to the applicants in those cases.

7Based on the above, I decline to dismiss the Application on the bases identified in the Notice of Intent to Dismiss. It is not plain and obvious that the Application against the WSIB and/or challenging the WSIB’s decision to deny the applicant certain benefits is outside the Tribunal’s jurisdiction on the basis that judicial immunity applies to the WSIB and/or its decisions.

8Nor is it plain and obvious that decisions of the WSIB do not fall within the meaning of “services” in the Code. A panel of the Tribunal reached the conclusion in Seberras, above, at para. 5, that “the Tribunal has jurisdiction over an Application alleging that the denial of WSIB or other statutory financial benefits violates the Code, even if this was done by decision. The provision of such benefits is a “service” under s.1 of the Code.”

9I wish to clarify that the Tribunal has not yet delivered a copy of the Application to the WSIB or given it an opportunity to make submissions on the judicial immunity or "services” issues. Accordingly, this is not a final decision on these issues. The decision being made at this stage is only that, taking into account previous Tribunal jurisprudence involving the WSIB, it is not plain and obvious that the Application against the WSIB falls outside of the Tribunal’s jurisdiction for the reasons identified in the Notice of Intent to Dismiss.

NO CODE ALLEGATIONS

10That said, even if the Application is not plainly and obviously outside the Tribunal’s jurisdiction on the bases identified in the January 2014 Notice of Intent to Dismiss, it appears that the Application may nonetheless be 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.

11The 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 is based on the Code, which, among other things, prohibits discrimination with respect to services on the basis of the grounds set out in the Code.

12Consistent with this, the Tribunal has held that it does not have the power 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, in this case, disability). Barron v. Workplace Safety and Insurance Board, 2011 HRTO 2168, and Matthews v. Chrysler Canada Inc., 2011 HRTO 1939.

13In 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)

14In the circumstances, it is appropriate to direct the applicant to provide his written submissions with respect to the above-noted issue regarding the Tribunal’s jurisdiction over his Application. Directions in this regard follow.

DIRECTIONS

15It is not plain and obvious that the Application is outside the Tribunal’s jurisdiction because of the doctrine of judicial immunity or because a decision regarding entitlement to WSIB benefits does not fall within the definition of “services” within the meaning of the Code. Accordingly, I decline to dismiss the Application on this basis.

16Within 14 days of the date of this Interim Decision, the applicant is directed to provide his written submissions with respect to whether his Application contains specific allegations of discrimination within the meaning of the Code, as opposed to merely alleging that the WSIB process and/or its decision regarding the applicant’s entitlement to benefits was unfair or wrong.

17Following receipt of the applicant’s submissions, the Tribunal will determine whether the Application fails to raise an issue that is within the Tribunal’s jurisdiction to decide. If, following consideration of the applicant’s submissions, it is plain and obvious that the Application does not raise an issue that is within the Tribunal’s jurisdiction to decide, the Application will be dismissed. If it is not plain and obvious that the Application is outside the Tribunal’s jurisdiction, it will continue to be processed by the Tribunal.

18The Tribunal acknowledges that the applicant has also filed a Request for Interim Remedy in this case. It would not be appropriate for the Tribunal to address that Request before dealing with the jurisdictional issue identified in this Interim Decision.