Mallenby v. Workplace Safety and Insurance Board, 2015 HRTO 1207

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeremy Mallenby

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Brian Cook

Date: September 11, 2015

Citation: 2015 HRTO 1207

Indexed as: Mallenby v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Jeremy Mallenby, Applicant

Terry Mallenby, Representative

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the respondent has discriminated against the applicant by refusing to grant entitlement for treatments that the applicant states are necessary for the treatment of his work-related injuries.

2In a Case Assessment Direction dated July 30, 2015, the Tribunal noted that the Tribunal does not have jurisdiction to deal with all allegations of unfair treatment. In particular the Tribunal does not have jurisdiction to deal with allegations that the WSIB has improperly denied entitlement to benefits, unless the applicant can show that the reason for the denial of benefits was related to a Code-protected ground. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, a Panel of the Tribunal concluded:

This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. 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. In addition, under s. 45.1 of the Code, the Tribunal cannot reevaluate the substantive or procedural correctness of a decision under another statutory scheme.

3In the July 30, 2015, the applicant was directed to provide submissions about why the Tribunal would have jurisdiction to deal with the allegations in the Application.

4The Tribunal has since received a number of communications from the applicant's representative. Many of these are copies of communications to other organizations and individuals. It is apparent that the applicant's representative does not agree with the direction in the Case Assessment Direction. He has not, however, provided submissions on the issue of the Tribunal’s jurisdiction to deal with the Application.

5As noted in the Case Assessment Direction, it appears that the Application concerns adjudicative decisions that have been made by the WSIB about the applicant’s entitlement to benefits under the Workplace Safety and Insurance Act. This is not a matter that this Tribunal has jurisdiction to deal with and the Application is dismissed on that basis.

6The communications from the applicant's representative are highly disrespectful and the tone is completely inappropriate. The applicant's representative is fully entitled to express his opinion but he is not entitled to be abusive to the Tribunal and its members and staff.

7The Social Justice Tribunal of Ontario, of which this Tribunal is a member, has a Practice Direction regarding representatives, available from the website of the Social Justice Tribunal of Ontario. It states in part:

Where a party is represented, the Tribunal will communicate with the party through its representative.

Representatives must treat all participants and the Tribunal with courtesy and respect. Both licensed and unlicensed representatives are expected to know and follow the Tribunal's rules and procedures and any directions or orders made during the proceeding. Acting on the client's behalf and instructions, a representative is responsible for all communications with the Tribunal and the other parties and for preparing and presenting the client's case to the Tribunal.

The Tribunal may exclude a representative from a hearing where necessary to prevent an abuse of process (for example, because the representative has a conflict of interest) or, in the case of unlicensed representatives, where the Tribunal finds the representative is not competent to properly represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of a representative, Hansen v. Toronto (City), 2010 HRTO 13.

8In the event that the applicant's representative wishes to communicate any further concerning this Application or any future Application with the Tribunal, he must communicate in a respectful manner. If he does not, the Tribunal may determine that he cannot represent the applicant.