Lawson v. Workplace Safety and Insurance Board, 2015 HRTO 1253

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Lawson Applicant

-and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: September 21, 2015

Citation: 2015 HRTO 1253

Indexed as: Lawson v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

David Lawson, Applicant

Christine Lundy, Paralegal

1This Interim Decision concerns a Request for Order During Proceedings filed by the applicant. The Request concerns Interim Decision 2015 HRTO 850 and is a request that I recuse myself from further dealings with the Application because of bias.

2The respondent did not respond to the Request and was not asked to do so by the Tribunal.

3The Request does not include a request for reconsideration of the Interim Decision. It makes several criticisms of the processes that were followed and the findings and conclusions that were made, but does not ask that the Interim Decision be changed or reconsidered, only that I recuse myself from any further action with regard to this Application.

4The Interim Decision followed two preliminary hearings that were held by telephone conference call. The first of these was held on December 11, 2014. The applicant was self-represented at that hearing. The hearing was not completed because the applicant was unable to fully participate in the hearing. It was however possible to establish some clarification of what the Application is about.

5During that hearing, the applicant said on more than one occasion that if he was not allowed to proceed to a hearing on the merits of the Application he might cause harm to himself and also to others.

6Following this hearing, I issued a Case Assessment Direction that set out some clarification of what I understood the Application to be about as a result of the discussions that were held during the hearing. The Case Assessment Direction also addressed the applicant’s threats and stated:

I must also caution the applicant in two respects with regard to the threats to himself and others which he made during the conference call.

First, the Tribunal takes threats of self-harm and to others very seriously. The Tribunal has an obligation to contact the appropriate authorities to ensure the safety and security of all concerned and the Tribunal has advised the Leamington police services of the applicant's threats.

Second, making threats of harm or self-harm in order to secure a result in an adjudicative proceeding raises serious concerns with respect to a potential abuse of the Tribunal’s process. I am satisfied that the Application can proceed. However, should further threats of this nature be made it may be appropriate to entertain submission on whether or not they amount to an abuse of process, and if so what order would be appropriate in the circumstances.

7On the basis of the Case Assessment Direction, the Tribunal Registrar’s office contacted the police department in the community where the applicant resides. I was not involved in that contact.

8The Case Assessment Direction directed that the hearing would reconvene by telephone conference call and identified the following issues:

a. Should the allegations about events that occurred more than one year before the Application was filed be dismissed under section 34 of the Code?

b. Should the Application be dismissed in whole or in part as having no reasonable prospect of success because it is essentially a complaint about adjudicative decisions made by the WSIB?

c. Should the applicant be permitted to amend the Application?

d. What specific accommodations does the applicant want the respondent to make?

9The hearing reconvened by telephone conference call on April 2, 2015. At that hearing the applicant was represented by Ms. Lundy.

10Following that hearing, I issued Interim Decision 2015 HRTO 850. The Interim Decision dismissed some aspects of the Application as having no reasonable prospect of success. This included allegations that relate to benefit decisions that the respondent has made in the course of adjudicating the applicant’s claim for benefits and what I understood was an allegation that the respondent had discriminated against the applicant by not agreeing to commute his benefits. I also dismissed allegations of reprisal and an allegation that the respondent had made it impossible for him to find a family doctor.

11At paragraphs 29-33 I found as follows:

The applicant’s allegation that the respondent has failed to accommodate his disability in the way that it has dealt with him as an injured worker is not dismissed at this time.

At this stage of the processing of the Application, the question with regard to this issue is whether there is no reasonable prospect of success that the applicant could show that the respondent has not appropriately accommodated his disability in regard to the way that is has dealt with him as an injured worker.

Based on the information currently before me, I find that it cannot be said that there is no reasonable prospect that this this allegation can succeed.

As a general principle, a service provider may be required to change the way it communicates with a person to whom it provides a service in order to accommodate a disability.

In this case, the applicant has provided evidence from Dr. Corbin that supports the applicant’s assertion that his dealings with the WSIB exacerbates his disability and that he may require the respondent to communicate with him in ways that recognize this as a form of accommodation.

12The original Application and the Request to amend the Application had indicated that the applicant’s primary concern was the manner in which the respondent has interacted with him as an injured worker and an alleged failure to accommodate his psychological disability in respect of those interactions.

13From the Request for Order During Proceedings that asks that I recuse myself (“the recusal request”), it is not clear that the applicant understands that this primary concern has not been dismissed. The Interim Decision directed that a hearing would be scheduled to hear evidence and submissions on this issue, preceded by a case management conference call to discuss the nature of the evidence that would be called by both parties on this issue.

The recusal request

14The basis for the recusal request is an allegation of bias in favour of the respondent. The primary basis for the allegation appears to be my previous experience as an adjudicator with the Workplace Safety and Insurance Appeals Tribunal. The request states:

The applicant submits that Mr. Cook’s bias derives from his past extensive experience with the WSIB, and that it is a conflict of interest for Mr. Cook to adjudicate a matter in which the WSIB is the respondent.

15Apart from a brief contract to assist with the establishment of the WSIB Fair Practices Commission, I have never been employed by the WSIB. I was an adjudicator for many years with the Workplace Safety and Insurance Appeals Tribunal (WSIAT). WSIAT is independent of the WSIB and hears appeals from final decisions of the WSIB. As a result of that work I do have an understanding of the legislation and the policies of the WSIB. I have not been associated with the WSIAT since starting my tenure at the Human Rights Tribunal of Ontario in 2008.

16Other aspects of the bias allegation are discussed below.

Lack of DSM diagnosis

17At paragraph 7 of the Interim Decision, I discussed a report from Dr. Corbin, the applicant’s treating psychologist and stated:

That letter catalogues the applicant’s psychological difficulties, although it does not include any Diagnostic and Statistical Manual (DSM) diagnosis.

18According to the recusal request, this comment indicates an “apparent insistence on a DSM diagnosis” which is inconsistent with the normal way that the Tribunal views medical documentation about psychological disabilities, and “bears a much stronger resemblance to the way in which the Workplace Safety and Insurance Board approaches diagnoses of psychological disorders.”

19I would note that there was no insistence on a DSM diagnosis. It is clear that the applicant has a psychological disability and aspects of that disability are set out in Dr. Corbin’s report. Since the Interim Decision found that the hearing was to continue with respect to the issue of how the applicant’s disability affects his dealings with the respondent, and the respondent’s dealings with him, it was not necessary in the Interim Decision to discuss the details of the applicant’s condition in the Interim Decision. The Tribunal’s practice is to try to minimize the discussion of sensitive medical issues so that they are discussed only when it is necessary to do so for the purposes of the decision.

Failure to appreciate the nature of the applicant’s disability

20The recusal request indicates that I failed to appreciate the nature of the applicant’s disability and that the Tribunal process that I conducted failed to accommodate the applicant's disability. With one exception, the recusal request does not indicate what accommodation should have been offered that was not offered.

21The exception is the suggestion that the applicant’s threats that he might cause harm to himself and others if his Application was not allowed to go forward should have been understood as a manifestation of the applicant's psychological condition and as information about the extent of the strain that he lives under. The recusal request indicates that the threats should have been ignored and that not ignoring them had the effect of blaming the applicant: “Blaming him for making statements about the possibility of suicide is, in the circumstances, like blaming a person who is deaf for not hearing the doorbell”.

22As noted in the Interim Decision, the threats that the applicant made during the hearing were threats about what might happen if he was not successful in achieving what he wanted to have happen in regards to the Application. As also noted, the Tribunal takes all such threats seriously, regardless of the underlying factors that may be contributing to why the threats were made.

23In this case, my involvement was to advise the Tribunal Registrar about the threats. I was not involved in any decision to communicate the threats to the police.

24The reason that the applicant was cautioned about the possibility that future threats to cause harm to himself or others could be an abuse of the Tribunal’s process was that the threats were that the harm could result if he were not successful at the Tribunal.

Findings of fact without evidence

25One of the suggestions that Dr. Corbin made was that the WSIB could commute the applicant’s benefits so that he would be paid in one lump sum rather than monthly. I understood that the applicant alleged that the respondent’s refusal to do this was discriminatory and a failure to accommodate his disability. I found that there was no reasonable prospect that this allegation could succeed in part because the legislation does not permit such a thing. I also commented that it was not clear how a commutation would in fact reduce the applicant’s contact with the WSIB since his contact has to do with his entitlement to benefits and services.

26According to the request, the idea of a commutation of the applicant's benefits was not proposed as an allegation of a failure to accommodate but rather as a remedy that the applicant would seek once his allegations of a general failure to accommodate his disability was established. The recusal request notes that remedy is usually addressed in submissions at the end of a hearing on the merits and that it was inappropriate to deal with this at a preliminary hearing. The recusal request alleges that I have therefore prematurely come to a decision on something that should not be decided at this stage and that this demonstrates bias.

27This problem may be related to the fact that I understood that the applicant alleged that the refusal of the WSIB to commute his benefits was discriminatory or a refusal to accommodate his disability. I therefore considered whether there was a reasonable prospect that this allegation could succeed and determined that there was no reasonable prospect of success regarding this allegation. If the applicant is not in fact alleging that any refusal to commute his benefits is discriminatory or a failure to accommodate, and instead wishes to argue that it is an appropriate remedy, he is not precluded from filing a request to amend the Application with respect to remedy.

Dismissal of allegations as having no reasonable prospect of success

28The recusal request takes exception to the findings at paragraph 25 of the Interim Decision, which reads as follows:

I also find that the allegations relating to the two occasions when a benefit payment was not direct deposited on time have no reasonable prospect of success. On both occasions, the problem arose from changes to the applicant’s banking arrangements. Even if, as the applicant suggests, the respondent could have done more to make the changes and to better facilitate his getting the benefits after the direct deposit did not work, the applicant did not point to any evidence that would establish that the delay in payment was discriminatory as opposed to arising from error or administrative delay.

29The request asserts that the question is not whether the problem arose out of an administrative error, but only whether the applicant provided evidence of a “discriminatory effect”. The request notes that the applicant did point to evidence that he would provide about why and how he was adversely affected when his payments were not deposited on time.

30This aspect of the request arises out of confusion about the nature of discrimination. Discrimination on the grounds of disability is not established when a person with a disability experiences an adverse effect.

31The Tribunal’s Practice Direction on Summary Hearings states:

A summary hearing usually considers:

whether, assuming all of the allegations are true, the Application has no 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; and/or

whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

32In this case, under the first consideration, there was a question as to whether the fact that there was a problem with the direct deposit on two occasions could reasonably be considered to amount to a Code violation.

33In any event, the fact that a party to an Application does not agree with the conclusions reached in a decision cannot be a basis for a successful claim of bias.

34The request indicates that the applicant also does not agree with the finding in the Interim Decision that there was no reasonable prospect that the applicant could prove that the payment problems were a reprisal. The request suggests that this was an inappropriate finding of fact that should only have been made on the basis of evidence. The request suggests that the applicant would have been able to provide evidence to prove the reprisal allegation, although the nature of this evidence is not identified.

35Here again the request is based on a misunderstanding of the purposes of a summary hearing. The request suggests that the only purpose of a summary hearing is for the applicant to assure the Tribunal that he will be able to provide evidence to prove his allegations. In fact at a summary hearing the applicant will generally be expected to identify the evidence that will be available. Also, an important question is whether, assuming the applicant’s allegations about what happened are true, the applicant will be able to establish that what happened involved an infringement of his Code-protected rights.

36The request makes a similar complaint about the dismissal of the allegation that the respondent has discriminated against him by making it impossible for him to find a family doctor. The request asserts that the applicant explained what evidence would be available to prove this allegation but does not indicate what this evidence was. The request says that the applicant felt like he was being blamed for his inability to keep a family doctor, an implication that the request suggests is another ground for the allegation of bias.

Conclusions

37As stated by the Divisional Court in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926, at paragraph 15:

The well known test for “reasonable apprehension of bias” is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly.

38In this case, the request for recusal makes clear that the applicant does not agree with many of the findings in the Interim Decision and in the earlier Case Assessment Direction. The fact that a person does not agree with an adjudicator’s decisions is not a basis for an allegation of bias, see, for example, Christianson v. College of Physicians and Surgeons of Ontario, 2010 HRTO 422, at paras. 8-9. The request also alleges a failure to accommodate his disability by me and the Registrar. I do not agree that there was a failure to accommodate, but even if there was, this would not, in itself, establish bias either.

39The request suggests that the applicant believes that I am biased and in a conflict of interest because of my “past extensive experience with the WSIB”. I have explained the limited nature of this experience above, as well as the amount of time that has passed since I was even directly connected to WSIAT (which is a different entity from the WSIB). In my view, it is clear there is no existing conflict of interest present and also that an informed person, viewing the matter realistically and practically – and having thought the matter through – would not conclude that it is more likely than not that I would either consciously or unconsciously decide the current matter unfairly.

40For all of these reasons, the request that I recuse myself from further action with regard to the Application is denied.

41The further action that was contemplated by the Interim Decision was a hearing to deal with the merits of the applicant's allegation that the respondent has failed to accommodate his disability in the way it has dealt with him as an injured worker. This was to be preceded by a telephone case conference to determine the nature and extent of the evidence that would be heard regarding this issue.

42The Registrar will proceed to schedule a telephone case conference.