Cochrane v. Workplace Safety and Insurance Board, 2015 HRTO 1427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Cochrane

Applicant

-and-

Workplace Safety and Insurance Board and James Strachan

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: October 26, 2015

Citation: 2015 HRTO 1427

Indexed as: Cochrane v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Timothy Cochrane, Applicant

Self-represented

Workplace Safety and Insurance Board and James Strachan, Respondents

Greg Bullen, Counsel

BACKGROUND

1This Application has a long history at the Tribunal. It was deferred for over five years pending the outcome of an appeal filed by the applicant under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A. By Interim Decision 2009-02154-I, the Tribunal re-activated this Application as it does not appear that that appeal will be processed in the near future.

2In his Application, the applicant alleged that the respondents discriminated against him on the basis of disability or perceived disability and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant alleged that the case manager for his Workplace Safety and Insurance Board ("WSIB") claim denied him continued loss of earnings ("LOE") benefits because he perceived him to have a mental disability. The applicant alleged that his case manager perceived him to have a depressive disorder and that he denied him benefits for this reason.

3By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

4For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of making out a successful claim of discrimination or reprisal under the Code. In essence, the applicant's allegation is that he submitted sufficient medical information to support an entitlement to benefits for his knee condition and the case manager should have approved a continuation of his LOE benefits for that condition. That is not an issue that this Tribunal has the statutory jurisdiction to deal with for the reasons set out below.

5I realize that the applicant has turned to this Tribunal due to his frustrations with the WSIB system. However, this Tribunal does not sit in appeal of decisions of WSIB case managers. This Tribunal's jurisdiction is limited to applying the Code. For the reasons explained more fully below, I must find that the applicant's Code-related allegations stand no reasonable prospect of success.

Summary Hearing Process

6The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal cannot address allegations of unfairness or reprisal that are unrelated to the Code. Many experiences of unfairness or reprisal that are not linked to the Code can leave a person with significant financial and emotional damage, not to mention a good deal of frustration. However, the Tribunal's jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.

8With respect to WSIB cases in particular, the Tribunal has consistently held that the Tribunal does not have the power to review decisions made by WSIB decision-makers to determine if they are correct under the legislation, regulations, or policies governing entitlement to WSIB benefits. The Tribunal has held that an Application that alleges 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. See Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5 ("Seberras").

9The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

10However, accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

11As the Tribunal indicated in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 ("Forde"), for an Application to continue in the Tribunal's process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

Factual Background

12Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

13The applicant alleged that he was receiving WSIB LOE benefits as a result of an injury to his knee which occurred in April 2008. He alleged that, in the course of the adjudication of that claim, the case manager asked for clinical notes and records from his physician. In his Application, the applicant stated that during a telephone call with his case manager in April 2009, the case manager told the applicant that his loss of earnings benefits had ceased in mid-March because the case manager was not satisfied with the physician's opinion. The applicant stated that the adjudicator then said to him "we do not deal with depressive disorders". The applicant argues that the case manager's comments about depression constitute discrimination on the basis of disability or perceived disability since his claim was for chronic pain due to a knee injury.

14The respondents submitted that the applicant's Application has no reasonable prospect of success. They submit that the reason the applicant's LOE claim was denied was due to the WSIB's view that the medical information he had submitted did not support a claim to ongoing LOE benefits. According to the respondents, any comment relating to depressive disorders may have related to the fact that the WSIB treats chronic pain as a non-organic psychological condition.

15In the summary hearing, I asked the applicant what evidence he would rely upon in a hearing to support his allegation that his WSIB case manager discriminated or reprised against him on the basis of a perceived mental disability. The applicant said he would seek disclosure of audio-recordings from the WSIB to prove that his case manager in fact made the comment set out above. In the hearing, the applicant stated that he told his case manager several times that his doctor would not "sign him off" to return to work. The applicant said he would seek to rely upon medical documentation from his doctor which supports his position that he is entitled to continued LOE benefits for chronic pain.

Analysis

16The applicant is concerned about his treatment by the WSIB and the fact that he was denied continued LOE benefits for his knee injury when he believes that he was entitled to such benefits. He is also concerned about the fact that the WSIB allegedly lost his file and the fact that his appeal has not yet been heard. On this last point, it appears that the reason the appeal has not been heard is the fact that the applicant has failed to file the appeals readiness form that is required for his appeal to be processed. It appears that the applicant has not filed this form due to concerns about the independence of any WSIB adjudicator who might hear his appeal.

17While the applicant may have broader frustrations with the WSIB, this Tribunal's jurisdiction in this case is very specific. As the Tribunal made clear in Seberras, above, this Tribunal does not have jurisdiction over whether the WSIB case manager made an incorrect decision or misinterpreted medical documentation relating to the nature of the applicant's disability. This Tribunal also does not have jurisdiction over whether the case manager held inaccurate views regarding the extent to which the WSIB provides loss of earnings benefits for psychological disorders. Such allegations are in essence allegations that the case manager erred in deciding that the applicant was no longer entitled to LOE benefits. Such allegations fall within the jurisdiction of a WSIB appeals resolutions officer. If the applicant is not satisfied with the decision of the appeals resolution officer, he then has a right to appeal to an impartial indepent tribunal, the Workplace Safety and Insurance Appeals Tribunal.

18The only question I have jurisdiction to deal with is whether the applicant's WSIB case manager denied him WSIB benefits due to discriminatory views he held about depressive disorders.

Discrimination claim

19Even if I accept all of the facts put forward by the applicant as true and provable, I find that he has no reasonable prospect of proving that the case manager denied his claim for continued loss of earnings benefits due to discriminatory views he held about depression.

20I wish to make clear that, for the purposes of this decision, I must assume the comment alleged by the applicant was in fact made. Therefore, whether the applicant can get access to audio-recordings from the WSIB is not an issue at this stage of the proceeding. At most, any audio-recordings would only prove what I am assuming to be true – that the case manager told the applicant "we do not deal with depressive disorders". According to the applicant, he does not have a depressive disorder, he has chronic pain relating to a knee injury. Therefore, the applicant believes that the case manager denied his claim due to his incorrect belief that the applicant has a depressive disorder. In essence, this is a claim that the case manager erred in his assessment of the applicant's disability. It is not a claim that the case manager held discriminatory or stereotypical views about persons with depression which led him to deny the applicant's LOE claim due to these discriminatory views. Therefore, the essence of the applicant's claim is not one over which this Tribunal has jurisdiction.

21To the extent that the applicant is claiming that the case manager held discriminatory or stereotypical views of people with depression and this was the reason why he denied his claim, I find that this allegation has no reasonable prospect of success. Based on the applicant's own testimony, it is clear that there is a disagreement between the WSIB and the applicant/his doctor as to whether the medical evidence he submitted supports an ongoing entitlement to benefits. The applicant has not pointed to any evidence, beyond his own speculation, that could reasonably support his view that his case manager denied his claim due to discriminatory views about depression rather than the disagreement over whether the applicant's medical information was sufficient to entitle him to loss of earnings benefits.

Reprisal Claim

22The applicant also claimed that the respondents reprised against him when they denied him benefits. There exists a common misconception that the Code protects against all forms of reprisal or retaliation. This is inaccurate. The reprisal protections in the Code protect against reprisals for having claimed and enforced rights under the Code.

23Section 8 sets out the Code's protections against reprisal. It states as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

24In the summary hearing, the applicant confirmed that he had not filed any prior discrimination complaint or enforced any Code-related rights prior to the case manager's decision to deny him continued LOE benefits. Therefore, the denial of his claim could not be a reprisal for any previous attempt to assert or enforce any Code-related rights.

25In these circumstances, it cannot reasonably be found that the respondents reprised against the applicant within the meaning of the Code's reprisal provision.

order

26For the reasons set out above, the Application is dismissed.

27I fully appreciate that the applicant has experienced a good deal of frustration relating to his WSIB claim. However, If the applicant wishes to pursue his allegation that the WSIB case manager erred in perceiving him to have a depressive disorder when he in fact has a knee condition, he must complete and file an appeal readiness form with the WSIB. If he is not satisfied with any decision rendered by a WSIB appeals resolution officer, he then has a right to appeal to the WSIAT.