Aceto v. Ontario (Attorney General), 2015 HRTO 1591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Aceto

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Attorney General and Workplace Safety and Insurance Board

Respondents

DECISION

Adjudicator: David Muir Date: November 24, 2015 Citation: 2015 HRTO 1591 Indexed As: Aceto v. Ontario (Attorney General)

APPEARANCES

Donna Aceto, Applicant Self-represented

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

The Crown in Right of Ontario as represented by the Ministry of the Attorney General, Respondent Thomas Ayers, Counsel

1This Application alleges discrimination with respect to employment because of disability.

Background

2In a Case Assessment Direction issued to the parties on July 21, 2015, the Tribunal decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. it appears that some or all of the allegations may be untimely; and/or

b. there is no reasonable prospect that the Application or part of the Application will succeed.

3The preliminary hearing was held on November 18, 2015. All parties participated. No witnesses gave evidence. The applicant read a lengthy and detailed statement at the hearing and responded to several questions from the Tribunal. I have considered the applicant’s various written submissions as well as the parties’ submissions made at the preliminary hearing and find for the following reasons that this Application must be dismissed because it has no reasonable prospect of success.

4The background facts are not complex. The applicant was employed by an agency of the respondent Ministry. By all accounts, the applicant was a good employee. She was at the time a person with a disability. She was injured at work in 2005. She applied for and received WSIB (treatment) benefits for a short period of time.

5In April 2005 it was determined by the WSIB that the injuries sustained in the workplace accident had been resolved and therefore the applicant was no longer entitled to benefits. The applicant strongly disagrees with that determination but did not appeal it at the time. The applicant left the workplace and began receiving long term disability (LTD) benefits provided pursuant to her contract of employment. These benefits ended when she turned 65 at which point the respondent Ministry advised the applicant that she had the option of returning to work if she was able to do so or, alternatively she could retire and receive a pension. The applicant elected to retire.

6The applicant strongly believes that the WSIB’s 2005 decision about her entitlement to benefits was incorrect. As indicated she did not appeal the original benefit decision in 2005 but did do so in 2012. Her appeal (objection) was denied and the original decision sustained in 2012 and the applicant appealed that determination but ultimately withdrew her appeal of the WSIB decision in late 2014 with a view to proceeding with this Application instead.

7This Application was filed on April 25, 2013. It was deferred on consent pending the conclusion of the WSIB proceeding. When the applicant withdrew her appeal the Application was reactivated in 2015 HRTO 310.

The allegations

8As regards the respondent Ministry who was the applicant’s employer was not clear on the face of the Application, what, if anything the Ministry had done or failed to do which might constitute discrimination under the Code. At the hearing the applicant clarified that she believed that the Ministry should be involved because it was her employer. She also stated that she believed that the Ministry should have intervened to aid her when she asked for assistance in her dispute with the respondent WSIB in 2012. In particular, the applicant alleged that she wrote to the Ministry on October 4, 2012 requesting assistance with her WSIB claim. The Ministry responded on October 26, 2012 saying that “it can not provide legal advice to private parties”.

9The allegation against the WSIB is that the respondent failed to acknowledge her disability. At the hearing I attempted to question the applicant about what she meant by this, given that on the face of the materials it is clear that the applicant’s disabilities were known and that the WSIB’s medical consultant appears to have acknowledged that one or more underlying medical conditions might result in a longer than usual time period for the injuries sustained in the workplace fall to resolve. The applicant attempted to be responsive to my questions but she indicated that she would prefer to read her prepared submissions. Copies of the prepared text were provided to the parties and myself and we read along as the applicant read her statement aloud with virtually no departure from the text.

is there no reasonable prospect that the Application or part of the Application will succeed?

10As was pointed out in the July 21, 2015 CAD, the Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant was based, at least in part, on the applicant’s disability or other prohibited ground under the Code. In other words, the prohibited ground (in this case, disability) must be connected to the adverse treatment.

11The Application as it relates to the respondent Ministry must be dismissed because there are no allegations of discrimination made by the applicant as against her former employer. The Ministry says that it does not assist its employees with their private disputes even those that arise out of their employment. The applicant made no attempt to allege that she was treated differently in this respect than any other employee.

12As regards the primary focus of the Application, I find that despite literally hundreds of pages of attempts to articulate another way of seeing this case, I am compelled to conclude that what the applicant takes issue with is the decision of the WSIB in assessing her claim. Her claim is essentially that the WSIB got it wrong: that they did not properly assess the interaction of her pre-existing medical condition or disability and the workplace injuries and\or they did not properly assess the impact of the workplace injury on her pre-existing medical condition or disability.

13The essence of the applicant’s claim is captured in the following passage from her submissions made prior to the preliminary hearing and repeated in one way or another in the prepared statement the applicant read at the hearing.

Disability includes mental illness, developmental disabilities and learning disabilities. Even minor illnesses or infirmities can be “disabilities" if a person can show that she was treated unfairly because of the perception of a disability. WSIB would not acknowledge that my Tourette Syndrome and its associated behaviors and cognitive difficulties and strange and unusual symptoms that damage my body, is a disability and it didn't acknowledge how difficult it would be for me to deal with the difficulties I would have because of the characteristics of the symptoms associated with this handicap to get better, especially after my Tourettes Syndrome, my back, my shoulder and my back were so badly injured in my workplace fall. (emphasis in original)

14It may well be that the WSIB got it wrong and the applicant is correct that they did not properly assess the difficulties she would have because of the particular characteristics of her pre-existing disabilities. However, what it did here – make a determination of which impairments in function and/or conditions requiring treatment were related to the workplace injury as opposed to some other cause including pre-existing medical conditions is an everyday function of the WSIB. Sometimes they get it right and sometimes they get it wrong. However, the Tribunal has determined in a number of cases that it has no authority to in effect to review such determinations. As was pointed out in the July 21, 2015 CAD, the Tribunal held in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5:

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.

15I have carefully considered all of the applicant’s submissions but struggle to understand why she believes that her claim is not related to the decision of the WSIB. There are no allegations that she was treated differently because she is a person with a disability or because of the particulars of the disability. The applicant claims that they did not acknowledge that she was a person with a disability. However it is clear that the WSIB did do so. The medical consultant, the effective decision maker in her case, refers to the applicant’s pre-existing medical conditions. The applicant objects to the characterization of her disabilities as pre-existing but it was not discriminatory to refer to these medical conditions in those terms and if her claim is that the WSIB did not specifically refer to these conditions as disabilities that is also not discriminatory. The fact is that the medical consultant understood that there were these other issues and acknowledged that they would lengthen the applicant’s recovery from her workplace injuries. The WSIB may have woefully misunderstood the inter-action between the applicant’s disabilities and the workplace fall or may have simply got it wrong about the workplace fall itself, as the applicant suggests. But again these are the substance of the decision that the WSIB made and issues that the Tribunal can not deal with.

16The applicant argues that the medical consultant did not understand her medical conditions and ignored the information that was provided to him from a treating physician. The fact is that the medical consultant refers to the February 2005 letter from one of the applicant’s treating physician. He may not have understood its import although given its very general nature it is not clear that this was the case and it may be as argued by the applicant that he misunderstood her condition. However there is no evidence that the medical consultant dealt with her case any differently because she was a person with a disability or because of the particular disability. The misapplication of the entitlement criteria under the WSIA and/or the misapprehension of the medical evidence are matters for the WSIB and its appeal process – ultimately the WSIAT. However, the Tribunal has no authority to deal with such disputes.

Is the Application out of time?

17Although not necessary to do so given my conclusion above, I also find that the Application as it relates to the WSIB is out of time.

18Sections 34(1) and (2) of the Code provide:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

19This Application is out of time. Although said to be in relation to events in 2012, it is in my view, related to a decision made by the WSIB in 2005 which the applicant chose not to challenge until 2012. Given that what the applicant complaint is really about – a decision about entitlement to benefits under the WSIA that decision was made in 2005 and reaffirmed in 2012. In the absence of any other allegation of discrimination, the reaffirmation of a prior decision is, to the extent that it could be understood to be discriminatory at all, is not a new incident of discrimination such that clock is re-set in 2012. See Garrie v. Janus Joan Inc., 2012 HRTO 1955.

20The applicant explained that she delayed filing this Application because she was focused on getting better and returning to work. This may have been a reasonable thing to do in the circumstances but it is not a reasonable explanation for a delay of more than 7 years. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2). The limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim. (See Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241).

21The applicant argued that she has not acted in bad faith – I accept that proposition without hesitation but that is not the test for a good faith explanation. In my view, the applicant has failed to establish a good faith explanation for the delay here and accordingly I would dismiss the Application for that reason as well. Having found there is no good faith explanation for the delay that would meet the test, there is no need to consider whether there would be substantial prejudice to any party should the case proceed.

ORDER

22For these reasons, I would dismiss the Application.

23Having dismissed the case for these reasons, there is no need to deal with the other issues raised by the parties.