Theal v. Workplace Safety and Insurance Board, 2015 HRTO 483

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Theal

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Mary Truemner

Date: April 16, 2015

Citation: 2015 HRTO 483

Indexed as: Theal v. Workplace Safety and Insurance Board

APPEARANCES

John Theal, Applicant

James Simpson, Representative

Workplace Safety and Insurance Board, Respondent

Agnes Wintersinger, Representative

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that the Workplace Safety and Insurance Board (“WSIB”) discriminated against him by ignoring “clear medical evidence”, and refusing to pay for medical treatment, or to provide benefits under the Workplace Safety and Insurance Act (“WSIA”).

2The Tribunal issued a Case Assessment Direction (“CAD”) on December 19, 2014 ordering that a summary hearing take place on the basis that there appeared to be no allegations of discrimination in the Application, and no reasonable prospect for the Application to succeed. The CAD made specific reference to Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 (“Seberras”), a decision in which the Tribunal held that an allegation that a decision-maker has “misapplied the rules of a program or misinterpreted medical documentation” is not one that constitutes a violation of the Code.

3The summary hearing was held on March 19, 2015. The applicant’s representative explained that he submitted medical documentation to WSIB to prove that the applicant is entitled to benefits and treatment costs, but WSIB either misread or ignored the medical evidence, and wrongly denied them. The applicant’s representative explained that the denial has been appealed in the WSIB process, but he thought that filing an Application with the Tribunal might help.

decision

4Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

5Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at para. 8:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a 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.

6The Seberras decision states at paragraph 5:

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.

7Although the parties were directed to the Seberras decision in the CAD to prepare for the summary hearing, the applicant’s representative was unable to distinguish the facts of this case from the reasoning in Seberras.

8The Tribunal does not sit as an appeal body to the WSIB. As stated in Tadese v. Workplace Safety and Insurance Board, 2012 HRTO 2383, in order for the Tribunal to have jurisdiction over decisions by the WSIB not to provide benefits, an applicant must establish that the WSIB decisions at issue are discriminatory, not merely incorrect.

9I find that the principles in Seberras are directly applicable in this case. The applicant has not pointed to any evidence or argument that the WSIB decisions were discriminatory. He has only alleged that they are incorrect. I therefore find that this Application has no reasonable prospect for success.

10The Application is dismissed.