Cochrane v. Workplace Safety and Insurance Board, 2015 HRTO 735

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

INTERIM DECISION

Adjudicator: Eli Fellman

Date: June 4, 2015

Citation: 2015 HRTO 735

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 been deferred for over five years. The purpose of this Interim Decision is to consider the applicant’s request to re-activate the Application and to address how the Application will be considered by the Tribunal.

2The Application names the Workplace Safety and Insurance Board (“WSIB”) and one of its claims adjudicators as respondents and alleges discrimination on the basis of disability and reprisal in goods, services and facilities and employment.

3The applicant alleges that he was receiving WSIB benefits as a result of an injury to his knee which occurred in April 2008. He alleges that in the course of the adjudication of that claim, the claims adjudicator asked for clinical notes and records from his physician. The applicant states that during a telephone call with the adjudicator on April 17, 2009, the adjudicator told the applicant that his loss of earnings benefits had ceased mid-March because the adjudicator was not satisfied with the physician’s opinion. The applicant states that the adjudicator then stated that he noticed (presumably in the physician’s clinical notes and records) that the applicant was taking antidepressants, and stated that “chronic pain is not acceptable” and that “the WSIB does not entertain claims based on depressive disorders”. The applicant argues that the adjudicator’s comments about depression, made in a case where his mental health was not at issue, constitute discrimination on the basis of disability. He appears to allege that the adjudicator’s views about his mental disability affected the WSIB’s denial of benefits related to his physical disability.

DEFERRAL OF APPLICATION

4By way of Interim Decision 2010 HRTO 913, the Tribunal ordered a deferral of the Application pending the completion of the applicant’s appeal of the April 9, 2009 decision to the WSIB appeals branch.

5On April 1, 2015, the Tribunal Registrar issued a letter requesting that the Applicant advise the Tribunal whether the WSIB proceeding is still ongoing and, if possible, when it is expected to be completed.

6The applicant responded on April 24, 2015. In his letter, the applicant states that: he has had no contact with the other parties since 2013; the WSIB has lost his file; and when he attempts to call the WSIB concerning the status of his appeal he is told that he is forbidden to call the WSIB and is hung up on. The applicant also requests that “. . . the HRTO set the WSIB proceeding(s) aside and go forth with hearing my case. . .”

7Because the Tribunal was unable to determine the status of the WSIB proceeding based upon the information provided by the applicant, a Case Assessment Direction (“CAD”) was issued on May 13, 2015 directing the respondent to advise the Tribunal whether the WSIB proceeding is still ongoing.

8The Tribunal received a submission from the corporate respondent on May 21, 2015. The submission provides, in part, as follows:

To clarify, the Applicant did object to the WSIB decision of April 9, 2009 and this appeal proceeding remains active, but the appeal is currently on hold until the Applicant completes an “Appeals Readiness Form.” The Applicant has been advised that he is required to complete this form, including in a letter of September 23, 2013, when the Respondent sent the Applicant a letter regarding the status of the Applicant’s objection to the April 9, 2009 decision made by the WSIB. This letter advised that the WSIB is unable to proceed with his appeal until the Appeals Readiness Form is submitted.

As the time limit to Appeal has been met, and as the Applicant can proceed with his appeal at any time by completing the Appeals Readiness Form, the Respondent submits that the Application should remain deferred.

9Pursuant to section 45 of the Code, the Tribunal has the discretion to defer proceedings before it. The Tribunal has frequently applied this discretion where there are parallel legal proceedings between the parties to ensure that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

10On balance, I find that continued deferral is not appropriate, and the Application should therefore be re-activated as requested by the applicant. While the applicant continues to have option of appealing the April 9, 2009 WSIB decision, it appears that he has taken no steps to prepare his appeal over the course of the past five years. Further, based upon the applicant’s April 24, 2015 letter, it appears that he has no intention of proceeding with his appeal to the WSIB appeals branch and would like the Tribunal to consider his Application. In the absence of a parallel legal proceeding between the parties at the WSIB appeals branch, there is no risk of inconsistent decisions on facts or law. In addition, even if the applicant were to take the next step in the WSIB appeals process, it would likely be some time before any new decision was reached.

11In the event the applicant does proceed with an appeal of the April 9, 2009 decision at the WSIB appeals branch while the Tribunal is considering his Application, the corporate respondent can so advise the Tribunal. The Tribunal can then determine the appropriate course of action.

PRELIMINARY HEARING

12Having reviewed the file, the Tribunal has decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. the WSIB proceeding appropriately dealt with its substance; and/or

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

13In addition, the preliminary hearing will address the question of whether the application should continue against the individual respondent.

14The preliminary hearing will be scheduled for a half day hearing by conference call. This Interim Decision contains important directions for the parties about the issues above that will be determined at the preliminary hearing.

SECTION 45.1

15Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

16The Tribunal’s consideration of whether another proceeding has appropriately dealt with the substance of the Application is guided by two decisions of the Supreme Court of Canada. The first of these is British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and the second is Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. This Tribunal has considered how these decisions impact the Tribunal’s interpretation of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, and K.M. v. Kodama, 2014 HRTO 526.

IS THERE NO REASONABLE PROSPECT THAT THE APPLICATION OR PART OF THE APPLICATION WILL SUCCEED?

17Additionally, 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 is based, at least in part, on the applicant’s disability. In other words, the prohibited ground must be connected to the adverse treatment.

18Where it appears that all or part of an application may have no reasonable prospect of success the Tribunal may determine it is appropriate to hold a “summary hearing” on that issue. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

19Rule 19A of the Tribunal’s Rules of Procedure sets out specific guidelines for this type of preliminary hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing.

20Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success”. If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

21There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case the Tribunal has decided to hold a summary hearing because:

a) It appears that the applicant may be unable to prove that there is a connection between what the respondent is (or respondents are) alleged to have done, and the grounds of disability cited in the Application. That is, although the applicant may believe that the conduct of the respondents is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain; and

b) The Tribunal has held that it 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.

22At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges he or she was fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way.

23The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he/she experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what he/she experienced. As noted above, the parties will not be submitting evidence for the purposes of the summary hearing portion of the preliminary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

24The proposed evidence may come in a variety of forms, either as direct or circumstantial evidence. Circumstantial evidence is evidence arising from the circumstances surrounding the alleged discriminatory treatment that might lead the Tribunal to infer that the alleged disadvantageous treatment was linked to a prohibited ground. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success and be dismissed. The Tribunal is mindful of the fact that in some cases an application should proceed further in the hearing process because the respondent is the party who has control over the evidence by which the applicant might prove his or her case.

25While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondent’s allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

26With respect to the issue of the Tribunal’s authority to review decisions under benefit programs, including those based on disability, the Tribunal held as follows 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.

REMOVAL OF INDIVIDUAL RESPONDENT

27Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

28The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

29The parties may make submissions on whether the individual respondent should be removed for these reasons.

NEXT STEPS AND DIRECTIONS

30The Registrar will schedule a half day hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the preliminary hearing. Although scheduled for a half day, not all preliminary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

For the Summary Hearing

31The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at http://www.sjto.gov.on.ca/hrto/.

32No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.

33The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this Interim Decision.