Castellano v. Workplace Safety and Insurance Board, 2016 HRTO 1165

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Castellano

Applicant

-and-

Workplace Safety and Insurance Board, Debra Brazzier, Joanne Artuso, Claudia Scodeller, Steve Neziroski,and Melinda Saunders

Respondents

DECISION

Adjudicator: Bruce Best

Date: September 2, 2016

Citation: 2016 HRTO 1165

Indexed as: Castellano v. Workplace Safety and Insurance Board

APPEARANCES

Daniel Castellano, Applicant

Self-represented

Workplace Safety and Insurance Board, Debra Brazzier, Joanne Artuso, Claudia Scodeller, Steve Neziroski, and Melinda Saunders, Respondents

Greg Bullen, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary and preliminary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed as it appeared to be a challenge to a decision under a benefit program, and did not appear to raise any facts that could justify a finding of reprisal under the Code. Further, the CAD directed that if the matter was not otherwise dismissed, the Tribunal would also determine whether the individual respondents should be removed as parties.

3As explained more fully below, I find that the Application must be dismissed. The Application is a challenge to decisions made in the context of a benefits program respecting which the Tribunal has no jurisdiction under the Code. The applicant has further not been able to point to any evidence that the actions of the respondents could amount to reprisal under the Code, and on that basis it has no reasonable prospect of success.

Summary hearing process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed. The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

5The 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 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.

6However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

7As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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 a breach of the Code.

8Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Background

9The applicant had filed a claim with the organizational respondent, the Workplace Safety and Insurance Board (“WSIB”), after a workplace accident. He argued that his WSIB caseworker, Steve Neziroski, sided with the employer, and did not believe the applicant had any ongoing disability-related restrictions. The allegations include that Mr. Neziroski issued discriminatory decisions based on ill will, were misleading and was not forthright with him, questioned the extent of his injuries, and accused him of faking his injury or malingering. He further alleges Mr. Neziroski did not intervene to prevent acts of harassment by the employer, failed to take action against the company for unfair discipline, sided with or coached the employer on how to deprive the applicant of benefits, compromised his privacy rights, and told the applicant he should not be taking notes during work hours or videotaping people at his workplace.

10The applicant claims that on one phone call in September 2014, Mr. Neziroski told him that the problems the applicant had with the company were his fault, and any stress he was experiencing was self-induced, that the company has been more than fair and hadn’t discriminated against or targeted him. He also claimed that Mr. Neziroski had looked at the applicant’s prior WSIB case files, and that he told the applicant that there was a “pattern”, and that “you have done this before.”

11With respect to reprisal, the applicant claims that after the above conversation he asked to speak to Mr. Neziroski’s supervisor, Debra Brazzier. He claims that he told her that he considered Mr. Neziroski’s behaviour and comments to be de discriminatory. He claims that Ms. Brazzier took Mr. Neziroski’s side and did nothing to stop the behaviour, and in fact she engaged in similar behaviour herself.

12For the purposes of a summary hearing, the above facts are assumed to be true; in fact, the respondent generally does not dispute them. However, it takes the position that none of the actions could reasonably be considered discriminatory. The respondent agrees that the caseworker was suspicious that the applicant was exaggerating his injuries, and that his reviewed of prior claims supported this. All the allegations against the respondents, however, were because the applicant disagreed with the decisions made and actions taken within the scope of the WSIB’s mandate, and were all with respect to the applicant’s eligibility for benefits or efforts to return him to work.

Analysis

13Dabic v. Windsor Police Service, 2010 HRTO 1994 set out the nature of the issues to be determined at a summary hearing, at paras. 8 and 9:

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.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

14The allegation that the caseworker discriminated against the applicant on the basis of disability is primarily a question of whether the caseworker’s actions can legally be considered a violation of the Code. The question of whether the applicant can establish reprisal is whether the applicant can point to any evidence that would support his claim that the respondents’ actions were intended as a reprisal for having alleged discrimination.

Challenge to decision under a benefit program

15In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, the Tribunal held, at para 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.

16The discriminatory conduct alleged in this case is specifically with respect to Mr. Neziroski’s actions taken in his role as the applicant’s WSIB caseworker. Mr. Neziroski doubted the applicant’s claims, and disagreed with the applicant as to whether the employer was meeting its obligations under the legislation. Even if Mr. Neziroski was wrong, his actions cannot be considered a violation of the Code absent some other indicator that his actions were motivated by discrimination.

17In McGuin v. Workplace Safety and Insurance Board, 2015 HRTO 123 (“McGuin”), at paras 33-36, the Tribunal noted that a case of discrimination could be established if an applicant was able to show that they were denied benefits or mislead because of a specific Code ground. The Tribunal noted that though this was clear where the allegation was, for example, with respect to race or colour, it was not so clear where the allegations were that the WSIB had discriminated against the worker on the basis of disability. The Tribunal stated, at para 36:

In a certain sense, any decision by the WSIB that denies entitlement to benefits because a disability is found to be non-compensable is a decision based on disability. A worker at the WSIB is treated differently depending on whether the worker’s disability is work-related or not. However, this is not sufficient to establish discrimination under the Code. To show discrimination because of disability, it is necessary to show that there was something about the applicant's particular disability that caused the decision-maker to treat the applicant differently than other injured workers with a similar disability.

18In the present case the applicant has made only a general allegation that the treatment he received from the WSIB was discriminatory because he was an injured worker. He did not suggest that Mr. Neziroski’s actions were because of anything related to his particular disability.

19The applicant also raised concerns related to Mr. Neziroski’s manner of communication. In Persaud v. Workplace Safety and Insurance Board, 2013 HRTO 1852 (“Persaud”), at para 14, the Tribunal held:

[I]t is not enough for the applicant to show that there is a reasonable prospect that evidence that he has or that is reasonably available to him can show that WSIB staff abused, harassed, and bullied him, and gave him poor customer service. He must also show that there is a reasonable prospect that he can show a link between these events and his disability. See Papouchine v. Smith, 2013 HRTO 64; Smith v. Workplace Safety and Insurance Board, 2011 HRTO 896; and Waigwe v. Easy Street Trading, 2011 HRTO 243.

20Even accepting that the actions or manner in which WSIB staff communicated with the applicant were abusive or bullying, the applicant has not been able to point to any evidence that the treatment he received was because of his disability. I agree with the approach in McGuin and Persaud, and find that the applicant has not been able to point to any evidence that the treatment he received was connected to his disability. For the above reasons, I find that the applicant is challenging the correctness of decisions made under a benefit program, and as such these allegations are outside the Tribunal’s jurisdiction.

Reprisal

21Section 8 of the Code states:

8. 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.

22This section only applies to actions that are intended as a reprisal for asserting one’s rights. See Noble v. York University, 2010 HRTO 878 at para. 31. For the allegation of reprisal to continue to a hearing on the merits, there must be a reasonable basis to believe that the applicant could establish such intention.

23In the present case, the only evidence the applicant was able to point to with respect to reprisal is that he told Mr. Neziroski that he believed his actions were discriminatory, and that he further said the same thing to Ms. Brazzier. The respondents dispute that simply accusing someone of discriminatory action would amount to claiming one’s rights under the Code. However, even accepting that it would, the applicant has not been able to point to any evidence that the respondents’ subsequent actions were intended as a reprisal for his having claimed Mr. Neziroski’s actions were discriminatory. His main argument was that, when he complained, Ms. Brazzier took Mr. Neziroski’s side, did nothing to stop the behaviour, and began engaging in the same or worse behaviour herself. That is not evidence of an intention for reprisal; that is at best evidence that the respondents’ approach did not change because of the allegations.

24In the absence of the applicant being able to point to any evidence which would support his allegation of reprisal under the Code, I find that this allegation has no reasonable prospect of success and must be dismissed.

Individual Respondents

25Given my finding that the Application must be dismissed, I do not need to address separately whether the individual respondents should be removed.

Order

26For the above reasons, the Application is dismissed.