Jeffery Seberras v. Workplace Safety and Insurance Board, 2016 HRTO 1258

Human Rights Tribunal of Ontario

B E T W E E N:

Jeffery Seberras Applicant

-and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: September 27, 2016 Citation: 2016 HRTO 1258 Indexed as: Seberras v. Workplace Safety and Insurance Board

APPEARANCES

Jeffery Seberras, Applicant David Cameletti, Counsel

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

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

2In a Case Assessment Direction dated June 19, 2015, the Tribunal directed that a summary hearing be held to determine if the Application should be dismissed, in whole or in part, as having no reasonable prospect of success.

3A hearing was held on August 25, 2015. On May 12, 2016, the Tribunal Associate Chair wrote to the parties to advise that the Vice-chair who conducted the hearing was unable to complete the decision and that the matter would be re-heard by a different adjudicator. The Application was assigned to me and a summary hearing was held by telephone conference call on September 23, 2016. The applicant appeared and was represented by Mr. Cameletti. The respondent was represented by Mr. Bullen.

Issues in the Application

4The applicant suffered a work-related injury in August 2009. The WSIB allowed the claim and determined that the applicant could not return to his pre-injury job. He was provided with labour market re-entry services which included retraining.

5In this Application, the applicant alleges that the WSIB discriminated against him because of disability during the labour market re-entry process in regards to decisions it made about accommodation requests he made, such as payment for a driver to get him to appointments and payment for a tutor to assist with school work.

6In March 2015, the WSIB Claims Manager determined that the applicant had fully recovered from the effects of the work-related injury by October 1, 2009. The Claims Manager found that the applicant was not entitled to the benefits he had received after October 1, 2009. An overpayment was created. The WSIB also pursued charges in court regarding an alleged failure to notify the WSIB of a material change in circumstance that affected the applicant’s entitlement to benefits.

7The applicant had filed an earlier claim for benefits with the WSIB for a claimed work-related chronic stress condition.

8Sections 13(4) and (5) of the Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended (“WSIA”), provide:

13. (4) Except as provided in subsections (5) and 14 (3), a worker is not entitled to benefits under the insurance plan for mental stress.

(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

9The Board determined that the applicant's claim for benefits did not meet the criteria established by section 13 and the applicable policies of the Board and the applicant’s claim for benefits was denied.

10The applicant filed an Application with this Tribunal alleging that the denial of benefits resulted from discrimination because of disability as the legislation and the policies create a distinction based on the cause of a disability.

11The Application was considered by a Panel of the Tribunal in a case that featured a number of interveners. On January 17, 2012, the Panel issued Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 which found that the Tribunal had jurisdiction to deal with the Application. The Application was later deferred to a related proceeding at the Workplace Safety and Insurance Appeals Tribunal and was not reactivated.

12In this Application, the applicant alleges that the WSIB reprised against him because he had brought the earlier Application. He alleges that the reprisal included the decision to put him under surveillance and the subsequent decisions to retroactively revoke his entitlement to benefits.

Deferral

13Section 45 of the Code gives the Tribunal’s authority to defer consideration of an Application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

14Deferral of an application ensures that proceedings dealing with the same issues do not run at the same time, to reduce the possibility of inconsistent decisions on facts or law.

15Some 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 type of remedies available in the other proceeding, and whether it would be fair overall to the parties to, having regard to the status of each proceeding and the steps that have been taken to pursue them.

16When considering whether to defer consideration of an Application to a proceeding under the WSIA, an important question is whether the proceeding under WSIA is likely to deal with issues relevant to the Application within a reasonable period of time.

17In this case, the applicant has filed an appeal with the Workplace Safety and Insurance Appeals Tribunal. He has not yet received a date for the appeal and a date may not be assigned for quite some time. However, the parties agree that the question of whether the applicant has any ongoing disability after October 2009 is critical to all the allegations in the Application. The parties agree that it is appropriate for there to be a final decision on this issue before the allegations in this Application can be considered and that the Application should be deferred at least until the WSIAT has issued a decision.

18I agree with the parties that the Application should be deferred until there is a final decision from the WSIAT regarding the applicant’s entitlement to benefits under the WSIA. The Application is therefore deferred until the WSIAT has issued a final decision on the applicant’s appeal.

19After the WSIAT has issued its decision, the applicant must do one of the following within two months of the decision of the WSIAT:

1. Ask that the Application be re-activated.
2. Ask that the Application be further deferred
3. Advise that he does not wish to pursue the Application.

Direction

20The Application is deferred.