Bradley v. Workplace Safety and Insurance Board, 2016 HRTO 1355

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Bradley Applicant

-and-

Workplace Safety and Insurance Board Respondent

DECISION

Adjudicator: Josée Bouchard Date: October 19, 2016 Citation: 2016 HRTO 1355 Indexed as: Bradley v. Workplace Safety and Insurance Board

APPEARANCES

Laura Bradley, Applicant Trisha Simpson, Counsel

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

Introduction

1The applicant filed an Application on December 2, 2010, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability. On November 7, 2011, by Interim Decision, 2011 HRTO 2021 (“the Interim Decision”), the Tribunal deferred consideration of the Application until completion of the appeal process available to the applicant at the Workplace Safety and Insurance Board (“WSIB”) and the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

2On September 12, 2016, the Tribunal held a preliminary hearing to consider the following:

1. whether the Application should be reactivated pursuant to Rule 14 of the Tribunal’s Rules of Procedure (“Rules”);
2. whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application;
3. whether the Tribunal has jurisdiction over decisions made by WSIB Claims Managers.

Reactivation

Parties’ Submissions

3Rules 14.3 and 14.4 of the Rules outline the procedure by which a party may proceed with an application that has been deferred. The Rules specify that a request to proceed must be filed no later than 60 days after the conclusion of the other proceeding.

4On August 21, 2015, the WSIAT issued Decision No. 1054/15, 2015 ONWSIAT 1864 (“WSIAT Decision”), denying the applicant’s appeal from a WSIB decision. On September 24, 2015, within 60 days of the conclusion of the WSIAT proceeding, the applicant filed the WSIAT Decision with the Tribunal and delivered a copy to the respondent. On October 5, 2015, the Tribunal wrote to the applicant confirming receipt of the WSIAT Decision and indicating that if the applicant intended to reactivate the deferred file, she had to file with the Tribunal, and deliver to the respondent, a Request for an Order During Proceedings requesting reactivation (“request to reactivate”).

5On February 25, 2016, the applicant filed the request to reactivate.

6On April 19, 2016, the respondent requested the dismissal of the request to reactivate for delay. It observes that the WSIAT Decision was issued on August 21, 2015, and the applicant filed the request to reactivate on February 25, 2016, over six months after the WSIAT Decision was rendered.

7The respondent argues that the applicant and her counsel ought reasonably to have known the timeline for filing the request to reactivate. In particular, the Tribunal’s Interim Decision granting the deferral of the Application and the Tribunal’s correspondence of May 13, 2015 to the parties referred to the applicable Rules.

8The respondent observes that the Tribunal has rendered a number of decisions in which it has denied reactivation exclusively because of delay where the applicant failed to provide a valid explanation or good faith reason for the delay. In those cases, the Tribunal did not consider whether the respondent had suffered any prejudice. See McLachlan v. Forensic Investigations of Canada, 2013 HRTO 506, Thompson v. Liquor Control Board of Ontario, 2013 HRTO 1847, and Heron v. Canadian Blood Services, 2015 HRTO 664.

9The respondent argues that the applicant and/or her counsel had adequate knowledge of the Rules and filing deadlines and should have complied with them. In the alternative, the respondent maintains that ignorance of the Rules does not constitute a reasonable explanation for failing to meet the time limits.

10The applicant observes that Rules A3.1 and 3.2 provide for a liberal and purposeful interpretation of the Rules and that they are not to be interpreted in a technical manner. The applicant argues that Rule 1.7 allows the Tribunal to vary time limits in order to provide for the fair, just and expeditious resolution of any matter before it.

11The applicant maintains that the Tribunal has considered the following factors when assessing whether an untimely request for reactivation should be granted: whether the delay was incurred in good faith; and whether any substantial prejudice to the respondent would result from extending the time limit. See Marc-Ali v. Graham, 2012 HRTO 502 at paras. 19-22.

12The applicant lists the following factors to show that the delay was incurred in good faith:

1. The applicant has consistently responded to the deadlines set out in correspondence from the Tribunal;
2. The October 5, 2015 letter from the Tribunal informing the applicant of the requirement to file a request to reactivate did not include a deadline;
3. The applicant mistakenly assumed that there was no deadline and failed to understand the requirements under Rules 14.3 and 14.4 to file within 60 days;
4. The applicant filed the WSIAT Decision in a timely manner but mistakenly believed that this would be sufficient to show an intention to reactivate the Application.

13The applicant further submits that the respondent would not be substantially prejudiced by the reactivation in part because the applicant delivered the WSIAT Decision to the respondent on September 24, 2015.

Analysis and Decision

14The Application is reactivated.

15In Baker v. Kingston General Hospital, 2010 HRTO 122, the applicant filed a request to reactivate the Application more than nine months after she was advised of the withdrawal of her grievances. The Tribunal granted the request on the basis that the applicant intended to reactivate her application and took steps that were genuinely, albeit mistakenly, assumed sufficient to do so.

16I find that the applicant had a mistaken belief that she had taken the necessary steps to reactivate the Application by sending the WSIAT Decision to the Tribunal, with a copy to the respondent, shortly after it was issued. This matter has been ongoing for almost six years and dismissing it due to an inadvertent delay in filing the appropriate form would prejudice the applicant. The respondent has not shown that it would suffer a prejudice as a result of reactivation. I order the reactivation of the Application.

Application of Section 45.1 of the Code

Facts

17The applicant was injured in the course of her employment as a Health Care Aide on or about October 10, 2006. The applicant claimed benefits under the WSIA for an injury to her neck. The claim was assigned to a Claims Adjudicator (now Case Manager) for ongoing administration and decision-making.

18In May 2008, the Board granted entitlement to a Labour Market Re-entry (“LMR”) plan pursuant to s. 42 of the WSIA to assist the applicant to return to the labour market. An LMR assessment was conducted and a Suitable Employment or Business (“SEB”) of “Community & Justice Worker” was selected. An LMR plan was developed that envisaged the worker participating in some academic upgrading, computer training, a college diploma program and some job search training.

19Under the LMR, the applicant commenced participation in a college course but had problems completing it. In November 2009, the applicant requested that her SEB be changed “due to her pain limiting her abilities and tolerance to attend school on a full-time basis”. See WSIAT Decision at para. 12. On December 2, 2009, the Case Manager confirmed the closure of the applicant’s LMR plan for non-cooperation and the reduction of her loss of earnings benefits to reflect what she would have been able to earn had she completed the LMR plan as of December 3, 2009.

20In May 2011, the Case Manager was asked to reconsider the termination of benefits but decided not to change the prior decision.

21The applicant objected to the conclusions of the Case Manager and the matter was referred to an Appeals Resolution Officer (“ARO”). In May 25, 2012, the ARO confirmed the suitability of the SEB and LMR plan closure effective December 2, 2009 due to non-cooperation.

22The May 25, 2012 ARO decision was appealed to the WSIAT and is the subject of this Decision.

Parties’ Submissions

23The respondent submits that the Application should be dismissed pursuant to s. 45.1 of the Code as the WSIAT Decision has appropriately deal with its substance.

24The respondent observes that the main issue addressed in the WSIAT Decision relates to the suitability of the SEB and the LMR plan established for the applicant’s return to work after her workplace accident. The respondent argues that the allegations made in the Application turn on the exact same issue: that the applicant needed accommodation for her LMR plan and the WSIB failed to accommodate her non-compensable disability in establishing the SEB and the LMR plan.

25The respondent notes that the WSIAT Decision found both the SEB and the LMR plan suitable for the applicant. It argues that the WSIAT arrived at this conclusion by considering the applicant’s particular circumstances. The respondent maintains that the WSIAT considered and addressed the applicant’s allegation that her SEB and LMR plan were unsuitable because of the respondent’s failure to accommodate her disability. The respondent argues that the WSIAT did not find that either one was discriminatory under the Code.

26The respondent also maintains that the applicant seeks a remedy that this Tribunal does not have jurisdiction to award because it is within the respondent’s exclusive jurisdiction, more specifically a compensation for loss of earnings benefits from December 2009 onwards. In addition, the respondent submits that the WSIAT Decision has already appropriately dealt with this issue.

27The applicant submits that the legal issue decided in the WSIAT Decision is not the same as the issue to be decided by this Tribunal. The issue in the WSIAT Decision was whether the applicant was entitled to WSIB loss of earnings benefits following her workplace injury and attempted LMR plan. Although the WSIAT noted the applicant’s position that the WSIB failed to properly accommodate her during her LMR plan, it made no finding of fact on that issue.

28The applicant maintains that the WSIAT only has jurisdiction to address work related injuries and as such, it never considered whether the respondent appropriately accommodated the applicant’s non-work-related conditions during her LMR plan.

29The applicant maintains that it is this Tribunal that has the jurisdiction to determine whether the respondent properly accommodated the non-work-related injuries and that the issue has never been determined by another administrative tribunal.

Analysis and Decision

30Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its Rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

31In interpreting this section, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”). 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 (“Claybourn”); companion decision upheld on judicial review Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085.

32In Post v. Stevens Resources Group, 2014 HRTO 1470 (“Post”), the Tribunal reviewed these decisions and concluded:

According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the human rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are:

1. whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it;
2. whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and
3. whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?

33It is well-established that the WSIAT has jurisdiction to apply the Code in its adjudication of claims for benefits. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14.

34I turn now to the three-pronged criterion outlined above. The first question to consider is whether the applicant had an opportunity to know the case she had to meet before the WSIAT and whether she had the chance to meet it.

35I find that the applicant clearly understood the case to meet before the WSIAT, including the human rights issues, and had full opportunity to present evidence and make submissions concerning those issues. At paras. 25 and 26 of its Decision, WSIAT describes the detailed testimony provided by the applicant about the specific references to the accommodation provided to her:

The worker testified that the only accommodation provided to her at school was placing her monitor on two phonebooks in order to keep her from having to move her neck up and down. She was also provided with a paper/book holder to elevate her materials. There was never any ergonomic assessment conducted of the school.

The worker recalled asking the Board for a change in her SEB or even to allow her to take the courses online. The Board denied both requests. No further SEB options were discussed. She thought an employment goal of a medical clerk might be suitable as it would not be particularly strenuous and would not involve a lot of typing.

36I turn now to considering whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal.

37While the WSIAT has concurrent jurisdiction with this Tribunal to apply the Code, it does not have the same jurisdiction. For example, and as the respondent noted, the WSIAT and the Tribunal have different jurisdiction regarding remedies: the Tribunal does not have jurisdiction to award remedies to compensate for loss of earnings under a WSIB proceeding, a remedy within the exclusive jurisdiction of WSIB/WSIAT proceedings, and the WSIAT cannot award compensation for injury to dignity, feelings, and self-respect as a result of discrimination. See Post, above.

38The main question, however, is whether the previously decided legal issue was essentially the same as what is complained about before the Tribunal. See Post, above.

39In this case, it appears that the substance of the Application is whether the applicant required an accommodation for her disability to continue with her LMR plan and whether the WSIB failed to provide that accommodation. The Application specifically refers to the applicant’s disability as a physical condition as a result of a whiplash as follows:

As a result of a whiplash injury, Ms. Bradley sustained at work in October 2006, she experienced chronic pain when doing repetitive arm movements, sustained neck flexion and lifting anything in excess of 15-20 pounds.

Ms. Bradley experienced neck stiffness and extreme pain in her left arm when using the computer course she was taking under the Labour Market Re-entry plan. This plan was established with the WSIB.

On November 25, 2009 […] the WSIB confirmed in writing that they were refusing Ms. Bradley’s request to change her LMR plan due to lack of medical evidence to support her claim that her pain limits her ability to attend and participate in the school program on a full-time basis […]

In Ms. Bradley’s family doctor’s letter dated December 3, 2010, it states that she is unable to attend LMR program for 20 hours per week because it would have a negative impact on her physical condition

40The issue before the WSIAT was whether the SEB and LMR plan established for the applicant’s return to work after a workplace accident was suitable (WSIAT Decision at para. 35):

The essence of the worker’s position on this issue is that while she was initially enthusiastic about the selection of this SEB and optimistic about successfully completing her LMR plan, the effects of her compensated CPD [chronic pain disability] made it impossible for her to realize her goals. It was the worker’s position that the WSIB ought to have changed the SEB to take into account the problems she was experiencing. She did not believe she was provided with sufficient opportunity to succeed in the program and this included an absence of ergonomic assistance.

41In determining the suitability of the SEB and LMR plan, the WSIAT considered comprehensive evidence about the applicant’s medical condition, her accommodation needs and the impact on the suitability of the SEB and LMR plan. This included the applicant’s testimony about her accommodation needs and the accommodation provided to her, the medical evidence related to the applicant’s physical and mental health that were taken into account during the WSIB process, and the WSIB Case Managers’ efforts to accommodate the applicant while in the LMR plan. In reaching its conclusion that the SEB and LMR plan were suitable, the WSIAT took particular note of the following, at para. 36 of the WSIAT Decision:

While I acknowledge the position put forward by the worker and her representative, after considering all of the evidence before me, I find, on a balance of probabilities, that the SEB of Community & Justice Service Worker was suitable for this worker as was the LMR plan designed. In reaching that conclusion, I have taken particular note of the following:

In her testimony the worker acknowledged that she had been actively involved in the selection of this SEB. This is consistent with the comments of the service provider in the LMR Plan Proposal and Assessment […]

The worker's LMR plan was put on hold while she sought treatment for her depression. At that point, the Board considered making changes to her LMR plan but the worker wished to continue with the original SEB […]

In his report of April 27, 2009, the worker's family physician, Dr. Savic confirmed that the worker was “able to successfully participate in a two year independent college program” and also commented upon the worker expressing “strong will to participate in this college program”.

Dr. Savic’s comments were reviewed with the worker during a “frank discussion” between the Case Manager and her in April 2009 […] The Case Manager noted that “as both the worker and her GP feel it is possible I will support LMR/SEB Comm & Justice Worker”.

42The WSIAT concluded that there was insufficient medical evidence of any significance to suggest that by November 2009, the applicant’s compensable chronic pain disability, her physical medical condition, had rendered the SEB inappropriate or made it impossible for her to continue with the LMR plan.

43I find that the substance of the issue dealt with by the WSIAT is essentially the same as the issue in the Application before this Tribunal. If the WSIAT had found that the LMR plan was not suitable because of the applicant's disability and accommodation requirements, the applicant could have been entitled to benefits. The fact that the WSIAT did not have jurisdiction to award the same damages that this Tribunal has the power to award if discrimination were found does not alter the fact that the substance of the Application and the substance of the issue before the WSIAT are essentially the same.

44In addition to the above-mentioned considerations, Penner, above, requires the Tribunal to consider whether it would be unfair for the proceeding before the WSIAT to preclude the applicant from bringing the Application to this Tribunal.

45I find that none of the indicators of unfairness identified in Penner applies here.

46The Penner majority introduced this issue in the following terms at paragraph 42:

The second way in which the operation of issue estoppel may be unfair is not so much concerned with the fairness of the prior proceedings but with the fairness of using their results to preclude the subsequent proceedings. Fairness, in this second sense, is a much more nuanced enquiry. On the one hand, a party is expected to raise all appropriate issues and is not permitted multiple opportunities to obtain a favourable judicial determination. Finality is important both to the parties and to the judicial system. However, even if the prior proceeding was conducted fairly and properly having regard to its purpose, injustice may arise from using the results to preclude the subsequent proceedings. This may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings. We recognize that there will always be differences in purpose, process and stakes between administrative and court proceedings. In order to establish unfairness in the second sense we have described, such differences must be significant and assessed in light of this Court’s recognition that finality is an objective that is also important in the administrative law context.

47An important consideration in Penner was the different purpose of the two proceedings and the reasonable expectations of the parties about those proceedings. It appears that the expectation of the parties before the WSIAT was that it would determine whether the SEB and LMR plan were suitable in light of the applicant’s disability and that this determination would include a consideration of whether the applicant had been appropriately accommodated. This was the main issue before the WSIAT and the issue that the parties made submissions about.

48A second factor in Penner is whether the applicant had a financial stake in the outcome of the other proceeding. The applicant did have a financial stake in the proceeding before the WSIAT. If the applicant had succeeded in her appeal before the WSIAT, she could have been entitled to benefits.

49Finally a third factor in Penner was the independence of the other proceeding. The WSIA established the Workplace Safety and Insurance Appeals Tribunal (WSIAT) as an independent appeal body.

50When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate. Post, above.

51I conclude that section 45.1 of the Code applies as the WSIAT Decision has appropriately dealt with the substance of the Application.

Jurisdiction

52Given my decision to dismiss the Application pursuant to section 45.1 of the Code, I will not consider whether the Tribunal has jurisdiction over decisions made by WSIB Case Managers.

Order

53The Tribunal orders as follows:

1. The Application is reactivated.
2. The Application is dismissed pursuant to section 45.1 of the Code.

Dated at Toronto, this 19th day of October, 2016.

“Signed by”

Josée Bouchard Vice-chair