HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kanagasingham Kokulakanthan
Applicant
-and-
Oncidium Health Group
Respondent
DECISION
Adjudicator: Naomi Overend
Indexed as: Kokulakanthan v. Oncidium Health Group
WRITTEN SUBMISSIONS
Kanagasingham Kokulakanthan, Applicant
Stephen Ellis, Counsel
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”). However, the named respondent is not the applicant’s former employer, BMO Financial (“BMO”), but the disability claims administrator for BMO. The applicant describes the respondent as the “agent” of BMO. The applicant alleges that as a result of the respondent’s denial of benefits, he was not “accommodated” in his return to work at BMO.
2The applicant acknowledges that BMO is a federally regulated, which means that any complaint about human rights violations would proceed before the Canadian Human Rights Commission (“CHRC”). However, he takes the position that the named respondent, Oncidium Health Group (“Oncidium”), is provincially regulated.
3The parties were directed to file submissions on the issue of whether the Tribunal has the jurisdiction to address this Application in a Case Assessment Direction, dated July 13, 2016. The applicant filed submissions in response, but the respondent did not. For the reasons set out below, I find that the Tribunal does not have jurisdiction over this matter.
Decision and analysis
4In his Application, the applicant states he applied for short-term disability benefits (“STD benefits”) in August 2014, which were denied by Oncidium. He appealed this denial, but it was upheld. As a result of being denied STD benefits, he alleges that his request for a graduated return to work (at BMO) was also denied.
5In its Response, Oncidium states that it is BMO’s policy that once Oncidium denies a claim for STD benefits, entry into Oncidium’s graduated return to work program is also denied. It states that it advised the applicant that he should communicate directly with BMO about a graduated return to work or accommodation. It is important to note that any alleged failure on the part of BMO to accommodate the applicant is not with the jurisdiction of this Tribunal.
6Notably, the applicant does not dispute this explanation in his Reply. Moreover, he does not allege that Oncidium took into account discriminatory criteria in assessing his claim for STD benefits, which, in turn, resulted in him not being able to access the graduated return to work program. At best, his claim might be understood as one in which he challenges Oncidium’s application of its STD benefits policy.
7In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, the Tribunal held 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.
8The applicant was specifically directed to this passage and asked to provide submissions. His counsel noted as follows: “The applicant also submits that any allegations with regard to the denial of benefits has no relation to the Code.”
9In the absence of an allegation of discrimination on the basis of disability (or other ground under the Code), the Tribunal is without jurisdiction to consider this matter. Accordingly, it is unnecessary to consider whether this Application concerns a matter over which the CHRC has jurisdiction.
order
10The Application is dismissed.
Dated at Toronto, this 2nd day of November, 2016.
“Signed By”
Naomi Overend
Vice-chair