Sulph v. Workplace Safety and Insurance Board, 2016 HRTO 1548

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Sulph

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 2, 2016

Citation: 2016 HRTO 1548

Indexed as: Sulph v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Robert Sulph, Applicant

Jessica Ponting, Representative

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

1This is an Application dated March 16, 2016, alleging discrimination with respect to services because of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2I apologize to the parties for the delay in issuing this Interim Decision, which is entirely my fault.

3In brief, the applicant is an injured migrant worker living in Jamaica, who had worked in Ontario as a seasonal agricultural worker for 24 years until he suffered a serious workplace accident on August 16, 2013. A claim was established with the respondent Workplace Safety and Insurance Board ("WSIB") and the applicant was approved for a certain amount of loss of earnings and healthcare benefits.

4The nub of the Application is that the applicant has been unable to properly access healthcare services in Jamaica, due to the requirement that he pay for most of these services and the transportation costs to access these services out of his own pocket, which he says he cannot afford, and then only subsequently be reimbursed by the WSIB. It is alleged that the failure of the WSIB to properly assist the applicant in obtaining healthcare for the workplace injuries he suffered while working in Ontario, for example by pre-paying for healthcare and transportation costs or providing him with a stipend to pay for these costs, has created a barrier for the applicant in accessing the services he needs and amounts to discrimination on the grounds alleged.

5The purpose of this Interim Decision is to address the respondent's request for deferral of this Application pending the applicant's pursuit of appeals of the decisions of the WSIB case manager, and for a summary hearing to determine whether the Application should be dismissed as having no reasonable prospect of success.

Request for deferral

6The Tribunal may defer consideration of an application, on such terms as it may determine: Rule 14.1 of the Tribunal's Rules of Procedure. 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 type 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: see Baghdasserians v. 674469 Ontario Ltd., 2008 HRTO 404.

7In the instant case, in my view, the issue is the extent to which the proceedings before the WSIB, and potentially before the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"), will address the issues raised by the applicant in the human rights proceeding before this Tribunal. The applicant has clarified that no issue is raised in the human rights proceeding as to whether the WSIB's policies and/or practices on work transition services or loss of earnings benefits for the applicant as a migrant worker violate the Code.

8As stated above, the real issue raised in this proceeding relates to the WSIB's administration of healthcare benefits to which entitlement has been granted, as well as to the applicant's ability to provide medical documentation, which he says he cannot afford to do, in order to establish entitlement to further healthcare benefits. In my view, this is not an issue raised in the WSIB case manager decisions to which the applicant has objected, nor does it appear to be capable of being addressed in the WSIB or WSIAT appeal process.

9In addition, I am concerned that the appeal process before the WSIB is only at its earliest stages, whereby the applicant has filed his notice of objection in order to preserve his right to appeal, but has not yet proceeded any further with the appeal process. Given the status of the applicant's appeals in the WSIB process, there is little risk of conflicting findings at this stage.

10Accordingly, in my view, it is not appropriate to defer this Application at this stage of the proceeding. The respondent's request is therefore denied.

Request for summary hearing

11The respondent also has filed a request for a summary hearing to assess whether this Application has a reasonable prospect of success. Having reviewed the materials filed by the parties, this request is denied. While Rule 19A.5 does not require this Tribunal to give reasons for a decision not to hold a summary hearing, I will nonetheless provide brief reasons.

12The respondent primarily relies upon this Tribunal's decision in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, where it is stated (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. In addition, under s. 45.1 of the Code, the Tribunal cannot re-evaluate the substantive or procedural correctness of a decision under another statutory scheme.

13As indicated above, there does not appear to be any WSIB case manager decision dealing with the specific allegations of discrimination as raised in this Application, nor do these issues appear to be capable of being raised in the WSIB appeal process, as they deal with the WSIB's administration of benefits and payment for medical or healthcare services rather than decision(s) regarding entitlement.

14The respondent also takes the position that the Application has no reasonable prospect of success, as it treated the applicant in accordance with its policies and in the same manner that it treats all workers who have accidents in Ontario but who are currently living in another jurisdiction. Whether or not that is the case, it is trite law that substantive equality does not always mean treating people the same, but can require that some individuals or categories of individuals be treated differently to account for their individual needs based on personal characteristics protected under the Code. The issue raised in this Application, as I understand it, is not so much that the applicant was treated differently than other injured workers living outside Ontario, but that the way the WSIB applied and administered its policies and practices, particularly in relation to the payment for medical and healthcare services, had a discriminatory impact on him and other seasonal agricultural workers for reasons related to protected personal characteristics under the Code. In my view, the determination of that issue requires a hearing on the merits and a full evidentiary record.

15For those reasons, the respondent's request for a summary hearing is denied.

Next steps

16As both parties have indicated an interest in participating in mediation, this matter will be referred for mediation. The parties should expect to receive a notice of mediation in the near future.

ORDER

17For the foregoing reasons, the respondent's requests for deferral of this Application and for a summary hearing are denied. This matter will proceed to mediation.