Gillespie v. Workplace Safety and Insurance Board, 2016 HRTO 421

Human Rights Tribunal of Ontario

Between:

Robert Gillespie Applicant

-and-

Workplace Safety and Insurance Board Respondent

Decision

Adjudicator: Ken Bhattacharjee Date: April 5, 2016 Citation: 2016 HRTO 421 Indexed as: Gillespie v. Workplace Safety and Insurance Board

Written Submissions

Robert Gillespie, Applicant Self-represented

1The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2The applicant claimed benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, as amended, after an incident at work which resulted in him going to the hospital. The respondent decided that he was entitled to physiotherapy benefits for certain injuries, but was not entitled to loss of earnings and other benefits because there was no clinical information that time off work was required, and some of his symptoms were not caused by the accident at work.

3On December 8, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to services because of his disability. Specifically, he alleged that the respondent’s decision to deny him full benefits was discriminatory because it was based on his prior disability, and the respondent did not ask his employer to accommodate his disability-related needs or provide him with light duties.

4On December 10, 2015, the Tribunal issued a Case Assessment Direction (“CAD”), which stated at paras. 4-6:

In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, a Panel of the Tribunal concluded:

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 reevaluate the substantive or procedural correctness of a decision under another statutory scheme.

In this case, it appears that the Application relates to decisions the respondent has made about the applicant’s entitlement to benefits under the Workplace Safety and Insurance Act. In particular, the applicant appears to allege that the respondent misinterpreted the evidence about the nature of his pre-existing condition and the nature of the work-related injury. This appears to be an allegation that the WSIB decision-makers made the wrong decision based on the evidence. The Tribunal has found it does not have jurisdiction to deal with this sort of allegation. In general, if the Tribunal does not have jurisdiction to deal with an Application, it should be dismissed rather than deferred.

The applicant may make submissions about why the Tribunal has jurisdiction to deal with the Application….

5On December 29, 2015, the applicant filed written submissions, which stated that his Application is within the Tribunal’s jurisdiction because he is alleging that the respondent violated both its own rules and the Code when it denied him benefits. Specifically, he stated that the respondent treated him differently and unfairly because he had a prior disability, and misapprehended the evidence about whether or not his employer knew of his accident.

6I disagree. In my view, the Application is outside the Tribunal’s jurisdiction. As was set out in the CAD, 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. In Seberras, above, the Tribunal further explained the rationale for this principle at paras. 21-22:

We agree that the Legislature did not intend for the Tribunal be a mechanism for appeal of decisions of the WSIB and other statutory decision makers. We believe that this concern is addressed by a proper understanding and definition of substantive discrimination under the Code. Indeed, in various decisions since Ballieram the Tribunal has dismissed applications that allege merely that a decision relating to government or private disability benefits has been incorrectly made: see, for example, Barron v. Workplace Safety and Insurance Board, 2011 HRTO 2168, and Matthews v. Chrysler Canada Inc., 2011 HRTO 1939.

As emphasized in Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797 (“Zaki #2”), at para. 15, to proceed through the Tribunal’s process there must be something more than an assertion that the applicant’s particular disability was not dealt with properly in a particular case to establish discrimination, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds. As the Tribunal stated at para. 1:

[T]he prohibition against discrimination because of disability in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) does not give this Tribunal the power to review decisions under disability-based benefit programs to determine whether they are correct under the legislation, regulations, or policies governing the program; this would be giving an appeal function to the Tribunal that the Legislature did not intend. Of course, as the Tribunal has recognized in other cases, discrimination in government and other benefit programs may be found in other ways such as policies, systemic practices, or considerations based on prohibited grounds irrelevant to the decision being made.

An Application that is merely an appeal of a decision under statute should be dismissed on the basis that it cannot be reasonably considered to amount to a Code violation….

7The applicant is asking this Tribunal to review the respondent’s denial of his claim for benefits to determine whether or not the denial was correct, which this Tribunal has no jurisdiction to do. Although, on its face, the allegation in his Application is that the respondent violated both its own rules and the Code when it denied him benefits, the essence of this allegation is that the respondent’s decision to deny him benefits under its benefits programs is wrong. He is not alleging that there were systemic problems, policies, or other considerations unrelated to the implementation of the program that differentiated based on disability.

8The Application is dismissed.