Jean v. Workplace Safety and Insurance Appeals Tribunal, 2016 HRTO 471

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Jean

Applicant

-and-

Workplace Safety and Insurance Appeals Tribunal

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: April 13, 2016

Citation: 2016 HRTO 471

Indexed as: Jean v. Workplace Safety and Insurance Appeals Tribunal

WRITTEN SUBMISSIONS

Richard Jean, Applicant

Donald Porter, Paralegal

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”).

2On March 17, 2016, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because it appeared that the Application was outside the Tribunal’s jurisdiction to decide because:

• you appear to be challenging the decision or outcome of an adjudicative process. The HRTO has held on a number of occasions that such decisions are protected by the principle of adjudicative immunity and that “services” within the meaning of the Code does not include the outcome or decision resulting from adjudications by other statutory bodies, including the Courts. See for example Cartier v. Nairn 2009 HRTO 2208; Seberras v. Workplace Safety and Insurance Board, 2012 , HRTO 115.

3The NOID directed the applicant to provide submissions on whether or not the Application should be dismissed because it is outside the Tribunal’s jurisdiction. Submissions were provided. In essence the applicant submits that the decision made by the respondent arising in the context of its adjudicative process was, in one aspect, outside its jurisdiction. In particular the applicant complains that the respondent’s determination that there was a second suitable occupation that the applicant could perform retroactive to 2005 was not a determination that fell within the respondent’s jurisdiction.

4The Seberras decision noted above was made by a three-member panel of the Tribunal constituted to address the extensive and somewhat conflicting case law on whether decisions made by WSIB (and other statutory benefit providers) come within the jurisdiction of the Tribunal. At paragraph 5 of the decision, the Tribunal set out the principles to be applied in cases concerning applications against statutory benefit providers, the last of which has direct application in the instant case:

The 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 allegation 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.

5In the body of the decision, the panel in Seberras expanded on the reasons for the above principle:

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 addresses 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.

6In this case, the applicant alleges that the respondent made an improper determination in its decision that was not within its jurisdiction and that the finding had a negative impact on the benefit to which the applicant was entitled.

7In my view, the principle of adjudicative immunity as set out in Seberras above, applies here and the Tribunal has no jurisdiction to deal with any part of this Application.

8For this reason the Application is dismissed.