Hodgson v. Workplace Safety and Insurance Board, 2016 HRTO 513

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ann Marie Hodgson

Applicant

-and-

Workplace Safety and Insurance Board, Lori Vassiliadis, Michelle Munkoh, and Patricia Sullivan

Respondents

DECISION

Adjudicator: Mary Truemner

Date: April 20, 2016

Citation: 2016 HRTO 513

Indexed as: Hodgson v. Workplace Safety and Insurance Board

APPEARANCES

Ann Marie Hodgson, Applicant

Self-represented

Workplace Safety and Insurance Board, Lori Vassiliadis, Michelle Munkoh, Respondents

Samara Belitzky, Student-at-law

Introduction

1The applicant filed an Application alleging that the Workplace Safety and Insurance Board (“the WSIB”) and the personal respondents, its employees, discriminated against the applicant in services contrary to section 1 of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that the Tribunal does not have jurisdiction to deal with the allegations and/or there is no reasonable prospect that the Application or part of the Application can succeed. The CAD explained that the summary hearing would afford the applicant an opportunity to clarify her allegations, to clarify if they relate only to benefit entitlement issues over which this Tribunal does not have jurisdiction, and to explain what evidence she will be able to produce if the Application goes ahead to a hearing that will show that she has been discriminated against.

3The CAD also alerted the parties to be prepared to argue whether the individual WSIB employees should be removed as personal respondents, and whether, if the Application is not dismissed, it should be deferred.

4The summary hearing was held on February 9, 2016.

5As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

Summary Hearing Process

6A summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed. The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

8Many of the allegations in this Application seem to relate to decisions that the respondents have made regarding the applicant's entitlement to benefits from the WSIB because of an injury to her wrist incurred at her previous workplace.

9The Tribunal held as follows in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 (“Seberras”) at paragraph 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.

10At the summary hearing, however, the applicant claimed that the allegations she is making in the Application are not with respect to the decisions of the WSIB about her entitlement to benefits. She has appeals filed in the WSIB system with respect to those decisions. She explained that the reason she filed the Application at the Tribunal was because of insulting comments the three personal respondents made to her in processing her claims for benefits. She believes that they were so insulting that they constitute Code violations.

Analysis

11For the purposes of determining whether there is no reasonable prospect of success for the allegations as explained at the summary hearing, the Tribunal will accept, at this stage, that the alleged comments were made in this case.

12The Tribunal will also accept that, generally speaking, insults may constitute discrimination under the Code depending the context in which they were made, and whether there was any adverse treatment caused by the insults. Sometimes insults create a poisoned environment that may be considered discrimination.

13In this case, the applicant may genuinely have believed or perceived that certain comments were insulting, but that does not necessarily determine whether there is no reasonable prospect of success for the allegations. I say this because of the context in this case, where the personal respondents are required to ask questions of and make suggestions to any claimant for WSIB benefits to assess the extent of their disability and to consider appropriate job duties and limitations for them to return to work.

14As well, there must be an objective component in analysing whether the comments, given the plain meaning of the words used and their context, might reasonably be characterized as insulting to determine whether there is no reasonable prospect of success for the applicant to establish that the comments might be considered discriminatory. If not objectively insulting, then there is no reasonable prospect of success for the applicant to prove adverse treatment, a component required for a finding of discrimination.

First Set of Allegedly Insulting Comments

15The first set of comments had to do with Lori Vassiliadis’ alleged mocking of the applicant’s medical problems with respect to her eyes, problems that did not occur at work, but which existed prior to the work accident that injured the applicant’s wrist. Ms. Vassiliadis was employed by the WSIB as a work transition specialist. She engaged with the applicant in assessing what work the applicant might do with another employer.

16The applicant alleges that she told Ms. Vassiliadis that she could not work on a computer for prolonged periods because of her eyes. She told Ms. Vassiliadis that some days she cannot use the computer, and that she does not own a cell phone because the medical condition of her eyes does not allow her to use one. She explained to Ms. Vassiliadis that she did not want to go blind working on a computer, but she alleges that Ms. Vassiliadis still insisted that she go for a computer assessment, and told the applicant not to worry because “there are computers for blind people”. The applicant agreed that the assessment process may have been to assess her computer skills in order for WSIB to determine whether it should support the applicant in obtaining computer work.

17The applicant explained at the summary hearing that she eventually attended two computer assessment sessions, and the people facilitating at them allowed her to complete the assessments using paper instead of a computer in order to accommodate her eye problems. She also explained that the respondents did not require her to work at a job involving a computer.

18Ms. Vassiliadis’ comment about there being computers for blind people may have been felt by the applicant to be hurtful and mocking, but the applicant agreed that Ms. Vassiliadis’ role was to help transition injured workers to new jobs, including jobs that might be modified. Given Ms. Vassiliadis’ role, and the fact that there are indeed ways to accommodate people with eye problems and legally blind people so that they may use computers, without more evidence to prove the applicant’s opinion that the comment was insulting and discriminatory, I find that there is no reasonable prospect for the applicant to establish that the comment amounted to discrimination because of disability, or that it was a violation of the Code for any other reason.

Second Set of Allegedly Insulting Comments

19The second set of comments which the applicant characterizes as discriminatory occurred when Ms. Vassiliadis suggested that the applicant find a job serving coffee even though she was right-handed and couldn’t use her right wrist dependably. Ms. Vassiliadis suggested that the applicant use her left hand when her right hand was not dependable. The applicant argues that this suggestion is so insulting that it constitutes discrimination.

20While the applicant may genuinely have felt insulted, I see no reasonable prospect of success for a finding that the suggestion that the applicant use her left hand to serve coffee was objectively insulting, given the context of Ms. Vassiliadis’ role in exploring possible employment with the applicant, and given that the suggestion was not a demand by the respondents that the applicant work serving coffee. (The applicant explained that the respondents decided that she could try to work in sales). Without more evidence to support the applicant’s opinion that the suggestion was insulting and discriminatory, I find that there is no reasonable prospect for the applicant to prove that the suggestion amounted to discrimination because of disability, or that it was a violation of the Code for any other reason.

Third Set of Allegedly Insulting Comments

21The third set of insulting comments was allegedly triggered when the applicant complained to Ms. Vassiliadis that she needed to lift weights to maintain her neck health. She explained that she had a medical condition affecting her neck that was not incurred because of a work injury, but she told Ms. Vassiliadis that her injured wrist prevented her from lifting weights. Ms. Vassiliadis allegedly replied, “It is not WSIB’s problem; we have nothing to do with that; you are going to have to deal with it yourself.” The applicant argues that these comments were so insulting and unsympathetic that they constitute discrimination.

22Again, given the plain meaning of the words, and the context that Ms. Vassiliadis’ role was to assist with respect to the injury incurred at work only, I see no reasonable prospect of success for the applicant to demonstrate that the comments were insulting or discrimination because of disability without more evidence of discrimination or at least evidence of a different context. While I understand why the applicant may characterize the above comments as unsympathetic, a lack of sympathy is not sufficient to establish a breach of the Code. Consequently, I find that there is no reasonable prospect of success for the applicant to demonstrate that the comments were discriminatory or that they violated the Code in any way.

Fourth Set of Insulting Comments

23The applicant also alleges that when she spoke to Ms. Vassiliadis and Michelle Munkoh, a WSIB case manager, about what work she might be suited for, they told her that if she did “not want” to work on a computer, then she could be a salesperson. The applicant explained that saying she did not want to work on a computer sounded to her like not working on a computer was her preference, rather than a need arising from a disability. She felt their implication was that she was difficult or lazy which she found very insulting.

24Similarly, the applicant alleges that Patricia Sullivan, a manager at WSIB, said that the applicant “refused” to take a computer course and “refused” to look for a job as a sales person. The applicant argues that these comments are not true because she managed to find work preparing and serving sandwiches at a fast-food restaurant called Quiznos, which she considers sales. She also argues that these comments were insulting because she was not “refusing”; she was merely stating that she could not do what WSIB was asking her to consider because her disabilities, both the pre-existing eye problems and the injured wrist, “prevented” her from working with a computer or as a sales person, and she had no choice in the matter.

25The applicant may have had perfectly legitimate reasons for “not wanting to” or “refusing to” work with computers or serving coffee. Given the plain meaning of the words “refuse” and “did not want” and no evidence to support the applicant’s opinion that the respondents meant the applicant was being difficult, lazy or uncooperative, I find that there is no reasonable prospect for the applicant to establish that the respondents’ comments were insulting let alone discriminatory. The applicant made it clear that these comments were not used to deny benefits, and I don’t see that her declining the options to work with computers or to serve coffee had any effect that would infer that the respondents judged the applicant as blame-worthy for declining those options.

Summary of Findings

26I find that there is no reasonable prospect that the applicant might establish that the alleged comments of the personal respondents were insulting and discriminatory, given the words used and the contexts in which they were used. Consequently, there is no reasonable prospect for the allegations of discrimination to succeed, and it is therefore unnecessary for me to deal with the other issues raised in the CAD.

Order

27The Application is dismissed.