McGuin v. Workplace Safety and Insurance Board, 2016 HRTO 63

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Blair McGuin

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: January 14, 2016

Citation: 2016 HRTO 63

Indexed as: McGuin v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Peter Blair McGuin, Applicant Shawn Weston, Paralegal

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

1The applicant has requested a reconsideration of the Tribunal’s Decision 2015 HRTO 123 (“the Decision”). The Decision concluded that the applicant had been misled by a Workplace Safety and Insurance Board (WSIB) Claims Manager about the impact on benefit entitlement if he was required to temporarily withdraw from a Work Transition program to have surgery for a non-compensable condition. The applicant alleged that the Claims Manager told him that his entitlement to the Work Transition program would end and his benefits would be terminated. After the applicant obtained representation from Mr. Weston, it was clarified that, pursuant to the applicable WSIB policies, the applicant’s benefits would be only reduced and his participation in the Work Transition program suspended only for the period that he could not participate in it. The applicant proceeded to have the surgery and in the end he remained on full benefits and resumed the labour market re-entry program after a quick recovery from the surgery.

2The respondent disputed that the applicant had been misled in the manner he alleged, although it agreed that the applicant was not originally provided with fully accurate information.

3While there is a dispute between the parties about what exactly was said between them, the Decision considered the issue of whether the respondent had discriminated against the applicant on the assumption that the applicant’s allegations about what he was told were true. The Decision concluded that the Claims Manager had not discriminated against the applicant because there was no evidence that she provided the applicant with incorrect information because of a reason related to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4In the Request for Reconsideration, the applicant asserts that the Decision did not deal with a principal argument that the applicant advanced during the hearing and also failed to discuss a case that the applicant's representative referred to in his submissions.

The test for reconsideration

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

6Rule 26 of the Tribunal’s Rules of Procedure states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

7The Tribunal’s Practice Direction on Reconsideration states in part:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

8The Tribunal also stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

The Request for Reconsideration

9The Request for Reconsideration (“the Request”), filed by Mr. Weston on the applicant’s behalf, argues that the real issue in the Application is whether the respondent appropriately accommodated the applicant's disability-related needs under section 1 and section 11 of the Code. The Request submits that the Decision did not deal with this issue and instead dealt only with the issue of whether the alleged misinformation that was provided to the applicant was discriminatory.

Section 11 of the Code

10The Request notes that the Decision did not deal with section 11 of the Code, which provides:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

11Section 11 prohibits what is sometimes called “constructive discrimination” which is different that “direct discrimination”. With respect to disability and the WSIB, constructive discrimination may arise when a seemingly neutral or non-discriminatory policy, rule or practice results in the exclusion of a group of people who are identified by disability.

12The Request refers to Hayes v. Workplace Safety and Insurance Board, 2012 HRTO 2126, which is an example of how section 11 may apply to decisions of the WSIB. Depending on the year of injury, some injured workers receive benefit payments by cheque in the mail and others are paid by direct deposit. In Hayes, the injured worker received benefits by cheque and wanted to be paid by direct deposit instead. The applicant submitted that because of his disability it was sometimes difficult to get to the bank to deposit his cheque. In Hayes, the Vice-chair concluded that the seemingly neutral rule that workers with certain injury dates receive payment by cheque had an adverse effect on Mr. Hayes because of his disability.

13Section 11 was not discussed in the Decision because there was never any suggestion that the alleged discrimination in this case arose from constructive discrimination.

14The applicant was clear that if the Claims Manager had provided him with correct information when he first asked about what would happen if he had to temporarily stop the Work Transition program to have surgery, he would have undergone the surgery much earlier and would have been able to avoid a long period of increased symptoms with the associated pain and disability.

15When the correct policies were identified and applied, the applicant understood that his benefits would only be reduced and his participation in the Work Transition program suspended. He then proceeded to have the surgery. As it turned out, because of the relatively short recovery time, the applicant's benefits were not reduced at all.

16The problem in this case was not a requirement, qualification or factor that resulted in exclusion, restriction or preference. The problem was that the applicant was allegedly given wrong information about the effect that his non-compensable condition would have on his ongoing entitlement to benefits. When they were properly interpreted and applied in his case, the applicable policies allowed him the accommodation that he required. The problem in this case arose because the Claims Manager allegedly did not initially correctly apply the policies.

17As noted in the Decision, if the wrong information had been provided because of discrimination on a prohibited ground, the misinformation could have been discriminatory.

18For this reason, the Decision considered whether the applicant had experienced direct discrimination. I found there was no evidence that the applicant had been provided with incorrect information for discriminatory reasons.

19According to the Request, the applicant's questions about what would happen to his benefits if he had to temporarily stop the Work Transition program should have been understood as a request for accommodation of his disability. The Request argues that the Claims Manager failed to accommodate the applicant's disability by telling him that his benefits and entitlement to the program would be cut off entirely. The Request argues that the focus of the enquiry should be on the effect on the applicant. The information provided by the Claims Manager had an adverse effect on the applicant and, the Request argues, was therefore discriminatory.

20It is true that when assessing claims of discrimination, it is not necessary to show that the person causing the discrimination intended to discriminate and that the issue instead is the effect on the person. However, discrimination does not necessarily result only because a person with a disability experiences an adverse effect from an action or, as in this case, from information or misinformation. For example, in the course of adjudicating a worker’s claim for benefits, WSIB decision-makers may make a large number of decisions, some of which may have an adverse effect on the worker in the sense that the worker does not get a benefit which the worker believes he or she is entitled to. As noted in the Decision, this Tribunal has been clear that disputes about adjudicative decisions to benefits under statutory schemes such as the WSIB are not disputes that are properly resolved at this Tribunal.

21The basis for the argument that the applicant's question about what would happen to his benefits if he had to temporarily stop the program should have been understood as a request for accommodation is still not clear to me. The duty to accommodate arises under section 17 of the Code:

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

22As I understand the applicant's position, to the extent that he was incapable of attending the Work Transition program because he was totally disabled for a period because of the non-compensable surgery, he wished to be able to take a temporary absence from the program and have his benefits either not reduced or partially reduced. This is in fact exactly what happened. Unfortunately, this result was delayed for a period because the Claims Manager allegedly gave the applicant wrong information. As noted in the Decision, while this obviously created hardship for the applicant and adversely affected him, it does not follow that his Code-protected rights were infringed.

DECISION

23The applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.