Matthews v. Manufacturers Life Insurance Company, 2016 HRTO 850

Human Rights Tribunal of Ontario

B E T W E E N:

Philip Matthews Applicant

-and-

The Manufacturers Life Insurance Company (Manulife Financial) Respondent

DECISION

Adjudicator: Genevieve Debane Date: June 23, 2016 Citation: 2016 HRTO 850 Indexed as: Matthews v. Manufacturers Life Insurance Company

APPEARANCES

Philip Matthews, Applicant Self-represented

The Manufacturers Life Insurance Company (Manulife Financial), Respondent Sophia Zaidi, Counsel

Introduction

1This Application filed on January 26, 2015 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to services because of disability.

2The applicant is in receipt of insurance benefits from the respondent. There is a long history between these parties. The applicant filed a previous Application with the Tribunal which was dismissed as against the respondent in this Application on October 26, 2011. See Matthews v Chrysler Canada Inc., 2011 HRTO 1939 (the “Interim Decision”).

3The applicant alleges that the respondent has harassed him by sending him requests for documentation. It appears that the respondent has been periodically corresponding with the applicant to verify that he continues to be totally disabled within the meaning of the insurance policy. The respondent has also been asking the applicant to advise it of the status of his application for disability benefits available through the Canada Pension Plan (“CPP benefits”) because it can set this amount off against any disability benefits paid to him. The applicant also alleges that the respondent failed to accommodate him because it has not assisted him in appealing a decision with respect to the denial of his CPP benefits.

4On August 26, 2015, the Tribunal issued a Case Assessment Direction which directed that a preliminary hearing would be held to determine if the Application should be dismissed pursuant to s. 45.1 of the Code and as having no reasonable prospect of success.

5In a letter dated August 10, 2015 the applicant requested accommodation, including that the hearing could not last more than three hours, and could not be scheduled between September 15, 2015 and March 15, 2016.

Conduct of the Summary Hearing

6In accordance with the applicant’s request for accommodation the Tribunal scheduled a three hour telephone hearing on April 4, 2016. In advance of the hearing the applicant filed written submissions.

7At the hearing the applicant advised that he could only participate for an hour. I advised the applicant that this should not be an issue because the summary hearing may not last that long. I did note, however, that the applicant had not made this request to the Tribunal in advance of the hearing. The applicant responded that the request was somewhere in the file.

8The applicant has submitted that he is tired of dealing with “these idiots”, that he will be making complaints at the Law Society against the respondent’s lawyers and that he will be referring the matter to the media. He explained that all of his submissions had been made in writing to the Tribunal and that he had nothing to add. The applicant stated that the respondent’s conduct has had a severe impact on his mental health.

9The respondent proceeded to make submissions on the issue of s.45.1 of the Code. After a few minutes, the applicant objected on the basis that he did not have time to prepare to respond to these submissions. I permitted the parties to make submissions on the issue so that I could make a ruling on the applicant’s objection. The applicant stated that he was being ambushed by the respondent and that he did not care what I think or what I do. The respondent took the position that it was essentially repeating the arguments contained in its Response and its Request for an Order during Proceedings filed on August 21, 2015, which included detailed caselaw.

10After considering the matter I advised the applicant that the hearing would proceed. I found that the applicant had notice of the issues to be raised at the summary hearing in the CAD sent to the parties. Further, the respondent’s submissions were essentially the same as previously made to the Tribunal in writing on at least two occasions. I was satisfied that the applicant had over eight months to consider and prepare for the respondent’s submissions and, indeed, had filed numerous written submissions in response.

11After I made this ruling the applicant said that he would be hanging up the phone. I explained to the applicant that if he hung up the Application would be dismissed as abandoned. The applicant stated once again that he did not care what I thought or what I did and he hung up the phone.

Abandonment

12The Tribunal has found in the past that such conduct is a reason for the Application to be dismissed. In Sebhatu v. Starwood Canada Corp. o/a The Westin Harbour Castle, 2012 HRTO 329, the Tribunal states at paras. 17-19:

By hanging up during the teleconference, the applicant and her counsel committed the telephonic equivalent of walking out of the hearing. In Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 20 O.R. (2d) 732 (Ont HCJ, Div Ct.) the Court considered an application for judicial review challenging, amongst other things, the decision of the Ontario Labour Relations Board (the “OLRB”) to decline to grant an adjournment. The applicant was an employer faced with union certification and unfair labour practice proceedings at the OLRB. The employer sought an adjournment of the hearing and when the OLRB denied the adjournment the employer walked out of the hearing. The OLRB continued with the hearing nonetheless and decided the issues before it in the absence of the employer. The Court dismissed the application and made the following comments regarding the risk a party runs by walking out of a hearing:

It has for some time been made plain in a number of decisions that one who chooses to leave on the ground that a tribunal is incompetent runs the risk of being foreclosed from any later complaint: see Re Nanda et al. and Appeal Board Established by Public Service Com'n (1972), 1972 CanLII 2142 (FCA), 34 D.L.R. (3d) 51 at p. 79, [1972] F.C. 277 at p. 307, and Re Ward et al. and Board of Blaine Lake School Unit No. 57, 1971 CanLII 750 (SK QB), 20 D.L.R. (3d) 651, [1971] 4 W.W.R. 161.

A similar situation prevails, and is becoming more apparent all the time, where an application for an adjournment is made unsuccessfully. The risk that a person who "walks out" will deprive himself of the right to complain later is a real one. This was the subject of some special comment made in a recent decision of the Divisional Court in the case of McGill v. City of Brantford, released April 30, 1980, 1980 CanLII 1741 (ON SC), 28 O.R. (2d) 721. That was not a novel expression of the concept; it has prevailed for some time.

Rando Drugs Ltd. v. Scott, 2007 ONCA 553, involved allegations of bias against a judge. The judge had been a partner in a firm that had once represented one of the defendants by counterclaim in the action in question. The judge had never been involved in the case and left the firm more than ten years before the commencement of the trial. The plaintiff by counterclaim (the appellant) nonetheless asked the judge to recuse himself, but he refused. The appellant and her counsel walked out of the court room and the judge dismissed the counterclaim. The Court of Appeal concluded that the trial judge was not required to recuse himself in the circumstances. The Court also agreed that the judge was correct in dismissing the counterclaim since there was no one in court to present evidence in support of it and refused to reverse the decision because of another potential bias issue that arose after the trial.

I agree with the respondent and intervenor that by walking out of the hearing the applicant has abandoned the Application and it can be dismissed on that basis.

13Having considered I am also of the view that the applicant abandoned the Application when he hung up the phone during the summary hearing. I cautioned the applicant that if he did hang up that the Application would be dismissed as abandoned. The applicant knowingly and willingly hung up stating that he did not care what the Tribunal did. I note that the Tribunal’s hearings could never proceed if parties could simply decide to leave a hearing every time they disagree with a procedural ruling rendered by the Tribunal.

14I will however still address the submissions of the parties.

The Law

15Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

16In considering section 45.1, the Tribunal has considered: (1) was there another proceeding; and (2) if so, did it appropriately deal with the substance of the application? See Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 64. It has recognized that section 45.1 is discretionary.

17Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

18In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:

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.

19The respondent submits that the Tribunal has already found in the Interim Decision that it has the right to seek information with respect to the applicant’s continued ability to qualify for disability benefits and that this does not constitute discrimination. The respondent notes that at paras. 25 and 26 the Tribunal found:

As noted, the applicant’s submissions at the Summary Hearing regarding Manulife bore no resemblance to the allegations against this respondent set out in his Application. The applicant acknowledged that Manulife did not in fact deny him S&A benefits. Rather, the applicant asserts that in February 2008, Manulife imposed additional reporting requirements on him because of his frequent use of these benefits. However, the applicant also acknowledged that he never asked Manulife to accommodate him regarding these requirements. In these circumstances, there is no basis for finding that Manulife’s duty to accommodate was engaged regarding the reporting requirements for S&A benefits.

Of course, the duty to accommodate arises only when an applicant has been subject to direct or adverse effect discrimination. Requiring additional information when a claimant has a higher need for a benefit is also not itself discriminatory. In my opinion, the characterization of discrimination as direct or adverse effect does not change this conclusion. Claimants seeking S&A benefits must provide proof of their eligibility for the benefit and those seeking more of the benefit will be required to provide more proof. The applicant submits the effort and expense required to obtain this additional proof creates a disadvantage for him because his disabilities cause him to use S&A benefits more often. This disadvantage, however, is relative to those who also receive less, or none, of the benefit. I see nothing illogical or discriminatory in such a differentiation. In my view, an administrator’s decision to require additional information in exchange for more benefits is not one the Tribunal should review unless there was evidence the decision was taken for discriminatory reasons. There is no evidence that Manulife treated the applicant differently than other higher needs claimants because of his particular disabilities or any other prohibited ground of discrimination.

20I find in this case that s. 45.1 of the Code does not apply for the following reasons. While the summary hearing is a proceeding within the meaning of the Code the underlying facts adjudicated in that proceeding are not the same and relate to a very different time period which is separated by almost four years. Also, it is not clear to me that the issues are the same, for example this Application, to a large extent, concerns the respondent’s correspondence dealing with the CPP benefit issue. Therefore, I am of the view that s. 45.1 does not apply because the allegations and the substance of this Application differs from the previous Application.

21However, I am of the view that the Application should be dismissed as having no reasonable prospect of success. I agree with the reasoning in the Interim Decision that the respondent has the right to require a claimant under an insurance plan to provide documentation to support their continued entitlement to insurance benefits. I note, further, that it is usually standard in most insurance policies that there is a set-off of CPP benefits from any private insurance benefits. The applicant has not proposed any evidence to support that the communications from the respondent with respect to this issue is discriminatory.

22Further, with respect to the applicant’s claim that the duty to accommodate requires the respondent to assist him with his CPP appeal I note that the applicant has proven to be capable of participating in and instituting legal proceedings. It is not clear to me why the applicant could not initiate his own appeal of the denial of his CPP benefits. Further, I note that the services provided by the respondent are with respect to the processing of private insurance claims, and it does not appear that the provision of legal services, including appeals of the denial of CPP benefits is included in the services provided to the applicant. As such I also find that this allegation has no reasonable prospect of success.

Order

23This Application is dismissed.