Tozer v. Workplace Safety Insurance Board, 2017 HRTO 1097

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Tozer Applicant

-and-

Workplace Safety and Insurance Board and Melissa Martino Respondents

DECISION

Adjudicator: Brian Cook Date: August 23, 2017 Citation: 2017 HRTO 1097 Indexed as: Tozer v. Workplace Safety Insurance Board

APPEARANCES

Richard Tozer, Applicant Self-represented

Workplace Safety and Insurance Board and Melissa Martino, Respondents Greg Bullen, Counsel

1This Application alleges discrimination because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code").

2The applicant has a hearing loss. The Workplace Safety and Insurance Board ("WSIB") accepted that the applicant's hearing loss in his right ear was related to noise exposure at work and allowed the applicant's claim. The claim was allowed for health care only and the applicant was not awarded a non-economic loss ("NEL") award for his permanent impairment because it was determined that the applicant did not have a sufficient degree of hearing loss to qualify for a NEL award under the WSIB policies.

3The personal respondent is the WSIB Adjudicator who issued the decision telling the applicant that he did not qualify for a NEL award because he did not have sufficient hearing loss in both ears to qualify for a NEL award under the applicable WSIB policy.

4In her decision, the Adjudicator commented that while the hearing loss in the applicant's right ear was work-related, the calculation of the degree of hearing loss had been reduced from 25 decibels (dB) to 24 dB because the applicable WSIB policy requires a deduction of 0.5 decibels for each year that the worker's age exceeds 60. The applicant was 62 years of age at the time of the calculation.

5In this Application, the applicant points out that this means claims for noise induced hearing loss are treated differently depending on the age of the worker. He argues that the American Medical Association has recognized that it is not appropriate to deduct a factor for age when calculating the degree of impairment resulting from noise exposure and submits that the WSIB should do the same.

6Section 47(2) of the Code provides as follows:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

7Section 2.1 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, as amended ("WSIA") provides as follows:

2.1 (1) A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it, that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code.

8The policy that requires a reduction in the overall degree of hearing loss after age 60 is a policy that is made under the WSIA. Section 2.1(1) means that the Code does not apply to that policy. As a consequence this Tribunal has no jurisdiction to deal with the allegations of age discrimination. For this reason, the Application is dismissed.