Michael Kontopodis v. Workplace Safety and Insurance Board, 2017 HRTO 1110

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Kontopodis Applicant

-and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: August 28, 2017 Citation: 2017 HRTO 1110 Indexed as: Kontopodis v. Workplace Safety and Insurance Board

APPEARANCES

Michael Kontopodis, Applicant Michael Farago, Counsel

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

Introduction

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

2The Application was deferred on consent by Interim Decision 2012 HRTO 1036 (the "deferral Decision") pending the conclusion of an internal appeal, and a subsequent appeal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"). The WSIAT issued Decision No. 342/16, 2016 ONWSIAT 1497 (the "WSIAT decision"), granting the applicant's appeal in part.

3By Case Assessment Direction ("CAD"), the Tribunal directed that a preliminary hearing be held to address whether the Application should be dismissed, in whole or in part, on the basis that the substance of the Application had been appropriately dealt with in the WSIAT decision for the purposes of s. 45.1 of the Code. The preliminary hearing was held by conference call on May 30, 2017.

4As explained more fully below, I find that those allegations about decisions made respecting the applicant's ability to work, including the findings that he was not co-operating with Work Transition Services ("WTS"), have been appropriately dealt with by the WSIAT, and as such are dismissed.

5The allegation respecting the alleged failure to accommodate the applicant's disability when his case manager refused to permit him to communicate with her through his legal representative was, however, not addressed by the WSIAT. Whether this claim can be substantiated is an issue that will require the hearing of evidence, and the Application may proceed with respect to that allegation alone.

Background

6In the Application as filed, the applicant summarized the issues as being that the respondent

. . . demonstrated repeated discriminatory behaviour by not adequately acknowledging the seriousness of the psychological impairment, by repeatedly ignoring or dismissing medical evidence regarding the effect of the injury on his ability to work or to participate in Labour-Market Re-entry / Work Transition activities; by denying him accommodation; by characterizing his psychological impairment as "self imposed" and by labelling him as un-co-operative, without considering the impact of the psychological impairment.

7The applicant had taken the position at the Workplace Safety and Insurance Board ("WSIB") that he was unemployable because of his disabilities, and that he was entitled to full loss-of-earnings ("LOE") benefits. Most of the allegations raised in the Application are based on the claim that the case manager underestimated the extent of the applicant's psychological disabilities in making her decisions and that she believed, contrary to the medical evidence, that he was in fact employable. As a result, the respondent decided that the applicant was required to participate in WTS (formerly called Labour Market Re-entry ("LMR")), and that his failure or refusal to do so was unjustified and merited a finding that he was being uncooperative.

8These front-line decisions were appealed, first to an Appeals Resolution Officer ("ARO"), and then to the WSIAT. The Application was filed prior to the ARO decision, and deferred on consent.

9At both the ARO and WSIAT level, the applicant was successful in certain respects, but the decisions that he was able to work and participate in WTS, that the barriers to his doing were self-imposed, and that he was therefore properly considered to be uncooperative in the WTS process, were upheld. I will refer to these as the "employability allegations".

10The applicant indicated that in light of the WSIAT decision he was no longer intending to pursue any remedies respecting loss of earnings. He was still intending to pursue damages with respect to the manner in which the respondent had approached and dealt with his claim. He argues that, independently of the ultimate decisions respecting his employability or eligibility for benefits, the decision process itself was discriminatory by dismissing or discounting his disabilities in the face of medical evidence to the contrary, and rather relying on the case manager's personal views or opinions that his disability was not as severe as he and his doctors maintained.

11One issue raised in the Application and clearly not addressed in the ARO or WSIAT appeals was the applicant's request that he not be required to speak directly with the case manager, but rather that communication go through his legal representative. He was apparently told "no, that is not an option". Though the applicant does not appear to be claiming this request was explicitly framed as an accommodation, he takes the position that the case manager, given her familiarity with his file, should have been aware that it was. I will refer to this as the "accommodation allegation".

Code section 45.1

12Section 45.1 of the Code reads as follows:

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.

13In Belsky v. Ontario (Government and Consumer Services), 2016 HRTO 272 ("Belsky"), the Tribunal summarized the approach taken by the Tribunal in considering a request to dismiss an application under s. 45.1, at paras 11-12:

In determining whether an Application ought to be dismissed under s. 45.1 of the Code, the initial focus is on whether the issues in the human rights Application were decided in another proceeding by an adjudicator with jurisdiction to interpret and apply the Code, and in which proceeding the applicant knew the case to be met and had a chance to meet it. If so, the principle of finality prevents the applicant from relitigating the issues in the human rights Application in an attempt to obtain a different outcome than the one obtained in the earlier proceeding: British Columbia (Worker's Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 37.

However, that is not an end to the matter. As both parties point out, even where the above-noted elements are present, the Tribunal may decline to dismiss an Application under s.45.1 if it would be unfair in all of the circumstances to do so. Some of the factors that may be taken into account in balancing the principles of finality and fairness include, but are not necessarily limited to, the purpose of the other proceeding, the applicant's stake in it, the parties' reasonable expectations about the impact the prior proceeding would have on their broader legal rights, whether the relevant statutory scheme contemplates parallel proceedings, and the broader policy implications of using the results of another proceeding as a basis to dismiss an Application under the Code: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 ("Penner"), as applied in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and K.M. v Kodama, 2014 HRTO 526, both upheld on judicial review in Ontario (Correctional Services and Community Safety) v. De Lottinville, 2015 ONSC 3085 (Div. Ct.); Ormesher v. Schwarz Law LLP, 2014 HRTO 1757. (With respect to the policy implications of dismissing a claim based on a previous administrative proceeding, see also Minott v. O'Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA), 1999 CanLII 3686 (ONCA)).

14Based on the decisions cited in Belsky, there are four elements to be considered in determining whether another proceeding has appropriately dealt with the substance of an application under s. 45.1:

1. Were the issues raised in the application decided in the other proceeding?
2. Did the adjudicator in the other proceeding have the jurisdiction to interpret and apply the Code?
3. In the other proceeding, did the applicant know the case to be met, and have the opportunity to meet it?, and
4. If the answer to the above questions is yes, would it nonetheless be unfair in all of the circumstances to dismiss the application?

Accommodation Allegation

15The accommodation allegation was not before either the ARO or the WSIAT. It also does not appear to be directly related to any decision respecting the applicant's employability, his participation in WTS, or his eligibility for LOE benefits, nor is there any indication that it was an issue that he could have challenged through any formal objection or appeal. Rather, the allegation is that he requested a disability-related accommodation in order to access the respondent's services, and that accommodation was refused.

16Lawson v. Workplace Safety and Insurance Board, 2017 HRTO 851 ("Lawson"), at paras. 105-106, held that the Tribunal has jurisdiction to address allegations that the WSIB failed to accommodate a worker by creating barriers to accessing its services, at least where the allegations are not about any specific decision respecting eligibility for benefits. The accommodation allegation would appear to be precisely the type of incident that Lawson found could be addressed by the Tribunal.

17The respondent is taking the position that this allegation was never framed as an accommodation request. The applicant takes the position that the case manager should have recognized it as such. Whether there was in fact an accommodation request, and whether there is any merit to the accommodation allegation, has not been dealt with in the WSIAT proceedings, and is within the Tribunal's jurisdiction to address. This allegation may proceed in the Tribunal's process.

Employability Allegations

18The applicant's primary argument that the remaining allegations should proceed is that the issues raised in the Application and the issues decided by the WSIAT are not the same. He argues that the issue before the WSIAT was whether he was employable, and whether he had co-operated in the WTS process. He argues that the issue in the Application is whether the manner in which the initial decisions were made was itself discriminatory. He argues that the WSIAT did not address this latter question. Essentially, the applicant is asking that the Tribunal separate the decisions respecting eligibility from the reasons the respondent reached those decisions.

19For the following reasons, I do not agree that the issues raised in the Application and those before the WSIAT are different for the purposes of s. 45.1. The issue in both was whether the respondent was correct in determining that the applicant was employable, by not attending WTS was therefore uncooperative, and should therefore have been subject to a reduction in his benefits.

20This is not to say that the reasons behind a WSIB decision can never be addressed in an application to the Tribunal. In McGuin v. Workplace Safety and Insurance Board, 2015 HRTO 123, at paras. 33-36, the Tribunal noted that a case of discrimination could in theory be established if an applicant was able to show that they were denied benefits or mislead because of a specific Code ground. For example, if an applicant could point to evidence that a decision maker had denied benefits based on a discriminatory stereotype related to race, gender, or creed, such a decision could be addressed by the Tribunal. Such a denial could also be discriminatory if there was an allegation that some disabilities were being treated differently than others. For example, in Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 SCR 504, 2003 SCC 54, the Supreme Court found that providing limited benefits to individuals specifically because of their particular disability, in that case chronic pain, was discriminatory.

21However, treating a worker differently, or refusing a worker benefits because of their specific diagnosis, is not the same as questioning the severity of that disability or questioning whether the diagnosis is accurate. The former may be discriminatory. The latter will generally be part of the process of assessing the nature and extent of a worker's claims of disability and its restrictions. Such assessments are inextricably linked to the actual decision respecting, in this case, the applicant's employability or eligibility for benefits.

22In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 ("Seberras"), at para. 5, the Tribunal held:

This 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 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. 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.

23The allegation is that the case manager's skepticism was not based on the evidence before her, but was rather based on her incorrect views or understanding of the applicant's medical conditions. However, as noted in Seberras, such errors would not amount to a Code violation.

24Based on the above, I find that the employability allegations were the same as the issues before the WSIAT. As the WSIAT made the determination on these issues, I find that the employability allegations were decided in the WSIAT proceeding.

Fairness

25There is no dispute that the WSIAT had the jurisdiction to interpret and apply the Code, and that the applicant knew the case to be met, and had the opportunity to meet it, that is, that the WSIAT is a procedurally fair forum. The remaining question is whether, given the above finding, I should nonetheless exercise my discretion to permit the Application to continue respecting the employability allegations.

26I cannot find that it would be unfair in the circumstances of this case to dismiss the allegations under s. 45.1. In terms of the parties' reasonable expectations, it was clear from the Application as filed that the issues and remedies raised in the two proceedings were essentially the same. This was also clear from the deferral Decision, which stated at para. 8:

I find that the matters that comprise the substance of the WSIB appeal are directly related to the applicant's human rights allegations. Further, the applicant seeks overlapping remedies with respect to loss of earnings in both processes. Given the significant overlap in the subject matter of this Application and that of the outstanding WSIB appeal, I conclude that deferral is the most fair, efficient and just way of proceeding with this Application.

27The applicant's expectations are now considerably narrowed given the result of the WSIAT appeal.

28The other proceeding was between the same parties, and addressing the same fundamental question, which has now been answered by the WSIAT against the applicant. The applicant's argument is now that, regardless of the actual outcome of the case manager's decision or any subsequent appeal, if her initial decision was driven by discriminatory factors the Tribunal should still have jurisdiction to hear the allegations.

29The Tribunal has found that it has jurisdiction to hear issues of accommodation within the eligibility decision making process, and in fact has found that a failure to accommodate within that process can result in a remedy before the Tribunal. In Frankson v. Workplace Safety and Insurance Board, 2011 HRTO 2107 ("Frankson"), the Tribunal held that though the Tribunal would not have jurisdiction to determine whether a particular LMR (or WTS) plan was appropriate based on a worker's disabilities, it could determine whether the WSIB had failed to consider disability accommodations in devising the plan. In that case, the worker was in an academic LMR plan. After WSIB discovered that the applicant had a learning disability, it decided to take him out of the academic program because it believed he would not be successful, and placed him in another more basic program which would lead to his being qualified only for a minimum-wage job; paras 105-108. The Tribunal determined that as the WSIB had not considered whether or how his learning disability could have been accommodated in the LMR plan, it had failed to accommodate his disability; see paras. 126-128.

30The applicant suggests that, similarly, the respondent failed to accommodate him by questioning the medical diagnoses, and by deciding that his condition was not as serious as he or his doctors claimed. I do not agree, however, that this is an accommodation issue. It is, rather, the respondent exercising its statutory mandate to adjudicate on issues related to determining the extent and nature of his disability, including his ability to work, and his eligibility for benefits. The question before the claims manager was whether the applicant was employable. She decided he was. The legal issue in the WSIAT appeal was whether the applicant was employable. It decided that he was. Neither involved, as in Frankson, a question of accommodation.

31The applicant is correct in noting that certain of the remedies sought in the Application would not in any case have been available at the WSIAT, including damages for injury to dignity, feelings and self-respect, and public interest remedies requiring training for WSIB staff. He argues that given that he was seeking these additional remedies in the Application, it would be unfair to not permit the allegations to go forward.

32However, given my decision above that the substance of the employability allegations have been appropriately dealt with by the WSIAT, and given the other factors respecting fairness do not support exercising my discretion in favour of permitting the allegations to be pursued despite the WSIAT decision, I cannot find that it would be unfair to refuse to allow the employability allegations to go forward for the sole reason that there are remedies available before the Tribunal that were not available before the WSIAT.

Conclusion

33The substance of the Application is that the case manager's skepticism respecting the extent and nature of his psychological disabilities resulted in her deciding he was employable, that he was not co-operating in the WTS process, and that his benefits should accordingly be reduced in accordance with the legislation and WSIB policy. Her assessment of his disability, whether correct or not, was inextricably linked to her decisions, which were in turn upheld by the WSIAT. The substance of the Application has, as such been appropriately dealt with by the WSIAT for the purposes of s. 45.1. The applicant has further not been able to persuade me that it would be unfair, in all the circumstances, to dismiss these allegations.

Order

34The allegations respecting the applicant's employability, failure to co-operate in the Work Transition Services process, and eligibility for benefits, are dismissed.

35The Application will proceed with respect to the allegation that the respondent failed in its duty to address the applicant's accommodation request to communicate through a representative.

36The respondent shall file a Response to the remaining allegations within 35 days of the date of this decision.

37I am not seized.