Kinsella v. Workplace Safety and Insurance Board, 2017 HRTO 1289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patrick Kinsella Applicant

-and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky Date: September 29, 2017 Citation: 2017 HRTO 1289 Indexed as: Kinsella v. Workplace Safety and Insurance Board

APPEARANCES

Patrick Kinsella, Applicant No one appearing

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

INTRODUCTION

1The applicant filed an Application alleging that the respondent, Workplace Safety and Insurance Board (the “Board”), discriminated against him in contracts and in goods, services and facilities on the basis of disability, age and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant claimed that he suffered from post-traumatic stress disorder (“PTSD”) and that the Board’s denial of benefits for his condition pursuant to the legislation and policy in existence at the time was discriminatory.

2In Interim Decision 2014 HRTO 524, the Tribunal deferred the Application because the applicant was proceeding through the Board’s internal appeal process. In Interim Decision 2016 HRTO 9, the Tribunal further deferred the Application because the applicant appealed the Board’s final decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

3On May 13, 2016, WSIAT wrote to the Board noting that as a result of amendments to the Workplace Safety and Insurance Act (the “Act”), it might be appropriate for the Board to review the applicant’s entitlement to benefits. The Board did review the applicant’s claim and, on July 7, 2016, found that he was entitled to benefits as a result of the amendments to the Act. On December 15, 2016, the Board issued a decision setting out the nature and amount of benefits to which the applicant was entitled.

4On March 1, 2017, the applicant filed a request to reactivate his Application, in response to which the respondent submitted that the Application should be dismissed. The applicant replied that the matter should be permitted to proceed to a hearing at the Tribunal.

5Upon receipt of these submissions, the Tribunal issued a Case Assessment Direction (“CAD”) on April 11, 2017 directing a preliminary hearing by teleconference to address the following issues:

(i) Should the Application be re-activated?

(ii) If it is re-activated, should it be dismissed because another proceeding has appropriately dealt with the substance of the Application?

(iii) Should the Application be dismissed because the Application now concerns a dispute about the amount of benefits to which the applicant is entitled…and because the Tribunal may not have jurisdiction to deal with that issue?

6The preliminary hearing was held on September 27, 2017, by teleconference.

7Counsel for the Board participated in the teleconference. The applicant did not participate, either at the beginning of the call or at 2:00 p.m., when I resumed the call. The Tribunal did not receive any messages from the applicant as to his participation in the call.

8It appears that on September 21, 2017, the applicant submitted a Request to further defer the Application because he was in the process of appealing the Board’s latest decision of December 15, 2016. The Tribunal had not processed this Request prior to the September 27 teleconference.

9In the correspondence accompanying his Request, the applicant stated that he had served the Request on the respondent, noting that a Form 23 (Statement of Delivery) was attached. However, a Form 23 was not attached, and counsel for the respondent stated during the teleconference that he had not received the Request.

10I then had the Tribunal forward a copy of the applicant’s Request to counsel, and asked for submissions as to how the matter should proceed.

11Counsel submitted that, while the respondent continued to seek the dismissal of the Application, given that the applicant appeared to have attempted to have the Application deferred pending further appeal proceedings, the preliminary hearing should be adjourned to another day, at which the issues would include those originally set out in the April 11, 2017 CAD, as well as the issue of whether the Application should be deferred again.

DECISION

12I am concerned that, despite having been involved with the Tribunal’s process for a number of years now, the applicant appears not to have provided his recent Request to the respondent, and has not submitted a Form 23 to the Tribunal.

13I am also concerned that the applicant failed to participate in the teleconference, despite not having heard from the Tribunal as to whether the Application would, in fact, be deferred again, or being advised that the preliminary hearing had been cancelled.

14Nevertheless, given that the applicant has attempted to have the matter deferred, and in light of the respondent’s submissions, I am prepared to consider the applicant’s Request to defer.

15In my view, however, it would be more efficient to address the deferral issue through written submissions, and then, if necessary, reconvene the preliminary hearing to address the issues of whether the Application should be reactivated or dismissed.

Order

16The respondent shall, within two weeks of the date of this Interim Decision, deliver to the applicant and file with the Tribunal written submissions on the applicant’s Request to further defer his Application.