Patrick Kinsella v. Workplace Safety and Insurance Board, 2017 HRTO 1427

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: October 30, 2017

Citation: 2017 HRTO 1427

Indexed as: Kinsella v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Patrick Kinsella, Applicant

Self-represented

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 appeared 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 the respondent would continue to seek the dismissal of the Application. However, given that the applicant appeared to have requested a deferral, the respondent submitted that the Tribunal should adjourn and reschedule the preliminary hearing to another day. He submitted that, at the rescheduled preliminary hearing, the Tribunal should address the issues originally set out in the April 11, 2017 CAD, as well as the issue of whether the Application should be deferred again.

12On September 29, 2017, I issued Interim Decision 2017 HRTO 1289, indicating that I was prepared to consider the applicant’s Request to defer, given that the applicant had attempted to have the matter deferred, and in light of the respondent’s submissions. I found, however, that 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.

13I ordered the respondent to deliver to the applicant and file with the Tribunal written submissions on the applicant’s Request to further defer his Application. The respondent provided its submissions on October 16, 2017, arguing that “[i]t does not appear that the outcome of the Applicant[’]s current WSIB appeal will have any bearing on this matter….” The respondent reiterated its previous reasons for seeking the dismissal of the Application and sought a rescheduling of the preliminary hearing on those issues.

DECISION

14I find that the Application should be deferred.

15The applicant has appealed the Board’s most recent decision of December 15, 2016 to WSIAT. The Board’s decision is far-reaching, covering several years of benefit entitlement and indicating that further investigation is needed on the important question of whether the applicant suffers from a permanent impairment related to occupational PTSD.

16In my view, the outcome of the applicant’s appeal of these issues to WSIAT may very well bear on the issues to be addressed in the current Application, namely, whether the Board’s denial of benefits for his PTSD pursuant to the legislation and policy at the time was discriminatory. Allowing the two cases to proceed at the same time may lead to inconsistent findings.

17Given this conclusion, it would not, in my view, be appropriate to reconvene the preliminary hearing to address the issues of whether the Application should be reactivated or dismissed.

Order

18The Application is deferred pending the WSIAT’s decision with respect to the applicant’s current appeal.

19The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the process by which the Application can be brought back on after the completion of the WSIAT appeal. The parties should note that a party wishing to proceed with this application following the completion of the WSIAT proceeding must file a Request for Order During Proceedings (Form 10) no later than 60 days after the conclusion of that proceeding.