Zoran Vasileski v. Family and Children’s Services Niagara, 2017 HRTO 1442

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoran Vasileski Applicant

-and-

Family and Children’s Services Niagara Respondent

-and-

Canadian Union of Public Employees, Local 2328 Intervenor

INTERIM DECISION

Adjudicator: Laurie Letheren Date: November 1, 2017 Citation: 2017 HRTO 1442 Indexed as: Vasileski v. Family and Children’s Services Niagara

APPEARANCES

Zoran Vasileski, Applicant Self-represented

Morneau Sheppell, Respondent Roslynn Kogan, Counsel

Family and Children’s Services Niagara, Respondent Andrew Zabrovsky, Counsel

Canadian Union of Public Employees, Local 2328, Intervenor Kim Kayne and Marie Boyd, Representatives

1The applicant has filed two Applications under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability. In Application 2016-25212-I, the applicant named Morneau Sheppell as a respondent.

2On April 28, 2017, the respondent Morneau Sheppell filed a Request for Summary Hearing. It submits that applicant could not demonstrate that its decisions and actions were differential treatment or had an adverse impact on the applicant on basis of disability. Morneau Sheppell asks that the Application be dismissed as against it. The applicant is opposed to the Request.

3In a Case Assessment Direction issued on June 13, 2017, the Tribunal directed that a summary hearing be held in respect of these Applications as they relate to the respondent Morneau Sheppell to hear the parties’ submissions about whether or not the Application as it related to Morneau Sheppell should be dismissed because it had no reasonable prospect of success.

4That summary hearing was held and the parties had an opportunity to make oral submissions. This decision is based on the oral submissions as well as all the documents that were filed in support of the parties’ positions.

BACKGROUND

5The applicant is employed by the respondent, Family and Children’s Services Niagara. Morneau Sheppell is contracted by Family and Children’s Services Niagara to adjudicate sick leave claims. The allegations that the applicant makes against Morneau Sheppell are that he was treated adversely, on the basis of his disability, when Morneau Sheppell adjudicated his claims for disability benefits.

6The applicant alleges that he experienced a breach of his Code rights when Morneau Sheppell requested certain details from his medical professionals and the completion of certain forms that Morneau Sheppell requested of him. He submits that Morneau Sheppell should have accepted what he had initially provided in the forms and his invitation for Morneau Sheppell to contact his medical professionals if it needed more information. He submits that he experienced discrimination on the basis of his disability when Morneau Sheppell ignored the request for contacting his doctor and denied his initial application for benefits. He submits that it was also a violation of his Code rights when Morneau Sheppell first rejected the information that was provided in support of his diagnosis. He states that this is discrimination on the basis of his disability because Morneau Sheppell imposed a higher threshold on him as a person with a mental health disability than it imposed on those with physical disabilities. He also submits that Morneau Sheppell breached his Code rights when it requested he undergo an Independent Medical Exam (IME) as it was second guessing his medical professionals. He also submits that he experienced a Code breach when Morneau Sheppell did not refer him for assistance.

7Although he was asked during the summary hearing to explain what evidence he had or would have for the hearing that would demonstrate that the process he was asked to follow by Morneau Sheppell was different or caused adverse impact on him because of his disability, he was unable to provide any details of such evidence.

8Morneau Sheppell submits that the applicant has not demonstrated that he experienced any adverse treatment that is connected to his disability. It submits that the distinctions in the process and the information it required were because he was applying for different benefits. The initial application for short-term disability is less complex than the long-term disability application, which requires more and different information for the adjudication of claims. It submits that his claims were administered in the same manner as any other claim for short-term and long-term disability benefits. He was eventually found to be eligible for long-term disability benefits after his medical documents and the results of the IME were reviewed by a medical consultant that Morneau Sheppell uses in more complex cases; this, it argues, does not demonstrate that he was treated differently or adversely because of his disability. It submits that the applicant has no reasonable prospect of demonstrating that he experienced adverse treatment that was connected to his disability in its adjudication of his benefits claims.

9The respondent, Family and Children’s Services Niagara, submits the Tribunal does not have the jurisdiction to assess whether the granting of the benefits by Morneau Sheppell was proper or whether the process was fair. It submits that all who apply for disability benefits have a disability and being denied a benefit or being told that he needed to provide more information does not demonstrate that he was treated differently because of his disability. It submits that the applicant has made no allegation or provided any details of the evidence he has to demonstrate that he experienced adverse treatment on the basis of his disability.

ANALYSIS AND DECISION

10The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the prohibited grounds set out in the Code. The purpose of the summary hearing was to allow the applicant to further explain the evidence he had or could reasonable have to demonstrate a connection between the alleged incidents and his disability.

11As has been stated numerous times, the Tribunal cannot address allegations of unfairness that are unrelated to the Code. Despite the fact that there are many incidents of unfairness that leave applicants experiencing financial and emotional hardship, unless a connection between the unfair treatment and a ground protected by the Code can be found, the Tribunal does not have any power to address this alleged unfairness. This is so even if the decision might be arbitrary, made without proper review of the medical documentation or deceitful.

12As stated by this Tribunal in Matthews v. Chrysler Canada Inc., 2011 HRTO 1939 at para. 18:

… the application of benefits plans necessarily involves decisions regarding eligibility for benefits, which will often be related to a claimant’s disability. The fact that a claimant has a disability related to his claim does not make an administrator’s decision to deny benefits or seek additional medical information discriminatory. Neither does the Tribunal have jurisdiction to determine whether decisions made under a benefit plan are correct.

13The Tribunal summarized the limits of its jurisdiction regarding benefits plans in Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797, as follows:

Many types of benefits depend on the nature and extent of a person’s disability, and those administering such programs must make decisions about whether a person qualifies and the extent of benefits they will receive. Such decisions will often be connected with the person’s disability and be based on the nature and extent of that disability. Examples include payments by government, such as Workplace Safety and Insurance Board or Ontario Disability Support Program (“ODSP”) Benefits, and programs provided by private service providers, such as long-term disability and health benefits. In my view, the prohibition against discrimination because of disability in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) does not give this Tribunal the power to review decisions under disability-based benefit programs to determine whether they are correct under the legislation, regulations, or policies governing the program; this would be giving an appeal function to the Tribunal that the Legislature did not intend. Of course, as the Tribunal has recognized in other cases, discrimination in government and other benefit programs may be found in other ways such as policies, systemic practices, or considerations based on prohibited grounds irrelevant to the decision being made.

14I find that the applicant has not provided any information about the evidence he has or will have to demonstrate his allegations of discrimination because of disability. The applicant has not pointed to any evidence that could demonstrate that the alleged adverse treatment by Morneau Sheppell was connected to his disability.

15He is challenging the correctness of Morneau Sheppell’s decision to initially deny his application for long-term disability and is challenging its process of asking for more information and an IME. Reviewing the application process is not within the Tribunal’s jurisdiction.

16I have found that the applicant has no reasonable prospect of demonstrating that he had experienced adverse treatment that is connected to his disability when Morneau Sheppell adjudicated his claims for disability benefits.

ORDER

17The Application against Morneau Sheppell is dismissed and the title of proceedings has been amended accordingly.

18The registrar shall schedule a hearing of Applications 2016-23914-I and 2016-25212-I.