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Human Rights: Violations: Workers’ Compensation
Human Rights Violation Not Limited to Human Rights Tribunal
As a prelude, it is to be noted that the determination of a human rights breach is not one which is limited to the Human Rights Tribunal. This point was clearly made by the Supreme Court of Canada in Tranchemontagne v Ontario in the 2006 decision in which the Social Benefits Tribunal was presented with the question as to whether the Ontario Disability Support Act was offside the Human Rights Code due to its refusal to award disability sums to those persons suffering from drug dependency:
The Code is fundamental law. The Ontario legislature affirmed the primacy of the Code in the law itself, as applicable both to private citizens and public bodies. Further, the adjudication of Code issues is no longer confined to the exclusive domain of the intervener the Ontario Human Rights Commission (“OHRC”): s. 34 of the Code. The legislature has thus contemplated that this fundamental law could be applied by other administrative bodies and has amended the Code accordingly.
This view was repeated in the recent 2011 Supreme Court of Canada decision in British Columbia v Figliola. The workers had applied for benefits. It was argued that the statute violated the B.C. Human Rights Act by the mathematical calculation of the damage sum to be awarded for chronic pain. The first level review officer had agreed he had jurisdiction to decide the issue and rejected the argument.
Prior to the hearing of this appeal, the legislation was amended to deny the right of the Appeal Tribunal to decide such an issue. This decision was not appealed, nor was any judicial review application made, which was, as the Supreme Court later noted, an available remedy. The workers then initiated an application to the Human Rights Board for relief, using the same arguments which were rejected initially before the first level review officer of the workers’ compensation board.
The issue brought to the Supreme Court was that of the jurisdiction of the Human Rights Board, given the prior dismissal.
As to the preliminary issue of the jurisdiction of the worker’s compensation board to decide a human rights argument, this was no contest:
The question of jurisdiction is not seriously at issue in this appeal. Since Tranchemontagne, tribunals other than human rights commissions have rightly assumed that, absent legislative intent to the contrary, they have concurrent jurisdiction to apply human rights legislation. That means that at the time these complaints were brought, namely, before the amendments to the ATA removed the WCAT’s human rights jurisdiction, both the Workers’ Compensation Board and the Human Rights Tribunal had ostensible authority to hear human rights complaints. Since the complainants brought their complaints to the Board, and since either the Board or the Tribunal was entitled to hear the issue, the Board had jurisdiction when it decided the complainants’ human rights issues. But based on their concurrent jurisdiction when this complaint was brought to the Board, there is no serious question that the Tribunal, in theory, also had authority over these human rights complaints. This means that s. 27(1)(a) of the Code is not in play.
The following issue was then one of when should the second board should decline jurisdiction when the same matter had been decided by the prior tribunal.
The human rights statute contained a provision in section 27(1) f which allows for the dismissal of a complaint where the substance of the complaint has been dealt with in another proceeding. The Supreme Court noted that this section did not require the technical application of the comparable common law doctrines, but rather allowed for an integrated approach to apply all of these concepts in a substantive approach:
[46] This brings us to how the Tribunal exercised its discretion in this case. Because I see s. 27(1)(f) as reflecting the principles of the common law doctrines rather than the codification of their technical tenets, I find the Tribunal’s strict adherence to the application of issue estoppel to be an overly formalistic interpretation of the section, particularly of the phrase “appropriately dealt with”. With respect, this had the effect of obstructing rather than implementing the goal of avoiding unnecessary relitigation. In acceding to the complainant’s request for relitigation of the same s. 8 issue, the Tribunal was disregarding Arbour J.’s admonition in Toronto (City) that parties should not try to impeach findings by the “impermissible route of relitigation in a different forum” (para. 46).
The Court determined that the human rights complaint was to be dismissed.
The test as to whether the Human Rights Tribunal may have jurisdiction, given a prior WC decision, requires the applicant to show that the case presents something more than simply a review of the merits of the disability claim before the WC Board. The case must raise matters “such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds”: 1
… [T]he 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.
In this instance, the Tribunal found that the issue was not a review of the merits of a prior medical or related benefits issue, but rather was a request to review the scheme of the workers’ compensation statute on a grand scale. It decided that it did have jurisdiction:
The applicant alleges that the statutory scheme for WSIB benefits is discriminatory on the basis of disability. The provision of WSIB benefits is a service, and there is no suggestion that judicial immunity could apply in these circumstances. This is evidently not an attempt to simply appeal a particular WSIB decision as it challenges the statutory scheme itself. Accordingly, the Tribunal has jurisdiction over this application.
Challenging the Statute, not the Merits
Seberras v Workplace Safety and Insurance Board involved a series of decisions in which the jurisdiction of the Human Rights Tribunal was considered in light of a contemporaneous challenge to the validity of the workers’ compensation statute was being challenged in the latter forum. The employee had asserted the statute unfairly discriminated against workers suffering work related emotional distress.
The substantive decision holding that the legislation was offside the Charter was, as a parenthetical note, eventually made by the Appeals Tribunal under the workers’ compensation regime.
The applicant had been denied benefits under the WSIA and then complained under the Human Rights Code. This was met with a summary dismissal motion from the employer, arguing lack of jurisdiction of the human rights board.
A three person panel was appointed to hear this issue. As to the jurisdiction issue, the applicant argued that it was the wording of the legislation that was attacked as discriminatory, not the decision itself, which caused the respondents to admit that the Tribunal had jurisdiction.
This admission was, as the Tribunal noted, not sufficient, to give it jurisdiction that it did not have. To this issue, the Tribunal summarized the law as follows:
The Tribunal has jurisdiction over an Application alleging that the denial of WSIB or other statutory financial benefits violates the Code, even if this was done by decision. The provision of such benefits is a “service” under s. 1 of the Code.
The Tribunal does not have jurisdiction over an Application against a neutral third party deciding a dispute between others when the doctrine of judicial immunity applies.
The Tribunal is not precluded from hearing this Application on the basis that the WSIB and WSIAT have exclusive jurisdiction.
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.
The Tribunal concluded that it has jurisdiction to hear a complaint which challenged the validity of the statutory provisions, even following a decision made by the workers’ compensation board:
The Tribunal has jurisdiction to hear an Application alleging discriminatory benefit provisions, even when the benefits are provided through a decision made under a statutory scheme. We do not agree with the conclusion that an Application is not “in respect of services” when it relates to a matter that has been determined through a decision made pursuant to statute where there is a system of internal appeals.
The Tribunal noted that it would not, however, be in a position to review the merits of a prior workers’ compensation decision on the issue of a specific determination of entitlement to benefits.
This was academic, as the hearing was adjourned to allow for the workers’ compensation process, which later agreed with the submission of the worker.
Medical Issue Not Reviewable Twice
An application that is merely an appeal of a decision under statute should be dismissed on the basis that it cannot be reasonably considered to amount to a Code violation and therefore has no reasonable prospect of success.
A good example of a case in which the Tribunal found it was without jurisdiction to, in essence, sit on review of a prior decision made by the workers’ compensation regime is Tadese v Workplace Safety and Insurance Board. (Overend) The claim was based on the argument that the prior decision failed to observe the medical nature of the disability, which did not allow for the test made as set out above. The claim was dismissed on a preliminary motion.
The Human Rights Tribunal in the 2013 decision of Paris v Bramic Creative (Aterman) also considered an application based on disability following the denial of a workers’ compensation claim. The claim was based on a failure to accommodate the disability, a shoulder injury and that the termination was linked to the physical issue.
Workplace Injury vs Any Injury
The workers’ compensation claim was not successful as the worker had not proven a benefits claim due to a work related injury. The worker was found to be suffering from a pre-existing disability and hence could not prove the claim for benefits was due to a work related injury.
The employee successfully argued that the issue before the Human Rights Tribunal was one of adverse treatment due to a disability, no matter how it was caused, one which was distinct from that before the workers’ compensation board, which required a finding of a work-related injury.
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