Contents
Workers’ Comp & Human Rights: Challenges on a Grand Scale
A challenge may be made through the human rights process on fundamental issues within the operating statute of workers’ compensation schemes.
Such a case may raise matters “such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds”: 1
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 particular 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 an assertion that the employee had been unfairly discriminated due to the standard then required in the workers’ compensation statute dealing with 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. This resulted in significant changes for the test required for emotional distress related workers’ comp benefits in Ontario and other jurisdictions. Ontario’s law, at the outset of the challenge, required acute emotional distress from a workplace event. The example often given for such a claim was a worker witnessing a colleague’s death in the workplace.
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.