The Ontario Human Rights Tribunal has heard many cases brought by injured workers against the Workplace Safety and Insurance Board (“WSIB”). The vast majority of these cases essentially amount to contentions that decisions made by WSIB Case Managers or the Appeals Branch were discriminatory. Such cases are almost always dismissed by the Human Rights Tribunal on the basis the Tribunal does not have the legal right to review the decisions made by another legal body.
However, one recent case shows that the Human Rights Tribunal (the “Tribunal”) does have the power to adjudicate whether the WSIB has failed to accommodate a worker’s disability in terms of the way in which the claim was dealt with (allegations relating to the various decisions of the WSIB in the claim were dismissed on jurisdictional grounds). The case involved a worker who suffered from a number of psychological conditions including Anxiety Disorder, Depression marked by suicidal ideation, a Pain Disorder with psychiatric features, Personality Disorder and Attention Deficit Disorder.
The worker suffered anxiety about the timing of direct deposits of his benefits and frequently complained to the WSIB about this issue. A key aspect of the case involved “Drug Verification Forms” which were sent to the worker (but not his Doctor) directly by WSIB every three months. Inconsistent Drug Verification Services form letters were issued during the claim. In one instance, two were sent on the same day listing different medications. Numerous medications proposed by the worker’s Doctor were rejected by the WSIB without any explanation being provided for the WSIB’s decision.
The injured worker was also subject to a prohibition on contacting the WSIB by telephone which made managing his claim very challenging. Eventually, the worker’s legal representative formally wrote to the WSIB seeking accommodation of the worker’s disability relating to the issue of his “…dealing with the WSIB.” The letter also addressed substantive issues related to the claim. The WSIB responded to the letter but did not address the request for accommodation under the Human Rights Code.
The Tribunal ruled in favour of the worker. It held that the worker experienced
“…contradictory requests for information, contradictory information about what was allowed and what was not, very extensive delays, lack of explanation for various decisions that were made, and seemingly arbitrary and excessive demands for information that was not necessary.”
The Tribunal concluded that the WSIB
“…failed to consider the impact of its administrative processes and poor communication of decisions on the applicant in light of the special needs he has as a result of his disabilities.”
In my view, the case does not likely represent the opening of the floodgates for liability of the WSIB to injured workers for Human Rights Code violations. This case turns on very specific facts and a specific disability which was aggravated by the administrative processes of the WSIB as they existed at the time. Clearly, the WSIB should not have ignored the written request for accommodation from a legal representative. The Tribunal held that the WSIB does not need to fully engage the accommodation process for every inquiry characterized as a Human Rights Code issue, but must have a formal process in for responding to such issues.
It is important for advocates to appreciate that it will be ordinarily difficult to succeed in a Human Rights Tribunal Application against the WSIB.
As the Human Rights Tribunal has stated in many decisions, for the Human Rights Tribunal to have jurisdiction over WSIB decisions, the Applicant must prove that the WSIB decisions at issue are discriminatory, not merely incorrect. Despite the many Human Rights Applications filed against the WSIB, I am only aware of one other case where the Applicant was successful. That case also involved an administrative issue, namely that failing to pay an injured work by direct deposit was discriminatory in the circumstances.
However, it should be noted that factual findings and decisions made by the WSIB may not be binding on the Human Rights Tribunal in a proceeding brought by a worker against an employer.
The case includes lessons for the broader community, particularly in light of the revised WSIB mental stress policies which will take effect next year. The manner in which an employer communicates with a worker with a traumatic mental injury is particularly important and may require some adjustment from the employer’s standard procedures. Obviously, any request for accommodation must be taken seriously and be properly assessed. Any decisions about what measures the employer is taking should be communicated to the worker and the worker’s medical team.
ABOUT THE AUTHOR
Ryan J. Conlin, Partner, Stringer LLP Management Lawyers
 Lawson v. Workplace Safety and Insurance Board, 2017 HRTO 851 (CanLII)
 Tadese v. Workplace Safety and Insurance Board, 2012 HRTO 2383 (CanLII)
 See Hayes v. Workplace Safety and Insurance Board, 2012 HRTO 1255 (CanLII),
 See for example Edwards v. Carillion Services Inc., 2015 HRTO 99 (CanLII) and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII)