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February 2007

WCBs Erect Barriers to Access to Justice for the Disabled

WSIB Appeals Tribunal Forced by Court to Finally Acknowledge Human Rights Duties

Yet they erect bureaucratic barriers to access to justice for injured workers.


The Workplace Safety and Insurance Appeals Tribunal (“Tribunal”) must consider a Human Rights question to its legislation under the Ontario Human Rights Code, in accordance with the decision of the Supreme Court of Canada in Tranchemontagne v. Ontario and under the Canadian Charter of Rights and Freedoms, in accordance with the decision of the Supreme Court of Canada in Nova Scotia (Workers' Compensation Board) v. Martin.


This was always the case, since the tribunals are quasi-judicial boards, but it seems that the WSIAT is just getting around to acknowledging this fact.

But they don't seem to want to make it too easy for injured workers to get their Human Rights heard. The new "WSIAT Practice Direction Procedure When Raising a Human Rights Or Charter Question" erects many barriers to injured workers rights being heard by requiring the injured worker to provide such things as:
  • a written notice outlining material facts, legal basis and desired remedy (which most injured workers have no clue about)
  • a time limit of no less than 60 days before the hearing
  • compliance with section 109 of the Courts of Justice Act, one of the requirements being to serve a notice of constitutional question on the Attorney General of Canada and the Attorney General of Ontario.
  • The notice of constitutional question should be similar to the form provided in the Ontario Rules of Civil Procedure
  • a detailed explanation of the Charter question raised consisting of the material facts of the challenge raised;
  • the section(s) of the Canadian Charter of Rights and Freedoms relied upon, or the legal basis for the argument, identifying the nature of the constitutional principles to be argued;
  • the desired remedy;
  • the name, address, telephone and fax numbers of the party’s representative, if any;
  • the name and WSIAT number of the appeal in which the issue is raised.
  • compliance with the same disclosure requirements as required for an oral hearing before the Tribunal in the Practice Direction on Disclosure, Witnesses and the Three Week Rule. Written submissions and evidence must be served on the other party or parties to the appeal and filed with the Tribunal in advance of the hearing in accordance with the relevant disclosure provisions in the Practice Direction on Disclosure, Witnesses and the Three Week Rule. (which most injured workers have no experience with)

Where the injured worker fails to follow the procedure set out in this Practice Direction for raising a Human Rights or Charter question, they will not be entitled to raise the Human Rights or Charter question in any proceeding before the Tribunal unless the Tribunal grants it.

Yet the injured worker must comply with all this bureaucratic red tape while in pain and poverty!

WSIAT Practice Direction Procedure When Raising a Human Rights Or Charter Question


Related:
SICKO! WCBs Routinely Deny Legitimate Claims (like Insurance companies do)


N.S. v. Martin; N.S. v. Laseur

From Wikipedia, the free encyclopedia

Nova Scotia v. Martin; Nova Scotia v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54, is a leading Supreme Court of Canada decision. The Court re-examined the authority of tribunals to hear constitutional challenges and their power to strike down legislation under section 52(1) of the Constitution Act, 1982. In doing so the Court overturned the previous decision of Cooper v. Canada (Human Rights Commission), (1996). Also, the Court struck down provisions within Nova Scotia's Workers' Compensation Act that prohibited people who were disabled by chronic pain from benefits as a violation of section 15(1) of the Canadian Charter of Rights and Freedoms.

Background

Donald Martin and Ruth Laseur both suffered from chronic pain caused by work injuries. They attempted to claim compensation from the injury but the Worker's Compensation Board denied any benefits.

They challenged the Worker's Compensation Act as a violation of equality rights under section 15(1) of the Charter for denying benefits to those with chronic pain. The Appeals Tribunal held that the Charter was violated in Martin's case.

The government appealed the decision and the Nova Scotia Court of Appeal held that the tribunal did not have the authority to apply the Charter. To arrive at this conclusion the court had followed the Cooper case. In that decision the Supreme Court was divided on when the Charter could be used. McLachlin argued that the Charter belonged "to the people" and so must be granted liberally. Lamer had argued otherwise, stating that only courts of proper authority could use it. The compromise was that it could only be used where there was clear legislative intent. On the facts here there was no clear legislative intent and so the appeal court found the authority.

Opinion of the Court

The Court held that the tribunal had the authority to apply the Charter and found that the Act did violate it. Consequently, Martin was given the benefits and Laseur's case was sent back to the tribunal for reconsideration.

Justice Gonthier, writing for a unanimous Court, considered the question of whether the Charter could be applied by the tribunal. Gonthier stated that if the text of the legislation gives the tribunal authority to apply the law then it can also apply the Charter.

In the case where there is no express authority to apply law then the court can look for implied authority by considering the statute as a whole. Factors to be considered include the mandate of the tribunal, whether the body is adjudicative in nature, and whether it possesses any other characteristics of the administrative system.

If the claimant successfully argues that the tribunal has authority to use the Charter, the party opposing this can rebut the presumption by either showing that there is explicit withdrawal of the authority by the legislature, or by showing that the statutory scheme points to an intention to exclude the authority.



Further in-depth discussion on the Martin Laseur Chronic Pain ruling


Tranchemontagne v. Ontario

Discussion of this case from: http://wiselaw.blogspot.com/2006/04/supreme-court-of-canada-all-ontario.html
Sunday, April 30, 2006

Supreme Court of Canada: All Ontario Tribunals Must Apply Human Rights Code

The Supreme Court of Canada has issued an extremely important ruling, which requires all government tribunals to apply and enforce the Ontario Human Rights Code.

According to the Court, the Ontario Human Rights Commission no longer has exclusive jurisdiction to consider human rights code issues. The Code is part of the fundamantal law of the Province, and all tribunals are therefore mandated to consider the implications of the Human Rights Code in their deliberations.

In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, Justice Bastarache, for the majority of the Court, stated:

"In general, encouraging administrative tribunals to exercise their jurisdiction to decide human rights issues fulfills the laudable goal of bringing justice closer to the people. "

Previously, tribunals had been reluctant to venture into such considerations. Human Rights issues were treated as the exclusive domain of the Human Rights Commission, and often, referred to the Himan Rights Commission for decision, causing delay and often, added expense.

See the press release below from the Ontario Human Rights Commission:

April 25, 2006

Supreme Court rules government tribunals must apply Human Rights Code

Toronto - The Supreme Court of Canada released a far-reaching decision declaring that the Ontario Social Benefits Tribunal has the authority to decide whether a section of the Ontario Disability Support Program Act, 1997 (the "ODSPA") breaches the Ontario Human Rights Code (the "Code").

The Supreme CourtÂ?s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), released Friday, involves two persons who were denied income support from the Ontario Disability Support Program (the "ODSP"). The ODSPA limits which disabilities are eligible for ODSP coverage, and at the Social Benefits Tribunal, the appellants sought to argue that this contravened the Code. The Tribunal declined to hear the case, on the ground it lacked jurisdiction.

The Supreme Court allowed the Ontario Human Rights Commission (the "Commission") to intervene in this case, agreeing that the Commission had an interest in the outcome, and that it had unique arguments to offer. The Commission argued that because of the Code's precedence over all other Ontario laws, even those tribunals not specifically mandated to deal with human rights issues must ensure their decisions conform to the Code.

In its ruling, the Supreme Court agreed with this position, stating that, "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 Commission. The legislature has thus contemplated that this fundamental law could be applied by other administrative bodies and has amended the Code accordingly."

During its 2005 consultation on strengthening Ontario's human rights system, the Commission noted that the general reluctance of tribunals to apply the Code contributes to the growing demand on the Commission's services and resources. A number of stakeholders also expressed the view that tribunals should actively be considering the Code in their decisions, something for which this decision now sets a
precedent.

Commenting on the decision, Chief Commissioner Barbara Hall said that, "This decision supports our view that administrative tribunals should be addressing human rights issues as they arise, especially where a vulnerable applicant is advancing arguments in defence of their human rights. Under those circumstances, it would be rare for a tribunal not to be the most appropriate one to hear the entire dispute."

- Garry J. Wise, Toronto



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