Worker claimed denial of extra benefits related to child care was family status discrimination
The Ontario Human Rights Tribunal has dismissed a worker’s application alleging that the province’s Workplace Safety and Insurance Board (WSIB) discriminated against him in employment on the grounds of family status.
The worker was an employee of the City of Hamilton who sustained an injury in the course of his employment in October 2023. He applied for and received workers’ compensation benefits from the WSIB and his employer provided modified work within his WSIB-determined restrictions on Oct. 18. His workers’ compensation benefits also included transportation to and from work.
The worker requested additional benefits involving transportation for childcare drop off, but the WSIB denied the request. As a result, he didn’t return to work. On Oct. 27, the city informed the worker that he had not been paid since his expected return to work on Oct. 19 due to his absence.
The worker made another request to the WSIB for childcare drop-off benefits as an accommodation under the ground of family status, as his workplace injury was impacting his parental responsibilities. The WSIB denied the second request, and the worker reached out to his employer and his union, who told him to contact the WSIB.
Worker alleged failure to accommodate family status
The worker returned to work on Nov. 20, when he was able to drive short distances. He then filed a human rights application alleged that the WSIB’s refusal to provide childcare drop-off constituted a failure to accommodate his family status.
The tribunal noted that the worker wasn’t an employee of the WSIB and his allegations related to benefits provided after his injury while working for the city. The tribunal found that the worker had selected incorrect grounds in his application, which claimed discrimination in employment but the worker wasn’t employed by the WSIB. However, the tribunal considered the worker’s submissions as they related to the request for additional benefits.
The tribunal found that the worker didn’t allege that he was denied access to an accommodation made available to others, nor that the services provided by the WSIB were delivered in a discriminatory manner. It noted that a discrimination claim required proof that the applicant’s particular disability caused the decision-maker to treat them differently than other injured workers with a similar disability.
The tribunal also found that the context of disability, accommodation, and benefits does not automatically trigger protections under the Ontario Human Rights Code, as every decision by the WSIB is based on disability. In this case, the worker argued that he wasn’t accommodated with respect to his family status but it was within the context of benefits related to a disability, the tribunal said.
WSIB benefit decisions not related to Human Rights Code
The tribunal determined that the worker’s complaint was essentially a challenge to the benefit decisions made by the WSIB and not a matter of discrimination under the code.
“The tribunal does not have the jurisdiction to review WSIB benefit entitlement decisions and this tribunal has held that it cannot intervene in decisions made by the WSIB in the operation of the worker insurance benefits scheme on a number of occasions,” said the tribunal.
The tribunal dismissed the worker’s application, noting that the appropriate avenues for review of WSIB benefit decisions are the WSIB Appeals Division, the Workplace Safety and Insurance Appeals Tribunal, and the courts on judicial review.
