An injured worker has succeeded in a human rights application against the Workplace Safety Insurance Board (“WSIB”). The case related to a refusal by the WSIB to electronically deposit benefit payments to an injured worker’s bank account. The worker testified that he was unable to attend at the bank to deposit his WSIB benefit cheques on a number of occasions due to his medical condition. The worker was forced to rely on another person to deposit the cheques for him.
The Tribunal accepted that the individual depositing the cheques took advantage of his position and stole money from the worker over an extended period. There was no discussion in the decision of whether the worker could have provided the cheques to the bank by some other safer means (i.e. mailing the cheques to the Bank). The Tribunal emphasized that an injured worker who was bed ridden and had no family or social contacts could effectively be denied benefits if they cannot attend at the bank.
The Tribunal found that by failing to accommodate the injured worker’s disability by failing to offer direct deposit services, the WSIB breached the Human Rights Code and discriminated against the worker. The Tribunal ordered the WSIB to reimburse all of the money which was stolen from him and to pay $5,000 to compensate the worker for his losses arising from the infringement of his rights under the Code.
Employers that do not offer direct deposit services should take careful note of this decision. The Tribunal fully compensated the worker for money that was stolen by a third party. According to the decision, the thefts occurred from roughly 2006 to January 2008. There was no consideration by the Tribunal of whether there was any obligation on the worker to review his bank records to determine whether the cheques were actually being deposited. An argument could certainly be made that while the worker’s disability may have prevented him from depositing the cheques personally, he likely would have been in a position to review his bank statements and discover the theft at some point during the two year period.
This decision means that employers who fail to offer direct deposit to injured workers are not only at risk of general damages, but also at risk of fully indemnifying an injured worker for any theft arising from the failure to provide direct deposit. It appears that this liability will only arise when the injured worker has raised the issue with the employer that he cannot attend at the bank because of a medical condition.
