Gagne v. Maximum Mining Inc., 2009 HRTO 1111

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gilles Gagne

Applicant

-and-

Maximum Mining Inc.

Respondent

INTERIM DECISION

Adjudicator: Alan Whyte

Date: July 22, 2009

Citation: 2009 HRTO 1111

Indexed as: Gagne v. Maximum Mining

1This is an Application made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which alleges discrimination on the grounds of disability, association and reprisal.

2In its Response, the respondent has requested early dismissal on the basis of section 45.1 of the Code which permits dismissal of an Application if another proceeding has in whole or part appropriately dealt with the substance of the Application. It also alleges that the Application has been filed late, without adequate explanation on the part of the applicant. This Interim Decision will decide the early dismissal issue and provide directions regarding the delay issue.

Background

3The applicant sustained a workplace injury on November 30, 2007. He sought benefits from the Workplace Safety and Insurance Board (“WSIB”), in particular full “LOE” benefits from December 1, 2007 and partial “LOE” benefits from January 12, 2008 forward.

4A claims adjudicator at the WSIB, in a letter dated February 13, 2008, denied the applicant’s claim for benefits. The decision was based on a lack of medical information and the applicant’s lack of cooperation in relation to modified work that was provided by the respondent.

5In his Reply, the applicant indicates that his WSIB claim is currently being reviewed by the Office of the Worker Advisor, which is representing him in the WSIB process. He further advises that “This claim is entering its appeals process”.

6The respondent submits that the WSIB decision has determined that the applicant does not suffer from any disability. It therefore takes the position that the WSIB decision has “appropriately dealt with the substance of the Application” and should therefore be dismissed.

7The applicant submits that the denials in the WSIB system “are based on the primary decision-makers of my claim” and confirms that his intention is to appeal the WSIB decision. He also points out that the WSIB process involves multiple issues including responsibility for his medical bills.

DECISION

Section 45.1

8In Cui v. MSM, 2008 HRTO 219, the Tribunal dismissed a request for dismissal pursuant to section 45.1 of the Code. In that case, the applicant's WSIB claim had been dealt with by an Appeals Resolution Officer of the WSIB, and that Officer’s decision was under appeal to the Workplace Safety Insurance Appeals Tribunal. This Tribunal reasoned that under such circumstances, the Officer’s decision was not final, and it would therefore be premature for the Tribunal to determine whether the decision had appropriately dealt with the substance of the Application.

9In this case, the WSIB claim decision-making has not even progressed to the Appeals Resolution Officer stage. It can only be considered a preliminary determination of the claim. The applicant has advised that it is his intention to appeal the claim adjudicator's decision further. In no way can the WSIB decision be considered final, and therefore any consideration under section 45.1 is premature.

10The respondent’s request for dismissal pursuant to section 45.1 of the Code is dismissed.

Delay

11The applicant identifies February 13, 2007 as the date of the last event giving rise to his Application. In explanation of the delay, he indicates that he has been searching for legal advice and has contacted many social service agencies, including the Labour Board. He has also researched what he considers to be a conflict of interest arising from the fact that the respondent’s representative with which he dealt has a brother who works as a claims adjudicator at the WSIB. He also states that he has suffered an emotional breakdown while dealing with these issues.

12Although the respondent raises the issue of delay in its Response, it makes no submissions regarding this issue.

13In the circumstances, the Tribunal directs that a conference call hearing be scheduled in order to deal with the delay issue. Section 34(2) of the Code provides for a discretion in the Tribunal to extend the time for filing of an Application, as follows:

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

14The parties should be prepared to deal with the issue of good faith (with respect to which the burden falls on the applicant) and the issue of substantial prejudice (with respect to which the burden falls on the respondent).

15I am not seized.