Mousseau v. Prince (Township), 2009 HRTO 1123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Mousseau

Applicant

-and-

Corporation of the Township of Prince

Respondent

INTERIM DECISION

Adjudicator: Alan Whyte

Date: July 23, 2009

Citation: 2009 HRTO 1123

Indexed as: Mousseau v. Prince (Township)

1In this Application filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination in employment on the basis of disability.

2This Interim Decision will address the issue raised by the respondent in its Response that this Application is barred by section 45.1 of the Code as another proceeding has appropriately dealt with the substance of the Application. The other proceeding relied on by the respondent is the claims adjudication process of the Workplace Safety and Insurance Board (“WSIB”).

3The Application indicates that the applicant has worked for approximately 18 years as a volunteer firefighter with the volunteer fire department of the respondent. He has held the position of Chief Fire Prevention Officer since 1990.

4The applicant states that on June 13, 2006, he injured his back during the course of his volunteer duties with the fire department. He filed a claim with the WSIB on August 8, 2006.

5The applicant also states that in June 2007, he returned to modified duties as Chief Fire Prevention Officer. In a decision dated July 11, 2007, a WSIB claims adjudicator concluded that the applicant had suffered permanent restrictions as a result of the workplace accident. The decision went on to indicate that a Labour Market Re-entry assessment would be performed.

6The Application alleges that as of approximately August 2007, difficulties arose between the parties regarding the applicant’s modified work which resulted in discipline being issued by the respondent to the applicant. Ultimately, in October 2007, the respondent advised the applicant that he was prohibited from performing all duties as a volunteer for the fire department; in doing so, the respondent relied on the July 11, 2007 decision of the WSIB claims adjudicator.

7According to the applicant, on January 4, 2008, a WSIB return to work mediation was held, but was unsuccessful. In February 2008, the Council of the respondent resolved that the Township would not reinstate the applicant with the fire department. The applicant takes the position that the respondent failed to accommodate him and inappropriately relied on the WSIB decision.

8Neither the applicant nor the respondent appealed the July 11, 2007 decision of the WSIB. Accordingly, the applicant's claim has never proceeded to the Appeals Resolution Officer level.

9The respondent submits in support of its position that this Application should be barred under section 45.1 of the Code that the applicant has dealt with his complaint through various actions before the WSIB, and the respondent notes that the applicant has received awards as a result of his injury.

10The applicant relies on the test set out in Carlos v. 1174364 Ontario, 2008 HRTO 403, where the Tribunal stated that it was helpful to consider section 45.1 in two parts:

(a) whether there was another “proceeding”, and

(b) if so, whether it “appropriately dealt with” the substance of the Application.

11With respect to the first part of the test, the applicant submits that the Workplace Safety and Insurance Act (“WSIA”) provides for the adjudication of claims in the context of a public no-fault insurance plan for workplace injuries. The function of the claims adjudicator is solely an administrative one, and the decision-making is in no way judicial or quasi-judicial. The applicant argues that he was entitled to pursue loss of earnings benefits under the workers compensation scheme, and that this should not preclude his right to access the human rights system with respect to discrimination relating to his workplace injury. It is argued that while the WSIB has exclusive jurisdiction to determine issues under the WSIA, the jurisdiction of the Tribunal is not ousted. Consequently, the applicant submits that the WSIB claims adjudicator's decision does not constitute a “proceeding” within the meaning of section 45.1 of the Code.

12The applicant also submits that the claims adjudicator's decision did not appropriately deal with the human rights issues raised in the Application. The applicant identifies the central issue in the Application as being whether the respondent failed to engage in a thorough and adequate process of inquiry regarding possible accommodations, and whether the respondent wrongly relied on the July 2007 decision made by the WSIB claims adjudicator. The applicant points out that there is no WSIB decision that addresses the adequacy of the accommodation efforts provided by the respondent. In fact, he points to correspondence from the claims adjudicator which makes it clear that it is solely the respondent’s responsibility to accommodate the applicant. Finally, the applicant argues that the claims adjudicator conducted no human rights analysis or consideration of possible remedies under the Code.

13It is not necessary to determine whether or not a claims adjudicator's decision is a “proceeding” for the purposes of section 45.1 of the Code, as I am satisfied that the claims adjudicator's decision did not “appropriately deal with” the substance of this Application, which involves substantive issues relating to the accommodation of the applicant by the respondent. It is clear, based on my review of the WSIB correspondence, that those issues have never been dealt with by the WSIB claims adjudicator.

14Accordingly, the respondent’s request for dismissal under section 45.1 of the Code is dismissed.

15I am not seized.