HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N
Ethel Robinson
Applicant
-and-
Town of Spanish
Respondent
INTERIM DECISION
Adjudicator: Kaye Joachim
Indexed as: Robinson v. Spanish (Town)
written submissions by
Ethel Robinson, Applicant ) Ken. A. Bondy, Counsel
Town of Spanish, Respondent ) Paul Cassan, Counsel
INTRODUCTION
1This Application was filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). A Case Resolution Conference is scheduled for November 18, 2009 in Sault Ste. Marie. The purpose of this Interim Decision is to deal with the respondent’s request for dismissal under section 45.1 of the Code.
2The applicant was employed by the Town of Spanish. Following a workplace injury in 2001 she sought to return to work with permanent restrictions in February 2003. The respondent advised that there were no positions available. In addition, the Workplace Safety and Insurance Board (“WSIB”) advised that the respondent was not obliged to offer re-employment because the respondent did not regularly employ more than 20 workers. That issue was appealed to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) and on January 13, 2009 WSIAT ruled that the respondent did have a re-employment obligation under the Workplace Safety and Insurance Act (“WSIA”). However, the WSIB subsequently determined that the re-employment obligation had since expired.
3Meanwhile the applicant began a Labour Market Re-entry Program (LMR) in 2003 and received WSIB benefits, with some interruptions.
4The respondent submitted that the subject matter of the present Application raises the issue whether the respondent could have accommodated the applicant’s permanent medical restrictions in February 2003 and that the WSIB proceedings have determined that they could not. Accordingly, the Application should be dismissed under s. 45.1 of the Code.
SECTION 45.1, ISSUE ESTOPPEL, AND ABUSE OF PROCESS
5Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application
6It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application. With regard to the second part, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.
7The only decision relied upon by the respondent was the WSIAT decision determining that the respondent had a re-employment obligation. There was no discussion in that decision of the issue raised in this Application: could the respondent have accommodated the applicant’s permanent medical restrictions in 2003?
8Nothing in the material submitted to me by the respondent points to any proceeding or decision which has determined that issue. Accordingly, I am not satisfied that section 45.1 applies to bar the Application.
9In its reply submissions the respondent raised for the first time that the Application may be barred by delay. It is inappropriate to raise this issue in reply submissions. If the respondents intend to pursue a delay argument they must file a Request for Order during Proceedings with full submissions within 14 days of the date of this Interim Decision. The applicant is required to respond within 14 days of receipt of the Request, if any.
10The Request will be dealt with at the Case Resolution Conference in a manner to be determined by the Member.
11The respondent’s Request for an Order dismissing the Application under section 45.1 is dismissed.
The Case Resolution Conference will proceed as scheduled on November 18, 2009 in Sault Ste. Marie.
Dated at Toronto, this 15th day of September, 2009.
“Signed by”
Kaye Joachim
Alternate Chair