Human Rights Tribunal of Ontario
B E T W E E N:
Godfrey Maughn
Applicant
-and-
Cascade Disability Management, Inc. and Caroline Evans
Respondents
Case resolution conference DECISION
Adjudicator: Kaye Joachim
Indexed as: Maughn v. Cascade Disability Management
AppearanceS BY
Godfrey Maughn, Applicant ) Self-represented
Cascade Disability Management, Inc. ) and Caroline Evans, Respondents ) Elizabeth J. Forster, ) Counsel
Decision
1This is an application filed December 18, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Case Resolution Conference in this matter was held on September 28, 2009.
2I heard from the applicant, the respondent Caroline Evans, the Regional Manager of the corporate respondent and the immediate supervisor of the personal respondent Caroline Evans.
3The applicant was in receipt of benefits under the Workplace Safety and Insurance Act ("WSIA"). The corporate respondent has a contract with the Workplace Safety and Insurance Board ("WSIB") to provide vocational rehabilitation services to injured workers. The applicant alleges that the respondents discriminated against him in the manner in which they provided him this service. The respondents denied any discrimination and noted that their involvement was limited to making recommendations to the WSIB.
4The applicant was referred to the corporate respondent by the WSIB in March 2005. The corporate respondent conducted a psycho-vocational assessment report and recommended that the applicant be trained as a Purchasing and Inventory Control Clerk. The applicant was not happy with this recommendation but agreed to the Labour Market Re-entry ('LMR") in order to maintain his WSIB benefits. While the applicant submitted that the position of Inventory Control Clerk was not appropriate as it exceeded his medical restrictions, the information before me, in particular the Labour Market Re-entry Plan Proposal dated April 19, 2005 indicates that this is not the case.
5The LMR plan included attendance at Laurel College, an educational institution that provided academic upgrading for adults. The applicant's attendance at this program was consistently poor and he was counselled about his absences many times. At the recommendation of the corporate respondent, his continued participation in the LMR was cancelled several times and reinstated several times when the WSIB received sufficient documentation to be satisfied that the applicant would be able and was willing to participate.
6On some occasions, the applicant's participation was terminated because the WSIB determined that he was not physically able to participate. For example, the LMR plan was terminated in May 2005 and the WSIB eventually referred him to a pain management clinic which he attended from October 2005 to December 2005. Upon completion of the pain management program, the WSIB referred him back to the corporate respondent to continue the LMR. The applicant's plan was terminated again in April 2006 based in part on the corporate respondent's recommendation, due to the applicant's poor attendance. He was reinstated at the direction of the WSIB on May 17, 2006. In April 2007, the WSIB again directed the corporate respondent to cancel the applicant's plan, based on their reports of his poor attendance, participation and progress. In August 2007, the WSIB instructed the corporate respondent to resume their plan.
7In January 2008, the applicant was moved to the placement component of the program although he had not completed all the academic part of the program. The applicant had poor attendance and eventually stopped attending the work placement at which time the WSIB instructed the corporate respondent to move to job search training. After one session, the applicant ceased attending further sessions and on March 26, 2008, the WSIB directed the corporate respondent to close its file.
8The applicant asserts that the corporate respondent discriminated against him by failing to design and implement a proper LMR that took appropriate account of his disabilities. For example, he asserted that he should not have been assigned an LMR at all until after he had been offered pain management therapy which was eventually offered in October 2005. Based on the evidence before me, including the psycho-vocational assessment report of March 30, 2005, I find that the evidence indicated that the applicant was medically able to undertake the proposed plan. Although the report stated that applicant "may benefit from consideration to participate in a functional restoration program," this falls short of sufficient evidence to establish that the applicant was not capable of undertaking the plan. If there is medical evidence in the applicant's WSIB file to demonstrate that he was or subsequently became unable to participate, the applicant chose not to submit such information.
9The applicant stated that his repeated absences from the program were always due to pain related to his disability and that the respondents should have accommodated his absences or designed an alternative program. However, the documentation before me demonstrated that the applicant's absences were often not related to his disability and that he often failed to provide the corporate respondent with any medical documentation to link his absences to his disability. The applicant did not submit any medical documentation which indicated that regular attendance in the LMR was beyond his abilities or that some accommodation to the LMR was required.
10I conclude that the corporate respondent's attendance counselling and recommendations to terminate the applicant's participation in the LMR from time to time were justified based on the applicant's poor attendance record and not based on his disability.
11The applicant asserted that he requested vacation as provided for under the WSIB policy and the corporate respondent repeatedly recommended against granting him vacation. He testified that Caroline Evans told him that vacation was a privilege and he understood that to mean that only the privileged white participants would get vacation. Even if the comment was made, there is absolutely no basis for the inference drawn by the applicant that he was denied vacation because of his colour. The corporate respondent agreed that they recommended against granting the applicant vacation because of his poor attendance. I find no breach of the Code based on the recommendation against vacation.
12Finally, the applicant took issue with a letter sent by the corporate respondent warning him that aggressive language to Ms. Evans would not be tolerated and that potentially, the police would be called. I find that this letter was sent in response to what the applicant admitted was an angry voice message left for Ms. Evans and I see no breach of the Code in this letter.
13The applicant asserted that upon being reinstated in the LMR yet again, Ms. Evans stated something to the effect that "you must have a rabbit's foot stuck up your ass." This comment is denied by Ms. Evans. I do not accept that the comment was made and in any event, I would not have found that it amounted to a breach of the Code.
14The applicant alleged that the corporate respondent deliberately delayed in providing him with cheques to cover his monthly bus passes. The evidence demonstrates that cheques were sent in a timely fashion to the applicant. However, on one occasion, although a cheque was sent, it was never cashed and it was subsequently reissued, which took a couple of months. I see no breach of the Code arising from these facts.
15For all of the foregoing reasons, the Application is dismissed.
Dated at Toronto, this 1st day of October, 2009.
"Signed by"
Kaye Joachim
Alternate Chair```