Tomlinson v. Arnold, 2009 HRTO 1782

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Tomlinson

Applicant

-and-

Phil Arnold, Ron Coutu, Ron Ceasor and Lawrence Duguay

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: October 27, 2009

Citation: 2009 HRTO 1782

Indexed as: Tomlinson v. Arnold

1In this Application filed on March 13, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), the applicant alleges discrimination on the basis of disability in employment.

2In its Response, the respondents have 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 in part appropriately dealt with the substance of the Application. This Interim Decision will decide the early dismissal issue.

Background

3The applicant worked for Dalron Construction as did the respondents. The applicant, who commenced employment on October 25, 2007, was subsequently injured on the job and filed a claim with the Workplace Safety and Insurance Board (“WSIB”) for benefits. While his Application is very brief, it appears that the applicant suggests that his termination was based upon his disability. In his Reply, he submits that on October 9, 2008 he hand-delivered to one of the respondents a doctor’s note indicating he was to be off work for medical reasons and identifying October 15, 2008 as his next appointment date. He was terminated on October 14, 2008.

Section 45.1

4Section 45.1 of the Code reads 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.

5The respondents submit that the WSIB appropriately dealt with the issue of the applicant’s termination when it concluded that the company did not breach its obligation to re-employ the applicant. The respondents, in taking this position, refer to a letter dated June 8, 2009 from a WSIB “RTW Specialist” confirming his finding that the company was not in breach of its obligations under section 41 of the Workplace Safety and Insurance Act 1997, S.O. 1997, Chap. 16, Schedule A, as amended (“WSIA”). The letter is addressed to the company to the attention of one of the respondents. The applicant is not copied on the letter. There is no evidence of what information was provided to the author of the letter, the reason upon which the author was being asked to provide the letter, or the author’s rationale in forming this conclusion. I note from the materials provided by the respondents that an employer’s obligation to re-employ an employee under section 41 of the WSIA applies only to employees who have been continuously employed for more than one year before the employee’s injury. The applicant, in this Application, was employed for less than a year in total.

6The Tribunal has stated that section 45.1 should be considered in two parts: (a) where there was another “proceeding”, and (b) if so, whether it “appropriately dealt with” the substance of the Application (see Carlos v. 1174364 Ontario, 2008 HRTO 403).

7It is not necessary to determine whether or not the letter from the WSIB “RTW Specialist” constitutes a “proceeding” for the purposes of section 45.1 of the Code. Based upon the material submitted, I am not satisfied that the respondents have demonstrated that the substance of this Application was “appropriately dealt with” by WSIB. Accordingly, the respondents’ request for dismissal under section 45.1 of the Code is dismissed.

8I am not seized of this matter.