Angel Pio Sanchez v. Wiseman Export and Neil Rabovsky, 2009 HRTO 2096

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angel Pio Sanchez

Applicant

-and-

Wiseman Export and Neil Rabovsky

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: December 4, 2009

Citation: 2009 HRTO 2096

Indexed as: Sanchez v. Wiseman Export

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 their 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 determines the respondents’ early dismissal issue.

Background

3The applicant worked for the organizational respondent. While his Application is very brief, the applicant alleges that he was discriminated against and harassed on the basis of disability and that his employment was terminated because of his disability. At some point prior to his termination, the applicant filed a claim with the Workplace Safety and Insurance Board (“WSIB”) for benefits. The respondents allege that the WSIB denied the applicant’s claim for benefits based on its finding that the applicant’s injury was not work-related but rather a non-compensable medical condition.

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 issues in the Application when it concluded that there was no proof that the applicant had suffered an injury or accident at the worksite.

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: Carlos v. 1174364 Ontario, 2008 HRTO 403.

7It is not necessary to determine whether the decision of the claims adjudicator constitutes a “proceeding” for the purposes of section 45.1 of the Code. Based upon the respondents’ submissions, I am not satisfied that the substance of this Application was “appropriately dealt with” by the WSIB. The applicant alleges that the respondents terminated his employment on the basis of his disability. Whether the disability is work-related or not is not the issue under the Code. The issue under the Code is whether the respondents discriminated against the applicant on the basis of disability. Discrimination on the basis of a non-compensable, non-work-related disability, if proven, would still be discrimination on the basis of “disability” and is prohibited by the Code.

8I am not seized of this matter.