HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julia Breakey
Applicant
-and-
Ottawa-Carleton District School Board
and Kim Benson
Respondents
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Breakey v. Ottawa-Carleton District School Board
WRITTEN SUBMISSIONS BY
) Jo-Ann Seamon,
Julia Breakey, Applicant ) Counsel
Ottawa-Carleton District School Board and ) Roger Mills, Counsel
Kim Benson, Respondents )
INTRODUCTION
1This is an Interim Decision in respect of an Application filed on October 14, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The purpose of this Interim Decision is to determine whether the respondents are obliged to file a complete Response to the Application in circumstances in which the respondents assert that the Application should be subject to early dismissal. This decision also deals with the request for dismissal.
2The applicant alleges discrimination in employment on the ground of disability, and provides a great deal of detail focussed on alleged failure to accommodate. Most of the Application focuses on the alleged failure by the respondent school board to provide an appropriate chair for the applicant’s work.
3The respondents filed a Response on November 28, 2008. The respondents note in their covering letter that the Response does not constitute a complete Response to the Application, but is rather a submission in support of a request for early dismissal under s. 45.1 of the Code. The Response asserts that the facts of the Application are the subject of proceedings that fall within the exclusive jurisdiction of the Workplace Safety and Insurance Board (the “WSIB”).
4The applicant indicated by letter that she would be prepared to argue against early dismissal, but would not file a Reply until the respondent filed a complete Response.
5The Tribunal’s Rules of Procedure require a respondent to file a complete Response except in the circumstances described in Rule 8.2. Those circumstances do not apply here. Specifically, neither the Modified Work Agreement nor the Return to Work Mediation Agreement appended by the respondents to their submissions can be seen as a “full and final signed release” for the purposes of Rule 8.2 (a).
6The filing of a complete Response will assist the parties in understanding the nature of the issues, and enable the Tribunal to make decisions on how to proceed with the Application with a view to facilitating its fair, just and expeditious resolution.
7Ordinarily, the absence of the circumstances listed in Rule 8.2 would result in a brief decision such as was made in Smith v. Ontario Provincial Police, 2008 HRTO 108. However, in this case the respondents have filed full submissions in support of their request for early dismissal, and in the interests of a fair and expeditious resolution of this Application, I consider it appropriate to rule on that request.
EARLY DISMISSAL OF THE APPLICATION
8The injuries that are the source of the respondent’s alleged disability are the subject of several claims under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, as amended (“WSIA”). One claim resulted in a determination that the applicant’s injuries were compensable under the WSIA. That file, according to the respondents, “remains open but inactive due the failure of the Applicant to cooperate with the WSIB and provide additional medical information”. The other claims were rejected by a WSIB claims adjudicator, and, according to the respondent, no application for reconsideration has been made.
9The respondents assert that this Tribunal does not have the jurisdiction to hear the Application because the WSIB has exclusive jurisdiction over the issues raised in the Application. A previous decision of this Tribunal has thoughtfully reviewed this issue, and has concluded that, while the WSIB has exclusive jurisdiction to determine issues under the WSIA, the jurisdiction of this Tribunal is not ousted because of section 118 of the WSIA. This Tribunal has clear jurisdiction to deal with issues of discrimination and accommodation relating to the ground of disability: see Snow v. Honda of Canada Manufacturing, 2007 HRTO 45.
10Section 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.
11A review of the WSIB claim-related documents submitted by the respondents reveals no decision in which the substance of this Application was addressed. Some of the facts at issue in the WSIB claims may be relevant to the matters raised in the Application, and the documents provide some detail of the accommodation thought suitable by the WSIB adjudicator, (including an ergonomic chair). There is, however, no decision that addresses whether the chair provided by the employer accommodated the applicant’s alleged disability. Adequacy of accommodation is the essence of the Application in this case. I am not satisfied the WSIB process has appropriately dealt with all or part of this Application. The respondent’s request to dismiss is denied.
ORDER
12The respondents are directed to file a complete Response by January 12, 2009. The applicant may file a further reply, if she wishes, dealing only with new matters raised in the complete Response, in accordance with the Rules.
13I am not seized of this matter.
Dated at Toronto, this 2^nd^ day of January, 2009.
“Signed By”
Judith Keene
Vice-Chair```