McElroy v. Metroland Media Group, 2009 HRTO 467

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael McElroy

Applicant

-and-

Metroland Media Group Ltd., The Brampton Guardian, a Division of Metroland Media Group, David Coleman and Jan Thompson

Respondents

INTERIM decision

Adjudicator: Brian Cook

Date: April 21, 2009

Citation: 2009 HRTO 467

Indexed as: McElroy v. Metroland Media Group

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on November 19, 2008 and alleges discrimination in employment on the ground of disability. The respondents seek an order dismissing the Application on the grounds that the Workplace Safety and Insurance Board (the “WSIB”) has appropriately dealt with the substance of the Application.

2In his Application, the applicant refers to two distinct medical conditions. First, he states that he suffered a heart attack in October 2007 which required surgery and which caused him to be off work from October 29, 2007 to January 18, 2008. Second, he states that he suffered a work-related chest and left arm injury on February 22, 2008.

3The applicant filed a claim with the WSIB in regards to the chest and arm injury. In a decision dated March 18, 2008, the WSIB denied the claim on the grounds that proof of a work-related accident had not been established. It is not clear if the applicant filed an appeal with the WSIB.

4The respondent’s request for early dismissal of the Application is based on the fact that the WSIB has determined that the applicant did not suffer a work-related injury as he claimed. The respondents submit that the WSIB is the appropriate body to make that determination. The respondents submit that the Tribunal could only find that discrimination on the grounds of disability occurred if it were established that the work-related injury occurred. The WSIB has determined that the work-related injury did not occur and the respondents argue that this Tribunal should defer to the WSIB’s determination and find that there is no basis for the Application.

5In his Reply to the Response, the applicant submits that the Application should not be dismissed. He submits that he was subject to discrimination in the period prior to his work-related injury due to his heart condition, and further discrimination in regards to the period after his return to work after his heart surgery and in regards to discussions about a return to work following his claimed work-related injury. The applicant further notes that the decision of the WSIB was made by a Claims Adjudicator. He claims that he was not given an opportunity to respond to the allegations that the respondents made about him to the WSIB and questions whether the decision of the Claims Adjudicator was really a “proceeding” for the purpose of section 45.1 of the Code.

Analysis

6For the reasons that follow, the respondent’s request for early dismissal is denied.

7It seems apparent that the subject of the Application is not confined to whether or not the applicant suffered a work-related injury. First, the Application alleges discrimination in respect of a heart condition which the applicant has not suggested is work-related. The WSIB decision did not deal with the applicant’s heart condition and so did not deal with the substance of all of the matters raised in the Application. Second, the finding by the WSIB that the applicant did not suffer a work-related injury does not mean that the applicant did not have a disability which required accommodation. The findings by the WSIB might be relevant to the Application but they cannot be said to have dealt with the substance of the Application.

8I therefore conclude that the Application cannot be dismissed at this time on the basis that the WSIB has appropriately dealt with the subject of the Application.