Wayne Smith v. Ontario Provincial Police, 2009 HRTO 483

Human Rights Tribunal of Ontario

Between:

Wayne Smith Applicant

-and-

Ontario Provincial Police Respondent

Interim Decision

Adjudicator: Mary Truemner Date: April 22, 2009 Citation: 2009 HRTO 483 Indexed as: Smith v. Ontario Provincial Police

INTRODUCTION

1This is an Interim Decision in respect of an Application filed on July 9, 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 deal with the respondent's Requests for early dismissal and for deferral.

2I note that, prior to filing its Response, the respondent also made a Request for particulars. It is not clear whether the respondent intends to pursue this Request as it has now filed a complete Response and the applicant has provided a number of documents as attachments to his Reply.

3The applicant alleges discrimination in employment on the ground of disability. He alleges the respondent discriminated against him in the following ways:

• being disciplined;
• being denied career training opportunities;
• enduring comments, displays, jokes, harassment or a poisoned work environment;
• being refused a position as a traffic management officer with his employer because of his disability; and
• being denied necessary accommodation or modified work.

Most of the Application appears to focus on the alleged failure by the respondent to provide modified work which is meaningful or dignified, and which accommodates the applicant's disability in compliance with the Code. The applicant believes that the desk work he is now doing is not accommodation within the meaning of the Code.

EARLY DISMISSAL OF THE APPLICATION

4The Response asserts that the Workplace Safety and Insurance Board (the "WSIB") "has mediated this accommodation issue" and has therefore dealt with the substance of the Application. The respondent attached a WSIB Return to Work Mediation Agreement, signed by the applicant on October 24, 2006, which appears to outline a plan for him to gradually return to full front line duties and to shift work. The respondent also attached a WSIB Employment Accommodation Agreement, signed by the applicant on December 28, 2007, which appears to outline a plan to gradually increase hours of work until the applicant is able to return to the full hours of an administrative schedule. It would seem that the former WSIB Agreement contemplated front line duties whereas the most recent WSIB Agreement contemplated only administrative duties.

5Section 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.

6It is not clear from the materials provided to the Tribunal that the Agreements arose from any dispute about whether the respondent was appropriately accommodating the applicant's disability. It is also not clear that the Agreements resulted from any "proceeding" within the meaning of section 45.1. The initial Response stated:

Constable Smith was approved for WSIB benefits. The OPP has never challenged Constable Smith's medical information provided by WSIB... Constable Smith was sent to the WSIB's Psychological Trauma Clinic for a consultation. As a result of this consultation and the provision of care for Constable Smith, the OPP was provided with some medical information from the Clinic, which was used to facilitate the process of developing an appropriate return-to-work plan to transition Constable Smith back to work at the Detachment.

7It appears, then, that the Agreements are negotiated plans for a return to work following a work-related injury. Although they were negotiated through the WSIB, they are similar in nature to return-to-work plans that might be negotiated between an employer and an employee directly. Although the Agreements dealt with issues of accommodation, they do not represent the settlement of human rights issues raised in a proceeding, and are therefore not like those considered by the Tribunal's decisions in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, and in Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448. I am satisfied that section 45.1 does not provide a basis to dismiss all or part of this Application.

8It may be that the Agreements will be relevant to the issues in the Application, in assessing whether the respondent has fulfilled its obligation to accommodate the applicant's disability under the Code. At the hearing of the Application, the parties may address the effect of the Agreements on the Tribunal's determination of the issues in the Application.

9The respondent's Request to dismiss under section 45.1 is denied.

DEFERRAL OF THE APPLICATION

10Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal's Rules. The respondent requests that this matter be deferred for two reasons: first, there was an ongoing internal investigation of a complaint by the applicant to the OPP's Professional Standards Bureau; second, a claim had been made by the applicant to the WSIB and the matter was mediated. The Response makes clear, however, that the applicant's claim for WSIB benefits was never opposed by the respondent, and no proceeding appears to have been initiated, let alone to be pending. Rather, the parties participated in a WSIB consultation process to determine a return-to-work plan.

11With respect to the request for deferral because there is a claim before the WSIB, I find that there is no proceeding pending, and that deferral to the mediation process is inappropriate given that no indication has been provided that the mediation process is ongoing.

12With respect to the request for deferral pending the outcome of the investigation by the respondent's Professional Standards Bureau, I note that the investigation is complete. The applicant provided the results of the investigation with his Reply documents. There is therefore no reason to defer to the internal investigation.

13The respondent's Request for deferral is denied.

14I am not seized of this matter.