Boldy v. Manufacturers Life Insurance, 2010 HRTO 1512

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Boldy

Applicant

-and-

The Manufacturers Life Insurance Company

Respondent

DECISION

Adjudicator: David Muir

Date: July 12, 2010

Citation: 2010 HRTO 1512

Indexed as: Boldy v. Manufacturers Life Insurance

APPEARANCES BY

Peter Boldy, Applicant ) Self-represented

The Manufacturer’s Life Insurance Company, ) Giulia Ahmadi, Respondent ) Counsel

1This is an Application filed on April 9, 2009 pursuant to section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges in his complaint underlying the Application that his right to be free from discrimination in employment on the basis of disability was infringed by the respondent, an insurance carrier which contracted with the applicant’s employer to provide certain benefits to its employees including long term disability benefits.

2This Decision addresses the respondent’s Request for Order During Proceeding (“Request”) filed on March 10, 2010. The respondent seeks the early dismissal of the Application on the basis that the substance of it has been appropriately dealt with in another proceeding. Although not expressly identified as a Request pursuant to section 45.1 of the Code, in substance that is what it is and I have dealt with the Request on that basis. Alternatively, the respondent states that the Tribunal has no jurisdiction to deal with the Application because the respondent had no duty to accommodate the applicant as it was not his employer.

3The background necessary to determine the issue raised by the respondent is not controversial.

4The applicant was employed by the Royal Bank of Canada (“RBC”) for a period of time. He was in effect required by his employer to take a medical leave and received long term disability benefits from the respondent. At some point there arose an issue of the applicant’s ability to return to work and some unsuccessful discussion took place between the applicant and his employer. The respondent apparently participated to some degree, although it is its position that as the insurance carrier it was not its role to deal with return to work issues. Despite the respondent’s position, it is the position of the applicant and the central allegation in the complaint, that the respondent conspired with his employer to sabotage the return to work discussion with the result that the applicant has not returned to work with his employer.

5The applicant filed companion human rights complaints against both his employer and the respondent. Because his employer was federally regulated, the complaint related to his former employer was filed with the Canadian Human Rights Commission (the “Federal Commission”). The complaint underlying this Application filed at the Ontario Human Rights Commission was held in abeyance pending the outcome of the Federal proceeding.

6The applicant takes issue with what the Federal Commission did with his complaint. In the result the Federal Commission determined that the complaint should not proceed to a hearing before the Canadian Human Rights Tribunal. The Federal Commission investigator concluded that there was no rational connection between the accommodation sought by the applicant and the disability that he had experienced. The applicant challenged that determination in an Application for Judicial Review, which was dismissed, see Peter Boldy v. Royal Bank of Canada, 2008 FC 95. The applicant appealed that decision unsuccessfully, see Peter Boldy v. Royal Bank of Canada, 2009 FCA 320.

7The applicant made lengthy submissions both in writing and at the hearing where the Request issue was argued. Much of the applicant’s argument went to the merits of his claim as against his former employer. The applicant also made detailed submissions about errors made by the Federal Commission in their decision making in respect both of the complaint against his former employer as well as its conclusions that it had no jurisdiction over the respondent here. Very little of the applicant’s submissions addressed the central issues raised by the respondent’s Request.

8The Tribunal has interpreted section 45.1 of the Code as creating a two-part test for its application: (1) whether there was another “proceeding”; and (2) if so, whether the proceeding “appropriately dealt with” the substance of the Application.

9There is no question that the investigation at the Federal Commission, its decision not to refer the complaint to the Canadian Human Rights Tribunal and subsequent judicial reviews constitute a proceeding within the meaning of section 45.1.

10Was the substance of this Application appropriately dealt with in that proceeding? I find that it was. The essence of the human rights complaint against the respondent is that contrary to their procedural obligation to accommodate the applicant by participating in the return to work process, the respondent conspired with the employer to subvert that process by not exploring or recommending the accommodation that was being proposed by the applicant. I find that the dismissal of the Federal complaint against the alleged co-conspirator as well as the manner in which the merits were considered in the Federal complaint establish that the substance of this Application has been appropriately dealt with.

11It is clear from the decisions of the Federal Commission, the Federal Court and the Federal Court of Appeal, that contrary to a central element of the applicant’s complaint there were discussions between the applicant and his former employer about the possibility of a return to work. These discussions failed because the applicant was unwilling or unable to provide any medical evidence that he was able to return to work. There was also some level of discussion of the accommodation being proposed by one of his physicians. A letter from a physician setting out the proposed accommodation was at the heart of the dispute between the parties. The Federal Commission concluded that in addition to not providing sufficient information to the employer, the proposed accommodation was not rationally connected to his disability. Indeed, the Commission and the Courts’ conclusion that there was no medical evidence that the applicant could return to work rests largely on deficiencies in the proposed accommodation.

12Whether framed as an alleged violation of the substantive duty to accommodate or a failure to follow the appropriate procedure, the accommodation the applicant sought was raised with his employer, whatever role the respondent as an alleged co-conspirator played in those discussions. At the heart of this Application is the applicant’s contention that the accommodation proposed on his behalf was not appropriately dealt with by his former employer and its co-conspirator, the respondent here. That is not the case as the decisions of the Federal Court and Court of Appeal make plain. Not only was the proposed accommodation presented and considered by his employer, the substance of it was the focus of the inquiry at the Commission and the subsequent application for judicial review.

13The applicant evidently disagrees with these decisions and wants another opportunity to make his case. This is precisely the situation that section 45.1 was intended to prevent and I find that it is appropriate in these circumstances to dismiss the Application on that basis.

14Having disposed of the Application on this basis there is no need to deal with the alternative ground advanced by the respondent.

15For all of these reasons the Application is dismissed.