Jason Goodbrand v. Ferrell Builders’ Supply Limited, 2010 HRTO 162

Human Rights Tribunal of Ontario

B E T W E E N:

Jason Goodbrand

Applicant

-and-

Ferrell Builders’ Supply Limited

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: January 26, 2010

Citation: 2010 HRTO 162

Indexed as: Goodbrand v. Ferrell Builders’ Supply

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), involves allegations of discrimination on the basis of disability in the context of employment. In essence, the applicant alleges that his disability was a factor in the respondent’s decision to terminate his employment.

2The respondent denies these allegations and argues that the applicant abandoned his position when he failed to report to work, failed to respond to the employer’s inquiries, and failed to provide updated medical information.

3In its Response, the respondent has requested an early dismissal of the Application. It states that a decision by an Appeals Resolution Officer of the Workplace Safety and Insurance Board (“WSIB”) has appropriately dealt with the substance of the Application.

4The applicant has not filed a Reply and the time for doing so has elapsed. The materials before me do not indicate whether the Appeals Resolution Officer’s decision has been appealed to the Workplace Safety Insurance Appeals Tribunal.

Analysis

5Section 45.1 of the Code states:

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.

6Tribunal jurisprudence has considered the issues under section 45.1 as two distinct questions: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

7The respondent’s Request relies upon the Appeals Resolution Officer’s decision. For the Tribunal’s purposes, the key elements of that decision are as follows:

a. the applicant was unemployable for the period of September 2, 2008 to September 9, 2009;

b. the applicant had considerable difficulties performing modified duties with the identified precautions prior to the termination of his employment;

c. a labour market re-entry assessment and a functional abilities evaluation were necessary to identify appropriate employment opportunities for the applicant.

8Importantly, however, the WSIB decision does not address the termination of the applicant’s employment. It makes no finding as to whether the applicant abandoned his employment or whether the respondent had an ability and obligation to provide reasonable accommodation measures to the applicant beyond the period of September 2008 to September 2009. These issues appear to be the focus of the Application.

9In my view, nothing in the material submitted to me by the respondent points to any proceeding or decision which has determined those issues. Accordingly, I am not satisfied that section 45.1 applies to bar the Application.

10The Request for Dismissal is denied.

11I am not seized of this matter.