Hessian v. Workplace Safety and Insurance Board, 2010 HRTO 168

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Hessian

Applicant

-and-

Workplace Safety and Insurance Board, Robert Timlin and Anne Bisson

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: January 26, 2010

Citation: 2010 HRTO 168

Indexed as: Hessian v. Workplace Safety and Insurance Board

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on March 10, 2009. The applicant alleges discrimination in employment on the grounds of disability in violation of section 5 of the Code. He further alleges that his right to claim and pursue his rights under the Code without reprisal was infringed contrary to section 8 of the Code.

2This Interim Decision addresses a request by the respondents to dismiss the Application. On April 14, 2009, the respondents filed a Request for an Order During Proceedings (the “Request”) along with their Response. Consideration of this Request was deferred in light of the parties agreeing to participate in mediation. However, mediation occurred and the Application was not resolved and the Tribunal now finds it appropriate to determine the Request.

3The Request is for the Application to be dismissed on the grounds that it failed to make allegations that are sufficient to establish that the applicant had a disability at the time of the alleged discrimination and that the applicant communicated any intent to claim or enforce his rights under the Code to any of the respondents.

4The issues the respondents raise, namely whether the applicant has a disability or not and whether the applicant was subject to reprisal for attempting to enforce his rights, are matters that are properly decided by means of an oral hearing.

5The Tribunal will dismiss an Application without an oral hearing when it is plain and obvious that it does not have jurisdiction (Masood v. Bruce Power, 2008 HRTO 381; Bisbee v. Hudson’s Bay Trading Company, 2009 HRTO 1284; Morin c. Alliance de la function publique du Canada, 2008 HRTO 58. However, the applicant alleges in his Application that he was discriminated against on the basis of a disability because he was terminated immediately after telling his manager, one of the respondents, of his deteriorating condition, his serious health concerns, his need for time off for medical reasons and his scheduled biopsy. The applicant refers to his medical difficulties and health issues and his illness. It cannot be concluded that it is plain and obvious that he does not have a disability. The applicant’s allegations regarding reprisal are not fully articulated in his Application but it is not plain and obvious, at this juncture, that these allegations should be dismissed. For these reasons the Application, as presented, will proceed to a hearing.

6It will be up to the adjudicator presiding at the hearing to determine how and when the issues raised by the respondents will be addressed.

7I am not seized of this matter.