Zissakos v. Toronto Transit Commission, 2010 HRTO 2018

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Georgios Zissakos

Applicant

-and-

Toronto Transit Commission, Amalgamated Transit Union, Local 113 and Workplace Safety and Insurance Board

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 4, 2010

Citation: 2010 HRTO 2018

Indexed as: Zissakos v. Toronto Transit Commission

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Human Rights Tribunal of Ontario (“HRTO”) should defer consideration of this Application pending the conclusion of a proceeding before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

BACKGROUND

2On February 26, 2001, the applicant, who was employed as a bus driver by the Toronto Transit Commission (“TTC”), was injured on the job.

3From May 2001 to June 23, 2006, the applicant was off work and received loss of earning (“LOE”) benefits from the Workplace Safety and Insurance Board (“WSIB”).

4In 2005, the WSIB conducted secret video surveillance of the applicant after it received anonymous communications about a conflict between his level of impairment and his daily activities.

5On June 28, 2006, a WSIB Claims Adjudicator decided to discontinue the payment of LOE benefits to the applicant effective June 23 on the basis that he was capable of returning to work with restrictions and the TTC was willing to re-employ him, but he refused to cooperate in the return-to-work process.

6On September 29, 2006, the applicant filed an Objection Form with the WSIB, which stated that he was unable to return to work because of his medical condition, and requested Labour Market Re-entry (“LMR”) services or retroactive reinstatement of his LOE benefits.

7On December 19, 2006, a WSIB Appeals Resolution Officer (“ARO”) denied the applicant’s objection. With respect to the applicant’s request for reinstatement of his LOE benefits, the ARO found that the applicant was medically fit for modified employment and the TTC was willing to provide suitable employment within his restrictions, but the applicant refused to cooperate in the return-to-work process. With respect to the applicant’s request for LMR services, the ARO found that the applicant did not meet the criteria for an LMR assessment because the TTC was willing to accommodate his restrictions.

8On January 3, 2007, the applicant filed a Notice of Appeal with the WSIAT, which stated that he was appealing all the issues in the ARO’s decision, and that he was unable to work at the TTC, but was willing to work somewhere else. The Notice also requested that the WSIAT award him LMR services or retroactive reinstatement of his LOE benefits.

9On September 24, 2007, the applicant’s doctor sent a medical form to the TTC, which stated that the applicant may attempt to return to work at the TTC on modified duties.

10On February 20, 2008, the TTC offered the applicant a position as a carhouse helper. Ultimately, the applicant was not placed in the position, and the parties disagree as to reasons.

11On April 22, 2008, the applicant wrote to the WSIB and requested further LOE benefits.

12In May 2008, upon the TTC’s request, the applicant agreed to attend an “independent” medical examination (“IME”) that was arranged by the TTC’s corporate health services provider. The applicant saw two doctors. The doctors’ subsequent reports stated, among other things, that the applicant was likely malingering and sabotaging efforts to assist him. The opinions in their reports conflicted with the opinions of the applicant’s doctor.

13On May 30, 2008, the WSIB Claims Adjudicator denied the applicant’s request for further LOE benefits on the basis that the TTC offered the applicant suitable work (the carhouse helper position) on February 20, but the applicant declined to accept it.

14On September 10, 2008, the applicant’s legal representative sent a letter to the WSIB, which requested a reconsideration of the decision dated May 30.

15On November 10, 2008, the WSIB Claims Adjudicator upheld his decision dated May 30.

16On November 19, 2008, the applicant, a representative from the Amalgamated Transit Union, Local 113 (“Union”) and a TTC representative met to discuss the accommodation process and suitable jobs that met the applicant’s restrictions.

17On March 5, 2009, the applicant’s legal representative sent the WSIB a letter with respect to the Claims Adjudicator’s May 30 and November 10, 2008 decisions. The letter stated that, pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, as amended (“WSIA”), the Claims Adjudicator was not permitted to retroactively apply a job offer from the TTC in February 2008 because the payment of benefits to the applicant was “locked in” 72 months after the applicant’s injury (i.e. on February 26, 2007).

18On April 22, 2009, the Claims Adjudicator sent the applicant’s legal representative a letter, which admitted that he had erred in reviewing the applicant’s request for further LOE benefits because, pursuant to the WSIA, the denial of LOE benefits was “locked in” as of the 72^nd^ month after the date of the applicant’s injury. The Claims Adjudicator then denied the applicant further LOE benefits on the basis that he was not entitled to such benefits as of the “lock in” date of February 26, 2007.

19The applicant’s legal representative subsequently objected to the Claims Adjudicator’s April 22, 2009 decision, and requested reconsideration of a portion of the ARO’s December 19, 2006 decision. He also sent letters dated May 12 and June 18, 2009 to the WSIAT, which essentially requested that the applicant’s appeal at the WSIAT be held in abeyance until all the applicant’s outstanding issues are before the WSIAT.

20In late June/early July, 2009, a TTC representative contacted the applicant about another carhouse helper position. Ultimately, the applicant was not placed in the position, and again, the parties disagree as to reasons.

21On March 5, 2010, a WSIB Appeals Manager denied the applicant’s request for reconsideration of a portion of the December 19, 2006 decision. There is no evidence before me that the WSIB has made a decision yet with respect to the applicant’s objection to the April 22, 2009 decision.

22On March 24, 2010, the applicant, a Union representative and a TTC representative met to discuss the accommodation process and suitable jobs that met the applicant’s restrictions.

23On May 5, 2010, the TTC representative sent the applicant a letter that stated that no suitable jobs have been available to date, and that the applicant was hindering the accommodation process by failing to provide information in a timely manner. The letter also listed a number of jobs in the bargaining unit that met the applicant’s restrictions.

PLEADINGS

24The applicant filed an Application with the HRTO under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 28, 2009, which alleged that the respondents discriminated against him with respect to employment because of his disability.

25Specifically, he alleged that, despite the fact that his doctor advised that he was unable to return to full-time work, the WSIB cut off his benefits in 2006 after one of his family members sent the WSIB e-mails stating that he was doing things that he was not supposed to be doing, and the WSIB videotaped him driving. He further alleged that the WSIB refused to reinstate his benefits because the TTC informed the WSIB that he did not accept an offer of an alternate position.

26He also alleged that the TTC failed to provide him with a suitable, alternate position, and that the Union blocked his attempt to secure such a position by, among other things, refusing to transfer his seniority from the bus division to the maintenance division of the TTC.

27In section 14(a) of the Application (“Are the facts of this Application part of another proceeding that is still in progress?”), the applicant answered, “No”.

28The WSIB filed a Response and a Request for an Order During Proceedings on November 9, 2009, which denied the allegations of discrimination. The WSIB requested that the Application against the WSIB be dismissed because it is outside the HRTO’s jurisdiction. Specifically, the Application does not set out any facts that allege that the WSIB discriminated against the applicant, and the applicant is essentially challenging the WSIB’s decision to end his entitlement to LOE benefits, which is within the exclusive jurisdiction of the WSIB.

29The TTC filed a Response on November 23, 2009, which denied the allegations of discrimination. Specifically, the TTC stated that the applicant refused to participate in or cooperate with early and safe return-to-work and mediation processes, failed to respond in a timely manner to numerous attempts by the TTC to communicate with him, stated that he was unable or unwilling to return to the TTC, and rejected suitable and available work that met his restrictions. The TTC also stated that the IME that the applicant attended in May 2008 disclosed that the applicant was likely malingering and sabotaging efforts to assist him.

30The TTC further stated that, pursuant to the collective agreement between the TTC and the Union, the applicant only holds seniority in the transportation unit, and is prohibited from bidding for or being assigned to any vacant positions in the maintenance unit until after they are made available to employees with seniority in the maintenance unit.

31The TTC also requested that the HRTO defer consideration of the Application pending the conclusion of the proceeding before the WSIAT.

32The Union filed a Response on November 27, 2009, which denied the allegations of discrimination. Specifically, the Union stated that the applicant has provided, and continues to provide, inconsistent and contradictory information about his ability to return to work, and neither he nor anyone else has identified a vacant position at the TTC for which the applicant is qualified and for which the Union is required to take steps to facilitate the applicant’s entry into such position.

33The Union also requested that the HRTO defer consideration of the Application pending the conclusion of the proceeding before the WSIAT.

34The applicant filed two nearly identical Replies to the Responses on January 28 and February 3, 2010. He alleged that the collective agreement between the TTC and the Union, which prohibits him from transferring his seniority from the transportation unit to the maintenance unit of the TTC, violates the Code. He also alleged that, when he attended the IME in May 2008, the WSIB violated privacy legislation by sending the TTC and the Union a copy of the videotape of him driving.

35The applicant opposed the TTC and the Union’s request that the HRTO defer consideration of his Application pending the conclusion of the proceeding before the WSIAT.

36In an Interim Decision, 2010 HRTO 838, the HRTO requested further submissions on the deferral issue from the parties. All the parties filed submissions.

SUBMISSIONS

37The TTC submitted that the HRTO should defer consideration of the Application pending the conclusion of the proceeding before the WSIAT because the applicant filed an appeal of the WSIB’s decision to discontinue his LOE benefits, and the appeal is still pending. The TTC stated that the appeal will address many of the same issues that he raised in his human rights Application, which means there will be a significant amount of overlap and the possibility of inconsistent findings of fact. Specifically, the WSIAT will make findings of fact pertaining to the applicant’s disability, the nature of any limitations/restrictions that he may have, whether the applicant was or is able to perform suitable work, whether the accommodation offered by the TTC was adequate, and/or whether the applicant participated in attempts to accommodate him. The TTC also stated that if the applicant is successful in his appeal, he may be awarded retroactive LOE benefits to the present, which will render the remedies that he is seeking in his human rights Application wholly or partly moot.

38The Union submitted that the HRTO should defer consideration of the Application pending the conclusion of the proceeding before the WSIAT because there is substantial and significant overlap between issues that have been raised before the WSIAT and the HRTO. Specifically, the applicant’s appeal before the WSIAT will deal with issues such as whether the TTC’s job offer was suitable, whether accommodated employment was appropriate, and whether the applicant is able to return to work, or whether he is eligible for continued benefits. The Union also stated that the applicant has engaged in an abuse of process by pleading opposing facts in his appeal to the WSIAT and his Application with the HRTO with respect to his ability to return to work. The Union further stated that the applicant filed his appeal to the WSIAT before he filed his Application with the HRTO, and the former is at a more advanced stage, and there is an overlap between the damages that the applicant is seeking in his appeal to the WSIAT (reinstatement of LOE benefits) and his Application with the HRTO (lost wages).

39The WSIB submitted that the HRTO should defer consideration of the Application pending the conclusion of the proceeding before the WSIAT because it is likely that the same issues will be addressed before the WSIAT and the HRTO, which will lead to significant overlap, as well as a material risk of inconsistent findings of fact. The WSIB also stated that concurrent proceedings will result in a duplication of remedies because the applicant is pursuing LOE benefits in his appeal to the WSIAT and lost wages in his Application with the HRTO.

40The applicant submitted that the HRTO should not defer consideration of the Application pending the conclusion of the proceeding before the WSIAT because there are different issues and timeframes before the WSIAT and the HRTO, and there is no risk of inconsistent findings of fact or law. Specifically, the main issues before the WSIAT are whether the applicant is entitled to ongoing LOE benefits, whether the TTC offered the applicant suitable work, and whether the applicant participated in the return-to-work process up until 72 months after the date of his injury (i.e. up to February 26, 2007). By contrast, the main issue before the HRTO is whether the TTC accommodated the applicant’s needs related to his disability to the point of undue hardship after the date the applicant agreed to return to work on a modified basis (i.e. from September 2007 to the present).

ANALYSIS

41Section 45 of the Code provides that the HRTO may defer an Application in accordance with the HRTO’s Rules of Procedure. Rule 14.1 of the HRTO’s Rules provides that the HRTO may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The HRTO will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

42In Baghdasserians v. 674460 Ontario, 2008 HRTO 404, the HRTO made the following general comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

43In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. I recognize that there are a number of factors weighing in favour of deferral, including the fact that the applicant filed his appeal to the WSIAT first and it is at a more advanced stage than his Application with the HRTO, and there is some overlap in the issues and the remedies sought in the two proceedings. However, in my view, the fact that the main issues and timeframes before the WSIAT and the HRTO are different outweighs those factors. Based on the submissions and materials before me, I have not seen any evidence that the WSIAT will consider whether the TTC accommodated the applicant’s needs related to his disability to the point of undue hardship from September 2007 to the present. In fact, the WSIB appears to have taken the position that it cannot review any incidents or issues that arose after February 26, 2007 because that is the “lock in” date for reviewing the payment of LOE benefits to the applicant.

44I also disagree with the Union’s submission that the applicant’s pleading of opposing facts in his appeal to the WSIAT and his Application with the HRTO with respect to his ability to return to work constitutes an abuse of process. The applicant has provided an explanation for the contradiction, which may or may not be credible, but, in my view, this matter is best resolved as part of the HRTO’s consideration of the merits of the Application.

ORDER

45The respondents’ request for deferral of the Application is dismissed.

NEXT STEP

46The next step is to address the WSIB’s request that the HRTO dismiss the Application against it because it is outside the HRTO’s jurisdiction. On the face of the Application, the allegations that the WSIB discriminated against the applicant are extremely vague. In addition, the applicant’s Replies to the Responses, and his submissions on the deferral issue, focus exclusively on allegations of discrimination against the TTC and the Union. As far as I can see, the only allegation against the WSIB from September 2007 to the present (the relevant time frame as identified by the applicant in his submissions on deferral) is that, in May 2008, the WSIB violated privacy legislation by sending the TTC and the Union a copy of the videotape of him driving.

47In the circumstances, within one week of the date of this Interim Decision, the applicant is directed to deliver to the other parties and file with the HRTO written submissions explaining why the Application against the WSIB should not be dismissed. Alternatively, the applicant may file a Request to Withdraw (Form 9) the Application against the WSIB.

48I am not seized of this matter.