Theodore LeBlanc v. Honda of Canada Mfg., 2010 HRTO 2048

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theodore LeBlanc

Applicant

-and-

Honda of Canada Mfg.

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: October 7, 2010

Citation: 2010 HRTO 2048

Indexed as: LeBlanc v. Honda of Canada

APPEARANCES

Theodore LeBlanc, Applicant ) Self-represented

Honda of Canada Mfg., Respondent ) Jayson A. Rider and ) Asha Rampersand, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application was filed on March 24, 2009, and alleges discrimination in employment on the ground of disability.

2The respondent sought the dismissal of the Application pursuant to section 45.1 of the Code on the basis that its substance was appropriately dealt with in another proceeding.

3The Tribunal held a hearing on September 23, 2010, to determine the section 45.1 issue. At the hearing, the Tribunal heard submissions from the applicant and from counsel for the respondent.

4For the reasons that follow, I have concluded that the Application should be dismissed.

BACKGROUND

5The applicant was injured in the workplace on August 4, 2005. The applicant alleges that the respondent discriminated against him and failed to accommodate the disability he sustained as a result of this injury.

6Following the injury, the applicant filed a claim with the Workplace Safety and Insurance Board (“WSIB”). The WSIB eventually determined that the applicant had refused suitable work and had refused to participate in assessments that might clarify the nature of his physical restrictions. His entitlement to benefits ended on that basis.

7The applicant appealed the decision of the WSIB to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In an Interim Decision, 2009 HRTO 812, the Tribunal deferred the Application pending the outcome of the WSIAT matter.

8The WSIAT rendered a decision on July 17, 2009, in which it concluded, among other things, that the applicant had refused suitable work offered to him by the respondent. The WSIAT concluded that the applicant was not entitled to benefits for loss of earnings.

9On September 10, 2009, the applicant filed a Request for an Order During Proceedings asking the Tribunal to proceed with the deferred Application. He disputes the factual and other conclusions of the WSIAT, maintains that the work offered was not suitable and argues that the respondent failed to accommodate his disability.

10On October 6, 2009, the respondent filed a Request for an Order During Proceedings seeking to have the Application dismissed under s. 45.1 of the Code on the basis that the WSIAT proceeding has appropriately dealt with the substance of the Application. The respondent also argues that it would be an abuse of process for the Tribunal to review the conclusive findings of the WSIAT.

11The Application was reactivated and, on September 23, 2010, the Tribunal heard oral submissions from the parties regarding the respondent’s request for dismissal.

12Prior to the hearing, the applicant filed a Request for an Order During Proceedings and attached to it a number of documents. At the hearing, the applicant confirmed that he was not seeking any specific order from the Tribunal and that the documents had been filed for consideration at the September 23, 2010 hearing.

SECTION 45.1 REQUEST TO DISMISS

13Section 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.

14The purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere. Section 45.1 is generally considered in two parts: (1) was there was another “proceeding”? and (2) if so, did it “appropriately deal with” the substance of the application.

Was there a proceeding for the purposes of s. 45.1?

15The applicant’s WSIB claim was ultimately determined by the WSIAT in an adjudicative process. The applicant gave evidence at a hearing before the WSIAT and had an opportunity to make oral submissions.

16I am satisfied that the WSIAT process is a proceeding for the purposes of section 45.1 of the Code.

Did the WSIAT appropriately deal with all or part of the subject-matter of the Application?

17In order to answer this question, I need to first determine the scope of both the Application and of the WSIAT decision.

What is the subject-matter of the Application?

18I have reviewed the Application carefully. Most of the allegations it contains relate to whether or not the respondent accommodated the applicant by providing suitable work to him after he sustained an injury. The applicant, who is self-represented, frequently uses the word “suitable” in the Application. This is also the terminology used by the WSIAT. I understand the applicant to allege that the respondent failed to accommodate him by providing work that he could do in light of his physical restrictions.

19Some of the applicant’s allegations relate to the suitability of jobs that were offered to the applicant, while others relate to the respondent’s alleged failure to provide suitable work and its decision to send the applicant home because no suitable work was available.

20As I understand it, the applicant also suggests that the respondent discriminated against him by questioning him regarding why he could not perform a particular job, forcing him to do unsuitable work, and suggesting that someone else do the heavy lifting part of the engine bracket position.

What does the WSIAT decision address?

21The WSIAT summarizes the issues before it as follows:

...whether the worker is entitled to benefits after February 12, 2007, with respect to injuries to his left knee and left shoulder. The [WSIB] ended benefits on the basis that the worker refused suitable work and failed to co-operate in the return-to-work effort. The worker takes the position that the work was not suitable. The employer opposes that position.

22At paragraph 53 of its decision, the WSIAT also considered the applicant’s allegations that the respondent harassed or discriminated against him on the basis of a disability by requiring further medical information and by sending him to jobs that were unsuitable with the intention of re-injuring him. The WSIAT rejected those allegations.

23The WSIAT concluded that the applicant was offered but declined a number of jobs that were suitable in light of the applicant’s restrictions and limitations. In reaching this conclusion, the WSIAT held that the applicant had provided misleading and inaccurate information and that he had failed to cooperate with the return-to-work process. For these reasons, it rejected the applicant’s claim.

Analysis

24I accept that the issues raised in the Application overlap squarely with those addressed by WSIAT in its decision. In both proceedings, the applicant raises substantially similar issues in relation to harassment, accommodation, discrimination and the suitability of the work offered to him.

25The issue becomes whether the WSIAT considered and appropriately dealt with the substance of the human rights allegations raised in the Application. In other words, while WSIAT’s decision clearly addresses whether the requirements of the Workplace Safety and Insurance Act, 1997, S.O. 1997, Ch. 16, Sch. A (“Act”) were met, I must determine whether it also engaged in a human rights analysis that addresses the subject-matter of the Application.

26The Tribunal considered this issue in Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520. In that case, the Tribunal reviewed in detail the relationship between the Act and the Code, in particular regarding the duty to accommodate an injured worker.

27In Boyce, the Tribunal explained that both the Code and the Act apply to cases where a worker returns to work following a work-related injury. It considered in what circumstances a proceeding under the Act can be said to have engaged in the requisite human rights analysis that would engage section 45.1 of the Code.

28The Code-related duty to accommodate is explicitly referenced in section 41 of the Act, which reads in part:

(1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

(2) This section does not apply in respect of employers who regularly employ fewer than 20 workers or such classes of employers as may be prescribed.

(3) The Board may determine the following matters on its own initiative or shall determine them if the worker and the employer disagree about the fitness of the worker to return to work:

1. If the worker has not returned to work with the employer, the Board shall determine whether the worker is medically able to perform the essential duties of his or her pre-injury employment or to perform suitable work.

2. If the Board has previously determined that the worker is medically able to perform suitable work, the Board shall determine whether the worker is medically able to perform the essential duties of the worker’s pre-injury employment.

(4) When the worker is medically able to perform the essential duties of his or her pre-injury employment, the employer shall,

(a) offer to re-employ the worker in the position that the worker held on the date of injury; or

(b) offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker’s employment on the date of injury.

(5) When the worker is medically able to perform suitable work (although he or she is unable to perform the essential duties of his or her pre-injury employment), the employer shall offer the worker the first opportunity to accept suitable employment that may become available with the employer.

(6) The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

29While there may be an overlap in the notion of “accommodation” expressed in the Act and the Code, the analysis performed may be different under each statute, depending on the circumstances. As the Tribunal explained in Boyce, in some instances, in determining whether a particular job is “suitable”, the WSIB process may consider Code-related accommodation issues. However, this is not necessarily the case.

30To illustrate this point, it is helpful to consider the facts in Boyce and to compare them to the applicant’s circumstances.

31In Boyce, the applicant was offered what was deemed to be suitable work in light of his physical limitations. However, the applicant raised concerns that, although the job itself was physically suitable, it would require him to travel and walk a considerable distance to get to the job site. He argued that the job was not suitable on the basis of its location.

32The WSIB ultimately decided that the work was suitable for the purposes of the Act. The WSIB concluded that the applicant could safely travel to and from the workplace and found that he was not entitled to loss of earnings benefits because he had refused suitable work.

33The Tribunal held that the WSIB’s decision did not appropriately deal with the applicant’s concerns about his ability to travel to the worksite in light of his physical limitations. In other words, while the suitability of the actual job was not at issue, the question of whether the employer accommodated the workplace to resolve the parking issue was not appropriately dealt with by the WSIB within the meaning of section 45.1 of the Code. In particular, the WSIB had given no consideration to whether accommodating the applicant at a different location would have amounted to undue hardship for the respondent. Accordingly, the Tribunal refused to dismiss the part of the Application dealing with the parking issue.

34The respondent argues that the facts in this case are different from those in Boyce. Here, the applicant takes issue with the WSIAT’s decision and argues that the WSIAT failed to take certain evidence into consideration and failed to give proper weight to certain other evidence. Importantly, however, he does not argue that the WSIAT decision fails to address any component of his need for accommodation or that the WSIAT failed to consider a particular request for accommodation in rendering its decision. Rather, the concerns raised in the Application turn principally on the WSIAT’s assessment of the evidence.

35In essence, the respondent argues that, in the circumstances of this case, the WSIAT’s determination that suitable work was offered to the applicant subsumes the issue of whether the applicant’s disability was accommodated pursuant to the Code. In other words, because the work was suitable and because the applicant raised no accommodation issues beyond the suitability of the positions, the WSIAT conclusively determined the human rights issues when it concluded that the positions offered to the applicant were suitable in light of accommodations offered by the employer.

36Indeed, the WSIAT not only found as a fact that the work offered to the applicant was suitable, it also concluded that the applicant had failed to co-operate in the return to work process. The duty to co-operate under the Act is comparable to the duty to participate in the accommodation process and is certainly one of the factors that would be considered under the Code.

37In his submissions, the applicant made two main arguments. First, he argued that there is a distinction between what is suitable under the Act and what is discriminatory under the Code. When invited to explain what allegations beyond those of suitability are made in the Application, the applicant said that he was forced to do unsafe work and that he was sent home by Jeff Hamilton, who said no work was available to him.

38Second, the applicant argued that while the WSIAT may have dealt with the issue of suitability, it did not do so appropriately. The applicant argued that the WSIAT erred by, among other things, failing to take evidence into account.

39Importantly, section 45.1 of the Code does not invite the Tribunal to act as an appellate court. It is not for this Tribunal to determine whether the matter was dealt with correctly. Rather, my task is to determine whether, in rendering its decision, the WSIAT applied the principles of the Code.

40The application of section 45.1 of the Code has been considered by the Tribunal, notably in Campbell v. Toronto District School Board, 2008 HRTO 62 and Noble v. York University, 2009 HRTO 1201.

41It is clear from these and later decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code. The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject-matter of the Application.

42In light of the above analysis, I find that in determining whether the work was suitable, the WSIAT appropriately applied the relevant human rights principles.

43The facts of this case are distinguishable from Boyce in that there is not a component of the applicant’s accommodation request that the WSIAT failed to consider. I accept that, in the circumstances of this case, the WSIAT’s determination that suitable work was offered to the applicant subsumes the issue of whether the applicant’s disability was accommodated pursuant to the Code.

44In my view, the additional (non-suitability) allegations pointed out by the applicant have also been appropriately dealt with by the WSIAT within the meaning of section 45.1. The WSIAT considered whether the applicant was harassed or discriminated against based on his disability and rejected those claims. The remaining issues are subsumed in the WSIAT’s determination that the work offered to the applicant was suitable.

45I have concluded that the WSIAT proceeding appropriately dealt with the subject-matter of the Application. The Application is dismissed on that basis.

46Accordingly, it is not necessary for me to determine whether the Application constitutes an abuse of process.