Zissakos v. Toronto Transit Commission, 2010 HRTO 2295

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Georgios Zissakos

Applicant

-and-

Toronto Transit Commission and Amalgamated Transit Union, Local 113

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 18, 2010

Citation: 2010 HRTO 2295

Indexed as: Zissakos v. Toronto Transit Commission

1The purpose of this Interim Decision is to decide whether the Tribunal should dismiss the Application against the Workplace Safety and Insurance Board (“WSIB”).

2The applicant filed an Application with the Tribunal 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 Toronto Transit Commission (“TTC”), the Amalgamated Transit Union, Local 113 (“Union”), and the WSIB discriminated against him with respect to employment because of his disability.

3With respect to the WSIB, the applicant 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.

4The 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 this Tribunal’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 loss of earning benefits, which is within the exclusive jurisdiction of the WSIB.

5The applicant filed two nearly identical Replies on January 28 and February 3, 2010. With respect to the WSIB, he alleged that, when he attended an “independent” medical examination that was arranged by the TTC in May 2008, the WSIB violated privacy legislation by sending the TTC and the Union a copy of the videotape of him driving.

6In an Interim Decision, 2010 HRTO 2018, dated October 4, 2010, which dismissed the respondents’ request to defer consideration of the Application, the Tribunal provided the following direction to the applicant:

The 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.

In 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.

7On October 7, 2010, the applicant’s legal counsel sent the Tribunal an e-mail, which requested that the Tribunal continue to process the Application and schedule a mediation, but did not respond to the above direction.

8In the circumstances, my view is that there are no allegations of discrimination against the WSIB. The Tribunal therefore orders that the Application against the WSIB be dismissed because it is outside the Tribunal’s jurisdiction. The style of cause shall be amended accordingly.

9Given that the remaining parties have indicated a willingness to participate in mediation, the file will be placed in the queue for scheduling a mediation in this matter.

10I am not seized of this matter