HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kularaj Kulasingam

Applicant

-and-

Toral Cast Integrated Technologies, a Division of Magna Powertrain Inc. and Ramdat Singh

Respondents

DECISION

Adjudicator: Mark Hart

Date: March 5, 2010

Citation: 2010 HRTO 505

Indexed as: Kulasingam v. Toral Cast Integrated Technologies

APPEARANCES BY

Kuralraj Kulasingam, Applicant ) On his own behalf

Toral Cast Integrated Technologies, )

a Division of Magna Powertrain Inc. ) Kelly Harbridge, Counsel

and Ramdat Singh, Respondents )

[1] This is an Application dated October 29, 2008 and filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on February 7, 2006.

[2] A preliminary hearing in this matter took place on March 3, 2010 to determine the issue raised by the respondents that the Application should be dismissed pursuant to s. 45.1 of the Code, on the basis that the substance of the Application has already been appropriately dealt with in another proceeding.

[3] The applicant was assisted at this preliminary hearing by a Tamil interpreter, Suba Mahendralingam.

[4] In keeping with the expeditious manner in which s. 53 applications are to be conducted, at the conclusion of the hearing on March 3, 2010, I issued the following oral decision.

1. This is a preliminary hearing to address the respondents’ request for dismissal of the Application pursuant to s. 45.1 of the Code, on the basis that the substance of the Application already has been appropriately dealt with in another proceeding, namely as a result of the decision of the Ontario Labour Relations Board, dated August 28, 2009.

2. There is no question that an appeal proceeding before the Ontario Labour Relations Board (“OLRB”) following an Employment Standards Officer’s decision under the Employment Standards Act is a “proceeding” within the meaning of s. 45.1 of the Code.

3. The question before me, then, is first whether the OLRB proceeding dealt with the substance of the Application and if so, whether it was dealt with appropriately.

4. This first requires me to determine the substance of the Application before me. The human rights complaint underlying the Application first raises a complaint that the applicant made against his supervisor on September 5, 2006. The complaint alleges that the applicant was being “harassed” by his supervisor. The issue as revealed by the September 5, 2006 letter is that the applicant complained about his supervisor at an Employee Opinion Survey Meeting on August 23, 2006, and the applicant believes that his supervisor raised unfair allegations about his production in retaliation.

5. At the preliminary hearing, I raised with the applicant that, while I understood from the September 5, 2006 letter that the applicant was alleging that he became emotionally upset, depressed and stressed as a result of his supervisor’s conduct, I did not understand that the applicant was alleging that he was being harassed because of a disability. The applicant confirmed that this was correct. As a result, the alleged harassment, while it provides part of the background to the applicant’s complaint, does not form part of the substance of the Application.

6. The applicant also raised before me an issue relating to a written warning that he received on September 18, 2006 as a result of him being absent from work without medical authorization and without complying with the company’s call-in procedures. The material before me indicates that the applicant was on a medically authorized absence until September 11, 2006 yet failed to report for work on that day or the subsequent two work days without calling in or providing advance medical support for his continued absence. The applicant does not dispute that he failed to call in on these days, but states that this was because of strong sleeping medication that he was taking and because he was badly sick. No specific allegation is raised in the applicant’s complaint that the issuance of this written warning in these circumstances is a violation of the Code.

7. The applicant also raised before me that the respondents failed to provide him with modified work when he returned from his sick leave, but once again this allegation is not raised in the human rights complaint. As a result, I find that any issues relating to the applicant’s absence from work in early September 2006 and subsequent return to work and the written warning he received on September 18, 2006 also do not form part of the substance of his Application.

8. The allegation that is squarely raised in the human rights complaint is that the applicant was unjustly dismissed in August 2007 because the respondents considered the medical information that he provided to be insufficient. I find that it is this allegation that forms the essence or substance of the Application before me.

9. The proceeding before the OLRB related to the applicant’s claim for termination and severance pay following the termination of his employment, and the issue under the Employment Standards Act was whether the applicant had engaged in “wilful misconduct” so as to disentitle him from those payments. This required the OLRB to review the circumstances surrounding the applicant’s extended absence from work following a workplace injury on September 22, 2006, the nature of the medical information provided by the applicant to support his absence, the efforts made by the respondent company to obtain medical information from the applicant, the applicant’s response to these requests, and the ultimate decision to terminate the applicant’s employment.

10. The OLRB expressly found that the respondent company did not know why the applicant was off work from about October 2006 on, and that no information had been presented to the company to suggest that the applicant was suffering from anything other than a physical disability which he should have recovered from. The OLRB found that the respondent company had the right to seek medical information from the applicant to obtain justification for his absence from work, and that the applicant had no satisfactory explanation for his failure to comply with the company’s requests for information. As a result, the OLRB concluded that the applicant deliberately failed to comply with the company’s legitimate requirements for medical information and that this amounted to wilful misconduct.

11. While the statutory rights and legal framework under the Human Rights Code are different from those under the Employment Standards Act, the question of whether the applicant experienced discrimination or harassment because of his disability under the Code in relation to the termination of his employment would require this Tribunal to engage in precisely the same factual exercise as has the OLRB. This Tribunal would be required to consider what medical information was provided by the applicant to support his absence from work, the legitimacy of the respondents’ requests for further medical information, and the applicant’s failure to adequately respond to those requests. These matters already have been heard and determined before the OLRB. Accordingly, I find that the substance of the Application has already been dealt with in the OLRB decision.

12. The final question is whether the substance of the Application was dealt with “appropriately” by the OLRB. As has been stated in the Tribunal’s case law, I am not acting as an appellate body in reviewing the OLRB decision. The question is whether the applicant had a meaningful opportunity to be heard before the OLRB: see Christianson v. College of Physicians and Surgeons, [2010 HRTO 72](https://www.minicounsel.ca/hrto/2010/72) at para. [23](https://www.minicounsel.ca/hrto/2010/72).

13. On appeals from an Employment Standards Officer’s decision, the OLRB holds a hearing de novo, where it considers the matter afresh on the basis of the evidence led before it by the parties. The hearing before the OLRB in this matter lasted two days, and the applicant was afforded full opportunity to provide his evidence and submissions in support of his position, and also was assisted in that proceeding by an interpreter. While the applicant asserted before me that the respondents had disregarded other medical information that he had provided to them to support his absence, he confirmed that he had raised this issue before the OLRB. As a result, I find that the applicant did have a meaningful opportunity to be heard before the OLRB on the issue which forms the substance of this Application. I also find that there is no apparent misapplication of human rights principles on the face of the OLRB decision in reaching the findings and conclusions set out therein. Accordingly, I find that the substance of the Application was appropriately dealt with before the OLRB.

14. As a result, the Application is dismissed in its entirety pursuant to s. 45.1 of the Code.

[5] As a result, the Application is dismissed.

Dated at Toronto, this 5^th^ day of March, 2010.

“Signed by”

______________________________________

Mark Hart

Vice-chair