Human Rights Tribunal of Ontario

B E T W E E N:

Eric Mueller

Applicant

-and-

Multimatic Inc., Dave Armstrong, Paul Clitherow and Scott Worden

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 15, 2010

Citation: 2010 HRTO 71

Indexed as: Mueller v. Multimatic

[1] This Application was filed under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision addresses a disputed request to amend the Application to add post-complaint events.

[2] The complaint which underlies the current Application was filed with the Ontario Human Rights Commission (the "Commission") on June 11, 2008. The applicant alleged that he had been harassed at work because of various work-related injuries from May 2004 until the end of his employment. On March 6, 2007, the applicant alleges that he injured his back at work. The respondents allege that he was given work consistent with his medical restrictions. On July 26, 2007, the applicant was temporarily laid off. He was notified in October 2007 that the lay-off would continue. On March 14, 2008, he was advised that the lay-off was permanent. The applicant alleges that his disability played a role in the lay-offs.

[3] The applicant filed a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, C. 16, as amended ("WSIA") which was denied in part because the Workplace Safety and Insurance Board determined on February 20, 2009 that he was able to do his regular work at the time of his lay-off. The applicant has stated that he has filed an appeal of this decision.

[4] The applicant also made a claim under the WSIA that he had been released from his employment within six months of his injury and therefore the release violated the WSIA. Section 47 of the WSIA states:

41(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.

(10) If an employer re-employs a worker in accordance with this section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer's obligations under this section. The employer may rebut the presumption by showing that the termination of the worker's employment was not related to the injury.

[5] A claims investigator conducted an interview with Dave Armstrong, Human Resources Manager with the corporate respondent, on November 10, 2008. In that interview, Mr. Armstrong appears to have made statements to the claims investigator that the applicant had been performing his regular duties at the time of his lay-off. The claim for an alleged breach of section 47 was denied. It is not clear whether the applicant has appealed that decision.

[6] The applicant filed a Request for Order during Proceedings seeking to amend the Application to include allegations which post-date the Commission complaint of June 2008. In particular, the applicant asserts that the comments made by Dave Armstrong to the WSIB claims investigator in November 2008 that the applicant had been doing regular duties at the time of the layoff and that he (Armstrong) was unaware of any restrictions imposed on the applicant at the time of the lay-off in July 2007, were false. The applicant asserts that this false comment was the reason why his claim for benefits was denied.

[7] The applicant seeks to rely upon this statement as ongoing discrimination and harassment and/or reprisal, for which he seeks to claim any lost benefits under the WSIA. He claims an additional $400,000 in damages for lost benefits including loss of earnings, labour market re-entry assistance and income supplementation until the age of sixty-five.

[8] The respondent opposes the amendment on the basis that the applicant is essentially asking the Tribunal to adjudicate his entitlement to benefits under the WSIA and that the WSIB has exclusive jurisdiction under section 118(2) to determine whether benefits are owed.

[9] The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. While the transition Rules contemplate that parties may make a request to amend the Application, the Code provisions prevail. Amendments which alter the subject matter of the original complaint will be denied.

[10] In this case the alleged ongoing discrimination stems from comments allegedly made by respondent Armstrong during a WSIB investigation. Permitting an amendment to consider whether these comments amount to discrimination or reprisal would fundamentally alter the focus of the Application which is whether the applicant was harassed and ultimately laid off because of a disability.

[11] This is not to say that the alleged comments by respondent Armstrong may not be relied upon by the applicant as evidence with respect to the alleged harassment or termination. For example, if the comments are found to have been made and to be false, this may affect Mr. Armstrong's credibility. However, they cannot be relied upon to found a breach of the Code in the present Application.

[12] Further, I agree with the respondents that the WSIB has exclusive jurisdiction to determine entitlement to benefits under the WSIA. Thus, if the applicant believes that the respondents provided inaccurate information to the WSIB which resulted in a negative decision in his claim for a breach of section 47 or his clam for loss of earnings benefits, the appropriate place to raise those issues is before the WSIB within their appeals process.

[13] The request to amend the Application is denied.

Dated at Toronto, this 15th day of January, 2010.

"Signed by"

Kaye Joachim

Alternate Chair