Marcel Backs v. Corporation of the City of Ottawa, 2010 HRTO 808

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcel Backs Applicant

-and-

Corporation of the City of Ottawa Respondent

interim decision

Adjudicator: David Muir Date: April 12, 2010 Citation: 2010 HRTO 808 Indexed as: Backs v. Ottawa (City)

APPEARANCES

Marcel Backs, Applicant ) Sean T. McGee, Counsel Corporation of the City of Ottawa, Respondent ) David Patacairk, Counsel

1This is an Application filed on January 26, 2009, 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 deals with preliminary issues raised by the respondent in its Response and after.

2A Case Assessment Direction dated advised the parties that the preliminary issues identified to that point would be dealt with at the hearing. Those issues were:

a. That certain of the allegations were made out of time and were not therefore within the jurisdiction of the Tribunal to consider.

b. That the attempt by Mr. Backs to re-litigate the issue of whether or not he could perform the duties of a Fire Prevention Officer was an abuse of process, the issue having already been determined by the WSIB.

c. That the final statement of facts filed by the applicant was improper.

3At the hearing the respondent also requested that the personal respondent be removed from the Application. On consent, subject to the undertakings by the respondent that it accepted liability, if any, for the actions of the individual respondent and that he be available as a witness if necessary, the individual respondent is removed from the Application and the style of cause amended accordingly.

The Timeliness of the Complaint

4At the outset of the hearing, the applicant indicated that he was narrowing the scope of the issues raised in the Application and would not be leading evidence in respect of any alleged harassment by the respondent between 2003 and February 2005 and further was not alleging any failure on the part of the employer to appropriately accommodate him prior to February 2, 2005, when he went off work after a further injury at work. It was said that the complaint was now confined to the applicant's claim that his efforts to return to work, beginning sometime in late 2005 but most specifically in March and April of 2006 when his treating physician raised the possibility he might be able to return to work, were not taken up by the respondent.

5Although this dealt with the concerns of the respondent as initially framed in its Response, the issue was rearticulated at the hearing as a request for the early dismissal of the entire Application because the human rights Complaint ("Complaint") forming the subject matter of the Application was not made to the Ontario Human Rights Commission in a timely manner.

6In the complaint the applicant alleged that he has been subject to discriminatory treatment on the basis of a disability. Taking into account the applicant's narrowing of the issues and allegations raised in the complaint, the remaining allegations are briefly summarized here:

a. The applicant was injured in an MVA in July 2003. The injury was acknowledged by the employer and Mr. Backs was off work for a period of time.

b. The applicant alleges that between February 2005 and February 2006 the employer "did nothing with my request to return to modified duties in Fire Prevention."

c. The applicant alleges that on October 26, 2006, he faxed a letter from his physician requesting a graduated return to work in the Fire Prevention Division.

d. The applicant alleges that in December 2006, he attended a WSIB return to work mediation where an agreement was reached.

e. The applicant alleges that in January 2007, he was cleared to return to work in Fire Prevention Division with minimal restrictions. The employer did not respond.

f. The applicant alleges that in May 2007, he was informed that he would be entering the WSIB labour market re-entry program (LMR) because the "Fire Management Team" had nothing to offer him.

g. The applicant alleges that on June 26, 2007, he received a letter from the respondent employer indicating that it could not accommodate him.

h. The applicant alleges that in November 2007 he met with the respondent employer to discuss job opportunities. The applicant states that the respondent offered him assistance with resume writing.

The human rights Complaint was filed with the Commission in February 2008.

7The respondent states that the Complaint crystallized when the applicant first raised the possibility of a return to work – it says this occurred in February 2005. It also relied upon the suggestion by the applicant that the scope of the complaint may go as far back as the Fall of 2005 when it was said at the hearing that this is when the doctors began stating that Mr. Backs could return to work.

8After hearing the submissions of the parties, I orally rejected the request to dismiss the Application. My reasons follow.

9Despite the submissions made of the applicant and certain of the allegations made in the complaint, the material filed by the parties indicates there is little indication of any prospect of a return to work until a tentative request made by the applicant's family physician in October 2006. Although there are references in the complaint to a request or requests between February 2005 and February 2006, there do not appear to have been any such requests. The very first reference to the possibility of a return to work is a note from the applicant's family physician to the WSIB in April 2006 recommending that "if Mr. Backs is agreeable and the employer can accommodate" a graduated return to work.

10The material indicates that over the summer months the possibility of the applicant returning to work began to be contemplated, and by September 2006 the workplace parties, including the applicant's bargaining agent, were involved in exploring options with a view to returning him to work in some position with the City.

11At this stage it appears that the applicant is determined to return to his pre-injury position. It is also apparent that while the respondent has not said yes to such a request, neither has it said no. As indicated the applicant's family physician sent a note to the employer in October 2006 proposing a graduated return to work.

12A WSIB-facilitated return to work mediation took place in November 2006. It is clear that the question of whether or not the applicant could be returned to his pre-injury position in Fire Prevention, with or without accommodation, was very much alive at that stage.

13Pursuant to the mediated agreement, a functional abilities evaluation was undertaken in January 2007 to re-examine the question of whether or not the applicant could perform the duties of his pre-accident position. The conclusion of the evaluators appears to have been that he could return to work with some accommodations.

14The first clear statement to the applicant that the employer had come to a definitive conclusion that it could not accommodate him in Fire Services was delivered in late May 2007, when he was told that since the Fire Management Team had nothing to offer him he was being placed in the WSIB LMR program. On June 1, 2007, Bruce Montone, Deputy Chief, wrote to the applicant confirming that the employer had concluded that it could not accommodate him, without undue hardship, in his position in Fire Prevention or elsewhere within Fire Services based on his current medical restrictions. The letter went on to state that the employer would continue in its attempts to find him an appropriate position having regard to his medical restrictions, competencies, experience and education.

15Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

16Under section 34, an applicant is prevented from filing an application more than a year after the incident, or the last incident in a series, unless the Tribunal is satisfied that the circumstances in subsection 34(2) exist.

17The respondents state that the essential allegation is that the employer failed to accommodate his disability following a re-injury suffered on February 2, 2005. What follows the alleged failure to accommodate in February 2005 is not a continuing series of independent violations of the Code but, rather, the continuing consequences of the decision not to return him to work beginning in February 2005.

18The materials filed by the parties do not support the respondent's position. There is no indication that there was any serious issue of the applicant returning to work prior to the Summer of 2006 and no decision on the part of the respondent prior to May and June 2007, when the respondent communicated to the applicant and the WSIB that it did not feel that it could accommodate him within the Fire Service.

19The Complaint was filed in February 2008. I find that the Complaint, as reframed by the applicant at the hearing, was filed within one year of the decision of the respondent employer made in May 2007.

Abuse of Process/Estoppel

20The respondent requests that the Tribunal deem the applicant's claim that he be returned to his pre-injury position and compensated for lost wages arising from that claim an abuse of process which should be dismissed. The respondent states that the applicant's claim to be returned to his pre-injury position has been subject to lengthy and detailed examination in the context of his claim under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A ("WSIA"). The respondent states that it does not say that the WSIB determined the issue of whether there has been a violation of the Code; rather it seeks a determination that the question of the suitability of the of position of Fire Prevention Officer has been determined and should not be re-litigated, avoiding duplicative proceedings and all that entails including the possibility of divergent results.

21The respondent states that section 41 of the WSIA requires employers to return injured workers to work and that section 41(6) imposes a duty to accommodate on an employer in the return to work process. The respondent states that the WSIB has not required the respondent to put the applicant back in his pre-injury position nor has it imposed any fine on the City for its failure to do so, although it is authorized by section 41(13) of the WSIA to do so where an employer fails to comply with its obligations under section 41. The respondent states that the "clear implication" is that ultimately the WSIB agreed that the applicant could not return to his pre-injury position even with accommodations.

22The respondent also states that in light of these circumstance and given that the applicant has been in receipt of substantial monetary benefits because of his inability to return to his former position any suggestion that he should be returned to that position while still receiving those benefits is an abuse of process.

23The respondent also stated that to put the applicant back into his pre-injury position would require it to ignore the WSIB restrictions. The respondent states that it is legislatively prohibited from doing so unless the applicant's WSIB restrictions and award are modified by the WSIB. The applicant has never requested this and, in any event, it is not supported by the available medical evidence. The respondent relied upon a decision of the Canadian Human Rights Tribunal, O'Connor v. Canadian National Railway, 2006 CHRT 5, applying the doctrine of res judicata and abuse of process in a situation, where pursuant to a WSIB determination, the complainant was subject to restrictions and in receipt of substantial benefits.

24The applicant opposes the Request to dismiss. The applicant states that there is no decision that he is forever unable to return to his pre-existing position. On the contrary, the applicant states there is medical evidence that he could return to work with minimal restrictions and argues this falls far short of undue hardship. The applicant also states that the decision of the WSIB is not final and can be reviewed at intervals. The applicant also states that the doctrine of res judicata is not triggered by a "clear implication" relied upon by the respondent nor does it meet the threshold required for an a finding of abuse of process.

25I am satisfied that the question of whether or not the applicant was able to return to the full duties of his pre-injury position has been determined by the WSIB applications process. I am also satisfied, at least as it relates to the determination of the respondent that it could not accommodate the applicant in May 2007, that the WSIB proceeding has dealt with the issue of the restrictions that the parties should have considered when determining what accommodations might have been appropriate to enable the applicant to return to his pre-injury position – being those determined by the FAE conducted in January 2007.

26In many ways this case raises the same issues addressed by the Tribunal in Snow v. Honda of Canada Manufacturing, 2007 HRTO 45. As in Snow, in this case there no decision to which the respondent can point wherein the WSIB squarely addresses the question of whether or not the applicant could be accommodated in his pre-injury position without undue hardship. On the contrary, the WSIB file indicates that it did not consider the issue at all, but rather accepted that the respondent's position that the pre-injury position appeared unsuitable without accommodation. On that basis the applicant was referred for a labour market entry assessment. As the Tribunal determined in Snow, in the absence of a decision in the other proceeding, there is no basis, in these circumstances, for a finding of an estoppel or an abuse of process.

27The decision in O'Connor, supra, is of course not binding on me and in any event is distinguishable. I also do not accept that it stands for the proposition advanced by the respondent. Although the underlying fact situation bears some similarity to the instant matter albeit under a predecessor WSIA regime, the decision really concerns the appropriateness of the Canadian Human Rights Tribunal allowing the complainant to re-litigate issues that had previously been determined by a labour arbitrator. That is not the situation here, because I have concluded that there has been no determination by anyone of the central question in this Application.

28Although there are a number of issues in this case as summarized above, at the heart of it, and the question around which the instant issue arises is the applicant's claim that he could have been returned to his pre-injury position with accommodations that did not impose undue hardship on the respondent. The respondent took the position that it could not accommodate the applicant with his restrictions. That determination was accepted by the WSIB and apparently not challenged by the applicant. It is troubling that the applicant and the WSIB seem to have accepted the employer's assertion at that stage. Had either the WSIB or the applicant challenged the employer's position, the central issue in this Application would have been dealt with in the most appropriate forum for resolving such disputes.

29The respondent states, not unreasonably, that it has paid significant benefits to the applicant on the premise that he cannot return to his pre-injury work, a position if not a determination, that was not challenged by the applicant in the WSIB proceeding. It is also true that the central issue in this case could have been, and in my view, should have been, determined by the WSIB. However, I am satisfied based on the material filed that the question of whether or not the respondent could have accommodated the applicant's restrictions without undue hardship was not even considered let alone determined by the WSIB process.

30In coming to these conclusions I am mindful of the fact that the WSIB proceeding as well as the applicant's WSIB status will impact on the remedies available to the applicant, should a violation of the Code be ultimately found.

31The requests to dismiss on the basis of delay and abuse of process are dismissed for the reasons set out above.

32The remaining issue that the statement of facts filed by the applicant was somehow improper was largely dealt with informally at the first day of hearing in October. Any remaining issue can be dealt with when the matter resumes.

33I am seized of this matter.