Bechard v. Ontario Lottery and Gaming Corporation, 2011 HRTO 1191

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Bechard

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 21, 2011

Citation: 2011 HRTO 1191

Indexed as: Bechard v. Ontario Lottery and Gaming Corporation

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. Among other things, the applicant alleges that the respondent infringed her right to be free from discrimination on the basis of disability by insisting she return to work when she was not safely able to do so.

2The respondent seeks dismissal of the Application under s. 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application.

3The respondent submits that the other proceeding which appropriately dealt with the substance of the Application was an “insurance appeal process”. Specifically, the respondent employer submits that its disability management service provider, ACCLAIM, determined that the applicant’s absence from work during the “appeal period” was supported on the basis of medical information as being due to medical reasons.

4Section 45.1 reads 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.

5The respondent’s request is dismissed.

6The insurance appeal process employed by the respondent’s disability management service provider was not a “proceeding” within the meaning of s. 45.1 of the Code. Rather, it appears to have been some kind of internal process established by the respondent and/or its disability management service provider to determine employee eligibility for certain benefits. It is not the sort of judicial or quasi-judicial proceeding characterized by guarantees of procedural fairness and adjudicator independence and impartiality which are the hallmarks of a “proceeding” within the meaning of s. 45.1 of the Code. The internal nature of the the insurance appeal process is illustrated by the fact that the applicant was notified of the decision that she was eligible for benefits during the period in question by a letter from the respondent’s Human Resources Coordinator.

7At any rate, even if the insurance appeal process were a “proceeding” within the meaning of s. 45.1 of the Code (which it is not), in my view, it did not deal with the substance of the Application, which is whether the respondent employer infringed the applicant’s rights under the Code by refusing and/or failing to accommodate the applicant’s disability-related needs at the relevant time.

8I am not seized.