Nghiem v. Frendel Kitchens, 2011 HRTO 210

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chi Nghiem

Applicant

-and-

Frendel Kitchens Ltd.

Respondent

Interim decision

Adjudicator: David Muir

Date: January 28, 2011

Citation: 2011 HRTO 210

Indexed as: Nghiem v. Frendel Kitchens

1This is an Application filed on June 24, 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 a Request for Order During Proceeding filed by the respondents seeking the early dismissal of the Application. Alternatively, the respondents also seek an Order removing the individual respondents.

2The applicant has consented to the removal of the personal respondents. Having regard to the issues in this Application, the fact that there is a corporate respondent which has acknowledged liability and is capable of providing an appropriate remedy, the individual respondents are removed from the Application and the style of cause amended accordingly.

3The respondent states that the applicant is estopped from proceeding with this Application on the basis that the key factual allegations underlying the human rights complaint have been finally determined by the WSIB in a proceeding commenced by the applicant. Alternatively the respondent states that the Application should be dismissed pursuant to section 45.1 of the Code because the subject matter of it has been appropriately dealt with in the WSIB proceeding.

4These alternative positions rest on essentially the same underpinning: that key factual issues raised in both the human rights complaint and the WSIB claim are the same and that there has been a final determination of the issues by the WSIB sufficient to remove any basis for continuing with this Application.

5The applicant in his human rights complaint forming the subject matter of this Application (the complaint) alleged that his right to be free from discrimination in employment on the basis of disability was infringed by the respondent. The applicant makes three central allegations in his complaint:

a. That by the end of October 2004 he had developed “terrible pain through my neck and my left arm and my legs” and he requested permission from a supervisor to go to his doctor which was granted.

b. That Dr Dang diagnosed tendonitis and prescribed rest from October 25 to October 30, 2004. The applicant alleges that he provided a note to this effect to his supervisor on October 25.

c. The applicant alleges that despite this note his employer begged him to report for work on October 26.

d. The applicant alleges that he reported to work on October 26, believing that because the employer knew of his disability he would be assigned light duties.

e. The applicant states that he worked a lighter job in the morning but that this caused him pain. The applicant alleges that after lunch his employer moved him to very heavy job. The applicant states that he advised his supervisor that he could not comply with the request because he would not be able to do the work. The applicant alleges that he reminded his supervisor of the doctor’s note. The applicant alleges that his employment was terminated that same day.

6The decision relied on by the respondent (the Noseworthy Decision) was made in February 2006. The material portions of the claims adjudicator’s determination are set out here:

You are claiming a gradual/repetitive left hand, shoulder, neck and foot injury you relate to your job duties/physical demands in the position of Machine Operator/Setter at Frendel Kitchens Limited.

Workers get loss of earnings benefits and payment of health care expenses under the following conditions:

-when injured in an accident that happened when doing assigned work duties;

-when performing a reasonable act within the scope of their job.

As an adjudicator, it is my job to decide if there is enough proof that the accident or disablement happened as reported, and, if there is, to pay benefits.

In reviewing your claim, I note the following relevant information and details:

1. Based on information from your employer, Frendel Kitchens Limited, you were terminated due to performance/disciplinary issues on October 26th, 2004.

2. At the time of your termination, your employer claims that at no time did you report or describe any work related injury either on a gradual/repetitive basis or otherwise;

3. In my review of the job description/physical demands of your Machine Operator/Setter job, it does not appear heavy, physical or repetitive enough to bring on or cause any of the multiple repetitive injuries you are claiming.

Noting the above, I am unable to grant entitlement in your claim on the basis that I am unable to accept, establish or determine that any work related injury occurred either on a gradual/repetitive basis or otherwise. Entitlement in your claim, therefore, is not in order and your claim is denied.

7In this decision the adjudicator invites the applicant to submit further information and a reconsideration of the decision might be undertaken. The applicant does not appear to have taken up the claims adjudicator’s offer but rather filed an objection to the Noseworthy Decision with the WSIB appeals branch on July 25, 2006.

8In an internal memorandum prepared by L.M. Frenchi, Appeals Resolution Officer (ARO), on October 16, 2006 and addressed to the Claims Adjudicator/Manager the claim was referred back to the claims adjudicator for determination. The reasons for this action are significant to the issues at hand:

In reviewing this file, it became apparent that additional information was required before an informed decision could be made regarding initial entitlement. I spoke to Mr. Leblanc (the applicant’s representative at the time) on October 10 2006. He agreed to my suggestion that the file be returned back to the adjudicator to obtain additional information.

9The ARO goes on to point out a number of deficiencies in the February 2006 decision. For example the decision seems to have disregarded entirely the Worker’s Report of Accident which states that the applicant complained to his supervisor of left hand pain on October 25, that he claimed to have sought and was granted permission by his supervisor to see his Doctor that day, and that later that day a note from his Doctor was provided to the employer. The ARO notes that the adjudicator did not speak to the applicant, the supervisor or to the applicant’s doctor to confirm the applicant’s visit and whether or not a note was written for the applicant.

10The ARO concludes as follows:

In any case, I would ask that the above-noted additional information be obtained and a further decision made and that all parties are advised accordingly. I would ask that the representative be given an opportunity of reviewing your further decision and then determining what further course of action to take at that point in time.

Why (sic) I realize that a return of this file will delay this objection, it is necessary given the fact that additional documentation is required in order to render an informed decision on this case.

11On October 20, 2006 the claims adjudicator wrote to the applicant and advised him that the file had been returned by the ARO to obtain further information “and review/reconsider my decision further”. The letter required the applicant to obtain a statement from the applicant’s supervisor confirming that he had complained to his supervisor about pain, had requested and received permission from his supervisor to leave work and see his doctor and, that the applicant provided a note to the respondent employer.

12It is not disputed that the applicant did not provide the information requested. Given the nature of the request it is perhaps not surprising in all the circumstances. In any case the applicant’s WSIB claim has languished until the applicant was recently prompted into action, apparently by the respondent’s Request.

DECISION

13There are two significant problems with the respondent’s Request. First, I am not satisfied that the decision of the claims adjudicator is a final decision as contemplated by either of the doctrine of issue estoppel or s. 45.1 of the Code. It seems to me a decision that is not “informed” is not a decision at all. At a minimum it is not a final decision that ought to be binding on a party. This it seems to me is a sufficient answer to both of the respondent’s alternative positions on early dismissal of this Application.

14The respondent states that as a consequence of the failure of the applicant to follow up with the request for further information by the claims adjudicator the decision should be treated as a final decision by the Tribunal. The respondent states that by waiting so long to advance this claim the applicant should be deemed to have abandoned his appeal rights.

15I am also not persuaded that the fact that, for whatever reason, the applicant has not pursued his claim at the WSIB which has resulted in considerable delay in its resolution can transform the non-decision of the adjudicator into a final decision. I also do not understand how I can deem the applicant to have abandoned whatever appeal rights he has under the WSIA. In any event the applicant advises that he has provided further information to a new claims adjudicator handling the file and he has not been advised of any impediment to the matter proceeding.

16Accordingly, and for these reasons, the Request to dismiss the Application is dismissed. Having dealt with the Request on this basis there is no need to deal with the applicant’s argument that the question before the claims adjudicator are not the same as those raised in the Application.

17I am not seized.