Ralph Maze v. Genco Distribution of Canada Inc. and Lisa Hyndman, 2011 HRTO 866

Human Rights Tribunal of Ontario

B E T W E E N:

Ralph Maze

Applicant

-and-

Genco Distribution of Canada Inc. and Lisa Hyndman

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 3, 2011

Citation: 2011 HRTO 866

Indexed as: Mace v. Genco Distribution of Canada

1The applicant filed an Application on December 24, 2010 under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability and age. The applicant alleges he was the oldest worker in his position and that his employment was terminated upon the respondents being advised that he had suffered a permanent disability due to a workplace accident.

2The respondents filed a Response on March 17, 2011, wherein they request early dismissal of the Application on the basis that another proceeding through the Workplace Safety and Insurance Board ("WSIB") has appropriately dealt with the substance of the Application. The respondents assert that the WSIB considered the applicant's workplace concerns and determined that the employer provided the applicant with appropriate accommodation and was not required to re-employ the applicant.

3The applicant filed a Reply on April 26, 2011 requesting that the Tribunal reject the respondents' request for early dismissal on the basis that the WSIB process did not appropriately deal with the substance of the Application.

BACKGROUND

4Based on documentary materials filed by the parties, it appears that the applicant made a claim with the WSIB that the respondent employer failed to comply with its re-employment obligations. It appears that the WSIB determined that, under its statute and policies, specifically Policy 19-04-03, the respondent employer was not subject to a "re-employment obligation" because threshold pre-injury criteria were not satisfied.

SECTION 45.1 REQUEST TO DISMISS

5Section 45.1 of the Code provides 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.

6The purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

7I am not satisfied that the human rights substance of the Application was "appropriately" dealt with by the WSIB. The applicant alleges that the respondents discriminated against him because of both his disability and his age. In particular, the applicant alleges that the respondents used his disability as a means to dismiss him because he was an older worker.

8Based on the information provided by the parties, it appears that the WSIB decision did not consider the Code issues of disability and age discrimination, or the intersection of age and disability. As previously noted, it appears that the WSIB simply applied its policy with respect to re-employment obligations. While this application of policy may resolve the respondents' duties under WSIB legislation, this does not mean that the human rights issues have been appropriately dealt with.

9In the circumstances, I am not satisfied that the applicant's allegations of disability and age discrimination have been dealt with appropriately in the WSIB proceeding. The respondents' request for early dismissal of the Application is dismissed.

10I am not seized.