Lumley v. Trillium Lakelands District School Board, 2011 HRTO 868

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Lumley

Applicant

-and-

Trillium Lakelands District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 997

Intervenor

DECISION

Adjudicator: David Muir

Date: May 4, 2011

Citation: 2011 HRTO 868

Indexed as: Lumley v. Trillium Lakelands District School Board

APPEARANCES

Terry Lumley, Applicant (Self-represented)

Trillium Lakelands District School Board, Respondent (Carolyn Kay, Counsel)

Canadian Union of Public Employees, Local 997, Intervenor (Sue Lott, Counsel)

BACKGROUND

1This Application was filed on May 5, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges his employer, the Trillium Lakelands District School Board (the “Employer”), discriminated against him when it refused to accommodate his disability, put him on an absenteeism program and subsequently terminated his employment.

2In 2010 HRTO 1117 the Tribunal deferred consideration of the Application pending the conclusion of all appeals before the Workplace Safety and Insurance Board (the “WSIB”). The applicant sought reconsideration of this decision which was denied in 2010 HRTO 1956. Subsequently the applicant advised that he had abandoned his objection to the decision of the WSIB at issue and sought to have this Application processed to a hearing on the merits. The respondents, supported by the intervenor, have sought the early dismissal of the Application on the basis that it substance has been appropriately dealt with in another proceeding

3The Tribunal directed that the parties provide written submissions on the issue. Both of the parties as well as the intervenor have indicated that they wished to have this Request dealt with by way of their written submissions.

4In a Case Assessment Direction dated April 7, 2011 the Tribunal asked for the parties’ and intervenor’s submissions on a delay issue that emerged from a review of the materials filed by the parties. The applicant and the respondent have both responded and both have indicated that the Application is timely. Despite the parties agreement on this issue, in my view there remains a live question with respect to this delay issue. However, in light of the conclusions I reach on the issues previously raised by the respondent I have assumed, but not decided, for purposes of this decision that the Application is not untimely.

Background

5The applicant commenced employment with the Employer as a full-time custodian in May 1990. In September 1993, he suffered a workplace injury to his right knee for which he received WSIB benefits.

6On December 16, 2005, the applicant’s employment was terminated. The Employer asserted the applicant was terminated for cause, namely for: being absent without permission, abandonment of position, insubordination and inappropriate behaviour. The Union filed a grievance concerning the applicant’s termination but later abandoned it.

7On February 17, 2009, the applicant requested reinstatement of full WSIB benefits because he had been terminated by the Employer on December 16, 2005. The Employer made submissions to the WSIB on the applicant’s request.

8By decision dated June 11, 2009, the WSIB denied the applicant’s claim for reinstatement of full benefits. The WSIB held the applicant was terminated for reasons unrelated to his work injury. The WSIB also concluded that the applicant would have been accommodated by the Employer with suitable work with no wage loss had he not been terminated for reasons unrelated to the injury.

9The applicant filed an objection to the June 11, 2009 decision but then withdrew his objection. He now seeks to have this Application proceed to a hearing. The respondent, supported by the intervenor, takes the position that there is a final decision of the WSIB on the key factual issues in dispute in this Application and accordingly the Application should be dismissed.

10The rationale for the Tribunal’s determination in 2010 HRTO 1117 that it would be appropriate to defer this Application can be found in the following passages:

The applicant alleges that the respondent discriminated against him because of his disability when it failed to accommodate his work-related injury, put him on an absenteeism program and terminated his employment. The respondent asserts these issues are before the WSIB on the objection of the June 11, 2009 decision, and that the Tribunal should therefore defer hearing the Application.

Deferral of an Application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

Applying these principles to this case, I find it is appropriate to defer this Application pending the conclusion of the WSIB appeal processes, including an appeal to WSIAT, if made. The WSIB (and WSIAT) will consider the suitability of the modified work provided and the question of whether the termination of the applicant’s employment was related to his workplace injury. These are the same issues before the Tribunal. If the applicant’s position is upheld, he will be entitled to Loss of Earning benefits which may affect the damages awarded by the Tribunal if this Application is allowed. All of these factors support deferral. Also important is the fact that the applicant has the assistance of the Union on the WSIB objection whereas he is self-represented in this Application. For these reasons, the Application is deferred.

11As indicated the applicant has advised that he has withdrawn his objection to the WSIB’s decision of June 9, 2009. As such that decision is a final one in respect of the issues before the WSIA, subject to any revival of the applicant’s objection and any proceedings that might follow. See Mckee v. Imperial Irrigation, 2010 HRTO 1598.

12There is no question that the WSIA process is a proceeding within the meaning of section 45.1 of the Code. See Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520. I also accept the respondent’s submission that the facts underlying or at issue in the two proceedings are substantially the same. The applicant sought the reinstatement of a LOE benefit on the basis that the respondent employer had terminated his employment because of his injuries. The applicant also alleged in both proceedings that the employer had failed to accommodate him appropriately with work suitable to his impairments. As the Tribunal concluded in 2010 HRTO 1117 these are the same questions as are raised in this Application.

13The respondent states finally that the substance of this Application was appropriately dealt with and the decision maker considered the same principles that would be considered were this Application to be heard by the Tribunal.

14The applicant states that the WSIA proceeding was not sufficiently similar or analogous to a Tribunal proceeding for section 45.1 to be applicable. The applicant suggests that there was no right to cross-examine or make full answer to the submissions of the respondent. The applicant states as well that the fact that he has withdrawn his objection to the Case Manager’s decision should not be taken as agreement with those conclusions and therefore the decision is not a final one as stated by the respondents. The applicant also states that the public interest is not engaged in the WSIA proceeding as it would be in this Application.

15The Application is dismissed. The applicant has raised substantially the same factual and legal issues in seeking benefits under the WSIA. It will not always be the case that the issues in a WSIA proceeding are the same as the questions put before the Tribunal in an Application, however in the particular circumstances of this case they are. The WSIA has made a final decision, subject to objection by the applicant. The applicant disagrees with that determination however the proper remedy is not to challenge the decision at the Tribunal, but to challenge it utilizing the mechanisms provided under the WSIA.