HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Spence McCarthy
Applicant
-and-
Caesar’s Plumbing and Heating
Respondent
INTERIM DECISION
Adjudicator: Eric Whist Date: July 23, 2012 Citation: 2012 HRTO 1428 Indexed as: McCarthy v. Caesar’s Plumbing and Heating
WRITTEN SUBMISSIONS
Spence McCarthy, Applicant Anne Levesque, Counsel
Caesar’s Plumbing and Heating, Respondent Andrew Lister, Counsel
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in employment on the ground of disability. This Interim Decision addresses a request by the applicant to re-activate his deferred Application.
BACKGROUND
2The applicant suffered a work related injury in September 2009 and was absent from work for two months. He received Loss of Employment (“LOE”) benefits from the Workplace Safety and Insurance Board (“WSIB”). He returned to work in November 2009 on modified light duties. He remained on light duties until late March 2010 when he returned to his pre-injury regular duties. The applicant was on regular duties until April 26 at which time he indicated to the respondent that he was unable to continue with his regular duties because of his injury. He reapplied to the WSIB for LOE benefits.
3The Application alleges that the respondent did not accept that the applicant was injured as claimed and refused to accommodate the applicant by providing modified duties beginning in May 2010 notwithstanding that the applicant provided a doctor’s note indicating he required modified duties. The Application alleges that the respondent was only willing to provide accommodation if the WSIB determined that the applicant had a workplace injury requiring modified duties.
4On June 1, 2010 the WSIB refused the applicant’s claim for benefits. It appears the applicant’s WSIB case manager did not accept the medical documents provided by the applicant in relation to his injury and determined that the applicant did not require modified duties.
5The Application alleges that following the WSIB decision the respondent took the position that the applicant would not be permitted to return to work unless he provided a medical note to say he did not have a disability and that he would be able to perform his pre-injury duties. The applicant alleges that the respondent took this position notwithstanding that the applicant provided the respondent with further notes from his doctor to indicate that he required modified duties.
6On or about June 14, 2010 the applicant appealed the WSIB decision refusing him benefits.
7On August 11, 2010 the applicant filed his Application
8On October 20, 2010 the respondent filed a Response denying any breach of the Code and requesting that the Application be deferred pending the determination of the applicant’s appeal to a WSIB Appeals Resolution Officer (“ARO”).
9In response to a Case Assessment Direction issued by the Tribunal on July 25, 2011 both parties filed additional submissions on the issue of the appropriateness of deferring this Application. In an Interim Decision dated September 14, 2011, 2011 HRTO 1690, the Tribunal deferred the Application pending the decision of the ARO considering the applicant’s appeal. The Tribunal determined that it would not be constructive to have two proceedings concurrently consider similar facts and related issues as this could lead to contrary findings and decisions.
10The Tribunal indicated in its Interim Decision that once the ARO rendered a decision either party could choose to reactivate the Application and the Tribunal would decide whether or not the Application should continue to be deferred based on the circumstances before it at that time.
REQUEST TO RE-ACTIVATE THE APPLICATION
11On May 28, 2012 the applicant filed a Request for an Order During Proceedings to re-activate the deferred Application. This request follows the decision of an ARO made on May 16, 2012 allowing the applicant’s appeal, in part. The ARO determined that the applicant had a work related shoulder injury that prevented him from performing available job duties and as a result he was eligible for ongoing benefits from mid May 2010.
12The applicant submits that in making this decision the ARO determined that the applicant did have a disability requiring accommodation in May 2010 and consequently the Tribunal is in a position to re-activate the Application and to consider the applicant’s allegation that he was not properly accommodated by the respondent.
13On July 5, 2012 the respondent filed a response opposing the applicant’s request to re-activate. The respondent submits that the ARO’s decision is not conclusive in that it did not fully decide a number of issues. The respondent notes that the ARO decided that some issues related to the applicant’s injury and job duties would be returned to the WSIB operations for further enquiry. The respondent submits that to proceed with the Application under these circumstances would result in the same situation the Tribunal was trying to avert when it deferred the Application in September 2011, namely a concern that the concurrent consideration of the same facts and related issues which could lead to contrary findings and decisions.
DECISION
14The applicant’s request to re-activate the application is denied. I am of the view that to reactivate the Application at this time would result in the WSIB and the Tribunal dealing with similar facts and issues and which could lead to conflicting findings and decisions.
15The ARO in his decision of May 16, 2012 makes three key determinations. He denies the applicant’s request for benefits related to a hip and groin injury. He allows the applicant’s requests for benefits for a left shoulder injury. He then determines that:
The issue of fitness for work and LOE benefits from mid-May 2010 is returned to the operating area for further enquiry. Operations is directed to conduct enquiries to determine the following: the worker’s pre-injury job duties; the availability of alternate job duties, and/or the worker’s ability to self-accommodate pre-injury duties; the worker’s fitness for available job duties and, the worker’s entitlement to LOE benefits from mid-May 2010.
16I agree with the respondent when it submits that the issues that the ARO determined were not resolved and required further enquiry by the WSIB operating area relate to the nature and degree of the applicant’s disability and whether or not the respondent failed to accommodate the applicant’s disability. It would not be fair just or expeditious for the Application to proceed given the WSIB’s ongoing enquiries and further determinations. I do not agree with the applicant when he submits that the remaining issues to be determined by the WSIB operating area are not central to the Application and that consequently the Application should proceed.
17The applicant also submits that the Tribunal indicated that the Application would only be deferred pending the decision of the ARO and accordingly, the Tribunal did not authorize a longer deferral. What the Tribunal specifically stated was that it was open to the parties to seek to reactivate the Application after the ARO’s decision but that the Tribunal would decide at that time whether or not the Application should continue to be deferred based on the circumstances before it at that time. And for the reasons stated I am of the view the Application should continue to be deferred.
18It remains open to either of the parties to seek to reactivate the Application when they are of the view that issues being addressed by the WSIB that relate to the substance of the Application are resolved.
19I am not seized of this matter.
Dated at Toronto, this 23rd day of July 2012.
Signed by
Eric Whist
Vice-chair