Fish v. National Steel Car Limited, 2012 HRTO 1930

Human Rights Tribunal of Ontario

BETWEEN:

William Colin Fish Applicant

-and-

National Steel Car Limited Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: October 11, 2012 Citation: 2012 HRTO 1930 Indexed as: Fish v. National Steel Car Limited

WRITTEN SUBMISSIONS

William Fish, Applicant Grantley Howell, Representative

National Steel Car Limited, Respondent Jane Gooding, Counsel

1This is an Application dated May 20, 2011, and filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2In brief, the applicant alleges that the respondent company discriminated against him because of disability and failed to accommodate his disability when it failed to return him to work in early 2010. The respondent’s position is that the applicant’s pre-layoff injury, which had been accommodated, had deteriorated during the period of layoff from early December 2008 to the point where it could not accommodate him in his pre-layoff position. The respondent further states that other positions that the applicant states he was capable of performing were occupied by workers with higher seniority or otherwise not available or incapable of accommodating the applicant’s restrictions. Following surgery to his right hand, the applicant was able to return to work as of April 16, 2012.

3The purpose of this Interim Decision is to address two issues: (1) the applicant’s request for deferral of the Application pending resolution of his outstanding Workplace Safety and Insurance Board (“WSIB”) matters; and (2) the applicant’s request for a witness to testify at the hearing by affidavit.

Request for deferral

4The hearing before this Tribunal is scheduled to proceed on November 5 to 7, 2012. On September 12, 2012, the applicant filed a Request for Order seeking deferral of the hearing pending completion of his WSIB appeals. On October 5, 2012, the respondent filed a Response to this request, objecting to deferral on the basis of the limited information about the applicant’s outstanding WSIB appeals at that time. The applicant responded by letter dated October 5, 2012 to clarify his position in this matter, and also attached a recent decision of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) dated May 31, 2012. On the basis of the applicant’s submissions, the respondent now consents to the deferral.

5The WSIAT decision dated May 31, 2012 addresses the applicant’s claim for loss of earnings (“LOE”) benefits for the period from February 12 to July 20, 2007, when he was on layoff from the respondent company. LOE benefits for this period had been denied by the WSIB. In its decision, WSIAT reversed the previous decisions and awarded LOE benefits to the applicant for the period claimed, on the basis that he was on a short-term layoff and had an impairment or disability that was significant enough that it clearly presented an obstacle or barrier to him finding alternate employment. In this decision, WSIAT noted that the applicant also had outstanding claims with the WSIB for LOE benefits during periods of layoff from May 9 to August 29, 2008, and from December 9, 2008 to April 16, 2012.

6Following receipt of the WSIAT decision, the applicant’s representative before the WSIB has requested that his outstanding claims for LOE benefits relating to these two later periods be reviewed in accordance with the approach taken by WSIAT and that these claims be allowed. It appears that WSIB has yet to make a determination of the applicant’s outstanding claims in light of the WSIAT decision.

7The Application before this Tribunal raises an issue regarding the respondent’s failure to return the applicant to work from early 2010 until April 16, 2012, which overlaps with the period for which benefits are claimed from WSIB. With regard to this period of overlap, it would appear that there may not only be an overlap in time but also an overlap in the issues that need to be addressed before WSIB and this Tribunal. As with the issue before this Tribunal, the WSIB also may need to consider whether the applicant’s disability-related needs could have been accommodated by the respondent during this period. In addition, the WSIB will consider a further issue, namely, even if the applicant’s disability-related needs could not have been accommodated, whether he nonetheless is entitled to LOE benefits during the period of layoff, in accordance with the policy and principles applied by WSIAT. These factors militate towards granting a deferral of the hearing in this matter.

8I further note that the applicant has indicated through his representative that, if LOE benefits are paid for the overlap period at issue in the Application before this Tribunal, this would resolve all matters raised in the Application and there would be no need for a hearing. This also militates in favour of granting deferral, as there may be no need to put the parties to the expense and inconvenience of a hearing before this Tribunal at all if the WSIB benefits sought by the applicant are granted.

9I appreciate that the hearing in this matter has been scheduled to take place in less than one month’s time, and that the respondent has gone to considerable effort to prepare for the hearing and comply with its obligations under the Rules. However, when balancing all of the competing factors and considering that the parties consent to deferral, it is my view that it is appropriate to cancel the scheduled hearing dates in this matter and defer this Application pending final determination of the applicant’s claim for LOE benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A (“WSIA”), including determination of any appeal to WSIAT or the expiry of any time limit for appeal.

10In accordance with Rules 14.3 and 14.4, if the applicant wishes to re-activate his Application before this Tribunal following the final determination of his claim for LOE benefits, he must do so by filing a Request for Order in accordance with Rule 19 no later than 60 days after the conclusion of the WSIA proceeding and must include a copy of the final decision or order of WSIB or WSIAT, as the case may be.

Request for witness to testify by affidavit

11As the scheduled hearing in this matter has now been cancelled, there is no longer any urgency to address the applicant’s outstanding request for a witness (Al Reichart) to testify by affidavit. However, as this issue has been raised and responded to, it is my view that it is appropriate to deal with it.

12It would be only in the most exceptional circumstances that this Tribunal would allow a witness to testify by affidavit rather than being called to appear in person as a witness. I appreciate that this Tribunal has the legislative entitlement to adopt procedures that differ from traditional adversarial court proceedings, and there are circumstances where permitting the introduction of a witness’ evidence-in-chief by affidavit or even by affirming the truth of the contents of a detailed witness statement is a procedural tool that is employed. I myself have done so on numerous occasions. But any witness who is put forward to provide contested evidence needs to be made available at the hearing for cross-examination by the opposing party, subject to only the most exceptional circumstances.

13In the instant case, there is no indication of any exceptional circumstances that would justify permitting the witness at issue to testify by affidavit. The only basis put forward by the applicant to justify his request is that this proposed witness is no longer a union representative and is no longer representing the applicant in relation to his WSIB matters. This is far from a sufficient basis to support a request to testify by affidavit.

14Further, the proposed evidence of this witness is far from uncontested, and in fact goes to the very heart of the dispute between the parties. The proposed affidavit as filed with the Tribunal includes: this witness’ opinion that the applicant should have been recalled to work at the respondent company prior to his latest recall; that junior employees were performing work that the applicant could perform; and that the applicant had identified a number of jobs in the plant that he could perform to no avail. These are critical issues in dispute between the parties that may need to be determined by this Tribunal if a hearing in this matter goes ahead. Issues also arise as to the admissibility of some of this proposed witness’ evidence, which may be inadmissible opinion evidence and/or hearsay.

15Accordingly, the applicant’s request to have Mr. Reichert testify by affidavit is denied.

ORDER

16For the foregoing reasons, I hereby make the following order:

a. The hearing currently scheduled for November 5, 6 and 7, 2012 is cancelled;

b. This Application is deferred pending final determination of the applicant’s claim for LOE benefits under the Workplace Safety and Insurance Act (“WSIA”), including determination of any appeal to WSIAT or the expiry of any time limit for appeal;

c. In accordance with Rules 14.3 and 14.4, if the applicant wishes to re-activate his Application before this Tribunal following the final determination of his claim for LOE benefits, he must do so by filing a Request for Order in accordance with Rule 19 no later than 60 days after the conclusion of the WSIA proceeding and must include a copy of the final decision or order of WSIB or WSIAT, as the case may be; and

d. The applicant’s request to have Mr. Reichert testify by affidavit is denied.