McLaren v. H & H Construction Inc., 2012 HRTO 2186

Human Rights Tribunal of Ontario

BETWEEN:

William McLaren Applicant

-and-

H & H Construction Inc. Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: November 22, 2012 Citation: 2012 HRTO 2186 Indexed as: McLaren v. H & H Construction Inc.

WRITTEN SUBMISSIONS

William McLaren, Applicant Brenda McLaren, Representative

H & H Construction Inc., Respondent Kelly Santini, Counsel

Introduction

1This is an Application 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 or perceived disability.

2This Interim Decision deals with the respondent's request that the Application be dismissed in whole or in part because the substance of the Application has been appropriately dealt with by the Workplace Safety and Insurance Board (WSIB).

3Section 45.1 of the Code reads as follows:

45.1 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.

4For the reasons that follow, I conclude that the WSIB has not appropriately dealt with the substance of the Application.

Background

5The applicant was employed as a seasonal truck driver by the respondent. In September 2011, a hernia was diagnosed. The applicant filed a claim with the WSIB claiming that the hernia was a work-related condition. In a decision dated August 10, 2012, the WSIB Eligibility Adjudicator determined that the hernia condition was not work-related and that the applicant was accordingly not entitled to benefits.

6After the hernia was diagnosed in September 2011, the applicant continued to work for the respondent until he was laid off at the end of the season in November 2011. The applicant was not re-hired at the start of the 2012 season. He alleges that he was not rehired because the respondent perceived that he had a disability that meant that he could not do his job. He states that the respondent told him that he would not be considered for employment unless he provided a medical report. He alleges that this was discriminatory because other employees were not asked to provide a medical report.

7The respondent states that the applicant reported that he had a hernia condition in 2011 and that he was assigned alternate work so that he was not required to do heavy lifting. The respondent states that it asked the applicant to provide a medical report so that it could assess the applicant's fitness to work. The respondent states that the applicant did not provide a medical report.

8The applicant filed a Reply to the Response in which he states that his hernia condition did not impact his ability to work and that he did not require any accommodation to allow him to do his job.

Has the WSIB dealt with the substance of the Application?

9The substance of the Application is that the respondent discriminated against the applicant by not offering him employment in 2012 because of disability or perceived disability.

10The WSIB determined that the applicant's hernia condition was not a work-related condition and that the applicant was not entitled to benefits. The WSIB therefore never considered anything about why the applicant was not re-hired in 2012. The WSIB has therefore not dealt with the substance of the Application and there is no basis to dismiss the Application under section 45.1 of the Code.

Order

11The request to dismiss the Application under section 45.1 of the Code is denied.