Lake v. 1627325 Ontario Ltd., 2012 HRTO 2192

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angus Lake

Applicant

-and-

1627325 Ontario Ltd. o/a Best Western Sword Motor Inn

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: November 22, 2012 Citation: 2012 HRTO 2192 Indexed as: Lake v. 1627325 Ontario Ltd.

WRITTEN SUBMISSIONS

Angus Lake, Applicant Jordana Laporte, Counsel

1627325 Ontario Ltd. o/a Best Western Sword Motor Inn, Respondent Elsa Kwong, Representative

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 on the basis of disability. The Application alleges that the respondent failed to accommodate the applicant’s disability when it refused to have the applicant return to work after an injury stating that he was an independent contractor, not an employee, and there were no light duties available.

2The respondent filed a Response on October 9, 2012 in which it requests that the Tribunal dismiss the Application under section 45.1 of the Code on the basis that the Workplace Safety and Insurance Board (“WSIB”) appropriately dealt with the substance of the Application. The respondent provides a copy of the WSIB decision it submits appropriately dealt with the Application. It is a decision made by a WSIB eligibility adjudicator dated June 28, 2012. The adjudicator raises concerns about the late timing of the applicant’s injury claims and concludes that he cannot establish that the applicant’s back injury was work related and that he does not find that the applicant’s reported accident history is compatible with the diagnosis for the applicant’s back injury. As a consequence the adjudicator refuses the applicant’s claim for Loss of Earnings (LOE) benefits and payment for health care expenses.

3On October 23, 2012 the applicant filed a Reply with submissions opposing the respondent’s request to dismiss the Application. The applicant submits that the WSIB decision does not deal with the discrimination the applicant alleges he experienced. The applicant submits that the WSIB was only determining whether the applicant was entitled to some compensation and/or support for his injury not whether the respondent discriminated against the applicant based on his injury or whether the respondent should have accommodated the applicant’s return to work. The applicant further submits that the WSIB cannot grant the applicant general damages, lost wages or the public interest remedies requested in the Application, thus the applicant will not have an adequate remedy for the discrimination he experienced if the Application is dismissed at this stage. The applicant further submits that the WSIB decision is in relation to the applicant being denied LOE and other benefits on the basis that he was late in filing his WSIB claim and did not establish that his injury was work related.

DECISION

4Section 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.

5In the circumstances of this case, I am not satisfied that the applicant’s Application comes within the scope of section 45.1 of the Code. The WSIB decision before me raises concerns about when the applicant reported his injury and whether the applicant’s account of how he injured his back is consistent with the diagnosis of the applicant’s injury. The WSIB decision determines that the applicant’s injury was not work related and consequently he is not eligible for WSIB benefits. The WSIB adjudicator has not rendered any decisions with respect to actions taken by the respondent including whether or not the respondent infringed the applicant’s rights under the Code by allegedly refusing to return him to work and to accommodate his disability.

6Based on my review of the information before me and for the reasons above the respondent’s request for dismissal of the Application pursuant to section 45.1 is denied.

7The Application will continue to be processed.

8I am not seized of this matter.