HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Darby Dunn
Applicant
-and-
The Corporation of the City of Sault Ste. Marie and John Luszka
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Dunn v. The Corporation of the City of Sault Ste. Marie
WRITTEN SUBMISSIONS
Darby Dunn, Applicant
Self-represented
The Corporation Of The City Of Sault Ste. Marie And John Luszka, Respondents
Melanie Borowicz-Sibenik, Counsel
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 a breach of settlement.
2The applicant alleges that contrary to Minutes of Settlement (MOS) dated February 10, 2010 the respondents have not taken the appropriate steps to accommodate his disability. In particular the applicant alleges that he has requested as an accommodation that he be moved from the Transit Department where he is currently being accommodated as a cleaner. The applicant alleges that the respondents’ denial of this request was in breach of the MOS. The respondents state that they have not breached the MOS and that the applicant is being accommodated within his identified restrictions.
3On November 22, 2012, the applicant requested the adjournment of the hearing scheduled to take place on December 5, 2012 on the basis of a decision by the WSIB to consider a claim by the applicant of “a psychological injury going back to 1992”.
4The respondents oppose the applicant’s request.
5The issue raised by this Application and the only issue before the Tribunal is whether the respondents have breached the MOS between in particular the following provision:
The City agrees to continue its efforts to accommodate the needs associated with Dunn’s disabilities as outlined above by health care professionals or as may be identified by health care professionals in the future, and will provide such accommodation unless such accommodation is impossible or will cause undue hardship.
The applicant argues that the determination of the WSIB may have an impact on the hearing. In response to the respondents’ submissions opposing the request, the applicant advised as follows in an email delivered and filed on November 27, 2012: The WSIB have made their decision that I suffered a head injury and consequently psychological injury, I’m (sic) would like to wait for the response in writing to confirm what was discussed on November 21, 2012 between Mr. keith Wigmore union rep and Mr. Mark Barbeau. This may or may not resolve this proceeding but I’m optimistic that it mite (sic).
6The respondents state that the decision of the WSIB to review the applicant’s case and the issue of a psychological injury going back to 1992 is irrelevant because the decisions made in attempting to comply with the MOS were based on the information known to the City at the time. The respondents argue that whatever the ultimate decision of the WSIB may be that information was not part of the evidence considered by the respondents when they made the decisions about the applicant’s requests for accommodation pursuant to the MOS. The respondents state that as new information becomes available they are obligated to consider it pursuant to the MOS and the Code, however information that was not available at the time the material decisions were made is no relevant to whether or not they were in breach of the Code at the material times.
7I agree with the respondents. As important as the WSIB’s decision may be for the applicant and the respondents going forward, information that was not available to the respondents at the time of their decision is not relevant to the question before the Tribunal, that being whether or not the respondents breached the MOS by denying his request to be moved from his current work location. To be clear new information and developments may affect the accommodations the applicant requires going forward, however the new information and developments do not appear to be relevant to decisions made in the past when the new information was not available to the parties when the impugned decisions were made.
Other Matters
8In my November 21, 2012 Case Assessment Direction I requested that the parties advise if they were able to start the hearing at 9:30 a.m. rather than the currently scheduled 10:00 a.m. start time. The respondents have indicated that they are able to start at 9:30 a.m. The applicant has not yet responded to this issue and is directed to do so before the end of the day Thursday November 29, 2012 failing which the hearing will commence at 9:30 a.m.
9I am not seized of this case.
Dated at Toronto, this 28th day of November, 2012.
”signed by”
David Muir
Vice-chair