Wilson v. The Original Cakerie, 2012 HRTO 2334

Human Rights Tribunal of Ontario

B E T W E E N:

Susan Wilson

Applicant

-and-

The Original Cakerie

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: December 12, 2012

Citation: 2012 HRTO 2334

Indexed as: Wilson v. The Original Cakerie

WRITTEN SUBMISSIONS

Susan Wilson, Applicant

Carrie Venner, Representative

The Original Cakerie, Respondent

Ron LeClair, Counsel

Introduction

1This is an Application filed on June 8, 2012, under s. 34 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. The Application, which is very sparsely worded, states that the applicant suffered a work-related injury on August 17, 2011 and a second work-related injury on March 14, 2012. The Application alleges that the applicant took a medical note to the respondent, and that she was told that the respondent could not accommodate her. Subsequently, she was fired. The Application also alleges that the respondent failed to accommodate the applicant's disability to the point of undue hardship.

2The respondent filed a Response and requested that the Tribunal either dismiss the Application under section 45.1 of the Code, or defer it to “an appeal to the WSIB”. This Interim Decision deals with those requests.

3The following is a brief summary of the facts and allegations set out in the materials filed to date.

4The respondent states that the applicant suffered a work-related injury on August 16, 2011 for which she claimed and received benefits pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A, as amended (WSIA). The respondent states that it provided the applicant with “modified duties effective the following day”. The response also states that on January 3, 2012, the respondent met with the applicant and the Workplace Safety and Insurance Board (WSIB) representative to discuss a return to work plan “in accordance with the work reintegration provisions of the WSIA”. The nature of the applicant's injury, the difficulty the injury created for her work, and the strategies taken by the respondent to accommodate that difficulty are not set out, nor does the respondent specifically address the duty to accommodate to the point of undue hardship. The respondent states that the applicant returned to regular duties on February 27, 2012.

5Unfortunately, the Application also contains little information relevant to the applicant’s claim of failure to accommodate. The applicant has alleged that she incurred a second injury at work, on a date that was roughly two weeks after her return to “pre-injury work”. Depending on the facts, which at this stage are not clear, this may be highly relevant to a claim that a disability was not accommodated to the point of undue hardship. A review of the material filed by the respondent indicates that, between December 1, 2011 and March 14, 2012, the applicant came in earlier, and sometimes later, and left earlier than her expected hours. Again, this may be relevant to the applicant's claim that needs arising from disability were not accommodated to the point of undue hardship. It is also possible that these alleged facts are not relevant to the applicant's claim of failure to accommodate.

6The Response indicates that the applicant’s second WSIB claim was for an injury that occurred on March 14, 2012. The respondent states that the applicant did not tell the respondent about the injury, and the WSIB materials filed reflect this. The respondent states that on March 14, 2012, during a meeting with another employee, the respondent's supervisor was told that the applicant “had been arriving early (and sometimes late) and leaving early, without completing her full shift and without supervisor approval”. The respondent states that it commenced an investigation, concluded that the applicant had “misappropriated company time” and terminated the applicant's employment. The respondent states that the investigation was commenced early on March 14, 2012, the applicant's employment was terminated on March 16, 2012, and that it learned about the second WSIB claim on April 5, 2012.

7The respondent’s material indicates that the applicant made two successful claims for compensation to the WSIB, and that, “in the course of adjudicating the claim, the WSIB was required to assess whether the respondent had complied with its returned work obligations under the WSIA.” In doing so, “the WSIB was required to review whether the applicant had been terminated by the respondent for reasons related to her injury.” The respondent appended a decision of a Case Officer dated July 5, 2012, which concluded that the termination of the applicant's employment was not related to her injury. Subsequently, the respondent was advised that the applicant had objected to the decision of the case manager. A letter from a WSIB Appeals Administrator dated July 20, 2012 indicates that the applicant's objection would be assigned to an Appeals Resolution Officer. The Response indicates that, as of the date it was filed, “no hearing date had been scheduled, although it is anticipated that one will be scheduled for the fall or early winter”.

8The applicant filed a reply. The Reply takes issue with the respondent’s statement that the applicant did not notify it about the second injury; the Reply indicates that the applicant reported to two named supervisors. The Reply also indicates that the applicant was treated differently from other employees for similar behaviour. The Reply does not contain any information concerning the applicant's claim that the respondent did not accommodate needs created by disability.

ANALYSIS

9For the reasons given below, this is not a case in which it is possible fairly to consider the application of s.45.1 of the Code.

10At this point, it appears that the applicant has made two claims relevant to the Code; the first that she was fired for reasons related to disability, and the second that the respondent did not meet the duty to accommodate to the point of undue hardship. In respect of the first claim, it appears that a process has begun that could lead to an appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). If it were clear that the subject matter of this Application was already being addressed by a process of this nature, the Tribunal would defer the Application in most circumstances. The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide whether the Code has been breached (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14). Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, there is potential for facts and issues to be litigated more than once with conflicting results, and therefore the orderly administration of justice favours deferral to the other proceeding. After deferral, an Application can be revived, subject to arguments under s. 45.1 of the Code. In addition, in such situations, this Tribunal may, as a matter of law, be required to adopt findings of fact that have already been litigated and decided in a court or another tribunal, to prevent abuse of process or as a matter of fact estoppel (see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63; Canadian Tire Corp. v. Summers, 1995 CanLII 7183 (ON S.C.)).

11In this case, however, it appears that the applicant has also alleged a failure to accommodate disability to the point of undue hardship, and that this has not been addressed by the WSIB process. As noted in Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520, the standard by which the WSIB addresses return to work by an injured employee in many situations is not the standard required by the Code:

…the Code applies to a return to work under the WSIA and…as a result, an employer must accommodate a worker who returns to work after a work-related injury to the point of undue hardship. In most cases the Workplace Safety and Insurance Board (the “WSIB”) asks an employer if it has “suitable employment” for the worker. This is a different question than whether the employer can accommodate the employee to the point of undue hardship. The fact that an employer has offered suitable employment under the WSIA may not satisfy the employer’s duty to accommodate under the Code.

12The materials filed in this matter contained no indication that s.41 of the WSIA applied to the work situation, or that the applicant's return to work was effected with regard to accommodation to the standard required under the Code, that is to the point of undue hardship. This unfortunate lack of consistency in standards means that a worker with a disability may essentially need to launch two legal processes to achieve a right that the Code grants in all employment situations.

13I have said that it appears that the applicant has also alleged a failure to accommodate disability to the point of undue hardship. In the absence of sufficient particulars relating to this claim, there are two ways that this Application could be read: it could contain two separate claims of discrimination under the Code, or it could be that the failure to accommodate alleged by the applicant is confined to her claim that she was fired for reasons relating to her disability. The scope of the Application should be made clear without further delay.

ORDER

14The applicant is ordered to send written information to the Tribunal, copying the respondent, that indicates the alleged facts upon which her claim is based that needs related to disability were not accommodated.

15The respondent is ordered to file with the Tribunal information as to the progress of the appeal to the WSIB, including hearing date, if set.

16Both parties must send the above-noted information within thirty days of the date of this Interim Decision.

17I am not seized.