Maxwell v. Cooper-Standard Automotive Canada Limited, 2012 HRTO 399

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stacey Maxwell

Applicant

-and-

Cooper-Standard Automotive Canada Limited

Respondent

-and-

CAW-Canada

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 27, 2012

Citation: 2012 HRTO 399

Indexed as: Maxwell v. Cooper-Standard Automotive Canada Limited

WRITTEN SUBMISSIONS

Stacey Maxwell, Applicant ) Carrie Vanner, Paralegal

Cooper-Standard Automotive Canada Limited, ) Thomas Stefaniak,

Respondent ) Counsel

1This Application was filed on November 16, 2011 alleging discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application contains allegations relating to the respondent’s decision that it was “not willing to accommodate the Applicant” given his physical restrictions.

2On November 17, 2011, the Workplace Safety and Insurance Board (“WSIB”) advised the respondent that it was placing the applicant on a Work Transition program. The letter from the WSIB states that it had been advised by the respondent that it had no suitable work for the applicant. The respondent states that it advised the WSIB of this by letter dated May 18, 2011, following a meeting with the WSIB’s return to work specialist.

3On January 16, 2012, the respondent filed a Request for an Order During Proceeding (the “Request”) to dismiss the Application pursuant to section 45.1 of the Code because the WSIB has “determined fully and finally the issue of appropriateness of available work to the Applicant, including accommodation issues.” The respondent relies on the recent decision of the Supreme Court of Canada, British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, in support of its Request.

4Section 45.1 of the Code provides:

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.

5The applicant filed a Response to Request for Order in which he asserts that the WSIB has not dealt with the substance of the Application. He asserts that the WSIB has not dealt with the issue of discrimination, nor has it awarded damages for any breach of the Code.

6It appears that this Application raises significant issues regarding the interpretation of section 45.1 of the Code in light of the decision in Figliola. I note that the Tribunal has found in decisions pre-dating Figliola that the decisions of “front line” staff with the WSIB, such as case managers, may not be proceedings and/or did not deal appropriately with the substance of the application in question. See for example Galves v. Balzac’s Coffee Roastery, 2010 HRTO 1539; Murphy v. Quiktemp, 2010 HRTO 2393; Wang v. Delta Chelsea Ltd., 2011 HRTO 1161; and Mousseau v. Prince (Township), 2009 HRTO 1123.

7A half-day preliminary hearing will be scheduled to hear oral submissions on this issue. The parties will receive a Notice of Hearing in due course. The parties must deliver any additional documents or case law that they want the Tribunal to consider to each other and file them with the Tribunal no later than 14 days prior to the hearing.

8This Interim Decision shall be sent to the Ontario Human Rights Commission, the Human Rights Legal Support Centre, the Office of the Worker Adviser, the Office of the Employer Adviser, and the Crown Law Office–Civil of the Ministry of the Attorney General, so that they may make a request to intervene should they wish. Should any of these organizations wish to intervene, they shall file their Request to Intervene by March 8, 2012.

9I note that the applicant’s union, the CAW-Canada, has already filed a Request to Intervene. None of the parties have filed anything in response to this Request. In light of the above, the CAW-Canada is granted intervenor status. The adjudicator assigned to hear the matter will determine the scope of the intervention, but for the purpose of the preliminary hearing, the CAW-Canada may file written submissions on the issue, and may also make oral submissions.