Solima v. Sutherland Global Services Canada ULC, 2012 HRTO 483

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ken Solima Applicant

-and-

Sutherland Global Services Canada ULC Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: March 7, 2012 Citation: 2012 HRTO 483 Indexed as: Solima v. Sutherland Global Services Canada ULC

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 3, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 6, 2008.

2The purpose of this Interim Decision is to address the applicant’s request for the re-activation of his Application following the decision of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) decision dated October 26, 2011, the respondents’ request for dismissal of all or part of the Application pursuant to s. 45.1 of the Code, and the respondents’ request for removal of certain personal respondents.

Request for Re-activation

3The Application alleges discrimination in employment because of disability, primarily arising out of an alleged failure by the respondents to provide accommodation for injuries the applicant had sustained to his hands prior to his employment with the respondent company, which commenced on December 6, 2006.

4The applicant alleges that he sustained a work-related injury on April 18, 2007, during his employment with the respondent company, which was the subject of a claim to the Workplace Safety and Insurance Board (“WSIB”). The WSIB initially denied the claim on the basis that it was unable to establish a relationship between the applicant’s injury and his work duties. This determination was upheld on appeal to the Appeals Resolution Officer at the WSIB by decision dated January 4, 2010. The matter was then appealed by the applicant to WSIAT.

5The Application before this Tribunal was deferred on consent until after the decision of WSIAT had been rendered. By letter dated March 1, 2010, the parties were advised that if either party wished to bring the matter back on after completion of the WSIAT proceeding, they must contact the Tribunal within 60 days of the completion of the WSIAT proceeding.

6By decision dated October 26, 2011, WSIAT denied the applicant’s appeal, holding that the nature of the applicant’s duties with the respondent company did not contribute in any significant way to the onset of his problems with his left elbow or to any aggravation of his pre-existing carpal tunnel syndrome.

7The applicant did not seek to re-activate his Application within 60 days of the WSIAT decision as required by Rule 16.5 of the Tribunal’s Rules of Procedure for Transitional Applications. Applicant’s counsel acknowledges that this should have been dealt with by himself prior to December 26, 2011, and states that the delay is a matter of his lack of oversight and deficient diarization of the matter following the death of his father. Counsel requests that his client not be denied the ability to proceed with his Application due to his counsel’s error. This issue is not addressed by the respondents in their submissions in response to the applicant’s request for re-activation.

8Pursuant to Rule 3.6, I have the power to relieve against a failure to comply with the Rules, where to do so would be fair and just and would not substantially prejudice a party or unduly delay the proceeding. In my view, given the circumstances and the relatively short delay in making the request, it would be unfair and unjust to deprive the applicant of his ability to proceed with this matter solely on the basis of his counsel’s inadvertence. I also have no basis before me to conclude that a one month delay in filing the request would substantially prejudice the respondents or unduly delay the proceeding. Accordingly, I hereby exercise my discretion to relieve against the applicant’s failure to comply with Rule 16.5.

9The respondents take the position that the applicant should not be allowed to re-activate his Application and that the Application should be dismissed in its entirety on the basis that the substance of the Application already has been appropriately dealt with by the WSIAT decision. In the alternative, the respondents request that the parts of the Application that have been appropriately dealt with by the WSIAT decision should be dismissed.

10This requires me initially to determine what is the substance of the Application before this Tribunal, and then to what extent the substance of the Application has been appropriately dealt with by the WSIAT decision.

11Upon a review of the applicant’s complaint which forms the subject-matter of his Application, the following allegations are raised:

a) that the respondents failed to provide him with an ergonomic keyboard that he required as an accommodation for his disabilities;

b) that on April 18, 2007, he sustained a work-related injury to his left hand and forearm which he immediately reported to management, but no action was taken and no forms filed by the respondents with WSIB at this time;

c) that he personally purchased ergonomic equipment (keyboard, mouse and gel pads) but was not permitted to use this equipment when he returned to work on April 22, 2007;

d) that as the months progressed, he was harassed by management for several things such as refusing to sell merchandise to customers, poor quality over the phone lines, attempting to bring in the Canadian Auto Workers union, and the creation of a website that users were going on and complaining about the organization;

e) that he was harassed by being called into his supervisor’s office on a daily basis the minute he walked through the doors, with the last major accusation being that he was stealing time from the company;

f) that he was told that the only reason he wasn’t being terminated was because of his outstanding work performance, but that if he made one mistake whatsoever he would be dismissed;

g) that he was also accused of lying about his injury and told that if he had to have surgery performed, he would be found medically unfit to work, leading to termination of his employment; and

h) that on August 3, 2007, he decided to hand in a formal letter of resignation stating that he could no longer work for the respondent company.

12The first issue for me to determine is what is the substance of the Application before this Tribunal. The applicant alleges that he experienced discrimination and/or harassment in employment because of disability. In order for his allegations to fall within this Tribunal’s jurisdiction under the Code and thereby form the substance of his Application, there would need to be some link or connection between the allegation raised and the applicant’s disability. In my view, this link or connection is lacking in respect of a number of the applicant’s allegations.

13For example, allegation (d) above raises an allegation of “harassment” for a number of alleged work issues and alleged union activity, but raises no link or connection to the applicant’s disability. Similarly, allegation (e) raises an allegation that the applicant was “harassed” by being called into his supervisor’s office on a daily basis and ultimately accused of stealing time, but again raises no link or connection to his disability. Allegation (f) relates to the applicant being given a final warning for allegedly stealing time from the respondent company, but again no link or connection is made to the applicant’s disability. And allegation (h) raises an issue about the applicant’s resignation because he felt he could no longer work for the respondent company, but makes no link or connection to his disability. In my view, as a result of the absence of any link or connection to the applicant’s disability arising from these allegations, these allegations cannot be considered to be part of the substance of the Application within the jurisdiction of this Tribunal.

14This leaves the remaining allegations (a), (b), (c) and (g) as the substance of the Application within this Tribunal’s jurisdiction. The respondents take the position that the WSIAT decision appropriately dealt with these allegations. With the exception of allegation (b), I do not agree.

15The issue before WSIAT was whether the evidence supported that the injuries reported by the applicant to the WSIB were work-related. WSIAT determined that this was not supported by the evidence.

16Under the Human Rights Code, it does not matter whether or not a disability is work-related. Any disability, whatever its cause, cannot be a reason for a discriminatory act and any needs arising from that disability must be accommodated up to the point of undue hardship.

17The applicant’s allegation (a) is that as an accommodation for his disability, he required an ergonomic keyboard. He alleges that the respondents failed to provide him with one. This is not an issue that was determined by WSIAT. WSIAT only determined that the lack of an ergonomic keyboard did not cause or contribute to the applicant’s problems with his left elbow or aggravate his carpal tunnel syndrome. That is a different issue than whether an ergonomic keyboard ought to have been provided to the applicant as an accommodation. To take a simple example, an employee who uses a wheelchair may require the installation of a ramp in order to access her workplace. The failure to provide this accommodation may not result in any work-related injury as would be recognized by the WSIB, but could still amount to a violation of the Human Rights Code.

18Allegation (c) is that the applicant personally purchased ergonomic equipment (keyboard, mouse and gel pads) but was not permitted to use this equipment when he returned to work on April 22, 2007. Once again, in my view, this is a separate and distinct issue from the issue determined by WSIAT, which is only that the injuries sustained by the applicant to his left elbow and any aggravation of his carpal tunnel syndrome were not work-related.

19Allegation (g) also is not an issue that was determined by WSIAT. The allegation is that the applicant was accused of lying about his injury and told that if he went for surgery he would be deemed medically unfit and terminated. I appreciate that this is denied by the respondents, but determination of the parties’ conflicting evidence on this issue is not before me at this time and would need to await a hearing. The only issue before me is whether WSIAT dealt with this issue in its decision, and I find that it did not.

20This leaves allegation (b), that on April 18, 2007 the applicant sustained a work-related injury to his left hand and forearm which he immediately reported to management, but no action was taken and no forms filed by the respondents with WSIB at this time. This issue, in my view, clearly was heard and determined by WSIAT, which found that the applicant did not sustain a work-related injury. While I appreciate that there is disagreement between the parties as to whether the applicant immediately reported his injury to management and whether management was timely in its filing of a Form 7 with the WSIB, these are not issues within this Tribunal’s jurisdiction under the Human Rights Code. Accordingly, I find that the WSIAT decision already has appropriately dealt with the substance of the issue as to whether the applicant’s injury to his left elbow and any aggravation of his carpal tunnel syndrome were work-related, such that this part of the Application should be dismissed. I also find that the balance of allegation (b) does not give rise to an allegation of a violation of the applicant’s rights under the Human Rights Code and so does not form part of the substance of the Application.

21Finally, I note that the applicant relies upon his allegation that the injury to his left elbow and aggravation of his carpal tunnel syndrome were work-related due to the alleged failure to provide him with an ergonomic keyboard, as a basis for seeking certain remedies under the Code. In my view, the issue of whether these injuries were work-related already has been dealt with by the WSIAT decision, and in this proceeding, the applicant will not be permitted to re-litigate that issue under the guise of seeking remedies under the Code. For this reason, I find that the WSIAT decision also has appropriately dealt with the issue of whether the applicant’s injury to his left elbow and any aggravation of his carpal tunnel syndrome were work-related for the purpose of any remedy the applicant may seek under the Code.

22For all of the foregoing reasons, I hereby allow the applicant to re-activate his Application to the extent of those allegations in his complaint that raise issues of potential violations of the Human Rights Code and that have not already been appropriately dealt with by the WSIAT decision, namely those allegations identified as allegations (a), (c) and (g) above. All other allegations raised in this Application are hereby dismissed.

Removal of Personal Respondents

23The respondents request the removal of personal respondents Jackie Caron, John Youssef, Cynthia Luciani and Jeff Mortlock on the basis of the factors identified in Persaud v. Toronto District School Board, 2008 HRTO 31.

24In this proceeding, there is a corporate respondent that also is alleged to be liable for the same conduct as these personal respondents. No issue is raised as to the corporate respondent’s deemed or vicarious liability for this conduct, nor is there any issue as to the corporate respondent’s ability to remedy or respond to any alleged Code infringement.

25As in most cases, the question comes down to assessing whether there is any compelling reason to continue the proceeding as against each of the personal respondents. This requires an examination of the specific allegations raised against each personal respondent.

26With regard to Jeff Mortlock, no allegation of discrimination or harassment is raised against Mr. Mortlock in the applicant’s complaint. Indeed, Mr. Mortlock is not even identified as a personal respondent to the applicant’s complaint, and so is not and never was a proper party to the proceeding before this Tribunal.

27With regard to Cynthia Luciani, the only allegation in the complaint that references her name is that he informed her of his alleged workplace injury and no Form 7 was filed. For the reasons already identified, this is not an allegation that I have allowed to proceed. Accordingly, there is no basis to continue this proceeding as against Ms. Luciani and she is hereby removed as a personal respondent.

28With regard to Jackie Caron, she also is alleged to have been informed about the applicant’s alleged workplace injury, which is not an allegation that I have allowed to proceed. She also is alleged to have engaged in the “harassment” referenced as allegation (d) above, which I have found not to form part of the substance of this Application as no link or connection is made to the applicant’s disability. The only remaining allegation which references Ms. Caron is that she may have been the source of the alleged discriminatory comment made on August 2, 2007, as referenced in allegation (g) above. This is not at all clear from the complaint, which states that an unidentified Vice-President of the respondent company was also at the meeting where this comment is alleged to have been made. In my view, an allegation that Ms. Caron may have made this discriminatory comment at the August 2, 2007 meeting is not a sufficiently compelling reason for her to continue as a personal respondent. Accordingly, I hereby remove Ms. Caron as a personal respondent to this proceeding.

29With regard to John Youssef, he also is alleged to have been told about the applicant’s alleged workplace injury and is alleged to have engaged in “harassment” of the applicant, none of which are allegations that I have allowed to proceed. With regard to the remaining allegations, it may be that Mr. Youssef was the “management” person who is alleged to have refused to allow the applicant to use the equipment he purchased as referenced in allegation (c), but again this is not at all clear from the complaint. In my view, an allegation that Mr. Youssef may have been the manager who was involved in this one alleged incident is not a sufficiently compelling reason for him to continue as a personal respondent. Accordingly, I hereby remove Mr. Youssef as a personal respondent to this proceeding.

30While no specific request was made by Fadi Massara to be removed as a personal respondent to this proceeding (as he is not represented by legal counsel representing the other respondents), I note that his name appears in the complaint only in connection with the applicant’s report of his alleged workplace injury, which is not an allegation that I have allowed to proceed. Accordingly, there is no basis to justify Mr. Massara continuing as a party to this proceeding, and he is hereby removed.

Next Steps

31Prior to the parties consenting to the deferral of the Application, this matter had been scheduled to proceed to mediation. If the parties continue to be interested in mediation, they shall so advise the Tribunal within 10 calendar days of the date of this Interim Decision. If any party does not wish to proceed to mediation or fails to respond within this timeframe, the matter will be scheduled for a hearing.