McCarthy v. Caesar’s Plumbing and Heating, 2013 HRTO 1270

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Spence McCarthy Applicant

-and-

Caesar’s Plumbing and Heating Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: July 22, 2013 Citation: 2013 HRTO 1270 Indexed as: McCarthy v. Caesar’s Plumbing and Heating

WRITTEN SUBMISSIONS

Spence McCarthy, Applicant Paul Champ, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 11, 2011. The Application alleges discrimination in employment on the basis of disability.

2This Interim Decision addresses a request by the applicant to re-activate his deferred Application.

BACKGROUND

3The Application alleges that the respondent refused to accommodate the applicant by providing modified duties beginning in May 2010, notwithstanding that the applicant provided a doctor’s note indicating he required modified duties. The Application alleges that the respondent was only willing to provide accommodation if the Workplace Safety and Insurance Board (“WSIB”) determined that the applicant had a workplace injury requiring modified duties.

4On June 1, 2010, the WSIB refused the applicant’s claim for benefits. It appears the applicant’s WSIB case manager did not accept the medical documents provided by the applicant in relation to his injury and determined that the applicant did not require modified duties.

5The Application alleges that following the WSIB decision the respondent took the position that the applicant would not be permitted to return to work unless he provided a medical note to say he did not have a disability and that he would be able to perform his pre-injury duties. The applicant alleges that the respondent took this position notwithstanding that the applicant provided the respondent with further notes from his doctor to indicate that he required modified duties.

6On or about June 14, 2010, the applicant appealed the WSIB decision refusing him benefits.

7The respondent filed a Response on October 20, 2010 denying any breach of the Code and requesting that the Application be deferred pending the determination of the applicant’s appeal to a WSIB Appeals Resolution Officer (“ARO”).

8In response to a Case Assessment Direction issued by the Tribunal on July 25, 2011, both parties filed additional submissions on the issue of the appropriateness of deferring this Application. In an Interim Decision dated September 14, 2011, 2011 HRTO 1690, the Tribunal deferred the Application pending the decision of the ARO considering the applicant’s appeal. The Tribunal determined that it would not be constructive to have two proceedings concurrently consider similar facts and related issues as this could lead to contrary findings and decisions.

9The Tribunal indicated in its Interim Decision that once the ARO rendered a decision either party could choose to re-activate the Application and the Tribunal would decide whether or not the Application should continue to be deferred based on the circumstances before it at that time.

10On May 28, 2012 the applicant filed a Request for an Order During Proceedings to re-activate the deferred Application. This request followed the decision of an ARO made on May 16, 2012 allowing the applicant’s appeal, in part. The applicant submitted that in making this decision the ARO determined that the applicant did have a disability requiring accommodation in May 2010 and consequently the Tribunal was in a position to re-activate the Application and to consider the applicant’s allegation that he was not properly accommodated by the respondent.

11The respondent opposed the applicant’s request to re-activate. The respondent submitted that the ARO’s decision was not conclusive in that it did not fully decide a number of issues.

12In an Interim Decision dated July 23, 2012, 2012 HRTO 1428, the Tribunal denied the applicant’s request to re-activate. The Tribunal was of the view that the ARO’s May 16, 2012 decision indicated that further enquiry by the WSIB operating area related to the nature and degree of the applicant’s disability was required and consequently there were important issues related to the Application that had not been fully resolved by the WSIB proceedings. The Tribunal determined it would not be fair, just or expeditious for the Application to proceed given the WSIB’s ongoing enquiries and further determinations.

13The Tribunal also stated in its July 23, 2012 Interim Decision that it remained open to either of the parties to seek to re-activate the Application when they were of the view that the WSIB’s enquiries that related to the substance of the Application were resolved.

REQUEST TO RE-ACTIVATE

14The applicant submits that the WSIB operating area has now resolved the outstanding issues arising from the ARO’s May 16, 2012 decision. The applicant submits this is evident from a further decision made by a WSIB Case Manager in the Appeals Implementation Team, Operations Division dated March 19, 2013. The applicant submits that this March 19, 2013 decision confirms that the applicant could not have performed his pre-injury duties beginning in May 2010 due to his disability.

15The applicant requests that the Application be re-activated in order to allow the Tribunal to consider whether the respondent discriminated against the applicant when it refused to offer him modified duties after May 2010.

16The respondent has not filed a response to the request to re-activate.

DECISION

17The request to re-activate is granted. The WSIB has rendered a decision about the nature of the applicant’s disability and whether he was able to perform his pre-injury job after May 10, 2013. There remain no outstanding issues before the WSIB related to the substance of the Application. The respondent has not indicated that it is appealing the WSIB’s March 19, 2010 decision or that it opposes the applicant’s request.

18As both parties have agreed to mediation, the Tribunal will schedule a date for mediation.

19I am not seized of this matter