Clunis v. Rimac Fabricators aka Rimac Metal Curving Specialists, 2013 HRTO 1448

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Magnus Clunis Applicant

-and-

Rimac Fabricators aka Rimac Metal Curving Specialists Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 23, 2013 Citation: 2013 HRTO 1448 Indexed as: Clunis v. Rimac Fabricators aka Rimac Metal Curving Specialists

WRITTEN SUBMISSIONS

Magnus Clunis, Applicant (Self-Represented) Rimac Fabricators aka Rimac Metal Curving Specialists, Respondent (Craig Colraine, Counsel)

1This Interim Decision addresses the process that will be followed to deal with the respondent’s request that the Application be dismissed on the basis that another proceeding has appropriately dealt with the substance of the Application.

2This Application is scheduled for a hearing on January 6-7, 2014.

3On October 16, 2012, the applicant filed the Application alleging that the respondent discriminated against him by making false accusations and eventually terminating his employment due to a work-related injury. The applicant sustained two work-related injuries for which he received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (“WSIA”). The respondent terminated the applicant’s employment on April 3, 2012 due to alleged performance-related issues.

4Following the applicant’s termination, the Workplace Safety and Insurance Board (“WSIB”) addressed the issue of the applicant’s entitlement to WSIB benefits. By letter dated April 27, 2012, a WSIB Case Manager, Operations advised that the respondent had submitted documentation to support its position that the termination was the result of the applicant’s conduct rather than his workplace injury. The Case Manager then advised the applicant that he was not entitled to Loss of Earning benefits stating:

Having reviewed the information, I am satisfied that the employment relationship was not severed as a result of your injury, but is the result from (sic) non-compensable conduct.

5By letter dated March 11, 2013, a Case Manager from the WSIB’s Re-Employment Team advised the applicant of his decision that the applicant was not entitled to re-employment payments. The re-employment Case Manager advised that he was satisfied that the respondent was not in breach of its re-employment obligations toward the applicant.

6The applicant does not appear to have appealed these decisions and the time to have done so has now expired.

7On July 15, 2013, the respondent filed a Request for an Order During Proceedings (“Request”) to dismiss the Application pursuant to section 45.1 of the Code because the Case Managers’ decisions were proceedings that appropriately dealt with the substance of the Application.

8Section 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.

9The respondent also relies on the decision of the Supreme Court of Canada British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), in support of its Request. The applicant has not filed a response to the Request.

10It appears that this Application raises significant issues regarding the interpretation of section 45.1 of the Code in light of recent Supreme Court of Canada decisions. I note that the Tribunal has found in decisions pre-dating Figliola that the decisions of “front line” WSIB staff, such as case managers, may not be proceedings and 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. The Tribunal does not appear to have addressed the issue of the application of s. 45.1 to the decisions of WSIB case managers. In particular, the Tribunal has not addressed this issue following the Supreme Court of Canada’s decisions in Figliola and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”).

11In light of the above the Tribunal will use the first hearing day scheduled for this Application (January 6, 2014) to hear oral submissions from the parties on the issue of whether the Application should be dismissed under s. 45.1 and/or the doctrines of issue estoppel, collateral attack or abuse of process. The second hearing day (January 7, 2014) is cancelled.

12The 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 December 9, 2013. In their oral submissions at the hearing, the parties may wish to make submissions on Figliola, Penner, and Claybourn v. Toronto Police Services Board, 2013 HRTO 1298. All cases are available on www.canlii.ca. The parties are of course encouraged to make submissions on any other cases that they consider relevant.

13If, following the oral submissions of the parties on January 6, 2014, the Tribunal, in its decision, finds that the Application should not be dismissed, the Registrar will schedule new hearing dates to hear the merits of the Application.

Mediation-adjudication

14The Tribunal directs the parties’ attention to Rule 15A of the Tribunal’s Rules of Procedure which provides:

15A.1 With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.

15A.2 Where the parties agree to mediation-adjudication, they must sign a mediation-adjudication agreement before the mediation commences.

15If the parties are interested in attempting to settle the case before the Tribunal starts the hearing on January 6, 2014 through mediation-adjudication under Rule 15, they must advise the Registrar of the Tribunal in writing of such an interest no later than January 2, 2014.

Notice to Other Organizations

16This 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 them or any other organizations wish to intervene, they shall file their Request to Intervene no later than 21 days after the date of this Interim Decision.