McCarthy v. Caesar’s Plumbing and Heating, 2013 HRTO 1465

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: August 28, 2013 Citation: 2013 HRTO 1465 Indexed as: McCarthy v. Caesar’s Plumbing and Heating

WRITTEN SUBMISSIONS

Spence McCarthy, Applicant Paul Champ, Counsel

Caesar’s Plumbing and Heating, Respondent Grace Skowronski, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.

2In an Interim Decision dated July 22, 2013, 2013 HRTO 1270, the Tribunal allowed the applicant’s request to re-activate his Application. This Interim Decision addresses a subsequent request by the respondent to again defer the Application.

BACKGROUND

3The applicant suffered a work related injury in September 2009 and was absent from work for two months. He received Loss of Employment (“LOE”) benefits from the Workplace Safety and Insurance Board (“WSIB”). He returned to work in November 2009 on modified light duties. He remained on light duties until late March 2010 when he returned to his pre-injury regular duties. The applicant was on regular duties until April 26, 2010 at which time he indicated to the respondent that he was unable to continue with his regular duties because of his injuries. He reapplied to the WSIB for LOE benefits.

4The Application alleges that the respondent did not accept that the applicant was injured as claimed and refused to accommodate the applicant’s request for light duties as of May 10, 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 WSIB determined that the applicant had a workplace injury requiring modified duties.

5On 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.

6The 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.

7On or about June 14, 2010 the applicant appealed the WSIB decision refusing him benefits.

8On August 11, 2010, the applicant filed his Application

9On October 20, 2010, the respondent filed a Response 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”).

10In response to a Case Assessment Direction issued by the Tribunal on July 25, 2011, both parties made additional submissions on the issue of the appropriateness of deferring this Application. In an Interim Decision, 2011 HRTO 1690, dated September 14, 2011, 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.

11The 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.

12On 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 ARO’s decision made the following orders:

i. the Applicant’s request for entitlement to bilateral hip and groin conditions is denied;

ii the Applicant’s request for ongoing entitlement to left shoulder complaints is granted; and

iii the issue of fitness for work and LOE benefits from mid-May 2010 is returned to the operations area for further enquiry. Operations is directed to conduct enquiries to determine the following:

1. The Applicant’s pre-injury duties;

2. The availability of alternate work duties and/or the Applicant’s ability to self-accommodate pre-injury duties;

3. The Applicant’s fitness for available job duties and

4. The Applicant’s entitlement to LOE benefits from mid-May 2010.

13The 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.

14The 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 given that it included a directive to the WSIB operations area to conduct further enquiries.

15In an Interim Decision, 2012 HRTO 1428, dated July 23, 2012, 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.

16The 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.

17On June 18, 2013, the applicant wrote to the Tribunal requesting that his Application be re-activated. He submitted that the WSIB operating area had now resolved the outstanding issues arising from the ARO’s May 16, 2012 decision. He submitted that this was evident from a further decision made by a WSIB Case Manager in the Appeals Implementation Team, Operations Division dated March 19, 2013.

18In an Interim Decision, 2013 HRTO 1270, dated July 22, 2013, the Tribunal granted the applicant’s request to re-activate his Application. In its decision the Tribunal indicated that it was of the view that there remained no outstanding issues before the WSIB related to the substance of the Application. It also noted that the respondent had not filed a response to the applicant’s June 18, 2013 request to re-activate and accordingly had not indicated that it opposed the applicant’s request.

19On August 12, 2013, the respondent filed a Request for an Order During Proceedings asking the Tribunal to again defer the Application on the basis that there were outstanding issues before the WSIB that were directly relevant to the subject matter of the Application. It submits that the WSIB’s operating area had not, in fact, directed enquiries into all of the issues identified by the ARO in his May 2012 decision, that it had not made enquiries into the Applicant’s pre-injury duties, the availability of alternate work duties and/or the Applicant’s ability to self-accommodate pre-injury duties and the Applicant’s fitness for available job duties (sub points 1, 2 and 3 of point iii of the ARO’s decision). The respondent submits that allowing the Application to proceed at this time would lead to concurrent proceedings addressing similar issues, a situation that the Tribunal had indicated it did not wish to occur when it deferred the Application in September 2011 and later refused the applicant’s request to re-activate his Application in July 2012.

20The respondent also submits that the applicant’s proceedings before the WSIB could continue if the applicant was to appeal the WSIB’s March 19, 2013 decision before the appeal deadline of September 20, 2013.

21The respondent further indicates in its RFOP that it did communicate with the Tribunal prior to the Tribunal issuing its Interim Decision on July 22, 2013, granting the applicant’s request to re-activate. It submits that it faxed a letter dated July 19, 2013, to the Tribunal to indicate that it wished to make submissions in regard to the applicant’s request to re-activate and that it trusted that the Tribunal would not take any action in respect to the applicant’s request prior to considering the respondent’s submissions.

22On August 15, 2013, the applicant filed a Form 11 response to the respondent’s RFOP opposing the respondent’s request to defer. The applicant submits that the WSIB’s decision of March 19, 2013, indicates that there are no issues outstanding for determination by the WSIB and that the applicant understands that the WSIB has essentially closed his file with the WSIB.

DECISION

23The respondent’s request to defer is denied. I am satisfied that the WSIB has completed its process of addressing issues identified by the ARO in his May 2012 decision. I am satisfied that they are no likely outstanding decisions for determination by the WSIB given the information before me.

24The WSIB has determined that the applicant had a left shoulder injury as of May 9, 2010, that was compensable. It states in its March 19, 2013 decision that the applicant would not have been able to return to his pre-injury job after May 9, 2010, because the position required loading and unloading equipment and cleaning that would have exceeded the applicant’s left shoulder limitations. It finds that the respondent withdrew the offer of light duties as of May 9, 2010 when they were advised by the WSIB that the applicant did not have any entitlements arising from his injuries. It is not evident to me, based on this information, that the WSIB intends to make further enquiries about what occurred between the respondent and applicant in the period leading up to May 9, 2010 or in the period following when the WSIB did award the applicant LOE benefits (until February 23, 2011). I am of the view that the WSIB’s March 19, 2013 decision from the WSIB’s operation area is to communicate that the WSIB has completed its enquiries as directed by the ARO’s decision. Indeed the WSIB’s March 19, 2013 decision explicitly states that it has implemented the ARO’s decision.

25I recognize that it is possible that the applicant could still appeal the WSIB’s March 19, 2013 decision, for example, in relation to the period of time for which it awarded LOE benefits. However, the applicant has made a request to re-activate his Application based on the WSIB’s March 19, 2013 decision. He has adamantly opposed the respondent’s subsequent request for deferral. He has given no indication that he disputes the WSIB’s decision or intends to appeal it further. Under these circumstances I do not find the fact that the period to appeal the WSIB decision is not yet over reason to order a deferral of the Application.

26The Tribunal does acknowledge receipt of the respondent’s July 19, 2013 letter prior to the issuing of its decision on July 22, 2013, granting the applicant’s request to re-activate. Due to an administrative error, the letter was not before me at the time I issued my decision.

27The Application will now be scheduled for hearing.

28I am not seized of this matter.