Thiagarajah v. Baker Street Bakery Inc, 2013 HRTO 157

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sivanesan Thiagarajah Applicant

-and-

Baker Street Bakery Inc and Kate Nugent Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: January 29, 2013 Citation: 2013 HRTO 157 Indexed as: Thiagarajah v. Sivanesan Thiagarajah

WRITTEN SUBMISSIONS

Sivanesan Thiagarajah, Applicant Self-represented

Baker Street Bakery Inc. and Kate Nugent, Respondents Barbara O’Neil, Representative

1This is an Interim Decision in respect of an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and family status. This Interim Decision deals with a request by the respondent that the Application be dismissed pursuant to section 45.1 of the Code because the subject matter of the Application has been appropriately dealt with in another proceeding. In this case, the respondent references claims under the Workplace Safety and Insurance Act, 1997 S.O. 1997, c. 16, Sch. A (“WSIA”), and the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2I am not satisfied that this Application should be dismissed on the basis of the material filed.

3In respect of the request for dismissal pursuant to section 45.1, I have reviewed the decision of the Workplace Safety and Insurance Board (WSIB) eligibility adjudicator attached to the Response. The decision was to deny a claim for entitlement to WSIB benefits because “I am unable to establish a work injury has occurred“. The facts required to establish the occurrence of a work-related injury may, depending on the situation, overlap slightly with the facts required to establish disability as defined in the Code, but are otherwise not the same issue. On the information filed, there is no reason to believe that the issues relevant to the Code application have been “dealt with” for the purposes of section 45.1.

4Copies of the ESA application for termination pay and the decision of the Employment Standards Officer were also attached to the Response. The decision was to deny the application. The decision indicates that no contraventions of the ESA were found. In the Reasons for Decision, the Officer makes no findings of fact on any dispute that is relevant to this Application. She does record the positions of the parties in regard to some facts that are relevant to the Application, among these that the applicant was denied a request for extended vacation, that in early March of 2012 he had presented the personal respondent with a doctor's note “which advised he should avoid repetitive use of his arms” and requested accommodation, and that he was told by the personal respondent that “as his WSI the claim was denied, they are under no obligation to accommodate him under a RTW program, and that in any case they had no positions available that didn't involve use of his arms”.

5Leaving aside the question of whether there has yet been a “proceeding” for the purpose of section 45.1, the decisions do not deal with the subject-matter of this Application.

ORDER

6It appears that the parties have agreed to undertake mediation. The Registrar will schedule a mediation in the usual course.

7I am not seized.