Philomen v. Jessar Eglinton Limited, 2013 HRTO 1717

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nigel Philomen Applicant

-and-

Jessar Eglinton Limited dba Aaron’s Sales and Lease to Ownership Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: October 10, 2013 Citation: 2013 HRTO 1717 Indexed as: Philomen v. Jessar Eglinton Limited

WRITTEN SUBMISSIONS

Nigel Philomen, Applicant Self-represented

Jessar Eglinton Limited dba Aaron’s Sales and Lease to Ownership, Respondent Self-represented

Introduction

1This Interim Decision addresses the respondent’s request that the Application be dismissed because other proceedings have appropriately dealt with the substance of the Application. It also deals with the applicant's request to amend the Application to change the request for financial compensation.

2The Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of citizenship and disability.

3The applicant was employed by the respondent. He alleges that following a work-related injury the respondent failed to accommodate his disability and refused to offer modified work and then terminated his employment because of the disability. The applicant also alleges that the respondent made inappropriate comments about his SIN number. According to the applicant, his SIN number indicates that he is an immigrant and that the respondent discriminated against him on that basis.

4The respondent denies that it discriminated against the applicant on any basis. The respondent asserts that it offered modified work and that the applicant refused to come to work after the WSIB determined that the applicant had recovered from the effects of the injury. The respondent asserts that the WSIB has accordingly appropriately dealt with the applicant’s allegation of discrimination on the grounds of disability. The respondent further noted that applicant filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), claiming that he was entitled to termination and severance pay. The respondent argued that this is the same claim the applicant made in the Application to this Tribunal. The respondent asserts that the substance of the Application has been dealt with by the WSIB and by the fact that the applicant made a claim under the ESA.

5In his Reply to the Response, the applicant submits that the WSIB has not appropriately dealt with the substance of the Application. He notes that the WSIB has never considered his claim that his employment was terminated for discriminatory reasons. He also does not agree with the respondent about the events prior to the termination of his employment. In regard to the ESA complaint, the applicant states that the complaint was never investigated by an Employment Standards Officer and that he has withdrawn the complaint.

Section 45.1

6Section 45.1 of the Code provides:

45.1 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.

7In my view, the Application could not be dismissed under section 45.1 at this time because the applicant is correct that the WSIB has not considered his allegation that his employment was terminated because of his disability or his citizenship. The WSIB has made certain adjudicative decisions about the applicant’s entitlement to benefits and also about his disability. Those decisions provide important context to the Application and will be considered by this Tribunal in determining the issues in this Application. Any determination about whether the decisions of the WSIB appropriately dealt with the substance of the allegation that the respondent failed to accommodate the applicant’s disability in the period prior to the termination can only be determined after hearing evidence from the parties about what actually happened in that period and how those events relate to the decisions of the WSIB.

The applicant's request to amend

8The applicant filed a Request for Order During Proceedings seeking to add compensation for general damages for injury to dignity, feelings and self-respect, and to include costs of a retraining program. The respondent has not responded to this Request.

9The determination of the amount of compensation, if any, that an applicant is entitled to is a decision that is made by the Tribunal adjudicator who hears the Application. However, there does not appear to be any reason to deny the applicant’s request.

Decision

10The respondent’s request that the Application be dismissed under section 45.1 of the Code is denied.

11The applicant’s request to amend the Application to include general damages for injury to dignity, feelings and self-respect and the costs of a retraining program is granted.