Grace Paris v. Bramic Creative Business Products Ltd., 2013 HRTO 1869

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grace Paris

Applicant

-and-

Bramic Creative Business Products Ltd.

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: November 7, 2013

Citation: 2013 HRTO 1869

Indexed as: Paris v. Bramic Creative Business Products Ltd.

APPEARANCES

Grace Paris, Applicant

Belinda Nguyen, Counsel

Bramic Creative Business Products Ltd., Respondent

Mark Gernon, Representative

introduction

1This Interim Decision deals with a request by the respondent to dismiss this Application for delay and, in the alternative, to dismiss it on the ground that another proceeding has appropriately dealt with the substance of the Application. The requests are denied for the reasons set out below. As the parties have agreed to try mediation in the event that this Application is allowed to proceed, the Registrar is requested to set a date for a mediation session.

background

2The applicant worked for the respondent from October 5, 2009 to August 9, 2011 as a parts assembler. She injured her left shoulder and lower back at work. She filed an Application under s. 34 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 sex.

3The Application was filed on June 27, 2012. The Tribunal advised the applicant that it was incomplete and that if she provided the missing information it would continue to be processed and accepted as of the date it was originally received. The applicant was granted two extensions and eventually filed a complete Application in October of 2012. The applicant subsequently retained counsel and filed a revised Application in February of 2013. This latest iteration narrowed the focus of the Application and reduced the alleged grounds of discrimination to the two cited above. In the revised Application the last alleged act of discrimination is claimed to have occurred with the termination of her employment on August 9, 2011.

4The alleged discrimination on the basis of disability is that the respondent failed to accommodate the applicant by offering employment that entailed part time hours and light lifting. It is also alleged that the applicant’s disability was a factor in the decision to terminate her employment.

5The alleged sex discrimination is that, as the only female employee, the applicant was paid less than similarly situated co-workers and co-workers with less seniority. It is further alleged that the applicant worked in a workplace environment poisoned by sexism and that she was subjected to derogatory comments based on her gender.

6The applicant’s workplace injury was also the subject of a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 (“WSIA”). When the Workplace Safety and Insurance Board (“WSIB”) denied entitlement for a permanent lower back impairment, as well as entitlement for lost time and health care benefits beyond November 30, 2010, the applicant sought a review by a WSIB Appeals Resolution Officer (“ARO”).

7The ARO decision notes that treatment of the applicant’s compensable injuries revealed the existence of non-compensable pre-existing conditions that the applicant claims were also causing her pain. The decision states:

Although the worker continued to complain of pain, I accept that these related to an underlying non-compensable degenerative condition within the low back and also to non-compensable partial tears in both the shoulders. It should however be highlighted that these were not accepted as the responsibility of this claim and therefore would not play a role in the assessment of this worker's employability.

All in all, I accept that the compensable low back strain and ongoing complaints of the same would be in keeping with the worker's pre-existing history of degenerative disc disease and the restrictions provided by the REC would be for the non-compensable degenerative disc disease and not related to the ongoing compensable low back injury under this claim. As such, I accept that the compensable low back strain had, in fact, resolved at the time of the December 1, 2010 REC assessment. As such, I also accept that this worker should have been able to return to working her pre-injury job with accommodation with this employer.

All other issues with respect to this worker's return to work thereafter and the discussions with the accident employer along with the worker's termination would also be considered to be issues not related to this claim but more so to the employment situation with the accident employer thereafter.

8In relation to the issue of delay the respondent argues that if an Application is filed that is incomplete, then it should not be treated as an Application for the purposes of calculating whether it is in time. The clock should only run from the date a completed Application was filed. From this it argues that the operative date of the filing of this Application was in October 2012 and this is more than a year after the last alleged act of discrimination.

9Regarding the application of s.45.1 of the Code, the respondent maintains that the substance of the Application has been appropriately dealt with by the ARO decision because the alleged discrimination on the basis of disability flows directly from a workplace injury. It states that workplace injuries are matters wholly within the jurisdiction of the WSIB. It claims that if the applicant did not like the ARO decision, she should have appealed it to the Workplace Safety and Insurance Appeals Tribunal rather than initiating an Application before this Tribunal.

10The applicant’s position on s.45.1 is that the focus of the ARO decision is on whether her injuries are compensable under the WSIA, and that this is a narrower question than whether she was disabled (regardless of whether the disability arose out of and in the course of employment) and whether the respondent made efforts to accommodate her disability to the point of undue hardship.

analysis

Delay

11The Code (s.34) requires an application to be made within a year of the last alleged incident of discrimination or, if a series of incidents is alleged, within a year of the last incident in the series. The Tribunal can make an exception to this rule if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

12The respondent’s argument fails because the Application was made within a year of the last alleged incident of discrimination. Acceptance of the Application by the Tribunal on the date of its original filing – in this case June 27, 2012 - was made contingent on the applicant completing the Application within timeframes subsequently set by the Tribunal. The applicant complied with these and the Application was accepted as of June 27, 2012. As the last alleged incident of discrimination was on August 9, 2011, the Application is not out of time.

The application of s.45.1

13In s.45.1 the Code provides that 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.”

14There are two issues to be determined here: whether the hearing before the ARO constituted a proceeding within the meaning of s.45.1 and, if it did, whether the ARO decision appropriately dealt with the substance of this Application.

15Assuming without deciding that a hearing before an ARO is a proceeding within the meaning of s.45.1, I nonetheless conclude that the ARO decision has not appropriately dealt with the substance of this Application.

16The ARO decision focuses exclusively on the issue of disability and does not touch at all on the allegations of sex discrimination.

17In relation to the issue of disability, the ARO decision has a focus which is, not surprisingly, constrained by the notion of compensability under the WSIA. In practice what this means is that the ARO looked at whether applicant’s low back injury was a permanent impairment within the meaning of the WSIA. The ARO concludes that there was an underlying non-compensable pre-existing condition and denies permanent impairment benefits for that reason. Here the ARO analysis is limited to looking at whether there was a permanent lower back injury arising out of and in the course of employment. In the passage cited in paragraph 7 above, the ARO decision explicitly recognises that this is a narrower question than whether the applicant is disabled, regardless of the reason why.

18As paragraph 14 of the narrative appended to the respondent’s Response contains a blanket denial of any and all claims advanced by the applicant, it is reasonable to expect that the nature and extent of the applicant’s alleged disability may be at issue in a hearing before the Tribunal. The Tribunal’s inquiry into whether and how severely the applicant was disabled would then entail a broader inquiry than the one conducted by the ARO into the more limited question of disability for the purposes of compensation under the WSIA.

19In relation to entitlement to loss of earnings and health care benefits after November 30, 2010, the ARO denies entitlement. The denial is based on findings that the respondent was prepared to make accommodations that would enable the applicant to return to her pre-injury job, but that she was uncooperative in that regard. Here the focus of the ARO analysis is specifically on a return to the pre-injury job, and not to any job that the respondent might have been able to offer without incurring undue hardship. In addition, the above excerpt from the ARO decision makes clear that the question of what happened following the applicant’s refusal to cooperate (including the applicant’s termination) is not a matter that it would adjudicate, as it is a question beyond the scope of the WSIA.

20There may well be a factual overlap between a number of the issues raised before the ARO and that would also arise in a Tribunal hearing. This is particularly the case in relation to what accommodations the respondent offered and how the applicant reacted to that offer. However the risk of some factual overlap between two proceedings is not a sufficient basis to dismiss pursuant to s.45.1. A number of the issues that would arise before the Tribunal are different from the ones considered by the ARO and there is no human rights analysis – explicit or implicit – in the ARO’s reasoning.

21A hearing before the Tribunal would look at whether the applicant was disabled regardless of the reason why, whether she sought accommodation, and whether the respondent attempted to accommodate her disability to the point of undue hardship. This is a broader inquiry than was conducted by the ARO and that is why I conclude that the ARO decision did not appropriately deal with the substance of the allegations relating to disability in this Application.

22Moreover, the ARO decision did not deal at all with the allegations of sex discrimination.

order

23The respondent’s requests to dismiss for delay and to dismiss pursuant to s.45.1 are denied.

24The Registrar is requested to set a date for a mediation session.