Balanyk v. Niagara Hospitality Hotels Inc., 2013 HRTO 1878

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Balanyk

Applicant

-and-

Niagara Hospitality Hotels Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 12, 2013

Citation: 2013 HRTO 1878

Indexed as: Balanyk v. Niagara Hospitality Hotels Inc.

WRITTEN SUBMISSIONS

Elizabeth Balanyk, Applicant

Angela Browne, Representative

Niagara Hospitality Hotels Inc., Respondent

Self-represented

Vince Kerrio, Respondent

William Hayter, Counsel

Introduction

1This is an Application filed 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 age.

2According to the Application the applicant was employed by the corporate respondent as a "crusher". The corporate respondent operates a restaurant and the applicant's job was to stand outside the restaurant and encourage potential patrons to eat at the restaurant. She started this employment in 2004 and worked until May 12, 2006 when she suffered a work-related injury. She returned to work on August 6, 2010 and worked on a part-time basis until March 13, 2011 when she slipped and fell at work and suffered a left elbow and arm injury. She received benefits from the Workplace Safety and Insurance Board (WSIB) for this injury until July 2011.

3It appears that the WSIB determined that the applicant was capable of performing her pre-injury job by July 2011. The applicant did not agree with this and states that Dr. Whitty, her family doctor was also of the opinion that she was unable to work. The applicant has filed an objection with the WSIB with respect to the determination that the applicant was capable of performing her pre-injury job by July 2011 and the decision that she was not entitled to loss of her earnings benefits beyond that date.

4The applicant contacted the employer about returning to work in May 2012. Dr. Whitty provided a letter dated May 16, 2012 indicating that the applicant could return to work with accommodation and that she required a sedentary, sitting job that would not involve the use of her left arm.

5The corporate respondent wrote to the applicant on May 18, 2012 and stated:

Unfortunately at this time we are not in a position to re-employ you in your pre injury position or any other at this time.

6The Application was filed on May 15, 2013. It named Niagara Hospitality Hotels Inc. and Vince Kerrio as respondents.

7A Response was filed on September 4, 2013 on behalf of the corporate respondent and Mr. Kerrio. The Response was filed by Douglas Birrell, identified as the CEO. A separate Response was subsequently filed on behalf of Mr. Kerrio. It indicates that the personal respondent is represented by William Hayter, a lawyer. The two Responses are not contradictory, but they do provide different details in response to the applicant's allegations. The response from the personal respondent includes a Request for Order During Proceedings asking that the Application be dismissed as against the personal respondent. It also asks the Tribunal to dismiss the Application under section 45.1 of the Code which 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.

8In the alternative, the respondent submits that the Application should be deferred pending the conclusion of the applicant's objection at the WSIB.

9The applicant filed a Reply to both Responses and also a reply to the Request for Order During Proceedings. The applicant does not agree that the Application should be dismissed as against the personal respondent and also does not agree that the Application should be dismissed under section 45.1 of the Code, or that it should be deferred.

Should the Application be dismissed under section 45.1

10Based on the information before me, it appears that the WSIB has determined that the applicant was capable of returning to her pre-injury job by July 2011. As she did not return to work at that time, the WSIB has determined that the applicant is not entitled to loss of earnings benefits beyond July 2011. These appear to be the issues relevant to the applicant's objection to the WSIB.

11The central issue in the Application appears to be the events in May 2012 when the applicant felt that she was able to return to work but was told that there was no work available.

12It is apparent that the WSIB has not considered the events in May 2012 and so it has not dealt with the substance of the Application. There is therefore no basis to dismiss the Application at this time under section 45.1 of the Code.

Should the Application be deferred?

13Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

14If the applicant was successful in respect of her objection at the WSIB, it is possible that the WSIB could then go on to consider the events in May 2012, however this is by no means certain. If it did consider those events, the WSIB would determine whether the applicant was entitled to loss of earnings benefits. It would not likely determine whether the respondent had a Code-related duties to re-employ the applicant.

15In these circumstances I find that it is not appropriate to defer the Application at this time.

Removal of the personal respondent

16The factors typically considered by the Tribunal when determining a request to remove a personal respondent are as follows:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

Persaud v. Toronto District School Board, 2008 HRTO 31

17In this case, many of the factors that would typically cause the Tribunal to remove the personal respondent are present. However at this time I find that it is not appropriate to move the personal respondent as a respondent because the personal respondent has filed a Response to be Application which is somewhat different than the Response filed by the corporate respondent. As well, it appears that the personal respondent is represented by counsel. It is not clear if Mr. Hayter has been retained to represent the corporate respondent. It is not clear that the corporate respondent has accepted any liability that might be found in respect of the personal respondent.

Next steps

18The Application indicated that the applicant was interested in trying mediation at the tribunal as a way of resolving the issues. The respondents did not indicate such a willingness, however they were also seeking to have the Application dismissed or deferred. The respondents are directed to advise the Tribunal and the applicant if they are prepared to try mediation. The respondents are also directed to clarify whether they are in fact proceeding separately or together and whether Mr. Hayter is representing both respondents.

Direction

19The respondents are directed to provide this information to the Tribunal and the applicant by November 22, 2013. If the respondents are prepared to try mediation the Tribunal will schedule a mediation session. If the respondents are not prepared to try mediation, the Tribunal will schedule a hearing.