Johnson v. Hamilton-Wentworth District School Board, 2013 HRTO 2054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maureen Lea Johnson Applicant

-and-

Hamilton-Wentworth District School Board and Daniel Chiarcos Respondents

-and-

Canadian Union of Public Employees, Local 4153 Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Date: December 11, 2013 Citation: 2013 HRTO 2054 Indexed as: Johnson v. Hamilton-Wentworth District School Board

WRITTEN SUBMISSIONS

Maureen Lea Johnson, Applicant Christine Lundy, Representative

Hamilton-Wentworth District School Board and Daniel Chiarcos, Respondents Jane Gooding, Counsel

1This is an Application dated July 31, 2012 and 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.

2This matter is currently scheduled to proceed to a hearing in Toronto on January 6 to 8, 2014.

3The purpose of this Interim Decision is to address the respondents’ request for the Application to be dismissed pursuant to s. 45.1 of the Code as a result of proceedings before the Workplace Safety and Insurance Board (“WSIB”), or in the alternative that this matter be deferred pending the completion of the WSIB proceedings.

4The respondents have proposed that these requests be dealt with in writing. Written submissions have been received from the respondents and the applicant. The intervenor takes no position on the requests. While the applicant has proposed that these requests be dealt with as a preliminary matter at the outset of the hearing, in my view that is not necessary and the requests will be addressed in writing.

Request to dismiss pursuant to s. 45.1 of the Code

5Section 45.1 of the Code states:

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.

6Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.

7This Tribunal has not yet determined whether decisions made by first level Case Managers at the WSIB constitute a “proceeding” within the meaning of the Code, and I offer no opinion on this issue. In order to address the respondents’ request, it is not necessary for me to determine whether the involvement of the WSIB in this matter, which has not yet extended to a hearing before an Appeals Resolution Officer (“ARO”) or the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), constitutes a “proceeding”. It is my view that the involvement of the WSIB in this matter, including the decisions made by the Case Managers, have not appropriately dealt with the substance of the Application.

8From a review of the Application, it appears that the following issues are raised as to a potential violation of the Code: that the applicant was made to work in schools with stairs and no elevators, which was contrary to her restrictions; that the applicant was not accommodated in her pre-injury position as Head Caretaker, but was instead demoted to Assistant Caretaker; that she was not involved in decisions about where she was to work; and that she was not provided with equipment she required to accommodate her needs. It is alleged that this violates both the substantive and procedural aspects of the duty to accommodate under the Code.

9In the applicant’s written submissions in response to the respondents’ request to dismiss, it also is alleged that the respondents violated the Code by subjecting her to differential adverse treatment because of her disability, due to: unjustified criticism of her work; lack of consideration regarding requests for time off; persistent efforts to minimize or denigrate the seriousness of her disability; and negative comments and demeaning personal references. With regard to the former two allegations, I see that these appear in the Application. However, with regard to the latter two allegations, I do not see any allegations in the Application to support that these issues were raised nor do I see any particulars provided as to what specifically the applicant is referring. Accordingly, I will not have regard to the latter two allegations as forming part of the substance of the Application before this Tribunal.

10There also appears on the face of the Application to be an issue about the applicant having been denied overtime.

11There is no doubt that the WSIB appears to have been extensively involved in this matter from the time of the applicant’s initial workplace injury on July 30, 2008. But the mere involvement of the WSIB is different from the kind of adjudicative decision(s) that form a proper basis for consideration under s. 45.1 of the Code.

12Based upon my review of the extensive material and submissions filed by the respondents, it appears that the following are the only actual “decisions” made by the WSIB in this matter. First, there is a decision dated September 11, 2008 allowing the applicant’s claim for health care and loss of earnings benefits. Second, there is a decision dated February 10, 2011 regarding a second claim filed by the applicant arising from an elevator door hitting her right knee on January 19, 2010. This claim was disallowed on the basis that there was no medical documentation to confirm any new injury arising from this incident or that the applicant’s original injury worsened. This second decision does not appear to address any of the allegations raised by the applicant in the Application before this Tribunal.

13The third decision is dated October 27, 2011 and finds that the modified work duties proposed for the applicant are “suitable” and can be performed by her on a full-time basis. The WSIB indicated that the applicant was expected to return to fulfil her pre-injury hours within her restrictions, and that she was no longer eligible to receive partial loss of earnings (“PLOE”) benefits. The applicant filed a letter indicating that she planned to appeal this decision, but this decision was not identified by her representative as one of the WSIB decisions currently under appeal. As a result, it is not clear to me whether or not this decision is being challenged.

14In any event, in my view, while this decision may have some relevance to some of the issues raised before this Tribunal, it does not deal with the substance of all or even part of the Application. Rather, this decision merely finds that the modified work being offered is “suitable” and that the applicant is capable of working full-time hours. It does not address the issue raised in this Application as to whether the applicant could have been accommodated in her pre-injury position as a Head Caretaker, nor does it address the allegations about the applicant’s placement in schools with stairs and no elevator (which occurred after the date of this WSIB decision), nor does it address the allegation about the applicant not being provided with equipment required as an accommodation, nor does it address the allegation about the applicant not being involved in decisions about where she was going to work, nor does it address the allegations of adverse differential treatment raised in the Application (unjustified criticism of work, requests for time off, overtime).

15The fourth WSIB decision is dated February 14, 2012 and relates to the applicant’s non-economic loss (“NEL”) assessment, based upon her having achieved maximum medical recovery as of January 12, 2011. This decision is under appeal, but does not deal with any of the issues raised in the Application.

16Finally, a fifth WSIB decision dated March 6, 2013 denies benefits for injury to the applicant’s left knee as not being compatible with her original workplace injury and therefore being non-compensable. This decision also is under appeal. As noted by the applicant’s representative, whether or not an injury was sustained in the workplace is an issue before the WSIB. But this is not a relevant issue before this Tribunal under the Code. Rather, the issue before this Tribunal is whether the applicant has a disability, without regard to the source or cause, and whether the needs arising from any such disability can be accommodated without causing undue hardship. Accordingly, this fifth WSIB decision does not address any of the allegations raised in the Application.

17It is argued by the respondents that I should regard the entire WSIB involvement in this matter as a “proceeding” and find that in its entirety the WSIB determined that the respondents were appropriately accommodating the applicant. I decline to do so in the absence of any clear determination by the WSIB as expressed in a decision.

18The respondents take the position that it was determined, in conjunction with the WSIB, that the applicant was not capable of returning to her pre-injury position as Head Caretaker. It appears that this issue was discussed by the parties during the course of the WSIB’s involvement in this matter, and in particular was addressed at a meeting with a WSIB return to work specialist on July 15, 2010. But a meeting with a WSIB return to work specialist and her notes of this meeting do not constitute an adjudicative decision to which s. 45.1 of the Code is capable of being applied. In any event, the notes of this meeting only indicate that the applicant’s ability to return to a Head Caretaker job is “questionable”, and notes that “both the employer and the union were hopeful the worker’s recovery would allow a return to her pre-injury position, possibly with accommodation, and advised they would review this at a later date”. While this may be relevant evidence to present at the hearing, this cannot be regarded as a determination that the applicant could not be accommodated in a Head Caretaker position without causing undue hardship within the meaning of the Code. I also note that the applicant does appear to have been placed in a Head Caretaker position as of June 17, 2013, on the basis of a new set of restrictions provided by her doctor.

19The respondents further rely upon a letter provided to the school board by the WSIB dated November 5, 2010 which identifies the applicant’s permanent restrictions. While the applicant’s representative appears to concede that this is a “decision” by the WSIB, that is not at all clear to me, as the decision letter does not contain the standard information about appealing a decision that appears in WSIB decision letters. In any event, while this letter may be relied upon as evidence as to what the applicant’s permanent restrictions were at that time, it does not address or deal with any of the issues raised in the Application. Rather, I note that in their Response as well as in their written submissions in support of their request, the respondent school board states that it concluded, based upon the permanent restrictions identified by the WSIB, that the applicant could not be accommodated in the Head Caretaker position. The respondents may be right about this, or they may not. That is a matter to be addressed at the hearing. But this is not an adjudicative decision by the WSIB that the applicant could not be accommodated in the Head Caretaker role.

20I appreciate that the respondents may feel frustrated that they have engaged in a process with considerable involvement by the WSIB, only to have to appear before this Tribunal to address the allegations raised in the Application. But in the absence of any adjudicative decision by the WSIB that actually deals with the substance of all or even part of the allegations raised in the Application, that is not a proper basis to justify dismissal of all or part of the Application pursuant to s. 45.1 of the Code.

21Accordingly, the respondents’ request to dismiss the Application pursuant to s. 45.1 of the Code is denied.

Request for deferral

22For similar reasons to those set out above, it also is my view that it would not be appropriate to defer this matter pending the conclusion of the WSIB proceeding(s).

23As stated above, one ongoing appeal relates to the applicant’s NEL assessment, which is not relevant to the issues before this Tribunal. Another ongoing appeal relates to the WSIB’s decision that any injury to the applicant’s left knee is non-compensable, which also is not relevant to the issues before this Tribunal.

24With regard to the possible appeal of the WSIB’s decision dated October 27, 2011, if any such appeal is proceeding, it may be that a decision about whether modified work being offered by the respondent school board at that time was “suitable” and whether the applicant was capable of working full-time hours would have some relevance to at least some of the issues raised before this Tribunal. However, any such decision clearly would not address all of the issues raised in the Application. Moreover, the hearing in this matter is scheduled to proceed before this Tribunal in less than one month, whereas I have no information before me to indicate that any ARO hearing is currently scheduled to address this decision (if in fact it even is under appeal). As is often observed, one proceeding or another needs to go first, and in the circumstances it is my view that it makes more sense for the hearing before this Tribunal to proceed as scheduled, particularly given the broader range of issues raised in the Application.

25Accordingly, the respondents’ request for this matter to be deferred is also denied.

ORDER

26The respondents’ request for dismissal or deferral of this proceeding is denied, and the hearing will proceed as scheduled on January 6 to 8, 2014.