HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bhavik Shah
Applicant
-and-
Acklands Grainger Inc.
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Shah v. Acklands Grainger Inc.
WRITTEN SUBMISSIONS
Bhavik Shah, Applicant
Dharminder Kumar, Representative
Acklands Grainger Inc., Respondent
Andrew Bratt, Counsel
Introduction
1This Interim Decision addresses the respondent’s request that the Application be dismissed based on a decision of the Workplace Safety and Insurance Board (WSIB) and the respondent’s concerns about the Reply filed by the applicant.
Background
2The applicant is employed by the respondent. According to the documents provided by the parties, the applicant has been off work on a medical leave since February 2013.
3The Application alleges discrimination because of ancestry, place of origin, ethnic origin and disability. The applicant alleges that he developed a stress-related disability as a result of the discrimination and that this caused him to go off work in February 2013.
4After he went off work, he filed a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. Chapter 16, Schedule A (WSIA). The claim was denied in a decision of the WSIB, dated March 5, 2013.
Should the Application be dismissed under section 45.1 of the Code?
5Section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended reads as follows:
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.
6The applicant’s claim for benefits under the WSIA was based on a stress-related disability that he claimed resulted from his employment with the respondent. Sections 13 (4) and (5) of the WSIA provide:
- (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.
13(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
7In its decision of March 5, 2013, the WSIB determined that although the applicant had described work-related circumstances that were stressful, the applicant had not experienced a sudden and unexpected traumatic event arising out of and in the course of his employment and that he was accordingly not entitled to benefits under the WSIA.
8The Code does not exclude stress that is alleged to result from employment-related factors under the definition of disability in the same way that the WSIA does.
9It is apparent that the decision of the WSIB considered only whether the applicant met the criteria for entitlement to benefits under section 13(5) of the WSIA, and did not consider any of the allegations of discrimination alleged in the Application. It is therefore clear that the decision of the WSIB did not appropriately deal with the substance of the Application. The request to dismiss the Application under section 45.1 of the Code is denied accordingly.
Concerns about the Reply
10The applicant filed a Reply (Form 3) following the respondent’s Response to the Application (Form 2).
11The respondent objects to the Reply and asks that the applicant be directed to file another Reply that conforms with Rule 9 of the Tribunal’s Rules of Procedure. Rule 9 provides in part as follows:
An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.
The Reply must deal only with new matters that are raised in the Response.
12The respondent submits that the Reply repeats allegations set out in the original Application, adds new allegations that were not described in the original Application, deals with matters other than those raised in the Response, and includes legal argument instead of factual allegations.
13Having reviewed the Reply and the respondent’s objections to it, I am not satisfied that there is any reason to require the applicant to file a new Reply. The respondent does not assert that it is in any way prejudiced by the Reply. The general purpose of the Tribunal’s Rules is to ensure a fair process. Whether or not the Reply strictly conforms with Rule 9, I do not see how the Reply results in any unfairness to the respondent. The truth of any of the allegations in either the Application or the Reply will be determined through a hearing process during which both parties will have an opportunity to present evidence and test the evidence of the other party. If the respondent feels that the applicant has not consistently portrayed his allegations, that inconsistency can be brought to the attention of the Tribunal adjudicator who hears the case. To the extent that the Reply includes legal argument, I cannot see how this creates any unfairness for the respondent. The Tribunal adjudicator will be able to hear submissions from the parties about the appropriate legal analysis to be applied to the facts of the case that emerge in evidence.
Decision
14The respondent’s request that the Application be dismissed under section 45.1 of the Code is denied.
15The respondent’s request that the applicant be directed to file a new Reply is also denied.
Dated at Toronto, this 17th day of December, 2013.
“signed by”
Brian Cook
Vice-chair