Janssen v. Magna Qualtech Seating Systems, 2014 HRTO 1423

Human Rights Tribunal of Ontario

Between:

Michael Janssen Applicant

-and-

Magna Qualtech Seating Systems and Tricia Montminy Respondents

Decision

Adjudicator: Jay Sengupta Date: September 24, 2014 Citation: 2014 HRTO 1423 Indexed as: Janssen v. Magna Qualtech Seating Systems

Appearances

Michael Janssen, Applicant Self-represented

Magna Qualtech Seating Systems and Trisha Montminy, Respondents Eric Gresham, Counsel

Introduction

1This is an Application filed under section 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. The applicant alleges that the respondents discriminated against him on the basis of disability when they terminated his employment.

2On November 17, 2010, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding (i.e. an appeal under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A ("WSIA") dealing with the subject-matter of the Application and inviting the parties to make submissions.

3While the applicant acknowledged that the facts of the Application were part of a legal proceeding, which was still in progress, he opposed deferral of the Application on the basis that the respondents' actions had caused him mental anguish and financial hardship. He also argued that the issues in the WSIA appeal were different from those raised in his Application because the WSIA appeal related to the termination of his benefits by the Workplace Safety and Insurance Board ("WSIB"), whereas the Application related to the termination of his employment by the respondents.

4The respondents argued that the Application ought to be deferred, that an appeal under the WSIA was scheduled to be heard on February 10, 2011, that there was a significant overlap between the issues in the two proceedings and that proceeding concurrently with the WSIA appeal and the Application would result in the unnecessary duplication of proceedings. The respondents pointed out that the adjudicator in the WSIA appeal had the authority to determine whether the respondents met their return to work obligations to the applicant and fulfilled their duty to accommodate his disability-related needs.

5In Interim Decision, 2011 HRTO 203, dated January 27, 2011 the Tribunal deferred the Application pending conclusion of the proceedings under the WSIA.

6Those proceedings concluded with the issuance of a decision by the Workplace Safety Insurance Appeal Tribunal on March 19, 2013 (Decision No. 1651/12), following which the applicant sought to reactivate the present Application. The request to reactivate the Application was granted in Interim Decision, 2013 HRTO 1249, dated July 17, 2013, following which the respondents filed their Response and sought dismissal of this Application on the basis of s.45.1 of the Code.

7A Case Assessment Direction was issued scheduling a preliminary teleconference hearing to address the respondents' request for dismissal on the basis of s.45.1.

8For the reasons that follow, this Application is dismissed.

Decision

9The purpose of s. 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. Section 45.1 of the Code provides as follows:

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.

10Section 45.1 is generally considered in two parts: (1) was there another "proceeding" and (2) if so, did it "appropriately deal with" the substance of the application.

11The applicant's WSIB claim was ultimately determined by the WSIAT in an adjudicative process. The applicant gave evidence at a hearing before the WSIAT and had an opportunity to make oral submissions. I am satisfied that the WSIAT process is a proceeding for the purposes of section 45.1 of the Code.

12In deciding whether the WSIAT proceeding "appropriately dealt with" the substance of the matter before this Tribunal, it is necessary for me to consider the scope of each proceeding.

13The applicant's benefits under the WSIA were terminated in August 2009, based on covert surveillance of the applicant which the WSIB found to have revealed that the applicant was capable of returning to work at full duties. A three member panel of the WSIAT appeal issued Decision No. 1651/12 on March 19, 2013, in which it denied the applicant's appeal from a decision of an Appeal Resolution Officer (an "ARO") and found that the applicant was able to return to his pre-injury job without modifications in August 2009.

14The WSIAT panel also found that even if the applicant's restrictions had been ongoing, the respondent employer had confirmed to the WSIB that modified work continued to be on offer, which work the panel ruled was suitable. Finally, the panel held that any ongoing loss of earnings experienced by the applicant following the termination of benefits by the WSIB and the subsequent termination of his employment by the respondent employer was attributable to "reasons unrelated to his injury and due to his refusal to accept work."

15In the present Application, the applicant asserts that the respondents infringed his rights under the Code by terminating his employment even though he was unable to work for reasons relating to disability.

16I note that in the Application to this Tribunal, the applicant disclosed a document confirming the existence of another medical condition. That document, dated October 11, 2009, postdates the interview with his employer on October 8, 2009 and there is no allegation or evidence before me to suggest that this issue was raised with the respondent employer at the time these events occurred in 2009. To the contrary, the respondents confirm that they were never made aware of any disabilities or medical conditions other than those relating to the workplace injuries.

17According to its October 29, 2009 letter to the applicant, the respondent employer terminated the applicant's employment for cause on the stated basis that the applicant had intentionally misrepresented the extent of his workplace injury, improperly remained off work on WSIB benefits and, as a result of his further dishonest conduct during the meeting on October 8, 2009, lost the trust of the employer. According to the letter, the respondent reached this conclusion based on its review of the WSIB surveillance video and report and following its meeting with the applicant on October 8, 2009.

18Both the Application and the WSIA appeal relate to the level of the applicant's injuries and whether he was able to work for the respondent employer during the relevant time frame. In my view, the findings of the WSIAT deal squarely with the issues at the heart of this Application and have appropriately dealt with the substance of the matters before the Tribunal.

19Accordingly, the Application is dismissed.