Human Rights Tribunal of Ontario
B E T W E E N:
Daniel Devouge Applicant
-and-
Griffith Laboratories Limited Respondent
INTERIM DECISION
Adjudicator: Brian Cook Date: October 15, 2014 Citation: 2014 HRTO 1536 Indexed as: Devouge v. Griffith Laboratories Limited
WRITTEN SUBMISSIONS
Daniel Devouge, Applicant Heydi Deen, Representative
Griffith Laboratories Limited, Respondent David Bannon, Counsel
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent denies discrimination and asserts that the substance of the Application has been appropriately dealt with by the Workplace Safety and Insurance Board (WSIB) and that the Application should be dismissed 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.
3The respondent also asserts that many of the allegations in the Application are untimely and should be dismissed because the Application was not filed within one year of the alleged incidents. Section 34 provides:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
4For the reasons that follow, I conclude that the Application should not be dismissed under section 45.1 and that further information may be required before the timeliness issue can be addressed.
Background
5The applicant suffered a work-related injury on November 2, 2005. He was able to continue working until October 2006 and then was sporadically off work for several years. The WSIB initially determined that the applicant’s lost time from work did not result from the work-related injury and denied entitlement to loss of earnings benefits.
6The applicant’s WSIB claim was considered by a WSIB Appeals Resolution Officer who held a hearing on November 20, 2012. The applicant participated and was represented. The respondent did not participate in the hearing. In a decision dated December 4, 2012, the Appeals Resolution Officer determined that the applicant had a chronic pain disability as a result of the original work-related injury and found that the applicant was entitled to benefits under the Board’s chronic pain disability policy.
7The Appeals Resolution Officer also considered the applicant’s entitlement to loss of earnings benefits from 2006. She reviewed the medical information and information in the Board’s claim file about the work that the applicant was doing over the years and concluded that the applicant was entitled to loss of earnings for his lost time since 2006. She suggested that important factors in this regard included that the applicant had a chronic pain disability which was not recognized at the time and that the WSIB had not intervened in the return to work process because it had thought that the work offered by the employer was suitable.
8The Appeals Resolution Officer concluded:
I accept that both the employer and worker fulfilled their RTW [return to work] obligations. The challenges that faced the worker and the employer were many. However, I have no reason to doubt the sincerity of the worker’s statement to his health professionals and testimony at the hearing. He has consistently reported that his pain levels determine his ability to work on any given day. He has also consistently reported that some of the job assignments aggravated his pain. I find the worker’s pain and his inability to manage this pain without narcotics has resulted in injury related lost time.
9Following the decision of the Appeals Resolution Officer, a WSIB Work Transition Specialist convened a meeting at the workplace. According to her memo of June 13, 2013, during the meeting, the respondent’s Senior Director stated that following discussions with their legal counsel, it had been determined that because of the applicant's permanent medical restrictions, and his inability to return to his pre-injury job, there was no longer suitable work available. The applicant was “placed on leave” and was escorted from the premises.
10Following these events, a WSIB Re-employment Claims Manager considered whether the employer was in breach of its re-employment obligations under the Workplace Safety and Insurance Act. The Claims Manager concluded:
The employer has attempted to provide suitable work to Mr. Devouge, and has co-operated in the work reintegration process. As noted above, the WSIB must determine that suitable work is available before it considers levying a penalty against the injury employer for failing to offer suitable work. In this case, while there are tasks that Mr. Devouge is capable of performing, there is no suitable available work for this employer to offer. There is no evidence of suitable work being available in this employer’s workplace.
11Since the applicant was then an injured worker with a loss of earnings that resulted from the injury, the applicant was entitled to continuing loss of earnings benefits. It is not clear from the materials filed by the parties whether the applicant has been able to return to work with a different employer or if he received work reintegration assistance from the WSIB.
The WSIB Return to Work process
12The Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended (“WSIA”) creates obligations on the workplace parties concerning the return to work process. These are found in sections 40 and 41 of WSIA and the relevant subsections are as follows:
40 (1) The employer of an injured worker shall co-operate in the early and safe return to work of the work by,
(b) attempting to provide suitable employment that is available and consistent with the worker’s functional abilities and that, when possible, restores the worker’s pre-injury earnings.
41 (1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, has been employed continuously for a least one year by the employer shall offer to re-employ the worker in accordance with this section.
(6) The employer shall accommodate the work or the workplace for the worker to the extent that accommodation does not cause the employer undue hardship.
(7) The employer is obligated under this section until the earliest of,
(a) the second anniversary of the date of injury;
(b) one year after the worker is medically able to perform the essential duties of his or her pre-injury employment …
13In the present case, the two-year period referred to in section 41(7) had long elapsed by the time the employer determined it had no suitable work available. The decision of the Case Manager was therefore with respect to the more general obligation to co-operate in the return to work process set out in section 40.
14Maxwell v. Cooper-Standard Automotive Canada Limited, 2013 HRTO 1482 is a decision of the Tribunal dealing with a somewhat similar fact situation. In that case, a WSIB Work Transition Specialist was advised by the employer that it had no suitable work available for Mr. Maxwell, an injured worker. This information was reviewed by a Claims Manager who determined that the injured worker was entitled to work re-integration assistance. The issue in Maxwell was whether the WSIB had appropriately dealt with the substance of the Application, in which the applicant alleged that the employer had not accommodated him to the point of undue hardship. In Maxwell, the Tribunal concluded that the various decisions about the applicant's entitlement to benefits and services had not addressed the issue of whether the employer had suitable work or if it could have accommodated the applicant to the point of undue hardship. Instead, the WSIB had simply accepted the information from the employer that it had no suitable work. That information in turn meant that the applicant was entitled to continuing benefits and services.
15In Maxwell, Gary Newhouse, a lawyer, was recognized as an expert witness with respect to the operation of the WSIB return to work processes.
16In Maxwell, the Tribunal heard the following evidence (at paragraphs 17 and 18):
Mr. Newhouse testified that in 2010 the WSIB approved policies that allow it to levy penalties (pursuant to s. 86 of the WSIA) against employers that do not cooperate in the safe and early return to work process under s. 40, but he was not aware of the WSIB exercising its power in this manner. Counsel for IAVGO made a freedom of information request from the WSIB, and received a written response “that, to date, no penalties have been imposed under s. 86 of the WSIA.”
Even if such penalties were imposed, Mr. Newhouse testified that the WSIB does not have the power to require an employer to re-employ an injured worker. In his experience, an employer’s analysis is generally accepted if it asserts that it has no suitable work for an injured worker. Mr. Newhouse further testified that a return to work specialist will not engage in a rigorous undue hardship analysis if an employer takes the position that there is nothing it can do to return the injured worker to employment, or the cost would be too expensive.
17Mr. Newhouse explained that there is an ongoing incentive for employers to continue to offer suitable work beyond the two years covered by section 41 because failing to do so may affect the employer’s WSIB assessments since loss of earnings benefits are charged to the employer’s account. However, he noted that because of the operation of the WSIB experience rating systems, that incentive disappears some years after the date of injury.
18In the present case, the respondent determined it had no suitable work approximately eight years after the injury so the WSIB experience rating incentive was no longer applicable.
Was there a proceeding?
19The respondent suggests that the WSIB appropriately dealt with the substance of the Application as a result of the combined effect of the decision of the Appeals Resolution Officer and the subsequent decision of the Re-employment Case Manager.
20The Appeals Resolution Officer held an oral hearing on November 20, 2012. The applicant and his representative appeared. The respondent had notice of the hearing but did not attend. (As noted above, due to the operation of the WSIB’s experience rating programs, after some period following an injury, an employer may no longer have a direct financial interest in the outcome of a worker’s objection to a decision of the WSIB.) The Appeals Resolution Officer heard oral evidence and submissions and issued a decision providing detailed reasons.
21For the purpose of the issues in this Interim Decision, I accept that the hearing and decision of the Appeals Resolution Officer was a proceeding for the purpose of section 45.1.
22The Re-employment Case Manager did not hold a hearing. However, it appears that she spoke to the applicant's representative and also to the respondent. Before doing that, she sent the parties a letter setting out the issues and the applicable policy of the WSIB. That letter included reference to the Code and the employer’s duty to accommodate a worker’s disability to the point of undue hardship. The Case Manager then received submissions from the parties and came to a decision.
23This sequence of events is a different sequence of events than was the case in Maxwell. In Maxwell, the adjudicator found that the events in that case were not a proceeding for the purpose of section 45.1 because there had been no process to address the issue of whether the employer had accommodated the applicant to the point of undue hardship and no decision was ever made on that issue.
24In the case before me, the Case Manager did make a finding after reviewing information from the workplace parties. She concluded that the employer had accommodated the applicant for approximately five years during which different jobs and tasks were bundled but that it was determined that there was no ongoing sustainable job that was suitable. The Case Manager then determined: “There is no evidence of suitable work being available in this employer’s workplace.” The Case Manager thus told the parties what the issues to be decided were and gave them each an opportunity to make submissions on those issues and then made an adjudicative decision.
25In my view, this sequence of events is indicative of a “proceeding” within the meaning of section 45.1. I note that in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), the decision of the B.C. Workers’ Compensation Board in question was a decision following a written process. As discussed in more detail below, in Figliola, the Court found that the written decision and the process leading to it was a “proceeding”.
Did the other proceeding appropriately deal with the substance of the Application?
26This question is guided by two decisions of the Supreme Court of Canada. The first of these is Figliola, and the second is Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”). This Tribunal has considered how these decisions impact the Tribunal’s interpretation of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”), and K.M. v. Kodama, 2014 HRTO 526.
27In Figliola, the central issue dealt with the interpretation of section 27(1) of the B.C. Code, the relevant part of which states:
27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;
28This language is similar to section 45.1 of the Ontario Code.
29In Figliola, the Court majority summarized the interpretation of section 27(1) in the following terms at paragraphs 36-38:
Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.
Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.
Penner
30Penner is a decision dealing with whether the fact that Mr. Penner had filed a complaint under the Police Services Act, which led to a hearing under that Act, precluded him from pursuing a civil action regarding the same facts and history that underlay the Police Services Act proceeding. In Penner, the Court discussed the application of the doctrine of issue estoppel. The Court majority held that the appellant Mr. Penner should be permitted to proceed with his civil action.
31The Court majority explained that the critical question is whether application of the doctrine of issue estoppel would result in unfairness. At paragraph 39, the Court majority stated:
Broadly speaking, the factors identified in the jurisprudence illustrate that unfairness may arise in two main ways which overlap and are not mutually exclusive. First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim.
32The Court majority concluded that unfairness would result in Mr. Penner’s case for a number of reasons including:
- Whether the systems in which the proceedings arise contemplate parallel proceedings;
- Whether the parties would reasonably expect that the earlier proceeding would preclude the later proceeding;
- Whether the applicant had a financial stake in the earlier proceeding;
- The purpose of the two proceedings;
- The independence of the decision maker in the earlier proceeding.
(see Claybourn, paragraph 62)
Analysis
33In my view, there are a number of reasons why it is not appropriate to apply the doctrine of issue estoppel in this case. These relate to questions of fairness and the purpose of the proceeding leading to the Claims Manager’s decision.
34The purpose of the Claims Manager’s decision was to determine if the respondent had co-operated in the work reintegration process. According to her decision, if she had found that the respondent had failed to co-operate, she would have then considered whether to levy a penalty against the respondent.
35It is important to note that the applicant had no financial stake in the outcome of the Claims Manager’s decision. The reason for this is that once the respondent stated it had no suitable work available, the applicant had a loss of earnings that resulted from the injury and was entitled to loss of earnings benefits as a result. The applicant was therefore already receiving financial compensation. He would not have received any additional benefits if the Claims Manager had decided that the respondent had failed to co-operate or levied a penalty.
36According to the evidence in Maxwell, (at paragraph 32) an injured worker in these circumstances would not be permitted to object or appeal a decision that his employer did not have suitable work. This does not seem consistent with the information in the letter from the Claims Manager in the instant case, which specifically invites the applicant to file an objection if he does not agree with the decision. However, as discussed above, whether or not the applicant had a right to appeal the decision, there was no practical reason to do so within the WSIB system as he would have derived no practical WSIB-related result or benefit if he had.
37In summary, in this case, while the decisions of the Appeals Resolution Officer and the Claims Manager in this case were “proceedings” for the purpose of section 45.1 of the Code, they did not appropriately deal with the substance of the Application and it would be unfair to apply the doctrine of issue estoppel so as to prevent the applicant from proceeding with the Application.
Timeliness of the Application
38The Application was filed within one year of the events in June 2013 and subsequently. The Application also includes allegations about events that occurred more than one year before the Application was filed. The applicant might nevertheless be permitted to bring those allegations as part of the Application if he can show that they were a “series of events” for the purpose of section 34(1)(b) or if there was a good faith explanation for the delay.
39Additional submissions and possibly evidence would be required to determine these questions.
40As both parties have consented to mediation, the Tribunal will proceed to set a date for mediation. The remaining timeliness issues or other matters may be addressed if necessary following mediation.
Dated at Toronto, this 15th day of October, 2014.
“Signed by”
__________________________________
Brian Cook Vice-chair