Helfrich v. Wal-Mart Canada Corporation, 2014 HRTO 1612

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samantha Helfrich

Applicant

-and-

Wal-Mart Canada Corporation

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: October 31, 2014

Citation: 2014 HRTO 1612

Indexed as: Helfrich v. Wal-Mart Canada Corporation

WRITTEN SUBMISSIONS

Samantha Helfrich, Applicant

Self-represented

Wal-Mart Canada Corporation, Respondent

Andrew Ashenhurst, Counsel

1This Interim Decision explains why the Tribunal is refusing the respondent’s request to dismiss parts of this Application.

2The applicant is an employee at one of the respondent’s stores. Her 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”). Reprisal is also alleged. She maintains that the respondent has failed to accommodate two disabilities. One disability causes her to be late to work. The other disability is carpel tunnel syndrome and relates to her ability to handle the equipment she requires as a cake decorator at the store.

3The applicant filed a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 in relation to the second disability. The Workplace Safety and Insurance Board (“WSIB”) adjudicated the claim at the first level of its process and denied the claim on the ground that it was not satisfied that the carpel tunnel syndrome arose in the course of employment. The applicant has sought a review of that decision. There is a second WSIB claim pending in relation to this disability.

4The respondent requests dismissal of the Application in part, on the ground that the WSIB decision has appropriately dealt with the substance of the allegation of discrimination on the basis of disability arising from carpel tunnel syndrome.

5In s. 45.1 the Code provides that 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.”

6Leaving aside the question of whether a first level decision of the WSIB constitutes a “proceeding” within the meaning of s.45.1, I am of the view that the WSIB decision has not appropriately dealt with the substance of the applicant’s allegation that this disability was not accommodated by the respondent.

7The WSIB decision is a decision about causality. It determines that the carpel tunnel syndrome did not arise out of the applicant’s employment. That is why WSIB benefits were denied. The Tribunal is not concerned with causality in disability cases. It does not matter whether the carpel tunnel syndrome arose out of the applicant’s employment or not. What matters is whether the disability was accommodated to the point of undue hardship or not. The WSIB decision does not address this issue and that is why the respondent’s request to dismiss this allegation is denied.

8The respondent has also requested that the applicant’s reprisal allegation be dismissed because it is an allegation about reprisal for the applicant having filed a WSIB claim, something the Tribunal has no jurisdiction to consider. It is not clear to me from reading the Application that the Tribunal has no jurisdiction to consider the reprisal allegation, because it is not clear to me what constitutes the alleged reprisal in this Application. At various points in the narrative the applicant appears to allege that retaliatory actions were taken in relation to her because she sought accommodation, at another point she claims it was because she assisted another employee in relation to a dispute that employee may have had with the respondent or in relation to benefits claimed by that employee.

9With respect to reprisal, the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, “Reprisal under the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. In order to meet the definition of reprisal under the Code, the alleged retaliation can be because a person asserted their own rights under the Code or because they assisted someone else in doing so.

10The applicant is directed to provide details of the alleged reprisal to the respondent and the Tribunal. She is to set out in writing what happened, when it happened, who was involved and how she believes those facts constitute reprisal. She must provide this information within 14 days of the date of this Interim Decision.

order

11The request to dismiss the Application in part is denied.

12Within 14 days of the date of this Interim Decision the applicant is to provide details of the alleged reprisal to the respondent and the Tribunal.