Mainella v. Simcoe (County), 2014 HRTO 1751

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Mainella

Applicant

-and-

The Corporation of the County of Simcoe

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: December 4, 2014 Citation: 2014 HRTO 1751 Indexed as: Mainella v. Simcoe (County)

INTRODUCTION

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 11, 2013, and alleges discrimination with respect to employment on the basis of disability and sex, and reprisal.

2In his Application, the applicant alleges that he developed a disability for which workplace issues were both precipitating and perpetuating factors, according to his physician. He required a resolution of these workplace issues, but the respondent refused to offer accommodation, and ultimately terminated his employment.

3A hearing in this matter is scheduled for January 13 and 14, 2015. This Interim Decision addresses the applicant’s Request for an Order During Proceedings (“RFOP”), filed November 12, 2014, to bifurcate the proceedings as between the issues of liability and remedy.

The applicant’s allegations

4More particularly, the applicant’s allegations include that the respondent: treated him in a harassing manner which precipitated the onset of a disability, and resulted in a lengthy leave of absence from the workplace; failed to offer any form of accommodation to ameliorate his workplace circumstances, and to avoid an exacerbation of his disability; ignored evidence that he was medically incapable of returning to the workplace, which it either had in its possession, or was aware that its insurer had; and, terminated his employment after he was unable to comply with an exceedingly and unnecessarily short timeline to provide medical evidence of his ongoing disability, and despite its awareness that he continued to be disabled.

5The applicant alleges that the discrimination he faced resulted in serious financial, social, emotional, and psychological repercussions.

THE RFOP TO BIFURCATE

6In his RFOP filed November 12, 2014, the applicant submits that the primary issue in this matter revolves around his termination from employment during his medical leave of absence from work, and the respondent’s decision to post his position prior to his termination. The applicant submits that, to the extent any medical evidence is necessary, it is only for the purpose of establishing that he suffered from a disability at the time his employment was terminated. The applicant submits, therefore, that it is unnecessary for him to call medical evidence to establish anything more than that. He submits that, to the extent his termination was a violation of the Code, liability will be found separate and apart from the details of his disability.

7The applicant also submits that the dominant purpose of the request to bifurcate is to ultimately shorten the proceedings by avoiding the review of lengthy and complex medical evidence about him through testimony from his physician(s). The applicant submits that, to the extent this evidence is necessary, it primarily goes to the issue of damages, since liability can be determined almost entirely on the face of the record, subject to introducing the documents provided to the Tribunal through an appropriate witness.

THE RESPONDENT’S POSITION

8In its Response to the RFOP, filed November 26, 2014, the respondent opposes the applicant’s request to bifurcate the proceedings. The respondent disagrees with the applicant’s assertion that, to the extent any medical evidence is necessary, it is only for the purpose of establishing that the applicant suffered from a disability at the time of his termination.

9The respondent submits that the primary issue in dispute is whether the applicant’s absence from work was medically supported, and that the applicant failed to provide sufficient medical support for his absence, throughout his absence. The respondent also disputes that, if the applicant did require a leave of absence for medical reasons, those reasons were occasioned by any harassment in the workplace.

10With respect to the issue of accommodation, the respondent submits that various accommodation options were offered to the applicant, but they were all immediately refused with no explanation. The respondent submits that the nature, extent, timing, cause, and resulting limitations of any alleged disability are directly relevant to the issue of whether the applicant refused reasonable accommodation.

ANALYSIS AND DECISION

11Pursuant to Rule 1.7(g) of the Tribunal’s Rules of Procedure, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined. While the Tribunal’s general practice is to hear all of the evidence concerning liability and remedy at the same time, the Tribunal may bifurcate hearings in appropriate cases. See Lockley v. Hamilton Police Services Board, 2011 HRTO 286 at para. 4.

12In the present case, the applicant alleges that he was treated in a harassing manner in the workplace which precipitated the onset of a disability, resulting in a lengthy leave of absence. He also alleges that the respondent failed to offer any form of accommodation to ameliorate his workplace circumstances, and to avoid an exacerbation of his disability. The respondent disputes these allegations.

13The applicant also alleges that the respondent ignored evidence that he was medically incapable of returning to the workplace, and terminated his employment, despite its awareness that he continued to be disabled. The respondent, on the other hand, submits that the applicant failed to provide sufficient medical support for his absence from the workplace.

14The applicant also alleges that the respondent’s treatment of him, and its failure to take any substantive steps to rectify it, has resulted in a very serious medical condition for him. The applicant submits that the respondent was in a position to minimize the damage to his well-being, but instead exacerbated it. The applicant submits that he wants to work and return to being a productive member of society, but that he is unable to do so, specifically because of the respondent’s treatment of him, in violation of the Code. He seeks monetary compensation for injury to dignity, feelings and self-respect, and lost wages.

15Having reviewed the Application and the parties’ submissions, I find that bifurcation in the present case would not be appropriate. It appears likely that there will be an overlap of evidence concerning the issues of liability and remedy, and that bifurcation, therefore, may not be the most fair and efficient way to proceed. Based on the information before me at this point in time, the request to bifurcate the proceedings is denied.