HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nigel Philomen
Applicant
-and-
Jessar Eglinton Limited dba Aaron’s Sales and Lease to Ownership
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Philomen v. Jessar Eglinton Limited dba Aaron’s Sales and Lease to Ownership
APPEARANCES
Nigel Philomen, Applicant
Self-represented
Jessar Eglinton Limited dba Aaron’s Sales and Lease to Ownership, Respondent
Mike Halberstadt, Representative
1This Application alleges discrimination with respect to employment because of disability and citizenship contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that his employment with the respondent was terminated because of a disability. He alleges that during his employment, the respondent made discriminatory comments about the applicant’s citizenship.
2In its Response to the Application, the respondent asked that the Application be dismissed under section 45.1 of the Code on the grounds that the Workplace Safety and Insurance Board and the Employment Standards Branch of the Ministry of Labour had appropriately dealt with the substance of the Application. That Request was denied in Interim Decision 2013 HRTO 1717.
3The Application was scheduled for a mediation session in January 2014 but the applicant did not attend. He later advised that he was required to leave Canada. He said that this was the reason that he was unable to attend the mediation.
4In April 2014, the respondent sent an email to advise that the corporate respondent “no longer exists as an operating entity.”
5The Tribunal scheduled a hearing for September 2, 2014. In May 2014, the applicant advised that he would not be able to attend the hearing because he was no longer living in Canada. He asked what other methods there might be for resolving the Application.
6In a Case Assessment Direction dated May 30, 2014, I directed that a telephone conference call hearing be scheduled to deal with the following issues:
Options to an in-person hearing.
Clarify the status of the respondent.
Clarify the status of proceedings at the WSIB and the Ministry of Labour and to hear submissions about whether those proceedings have appropriately dealt with the substance of the Application.
Explore the possibility of settlement.
7The telephone conference call hearing was held on August 18, 2014. The applicant appeared and Mike Halberstadt appeared on behalf of the respondent. Mr. Halberstadt is the owner of the company named as the respondent in the Application. Mr. Halberstadt said that although the company continues to exist, it is no longer in business and has no assets. No evidence was tendered with respect to these issues, or insolvency more generally.
8During the hearing, both parties advised that they wished the Tribunal to decide the Application on the basis of the documents filed with the Tribunal without a further hearing. I agreed to decide the Application on this basis. I noted that this would mean that the Application would be decided only on the basis of the documents as I would have no testimony from the parties about what happened and the impact, if any, of what happened.
9The applicant advised that he wanted to provide some further documents. I permitted the applicant to file additional post-hearing documents. The respondent was directed that it was not necessary to make any further submissions about the documents unless he was directed to do so.
10The applicant filed Canada Revenue Agency documents relating to tax credits in years prior to 2011. There were no submissions with respect to how these might be relevant to the Application and I find they are not.
BACKGROUND FACTS
11The facts set out below are derived from the Application, Response and Reply and from the additional documents filed by the parties.
12The applicant reported to the Workplace Safety and Insurance Board (WSIB) that he had suffered a work-related low back injury in the course of his employment with the respondent on March 18, 2013. He reported that he was given modified work but suffered a further work-related injury on March 22, 2013. He sought medical attention on March 25, 2013 and remained off work after that date.
13In a decision dated April 5, 2013, a WSIB Claims Manager determined that the applicant had suffered a work-related injury and that he was entitled to loss of earnings benefits for his lost time from work.
14On April 18, 2013, a WSIB Return To Work Specialist met with the workplace parties. A return to work plan was developed. For a period of about one month, starting on April 29, 2013 the applicant was to work at modified duties