Tingen v. 1243564 Ontario Limited, 2014 HRTO 345

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Tingen

Applicant

-and-

1243564 Ontario Limited o/a Total Scrap Management, and Henry Rivas

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: March 13, 2014

Citation: 2014 HRTO 345

Indexed as: Tingen v. 1243564 Ontario Limited

APPEARANCES

James Tingen, Applicant

Shawn Weston, Representative

1243564 Ontario Limited, o/a Total Scrap Management, Respondent

Kathleen Andrew, Counsel

Henry Rivas, Respondent

Crista Rea, Counsel

Introduction

1This is an Application filed under s. 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 Application was delivered to the corporate respondent and the personal respondent. Each respondent filed a separate Response.

2The Response from the corporate respondent asked that the Application be dismissed on the grounds that a proceeding at the Workplace Safety and Insurance Board (WSIB) had appropriately dealt with the substance of the Application.

3The applicant has filed a Request for Order During Proceedings asking that this Application be joined with another Application from another individual. That person is represented by the same paralegal as the applicant in the present case and the Application names the same respondents. The respondents oppose the request to join the two Applications.

4The applicant has subsequently filed another Request for Order During Proceedings asking to amend the monetary remedy the applicant is claiming by lowering the amount.

The Request to dismiss

5Section 45.1 of the Code reads as follows:

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.

6The applicant’s work-related injuries were reported to the WSIB which granted the applicant loss of earnings benefits from November 2, 2012 to February 4, 2013. The WSIB concluded that the disability related to the work-related injury had resolved by February 4, 2013 and that any ongoing disability was related to significant pre-existing, non-work-related conditions.

7The Application alleges that the respondents terminated the applicant’s employment because of his disability and that they were not prepared to accommodate his ongoing disability. The Application also alleges that the personal respondent harassed the applicant during the time he was off work. The respondents dispute these allegations.

8While there is clearly some overlap between the applicant's WSIB claim and the events giving rise to the Application, and while the decisions of the WSIB about the applicant claim for benefits are clearly relevant, it cannot be said that the decisions of the WSIB have appropriately dealt with the substance of the Application. The respondents request that the Application be dismissed under section 45.1 of the Code is denied.

Request that this Application be joined with another Application

9The request to join this Application with another Application appears to be premised on the fact that both applicants were employees of the respondent and both have filed Applications that have some similarity in terms of the allegations. In addition, both applicants are represented by the same paralegal.

10In my view these factors are not sufficient reasons to join the Applications. As noted by the respondents, when considering whether to amalgamate Applications, the Tribunal will typically consider whether amalgamation will be expeditious and fair to the parties. While some duplication of evidence will likely result if the two Applications are heard separately, the facts of each case are different. In each case, the evidence will focus primarily on the circumstances of the individual applicant. There are also different procedural issues in each case.

11While the Tribunal may assign one adjudicator to hear both Applications, they will be heard separately.

Request to amend the claim for damages

12The applicant’s request to change the remedy he seeks by lowering the amount of monetary compensation is not opposed by the respondents and this request is granted.

Decision

13The request to dismiss the Application under section 45.1 is denied.

14The request to join the Application with another Application is denied.

15The request to amend the Application is granted.