HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Miguel Zevallos Applicant
-and-
Sunnybrook Health Sciences Centre Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané Date: April 8, 2014 Citation: 2014 HRTO 489 Indexed as: Zevallos v. Sunnybrook Health Sciences Centre
WRITTEN SUBMISSIONS
Miguel Zevallos, Applicant Bruce Zevallos, Representative
Sunnybrook Health Sciences Centre, Respondent Marc Rodrigue, 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 respondent has filed a Response denying the allegations in the Application.
Background
2The applicant is employed with the respondent but has been absent from work since 2009. There is no dispute that the applicant is in receipt of long-term disability benefits from Desjardins Financial Services (“Desjardins”). Further, since some of the applicant’s medical restrictions are as a result of a workplace injury there have been some determinations from the Workplace Safety and Insurance Board. The respondent also asserts that the applicant is in receipt of CPP benefits because he is totally disabled from working. The applicant has not responded to this assertion.
3There are a number of outstanding requests for Orders filed by the parties. This Interim Decision addresses these Requests.
Request to dismiss pursuant to section 45.1
4The respondent submits that the Application should be dismissed pursuant to section 45.1 of the Code because the substance of the Application has been dealt with by Desjardins and various proceedings before the WSIB.
5The respondent submits that Desjardins has made a finding that the applicant is totally disabled from working in any occupation. Section 45.1 of the Code states:
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.
6In Bechard v. Ontario Lottery and Gaming Corporation, 2011 HRTO 1191, the Tribunal determined at paras. 6 and 7:
The insurance appeal process employed by the respondent’s disability management service provider was not a “proceeding” within the meaning of s. 45.1 of the Code. Rather, it appears to have been some kind of internal process established by the respondent and/or its disability management service provider to determine employee eligibility for certain benefits. It is not the sort of judicial or quasi-judicial proceeding characterized by guarantees of procedural fairness and adjudicator independence and impartiality which are the hallmarks of a “proceeding” within the meaning of s. 45.1 of the Code. The internal nature of the the insurance appeal process is illustrated by the fact that the applicant was notified of the decision that she was eligible for benefits during the period in question by a letter from the respondent’s Human Resources Coordinator.
At any rate, even if the insurance appeal process were a “proceeding” within the meaning of s. 45.1 of the Code (which it is not), in my view, it did not deal with the substance of the Application, which is whether the respondent employer infringed the applicant’s rights under the Code by refusing and/or failing to accommodate the applicant’s disability-related needs at the relevant time.
7I agree with the reasoning in Bechard. In this case, Desjardins made determinations pursuant to the terms of an insurance policy that the applicant is totally disabled from working in any occupation. Desjardin was not exercising any statutory authority conferred by statute and therefore there was no “proceeding” as contemplated by s. 45.1 of the Code. Therefore, the respondent’s request to dismiss the Application on the basis that Desjardins’ determinations appropriately dealt with the substance of the Application is dismissed.
8With respect to the Request to dismiss as it relates to the WSIB proceedings, it is apparent that there are facts involving the WSIB matters which overlap with the merits of the Application. Further, it appears that the WSIB may not have addressed the applicant’s non-work related medical restrictions. Having considered this Request to dismiss, I do not find that it would be an efficient use of the Tribunal’s resources to schedule a preliminary hearing to determine these issues as it may involve hearing evidence which may also go to the merits of the Application. The determination of whether the substance of the Application has been dealt with by the WSIB proceedings should be left to the adjudicator assigned to determine the Application on its merits
Request for Summary Hearing
9The respondent has made a Request that the Application be referred to a Summary Hearing because it has no reasonable prospect of success. Based on my review of the materials it appears that there are a number of factual issues in dispute which may require evidence. As such, the respondent’s Request for Summary Hearing is denied at this stage.
Requests for documents
10There is an outstanding Request by the applicant for the production of documents held in the respondent’s possession. However, the parties have not yet been obliged to exchange their arguably relevant documents. Therefore, I find that it is premature at this time to deal with this production issue.
Delay
11Having reviewed this matter it may be that the entire Application and/or some of the allegations in the Application have not been filed within the one year time-limit. Section 34 (1) and (2) of the Code read as follows:
(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.
12The applicant alleges a failure to return him to work and it appears that the applicant has not been at work since 2009. The parties should be prepared to address the issue of the timeliness of the Application and its allegations during the course of the hearing.
Abridgement of the time to exchange arguably relevant documents
13Having reviewed the matter, in order to ensure that the parties are ready for the hearing and that documents are exchanged in an efficient manner, I find it appropriate to abridge the time for the parties to exchange their arguably relevant documents. I will set out a time table below.
ORDER
14The Tribunal Orders:
a. The respondent’s Request to dismiss the Application pursuant to section 45.1 of the Code because Desjardins has appropriately dealt with the substance of the Application is denied;
b. The respondent’s Request for Summary Hearing is denied;
c. The applicant’s Request for production is dismissed as premature;
d. Within 28 days of the date of this Interim Decision the parties will exchange all documents required pursuant to Rule 16.1. The parties must not file these documents with the Tribunal but they must file a letter confirming that they have delivered these documents to the other party; and
e. The Tribunal shall schedule a two day hearing in Toronto.
15If any party determines that they require additional documents then they must promptly deliver and file a Form 10, Request seeking the production of the documents.
16I am not seized.
Dated at Toronto, this 8th day of April, 2014.
“Signed by”
Geneviève Debané
Vice-chair