HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jerry Zahorodni Applicant
-and-
Greentec International Inc. Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Zahorodni v. Greentec International Inc.
WRITTEN SUBMISSIONS
Jerry Zahorodni, Applicant Beth Walden, Counsel
Greentec International Inc., Respondent Angeline Douglas, Representative
Introduction
1This Interim Decision concerns the respondent’s request that the Application be dismissed or deferred because of ongoing adjudication at the Workplace Safety and Insurance Board (WSIB).
2The applicant experienced a work-related stomach injury in March 2012. The WSIB determined that the work-related accident aggravated a pre-existing, non-work-related condition. Loss of earnings benefits were paid for various periods but not for others. The respondent terminated the applicant’s employment on August 31, 2012. The WSIB determined that the termination of the applicant’s employment was not related to his work-related injury and also that he had fully recovered from the effects of the work-related injury and that he was accordingly not entitled to any benefits subsequent to the termination of his employment.
3The applicant has confirmed that he has filed an objection with the WSIB Appeals Branch concerning decisions of the Board about his entitlement to benefits for periods during his employment and about his entitlement to benefits after the end of his employment.
Should the Application be dismissed?
4Section 45.1 of the Code provides:
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.
5In the Application, the applicant alleges that the respondent failed to appropriately accommodate his disability in the period of his employment and that the termination of his employment was related to his disability.
6It is clear that there is some overlap between the issues that have been adjudicated by the WSIB and the issues in the Application. However, it is important to note that the WSIB has determined that the applicant had a serious pre-existing condition and that any on-going disability that the applicant has is the result of that pre-existing condition, and not the result of the work-related injury. Once the WSIB has determined that a worker has no on-going work-related disability, it does not consider whether the employer has appropriately accommodated any non-work-related disability.
7It is possible that the WSIB has considered whether the respondent appropriately accommodated the applicant with respect to discrete periods. How those decisions, and any benefits the applicant received from the WSIB might affect the adjudication of the Application at this Tribunal can be dealt with at a hearing.
8At this stage in the processing of the Application, I am satisfied that it is not appropriate to dismiss the Application under section 45.1
Should the Application be deferred?
9The applicant has confirmed that he has filed an objection with the WSIB Appeals Branch. However, he has apparently not yet taken the next step to pursue the objection. It is not clear that there is any ongoing adjudication underway at this time at the WSIB. Even if the applicant were to take the next step in the WSIB appeals process, it would likely be some time before any new decision was reached. In my view, there is no reason to defer further consideration of the Application at this time.
10The applicant is directed to keep the Tribunal and the respondent advised of any further developments in regard to his objections, including whether any new decision is reached or if a date for a hearing before an Appeals Resolution Officer is scheduled.
11In the meantime, both parties have consented to try mediation at this Tribunal. The Registrar will proceed to schedule a mediation session.
Dated at Toronto, this 25th day of April, 2014.
“Signed by”
Brian Cook Vice-chair