Whetton v. Columbian Chemicals Canada Ltd., 2015 HRTO 1085

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Whetton Applicant

-and-

Columbian Chemicals Canada Ltd. Respondent

-and-

Teamsters Local Union No. 879 Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend Date: August 14, 2015 Citation: 2015 HRTO 1085 Indexed as: Whetton v. Columbian Chemicals Canada Ltd.

WRITTEN SUBMISSIONS

Brian Whetton, Applicant Roxanne Bond, Representative

Columbian Chemicals Canada Ltd., Respondent Jerry Sauer, Representative

Introduction

1This Application alleges discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant alleges that the respondent refused to allow him to return to work after an absence for a Workplace Safety Insurance Board (“WSIB”) injury, despite the fact that he received medical clearance. The respondent appears to take issue with this medical clearance.

2In any event, as a preliminary matter, his employer argues that this Application should be dismissed under s. 45.1 of the Code. It raised this request in its Response (Form 2), and the applicant, as directed, addressed it in his Reply.

Decision and analysis

3The respondent asks that the Tribunal to dismiss this Application under s. 45.1 of the Code, on the basis that the WSIB has already dealt with the substance of the Application when it determined the respondent failed to meet its reemployment obligations. 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.

4This Tribunal has interpreted the term “proceeding” broadly to encompass many administrative and judicial determinations. In the instant case, the WSIB was called upon to do an investigation and render a decision on whether the respondent breached its reemployment obligations to the applicant. This decision was issued by a Re-Employment Case Manager and was apparently not appealed.

5Assuming, without deciding, that the decision-making process in question was a proceeding, as that term is used in s. 45.1, did it appropriately deal with the substance of this Application?

6There may be subtle differences between an employer’s obligation to re-employ an injured worker and its obligation to not discriminate against a worker because of disability (whether or not work-related), but it would appear in this case that the Case Manager’s determination addresses many of the same factual issues raised by this Application.

7Indeed, it may be that some of the factual determinations of the Case Manager – in particular, whether the applicant was medically capable of returning to work – could be applied by the Tribunal in adjudicating the case at hand. However, I leave the extent to which the WSIB’s findings ought to be applied, to be determined by the adjudicator hearing this case on its merits.

8Even where there is significant overlap in the factual determinations of the two tribunals, it may still be unfair to dismiss the subsequent application. The Supreme Court of Canada has held that, while finality in litigation is important, adjudicators have the discretion to refuse to dismiss a proceeding, where to do so would be unfair to the claimant. See British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”).

9This Tribunal has applied Penner to a refuse to dismiss an Application where the other proceeding is one in which the applicant was unable to seek a remedy for the alleged violation of his human rights. See Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”) and K.M. v Kodama, 2014 HRTO 526, both upheld on review by Ontario (Correctional Services and Community Safety v. De Lottinville, 2015 ONSC 3085 (Div. Ct.).

10I find that it would be unfair to the applicant in this case to prevent him from pursuing his human rights claim against the respondent based on the Case Manager’s determination. The Code is a remedial statute, and case law developed under it suggests that the purpose of the remedial provisions are, as much as possible, to put the applicant in the position he would have been had the (alleged) discrimination not taken place.

11The Case Manager levied a penalty against the respondent (payable to the WSIB itself) and determined that the applicant was entitled to re-employment payments from the WSIB for a maximum period of one year, dating from when the refusal to re-employ was deemed to have taken place (in this case, March 4, 2014). These re-employment payments are 85 percent of the applicant’s net average earnings for the year before the injury.

12This Tribunal, in contrast, is not limited to remedying discrimination by providing compensation for lost wages for a maximum of one year, nor is it limited to ordering 85 percent of the applicant’s net earnings. Moreover, in the event that is finds discrimination, the Tribunal has remedial authority to award other forms of compensation, both monetary and non-monetary to the applicant. It would be unfair to the applicant to deprive him of potential remedies against the party that allegedly infringed his rights under the Code simply because he participated in another proceeding with more limited remedial authority.

order

13For all of the above reasons, the respondent’s request to dismiss the Application under s. 45.1 is denied. Since both parties have agreed to mediation, the Registrar will schedule mediation in this file.