Chodha v. 1352866 Ontario Inc. o/a Times Kitchen and Bath, 2015 HRTO 1139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pardeep Chodha

Applicant

-and-

1352866 Ontario Inc. o/a Times Kitchen and Bath

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel
Date: August 27, 2015
Citation: 2015 HRTO 1139
Indexed as: Chodha v. 1352866 Ontario Inc. o/a Times Kitchen and Bath

WRITTEN SUBMISSIONS

Pardeep Kumar Chodha, Applicant

Self-represented

1352866 Ontario Inc. o/a Times Kitchen and Bath, Respondent

Diane Laranja, Counsel

Introduction

1This Interim Decision addresses the following requests filed by the parties: the respondent’s request for dismissal of the Application under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”); the applicant’s request to amend the remedy sought in his Application; the applicant’s request for an interim remedy and the respondent’s request for disclosure of documents.

2The Application alleges discrimination in employment on the basis of disability and reprisal contrary to the Code. The applicant alleges that the respondent terminated his employment because he applied for Workplace Safety and Insurance Board (“WSIB”) benefits. He also alleges that the respondent failed to provide reasonable accommodations for his disability.

3The Tribunal deferred consideration of the Application pending the conclusion of a claim the applicant had filed with the Ministry of Labour as well as the conclusion of an appeal he filed with the WSIB. By Interim Decision, 2015 HRTO 553, the Tribunal granted the applicant’s request to re-activate his deferred Application following the issuance of a decision by an Appeals Resolution Officer (“ARO”) in his WSIB appeal.

4The WSIB issued a number of decisions in relation to the applicant’s claim. In a decision dated August 20, 2014, a Reemployment Case Manager determined that the respondent breached its reemployment obligations under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”). Following this decision, the respondent agreed to rehire the applicant and the parties held a return to work meeting. In decisions issued in October 2014, a WSIB Case Manager concluded that the applicant was not entitled to loss of earnings (“LOE”) benefits beyond October 6, 2014 due to his unwillingness to return to work and the fact that a full recovery was anticipated by the WSIB by October 27, 2014.

5In a decision dated March 11, 2015, an ARO granted the applicant’s appeal in part and found that he was entitled to full LOE benefits until November 19, 2014. In his decision, he found that the job duties offered by the respondent were not suitable. Therefore, he found that the applicant was entitled to LOE benefits from the date these benefits had been terminated until the date the applicant fell and reinjured his back. He found the applicant had no entitlement beyond this date since there was no evidence that the applicant’s ongoing disability after that date was related to his compensable injury.

Respondent’s Request to dismiss

6The respondent has requested that the Tribunal dismiss this Application under s. 45.1 of the Code on the basis that the WSIB proceeding has appropriately dealt with the substance of the Application.

7Section 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.

8For the purposes of this decision, I assume that the WSIB ARO’s decision-making process is a “proceeding” within the meaning of s. 45.1. The issue arising from the respondent’s request is whether the WSIB proceeding appropriately dealt with the substance of this Application within the meaning of s. 45.1 of the Code.

9While the WSIB has concurrent jurisdiction to apply the Code, there is no indication in the ARO’s decision that he considered or applied the Code to the applicant’s case. Unlike the decision relied upon by the respondents (Barton v. Arnold & Simson Co., 2012 HRTO 621), there is no reference to any kind of Code analysis in the ARO’s decision. The decision is centered on the parties’ statutory obligations and entitlements under the WSIA. While there is some similarity between the legal issues arising under the WSIA and the Code, there are also differences between them. The issue under the WSIA is focused on the applicant’s entitlement to statutory loss of earnings benefits under the WSIA scheme. The Code is remedial legislation aimed at enforcing protections against discrimination and providing appropriate remedies where discrimination is established. Therefore, in my view, the legal issues dealt with by the WSIB and the Tribunal are similar but also distinct.

10Having said this, I accept that the WSIB’s decisions with respect to the applicant’s claim address many of the same factual issues raised by this Application. Indeed, it may be that some of the factual determinations of the Case Managers and/or ARO 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.

11Even where there is significant overlap in the factual and legal determinations of the two tribunals, it may still be unfair to dismiss a 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 Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”).

12This Tribunal has applied Penner to refuse to dismiss an Application where the other proceeding is one in which an applicant was unable to seek a remedy for the alleged violation of his or her 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.).

13I 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 WSIB’s determinations. In this case, there is no indication that the WSIB considered or applied the Code, nor did it set out to remedy any discrimination experienced by the applicant under the Code. 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 an applicant in the position he or she would have been had the (alleged) discrimination not taken place.

14Under the WSIA, the applicant was entitled to LOE benefits up to a certain date when his injury was no longer considered to be compensable. By contrast, this Tribunal is not limited to remedying losses arising from compensable work-related injuries. 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 the authority to enforce specific, and different, statutory entitlements. I note that the Tribunal recently has reached this same conclusion in Whetton v. Columbian Chemicals Canada Ltd., 2015 HRTO 1085.

15For all of the above reasons, the respondent’s request to dismiss the Application under s. 45.1 is denied.

Applicant’s Request to Amend Application

16By Request for Order During Proceedings (“RFOP”) filed June 16, 2015, the applicant sought to amend the remedy requested in his Application to add a request for lost wages.

17The respondent opposed this request.

18The applicant’s request is granted. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

19This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue at the hearing.

Applicant’s Request for an Interim Remedy

20By RFOP filed on August 12, 2015, the applicant requested that the Tribunal grant, as an interim remedy, compensation equal to his weekly earnings to be paid on a weekly basis. He claimed that this interim remedy was justified by the fact that he has no other source of income at the moment.

21Rule 23.2 of the Tribunal’s Rules of Procedure (“Rules”), relating to requests for interim remedies, states:

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

a. the Application appears to have merit;

b. the balance of harm or convenience favours granting the interim remedy requested; and,

c. it is just and appropriate in the circumstances to do so.

23.3 A Request for an Interim Remedy must include:

a. a detailed description of the order sought;

b. one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and

c. submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.

22In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that interim remedies are extraordinary remedies. They are only granted when the applicant is able to demonstrate that such a remedy is necessary to ensure a complete, appropriate, and effective remedy at the end of a hearing. The Tribunal also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code.

23The applicant’s request for an interim remedy was not supported by a signed declaration, as required by Rule 23.3(b) of the Tribunal’s Rules and on this basis alone must fail. In any event, I am not satisfied that the applicant has met the significant onus of establishing that his request meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code. While I can appreciate that the applicant may be experiencing financial difficulties, the remedy he is seeking as an interim remedy may be granted if the Tribunal finds a Code violation in his case. Therefore, I do not find that the interim remedy requested by the applicant is necessary to ensure a complete, appropriate, and effective remedy at the end of a hearing.

Respondent’s Disclosure Request

24The respondent requested that the applicant disclose any documentation that is arguably relevant to his Application, including documentation pertaining to his mitigation efforts and any income and/or benefits received after his employment with the respondent ended. I find that this request is premature. Rule 16 of the Tribunal’s Rules of Procedure provides for disclosure of arguably relevant documents after the Tribunal sends a Notice of Hearing. No such Notice of Hearing has yet been issued in this case. The Tribunal will not normally consider a request for disclosure or production of documents before the date for pre-hearing disclosure under Rule 16 has passed.

Applicant’s Filings with the Tribunal

25On several occasions, the applicant has filed documents and statements with the Tribunal. Some of these appear related to his RFOPs and others were filed separately. The applicant should take note that the Tribunal’s Rules set out a process for the pre-hearing disclosure of documents and witness statements (Rules 16 and 17). He must cease filing materials at this time and only file his pre-hearing materials in accordance with the timeframe and process set out in the Notice of Hearing that will be sent by the Tribunal in due course.

26The Tribunal’s Rules can be accessed online at http://www.sjto.gov.on.ca/hrto/rules-and-practice-directions/.

Order

27The Tribunal orders as follows:

a. The respondent’s request to dismiss the Application under s. 45.1 of the Code is denied.

b. The applicant’s request to amend his application to include a lost wages remedy is granted. The application is amended to include the remedial request contained in the applicant’s June 16, 2015 RFOP.

c. The applicant’s request for an interim remedy is denied.

d. The respondent’s request for the disclosure of documents is denied as premature.

28Since the applicant has not agreed to mediation, the Registrar will schedule a 2 day hearing of this matter and confirm the dates of the hearing with the parties by Notice of Hearing.