Hanna v. AIM CCF Hamilton Inc., 2015 HRTO 1236

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sargon Hanna

Applicant

-and-

AIM CCF Hamilton Inc., a division of AIM Environmental Group; AIM Environmental Group, a division of Maple Reinders Groups Ltd; and Maple Reinder Group Ltd.

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: September 17, 2015

Citation: 2015 HRTO 1236

Indexed as: Hanna v. AIM CCF Hamilton Inc.

WRITTEN SUBMISSIONS

Sargon Hanna, Applicant

Self-represented

AIM CCF Hamilton Inc., a division of AIM Environmental Group, AIM Environmental Group, a division of Maple Reinders Groups Ltd, and Maple Reinder Group Ltd., Respondents

Leslie A. Brown, Counsel

Introduction

1This Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability, place of origin, and ethnic origin.

2The purpose of this Interim Decision is to address the respondents’ request to dismiss the Application pursuant to s. 45.1 of the Code as a result of proceedings before the Workplace Safety and Insurance Board (“WSIB”) and the applicant’s suggestion that the Application be deferred pending the conclusion of a WSIB proceeding.

REQUEST TO DISMISS PURSUANT TO S. 45.1 OF THE CODE

3Section 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.

4Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.

5The applicant alleges that he experienced discrimination when the respondents failed to accommodate him back into an employment position that met his disability-related needs and harassed him about his disability.

6The applicant has received letters from Case Managers of the Workplace Safety and Insurance Board in which he has been denied entitlement to loss of earnings benefits on two occasions.

7The respondents take the position that the decisions of the WSIB should be considered to be a proceedings that have appropriately dealt with the substance of the Application for the purposes of section 45.1.

8The applicant submits that the case manager’s decision is not a proceeding. The decisions are based on conversations with the applicant and a review of the file and the decision letter represents a decision of front line staff of the WSIB.

9In addition, the applicant submits that the case manager’s decision did not appropriately deal with the substance of the Application. The issues raised in the Application are whether the respondents accommodated his disability related needs and allegations the respondents subjected the applicant to comments and conduct that amount to discrimination and harassment. The issues at the WSIB are whether the applicant is entitled to loss of earnings benefits.

Analysis

10The case managers’ decisions are limited to determinations of whether the applicant was eligible for benefits available under the Workplace Safety and Insurance Act and in order to be eligible for such benefits a connection to a workplace injury must be found. For example, the applicant was found to be fit for suitable work and therefore ineligible for loss of earnings benefits. In the second case manager’s decision it was determined that the applicant’s non-economic loss award could not be changed because, although he had worsening of his disc desiccation, this condition is not considered to be the result of a workplace injury.

11The duty to accommodate under the Code obligates the respondents with respect to all the applicant’s alleged disabilities and is not limited to disabilities that arise from a workplace injury. As is noted in the case manager’s decision, the applicant may have other non-workplace related injuries that the respondents may have failed to accommodate.

12I find that the case managers’ decisions cannot be found to have appropriately dealt with the full substance of the Application and therefore, it would be inappropriate to dismiss the Application pursuant to s.45.1 of the Code.

13It may be that some of the factual determinations of the WSIB may impact the issues in dispute in a hearing of this case, however I leave those determinations for the hearing adjudicator after the parties have completed their productions and identified more precisely the evidence the parties propose to bring to the hearing.

REQUEST TO DEFER PURSUANT TO S. 45 OF THE CODE

14Given the reasons outlined above, I also find that it is not appropriate to defer this Application pending the outcome of the WSIB proceeding.

ORDER

15The respondents’ Request that the Application be dismissed pursuant to s.45.1 of the Code is denied.

16The Request that the Application be deferred is denied.