McCulloch v. Tim Hortons Inc., 2015 HRTO 288

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joe McCulloch

Applicant

-and-

Tim Hortons Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 10, 2015

Citation: 2015 HRTO 288

Indexed as: McCulloch v. Tim Hortons Inc.

WRITTEN SUBMISSIONS

Joe McCulloch, Applicant

Zahra Binbrek, Counsel

Tim Hortons Inc., Applicant

James Heeney, Counsel

1This Interim Decision addresses the respondent’s Request for Order During Proceedings (“Request”) seeking dismissal of the Application under s. 45.1 of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

Factual Background

2In his Application, the applicant alleges that the respondent discriminated against him because of disability contrary to the Code. Specifically, the applicant alleges that the respondent discriminated against him by failing to accommodate him, harassing him because of disability and terminating his employment.

3The applicant sustained a work-related “upper back injury” for which he received limited loss of earnings benefits through the Workplace Safety and Insurance Board (“WSIB”). The respondent provided the applicant with temporary modified duties until he went on a short term disability leave for reasons unrelated to his workplace injury. When the applicant returned to work, he advised the respondent that he had permanent restrictions for his back and neck and would require modified duties on a permanent basis. The respondent ultimately determined that it could not accommodate the applicant’s permanent restrictions and terminated his employment due to frustration of contract.

RESPONDENT’S REQUEST TO DISMISS

4The respondent requests that the Tribunal dismiss the Application under s. 45. 1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application. The respondent submits that the facts of the Application were part of a proceeding under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (“WSIA”). According to the respondent, a decision of a Case Manager from the WSIB’s re-employment Team has appropriately dealt with the substance of the Application.

5The applicant opposes the respondent’s Request on the basis that the WSIB Case Manager’s decision was not a proceeding within the meaning of s. 45.1 of the Code and that it did not deal with the substance of the Application.

Decision

6Section 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.

7Whether or not the process followed by the Case Manager amounted to a “proceeding” within the meaning of s. 45.1, I find that the Case Manager’s decision did not appropriately deal with the substance of the Application.

8The decision makes clear that the issue before the Case Manager was whether the respondent had breached its re-employment obligations under the WSIA. Specifically, the Case Manager had to determine “whether or not the worker’s accepted injury or claim for benefits was a factor that contributed to the employer’s decision to terminate that worker”. [emphasis added]

9It is clear from the Decision that the Case Manager dealt only with the injury that gave rise to the applicant’s WSIB claim, that is his temporary “upper back injury” that the WSIB considered resolved before the date of the applicant’s termination. It is clear from the decision that the WSIB Case Manager did not deal with the central accommodation issue in the Application: that is, whether the respondent breached the Code when it failed to provide accommodations for the applicant’s permanent back and neck restrictions and terminated his employment for frustration of contract due to these permanent restrictions.

10The fact that the WSIB Case Manager did not deal with the applicant’s permanent neck and back restrictions is evident from the following passage from the decision:

In reviewing the re-employment obligation in Mr. McCulloch’s case, I must be cognizant of the accepted entitlement in his claim. Mr. McCulloch’s case was accepted for health care and limited loss of earnings (LOE) benefits for upper back injury only. The case manager confirmed that Mr. McCulloch has recovered from his work injury as of August 1, 2013 with no ongoing compensable impairments or restrictions. [emphasis added]

11The Case Manager notes in his Decision that the respondent did not have any obligation under the WSIA or WSIB Policy to accommodate any restrictions that are unrelated to the applicant’s accepted work-related injury. He stated:

The Employer did not provide any offers of suitable alternative work of permanent accommodated duties to accommodate Mr. McCulloch (sic) permanent restrictions. However, noting that Mr. McCulloch is considered fully recovered from his work injury and fit for his pre-injury job duties, the employer has no obligation under WSIB policy or legislation to offer Mr. McCulloch alternate suitable work or accommodated duties. [emphasis added]

12The issue of whether the respondent breached the Code by failing to accommodate the applicant’s permanent restrictions is one of the central issues raised in his Application. The issue was not addressed by the Case Manager as he found that these restrictions were distinct from the applicant’s compensable injuries and therefore not covered under WSIB policy or legislation.

13As a final point, I note that the Application also raises other issues that are not dealt with by the Case Manager’s decision: that is, whether the respondent harassed the applicant on the basis of disability and whether the termination of the applicant’s employment was discriminatory because it followed the applicant’s return from a short term disability leave.

ORDER

14For the reasons set out above, the respondent’s Request to dismiss is denied. Since both parties have agreed to mediation, the Registrar will schedule a mediation in this file.