Human Rights Tribunal of Ontario
B E T W E E N:
Fred Barbosa Applicant
-and-
Accurcast Inc. Respondent
-and-
Unifor, Local 1941 Intervenor
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Barbosa v. Accurcast Inc.
APPEARANCES
Fred Barbosa, Applicant
Peter Mancini, Paralegal
Accurcast Inc., Respondent
Mark Geiger, Counsel
Unifor, Local 1941, Intervenor
Brian Ashton, Counsel
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant suffered work-related injuries in 2010 for which he received benefits from the Workplace Safety and Insurance Board (WSIB). In 2013, the WSIB determined that the applicant was entitled to a labour market re-entry plan because there was no suitable work available with the respondent. There were two meetings with WSIB employees and the workplace parties where the question of whether there was suitable work was discussed. These occurred on February 4, 2013 and April 11, 2013.
3On April 10, 2014, the applicant filed this Application, alleging that he could have returned to work with the respondent if it had provided appropriate accommodation.
4The respondent asserts that the Application should be dismissed on two grounds. First, the respondent submits that the Application was not filed within one year of the alleged discrimination. Second, the respondent submits that the WSIB has appropriately dealt with the substance of the Application.
5A preliminary hearing by telephone conference call was held on April 17, 2015 to deal with these issues. The applicant was represented by Peter Mancini, a para-legal. The applicant was not present. The respondent was represented by Mark Geiger, counsel. The respondent’s Operation Manager was present. Also present was Julie Buliga, from the respondent’s human resources department. As discussed below, Ms. Buliga testified at the hearing.
The timeliness issue
6Section 34 of the Code provides as follows:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
7The timeliness issue turns on an interpretation of the purpose of the two meetings in 2013. The respondent submits that the determination that there was no suitable work available was made at the February 4, 2013 meeting and that the April 11, 2013 meeting only re-stated a determination already made. The Application was filed on April 10, 2014. If the last incident of alleged discrimination was February 4, 2013, the Application was not filed within one year but it was if the last incident of discrimination was April 11, 2013.
Section 45.1
8Section 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.
9The respondent submits that the February 4, 2013 meeting appropriately dealt with the substance of the Application because, according to a memo prepared by the WSIB Return To Work Specialist after the meeting, at the meeting the applicant agreed that there was no suitable work available.