Da Silva v. Scotlynn Investments Inc., 2016 HRTO 1037

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Da Silva

Applicant

-and-

Scotlynn Investments Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 4, 2016

Citation: 2016 HRTO 1037

Indexed as: Da Silva v. Scotlynn Investments Inc.

WRITTEN SUBMISSIONS

Jose Da Silva, Applicant

Carmen Lucente, Representative

Scotlynn Investments Inc., Respondent

Paul Hosack, Counsel

1This Interim Decision addresses the respondent’s request that the Tribunal dismiss the Application under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on the basis that another proceeding has appropriately dealt with the substance of the Application.

2In his Application, the applicant alleged that the respondent discriminated against him because of disability contrary to the Code. The applicant injured his shoulder at work. After his injury, he began receiving benefits from the Workplace Safety and Insurance Board (“WSIB”). It appears that the applicant was placed in a WSIB work transition plan due to the respondent’s assertion that it could not provide him work that would accommodate his shoulder injury. The WSIB closed the applicant’s work transition plan in March 2015. In his Application, the applicant claimed that the respondent failed to meet its duty to accommodate his disability and terminated his employment because of his disability.

3The applicant noted in his Application that the facts of his Application also formed part of two other proceedings: (1) a claim made under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) and (2) a complaint made to the Canadian Human Rights Commission.

4The Tribunal issued a Notice of Intent to Defer the Application pending the conclusion of these two other proceedings. The applicant supported the deferral and the respondent did not object to it. Therefore, the Tribunal deferred consideration of the Application pending the conclusion of the two proceedings referred to above.

5On November 10, 2015, the applicant request the re-activation of his Application, as both proceedings were complete. An Employment Standards Officer issued a decision finding the respondent in contravention of the ESA for failing to pay the applicant termination and severance pay. As well, a representative of the CHRC advised the applicant that his complaint appeared to fall under provincial jurisdiction.

6The Tribunal re-activated the Application and scheduled a mediation. In the Notice of Mediation, the Tribunal advised the parties that the respondent’s request to dismiss the Application would be considered if the mediation was unsuccessful.

7The parties did not succeed in resolving their dispute in mediation.

Respondent’s request to dismiss

8In its Response, the respondent submitted that the Application should be dismissed under s. 45.1 of the Code on the basis of the WSIB’s closure of the applicant’s Work Transition Plan and also on the basis of the Employment Standards Officer’s decision.

9The applicant opposed the respondent’s request on the basis that the substance of the Application has not been addressed in either proceeding.

10Section 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.

11In order for s. 45.1 to apply, there must have been a “proceeding” that is alleged to have appropriately dealt with the substance of the Application. The Tribunal has held that a proceeding implies that a neutral third person has applied an objective legal standard to a certain set of facts and reached a conclusion. See Maxwell v. Cooper-Standard Automotive Canada Limited, 2013 HRTO 1482 at paras. 37-38.

Closure of work transition plan by WSIB

12In my view, the decision by the WSIB work transition specialist to close the applicant’s work transition plan is not a proceeding within the meaning of s. 45.1. According the WSIB’s letter, the work transition plan was closed when the applicant indicated he did not wish to participate in the plan until he had surgery. There is no indication that the WSIB work transition specialist applied any kind of objective legal standards or reached a legal conclusion. Therefore, I do not find that the WSIB’s closure of the work transition plan in these circumstances is a proceeding within the meaning of s. 45.1. Even if it were a proceeding, the WSIB letter does not deal with the substance of the Application which is the applicant’s allegation that the respondent failed to accommodate his disability and terminated him due to his disability.

[ESA](https://www.canlii.org/en/on/laws/stat/so-2000-c-41/latest/so-2000-c-41.html) claim

13I find that the Employment Standards Officer’s decision also did not deal with the substance of the Application. The decision deals only with the applicant’s claim to termination and severance pay as well as his claim to overtime pay. These issues are distinct from the discrimination claims made in the Application.

order

14For the reasons set out above, the respondent’s request to dismiss the Application is denied.

15The Tribunal will proceed with scheduling a hearing of the Application.

16I am not seized of this matter.