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
DECISION
Adjudicator: Brian Cook Date: September 23, 2016 Citation: 2016 HRTO 1241 Indexed as: Chodha v. 1352866 Ontario Inc. o/a Times Kitchen and Bath
APPEARANCES
Pardeep Chodha, Applicant Self-represented
1352866 Ontario Inc. o/a Times Kitchen and Bath, Respondent Diane Laranja, 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”). The Application was heard on March 21, April 20 and July 14, 2016. I heard evidence from the applicant and Jose De Sa, who is the owner and the president of the respondent’s company. The applicant and the respondent’s counsel made submissions.
Background
2The respondent is a company that produces kitchen cabinetry. The applicant was hired as an assembler on April 21, 2014.
3On June 2, 2014, the applicant was working with a co-worker moving a heavy piece of cabinetry. He states that he experienced an onset of back pain. He left the workplace. He returned on June 4, 2014 with a note from his family doctor. There is a significant issue about the date of the note, which is discussed below.
4On July 3, 2014, the Workplace Safety and Insurance Board (WSIB) determined that the applicant had sustained a work-related injury on June 2, 2014 and that he was unable to perform his job duties as a result. He was granted loss of earnings benefits.
5The applicant’s employment was terminated by the respondent on or about June 26, 2014. This was three weeks after the applicant returned to work with the doctor’s note, and before the WSIB determined that the applicant had suffered a work-related injury. The respondent maintains that the termination was because Mr. De Sa felt that the applicant was being dishonest when he provided a note dated in February in regard to an alleged work accident in June. The applicant maintains that the termination was because he had been injured on the job and had reported the injury to the WSIB. The applicant further alleges that the respondent altered the date on the doctor’s note to provide a pretext for termination of the applicant’s employment.
6On August 20, 2014, a WSIB Re-employment Claims Manager issued a decision. The Claims Manager determined that the respondent had terminated the applicant's employment “because of his injury and claim for benefits” and that in so doing, breached its re-employment obligations under the Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended (“WSIA”). The Claims Manager determined that a penalty of approximately $73,000 would be levied unless the employer agreed to co-operate in the return to work process and offered to re-employ the applicant.
7The respondent advised that it was prepared to offer to re-employ the applicant. A WSIB Return to Work Specialist convened a meeting at the workplace on October 3, 2014. According to the Specialist’s memo, a return to work plan was developed that featured a return to modified work duties with assistance from a helper and reduced hours to facilitate the applicant's medical treatment.
8Sometime after this meeting, the applicant determined that he did not want to return to work with the respondent because of the way he had been treated. The WSIB initially determined that the applicant was not entitled to further loss of earnings because he had refused suitable work that was available at no loss of earnings.
9The applicant objected to that decision, and the matter came before a WSIB Appeals Resolution Officer, who issued a decision dated March 11, 2015, which found that the work that was available with the respondent was not suitable for the applicant. The Appeals Resolution Officer determined that the applicant was entitled to loss of earnings up to November 19, 2014. On that date, the applicant slipped on ice and experienced an exacerbation of his injuries. This was a non-work-related injury and the Appeals Resolution Officer found that it was a non-compensable intervening event and that at the time the applicant had almost fully recovered from the June 2, 2014 injury and was not entitled to benefits beyond November 19, 2014 on that basis.
10As a result of the various decisions of the WSIB, the applicant received full loss of earnings from the date of the injury on June 2, 2014, to November 19, 2014. After that, the applicant applied for employment insurance benefits. He received sick benefits for three months and then received regular benefits. Those expired in about August 2015, and the applicant found a new job shortly after that where he is still employed.
Allegations of unpaid work
11An issue that has been of considerable concern to the applicant since the time of his employment with the respondent relates to his hours of work. There has been disagreement between the parties about the hours that the applicant worked during the approximately one month of his employment, including a controversy about whether he worked overtime hours and whether he was properly paid for those hours.
12This issue has been pursued with the WSIB and Employment Standards Branch of the Ministry of Labour. It appears that the issue is ongoing at the WSIB. The applicant filed a complaint with the Ministry of Labour on June 16, 2014, which was in the period between the date of the injury and the date of the termination of his employment. An Employment Standards Officer investigated the complaint and issued a decision dated October 28, 2014. It appears that the investigation consisted of a review of documents submitted by the parties. The applicant included a detailed summary of the hours that he said he worked. The respondent seems to have only provided a letter stating that the applicant did not work overtime hours. The Employment Standards Officer accepted the applicant’s evidence because the respondent had not provided proof of the applicant’s hours of work, such as punch card time records. The Employment Standards Officer found that the applicant was owed $950 in unpaid overtime pay and $72 in unpaid vacation pay.
13In the Application at this Tribunal, the applicant is not alleging that the failure to pay overtime was in itself discriminatory based on a Code-protected ground. However, he does believe that the fact that the respondent’s version of events was not accepted by the Employment Standards Officer shows that the respondent is not credible.
14Counsel for the respondent submits that the unpaid pay issue is not relevant to this Application at all. She notes that the respondent did not fully engage in the investigation by the Employment Standards Officer and as a result did not submit all the evidence that it had about the issue. The respondent elected to pay the amount found owing by the Employment Standards Officer rather than appealing the decision but this was a business decision.
15On this issue, I conclude that the decision of the Employment Standards Officer is a legal finding of fact. It means that for the purposes of the Employment Standards Act (“ESA”), the applicant worked overtime that was not paid. However, since this issue has very little to do with the substance of the Application, and given the respondent’s limited involvement in the ESA process, and since I have had the benefit of hearing directly from the parties, I am not prepared to draw inferences about credibility from the decision of the Employment Standards Officer.
The doctor’s note and the applicant’s initial medical treatment
16The doctor’s note that the applicant provided to Mr. De Sa on June 4, 2014 stated that the applicant had sustained an injury to his neck and back regions and provided restrictions of avoid bending, lifting and standing for more than 20 minutes for the next four weeks.
17The note is signed by Dr. S.K. Rathore, a chiropractor. It is written on a prescription pad, which includes a line for the date. The existing copies of the note indicate that the date on the note is February 6, 2014. The applicant maintains that the date on the note that he received from Dr. Rathore was June 2, 2014, the date of the injury. February 6, 2014 preceded both the injury and the applicant's employment with the respondent by several months.
18The applicant gave a copy of the note to Mr. De Sa on June 4, 2014, and did not keep a copy. The applicant believes that Mr. De Sa altered the date on the note and that he did this to provide an excuse for firing the applicant and also to prevent the applicant from receiving benefits from the WSIB.
19The respondent denies that the note was altered in anyway. Mr. De Sa testified that when he first received the note he did not notice the date. He only noticed later when he was processing a payment to the applicant. When he saw that the note was dated several months before the applicant started work for the respondent, Mr. De Sa determined that the applicant was being dishonest and terminated the applicant’s employment on that basis.
20The respondent issued a Record of Employment on June 17, 2016 stating the applicant had been dismissed because he “submitted injury paper not related with Time Kitchen.”
21The issue of the date of the note and its significance were discussed on the first day of hearing, which was March 21, 2016. At that time, the respondent’s counsel asked that the hearing be adjourned because Mr. De Sa had suddenly become ill and was not able to attend. The adjournment request was granted but I issued a Case Assessment Direction dated March 21, 2016, which said in part:
As discussed on March 21, 2016, one of the applicant's allegations is that the respondent altered the date on a medical note that the applicant provided to the respondent. The note is from Dr. S.K. Rathore. The document that has been provided by both parties is dated February 6, 2014. That date preceded the applicant's employment with the respondent. The applicant alleges that the date on the note was originally 2 6 2014 and that he received the note from his doctor on June 2, 2014. He alleges that the date was altered after he gave the note to the employer.
The applicant has provided no evidence to support this contention. As I indicated at the hearing, if the applicant wishes to pursue this allegation, he should provide evidence from Dr. Rathore. In particular, Dr. Rathore should clarify if he saw the applicant on June 2, 2014 and if he saw the applicant on or about February 6, 2014.
22Further to this direction, the applicant provided a note from Dr. Rathore that reads:
Mr. Pardeep Chodha has been under my care following a work-related injury on June 2, 2014. An initial assessment was performed by me on June 2, 2014.
I confirm that he was never seen by me on February 6, 2014.
23When the hearing reconvened on April 20, 2016, the issue of the date of the note was the subject of further testimony and argument. On April 20, 2016, the applicant testified that on June 2, 2014, he went from the workplace to the office of his family doctor, who was Dr. Charles Lu but Dr. Lu was not in that day so he saw Dr. Paul Lai, a colleague of Dr. Lu. Dr. Lai then referred the applicant to Dr. Rathore, the chiropractor.
24After hearing evidence and submissions on April 20, 2016, I agreed with the parties that it was appropriate to try to get some more clarification. The applicant provided his consent for his doctors to provide information to the Tribunal and I issued a Case Assessment Direction on May 10, 2016. It read in part:
The applicant was earlier directed by the Tribunal to get some clarification of this matter from Dr. Rathore. He provided a letter from Dr. Rathore dated March 28, 2016, which states that Dr. Rathore did not see the applicant on February 6, 2014, and did see the applicant on June 2, 2014. This leaves mysterious why the note that the applicant provided in regard to the June 2, 2014 injury is dated Feb 6, 2014.
To try to clear this matter up, it is necessary to obtain some records from Dr. Rathore. Specifically, he is directed to provide to the Tribunal a copy of his clinical notes regarding the applicant for the period January 1, 2014 to June 9, 2014. Dr. Rathore is also invited to make any clarification that he can provide regarding the date of the note that is dated Feb. 6, 2014. To assist Dr. Rathore in regard to this request, a copy of this Case Assessment Direction, together with a copy of the note in question, and a copy of the letter dated March 28, 2016 will be provided to Dr. Rathore.
25The Case Assessment Direction further directed:
To help clarify what happened in this case, the Tribunal requires a copy of the clinical notes and records of Dr. Lu and Dr. Lai regarding the applicant for the period January 1, 2014 to June 9, 2014. The office staff may simply confirm that the applicant did not see Dr. Lu in this period if that is the case.
26The Tribunal received a package of clinical notes from Dr. Rathore. The first entry is dated June 2, 2014, and indicates that he saw the applicant for neck and low back pain with a history of a work injury.
27Dr. Lu confirmed he did not see the applicant on June 2. Dr. Lai confirmed that he did see the applicant on June 2, that he prescribed medication, and referred the applicant for chiropractic treatment. Dr. Lai provided a copy of a WSIB Report of Injury (Form 8), indicating that he saw the applicant on June 2, 2014.
28These various records confirm that the applicant received medical attention for a neck and low back condition on June 2, 2014, which he related to a work-related injury on that day. However, they shed no light at all on the issue of the date of the note from Dr. Rathore that the applicant provided to Mr. De Sa on June 4, 2014.
29The applicant’s evidence is that the note that Dr. Rathore gave him was dated “02 06 2014”. The applicant notes that in his clinical notes, Dr. Rathore uses that same form of date, i.e., day/month/year. The applicant believes that the “02” was altered to read “Feb”.
30The respondent referred to notes from Dr. Rathore that are dated October 20 and 25, 1997. Those notes were submitted to the WSIB in 1997 following a work-related injury at that time with a different employer. The respondent obtained a copy from the documents provided by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) in regard to an appeal by the applicant in this case that has not yet been heard.
31On the 1997 notes, the date was recorded “Oct 20/97” and “Oct 25/97”. It was not recorded as 25/10/1997 or 10/25/1997. The date style on the 1997 notes is thus the same as on the existing copies of the 2014 note. In my view, it is more probable than not that Dr. Rathore used the same date style in 2014 as he did in 1997. It is therefore less probable that the 2014 note was dated “02 06 2014” as the applicant recalls it was.
32From looking at the note, it appears to me that the only way the date could have been altered would be to white out the date as written and replace it with another date.
33The original note is not available. Mr. De Sa testified that his practice is to scan all documents and to keep an electronic version and not the original. He scanned the note in question and printed the scanned version using a colour printer. This shows that the original note was written in blue pen. I cannot detect any indication that the date was whited out and replaced. The date is written in what appears to be the same handwriting as the rest of the note.
34Based on the evidence available to me, I conclude that it is more probable than not that the note that the applicant provided to the respondent on June 4, 2014 was not altered and that it had the date Feb 6, 2014.
35In coming to this conclusion, I accept that Dr. Rathore did not see the applicant on February 6, 2014 because he has confirmed this in writing. The question of why the note that the applicant provided was dated February 6, 2014 remains a mystery. However, on the basis of the available evidence, this mystery is not enough to lead to a conclusion that the note was altered.
Adjudication by the WSIB
36The decision of the WSIB that allowed the applicant’s claim for benefits was made on July 3, 2014. This was approximately one month after the injury and was also after the respondent had terminated the applicant’s employment.
37The decision to allow the claim was not objected to by the respondent.
38Section 41 of the WSIA establishes re-employment obligations in certain circumstances. In this case, the WSIB determined that the respondent was subject to re-employment obligations as an employer operating in the construction industry. The WSIB determined that the applicant was not able to perform his pre-injury job but was capable of performing other suitable work. Section 41(5) of the WSIA applies in these circumstances and it provides as follows:
41(5) When the worker is medically able to perform suitable work (although he or she is unable to perform the essential duties of his or her pre-injury employment), the employer shall offer the worker the first opportunity to accept suitable employment that may become available with the employer.
39The other subsections relevant to this case are as follows:
(6) The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.
(10) If an employer re-employs a worker in accordance with this section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer’s obligations under this section. The employer may rebut the presumption by showing that the termination of the worker’s employment was not related to the injury.
(11) Upon the request of a worker or on its own initiative, the Board shall determine whether the employer has fulfilled the employer’s obligations to the worker under this section.
(13) If the Board decides that the employer has not fulfilled the employer’s obligations to the worker, the Board may,
(a) levy a penalty on the employer not exceeding the amount of the worker’s net average earnings for the year preceding the injury; and
(b) make payments to the worker for a maximum of one year as if the worker were entitled to payments under section 43 (loss of earnings).
40In this case the WSIB re-employment Claims Manager determined that the respondent was in breach of its re-employment obligations because the applicant’s employment had been terminated “because of his injury and claim for benefits.” The Claims Manager found that a penalty in the amount of $72,985 was appropriate. However, the Claims Manager understood from the respondent that it was prepared to offer to re-employ the applicant. Because of this, the penalty was not imposed. The decision indicates that it would be held in abeyance for a period of nine days and the penalty would only be imposed if the respondent had not offered to re-employ the applicant by that time.
41The respondent confirmed a willingness to offer to re-employ the applicant within the nine days. It appears that while the respondent offered to re-employ the applicant, the WSIB determined that it was first necessary to clarify the applicant’s medical restrictions. He was sent to a Regional Evaluation Centre for that purpose in September. A return to work meeting was then scheduled for October 3, 2014. In the interim, the applicant remained off work and continued to receive full loss of earnings benefits.
42At the return to work meeting, the workplace parties agreed on a return to work plan with modified duties to comply with the identified work restrictions. However, shortly after this meeting, the applicant determined that he did not want to return to work with the respondent.
43At the hearing, the applicant testified that the reason for this was the way he had been treated by the respondent after the injury. The alleged mistreatment included falsifying his doctor’s note, accusing him of fraud and dishonesty, and failure to pay him for the hours he had worked before the injury. The applicant explained that he had been subjected to “cruel and unusual punishment” and that he believes he has a right to be protected from this under the Canadian Charter of Rights and Freedoms.
44At the time, the WSIB determined that the applicant had refused to accept work that was determined to be suitable and available, and he was not entitled to loss of earnings benefits as a result.
45The applicant objected to that decision and an Appeals Resolution Officer eventually concluded that the work that was available with the respondent was not suitable. The respondent did not participate in the hearing before the Appeals Resolution Officer. The Appeals Resolution Officer granted the applicant full loss of earnings benefits up to November 19, 2014. On that date, the applicant slipped on ice and experienced new injuries. The Appeals Resolution Officer found that this was a non-compensable injury and that the applicant had “almost recovered” from the effects of the work-related injury and that the applicant was therefore not entitled to loss of earnings after November 19, 2014. The applicant believes that the slip on the ice was caused by his compensable injury and he has filed an appeal with the WSIAT about this. However, he has not yet proceeded with that appeal.
The significance of the decisions of the WSIB to the Application
46There are several decisions of the WSIB that are related to this Application. The WSIB has determined the following things:
The applicant suffered a work-related injury on June 2, 2014.
The applicant was not able to work for some time after this injury due to his injury.
The applicant has a loss of earnings as a result of the June 2, 2014 injury that lasted until November 19, 2014.
The job that the respondent offered to the applicant in October 2014 was not suitable for the applicant based on his work-related restrictions.
The respondent terminated the applicant’s employment because of the applicant's injury and claim for benefits.
47In my view, the first three of these determinations are matters that the WSIB has exclusive jurisdiction to determine. Section 118 of the WSIA provides in part as follows:
- (1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise.
(2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters:
Whether personal injury or death has been caused by an accident.
Whether an accident arose out of and in the course of an employment by a Schedule 1 or Schedule 2 employer.
Whether a person is co-operating in reaching his or her maximum medical recovery, in returning to work or in the preparation and implementation of a labour market re-entry plan.
Whether an employer has fulfilled his, her or its obligations under the insurance plan to return a worker to work or re-employ the worker.
Whether a labour market re-entry plan for a person is to be prepared and implemented.
Whether loss of earnings has resulted from an injury.
(3) An action or decision of the Board under this Act is final and is not open to question or review in a court.
(4) No proceeding by or before the Board shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court.
48The WSIAT also has jurisdiction to deal with most of the things over which the WSIB has jurisdiction but for convenience in this Decision, I will consider the jurisdiction of only the WSIB.
49Questions about what happened during return to work efforts following a work-related injury may raise issues over which the Human Rights Tribunal has concurrent jurisdiction with the WSIB. In some circumstances, a determination by the WSIB may appropriately deal with the issues under the WSIA and under the Code (see, for example, Post v. Stevens Resources Group, 2014 HRTO 1470).
50However, in other circumstances, a finding by the WSIB may resolve an issue under the WSIA but not under the Code. A common example of this is the determination by the WSIB that the employer has or has not offered the worker work that is suitable and available. This is a critical decision under the WSIA as it determines if the worker is entitled to benefits.
51Under the Code, the question is not whether the employer has or has not offered suitable employment. The question is whether the employer has accommodated the worker to the point of undue hardship. In some cases, a finding that the employer did or did not offer suitable employment will effectively appropriately deal with the Code question of whether the employer accommodated the applicant to the point of undue hardship. In other cases it will not.
52If another proceeding has appropriately dealt with all or some of the issues in an Application, section 45.1 provides that the Application may be dismissed in whole or in part:
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.
53In this case, the Tribunal dealt with an earlier request by the respondent to dismiss the Application under section 45.1 on the grounds that the WSIB had already dealt with the substance of the Application. That request was denied in Interim Decision 2015 HRTO 1139.
54At the hearing before me, the applicant sought to rely on the decisions of the WSIB as proof that the respondent infringed his Code-protected rights. In particular, the applicant wants to rely on the finding of the WSIB Return to Work Claims Manager that the respondent terminated the applicant’s employment because he had reported a work-related injury and made a claim for benefits from the WSIB, as conclusive proof that the respondent discriminated against the applicant because of disability.
55This is not a matter to be decided under section 45.1 because there the applicant is not seeking to have the Application dismissed because of the findings of the WSIB but rather wants to rely on them as proof of his allegations.
56To resolve this, it is necessary to turn to the law regarding issue estoppel.
Issue Estoppel
57In simple terms, the doctrine of issue estoppel means that once an issue has been determined by a court of adjudicator with jurisdiction to decide the issue, a party or parties are barred from re-litigating the same issue again in another proceeding.
58The Supreme Court of Canada outlined the principles of issue estoppel in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. Ms. Danyluk filed a civil action in court against her former employer claiming lost income and unjust dismissal. Prior to filing the action, she had filed a claim under the Employment Standards Act. An Employment Standards Officer found that Ms. Danyluk was entitled to two weeks of pay in lieu of notice. A motions judge dismissed the civil action, applying the doctrine of issue estoppel.
59The Supreme Court identified the following “pre-conditions” for issue estoppel:
that the same question has been decided;
that the judicial decision which is said to create the estoppel was final; and,
that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
60In Danyluk, the Court found that these conditions were all satisfied. The main focus of the discussion was on whether the decision of the Employment Standards Officer was a “judicial decision”. This arose as an issue because of the administrative nature of the Officer’s decision and also because the Officer had failed to allow Ms. Danyluk to know and respond to the employer’s case. This represented a procedural unfairness and it was argued that it meant that the Officer had not made a judicial decision or had lost jurisdiction because of the procedural unfairness.
61At paragraphs 39 – 42, the Court found that
An administrative tribunal may have judicial as well as administrative or ministerial functions. So may an administrative officer.
One distinction between administrative and judicial decisions lies in differentiating adjudicative from investigative functions. In the latter mode the ESA officer is taking the initiative to gather information. The ESA officer acts as a self-starting investigator who is not confined within the limits of the adversarial process….
Although ESA officers may have non-adjudicative functions, they must exercise their adjudicative functions in a judicial manner. While they utilize procedures more flexible than those that apply in the courts, their decisions must be based on findings of fact and the application of an objective legal standard to those facts. This is characteristic of a judicial function...
The adjudication of the claim, once the relevant information had been gathered, is of a judicial nature. (citations omitted)
62The Court’s direction regarding the nature of decisions by a front line adjudicator such as an Employment Standards Officer is of importance on the question of whether the decision making process followed by WSIB adjudicators such as the Return to Work Claims Manager in this case, are properly considered to be a proceeding. The Return to Work Claims Manager in this case gathered information, received submissions from the parties and made a decision based on the application of the legislation and the relevant policies of the WSIB regarding the interpretation of the legislation. On the basis of the Court’s findings in Danyluk, it appears that in this case, the decision of the Claims Manager was a “judicial decision”.
63Although the Court found that the pre-conditions for issue estoppel had been met, the Court went on to explain that the doctrine of issue estoppel requires the decision maker to then determine whether the doctrine should be applied in the particular case. At paragraph 33 the Court said:
The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied.
64The Court then set out seven factors that need to be considered when exercising the discretion:
a. The wording of the statute from which the power to issue the administrative order derives
b. The purpose of the legislation
c. The availability of an appeal
d. The safeguards available to the parties in the administrative procedure
e. The expertise of the administrative decision maker
f. The circumstances giving rise to the prior administrative proceedings
65At paragraph 80, the Court concluded:
As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice.
66The Supreme Court revisited the application of issue estoppel in two more recent cases.
67In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, the majority of the Court focussed on the importance of finality. Figliola is important because the Court was dealing with the application of section 27 of the British Columbia Human Rights Code, which is similar to section 45.1 of the Ontario Code. At paragraphs 36 – 38, the Court majority said:
Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.
Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.
68As noted earlier, in the instant case, the applicant is not seeking to re-litigate anything. He is instead arguing that issue estoppel should apply so that the decision of the Return to Work Claims Manager as a conclusive finding that the respondent terminated the applicant’s employment because of disability.
69In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), a majority of the Supreme Court stated that the principles set out in Danyluck continue to apply, so that a decision-maker must decide not only whether the pre-conditions for issue estoppel apply, but also whether the decision-maker should exercise discretion and find that issue estoppel should not be applied because of the circumstances of the particular case. In Penner, the Court majority focussed particularly on fairness. The factors to be considered were summarized at this Tribunal by a Panel in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (at paragraph 66):
Whether the systems in which the proceedings arise contemplate parallel proceedings;
Whether the parties would reasonably expect that the earlier proceeding would preclude the later proceeding;
Whether the applicant had a financial stake in the earlier proceeding;
The purpose of the two proceedings;
The independence of the decision maker in the earlier proceeding.
Are the pre-conditions for issue estoppel met in this case?
70As noted earlier, the pre-conditions for issue estoppel are as follows:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
71In this case, it seems to me that the pre-conditions are met. The finding of the Claims Manager that the applicant wishes to rely on is the finding that the respondent terminated the applicant’s employment because of the injury and the claim for benefits. The question of whether this is what happened is the central issue in the Application. The definition of “disability” in section 10 of the Code includes:
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997
72A finding that the respondent terminated the applicant's employment because of an injury for which benefits were claimed under the WSIA would therefore mean that the termination was because of disability, which, without anything else, would be contrary to section 5 of the Code.
73The decision was an adjudicative decision based on information from the parties and the Claims Manager had the jurisdiction to make the decision. As noted earlier, for the reasons set out in Danyluk, the decision was a “judicial decision”.
74The decision was subject to appeal however, as discussed in more detail below, neither party filed an appeal. In the absence of an appeal, and after the time limit for filing an appeal has passed, the decision is a final decision of the WSIB.
75The parties to the proceeding of the return to work Claims Manager were the applicant and the respondent.
Fairness considerations
76While the pre-conditions for issue estoppel are present, I find that there are fairness considerations that mean that issue estoppel should not be applied.
77It is important to consider the context of the Claims Manager’s decision. The decision was made under section 41 of the WSIA, which was set out earlier. The decision found that the respondent had breached its re-employment obligations to the applicant and that as a result, the respondent was liable for a fine of over $70,000. However, the decision further said that no fine would be levied if the respondent were to “come into compliance” and offer to re-employ the applicant. The respondent did offer to re-employ and no fine was levied. In these circumstances, there would have been no workers’ compensation reason for the respondent to appeal the Claims Manager’s decision, notwithstanding that the respondent did not agree that the applicant’s employment had been terminated because he had reported an injury and claimed WSIB benefits.
78The Claims Manager’s decision is dated August 20, 2014. The letter stated that an objection to the decision would have to be filed by September 20, 2014. That date was prior to October 8, 2014, when the applicant filed the Application with this Tribunal (the Application was not delivered to the respondent until November 18, 2014). Consequently, the respondent could not reasonably have objected to the Claims Manager’s letter in anticipation of the Application to this Tribunal, assuming that the potential significance of the Claims Manager’s finding in regards to the applicant’s Code-protected rights was understood.
79I therefore find that it would not be fair to apply the principle of issue estoppel to the decision of the Return to Work Claims Manager to find that the issue of whether the respondent terminated the applicant’s employment was because the applicant had a disability and because the applicant had claimed benefits under the Workplace Safety and Insurance Act.
Did the respondent discriminate against the applicant because of disability?
80Section 5 of the Code reads as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
81As noted earlier, the definition of “disability” in section 10 of the Code includes “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.”
82The applicant’s allegation is that the respondent terminated his employment because he had a back disability that limited his ability to work and because he had claimed benefits under the WSIA.
83The respondent’s explanation for the termination of the applicant's employment is that the applicant provided a doctor’s note that was dated many months before the injury and before the applicant was hired by the respondent.
84The applicant asserts that in fact the respondent altered the date of the note to provide a pretext for the termination.
85The respondent asserts that he noticed the date on the note on approximately June 17, 2014, when he was preparing a payment to the applicant.
86In the period from June 2, 2014 to June 17, 2014, there were a number of communications between the parties and the WSIB. One of the issues in this time was the need for the employer to file its Employer’s Report of Injury (Form 7). The Form 7 was not filed until July 3, 2014.
87Mr. Da Sa testified that the applicant’s claim was the first time that he was required to file a Form 7 and he was not sure of the process. One of the issues was whether the employer needed a Health Care Providers First Report (Form 8). The applicant provided a completed Form 8 on June 12, 2014.
88As the applicant notes in his submission, at least up until June 12, 2014, the respondent had not mentioned anything about the misdated note from Dr. Rathore. The applicant emphasizes this as part of his argument that the respondent changed the date. I have dealt with that allegation earlier and found that the applicant has not established that the respondent changed the date on the note.
89The fact that nothing was said about the date of the note until sometime after June 12, 2014 is also consistent with the respondent’s evidence that it was only after June 12 that he noticed the date on the note. Until that happened, the respondent was engaged with the applicant and the WSIB in regards to what needed to be done to report the injury. If the respondent had noticed the date on the note earlier, it would have raised the issue of the date earlier.
90I accept that the respondent noticed the date on the note sometime between June 12 and June 17, 2014. I accept that when Mr. Da Sa noticed the date, he was concerned that the applicant had provided a fraudulent doctor’s note and decided, on that basis, to terminate the applicant’s employment. Until that point, the respondent was participating in the communications about reporting the injury.
91As noted above in the discussion about the note, the evidence does not establish that the applicant in fact provided a fraudulent note. However, the evidence does establish that it is more probable than not that the note that the applicant provided was dated February and not June. I accept that the respondent sincerely believed that the date on the note was evidence that the applicant was attempting to substantiate a work-related injury and absence from work with a note that was dated several months before the injury and also before the date of the start of the applicant’s employment.
92In my view, this provides a non-discriminatory explanation for the termination of the employment. I therefore find that the applicant has not established that the respondent discriminated against the applicant by terminating the applicant’s employment because the applicant had a disability or had claimed benefits under the WSIA.
Alleged discrimination before the termination
93The applicant alleges that before the termination of his employment, the respondent discriminated against him by failing to provide modified work to allow the applicant to return to work.
94The applicant testified that when he came to the workplace with the doctor’s note on June 4, 2014, Mr. Da Sa read the note and told him he had no work available within the applicant’s restrictions. The note provided the following restrictions:
Avoid bending, lifting and standing for more than 30 minutes for four weeks.
95The applicant testified that the respondent told him that he had no work that fit those restrictions and that he was also sending two other workers home because of a shortage of work.
96The applicant alleges that on June 9, the applicant came to work again and was then told to stay home until he was fit to return to regular work. Mr. Da Sa testified that he did not recall the worker coming to work on June 9. The subsequent conversations concerned the WSIB reporting issue, including the respondent’s request that the applicant provide a Form 8 before it would file a Form 7. Then the respondent looked at the doctor’s note and made the decision to terminate the applicant’s employment.
97The applicant received full loss of earnings benefits from the WSIB. The WSIB was aware that the respondent had not offered modified work to the applicant but did not do anything in regards to that until the intervention of the Return to Work Claims Manager some months later.
98I further note that the respondent’s business is relatively small. The applicant was employed as a cabinet maker or assembler. The restrictions set out in the doctor’s note were quite significant and would limit the type of work the applicant could do.
99The duty to accommodate an injured employee who cannot do his regular duties does not necessarily require an employer to immediately offer alternative work. The jurisprudence recognizes that the duty to accommodate involves a process that may take some time. The process can involve clarification of the employee’s restrictions, and a review of what work and jobs are available. The employer is not obliged to offer alternate work if there is no such work or if the employee would not have been working if the injury had not occurred because of a shortage of work. In cases where there is a question about whether a work-related injury even happened, the WSIB will typically be involved and its interventions and decisions also form part of the process.
100In this case, all of these factors were in play. In all of the circumstances, I find that the fact that the respondent told the applicant that he had no modified work available during the period before the respondent terminated the applicant’s employment was not discriminatory and not an infringement of the applicant’s Code-protected rights.
Decision
101The Application is dismissed.
Dated at Toronto, this 23rd day of September, 2016.
“Signed By”
Brian Cook Vice-chair