Santos Cartagena v. Spec Furniture Inc., 2016 HRTO 35

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Santos Cartagena Applicant

-and-

Spec Furniture Inc. Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: January 11, 2016

Citation: 2016 HRTO 35

Indexed as: Cartagena v. Spec Furniture Inc.

WRITTEN SUBMISSIONS

Santos Cartagena, Applicant

John Bartolomeo, Counsel

Spec Furniture Inc., Respondent

Andrew Bratt, 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 applicant alleges that his employment with the respondent was terminated when he reported a work-related injury. The respondent does not agree that the termination of employment was related to the injury or to the fact that the applicant was going to file a claim for benefits with the Workplace Safety and Insurance Board (WSIB). The respondent asserts that the decision to terminate the applicant's employment was made before the work-related injury occurred.

2In the Application, the applicant said that he had also filed a claim under the Employment Standards Act, and that his complaint had been upheld and that he was found to be entitled to pay in lieu of notice and severance payment because the Employment Standards Officer concluded that the workplace injury was a factor in the decision to terminate the applicant's employment.

3In its Response, the respondent noted that the applicant's claim for benefits from the WSIB was denied on the grounds that the WSIB Claims Manager concluded that that the termination of employment was not related to the applicant's workplace injury. The respondent asked that the Application be dismissed on the grounds that the WSIB has appropriately dealt with the substance of the Application. Section 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.

4In this case, there are two proceedings that have dealt with the central issue in the Application which is whether the termination of the applicant's employment was related to the fact that he suffered a work-related injury. The ESA decision concluded that the termination of employment was related to the workplace injury. The WSIB came to the opposite conclusion.

5Both of these decisions were made by front-line decision makers. The time for appealing the decision of the Employment Standards Officer has passed. In his Reply to the Response, the applicant advises that he has filed an objection with the WSIB Appeals Branch in regard to the decision of the Claims Manager.

6The Tribunal had proposed that the parties engage in mediation to see if a settlement could be reached between the parties. However, the respondent has advised that it wishes a decision on its request that the Application be dismissed under section 45.1 of the Code because of the decision of the WSIB. The respondent did not comment on the possible significance of the decision of the Employment Standards Officer.

7The respondent's request that the Application be dismissed under section 45.1 of the Code because of the decision of the WSIB Claims Manager is denied.

8The applicant states that he has filed an objection to that decision. Accordingly, the decision of the Claims Manager is not a final decision of the WSIB. Since that proceeding is ongoing the WSIB proceeding cannot be said to have appropriately dealt with the substance of the Application at this time.

9However, since it appears that there is an ongoing proceeding at the WSIB which will likely deal with the question of why the applicant's employment was terminated and whether this was related to the workplace injury, it may be appropriate to defer the Application.

10By January 29, 2016, the respondent is directed to advise if it wishes to participate in mediation at the Tribunal. If not, the respondent shall make submissions about whether the Application should be deferred. The applicant may make submissions on this issue by February 8. 2016.