HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Eileen Leroux
Applicant
-and-
C. Lizzi Enterprise Inc. o/a La Rose Italian Bakery
Respondent
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Leroux v. C. Lizzi Enterprise Inc. o/a La Rose Italian Bakery
WRITTEN SUBMISSIONS
Eileen Leroux, Applicant
Self-represented
C. Lizzi Enterprise Inc. o/a La Rose Italian Bakery, Respondent
Walter Bordian, Representative
Introduction
1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).
2The applicant alleges that the respondent has failed to accommodate her disability in the workplace, and failed to provide her with modified work. The applicant further alleges that her age was a factor in the respondent’s refusal to give her work.
3The respondent disputes the applicant’s claims. It takes the position that it is not presently able to accommodate her disability, and denies that it has discriminated against her on the basis of age. It further argues that the substance of the Application has been appropriately dealt with in proceedings under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A. (“WSIA”) and/or the Employment Standards Act, 2000, SO 2000, c 41 (“ESA”).
4The respondent, in the alternative, seeks to have the Application deferred pending the resolution of an appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).
5For the reasons set out below, both the request to dismiss the Application under s.45.1 of the Code, and the request to defer the Application under s.45, are refused.
Factual Background
6The applicant had a workplace injury in January 2014. She was 65 years of age at the time. She filed a claim with the Workplace Safety and Insurance Board (“WSIB”) under the WSIA. Over the following two years, there were apparently various attempts at returning to work which involved WSIB. She indicates in the Application that she last worked for the respondent in July 2015.
7In October 2015, the respondent advised WSIB that it was not intending to re-employ the applicant as it had no obligation to do so under WSIB policy and the WSIA. As WSIB had determined that she was able to do her pre-injury job, it terminated her loss of earnings benefits shortly thereafter. The applicant challenged the WSIB case manager’s decision, and the decision was upheld by the Appeals Resolution Officer (“ARO”) in March 2016. The applicant has since filed an appeal with the WSIAT.
8The applicant claims that the respondent had relied on the provisions of the WSIA and WSIB policy that provide an employer has no re-employment obligation to individuals who are 65 years old, and that the respondent’s failure to accommodate her was also therefore based on her age.
9The applicant claims that after losing her WSIB benefits, she continued to seek to return to work with the respondent, but was told she could not do so until she was “100%”. She asked if the respondent if they were going to terminate her employment and pay her termination pay under the ESA. The respondent declined to do so. The applicant filed a claim with the Ministry of Labour for her termination pay. An Employment Standards Officer (“ESO”) determined on October 3, 2016 that she was not eligible for termination pay as she had not, in fact, been terminated.
Dismissal under s.45.1
10Section 45.1 of the Code reads as follows:
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.
11The central allegation in the Application is that the respondent has failed in its duty to accommodate since October 2015 when it advised WSIB that it was not going to re-employ the applicant. The respondent takes the position that the applicant continues to be an employee, but that it has no suitable modified work available. The substance of the Application is, therefore, whether the respondent has, since October 2015, met its procedural and substantive duty to accommodate the applicant’s disability-related restrictions.
ESA Proceedings
12The applicant’s ESA claim was for termination pay, which she apparently pursued because the respondent would not give her work. The ESO decision indicates that the respondent took the position that it had not terminated the applicant, and was prepared to return her to work when she was medically able to perform her pre-injury full-time job.
13The only issue dealt with in the ESO decision was whether the applicant had been terminated for the purposes of the ESA. Whether she was terminated under the ESA is not an issue in the Application, which is based on the allegation that the respondent has failed to accommodate her disability-related restrictions in the workplace.
14There is no indication that the substance of the Application has been addressed at all in the ESO decision. There is, as such, no basis to dismiss the Application based on the ESA proceeding.
WSIB Proceedings
15There may be an issue as to whether there was a “proceeding” before the WSIB. See, for example, Maxwell v. Cooper-Standard Automotive Canada Limited, 2013 HRTO 1482 at paras 37-42, and Devouge v. Griffith Laboratories Limited, 2014 HRTO 1536 at paras. 19-25. However, I do not need to answer that question as in my view the WSIB did not in any case address the substance of the Application. For the purposes of this hearing, I will assume, without finding, that there was a “proceeding” at the WSIB for the purposes of the Code.
16In the WSIB proceedings it is clear that the respondent indicated that it had no intention to re-employ the applicant. In the materials filed with the Tribunal, the respondent takes the position that it is aware that its obligation to accommodate the applicant’s disability under the Code continues to exist even if it no longer has an obligation to re-employ the applicant under the WSIA.
17The Tribunal addressed the relationship between a WSIB claim and a Code claim in the decision Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520 (“Boyce”). At para. 52, the Tribunal noted:
If the employer tells the WSIB that it does not have suitable work available for the worker, and in the absence of evidence that the employer cannot accommodate the worker because to do so would result in undue hardship, the employer may have breached its duty under the Code even if it has satisfied its duty under the ESRTW policies.
18Neither the WSIB case manager decision of October 22, 2015 or the ARO decision of March 24, 2016 addressed the question of whether the respondent was able to accommodate the applicant under the Code. WSIB has not been involved in any issues respecting the applicant returning to work since October 2015, when the respondent advised it was not willing to re-employ the applicant. The situation in the present case is, in my view, similar to that in Boyce. The fact that the WSIB is satisfied that the respondent may have met its return-to-work obligations does not answer the question of whether the applicant has been accommodated under the Code. See also Wang v. Delta Chelsea Ltd., 2011 HRTO 1161, at paras 9-13.
19The central issue in the Application clearly has not been appropriately dealt with under either the WSIA or the ESA. The request to dismiss the Application under s. 45.1 is refused.
Deferral
20The applicant has since also filed an appeal to the WSIAT. The respondent also seeks to have the Application deferred pending the resolution of the WSIAT appeal.
21The Tribunal may defer consideration of an application under s. 45 of the Code and Rule 14.1 of the Tribunal’s Rules of Procedure on such terms as it may determine. Deferral of an application ensures that legal processes addressing the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises based on the circumstances of each case.
22Some factors that may be relevant in deciding whether to defer are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding.
23In the present case, there is no indication that the WSIAT appeal will address, more than tangentially, the facts or issues raised in the Application. As noted in Baghdasserians v. 674469 Ontario, 2008 HRTO 404, at para. 18 “[d]eferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.” The Application is primarily addressing the issue of whether the respondent has accommodated the applicant. This is not an issue before the WSIAT. Though there may be some overlap of the facts, in my view there is minimal risk of inconsistent results between the two proceedings which would justify deferral. See Hall v. Regional Municipality of Niagara Police Services Board, 2016 HRTO 88, at para. 10.
24The request to defer the Application is refused.
25The parties have indicated that they are prepared to engage in mediation. As such, the Registrar will schedule a mediation in the normal course.
Order
26The respondent’s request to dismiss the Application under s.45.1 is refused.
27The respondent’s request to defer the Application under s.45 is refused.
28I am not seized.
Dated at Toronto, this 17th day of August, 2017.
“Signed by”
Bruce Best
Vice-chair