Plummer v. Workplace Safety and Insurance Board, 2017 HRTO 1134

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Plummer

Applicant

-and-

Workplace Safety and Insurance Board and Rehabilitation Network Canada Inc.

Respondents

DECISION

Adjudicator: Yasmeena Mohamed

Date: September 1, 2017

Citation: 2017 HRTO 1134

Indexed as: Plummer v. Workplace Safety and Insurance Board

APPEARANCES

Peter Plummer, Applicant

Lori Mishibinijima, Counsel

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

Rehabilitation Network Canada Inc.

Frank Martino, Counsel

Introduction

1This is an Application filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. Specifically the applicant alleges that the respondents discriminated against him in various ways, including the denial of his learning disability, and failure to consider and accommodate his disability in the assessment and designation of suitable employment and business (SEB), the Labour Market Re-entry (LMR) plan and the processing and the reduction of his Loss of Earning (LOB) benefits.

2On January 19, 2009 and July 31, 2014, the Tribunal deferred consideration of the Application pending the conclusion of a related Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) appeal.

3On March 17, 2016, WSIAT rendered a decision, Decision No. 632/16 ONWSIAT 733 (“WSIAT Decision”) and it released a letter of implementation of its decision on April 11, 2016.

4On October 14, 2016, the Tribunal reactivated the Application. The respondents argued that the Application should be dismissed pursuant to s. 45.1 of the Code as the WSIAT Decision has appropriately dealt with the substance of the Application.

5The Tribunal held a preliminary hearing to adress this issue on June 21, 2017.

Application of Section 45.1 of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

Facts

6On May 14, 2004, the applicant sustained injuries in the course of his employment as a truck driver and received compensation benefits under the Workplace Safety and Insurance Act, 1997 ( WSIA) for his injuries.

7In 2005, the applicant was unable to return to his pre-injury occupation and was referred to the WSIB’s LMR services to assist him in retraining and returning to the labour market. A LMR plan was developed for the applicant that included his participation in academic upgrading, college preparation courses to develop skills relating to time management, exam preparation and essay writing, completion of a law clerk program at Seneca College and formal job search training.

8The applicant completed the academic upgrading and college preparation courses in 2006 and 2007. However, in May 2008, the applicant failed to complete the law clerk program. The WSIB subsequently closed the LMR plan and reduced the applicant’s LOE benefits to reflect the entry level wages for a law clerk, an occupation he could have held if he had completed the program.

9In 2008, the applicant appealed the WSIB decision on the grounds that the SEB designation of law clerk and the LMR plan was unsuitable because it failed to consider his previous educational background and learning disabilities. The appeal was referred to an Appeals Resolution Officer (“ARO”) and a hearing was held on March 31, 2014. The parties were provided with the opportunity to present their case. On April 28, 2014, the ARO rendered a decision confirming the suitability of the SEB law clerk designation, the LMR plan closure and the consequential reduction of the applicant’s LOE benefits. The applicant appealed the ARO’s decision to the WSIAT.

10The WSIAT Decision confirmed that the SEB designation of law clerk and LMR plan was unsuitable for the applicant, considering his learning disability and the accommodations required for those disabilities, his pre-injury job as a garbage collector\truck driver and his prior educational levels. The WSIAT Decision concluded that a more suitably SEB designation for the applicant would be that of a “Security Guard and related occupations”. The WSIAT Decision, accordingly, awarded the applicant LOE benefits to reflect the more suitable occupation of a Security Guard or related occupations.

Parties’ submissions

11The respondents submit that the Application should be dismissed in its entirety pursuant to s. 45.1 of the Code as the WSIAT Decision has appropriately dealt with the substance of the Application.

12The respondents submit that the Application and the WSIAT claim raise the same facts and issues. The respondents submit that the WSIAT specifically considered the Code-related disability and accommodation issues and appropriately dealt with them despite the differences in remedial jurisdiction of the two tribunals.

13The applicant acknowledges from the outset that the WSIAT Decision has dealt with the same facts and Code issues as alleged in his Application. However the applicant submits that the remedy awarded in the WSIAT Decision does not address the issue of injury to dignity and self-respect; hence the applicant submits that the WSIAT proceeding has not dealt with the Application in its entirety.

14The applicant submits that the WSIAT Decision did not consider evidence relating to the impact of the respondent’s failure to acknowledge and accommodate the applicant’s disability, the unsuitability of the SEB designation of law clerk and the accompanying LMR plan. In particular, the applicant submits that the WSIAT Decision did not consider his elevated anxiety levels, exacerbation of pre-existing physical injuries, difficulties in completing the law clerk program, and severe financial hardship suffered as result of the reduction in his LOE benefits. The applicant wants the Tribunal to assume jurisdiction to hear evidence on the impact of the respondent’s conduct and to award damages accordingly.

15The applicant submits that he does not want the Tribunal to re-hear the disability and accommodation issues in the Application. He suggests that the Tribunal adopt the WSIAT Decision in this regard and determine the damages issue only.

16The applicant submits that the “fairness” principles articulated in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”) should be the prevailing authority in all section 45.1 inquiries. The applicant submits that, if Penner is followed by the Tribunal, judicial fairness will prevail and the applicant would be able to attain a Code-based remedy for damages to injury of dignity and self-respect. The applicant submits that he should not be asked to choose between remedies, simply because another proceeding has dealt with the substance of his complaint.

Analysis and Decision

17Section 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.

18Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”: Campbell v. Toronto District School Board, 2008 HRTO 62.

19There is no question that an appeal before the WSIAT is a “proceeding” within the meaning of s. 45.1 of the Code.

20As a result, the only remaining issue is whether the substance of the human rights Application was appropriately dealt with in the WSIAT proceeding.

21In applying s. 45.1 of the Code, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and Penner, above.

22According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the human rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are:

1. 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;

2. whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and

3. whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?

See Post v. Stevens 2014 HRTO 1470

23It is well-established that the WSIAT has jurisdiction to apply the Code in its adjudication of claims for benefits. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14.

24I turn now to the three-pronged analysis outlined in para. 22 above.

25The applicant did not dispute that he had an opportunity to know the case to be met before the WSIAT and to meet it. Therefore, the first prong of the analysis is met. I turn now to considering whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal.

26While the WSIAT has concurrent jurisdiction with this Tribunal to apply the Code, it does not have the same overall jurisdiction. For example, and as the applicant has noted, the WSIAT and the Tribunal have the jurisdiction to award different remedies. The Tribunal does not have jurisdiction to award remedies to compensate for loss of earnings under the WSIA, a remedy within the exclusive jurisdiction of WSIB/WSIAT. Meanwhile, the WSIAT does not have jurisdiction to award compensation for injury to dignity, feelings, and self-respect as a result of discrimination, a remedy within the exclusive jurisdiction of the Tribunal. See Post, above.

27The applicant agrees that the substance of the issues dealt with by the WSIAT Decision is essentially the same as the substance of the issues in the Application before this Tribunal. However, the applicant submits that the WSIAT Decision did not deal with the remedy requested under the Application. Hence the Application cannot be said to have been appropriately and fully dealt with by the WSIAT.

28I disagree with the applicant. The fact that the WSIAT did not have jurisdiction to award the same damages that this Tribunal has the power to award if discrimination was found, does not alter the fact that the legal issues or substance of the issues were essentially the same in both proceedings.

29In addition to the above-mentioned considerations, Penner, above, requires the Tribunal to consider whether it would be unfair for the proceeding before the WSIAT to preclude the applicant from bringing the Application to this Tribunal.

30I find that none of the indicators of unfairness identified in Penner apply here.

31The Penner majority introduced this issue in the following terms at paragraph 42:

The second way in which the operation of issue estoppel may be unfair is not so much concerned with the fairness of the prior proceedings but with the fairness of using their results to preclude the subsequent proceedings. Fairness, in this second sense, is a much more nuanced enquiry. On the one hand, a party is expected to raise all appropriate issues and is not permitted multiple opportunities to obtain a favourable judicial determination. Finality is important both to the parties and to the judicial system. However, even if the prior proceeding was conducted fairly and properly having regard to its purpose, injustice may arise from using the results to preclude the subsequent proceedings. This may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings. We recognize that there will always be differences in purpose, process and stakes between administrative and court proceedings. In order to establish unfairness in the second sense we have described, such differences must be significant and assessed in light of this Court’s recognition that finality is an objective that is also important in the administrative law context.

32An important consideration in Penner was the different purpose of the two proceedings and the reasonable expectations of the parties about those proceedings. This case is different from Penner, because the purpose of the WSIAT and the Tribunal proceedings and the reasonable expectation of the parties about these proceedings are the same. The purpose of the WSIAT proceeding and reasonable expectation of the parties was that WSIAT would determine whether the applicant’s SEB designation of law clerk and LMR plan were suitable in light of his disability and whether his disability appropriately accommodated. This was the main issue before the WSIAT proceeding and the issue on which the parties made submissions. The applicant has pleaded the same issue in the Application. Therefore the purpose of this Tribunal’s proceeding and reasonable expectation of the parties with respect to the determination of this issue are the same as they were with respect to the WSIAT proceeding.

33A second factor in Penner was whether the applicant had a financial stake in the outcome of the other proceeding. Unlike the applicant in Penner, the applicant in this case did have a financial stake in the proceeding before the WSIAT. The applicant had a stake in vigorously advancing his case before the WSIAT. In fact, he succeeded in his appeal before the WSIAT, and became entitled to LOE benefits.

34Finally a third factor in Penner was the independence of the other proceeding. Unlike the circumstances in Penner, the WSIA established WSIAT as an independent appeal body.

35I note that the fairness issues discussed in Penner arose in the context of a case concerning whether it would be fair to take away a person’s right to bring a civil action because of a proceeding under the Police Services Act. In other contexts, there may be other factors that need to be considered to determine if it would be unfair to dismiss an Application under section 45.1 on the basis of another proceeding. In the present case, I do not agree that differences in remedial jurisdiction between different tribunals make it unfair to preclude an application to this Tribunal when another tribunal has squarely dealt with substantially the same facts and legal issue.

36When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies.

37I conclude that section 45.1 of the Code applies as the WSIAT Decision has appropriately dealt with the substance of the Application. This is the case despite the fact that the WSIAT did not have jurisdiction to award compensation for injury to dignity, feelings and self-respect.

order

38The Tribunal orders that the Application is dismissed pursuant to section 45.1 of the Code.