Gerard Panditharatne v. Logistics in Motion Inc., 2017 HRTO 1562

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerard Panditharatne

Applicant

-and-

Logistics in Motion Inc.

Respondent

INTERIM DECISION

Adjudicator: Jacek Janczur

Date: November 27, 2017

Citation: 2017 HRTO 1562

Indexed as: Panditharatne v. Logistics in Motion Inc.

APPEARANCES

Gerard Panditharatne, Applicant

Jo-Ann Seamon, Counsel

Logistics in Motion, Respondent

Ashley B. Brown, Counsel

1The applicant filed this Application alleging discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant alleged that he was harassed and his employment was terminated because of his disability.

2The respondent requested the early dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application in accordance with section 45.1 of the Code.

3The applicant appealed a decision of a Case Manager of the Workplace Safety and Insurance Board ("WSIB") denying Loss of Earning Benefits ("LOE") to an Appeals Resolution Officer ("ARO"). The ARO partially allowed the applicant's appeal granting LOE for a period of time after the applicant's termination. It is this decision of the ARO that the respondent claims has appropriately dealt with the substance of the application.

4In Interim Decision 2017 HRTO 529 the Tribunal ordered that a preliminary hearing be scheduled to deal with the matter.

5I heard the parties' submissions and, for the reasons that follow, I find that the ARO decision did not appropriately deal with the substance of the Application.

DECISION

6Section 45.1 of the Code states:

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.

7The Tribunal has interpreted section 45.1 as contemplating a two-step analysis. First, the Tribunal asks whether there was another proceeding. If the answer to that question is yes, then the second stage of the analysis is whether or not the substance of the application has been appropriately dealt with by the prior proceeding. See, for example, Campbell v. Toronto District School Board, 2008 HRTO 62.

8In interpreting section 45.1, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 51, and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.

9According to Figliola and Penner, there are four questions to consider in order to determine whether another proceeding has appropriately dealt with the substance of the Application. These are:

(i) whether the other proceeding had concurrent jurisdiction to determine human rights issues;

(ii) whether the previously decided issues were the same as the issues complained of to this Tribunal;

(iii) whether there was an opportunity for the applicant or his or her privies to know the case to be met and have the chance to meet it; and

(iv) whether it would be unfair to use the results of the previous preceding to preclude the applicant from proceeding with this Application.

10I find that the issue decided by the ARO differs from the issues that form the substance of the Application.

11The ARO decision was the result of a "hearing in writing". Both the applicant and the respondent participated and had legal representation in that proceeding. There is no dispute between the parties that the hearing in writing that resulted in the ARO's decision was a proceeding for the purposes of s. 45.1 of the Code.

12The substance of the Application is whether the respondent's supervisory staff subjected the applicant to Code-based harassment after his workplace injury; and, whether his disability was a factor in the respondent's decision to terminate his employment.

13The issue before the ARO was whether the applicant's entitlement to LOE should have been affected by his termination.

14The ARO issued a decision in which the ARO determined that the applicant was entitled to LOE subsequent to his termination. The ARO made this determination by answering the question of whether the workplace injury continued to make a significant contribution to any continuing loss of earnings. The ARO also considered the extent to which the applicant remained disadvantaged in his ability to match his pre-injury earnings.

15The ARO went on to find that the applicant was totally impaired when he was terminated and that he had a continuing loss of earnings arising from his injury until March 24, 2015 when he became capable of sedentary non-weight bearing work.

16The respondent claims to have terminated the applicant for "just cause" and asserts that the ARO found that the applicant was indeed terminated for just cause. I cannot agree.

17The ARO was careful to delineate the scope of the decision and wrote that:

In my view, it is beyond the scope of my legislated authority to import common law wrongful dismissal principles under section 43 of the WSIA, which is only interested in deciding whether a worker's loss of earnings is a result of the injury. The WSIB is not a specialized body mandated to decide whether a worker has been terminated for cause or not.

18The ARO touches on the question of the impact of the termination on the applicant's entitlement to LOE and states that the question should be answered by reviewing whether there was suitable work available on a sustainable basis that could have been performed by the applicant but for the termination.

19The respondent places great emphasis on the following excerpt from the ARO decision:

If for the moment I accept the employer representative's argument that the worker's termination was unrelated to the workplace injury, the termination of employment by an employer for reasons unrelated to a compensable injury does not constitute such an intervening event that automatically terminates a worker's entitlement to benefits. The circumstances giving rise to the termination may constitute such an intervening event. To have that effect, those circumstances must negate the significance of the contribution of the compensable injury to a subsequent loss of earnings.

I find that following the worker's termination he had a continuing impairment as a result of the injury which affected his ability to earn, and that the circumstances surrounding the termination of employment did not establish an intervening event that negated the impact of the compensable injury.

20The employer contends that the above-cited portions of the ARO decision constitute a finding on the part of the ARO that the termination was for just cause, which precludes a claim on the applicant's part that his disability was a factor in his termination.

21In my view, this would import a finding that the ARO specifically stated he could not make, and which is not contained in the decision. All the ARO says is that the circumstances of the termination did not negate the significance of the contribution of the compensable injury to the loss of earnings. This cannot reasonably be seen to amount to a finding of termination for just cause or a finding that the applicant's disability was not a factor in his termination.

22In my view, the ARO's decision has not dealt with the substance of the Application because it did not address whether the applicant had been harassed or his disability had been a factor in his termination.

ORDER

23For these reasons, the respondent's request to dismiss the Application under s.45.1 is denied and the Tribunal will continue to process the Application.

24Since both parties agree to mediation, the Tribunal will schedule mediation and advise the parties of the time, date, and location of the mediation by Notice of Mediation.

25I am not seized of this matter.