July 8, 2014
The Ontario Human Rights Tribunal (“OHRT”) has refused to exercise its discretion to defer consideration of a human rights complaint alleging a failure by an employer to discharge its duty to accommodate despite the fact that the Workplace Safety and Insurance Board (“WSIB”) had issued a decision finding the employer could no longer accommodate the employee.
In the OHRT’s April 2014 decision, the employee at issue was a packager who sustained an injury when a steel beam fell on his head. After a short absence, the employee returned to work performing modified duties. Despite the employee’s fairly quick return to work, an outstanding appeal relating to his claim for non-economic loss remained before the Workplace Safety and Insurance Act Tribunal (“WSIAT”) while appeals relating to his claims for compensation for physiotherapy bills and a challenge to his return to work plan remained outstanding with the WSIB.
A little over a year after the employee’s initial injury, the WSIB’s Return to Work specialist determined that the employer could no longer offer the employee modified work. As a result, the WSIB placed the employee in a work transition program. The employee decided not to challenge this particular conclusion by the WSIB and instead pursued a human rights complaint at the OHRT alleging the employer had discriminated against him with respect to employment on the basis of disability contrary to the Human Rights Code by failing to properly accommodate his disability.
The employer argued that the OHRT should defer consideration of the employee’s discrimination complaint because there were WSIB and WSIAT appeals being pursued by the employee. The OHRT rejected this argument. In doing so, the OHRT pointed out that both the WSIB and WSIAT appeals being pursued by the employee had nothing to do with the accommodation issue. For this reason, the OHRT concluded there was no basis to defer consideration of the employee’s OHRT complaint.
This decision exemplifies the fact that some OHRT Vice Chairs will not be prepared to accept conclusions reached by WSIB staff relating to an employer’s ability to offer modified work as determinative of the duty to accommodate issue from a human rights perspective. The decision also confirms that the failure of an employee to appeal WSIB decisions relating to issues of accommodation to the WSIAT will not preclude the employee from seeking redress at the OHRT. The decision does, however, still leave open the possibility that duty to accommodate issues appealed to the WSIAT may provide justification for the OHRT to exercise its discretion to defer consideration of any such complaints or even possibly dismiss them outright.
Leonides v Mevotech Inc. 2014 HRTO 555 (CanLii)