'Beliefs aren't going to be enough to survive the reasonable prospect of success test'
“There are 17 protected grounds under the Human Rights Code and one of those needs to have been a factor in whatever the employee suggests was unfair or improper treatment in order to engage the Human Rights Code.”
So says Joel Smith, a partner with Williams HR Law in the Toronto area, after the Ontario Human Rights Tribunal dismissed an employee’s disability discrimination application in a summary hearing as not having a reasonable prospect of success in a full hearing.
“To use a pretty simple example, an employee who was yelled at by a manager who was just in a bad mood is a different situation than an employee who was yelled at because of their race or their disability,” says Smith. “The latter circumstance is a relevant issue with respect to the code and something that the tribunal could potentially hear about, but the former doesn't relate to the employee’s protected grounds and, therefore, it's not something that the tribunal has any jurisdiction to deal with.”
The worker in this case was employed with Staff Plus, a temporary and permanent personnel service based in Toronto.
On Dec. 4, 2017, the worker was operating a forklift at the workplace of a Staff Plus client. There was an accident and the worker suffered an injury to his right knee. He didn’t seek medical attention following the accident, but he applied to the Ontario Workplace Safety and Insurance Board (WSIB) for loss-of-earnings benefits.
Worker’s compensation claim rejected
The WSIB denied the worker’s claim because he didn’t receive any medical treatment for his injury. The worker appealed the decision.
The worker returned to work on Dec. 22, performing modified duties. He worked for about one month until Jan. 12, 2018, when Staff Plus informed him that there was no more modified work for him. The company noted the rejection of the worker’s WSIB claim and implied that he didn’t need modified work any longer.
The worker didn’t provide any medical reports updating his condition and capabilities, so Staff Plus didn’t return him to work.
On April 16, 2018, Staff Plus sent the worker a record of employment (ROE) indicating that he quit his job. According to the worker, this was the first time he knew that his employment was terminated.
WSIB decision not a basis for accommodation
Smith notes that the tribunal’s decision was vague on whether the worker chose to stop reporting for work after the cessation of modified duties, but he says that either way, the employer’s decision on accommodation should involve medical information and not rely on the outcome of workers’ compensation claims.
“Employers would be would generally be better off actually ensuring that they get medical information that confirms whether the employee is entitled to accommodations before stopping providing them,” says Smith. “The WSIB decision is about whether the injury was suffered at work and whether the employee continues to be unable to [perform] the regular responsibilities of their role.”
“There can be a distinction between what the WSIB determines and whether the employee requires accommodation – there certainly can be cases where the employee is entitled to accommodation and can be accommodated by the employer, such that they don't need any WSIB benefits with respect to loss of earnings,” adds Smith. “And so to solve accommodation in a circumstance like [a WSIB claim rejection] is going to be a somewhat risky approach for the employer.”
On Oct. 17, the WSIB allowed the worker’s appeal and determined that the worker was entitled to health-care benefits.
The worker filed a human rights complaint, alleging that Staff Plus failed to accommodate his disability and terminated his employment because of the injury, which he suffered in the workplace. He also filed a separate application against the WSIB, alleging that it also failed to accommodate his disability when it refused to approve and provide support for treatment related to the workplace injury.
The worker also argued that he did not quit his job and that he had reasons to leave his employment under the federal Employment Insurance Act.
Summary hearing
The tribunal evaluated the worker’s complaint to determine if it had a reasonable prospect of success before going to a full hearing. To pass the assessment, the complaint would have to show a link between an event and a protected human rights ground, and whether there could be proof – beyond speculation and accusations – that the worker’s rights under the Ontario Human Rights Code were violated.
The tribunal found that there was no evidence indicating that the worker’s disability might have been a factor in the termination of employment. Staff Plus accommodated the worker with modified duties until such duties were no longer available and, since the worker didn’t provide medical evidence that he could only perform modified duties – and the WSIB claim had been rejected – the company expected full duties from the worker. The worker refused to provide medical information and apparently stopped coming into work, said the tribunal.
It appears that the worker believed that his disability was a factor in his termination and the rejection of his workers’ compensation claim, but his complaint was only based on that belief, says Smith.
“What the [tribunal] seems to have determined is that the only kind of facts set out in the application that related to discrimination on the basis of disability were mere beliefs,” he says. “This decision really stands for the principle that ‘facts’ that really just aren't facts but rather are merely beliefs aren't going to be enough to survive the reasonable prospect of success test.”
Unfair treatment not necessarily discrimination
The tribunal noted that the worker felt that he had been treated unfairly by Staff Plus and the WSIB. However, it was beyond the tribunal’s jurisdiction to address unfair treatment if there was no evidence it was related to prohibited grounds under the code, said the tribunal.
“Unfortunately, we see a lot of cases like this filed before the tribunal where employees are alleging discrimination on other bases, because they feel they've been treated unfairly,” says Smith. “But if it's not related to protected grounds of discrimination under the Human Rights Code, then it's not going to be something that the tribunal has jurisdiction over and it's not going to be something to which the Human Rights Code is relevant.”
The tribunal also noted that if the worker had a complaint regarding his workers’ compensation claim, he must file an appeal with the WSIB as the tribunal had no jurisdiction over workers’ compensation matters.
The tribunal determined that it was unlikely that the worker could prove that there was a link between his termination and his disability. It dismissed the application as having no reasonable prospect of success in a full hearing.
The fact that the employee’s application was dismissed before it went to a full hearing is a reminder for employers that the summary hearing process is available to help resolve matters more quickly where an employee complaint may not have much behind it – particularly since the tribunal has a backlog of cases that can stretch out the hearing process, says Smith.
“Employers should know to take advantage of this process, which can really reduce the time and expense that they have to spend dealing with these applications all the way to a hearing,” he says. “This employer was able to minimize some of the time and expenses before getting [to a hearing], although it certainly doesn't eliminate the employer’s headaches from the beginning.”
See Diarez v. Staff Plus aka DJ Gosselin Personnel Inc., 2022 HRTO 1100.
