Two Kicks at the Can: Worker Allowed to Re-litigate WSIB Accommodation Dispute at the Human Rights Tribunal

Most employers are likely familiar with the WSIB return to work process which often involves a WSIB employee attending at the workplace for the purpose of identifying suitable and sustainable work for the injured worker.  In circumstances where there is a dispute about whether a position is suitable and/or available, the WSIB will examine the circumstances and make a written decision.  The worker and the employer have the right to appeal an adverse decision initially to the WSIB Appeals Branch and ultimately to the independent Workplace Safety and Insurance Appeals Tribunal.

An employer could perhaps be forgiven for thinking that if the WSIB ruled that the company could not accommodate the worker, the worker would be required to pursue the issue through the WSIB appeals process and would not be permitted to seek a different result from the Human Rights Tribunal.

After the landmark decision of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII), it appeared clear that workers would not be permitted to litigate accommodation issues in multiple forums.  Unfortunately for employers, a number of recent decisions have made it clear that an adverse WSIB decision on accommodation will not prevent an employee from bypassing the WSIB appeals process and seeking an entirely new adjudication of the same issue at the Human Rights Tribunal.

In McMurter v. Goodyear Canada Inc., 2013 HRTO 1858 (CanLII), the employer sought dismissal of a human rights application on the basis that the issues in the case had already been decided by the WSIB.  The issue in dispute appears to relate primarily to whether the employer had an obligation to permanently accommodate the employee in the modified work she had been performing.  The worker had been performing what the decision called a series of “bundled” duties.

A return to work meeting was held with the worker, the employer and WSIB Return to Work Specialist present.  The decision indicates that the employer explained at the Return to Work meeting that the bundled  duties were “transitional” and were used for “work hardening purposes”  to assist the employee in returning to her pre-injury job and did not represent a permanent position. The worker expressed her view at the meeting that the duties should be made into a permanent position.   After apparently hearing from both sides, the WSIB made a decision which is set out in part below,

A temporary modified work program is distinct from suitable work that becomes available. A temporary modified work program is not a job. It is a program that assists in the return to work process, such as the Flex Tech role described above.

Although [the applicant] feels that the employer should be able to accommodate her, an employer is not required to create a position. The criteria as stated above is, “if a job becomes available that can be made suitable through accommodation, and the accommodation does not cause the employer undue hardship, the employer must provide the accommodation.” That has not happened in this case. There has been no open position identified that could be made suitable through accommodation. The employer continued to cooperate in the Work Reintegration process as evidenced by the various Return to Work interventions

The worker had the right to appeal the WSIB’s decision but did not do so.  The employer terminated the employee (presumably on the basis of frustration of contract) on the day the WSIB’s accommodation decision was released.  The employee filed a human rights application alleging discrimination based on disability and the employer attempted to rely on the WSIB’s accommodation decision to get the application dismissed on a preliminary basis.

The Human Rights Tribunal denied the employer’s request and relied heavily on the recent Supreme Court of Canada decision in Penner v. Niagara (Regional Police Services Board)2013 SCC 19 (CanLII). The Penner decision pertained to an individual’s ability to pursue a civil action after a decision had already been rendered in a police disciplinary hearing about facts at issue in the civil case.  The Supreme Court emphasized that the Plaintiff in Penner was not entitled to damages or another remedy from the police discipline hearing.  In other words, the police discipline case related to the question of whether the officer should be punished rather than whether the Plaintiff was entitled to compensation.

The Human Rights Tribunal held that the reasoning in Penner was also applicable to a WSIB accommodation decision.  The Tribunal emphasized that the worker did not have a financial interest in the WSIB decision as she was automatically entitled to benefits once the WSIB held that the employer had no suitable work.  It is certainly true that the worker was never in jeopardy of losing her benefits as result of the WSIB decision.  However, in our view, that should not have been the end of the Tribunal’s analysis.

In our view the issue in dispute in the WSIB matter was whether the employer should be required to reinstate the worker to the accommodated duties she was previously performing.  If the WSIB had ruled in favour of the worker, it likely would have directed the employer to cooperate by reinstating the worker.

If the employer refused, the WSIB could have imposed draconian penalties on the employer for non-cooperation.  This means in our view that the employer would have had no realistic alternative but to reinstate the worker in what it viewed as a non-productive position while it presumably exercised the appeal rights available under the Workplace Safety and Insurance Act.

The Tribunal has acknowledged that it will have to make findings on the same accommodation issue that the WSIB has already ruled on, but held that because of Penner and other similar decisions it was permissible to take a second look at the issues.  In our view, this approach undermines the principal of finality in litigation and encourages workers to launch parallel proceedings relating to essentially the same issues.  It seems likely that the Supreme Court of Canada will be required to clarify whether decisions of workers’ compensation boards on accommodation can be re-litigated in other forums.

In the mean-time, employers must appreciate that decisions of the WSIB on accommodation will not likely bar workers from pursuing accommodation related claims at the Human Rights Tribunal.  Employers must ensure that they engage in a robust review of all available and productive work in order to establish that no suitable productive work was available and be prepared to defend that decision in multiple forums.  It appears that the decision of a WSIB Case Manager on an accommodation issue will not be of great assistance to the employer at the Human Rights Tribunal.

The employer in the McMurter case terminated the employee immediately upon receipt of the WSIB’s decision.  The decision to terminate may very well have been a mistake, particularly in light of the fact the employee was terminated before the worker’s right to appeal the decision had expired.  It is our view that employers are generally better to hold off on termination decisions until the worker has completed the WSIB retraining (work reintegration) process and assessment can be made whether the retraining qualifies the worker for any position within the organization.

Another question is whether following the WSIB’s processes offers a defence to a discrimination claim on the merits.  It could certainly be argued by an employer in the appropriate case that it was simply following the law by participating in the WSIB’s work reintegration process and abiding by the rulings of the Board in good faith.  For such an argument to succeed, the employer would likely have to hold off in making any final decisions with respect to termination until the entire work reintegration process (including any retraining) has concluded.  Although it is difficult to say for certain, it is our view that it is unlikely that simply following the WSIB process will be sufficient to defend a claim of discrimination based on disability.

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