FAQ's Cases - Stewart McKelvey

tasks beyond his functional limits in the period April 23 to and May 31, 2007 is animportant issue in this case.[19] On April 27 Ms. Roehl faxed a copy of the applicant’s Form 7 along with the threenotes provided by the applicant on April 23 to the WSIB. She identified on the form thatthe applicant had an illness rather than an accident as it was the respondent’s positionthat the applicant had not been injured at work. The applicant’s WSIB claim waseventually allowed for both health care and lost time and the applicant received loss ofemployment benefits during the period June 1 to September 4, 2007, a period duringwhich he either was not working or was working reduced hours.2012 HRTO 1455 (CanLII)[20] The WSIB was actively involved in the applicant’s return to work efforts duringthe period of April to September 2007. The applicant accessed his WSIB file and thisdocumentary evidence including records of the contact between the WSIB, the applicantand respondent over the period of May to September 2007 was before me. I haverelied on this documentation to make certain findings.[21] On May 22 the applicant provided a further medical note from his doctor sayinghe was able to continue with light duties until June 4.[22] On May 22 the applicant also met with his supervisor, Mr. Castellano. Theapplicant testified that during this meeting Mr. Castellano made a number of commentsthat the applicant found to be harassing and discriminatory in nature. He testified thatthese comments indicated that Mr. Castellano did not accept that the applicant had asignificant injury, that he was opposed to having to continue to provide accommodationfor the applicant, that Mr. Castellano was of the view that the applicant was too old forhis job. Mr. Castellano denied these comments, contending that the applicantmisunderstood or misconstrued the comments he did make. An important issue in thiscase is whether Mr. Castellano’s behaviour on May 22 can be considered harassmentand evidence that he treated the applicant in a discriminatory manner.7