Boukailo v. Canada Post Corporation

Boukailo v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2021-12-09
Neutral citation
2021 CHRT 43
File number(s)
T2504/6120
Decision-maker(s)
Raymond, K.C., Kathryn A.
Decision type
Ruling
Decision status
Interim
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT
43
Date:
December 9, 2021
File No.:
T2504/6120
Between:
Natalia Boukailo
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Post Corporation
Respondent
Ruling
Member:
Kathryn A. Raymond, Q.C.
Table of Contents
I. Introduction 1
II. Overview of Complaint 1
III. Alleged New Allegations 2
IV. Legal Framework for the Issues 2
V. Analysis Respecting Each New Allegation 4
A. Allegations Respecting the Complainant’s Work-Related Injury 4
(i) Submissions 4
Canada Post’s Position 4
Ms. Boukailo’s Position 5
(ii) Reasons 6
Past History of Complaint 6
No Amendment at Commission Stage 7
Nexus 7
Forum 9
Proof of Disability 10
Should the Content be Struck? 11
(iii) Ruling 12
B. Claim that Canada Post Should Pay Wage Loss/Benefits 12
(i) Introduction 12
(ii) Submissions 12
Canada Post’s Position 12
Ms. Boukailo’s Position 13
(iii) Reasons 14
(iv) Ruling 18
C. Allegation that Ms. Boukailo’s Signature was Forged 19
(i) Submissions 20
Canada Post’s Position 20
Ms. Boukailo’s Position 21
(ii) Reasons 22
(iii) Ruling 28
D. Allegation that Canada Post Retaliated 28
(i) Introduction 28
(ii) The Objections by Canada Post 28
(iii) The Tribunal’s Approach to Procedural Objections 31
Practical & Legal Implications 31
Rulings Upon Objections 31
(iv) The Relevant Content Respecting Retaliation 37
(v) Submissions 37
Canada Post’s Position 37
The Commission’s Position 39
(vi) Reasons & Ruling 40
E. Claim for Compensation for Future Loss and Pension Payments 45
(i) Submissions 45
Canada Post’s Position 45
Ms. Boukailo’s Position 46
(ii) Reasons 49
(iii) Ruling 52
VI. Summary 52
VII. Orders 54
I. Introduction
[1] Canada Post Corporation (“Canada Post”), the Respondent, believes that the Complainant, Ms. Boukailo, is attempting to expand her complaint of discrimination by asserting new allegations that were not part of Ms. Boukailo’s original complaint and which are “not connected to the central issues in dispute between the parties.” Canada Post has brought a motion for an Order striking out content in the Statement of Particulars filed by Ms. Boukailo and the Reply she filed in response to Canada Post’s Statement of Particulars. In the alternative, Canada Post requests an order requiring Ms. Boukailo to provide better particulars.
[2] For the reasons that follow, the motion is granted, in part, and is dismissed in other respects. Certain particulars are ordered to be disclosed.
II. Overview of Complaint
[3] At the time of the allegations in the complaint, Ms. Boukailo was employed full-time as a supervisor for Canada Post. On August 14, 2014, she injured her hand at work and was off work for a number of weeks on workers compensation benefits. She returned to her supervisor role with modified duties on October 29, 2014. Ms. Boukailo alleges that her supervisory position was ended prematurely and on only verbal notice on December 1, 2014 while she was still recovering from her injury. She says that she applied for another supervisory role in February 2015 and that during the interview she was asked questions about her injury. She was not selected for the position. Ms. Boukailo asserts that she was forced to return to work as a postal clerk on February 25, 2015, rather than being accommodated in a supervisor position and that Canada Post did not adequately accommodate her in the postal clerk position. She alleges that subsequently she was unsuccessful in other job competitions.
[4] The Commission referred the complaint in its entirety to the Tribunal for inquiry.
III. Alleged New Allegations
[5] In summary, Canada Post submits that Ms. Boukailo raised new allegations in the Statement of Particulars (the “SOP”) that she filed by alleging that Canada Post caused her workplace injury, that Canada Post should pay wage loss benefits, that her signature was forged on certain documents, that Canada Post has retaliated against her for filing the complaint and that she is fearful for her job security and is, therefore, seeking future lost wages and pension payments to the date of her retirement.
[6] Canada Post submits that Ms. Boukailo’s Reply contains further details respecting the alleged new allegations respecting forged signatures and retaliation that should likewise be struck.
IV. Legal Framework for the Issues
[7] The Tribunal’s jurisdiction to conduct an inquiry pursuant to the Canadian Human Rights Act, RSC 1985 c H-6 (the “Act”) is founded on the Commission’s referral of a complaint. The entire original complaint was referred to the Tribunal. In this motion, the Tribunal must decide whether Ms. Boukailo has incorrectly expanded the scope of her complaint through additional allegations in her SOP and Reply.
[8] One of the reasons that amendments to a complaint may not be allowed, that the scope of a complaint may be limited, or that content in a SOP may be struck by an Order of the Tribunal, is because of the requirement in the Act that the Commission decide whether to forward a complaint for inquiry to the Tribunal, and, if so, what is referred. It is the Commission that decides whether any complaint or component of a complaint is referred to the Tribunal. Potential complainants have no right of direct access to the Tribunal. Amendments are not permitted where they allow a party to circumvent the Act by creating new complaints before the Tribunal that were not screened by the Commission.
[9] Canada Post acknowledges that Ms. Boukailo is entitled to further explain and elaborate upon the allegations in her complaint in her SOP and Reply. In fact, she is required to do this by the Tribunal’s Rules of Procedure (the “Rules”). However, Canada Post submits that she can only elaborate upon the original allegations in her complaint. Canada Post relies upon Karas v Canadian Blood Services and Health Canada, 2021 CHRT 2 (“Karas”). At paragraph 24, the Tribunal in that case explained that “the substance of the Statement of Particulars must reasonably respect the factual foundation and original allegations of discrimination as set out by the complainant in the original complaint.”
[10] Canada Post submits that the legal test to be applied is whether the alleged new allegations have a link or nexus to the allegations underlying the original complaint filed with the Commission (Casler v Canadian National Railway, 2017 CHRT 6 (“Casler”) at para 7). In this regard, Canada Post asserts that “an amendment or new allegations must be connected to the original complaint filed and required to enable the Tribunal to inquire into the real issues in dispute (Casler at para 10).”
[11] The most obvious nexus or relevance is where new proposed content applies to the same grounds of discrimination and fits within the same discriminatory practices or types of practices already identified in the complaint. In this case, the same ground of discrimination is alleged with respect to all the alleged new content, except in relation to the complaint of retaliation, which is addressed separately below. Therefore, the analysis of the issue respecting “nexus” begins with deciding whether the disputed content fits within the same discriminatory practices or types of practices already identified in the complaint. If it does, the Tribunal will then decide whether the proposed new facts are entirely unrelated to the facts in the original complaint or are consistent with and necessary to the factual narrative of the complaint.
[12] Another important aspect of the legal framework for a motion to amend a complaint is whether there is real and significant prejudice to the other party associated with allowing the addition of information to the complaint (Casler at para 11, Letnes v Royal Canadian Mounted Police, 2019 CHRT 41 at paras 6 and 8.). This is necessary to ensure that this proceeding occurs in accordance with natural justice and procedural fairness. Accordingly, the issue of prejudice is also to be considered.
V. Analysis Respecting Each New Allegation
[13] Except for retaliation, each allegation that is alleged to be new will be assessed in relation to the existing discriminatory practices contained in the complaint. The discriminatory practices in the complaint may be summarized as follows: 1) that Ms. Boukailo’s position as supervisor was terminated without notice; 2) that she was required to return to work in a lower position as a postal clerk; 3) that her disability was not accommodated; and, 4) that she was denied other positions because of her disability.
[14] Apart from retaliation, the Canadian Human Rights Commission (the “Commission”) did not take a position on this motion. That is why the Commission’s position is not addressed beyond the retaliation section in these reasons.
A. Allegations Respecting the Complainant’s Work-Related Injury
(i) Submissions
Canada Post’s Position
[15] Canada Post alleges that Ms. Boukailo has raised new allegations with respect to the work-related injury that she suffered on August 14, 2014 in paragraph 2 of her SOP. Canada Post says that Ms. Boukailo is now asserting that she was injured due to unsafe work conditions that were created by Canada Post.
[16] Canada Post asserts that Ms. Boukailo does not explain how allegedly working in unsafe conditions amounts to discrimination. It submits that, in general, she does not suggest that her injury occurred because she was discriminated against.
[17] Canada Post submits that permitting evidence on this issue will not help the Tribunal determine the real issues in dispute, which involve human rights, not workplace injury.
[18] Canada Post further submits that the Tribunal is not the proper forum to raise a complaint about allegedly unsafe working conditions. It submits that Ms. Boukailo had the right to file a grievance with her Union. She also had the right to refuse to perform unsafe work pursuant to Part II of the Canada Labour Code, RSC 1985, c L-2 and/or the Workplace Safety and Health Act, CCSM c W210. Canada Post highlights that these statutes have procedures that workers are required to follow to refuse to perform unsafe work. These procedures create an opportunity for an employer to investigate what happened. It says that Ms. Boukailo did not follow these procedures, it did not have an opportunity to investigate, and she should not be permitted to raise this allegation five years later.
Ms. Boukailo’s Position
[19] Ms. Boukailo submits that the discrimination that she has experienced is part of a chain of events. She submits that the facts and associated evidence are all interconnected and demonstrate the full scope of discrimination that she believes she has experienced.
[20] Ms. Boukailo alleges that the first link in the chain of events in her complaint were the unsafe working conditions at Canada Post, which she attributes to insufficient staffing arrangements for supervisors over the week her injury occurred. In her response to the motion, Ms. Boukailo asserts that Canada Post breached its own Health & Safety Policy by having her work double duties due to the absence of other supervisors, in an effort to save costs. She submits that her workplace injury occurred as a result of these unsafe working conditions. She also says that this proves the existence of her disability.
[21] Ms. Boukailo states that Canada Post did have an opportunity to investigate the unsafe working conditions. She offered to provide the names of the supervisors who were absent. She also stated that she did not report the unsafe working conditions at the time “in fear of losing her job.”
[22] She also asserts the following: “…allegations regarding ‘unsafe and stressful work conditions’ that resulted in me getting an injury, were made in Statements, dated October 25, 2018 (page 3) and August 28, 2019 (Par.8 and in the conclusion).” As explained below, it appears that these were statements in submissions Ms. Boukailo made to the Canadian Human Rights Commission (the “Commission”) during its investigation of her complaint.
(ii) Reasons
Past History of Complaint
[23] When the complaint was filed with the Commission in 2015, there was no suggestion by Ms. Boukailo that her complaint included the issue of Canada Post’s potential responsibility for unsafe work conditions or that Canada Post caused her workplace injury. Ms. Boukailo indicates, however, that she made statements respecting “unsafe and stressful work conditions” during the investigation stage before the Commission in 2018 and 2019. The documents with these statements were not provided with her motion materials in support of her response.
[24] It appears that the statements to which Ms. Boukailo refers are submissions that she made to the Commission. The Commission filed a List of Documents from its own file with the Tribunal as part of the Tribunal’s disclosure process. The Commission’s list contains one document with the date of October 25, 2018, which is described as the Complainant’s submission to a Section 40/41 Report at the Commission stage. Likewise, there is one document dated August 28, 2019. This is identified by the Commission as Ms. Boukailo’s rebuttal to the defence to the complaint filed by Canada Post. The Tribunal concludes that the alleged statements are likely contained in these submissions.
[25] The Tribunal is not prepared to consider this information. Even if the content of the statements is confirmed to the Tribunal and is true, it is not relevant to the analysis in this case. The fundamental issue in this motion is “what was referred for inquiry by the Commission?” The Commission referred the original complaint to the Tribunal for inquiry. The original complaint was attached to the letter informing the Chair of the Tribunal of the Commission’s referral. The original complaint did not contain these statements or any reference to an unsafe workplace.
[26] When Ms. Boukailo asks that the Tribunal consider statements in submissions she made to the Commission during its investigation, she effectively requests that the Tribunal consider the past history of the complaint. Ms. Boukailo does not allege that there is any ambiguity in relation to what the Commission decided to refer to the Tribunal. If any ambiguity in this regard was found by the Tribunal, that could open the door to consideration of the past history of the complaint. However, there being no ambiguity about what was referred, there is no basis for the Tribunal to consider the history of the complaint before its referral.
[27] If there was a legal basis to consider the past history of this complaint, the Tribunal would not consider submissions made by a party to Commission staff during the investigation to properly be the “past history of the complaint”. The Tribunal should not consider anything other than decisions made by the Board of Commissioners of the Commission regarding the Commission’s assessment of the complaint and its decision about what is referred for inquiry. Only the Board of Commissioners has the authority to make these decisions. Unless a party’s submission is adopted in a decision by the Board of Commissioners of the Commission, it has no special standing post-referral, after the decision is issued. It is the formal decision of the Commission respecting what is referred that is determinative of the Tribunal’s jurisdiction, not what is contained in submissions made by a party to the Commission.
No Amendment at Commission Stage
[28] Ms. Boukailo apparently did not request amendment of her complaint before the Commission to include an allegation that the Respondent caused her workplace injury. Based on the Commission’s decision to refer the entire complaint, as filed, the Tribunal concludes that the Commission did not decide to expand or amend the complaint.
Nexus
[29] The Tribunal considered whether the allegation that the Respondent caused Ms. Boukailo’s injury could fall within her complaint, i.e., whether there was a nexus to her complaint even though there is no reference to unsafe working conditions in the complaint. The complaint states that:
The discrimination applies on the grounds of a temporary disability that had an impact on my ability to perform my job. The discrimination took place during my recovery following an injury that I sustained while at my place of work in Winnipeg, Manitoba.
[30] The complaint states that the discrimination took place during her recovery from the injury. This timing would exclude the circumstances of the injury. It appears, therefore, that, on its face, the new allegation is beyond the original complaint from a timing perspective.
[31] The complaint begins with the fact of the injury. The complaint states:
I got injured at work (wrist fracture) on August 14, 2014 during my Supervisor term. My injury required a visit to the Emergency Room where I stayed overnight until August 15, 2014.
[32] There is no content to tie the new allegation to the original complaint in a substantive manner, other than this reference which does not assign blame to the Respondent. The discriminatory practices alleged in the original complaint all relate to the Complainant suffering an adverse effect in relation to access to employment positions and accommodation because of her disability.
[33] Statements that Ms. Boukailo may have made to Commission staff during the investigation about Canada Post causing a workplace injury are distinct in nature from the other allegations in her original complaint. Unsafe work conditions do not fit within the same discriminatory practices or types of practices already identified in the complaint.
[34] The cause of the injury that Ms. Boukailo suffered to her hand at work and the existence (or not) of unsafe work conditions have no apparent relevance to Ms. Boukailo’s human rights. The fact that she injured her hand is relevant. That is the first event in the original complaint and the beginning of the alleged chain of events that are relevant to her complaint. How she injured her hand is not relevant to her human rights complaint. Not everything that happened in Ms. Boukailo’s life prior to her human rights complaint is relevant to her human rights complaint.
[35] The Tribunal concludes that content alleging Canada Post’s responsibility for unsafe work conditions or allegations that Canada Post caused Ms. Boukailo’s workplace injury clearly go beyond the scope of the original complaint. The Tribunal is not persuaded that this new allegation is required to be included to enable this inquiry to address the real issues in dispute.
Forum
[36] The impugned content in paragraph 2 of the SOP is a distinct allegation by reason of its legal implications. The Tribunal notes that Ms. Boukailo’s SOP does not identify the “unsafe work conditions” issue in the “Issues” section of her SOP or the “Remedy” section. It is not, therefore, technically an allegation for which a remedy is sought in her SOP. However, in her response to the motion, Ms. Boukailo expands upon the allegation in paragraph 2 of her SOP, and, at para 23, she submits that the “Respondent failed to comply with the Health and Safety Policy, by creating unsafe and stressful work conditions, which in turn led to a workplace injury, which happened on August 14, 2014, and has affected my entire life.” (emphasis added). Ms. Boukailo does not explain in her response to the motion what she would like to have happen as a result of the workplace injury alleged to have been caused by Canada Post. However, it seems clear that she intends for this content in paragraph 2 to be an allegation and an important allegation, given her assertion that this affected her entire life. Accordingly, the Tribunal concludes that paragraph 2, and, in particular, the sentence “The Respondent failed to provide proper staffing and created unsafe work conditions” to be not only alleged additional facts but a significant allegation against Canada Post.
[37] The new allegation is an allegation that, in theory, gives rise to its own cause of action and remedy in our legal system. It is legally capable of giving rise to its own legal proceeding. That another legal process was commenced is acknowledged in the complaint as the complaint states: “A case file with the Workers Compensation Board of Manitoba was opened following this incident.”
[38] Workers’ compensation is available in Canada through statutory regimes in each jurisdiction and applies to any injury that occurs at work, regardless of fault. The purpose of the compensation is to provide financial support to employees injured on the job. Employees do not need to bring legal proceedings against their employers to obtain compensation or benefits, which would be very difficult for many employees to do. A primary feature of workers compensation regimes is the idea that, if an employer causes an employee’s injury, compensation can be available without the need to go to court. Instead, the employee has access to the workers compensation program. It seems that when Ms. Boukailo seeks to amend her human rights complaint to allege that Canada Post caused the injury that occurred at work, she is erroneously attempting to obtain compensation though the Tribunal that she is required to obtain through workers compensation.
[39] The Commission and Tribunal have a different jurisdiction, one that concerns the subject matter of human rights as required by the Act. There is nothing in the Act about unsafe work conditions or work-place related injuries that occur outside of harms said to arise from discrimination. The Tribunal is not persuaded that the allegation that Canada Post caused Ms. Boukailo’s injury to her wrist is relevant or appropriate to address in this complaint. This is not the appropriate forum.
[40] Other legislation, namely the Canada Labour Code and the Workplace Safety and Health Act, specifically apply to workplace safety and work-related injuries. They are of direct relevance. If there are unresolved disputes in this regard, recourse is available pursuant to this legislation to other tribunals that do have jurisdiction.
Proof of Disability
[41] Ms. Boukailo further submits that the fact that the unsafe working conditions resulted in the injury to her hand proves her disability. The fact that a workplace injury occurred does not prove that Ms. Boukailo has a disability, as she suggests. Not all workplace injuries give rise to a disability. Many do, but not all. For some injuries resulting in disability, the disability is temporary. What matters is whether Ms. Boukailo had a disability or a perceived disability at the time relevant to her complaint. The issue of whether a disability existed at the relevant time for purposes of the complaint will be determined based on the evidence presented at the hearing.
Should the Content be Struck?
[42] The next issue is whether it is appropriate to strike the following three sentences in paragraph 2 of the Complainant’s SOP on the basis that they are not legally relevant to the legal issues in the case:
The Respondent failed to provide proper staffing and created unsafe work conditions. I had to work under a lot of stress and pressure because I was asked by management to cover for two other supervisors that were off that week, on top of my own responsibilities. Being overworked, in turn, led me to my accident in the workplace.
[43] Striking content from an SOP can be a blunt approach for a tribunal to take to resolving problematic content. One approach could be to allow the content to stay although it is irrelevant, subject to conditions about its use for purposes of the merits of the case. For example, the allegation could be allowed to remain in the SOP but not be used for purposes of liability.
[44] This allegation, if allowed to remain in the SOP, will become part of the public record. This is because human rights cases are open to the public at the hearing stage. The allegation that Canada Post caused this injury carries an obvious reputational implication, based on the reasons alleged, including it being deliberate in the sense that cost was put ahead of employees. This allegation could create a negative perception for Canada Post that is unrelated to this complaint in a public domain.
[45] The Tribunal has decided that this allegation will not be ruled upon for purposes of liability or even as part of the Tribunal’s fact-finding exercise, because it is not relevant to the complaint. Canada Post will not be required to provide evidence in respect of this issue.
[46] Canada Post will, therefore, not have an opportunity to defend itself against this allegation. In the result, this allegation will not be in anyway dispelled by the Tribunal’s ruling on the merits. It is not fair to Canada Post to leave a significant allegation of wrongdoing in Ms. Boukailo’s SOP that carries reputational implication that will not be resolved by this proceeding and is immaterial to it, beyond leading up to the fact of injury, which is material to this complaint. The three sentences in paragraph 2 of Ms. Boukailo’s SOP are struck and, therefore, are to be removed from Ms. Boukailo’s SOP.
[47] The Tribunal will grant Ms. Boukailo some leeway in the course of telling her story at the hearing, for purpose of providing information about what occurred as background only, because she is self-represented. That said, Ms. Boukailo is to try her best to begin with her injury and her assertion of disability as she did in her written complaint. If, as a self-represented person, Ms. Boukailo strays from the fact of her injury and the alleged facts regarding how it occurred on August 14, 2014 and advances an allegation that Canada Post caused her injury in the course of her evidence, Canada Post may object. The Tribunal will address the objection.
(iii) Ruling
[48] The three sentences in paragraph 2 of Ms. Boukailo’s SOP identified above will not be ruled upon by the Tribunal as they are irrelevant to the complaint. They are deemed to be struck from the Complainant’s SOP.
B. Claim that Canada Post Should Pay Wage Loss/Benefits
(i) Introduction
[49] It appears that the Workers’ Compensation Board of Manitoba (the “WCB”) paid Ms. Boukailo benefits when she was originally on medical leave due to the injury she sustained at work in August 2014. Ms. Boukailo appears to allege in her SOP at paragraph 13 for the first time that, for a period after April 11, 2015, she was not fit for “full-time” duties and had a wage loss. In paragraph 33(c) of her SOP, she indicates that she is seeking an Order from the Tribunal that Canada Post pay “return to work wage loss in the amount of $3033.31”. (emphasis added) No other explanation or detail is provided in her SOP.
(ii) Submissions
Canada Post’s Position
[50] Canada Post takes the position that the amount claimed in paragraph 33(c) is unpaid wage loss benefits that were declined by WCB, not a wage loss per se. Canada Post provided a decision from WCB respecting Ms. Boukailo’s appeal of a denial of wage loss benefits by WCB. Her appeal was unsuccessful. Canada Post believes that Ms. Boukailo is claiming that Canada Post should pay the amount that she believes should have been paid to her by WCB.
[51] Canada Post’s first submission is that it will not assist the Tribunal to call evidence on this issue to determine the real issues in dispute in this complaint. As a reminder, the allegations involve the termination of Ms. Boukailo’s supervisor position, her return to a lesser position, a failure to award her another supervisor position or to allow her progression to other positions, and a failure to accommodate her.
[52] Canada Post submits that the remedy Ms. Boukailo seeks in paragraph 33(c) falls exclusively within the jurisdiction of the WCB. It submits that Ms. Boukailo has not explained how the Tribunal has the jurisdiction to award her this compensation as a remedy. Given the preliminary ruling below, it is not necessary to relay the details of Canada Post’s submissions respecting jurisdiction at this time. Canada Post requests that both paragraphs 13 and 33(c) be struck.
Ms. Boukailo’s Position
[53] By way of background, in paragraph 33(a) of her SOP, Ms. Boukailo claims a wage loss from Canada Post from the time of the alleged discrimination until her retirement. It appears that this is related to her claim that her full-time position as a supervisor was taken from her and she was required to work at a lower-level position as a postal clerk on a part-time basis.
[54] The new allegation in paragraph 33(c) of the SOP is that a “return to work wage loss” is being claimed. At paragraph 13, Ms. Boukailo states that there was “a wage loss that I was entitled [to] during the Return to Work beyond April 11, 2015, that WCB refused to accept.” She also states that “there were medical conditions and duty restrictions from my doctor that did not allow for full-time regular work.” It appears that Ms. Boukailo is saying that she had a wage loss after April 11, 2015 arising from her disability as a postal clerk that is separate and distinct from her wage loss claim in relation to the loss of her supervisor position.
[55] In her submissions in response to the motion, Ms. Boukailo has a section entitled “Wage loss beyond April 11, 2015.” She submits at paragraph 24 that Canada Post failed to accommodate her by forcing her “to start unmodified duties as a postal clerk without medical clearance, which aggravated the condition of my hand and significantly delayed my recovery.” She refers to alleged medial restrictions by her physician continuing beyond May 25, 2015. Ms. Boukailo further asserts in her submissions that she is entitled to a partial wage loss benefit beyond April 11, 2015 without stating what benefit this is or who the benefit provider is supposed to be. Ms. Boukailo also says that the wage loss claimed is relevant to her case because “(a)ccording to the information provided by WCB Admin. Support at Canada Post ‘a temp employee in a full-time supervisory position gets paid by CPC.’” She did not provide further details or evidence in this regard.
(iii) Reasons
[56] In general, the issues are not clearly identified or articulated by Ms. Boukailo, nor is the Tribunal prepared to accept, at this time, the manner that the issues are framed by Canada Post.
[57] What exactly is being claimed in paragraph 33(c) is not clearly identified. It is not clear whether it is wage loss benefits in the same amount that Ms. Boukailo hoped to receive from WCB for the period after April 11, 2015, that she believes ought to be paid by Canada Post now that they have been denied by WCB, or, a wage loss that allegedly should have been covered by Canada Post that is distinct from the wage loss that is already claimed in paragraph 33(a).
[58] Ms. Boukailo does not fully explain why the loss is compensable. She does not detail how the allegation that the Respondent failed to accommodate her is said to give rise to the specific amount in paragraph 33(c) of the SOP. Ms. Boukailo refers to a lack of accommodation of her hand injury by Canada Post in the postal clerk position at paragraph 22 of her SOP and to a failure to accommodate her during a return-to-work program in that position at paragraph 23. She says that she suffered a psychological impact because of the discrimination that extended her recovery at paragraph 27. This suggests that she believes that her hand injury was exacerbated, or her recovery was delayed because of her hand and/or because of the psychological impact from not being accommodated and other alleged adverse effects of discrimination. It seems that she may be attempting to hold Canada Post responsible for any uncovered wage loss on this basis.
[59] On the other hand, if she is trying to hold Canada Post responsible for an amount that was the sole and exclusive obligation of WCB to pay, post April 11, 2015, as Canada Post states, she does not explain her logic for expecting Canada Post to pay it. If she is asserting that someone within WCB Administrative Support at Canada Post informed her that, if she had remained in her temporary supervisor position, she would not be covered by WCB but would be paid by Canada Post, she is not clear about that. She does not appear to have sought additional information from this person about the basis for this alleged assertion or, in general, respecting this issue for the hearing.
[60] As indicated, Ms. Boukailo claims that when she returned to work in February 2015, it was to a part-time position, not a full-time position. However, Ms. Boukailo states that her physician did not approve her for full-time regular work after April 11, 2015. What occurred in the meantime is not explained by her. What occurred after April 11, 2015 is not explained.
[61] Not even the relevant period of time is specified for paragraph 33(c). The Tribunal has only been informed that the relevant period began on April 11, 2015, not when it ended.
[62] There is no explanation of what wage loss benefits are, whether they equate to 100% replacement of a wage loss or the legal basis upon which they are paid. WCB operates on essentially a no-fault basis. Assessments of the amount of payments owed to an employee are not based on determinations of liability as they are before this Tribunal.
[63] Resolution of the dispute concerning paragraph 33(c) depends upon whether all potential compensation payable to Ms. Boukailo for the period covered by paragraph 33(c) is the sole and exclusive responsibility of WCB or is something that Canada Post is responsible for. There are too many unanswered questions in this regard.
[64] The Tribunal is not prepared to adopt whatever facts, findings or conclusions appear in the WCB decision at face value for purposes of this motion, as Canada Post seems to encourage. It appears from the WCB decision that Ms. Boukailo was working restricted hours based on medical advice and that she had a wage loss. The WCB decision determined whether WCB was responsible for payment of wage loss benefits to Ms. Boukailo after April 11, 2015. It concluded that it was not responsible. It did not determine whether Canada Post is responsible for any payments after April 11, 2015. The WCB decision did not consider whether there was a failure to accommodate or whether a failure to accommodate delayed Ms. Boukailo’s recovery. The WCB tribunal operates in a separate regime, under different legislation. In short, the WCB decision does not consider the same issues or consider them in the same way as this Tribunal.
[65] The WCB decision also identified two medical problems. However, it focussed on the injury to Ms. Boukailo’s hand. It appears to have accepted that this injury occurred at work and assessed whether she was able to work “full” hours after April 11, 2015 with that injury. There was some indication in the decision that the second medical issue, which was psychological in nature, was not considered to have occurred at work or at least was not WCB’s responsibility. Accordingly, the WCB decision did not determine whether and to what extent Ms. Boukailo could or could not work in relation to both medical issues, rather only the extent of WCB’s responsibility for payment of wage loss benefits after April 11, 2015 for the injury it considered had occurred at work.
[66] WCB determined it had no obligation to Ms. Boukailo, but she may be asserting that there is some other benefit or compensation owed to her by Canada Post for the relevant period. If WCB is not responsible for any wage loss following the April 11, 2015 period respecting the postal clerk position, based on the wrist injury, it is not clear that Canada Post has no responsibility either. Ms. Boukailo needs to provide particulars of her claim in this respect. This includes that Ms. Boukailo should clarify whether she is saying that there is a legal basis for Canada Post to cover a wage loss during a return to work concerning a disability over and above what WCB may provide or whether the obligation exists respecting a disability that is not work-related, or whether Canada Post has an obligation to her pursuant to some other relevant benefit under the collective agreement or any applicable insurance plan(s). The jurisdictional issues must be considered once the background facts are clarified.
[67] Canada Post’s first submission is that answering the issue raised by paragraph 33(c) does not assist the Tribunal in resolving the central issues in this case. One of the significant issues in dispute in this case is the issue of remedy. Paragraph 33(c) is relevant to the issue of remedy. It would assist the Tribunal to have evidence to establish the facts and clarify the nature of the claim so that the Tribunal may accurately determine whether paragraph 33(c) concerns a relevant and compensable form of requested remedy and, therefore, whether to order payment of this amount.
[68] Canada Post submits the Tribunal does not have the jurisdiction to award Ms. Boukailo compensation in this regard as a remedy because the remedy she seeks falls exclusively within the jurisdiction of the WCB. As is explained above, there is no evidence to establish that the amount specified in paragraph 33(c) is solely an amount that Ms. Boukailo expected WCB to pay or that WCB, alone, is responsible to pay this.
[69] Typically, the Tribunal would decide a jurisdictional issue as a preliminary matter. However, the Tribunal is not in a position to make factual findings about what occurred during this period or to fully assess the issue of liability for lost wages that Canada Post may possibly owe Ms. Boukailo, including for the relevant period of time after April 11, 2015, without the benefit of the evidence at the hearing. The Tribunal does not have comfort that it has a complete and correct basis to determine the facts upon which the jurisdictional argument would be argued
[70] Further, unless Ms. Boukailo establishes a prima facie case of discrimination at the hearing, it will not become necessary for the Tribunal to deal with the issue of remedy. On this point, Ms. Boukailo must first prove, in the face of any evidence advanced by the respondent, that she has a protected characteristic, that she suffered an adverse impact in relation to her employment, and that there is a link between the protected characteristic (disability in this case) and the adverse impact she suffered. The Tribunal will make determinations respecting whether Canada Post is liable for any of the allegations substantiated during the hearing. Assuming liability is established, remedy becomes an issue to be determined by the Tribunal. That is because remedy flows from liability. It is in the context of liability that Ms. Boukailo must prove that she has what are, in theory, compensable losses permitted under the Act pursuant to section 53. To be awarded compensation, however, she must also prove that her alleged losses flow from the liability found by the Tribunal.
[71] For the above reasons, and, in the interests of efficiency, therefore, it is premature to deal with this issue as a pre-hearing motion. To be clear, Canada Post is free to pursue the argument in its submissions respecting jurisdiction in the future, if required.
(iv) Ruling
[72] If there is a legal basis for Canada Post to provide additional compensation in relation to the postal clerk position, separate from any amount that is exclusively owed by WCB for the same period of time, as alleged in paragraph 33(c) of the SOP, that issue will be addressed at the hearing in relation to Ms. Boukailo’s wage loss claim. The Tribunal is not prepared to ma