CSR | May 2017 | News
Because he was refusing suit-
able work that was available, the
WSIB cut off his loss-of-earnings
benefits. An appeals resolution
officer overturned this decision,
finding the work that was avail-
able was suitable for Chodha and
he was entitled to loss-of-earn-
ings benefits up to Nov. 19, 2014
— the date Choda slipped on
some ice in a non-work-related
accident and exacerbated his in-
juries, from which he had almost
fully recovered at that point.
Chodha received employment
insurance benefits until August
2015, after which he found a new
job.
Note's date a 'mystery'
The tribunal examined a copy of
the note — the original note was
lost and Times Kitchen had a scan
of it — and could not find any
evidence the date was changed.
There was no indication of a
whiteout and the date was in the
same handwriting as the rest of
the note. Due to the chiroprac-
tor's statement that he didn't see
Chodha on Feb. 6, 2014, the tri-
bunal accepted that, but it also
found that the note wasn't altered
and the reason the note was dated
Feb. 6 was "a mystery."
The tribunal noted that un-
der the Ontario Human Rights
Code, the issue was not whether
the employer has offered suit-
able employment — first deter-
mined by the WSIB as yes and
then an appeals resolution offi-
cer as no — but rather whether
the employer has accommo-
dated the worker to the point of
undue hardship.
The tribunal also noted that
the code's definition of "disabil-
ity" included "an injury or dis-
ability for which benefits were
claimed or received under the
insurance plan established un-
der the Workplace Safety and
Insurance Act, 1997."
The tribunal found that Times
Kitchen was engaged with the
workers' compensation pro-
cess until the owner noticed the
date on the note. Since it had al-
ready found the date on the note
hadn't been altered, it accepted
that Times Kitchen sincerely
believed the date was evidence
that the note was fraudulent and
Chodha was trying to substanti-
ate an absence from work with a
note from several months before
his employment started. This
belief in a fraudulent note was
a "non-discriminatory explana-
tion for the termination of the
employment," the tribunal said.
In addition, the tribunal
found that Times Kitchen was
a small business and Chodha's
medical restrictions significant-
ly limited the work he could do.
It was reasonable to think that
there were no modified duties
available for Chodha immedi-
ately following his injury and
it wasn't discriminatory for the
owner to tell him so.
"The duty to accommodate an
injured employee who cannot
do his regular duties does not
necessarily require an employer
to immediately offer alternative
work," the tribunal said in dis-
missing Chodha's human rights
complaint. "The employer is not
obliged to offer alternate work
if there is no such work or if the
employee would not have been
working if the injury had not oc-
curred because of a shortage of
work."
For more information see:
• Chodha v. 1352866 Ontario
Inc., 2016 CarswellOnt 21283
(Ont. Human Rights Trib.).
Injured < pg. 5
Employer sincerely believed note was false
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