Buritica v. Campus Living Centres, 2008 HRTO 334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aliria Buritica

Applicant

-and-

Campus Living Centres Inc. and Bernie Dwyer

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 2, 2008

Citation: 2008 HRTO 334

Indexed as: Buritica v. Campus Living Centres

WRITTEN SUBMISSIONS BY

Campus Living Centres and ) Megan H. Wright, Counsel Bernie Dwyer, respondents )

Aliria Buritica, applicant ) Krishna Badrinarayan, Counsel

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on July 23, 2008. The applicant alleges discrimination in employment based on disability. The applicant contends that when she attempted to return to work in June 2008 after a workplace injury the respondent failed to accommodate her by providing her with modified work.

2In an earlier interim decision (Buritica v Campus Living Centres Ltd., 2008 HRTO 200) the Tribunal asked for submissions on:

1. the status and nature of the applicant’s proceedings before the Workplace Safety and Insurance Board (WSIB) and/or the Workplace Safety and Insurance Appeal Tribunal (WSIAT);

2. the respondents’ request for a deferral of the Application until the conclusion of the proceedings before the WSIB and/or WSIAT; and

3. the applicant’s objection to disclosure of medical documents the respondents provided with the Response (Form 3).

This decision addresses the request for deferral, the disclosure issue and the respondents’ objection to the content of the applicant’s Reply.

Request for Deferral

3The following description of the background facts is based on information provided by both the applicant and the respondents. Campus Living Centres Inc., the corporate respondent, is a residence management company. The applicant was hired by the corporate respondent in February 2008 as a housekeeper in a student residence. On March 31, 2008 the applicant injured herself in a workplace accident.

4Following her workplace accident the applicant made a claim to the WSIB. In a decision dated May 7, 2008, the WSIB claims adjudicator determined that the applicant was entitled to full loss of earnings benefits for the period April 1 to April 25, 2008 and that she could return to suitably modified work with the respondent as of April 28, 2008.

5The applicant requested reconsideration of this decision on two grounds. One, the applicant argued she was not capable of returning to modified work on April 28, 2008 (the applicant states it was not until June 10, 2008 that she could return to work) and two, the applicant disagreed with the conclusion that she had rheumatoid arthritis and that this condition contributed to her inability to work. In a decision dated October 22, 2008 the WSIB claims adjustor stated that his May 22, 2008 decision would not be changed as the applicant had not provided any new information. The respondents ask the Tribunal to defer to an appeal of this decision.

6The applicant opposes the respondents’ request. The applicant states she has not yet appealed the WSIB decision and has until April 22, 2009 to do so. The applicant further argues the WSIB and WSIAT’s legislated mandates are to make rulings on compensation for work related injuries or accidents not to determine whether there have been violations under the Code.

7While the respondents agree that an appeal of the WSIB decision would not decide the matters raised by the applicant in her Application, they submit that the appeal should be allowed to proceed and conclude prior to the Tribunal considering the Application. The respondents contend the WSIB or WSIAT could award further monetary benefits to the applicant for lost wages and that amount ought to be determined before the Tribunal considers the Application and potentially orders the respondents to pay the applicant for lost wages. The respondents also argue that a WSIB or WSIAT decision might be relevant with respect to determining when the applicant was able to return to work following her workplace injury.

Decision

8The Tribunal has said that it will generally defer an application where there is an ongoing proceeding based on the same facts and issues and that has the authority to deal with human rights issues (Krieger v. Toronto Police Services Board, 2008 HRTO 270). Deferrals in these circumstances may lead to an applicant’s discrimination complaint being resolved without the need for a further proceeding before the Tribunal.

9The Tribunal has also deferred an application where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council 2008 HRTO 228). Where another proceeding is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

10However, I have determined that the circumstances before me do not warrant deferring the Tribunal proceeding. The proceeding before the WSIB concerns the issue of financial compensation for the applicant’s workplace injury between March 2008 and her attempted return to work in June 2008 and does not deal with the central issue raised in the Application, namely the respondents’ alleged discriminatory treatment of the applicant when she sought to return to work. The respondents have acknowledged that an appeal from the WSIB decision would not decide the issue of whether the respondents’ fulfilled their duty to accommodate.

11I am also not persuaded by the respondents’ argument that it is appropriate to defer the Application on the basis that a future WSIB or WSIAT decision might provide a different ruling on when the applicant was able to return to work or order a different monetary award to the applicant to compensate her for her injury. It is not apparent from the information before me that there is an overlap between the time period at issue in the WSIB proceeding and the Application before the Tribunal. In any event, the parties will have the opportunity to make submissions to the Tribunal about what effect to give to the WSIB process in its own determinations.

12With respect to the remaining two issues, the applicant requests that seven documents included with the Response be “struck”. The applicant argues that providing these medically related documents (notes from the applicant’s family doctor about the applicant’s absence from work, various WSIB forms) is a breach of the applicant’s privacy which the applicant has not waived and a breach of the respondent’s statutory duty of confidentiality under the Workplace Safety and Insurance Act, 1997, S.O. 1997 c.16.

13The respondent in turn asks that paragraphs 15-18; 24-27; 33-50; 56-67; 79; and 83-84 of the applicant’s Reply be “struck” on the grounds that they do not deal with new matters raised in the Response but rather refer to matters that were raised in the Application, in some instances expanding on arguments already raised in the Application.

14The request to have the seven identified documents attached to the Response before the Tribunal “struck” is, in essence, a request that the Tribunal not consider these documents as evidence. I find that a decision about the admissibility of these documents is premature and should be left to the case assessment process or the adjudicator hearing of the merits of the Application.

15I have reviewed the sections of the applicant’s Reply the respondent objects to. While the applicant makes a number of unnecessary submissions and repeats information in the Application I am satisfied that he has not raised new issues that require striking. The weight to be assigned to this Reply will be determined in the case assessment and hearing process.

16I am not seized of this matter.