Yinong Cui v. MSM, a division of Magna Powertrain Inc., 2008 HRTO 449

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yinong Cui Applicant

-and-

MSM, a division of Magna Powertrain Inc. Respondent

INTERIM DECISION

Adjudicator: David A. Wright Date: December 31, 2008 Citation: 2008 HRTO 449 Indexed as: Cui v. MSM

WRITTEN SUBMISSIONS BY

Yinong Cui, Applicant ) Judy Kondrat, Representative MSM, a division of Magna Powertrain Inc., Respondent ) Eric T. Gresham, Counsel

1This Interim Decision addresses the respondent’s request that this matter be deferred pending the completion of proceedings before the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”) pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A as amended (the “WSIA”). In a previous Interim Decision, Cui v. MSM, 2008 HRTO 219, the Tribunal sought submissions regarding the respondent’s deferral request. Both parties made extensive submissions on the issue.

BACKGROUND

2Mr. Cui alleges that he was discriminated against on the basis of disability when he was dismissed from employment by the respondent. The parties agree that he suffered a workplace injury in November 2005. They also agree that in December 2005, the respondent offered the applicant particular modified duties. The applicant takes the position that these duties were not consistent with his medical restrictions. It appears that aside from one attempt to perform the modified duties in November of 2006, the applicant has not actively worked for the respondent since his injury.

3The issue of whether the modified work met the applicant’s restrictions has been an issue in proceedings at the Workplace Safety and Insurance Board (the “WSIB”). The WSIB claims adjudicator concluded that Mr. Cui could do the modified duties on a graduated basis effective November 22, 2006 and on a full basis effective January 10, 2007. His WSIB loss of earnings benefits were adjusted to take into account his ability to do this modified work.

4Mr. Cui appealed this decision to a WSIB Appeals Resolution Officer (“ARO”) together with other decisions on his claim. An oral hearing was held on November 14, 2007 at which the applicant was represented by the Office of the Worker Advisor. In a decision dated December 27, 2007, the ARO found that, “on the balance of probabilities, the modified job duties offered by the employer were consistent with the restrictions outlined by the orthopaedic specialist”. Mr. Cui appealed this decision to the WSIAT and a hearing is scheduled for March 9, 2009.

5Following the ARO decision, the respondent asked the applicant to return to work in the modified position. The applicant maintained his position that this work was inconsistent with his restrictions, and he states that his family physician supported this position. Following exchanges between the parties regarding his possible return to work, the respondent terminated the applicant’s employment.

POSITIONS OF THE PARTIES

6The respondent states that the WSIAT proceeding will address the suitability of the modified work offered by the respondent, which it suggests is at the core of the Tribunal Application. It notes that ss. 40 and 41 of the WSIA have a detailed return to work scheme that include the obligation, in certain circumstances, to provide alternate employment and to “accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship” (s. 41(6)).

7The applicant, however, argues that the framework under which the WSIAT will analyze the issue is different from that under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), arguing that it will focus on whether the particular position offered was suitable, and will not consider whether the procedural aspects of the duty to accommodate were fulfilled. The applicant’s representative draws the Tribunal’s attention to various ways in which it is alleged that that the analysis under the WSIA will differ from that under the Code, and states that the WSIAT does not generally address the question of undue hardship.

DECISION

8In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal summarized the jurisprudence regarding deferral as follows, at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

The Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues (Krieger v. Toronto Police Services Board, 2008 HRTO 270). The 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). In such circumstances, the Tribunal is concerned about the prospect of concurrent overlapping proceedings and the potential for conflicting findings of fact or law. Where the civil action is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

9Applying these principles to this case, I find that it is appropriate to defer this Application pending the conclusion of proceedings at the WSIAT. The suitability of the modified work offered by the employer, informed by a statutory obligation to accommodate to the point of undue hardship, is a central issue in both proceedings. The substance of the legal issues is therefore similar or the same (see Berisa v. Toronto (City), 2008 HRTO 46 at paras. 38-40). Moreover, the WSIB proceedings are well underway, and the WSIAT appeal of the ARO decision is scheduled in just over two months. If the WSIAT upholds the applicant’s position, he will be entitled to LOE benefits, which may affect the damages to be awarded by the Tribunal if the Application is allowed. All of these factors support deferral.

10Accordingly, the Tribunal will defer the Application pending the completion of the WSIAT proceedings. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 of the Tribunal’s Rules of Procedure within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

11I am not seized of this matter.