Hansen v. Workplace Safety and Insurance Board, 2009 HRTO 1134

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Hansen

Applicant

-and-

Workplace Safety and Insurance Board and Cathy Sabev

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 24, 2009

Citation: 2009 HRTO 1134

Indexed as: Hansen v. Workplace Safety and Insurance Board

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Human Rights Tribunal of Ontario (“HRTO”) should defer consideration of this Application pending the conclusion of the workplace safety and insurance proceeding before the Workplace Safety and Insurance Board (“WSIB) and the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 6, 2009, which alleges that the respondents discriminated against him with respect to services because of his age.

3Specifically, the applicant alleges that he was eligible to participate in WSIB’s labour market re-entry program, and was found by a third party assessor to be suitable for a specific program, but the individual respondent, who is a claims adjudicator, decided to reject the assessor’s recommendation and to sponsor him in a less suitable and less expensive program primarily because of his age.

4The respondents filed a Response and a Request for Order During Proceedings on May 11, 2009, which denies the allegation of discrimination. Specifically, the respondents state that the decision is protected by subsection 2.1(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, as amended (“WSIA”), which states:

A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it, that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code.

5The respondents request, among other things, that the HRTO defer consideration of the Application pending the conclusion of the workplace safety and insurance proceeding.

6The applicant’s Reply to the Response states that subsection 2.1(1) of the WSIA must be interpreted and applied in a manner that is consistent with section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”), but the respondents’ decision was not consistent with the Charter.

7In a previous Interim Decision, 2009 HRTO 846, the HRTO requested that the parties provide written submissions that address whether the HRTO should defer consideration of the Application pending the outcome of proceedings before the WSIB and/or the WSIAT.

SUBMISSIONS ON DEFERRAL

8The respondents submit that the HRTO should defer consideration of the Application because the applicant’s objection to the individual respondent’s decision is currently before WSIB’s Appeals Branch, which will consider whether the decision was in compliance with the WSIA and WSIB’s policies, and there is the real potential that duplicative remedies may be awarded if the Application is not deferred.

9The applicant submits that the HRTO should not defer consideration of the Application because, although most of the facts before the WSIB’s Appeals Branch and the HRTO are the same, the Appeals Branch could grant the applicant’s appeal without even considering the issue of discrimination.

10The applicant also submits that he is seeking three remedies at the HRTO – monetary compensation for injury to dignity, feelings and self-respect; re-drafting of a one of the WSIB’s policies to better reflect the Code; and training for the WSIB’s staff on their obligations under the Code – that the WSIB’s Appeals Branch cannot order.

11The applicant further submits that if the WSIB’s Appeals Branch decides to uphold the individual respondent’s decision, the applicant will then have to appeal the decision to WSIAT, which can take anywhere from one year to 18 months to issue a final decision.

ANALYSIS

12Rule 14.1 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

13In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral 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.

14In my view, deferral is the most fair, just and expeditious way of proceeding with this Application. The applicant is raising the same facts and issues related to discrimination before both the WSIB and the HRTO. Furthermore, although subsection 2.1(1) of the WSIA appears to oust the jurisdiction of both the WSIB/WSIAT and the HRTO to consider the issue of age discrimination, the applicant has signaled that he intends to raise Charter arguments.

15In all the circumstances, deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the workplace safety and insurance proceeding before the WSIB and WSIAT.

16Where 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 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4). I am not seized of this matter.