Gordon Lennon v. Hydro One Networks Inc., 2009 HRTO 1770

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gordon Lennon

Applicant

-and-

Hydro One Networks Inc.

Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: October 26, 2009

Citation: 2009 HRTO 1770

Indexed as: Lennon v. Hydro One Networks

Interim Decision

1This Interim Decision deals with a request by the respondent to defer an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application was filed on May 27, 2009, and alleges discrimination in employment on the grounds of disability. In particular, the applicant alleged that he had suffered a work-related injury in July 2008 that required him to stop working. He indicated that the injury was reported to the WSIB and he received loss of earnings but only for one week. From then to the time of the Application, he had received no benefits from the WSIB and no income from his employer.

2A letter from the WSIB Claims Adjudicator dated September 17, 2008, advised the applicant that the employer had offered suitable work as of August 6, 2008. Since the applicant had not accepted the offer of suitable work, he was not entitled to further benefits.

3In the Response to the Application, the respondent noted that the applicant had filed an objection to the decision of the Claims Adjudicator. The respondent asked that the Application be deferred until the objection had been dealt with at the WSIB.

4By letter dated September 1, 2009, the Tribunal invited submissions from the parties on the deferral issue and sought clarification of the status of the WSIB claim.

5The applicant forwarded a decision of the WSIB dated August 18, 2009. The WSIB determined that after August 6, 2008, the applicant was not fit to return to any type of work in August 2008. On this basis, the WSIB awarded the worker full loss of earnings retroactive to August 6, 2008, less benefits the applicant received from the employer's insurer and the Employment Insurance Commission.

6The respondent filed submissions dated September 4, 2009. Counsel advised:

In light of the freshness of the WSIB's August 18, 2009 decision, Hydro One is presently reviewing the Applicant's updated medical documentation and is contemplating an appeal of this decision. Given the strong possibility that Hydro One will appeal the WSIB's most recent decision, the Respondent requests that the Tribunal defer the instant Application until full and final resolution of the Applicant's WSIB claim.

Finally, the Respondent repeats its position that it would be a duplication of proceedings for the Tribunal to entertain the merits of this Application, as the Applicant has also made his claim to the WSIB based on the same facts and is seeking the same remedy as what is before the Tribunal.

7The respondent seeks deferral on the basis that it is "contemplating an appeal". Since an appeal is only being contemplated, there is currently no legal proceeding underway that would justify deferral of the Application.

8I note that both parties have expressed a willingness to participate in mediation. In these circumstances, the Tribunal will schedule a mediation session.

9I am not seized of this matter.