HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Plummer

Applicant

-and-

Workplace Safety and Insurance Board and Rehabilitation Network Canada Inc.

Respondents

INTERIM DECISION

Adjudicator: Alan Whyte

Date: January 19, 2009

Citation: 2009 HRTO 65

Indexed as: Plummer v. Workplace Safety and Insurance Board

INTRODUCTION

1This is an Application filed September 18, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment based on disability. The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of another related proceeding, specifically an appeal initiated by the applicant before the Workplace Safety and Insurance Board (the “WSIB”).

2Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure (the “Rules”), the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing all parties an opportunity to make submissions.

3In their Responses to the Application, both respondents requested deferral of the Application pending the conclusion of the WSIB appeal proceedings and, in his Reply, the applicant opposed deferral. The Tribunal provided the parties with an opportunity to make any further submissions, by December 23, 2008, on the question of deferral. The Tribunal received additional submissions from the respondent, WSIB, only.

FACTS

4The applicant suffered a workplace injury for which he received WSIB benefits. Eventually, he was provided a Labour Market Re-entry (“LMR”) program, commencing in September 2006, which was intended to run until March 2008. However, the WSIB terminated the LMR program early (in October 2007) and, as a result, the applicant’s WSIB benefits were reduced.

5The applicant initiated an appeal of the October 2007 WSIB decision in May 2008, which remains outstanding before the WSIB Appeals Branch.

POSITIONS OF THE PARTIES

6The applicant submits that the question in the WSIB appeal is whether the applicant was cooperative in completing his LMR program, as opposed to the question in the Application which is focussed on the responsibility of the respondents to accommodate the applicant. He also argues that the actions of the respondents in this case were not consistent with the duty to accommodate as set out in the Ontario Human Rights Commission’s Policy and Guidelines on the Accommodation of Disability. Finally, he suggests that the Tribunal process will likely be quicker to resolve the issues between the parties than will the WSIB appeals process.

7The respondent WSIB referred to the criteria for deferral as expressed by the Tribunal in Lipke v. Ontario (Minister of Community Safety and Correctional Services) [2008] O.H.R.T.D. No. 297. Specifically, the WSIB argues that the subject matter of the WSIB appeal overlaps significantly, if not completely, with the issues raised in the Application. Secondly, it was submitted that the remedies sought by the applicant in each proceeding are the same. Thirdly, it was suggested that it would be inappropriate for the Tribunal to proceed with its decision making in this Application before the WSIB has “spoken its last word on this matter”, given the possibility that the Appeals Branch may make a different determination of the issues from the decisions under appeal. Finally, it is submitted that it would be unfair for the Tribunal proceeding to go first as there is the possibility of double recovery in favour of the applicant; whereas there would be no unfairness to the applicant given that he will have the opportunity to have the issues canvassed fully before the WSIB Appeals Branch, following which he can return to the Tribunal if necessary. From the point of view of timing, it was suggested that there was no reason to believe that the Application at the Tribunal would be resolved before the WSIB appeal.

DECISION

8In Cui v. MSM, 2008 HRTO 449, the Tribunal stated as follows:

In 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 183). 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 189). 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.

10In this case, the facts relied on by the applicant in both proceedings are identical. In the Tribunal’s view, the legal issues are substantially the same as well. Although one of the issues in the WSIB appeal will be the cooperation (or lack thereof) of the applicant in the LMR program, the WSIB will be required to address, as part of its overall decision-making, the accommodation (or lack thereof) provided by the respondents to the applicant during the course of the LMR program, which is the main issue in this Application. It should be noted that the Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16 Sched. A, as amended, which governs the WSIB appeal, contains at section 41(6) a duty to accommodate to the point of undue hardship, as does the Code. Furthermore, the applicant’s WSIB appeal sets out as part of the grounds of appeal the allegation that he suffers from a learning disability and mental health issues, which are also advanced by the applicant in front of this Tribunal.

11In addition, as pointed out by the respondent WSIB, the remedies sought by the applicant in the WSIB appeal are substantially the same as the remedies sought in this Application. If the applicant’s WSIB appeal is successful, the quantum of damages (or other similar remedy) secured by the applicant from the WSIB will likely affect the remedies that the Tribunal may grant if his Application before the Tribunal is successful.

12Lastly, while the Tribunal does not have sufficient information about the timing of the WSIB appeal process to attach any significant weight to this factor, it does appear that his WSIB appeal was initiated some four months prior to this Application.

13In these circumstances, for the reasons set out above, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of the WSIB appeal proceedings. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the appeal process has been concluded.

14I am not seized.