A.B. v. Joe Singer Shoes Limited, 2010 HRTO 1053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

Joe Singer Shoes Limited, Buy-A-Hammer Investments and Paul Singer

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: May 11, 2010

Indexed as: A.B. v. Joe Singer Shoes

1This Interim Decision deals with the applicant’s request that the Tribunal defer consideration of her Application. The Application was filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), on January 19,

2The request to defer is set out in a Request for Order During Proceedings (the “Request”), dated March 5, 2010. According to the Request, the applicant has filed two claims with the Workplace Safety and Insurance Board (WSIB) that deal with the same events as those that gave rise to the Application. The applicant has claimed that she has been unable to work as a result of physical and psychological injuries which she attributes to her employment. The applicant filed an objection to various decisions of the WSIB in December 2009 and is anticipating that these objections will be dealt with in the near future by the WSIB Appeals Branch.

3The applicant submits that there is a substantial overlap between the issues that are before the WSIB and the issues giving rise to the Application. The applicant therefore asks that the Tribunal defer further consideration of the Application pending the outcome of the objection process at the WSIB.

4The respondents oppose the deferral request. The respondents argue that the applicant is seeking compensation at the WSIB and the Code for the same alleged injuries that she claims entitlement to compensation under the Code. The respondents submit that this is unfair and that the applicant “should not have two opportunities to go after the same wrongdoing to see if one Tribunal will accept her case if the other does not.”

5The respondents also note that they incurred costs associated with a mediation held at the Tribunal in respect of the Application that did not settle. They argue that the applicant should have asked for deferral before mediation was scheduled. The respondents are also concerned that they are “not truly parties to the WSIB claim” and may not have the right to a full defence in the WSIB objection or appeal process. The basis for this concern is not clear.

6Both parties refer to Baghdasserians v. 674469 Ontario, 2008 HR T O 4 0 4, which set out the Tribunal’s general test for whether deferral is appropriate:

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.

7The applicant submits that in the present case, there are two proceedings under way, one at this Tribunal and the other at the WSIB. If both proceed at the same time there is a potential for conflicting findings on similar evidence. The respondents note that the adjudicator in Baghdasserians decided not to defer because, although there were potentially overlapping proceedings, they involved “different legal theories”. The respondents submit that the same applies to the present case. The legal issue at the WSIB is whether the applicant suffered a work-related injury and if she is entitled to benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (WSIA). The issue at this Tribunal is whether the respondents infringed the applicant’s Code-protected rights.

8The respondents rely on Dhunsi v. J.T. Bakeries, 2010 HRTO 540, a decision that dealt with a request by the respondents in that case that the Application be deferred pending the results of an objection filed by the applicant with the WSIB. The decision found that the Application should be deferred because there was a clear overlap of the issues raised in the process at the WSIB and those raised in the Application.

9In this case, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the applicant’s objection to the decisions of the WSIB Claims Manager has been resolved at the WSIB. While the issues are not identical, there is a clear overlap between the issues raised in the two proceedings. While the damages that may be sought in the two proceedings are also not identical, there is a substantial overlay here as well as in both proceedings the applicant will be seeking compensation for lost income. The extent of compensation that the applicant may be entitled to from WSIB would likely be an important consideration in the event that the applicant succeeds in showing an infringement of her Code-protected rights at this Tribunal.

10If a party wishes to reactivate the Application once a decision has been reached at the WSIB, the Tribunal will consider whether it would be fair at that point to proceed with the Application. It may also be appropriate to consider whether section 45.1 might apply.

11The Tribunal will defer further consideration of the Application until a decision regarding the applicant’s objection has been reached at the WSIB. Where a party wishes to proceed with an Application that has been deferred, the party must make a Request for 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).