Human Rights Tribunal of Ontario
Between:
Jeffery Seberras Applicant
-and-
Workplace Safety and Insurance Board Respondent
Interim Decision
Adjudicator: Ken Bhattacharjee Date: May 18, 2010 Citation: 2010 HRTO 1114 Indexed as: Seberras v. Workplace Safety and Insurance Board
1The purpose of this Interim Decision is to address whether the Application is within the Tribunal’s jurisdiction, and to request written submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the outcome of any outstanding workplace safety and insurance proceedings.
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 June 2, 2009, which alleges that the respondent discriminated against him with respect to employment because of his disability.
3Specifically, the applicant alleges that the respondent’s policy on disability related to mental stress, which limits entitlement to a disability that was the result of a specific, sudden and unexpected event in the workplace, is discriminatory. He alleges that the respondent denied his claim for loss of earning benefits (“LOE”) on the basis that his disability, which was caused by workplace harassment and discrimination, developed gradually over time.
4On August 18, 2009, the Tribunal’s Registrar issued a Notice of Intent to Dismiss, which informed the applicant that the Application appears to be outside of the Tribunal’s jurisdiction because it does not allege a ground or area of discrimination under the Code, and therefore does not appear to raise an issue that the Tribunal can resolve. The Tribunal invited the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction. The applicant did not file any submissions.
5Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction: Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application (Rule 13.5).
6In my view, it is not plain and obvious that the Application is outside the Tribunal’s jurisdiction because it does, in fact, raise a ground (disability) and an area (employment) under the Code, as well as issues of discrimination (whether the respondent’s policy on disability related to mental stress is inherently discriminatory and whether its application to his claim was discriminatory). However, this is not a final decision with respect to the issue of jurisdiction.
7In my view, there may also be an issue as to whether the Tribunal should defer consideration of the Application pending the outcome of any outstanding Workplace Safety and Insurance Board or Workplace Safety and Insurance Appeals Tribunal proceedings. It is not clear from the Application whether the applicant appealed the respondent’s denial of LOE benefits.
8Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides 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.
9In 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.
10In my view, it is appropriate to request written submissions from the parties as to