Ana Olliver v. Taylor Electronic Services Inc., Dave Taylor and Liz Taylor, 2010 HRTO 1248

Human Rights Tribunal of Ontario

B E T W E E N:

Ana Olliver

Applicant

-and-

Taylor Electronic Services Inc., Dave Taylor and Liz Taylor

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 2, 2010

Citation: 2010 HRTO 1248

Indexed as: Olliver v. Taylor Electronic Services

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on February 9, 2010 alleging discrimination in employment on the basis of disability. The applicant suffered a work-related injury on May 6, 2009, following which she was absent due to medical treatment and surgery. The applicant was "laid off" on July 29, 2009 because of business imperatives and a lack of work suitable to her condition.

2The respondents filed a Response on April 22, 2010, denying that they discriminated against the applicant. In their Response, the respondents request early dismissal of the Application on the basis that other proceedings through the Workplace Safety and Insurance Board ("WSIB") and the Ministry of Labour (Employment Standards) have appropriately dealt with the substance of the Application. The respondents assert that they were unable to accommodate the applicant short of undue hardship because of the nature of her job and the physical premises of their business.

3The applicant filed a Reply on May 10, 2010 requesting that the Tribunal dismiss the respondents' request for early dismissal on the basis that the WSIB and Employment Standards matters have not appropriately dealt with the substance of her Application.

BACKGROUND

4Based on the submissions and documentary materials filed by the parties, it appears that the applicant's WSIB claim is being handled by a Case Manager and the issue of return to work has been considered by a WSIB Return to Work Specialist. It appears that the WSIB has determined that under its statute and policies, specifically Policy 19-04-02, the corporate respondent is not subject to a "re-employment obligation" because the corporate respondent employs less than 20 workers. The WSIB has accepted the applicant for a labour market re-entry program.

5It appears that subsequent to the applicant initiating a "Request for Termination Payment" with Employment Standards, the respondents paid the applicant her termination pay in November 2009.

SECTION 45.1 REQUEST TO DISMISS

6Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

7The Tribunal's jurisprudence has suggested that s. 45.1 should be considered in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the application. The purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

8Recently, in Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520, the Tribunal held that because of the overall complexity and inter-related aspects of WSIB decision making, it is appropriate to consider the entire WSIB adjudicative process to be a "proceeding" for the purposes of s. 45.1 of the Code (para 67). While I appreciate that front line decision-makers, such as the Case Manager or Return to Work Specialists who have carriage of the applicant's claim, constitute one level of the WSIB decision-making process, I am not confident that, given the circumstances of this case, the processing of the applicant's WSIB claim can constitute a "proceeding" as contemplated by s. 45.1 of the Code.

9I find it is unnecessary for me to determine whether claim processing by front line decision-makers constitute a "proceeding" because I am not satisfied that the human rights substance of the Application was "appropriately" dealt with.

10The applicant alleges that the respondents infringed her Code-protected rights by failing to accommodate her disability to the point of undue hardship. In particular, the Application alleges that the respondents treated the applicant unfairly after her injury, refused to consider modifying her job and the physical location of her work and summarily dismissed her without proper consideration of accommodation options or awaiting her recovery.

11Based on the information provided by the parties, it appears that the WSIB did not fully consider the accommodation issues as required by the Code. As previously noted, it appears that the WSIB simply applied its policy that employers with less than 20 workers are not held to a "re-employment obligation". While this application of policy may resolve the respondents' duties under WSIB legislation, this does not mean that the parties' respective Code rights and responsibilities have been assessed and appropriately dealt with. For example, there is no indication that the WSIB carried out an assessment of the procedural and substantive components of the duty to accommodate or considered the defence of undue hardship and the underlying factors of health, safety and costs.

12Similarly, the fact that the respondents satisfied the applicant's claim for termination pay does not address the question of whether the human rights substance of her Application has been appropriately dealt with or that Code remedies have been considered.

13In the circumstances, I am not satisfied that the applicant's allegations of disability discrimination have been dealt with appropriately in other proceedings. The respondents' request for early dismissal of the Application is dismissed.

DEFERRAL SUBMISSIONS

14The 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 (Rule 14.1). 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.

15Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

16The Tribunal has found it to be appropriate to defer applications where there are on-going WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540.

17At present there is not enough information regarding the current status of the applicant's WSIB claim to allow the Tribunal to determine whether the Application should be deferred. As such, the Tribunal considers that it would be appropriate for the parties to be given an opportunity to make submissions on whether the Tribunal should defer the Application until the WSIB process has been completed.

18The applicant is directed to provide information regarding the current status of the WSIB claim. The applicant shall provide this information to the Tribunal and the respondents within two weeks of the date of this Interim Decision. By the same date, the applicant may also provide any further submissions on the question of whether the Application should be deferred. Within two weeks of its receipt of any information and/or submissions from the applicant, the respondents may make any further submissions about whether the Application should be deferred.

19I am not seized.