HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paula Moulton
Applicant
- and-
Skyjack Inc.
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Moulton v. Skyjack
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 24, 2009, alleging discrimination with respect to employment on the basis of disability and sex. In the Application, the applicant indicated that she was seeking her Application be deferred pending the resolution of a legal proceeding before the Workplace Safety and Insurance Board ("WSIB") Appeals Branch, which is also dealing with the subject-matter of the Application.
2The respondent filed a Response on April 12, 2010, denying the allegations of discrimination. In its Response, the respondent indicates that it concurs with the applicant's request that this Application should be deferred pending the resolution of the WSIB Appeals Branch proceeding because both matters raise similar issues arising out of the same facts. The respondent also submitted a Request for an Order along with its Response reiterating the deferral request.
3On April 27, 2010, the Registrar granted the applicant's request for an extension of time to file her Reply. The applicant was given until May 14, 2010 to file her Reply. Neither Reply, nor response to the respondent's Request for Order, has been received from the applicant.
DECISION
4The 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.
5Some 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.
6The 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 ("Dhunsi"). In Dhunsi the Tribunal deferred the application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. In assessing the issue of deferral, the Tribunal in Dhunsi considered it relevant that the WSIB has significant expertise in addressing issues of disability.
7In the present case, the subject-matter of the Application overlaps with the substance of the WSIB appeal in that both proceedings relate to the applicant's allegations of disability discrimination arising out of an ankle injury, the question of absences due to disability, failure to accommodate in the provision of supports (safety shoes and modified work station) and claims for loss of earnings, re-training and health care benefits. Both parties have specifically requested deferral and indicated that the WSIB Appeals Branch hearing was scheduled for spring 2010. In the circumstances, and given that both parties agree, the Tribunal determines that it is appropriate to defer the Application.
8The Tribunal orders that this Application be deferred pending the conclusion of the WSIB Appeals Branch proceeding. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.
9I am not seized of this matter.
Dated at Toronto, this 3rd day of June, 2010.
"signed by"____________
Ena Chadha
Vice-chair