Masotti v. Bardon Supplies Limited, 2010 HRTO 1336

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Masotti

Applicant

-and-

Bardon Supplies Limited

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: June 11, 2010

Citation: 2010 HRTO 1336

Indexed as: Masotti v. Bardon Supplies

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). In its Response, the respondent submitted that the Application should be dismissed on the grounds that the substance of the Application has been appropriately dealt with by the Workplace Safety and Insurance Board (WSIB). In the alternative, the respondent asked the Tribunal to defer consideration of the Application until the adjudication of the applicant's claim for benefits under the Workplace Safety and Insurance Act 1997, S.O. 1997 Chapter 16, Schedule A, (WSIA) had been concluded.

2On March 17, 2010 the Tribunal issued Interim Decision 2010 HRTO 583, asking for further information from the parties about the status of the applicant's claim under the WSIA. That information has now been received.

3The applicant suffered a work-related injury on October 15, 2004. The respondent offered modified duties. The applicant worked at those duties until December 2005 when surgery to the applicant's injured wrist was required. He returned to modified duties following the surgery.

4The applicant was laid off by the respondent on July 16, 2009. On October 26, 2009, the lay off was made permanent. The applicant alleges that the lay off was influenced by his disability and his claim for benefits from the WSIB. The respondent denies the allegations.

5At the WSIB the applicant has claimed entitlement under the WSIB policies respecting chronic pain disability and psychotraumatic disability. Entitlement was denied by the WSIB Case Manager in February 2010. The applicant filed an objection with the WSIB in March 2010. The objection has been referred to the WSIB Appeals Branch but it appears that a date to deal with the objection has not yet been set.

6The respondent submits that the Application should be dismissed under section 45.1 of the Code:

45.1 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.

7In my view, it cannot be said at this time that the proceeding at the WSIB has appropriately dealt with the substance of the Application. The WSIB has determined that the applicant was not entitled to benefits at the time of the lay off but it does not appear that the WSIB considered the applicant's claim that the lay off was influenced by the fact that he had a continuing disability. The applicant has apparently been in receipt of loss of earnings from the WSIB since January 2010 because of a recurrence of his work-related injury.

8At the same time, it appears that the proceedings at the WSIB and the issues that the WSIB is considering are relevant to the Application. The issues at the WSIB include the nature and degree of the applicant's disability and his entitlement to compensation for loss of earnings. The applicant has filed an objection to various decisions of the WSIB Case Manager. Those objections will be dealt with by the WSIB Appeals Branch.

9In considering whether to defer an application the Tribunal looks at 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 Lipke v. Ontario, 2008 HRTO 285, Calabria v. DTZ Barnicke, 2008 HRTO 411 and Baghdasserians v. 674469 Ontario, 2008 HRTO 404. As stated in these cases, deferral of an application avoids concurrent proceedings and the possibility of inconsistent findings of facts or law. However, as noted in Calabria and Baghdasserians deferral is not automatically indicated simply because the parties or facts underlying the Application are also involved in the other proceeding.

10In my view, it is appropriate for consideration of the Application to be deferred at least until such time as the objections that the applicant has currently filed have been dealt with by the WSIB Appeals Branch. It is apparent that there is another proceeding underway that raises issues that are directly relevant to the issues raised in the Application.

11The 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.