Boyce v. Toronto Community Housing Corporation, 2010 HRTO 1824

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randolph Boyce

Applicant

-and-

Toronto Community Housing Corporation

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: September 7, 2010

Indexed as: Boyce v. Toronto Community Housing Corporation

APPEARANCES

Randolph Boyce, Applicant ) Joanne Seamon, Counsel

Toronto Community Housing Corporation, Respondent ) Orna Raubfogel, Counsel

1This Interim Decision is further to a telephone conference call held on August 23, 2010.

2In my Decision 2010 HRTO 520 (the “Decision on the Merits”) I found that the applicant’s Code protected rights were infringed. I directed that the hearing be reconvened to hear evidence and submissions regarding remedy.

3The respondents filed a Request for Reconsideration that was denied in 2010 HRTO 1110 (the “Reconsideration Decision”).

4The purpose of the telephone conference was to clarify various procedural issues and to discuss the next steps in respect of the Application.

Personal respondents

5The Application named the corporate respondent and two personal respondents.

6As noted in the Reconsideration Decision, at the hearing the respondents asked that the personal respondents be removed. While the request was made at the hearing, detailed submissions on this point were not made. The applicant did not oppose the request. I found that this was a matter that should have been dealt with in the Decision and directed that it would be dealt with when the hearing reconvened.

7During the telephone conference call, the applicant confirmed that he does not oppose the request that the personal respondents be removed.

8There is no dispute that any allegations regarding the personal respondents concern things that were done in the course of their respective employments. In these circumstances, it is appropriate to remove the personal respondents as respondents and the style of cause is amended accordingly.

Deferral

9When the Application was initially filed, the respondents asked the Tribunal to defer consideration of the Application because there were ongoing related proceedings at the Workplace Safety and Insurance Board (WSIB). That request was denied in Interim Decision 2009 HRTO 131.

10At the hearing before me, the respondents reiterated the deferral request. The request was denied at that time for the reasons set out in Decision 2010 HRTO 520.

11In the reconsideration request, the respondent advised that, subsequent to the hearing at this Tribunal, the applicant had reactivated his claim with the WSIB and was pursuing a decision of the WSIB dealing with the same issues as those raised in the Application. In the Reconsideration Decision, I noted that this was new information that may be relevant to the future handling of the Application. The applicant was directed to provide information about the current status of his WSIB claim.

12The applicant provided this information and the status of the WSIB claim was further discussed during the conference call.

13The applicant advised that on January 28, 2010, he filed an objection form with the WSIB concerning the May 1, 2008 decision of the Claims Adjudicator that found that the applicant was not entitled to loss of earnings (LOE) benefits beyond November 15, 2005. The matter was assigned to an Appeals Resolution Officer (ARO) who referred the claim back to the WSIB Operating Division to obtain further medical information to clarify the applicant’s ability to work.

14The applicant opposes deferral. During the conference call, his counsel argued that while there may be a proceeding at the WSIB that raises issues that could be relevant to a determination by this Tribunal on the remedy that the applicant is entitled to, the proceeding at this Tribunal is more advanced than the proceeding at the WSIB.

15The respondent submits that the Tribunal should stay its proceeding because the respondent has filed an Application for Judicial Review. I advised that this was not a matter before me at this time. The respondent must file a Request for Order During Proceedings if it seeks a stay of the Tribunal’s proceeding.

16Rule 14.1 of the Tribunal’s Rules of Procedure states 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.

17In 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.

18In considering these factors in the present case, some factors favour deferral and some do not. First, there are potentially two proceedings, one at this Tribunal and the other at the WSIB dealing with the same issues. This raises the possibility of inconsistent findings on the same facts.

19In the proceeding at the WSIB, the applicant is seeking entitlement to loss of earnings benefits for the same period that he claims compensation for loss of earnings in the proceeding at this Tribunal and so there is potentially some overlap in regards to the remedies that may be available in the two proceedings, although each system would have regard to any remedies or benefits paid by the other system.

20The proceeding at this Tribunal is relatively advanced. A hearing has been held and a decision on the merits has been issued. At the WSIB, the applicant’s claim has been referred back to the primary adjudication level for further investigation and adjudication. As the applicant notes, there could be significant delay before there is a final decision from the workplace safety and insurance system on the issues that are relevant to the Application before this Tribunal.

21In considering the relevant factors, I find that it is not appropriate to defer further consideration of the Application at this time. The Registrar will contact the parties to set a date to hear evidence and submissions on remedy.