HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Vey
Applicant
-and-
Reliable Wood Shavings Limited
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Vey v. Reliable Wood Shavings
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 March 22, 2010 alleging discrimination in employment on the basis of disability.
2The applicant suffered a work-related injury on September 2, 2009, following which he was absent due to medical treatment. In late September 2009, the applicant returned to work on modified duties. The applicant submits that the respondent refused to maintain him on modified duties. The applicant alleges that he was eventually laid off in February 2010, despite the fact that there was work that he could perform.
3The respondent filed a Response on June 10, 2010 denying the allegations of discrimination. In its Response, the respondent notes that the facts of the Application are part of a Workplace Safety and Insurance Board (“WSIB”) proceeding. The respondent indicates that it is not seeking that the Application be deferred pending the completion of the WSIB matter.
4On July 8, 2010, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the parties to file submissions within 14 days of July 8, 2010 as to why consideration of the Application should or should not be deferred.
5The applicant filed submissions on July 20, 2010. The applicant submits that the Application should not be deferred because the WSIB matter deals predominantly with a decision to terminate WSIB benefits and not the respondent’s alleged failure to accommodate and discriminatory lay off.
DECISION
6The 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.
7Some 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.
8The 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.
9In the present case, while the factual background to the Application overlaps somewhat with the WSIB proceeding, it appears that the substance of the Application, and specifically the allegations of discriminatory dismissal, are not the subject of the WSIB proceeding. The WSIB matter relates to the applicant’s claim for disability benefits in October 2009. As previously noted, the respondent indicates that it does not seek the Application be deferred. In these circumstances, the Tribunal will not defer this Application.
10Given that the parties have confirmed a willingness to participate in mediation, the Registrar’s Office will contact the parties in order to schedule a mediation in this matter.
11I am not seized.
Dated at Toronto, this 9th day of September, 2010.
”signed by”______
Ena Chadha
Vice-chair