Daniela Nemes v. Pano Cap Canada Limited, 2010 HRTO 2065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniela Nemes

Applicant

• and-

Pano Cap Canada Limited

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: October 12, 2010

Citation: 2010 HRTO 2065

Indexed as: Nemes v. Pano Cap Canada

1The applicant filed an Application on August 5, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability. In her Application, the applicant notes that the facts relied upon in her Application are part of a grievance and a proceeding before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The applicant provided a copy of the grievance and the WSIAT Notice of Appeal.

2The Application was served on the respondents and the applicant’s union, United Food and Commercial Workers Canada Local 1977, as a named affected party.

3On September 2, 2010, the applicant’s union corresponded with the Tribunal and advised that, although it does not represent the applicant in regards to her Application, the union does represent the applicant in her ongoing grievance, as well as before the Workplace Safety and Insurance Board and with respect to her appeal to WSIAT. The union provided copies of various documentation regarding the grievance and WSIAT appeal.

4On September 10, 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 applicant, the respondent and the applicant’s union to file submissions within 14 days from September 10, 2010 as to why consideration of the Application should or should not be deferred.

5On September 23, 2010, the respondent filed submissions asking the Tribunal to defer the Application. The respondent points out that the allegations made in the Application are the same facts as those in the grievance and WSIAT appeal, specifically concerns with respect to her return to work program, the nature of the work exceeding her restrictions and the failure to accommodate. The respondents submit that the applicant seeks the same remedies, including loss of income and benefits. The respondent submits that the matters that comprise the substance of the grievance and WSIAT appeal are identical to the applicant’s human rights allegations.

6On September 29, 2010, the union wrote to the Tribunal and advised that it was adopting the respondent’s submissions with respect to the issue of deferral.

7The applicant did not file any submissions in response to the Notice of Intent to Defer and the timeline for doing so has elapsed.

REQUEST TO DEFER

8The 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.

9Some 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.

10The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The Tribunal has also found it to be appropriate to defer applications where there are on-going workplace safety and insurance 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 assessing the issue of deferral, the Tribunal in Dhunsi, considered it relevant that workplace safety and insurance proceedings have significant experience in addressing issues of disability.

11The Application alleges that, while participating in her employer’s return to work plan, she was assigned work exceeding her disability limitation and that this work aggravated her pain. The applicant alleges that the employer informed her that this was the only available work for her.

12I have reviewed all of the documentation provided by the parties and the union. Based on these materials, it clear that there is an outstanding grievance. The applicant’s grievance makes a single allegation of failure to accommodate and it appears that the employer denied this grievance in July 2010. The WSIAT Notice of Appeal alleges that the modified work provided by the employer re-aggravated the applicant’s injury and that the applicant seeks to have this recurrence recognized as a work related injury. It appears the grievance and the WSIAT appeal relate to the same facts and concerns which are raised in the Application. I conclude that there is significant overlap in the subject matter of the Application and that of the outstanding grievance and WSIAT appeal.

13In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance and the WSIAT appeal.

14Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

15I am not seized of this matter.