Auluck v. Dover Cup, 2010 HRTO 2098

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rita Auluck

Applicant

-and-

Dover Cup, Division of Dover Industries Ltd.

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: October 19, 2010

Citation: 2010 HRTO 2098

Indexed as: Auluck v. Dover Cup

WRITTEN SUBMISSIONS BY

Rita Auluck, Applicant ) Did not make submissions

Dover Cup, Division of Dover ) John Mastoras, Counsel

Industries Ltd., Respondent )

United Steelworkers, Union ) Robert Healey, Counsel

ii

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination and harassment with respect to employment because of disability, on April 23, 2010.

2The Application noted that the applicant has filed grievances, and copies of two grievances were attached. In accordance with its usual practice, the Tribunal sent a copy of the Application and its attachments and a Notice of Intent to Defer to the applicant, the respondent, and to the applicant’s Union, asking for submissions “as to why the consideration of this Application should, or should not, be deferred” to the grievance process.

3The applicant did not make submissions in regard to deferral. Responses were received from the respondent and the applicant’s Union. Neither response addressed why the Application should be deferred, except insofar as the Union’s response briefly stated that “a grievance (sic) has been filed and is being processed”. The Union stated that it was considering whether to seek to intervene in this Application, and otherwise stated that it “has no objection” to deferral. The respondent simply stated that it would “like to co-operate with the deferral”.

4The materials filed by the applicant and copied to the respondent and the Union include raised questions that had not been addressed by the respondent or the Union, including whether, and if so how, the respondent had responded to a query from the Workers’ Safety and Insurance Board (WSIB) as to the continuation of accommodations identified by the WSIB as “safe and suitable”, and what progress had been made on grievances filed December 17, 2009 or March 4, 2010. In an Interim Decision, 2010 HRTO 1716, the Tribunal gave the parties an opportunity to make further submissions.

5Once again, the applicant did not make submissions in regard to deferral.

6The respondent submitted that accommodations approved by the WSIB were being continued, although it states that the applicant had “not cooperated with the respondent’s efforts and has stopped coming to work of her own volition on or around June 8, 2010”.

7The Union submits that the applicant suffered a workplace injury in October of 2008, applied for and received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (WSIA) and returned to work in 2009, although she was not at first assigned to her pre-injury position. In late 2009 the employer requested a transition back to the applicant’s pre-injury position. After beginning the “work hardening program”, the applicant filed a grievance dated September 17, 2009 claiming harassment and intimidation by her supervisor. The Union states that employer and the Union settled the grievance, and that this was confirmed by the employer in a letter dated January 27, 2010.

8The respondent and the Union also state that the applicant has filed an objection to a decision made by a WSIB Case Manager. The employer filed a copy of a decision dated February 12, 2010 as the decision to which the objection was filed. The letter approves unspecified accommodations to the applicant’s pre-accident job as “safe and suitable and within her restrictions”. The Union indicates that a Union member assisted the applicant with her WSIB objection. The Union indicates that the applicant's objection was made by letter dated February 2, 2010, and confirmed by the filing of an objection form on February 11, 2010. Although there is a discrepancy as to dates here, I assume that both employer and Union are referring to the same objection.

9The Union confirms that the applicant filed another grievance on March 4, 2010, alleging that the employer had failed to accommodate the applicant's disability “under…the Human Rights Code”. The Union’s submissions include a copy of the grievance, which is referred to by the Union as “the Accommodation Grievance”. The Union states that, after filing her objection with Union assistance on February 11, 2010, the applicant advised the Union that she no longer wished to be represented in her WSIB matter by the Union, and did not give the Union any further information. To the best of the Union's information and belief, the applicant’s appeal to the WSIB was pending at the time the applicant filed the second grievance. The Union agreed with the employer to “adjourn [the second grievance] sine die” pending the outcome of the WSIB matter, and “in the event that the Union wishes to proceed to arbitration”, the parties have agreed upon a specified arbitrator.

10The Union indicates that it has “advised the applicant that the Accommodation Grievance will remain in abeyance pending the release of the WSIB decision regarding the outstanding Appeal. In the event that the decision is not released within a reasonable time or is in the opinion of the Union not dispositive of the issues raised by the Accommodation Grievance, the Union will proceed with the arbitration of the grievance”.

11The employer submits that the Tribunal should defer to both the WSIB process and the grievance process in respect of the remaining grievance filed by the applicant. The respondent uses slightly different language than the Union in describing the event to which the Tribunal should defer: “until the WSIA is allowed to exercise its expertise in respect of any further give determination on any disability and or functional impairment with respect to the applicant”, and “the outcome of the applicant’s WSIA proceedings”.

Is Deferral Appropriate in these Circumstances?

12The 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.

13Some 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.

14With the new information submitted by the respondent and the Union, it is now apparent that there are two processes to which the Tribunal is being asked to defer. The first is the internal appeal to be dealt with by the WSIB Appeals Branch. The second is a grievance process which itself has been deferred to the WSIB process.

15The 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.

16In this case, the matter at issue in both the Application and the WSIB internal appeal is accommodation for the applicant’s disability.

17It is not clear that the internal appeal at the WSIB will be decided on the same legal test as is applicable under the Code. As noted in the previous Interim Decision on this Application, the WSIB documents indicate that the standards being applied to accommodation of the applicant are “safe and suitable” and “within her restrictions”. By contrast, under the Code, once the applicant has established disability as defined by s.10 and, in the words of s. 11, that a “requirement…exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member”, the issue is whether the respondent has met the procedural and substantive duty to accommodate to the point of “undue hardship”. See discussion of this issue in Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520.

18In Baghdasserians, above, the Tribunal decided not to defer because, although there were potentially overlapping proceedings, they involved “different legal theories”. The WSIB internal appeal process appears to involve different legal theories than those applicable under the Code. However, in this case, there is considerable overlap in relevant factual issues, and the decision of the Appeals Officer is likely to be made in the near future. I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the applicant’s objection to the decisions of the WSIB Claims Manager has been decided by the WSIB Appeals Officer.

19As noted above, the employer submits that the Tribunal should defer to both the WSIB process and the grievance process in respect of the remaining grievance filed by the applicant. The Tribunal usually does defer to grievances where the process is underway, and the grievance is based on the same facts and human rights issues as an Application. This practice is based, in part, on the fact that grievance arbitrators have the responsibility to implement and enforce the substantive rights and obligations of the Code as well as other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42). However, in this case, the Union’s submissions indicate that the grievance may not be dealt with if the Union considers the decision of the WSIB Appeals Officer “dispositive of the issues raised by the Accommodation Grievance”. With the fate of the grievance uncertain, it is not in my view, appropriate to defer.

20The Tribunal will defer further consideration of the Application until a decision regarding the applicant’s outstanding objection has been reached at the WSIB. Where a party wishes to proceed with an application that has been deferred, the party must make a Request for Order During Proceedings in accordance with Rule 19 of the Tribunal’s Rules of Procedure within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

21I am not seized of this matter.