Vinayagamothy Arumugam v. Venture Industrial Supplies Inc., 2010 HRTO 2317

Human Rights Tribunal of Ontario

B E T W E E N:

Vinayagamothy Arumugam Applicant

-and-

Venture Industrial Supplies Inc. Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: November 22, 2010 Citation: 2010 HRTO 2317 Indexed as: Arumugam v. Venture Industrial Supplies

1This Application was filed on October 27, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of disability. Specifically, the applicant states that he was denied the necessary accommodation in returning to work after a work-related back injury.

2In his Application, the applicant advised that the facts of the Application are part of a Workplace Safety and Insurance Board (“WSIB”) proceeding that is still in progress, but asked that the matter not be deferred pending the outcome of the other proceeding. The respondent filed a Response, but did not answer the question about the existence of any other proceeding.

3This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of this WSIB proceeding. The Tribunal issued a Notice on September 28, 2010 requesting the parties’ submissions with respect to deferral. The applicant filed submissions in opposition to deferral on October 12, 2010; the respondent did not respond to the request for submissions.

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

5The Application contains a scant description of the allegations against the respondent company. In any event, the background facts do not appear to be in dispute. It would appear that the applicant was injured while working in November 2008. He remained off work with a back injury, in receipt of WSIB benefits, until April 6, 2009.

6On April 2, 2009, there was a return to work meeting with a representative of the WSIB, the applicant and the respondent, at which the applicant’s capacity to return to work to his pre-injury job was discussed. It was determined at that time that the duties were within his restrictions. The applicant alleged that he was unable to continue due to the pain when he returned to work on April 6, 2009, and so resigned his job.

7In his submissions on deferral, the applicant provided the first page of a letter from the WSIB dated June 16, 2009, in which the WSIB writes the following:

When a worker is partially disabled and can return to modified work, full benefits can still be paid if the worker is cooperating in:

• health care measures and

• his or her early and safe return to work or

• all aspects of a labour market re-entry assessment or plan

If these conditions are not met, loss of earnings benefits (LOE) are reduced or stopped.

As duties within your functional abilities were available to you from April 6, 2009, LOE benefits were finalled (sic) effective that date. I am unable to consider LOE benefits beyond that date noting the objective medical information on file as well as evidence based guidelines.

Upon receipt of objective clinical information from April 6, 2009 to date I would be please to reconsider my decision.

8Based on this excerpt from the decision, the WSIB is being asked to determine whether the applicant was capable of doing his regular job duties given his medical condition. Based on the framing of the case from the pleadings, the Tribunal would be asked to determine that issue. There is clearly substantial overlap between the issues to be determined by the WSIB and those to be determined in a proceeding before this Tribunal.

9In the applicant’s submissions on deferral, he states the he has a “non-compensable spinal stenosis back condition” that the WSIB does not recognize as related to his injury at work. This is not supported in the documents provided and, specifically, is not the basis for the decision as reflected in the above excerpt from the WSIB letter. Rather, the decision appears to be based on the conclusion that the applicant was medically capable of returning to his pre-injury job.

10The applicant has not provided any further information on what steps he has taken to appeal the WSIB decision, or to ask for reconsideration of it. However, it would appear that the process is underway and no concerns were expressed about the ability of the WSIB to determine the applicant’s case in a timely fashion.

11In the circumstances of this case, the Tribunal is of the view that deferral is the most fair, just and expeditious way of proceeding with this Application. The Tribunal orders the deferral of this Application pending the conclusion of the WSIB proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WISB process.