Human Rights Tribunal of Ontario
Between:
Timothy Jones Applicant
-and-
Cotton Incorporated Respondent
Interim Decision
Adjudicator: Eric Whist Date: December 1, 2010 Citation: 2010 HRTO 2384 Indexed as: Jones v. Cotton
Written Submissions
Timothy Jones, Applicant ) Self-represented Cotton Incorporated, Respondent ) Bradley Troup, Counsel
1This is an Application filed on June 10, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred until the resolution of another legal proceeding, namely a claim before the Workplace Safety and Insurance Board (“WSIB”).
2The Application alleges that the applicant suffered a workplace injury on January 29, 2008 and that the respondent terminated his employment on October 30, 2009, having become frustrated with the applicant’s ongoing medical difficulties and his absences from work as a result of this injury. The Application alleges that the respondent determined that the best solution would be to terminate his employment. The Application alleges that the reasons given by the respondent for the applicant’s dismissal, which included a change in corporate strategy, a decline in sales, and a restructuring, were not true and suggests that a replacement for the applicant’s position was hired on November 2, 2009.
3The Tribunal issued a Notice of Intent to Defer dated September 24, 2010 in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of the applicant’s complaint to the WSIB. The Tribunal indicated to the parties that they could make submissions as to why consideration of the Application should or should not be deferred. The Tribunal has received submissions from both the applicant and the respondent.
4In a letter dated October 5, 2010, the applicant asks that the Tribunal proceed with his Application citing the fact that the WSIB had rendered a decision in relation to his Claim No 24909484-A. The applicant provides a copy of the WSIB decision, dated September 2, 2010. The decision states that the applicant is not entitled to compensation for the continuing difficulties he was having with his right knee. The decision concludes
Considering the medical information on file, it is my decision there is no link between the accident on January 29, 2008 and the onset of knee pain in June 2008. Therefore entitlement for your right knee and the knee surgeries is denied.
5In a letter dated October 6, 2010, the respondent states that deferral is appropriate. The respondent acknowledges the September 2, 2010 decision of the WSIB but argues that the applicant has until March 2, 2011 to appeal the WSIB decision to an Appeal Resolution Officer and can subsequently appeal a decision by an Appeals Resolution Officer to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The respondent submits that the deferral of the Application should take place until the applicant exhausts the WSIB and WSIAT appeals process, or until the appeal time is exhausted or the applicant clarifies that he will not be pursuing an appeal of his WSIB decision.
6The respondent further submits that the Application should be deferred in order to ensure that proceedings dealing with the same issues do not run concurrently and raise the possibility of any inconsistent decisions of fact or law. The respondent submits that the subject matter of the WSIB proceeding has the possibility for overlapping with the facts and issues that would be before the Tribunal, and that the outcome of a WSIB process may have an impact on any remedy ordered by the Tribunal in the event that it determines that the Code has been violated.
Decision
7The 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 of the Tribunal’s Rules of Procedure). In each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
8In my view deferral is not appropriate in this case and the Application will proceed before the Tribunal. The applicant’s WSIB claim has been decided. There is no evidence before me that the applicant has appealed or intends to appeal this decision. In my view it is not fair or just under these circumstances to defer the Application. There is no other current legal proceeding. If the applicant chooses to appeal the September 2, 2010 WSIB decision, it is open to the respondent to file, at that time, a Request for Order During Proceedings asking for a deferral of the Application.
9I do also wish to state that it is not immediately clear to me to what degree the issues raised in the applicant’s WSIB claim and those in the Application overlap or may lead to inconsistent decisions on fact or law. The WSIB claim is in relation to whether the applicant should be entitled to compensation in relation to an injury from June 2008. This depends on a determination as to whether this injury is related to the applicant’s workplace injuries from January 29, 2008. The Application is in relation to whether the respondent’s decision to terminate the applicant’s employment was for discriminatory reasons related to the applicant’s continuing injuries and ability to return to work. In my view any future requests for deferral should address this issue in greater detail.
10I am not seized.
Dated at Toronto, this 1st day of December, 2010
”signed by”_______ Eric Whist
Vice-chair