Turcotte v. Osprey Media Group, 2010 HRTO 2442

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denise Turcotte Applicant

• and-

Osprey Media Group Inc., Osprey Media Publishing Inc., The North Bay Nugget, A Division of Osprey Media, Bill Holmes and Dan Johnson Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 8, 2010 Citation: 2010 HRTO 2442 Indexed as: Turcotte v. Osprey Media Group

1The applicant filed this Application on January 22, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal on the basis of disability with respect to contracts and employment.

2The applicant alleges that the respondents discriminated against her because of her disability, refused to provide her with accommodation and terminated her contract offer as reprisal. The Application indicates that the applicant has a Workplace Safety and Insurance Board (“WSIB”) appeal regarding events related to the Application.

3The respondents filed a Response on April 6, 2010 denying the allegations of discrimination and, in particular, refuting that the applicant was their employee. In their Response, the respondents request that the Tribunal defer the Application because the facts of the Application are part of the WSIB proceeding. The respondents contend that the WSIB appeal will consider and determine the specific question of whether or not the applicant was an employee of the respondents.

4The applicant filed submissions on November 12, 2010, opposing the respondents’ request to defer. The applicant asserts that the Application should not be deferred because the WSIB matter deals with the narrow question of whether the applicant’s relationship with the respondents constitutes an employee under the WSIB legislation and whether or not she is entitled to certain benefits. The applicant submits that the WSIB will not address the respondents’ alleged failure to accommodate and discriminatory termination. The applicant also indicates that there is no overlap in remedies and, in an effort to confirm the same, the applicant filed a Request for Order During Proceedings seeking to amend the compensation claimed in the Application to omit any potential overlap of remedial claims.

5The respondents filed further submissions on November 16, 2010 and the applicant filed further submissions on November 17, 2010.

6The respondents did not file submissions in response to the applicant’s Request for Order During Proceedings and the time for doing so has elapsed.

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). 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.

8Some 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.

9The 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. 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.

10It appears that the subject matter of the applicant’s appeal is the narrow question of whether or not the applicant was an employee pursuant to WSIB legislation. Based on the information provided by the parties, it appears that the WSIB process will not deal with the human rights issues of discrimination, accommodation and reprisal, nor consider whether or not the applicant’s relationship with the respondents comes within the meaning of employment and/or contracts as interpreted under the Code.

11I see no basis to defer the Application pending the resolution of the WSIB appeal. The WSIB process will not determine the Code-related issues, nor is it likely that the WSIB process will conclude in the near future. The respondents’ submissions expressly note that the WSIB process “may take up to 18 months” before the applicant’s appeal “is heard”.

12In my view, the usual considerations which come to play in deferring an Application, such as possibility of inconsistent findings of facts and law, do not arise in the current circumstances. As such, the respondents’ request for deferral is denied.

13The applicant’s request to amend her Application to avoid any duplication of remedial compensation is granted.

14I am not seized of this matter.