HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Georgios Zissakos

Applicant

-and-

Toronto Transit Commission, Amalgamated Transit Union, Local 113 and Workplace Safety and Insurance Board

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 16, 2010

Citation: 2010 HRTO 838

Indexed as: Zissakos v. Toronto Transit Commission

INTRODUCTION

1The purpose of this Interim Decision is to request written submissions from some of the parties as to whether the Human Rights Tribunal of Ontario (“HRTO”) should defer consideration of the Application pending the conclusion of a proceeding before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

BACKGROUND

2The applicant, who was employed as a bus driver by the Toronto Transit Commission (“TTC”), was injured on the job in 2001, and has been off work since then. He filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 28, 2009, which alleges that the respondents discriminated against him with respect to employment because of his disability.

3Specifically, he alleges that, despite the fact that his doctor advised that he was unable to return to full-time work, the Workplace Safety and Insurance Board (“WSIB”) cut off his benefits in 2006 after one of his family members sent the WSIB e-mails stating that he was doing things that he was not supposed to be doing, and the WSIB videotaped him driving. He further alleges that the WSIB refused to reinstate his benefits because the TTC informed the WSIB that he did not accept an offer of an alternate position.

4He also alleges that the TTC failed to provide him with a suitable, alternate position, and that the Amalgamated Transit Union, Local 113 (“Union”) blocked his attempt to secure such a position by, among other things, refusing to transfer his seniority from the bus division to the maintenance division of the TTC.

5In section 14(a) of the Application (“Are the facts of this Application part of another proceeding that is still in progress?”), the applicant answered, “No”.

6The WSIB filed a Response and a Request for Order During Proceedings on November 9, 2009, which denies the allegation of discrimination. The WSIB requests that the Application be dismissed because it is outside the HRTO’s jurisdiction. Specifically, the Application does not set out any facts that allege that WSIB discriminated against the applicant, and the applicant is essentially challenging WSIB’s decision to end his entitlement to loss of earning (“LOE”) benefits, which is within the exclusive jurisdiction of WSIB.

7The TTC filed a Response on November 23, 2009, which denies the allegation of discrimination. Specifically, the TTC states that the applicant refused to participate in or cooperate with early and safe return to work and mediation processes, failed to respond in a timely manner to numerous attempts by the TTC to communicate with him, stated that he was unable or unwilling to return to the TTC, and rejected suitable and available work that met his restrictions. The TTC also states that the applicant attended an independent medical examination (“IME”) in 2008, which concluded that the applicant was likely malingering and sabotaging efforts to assist him.

8The TTC further states that, pursuant to the collective agreement between the TTC and the Union, the applicant only holds seniority in the transportation unit, and is prohibited from bidding for or being assigned to any vacant positions in the maintenance unit until after they are made available to employees with seniority in the maintenance unit.

9The TTC also requests that the HRTO defer consideration of the Application pending the conclusion of the proceeding before the WSIAT. Specifically, the applicant filed an appeal of the WSIB’s decision to discontinue his LOE benefits, and the appeal is still pending, although it is presently being held in abeyance at the applicant’s request. The TTC submits that if the applicant is successful in his appeal, he may be awarded retroactive LOE benefits to the present, which will render the remedies that he is seeking in his human rights Application wholly or partly moot. The TTC further submits that the applicant’s appeal at WSIAT will address many of the same issues that he raised in his human rights Application, which means there will be a significant amount of overlap and the possibility of inconsistent findings of fact.

10The TTC attached a copy of the applicant’s Notice of Appeal to WSIAT to its Response. The Notice, which was filed on or about January 3, 2007, indicates that the applicant appealed the denial of LOE benefits and entitlement to a labour market re-entry assessment. The Notice also states that the applicant cannot return to work with the TTC, but is willing to work somewhere else. The TTC submits that this last point contradicts his Application at the HRTO, which indicates that he is ready and able to return to work at the TTC.

11The Union filed a Response on November 27, 2009, which denies the allegation of discrimination. Specifically, the Union states that the applicant has provided, and continues to provide, inconsistent and contradictory information about his ability to return to work, and neither he nor anyone else has identified a vacant position at the TTC for which the applicant is qualified and for which the Union is required to take steps to facilitate the applicant’s entry into such position.

12The Union also requests that the HRTO defer consideration of the Application pending the conclusion of the proceeding before the WSIAT. The Union states that it does not have access to the appeal materials before the WSIAT, but it understands that the applicant has appealed the denial of LOE benefits by the WSIB, and taken the position that he is totally disabled. The Union requests production of the appeal materials in order to make further submissions on its request for deferral. On or about January 15, 2010, the HRTO served the TTC’s Response, with the applicant’s Notice of Appeal to the WSIAT as an attachment, on the Union.

13The applicant filed two nearly identical Replies to the Responses on January 28 and February 3, 2010. He alleges that the collective agreement between the TTC and the Union, which prohibits him from transferring his seniority from the transportation unit to the maintenance unit of the TTC, violates the Code. He also alleges that when the TTC and the Union decided to send him to an IME in 2008, the WSIB violated privacy legislation by sending them a copy of the videotape of him driving.

14The applicant opposes the TTC and the Union’s request that the HRTO defer consideration of his Application pending the conclusion of the proceeding before the WSIAT. He states that deferral would be unfair because no date has been set to hear his appeal, three and a half years have passed since he has been ready to return to work and he has not been accommodated, and he has suffered financial hardship since his LOE benefits were cut off.

REQUEST FOR SUBMISSIONS ON DEFERRAL

15Rule 14.1 of the HRTO’s Rules of Procedure states that the HRTO may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The HRTO will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

16In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the HRTO made the following general comments about deferral at paras. 18-20:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be 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 type 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.

17To date, the HRTO has received full written submissions on the deferral issue from the TTC and the applicant, and limited submissions from the Union based on its lack of access to the appeal materials before the WSIAT at the time it filed its Response. The Union now has, or should have, a copy of the applicant’s Notice of Appeal to WSIAT. The WSIB has not filed any written submission on the deferral issue.

18In my view, it would be not be fair to decide the deferral issue without giving the WSIB and the Union the opportunity to file full written submissions, and the applicant the opportunity to file a reply. The HRTO therefore makes the following Order:

(a) The WSIB and the Union are directed to deliver to the other parties and file with the Tribunal by April 30, 2010 written submissions, including documents and case law, if any, which address the deferral issue.

(b) The applicant is directed to deliver to the respondents and file with the Tribunal by May 7, 2010 written submissions, including documents and case law, if any, in reply.

19The WSIB’s request that the HRTO dismiss the Application against it on the basis that it is outside the HRTO’s jurisdiction will be addressed, if necessary, after the HRTO has made a decision with respect to the deferral request.

20I am not seized of this matter.