Edward Jerzykiewicz v. Workplace Safety and Insurance Board, 2010 HRTO 979

Human Rights Tribunal of Ontario

B E T W E E N:

Edward Jerzykiewicz Applicant

-and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: May 4, 2010 Citation: 2010 HRTO 979 Indexed as: Jerzykiewicz v. Workplace Safety and Insurance Board

1This is an Application filed on October 28, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code").

2By Case Assessment Direction dated March 26, 2010, the Tribunal directed the parties to provide it with information about the status of the applicant's claim under the Workplace Safety and Insurance Act 1997, S.O. 1997, c. 16 Sched. A, as amended (the Act), and specifically, whether the issue of whether the applicant should be referred to a medical electro-industrial specialist is still under consideration by the respondent (the WSIB). The parties were directed to provide any relevant decisions of the WSIB on the applicant's claim.

3The parties were also directed to provide submissions on whether the Application before the Tribunal should be deferred pending the outcome of the decision-making process at the WSIB on the applicant's claim, if it is still ongoing.

4The respondent has filed submissions. The applicant has not, and the time for doing so has elapsed.

5The respondent states that the applicant's claim for entitlement to benefits has been referred to the Board's internal Appeals Branch for consideration. The applicant has stated that he is unavailable to participate between the period of February 25, 2010 and May 10, 2010 but once he is available, it is likely that his appeal will be heard. The respondent states that if entitlement to benefits is granted, then the WSIB may consider any appropriate medical referrals pursuant to its authority under the Act.

6The respondent submits that in light of the factors considered by the Tribunal in deciding whether to defer the hearing of an Application, this Application ought to be deferred until after the hearing of the applicant's WSIB appeal.

7The Tribunal has stated that 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.

8Some 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.

9In several other decisions, the Tribunal has deferred consideration of an Application against the WSIB where the facts and issues in the Application are substantially the same as those under consideration in a concurrent proceeding under the Act: see for instance, Plummer v. Workplace Safety and Insurance Board, 2009 HRTO 65, Hansen v. Workplace Safety and Insurance Board, 2009 HRTO 1134.

10The same principles apply here. The Application alleges that the WSIB should have referred the applicant to a particular type of medical specialist. The applicant's entitlement to benefits and consequent entitlement to a medical referral is the subject of an ongoing appeal before the WSIB. It is appropriate in the circumstances for the Tribunal to await the outcome of that appeal before proceeding with the Application.

11The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the appeal has been concluded.

12I am not seized of this matter.