HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Steven Hutchinson
Applicant
-and-
Donalda Club
Respondent
INTERIM decision
Adjudicator: Maureen Doyle
Date: May 27, 2011
Citation: 2011 HRTO 1002
Indexed as: Hutchinson v. Donalda Club
WRITTEN SUBMISSIONS
Steven Hutchinson, Applicant ) Jessica Ponting, Representative
1This Interim Decision addresses the applicant’s request that this matter be deferred pending the completion of proceedings before the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”) pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, as amended (the “WSIA”). On April 14, 2011, the Tribunal wrote to the parties giving them 30 days to make submissions regarding the question of deferral. The Tribunal has received submissions from the applicant regarding this question, but nothing was received from the respondent.
BACKGROUND
2The applicant alleges that he was discriminated against on the basis of disability when he was dismissed from employment by the respondent. He worked as a groundskeeper for the respondent and suffered a workplace injury to his shoulder in March 2009. He further injured his shoulder at work in April 2009, while performing his regular duties, and on April 21, 2009, he sought modified work. He alleges that alternate work to which he was assigned was not within his medical restrictions and he stopped working. He alleges that over the course of the following year he took steps to obtain suitable modified work from his employer, but was unsuccessful due to the employer’s unwillingness to accommodate him. The Workplace Safety and Insurance Board (“WSIB”) denied wage loss compensation to the applicant because they found the employer had provided suitable work. He alleges that at a meeting with a WSIB representative on March 17, 2010, the representative indicated that they would not accommodate him because they were not obliged to do so.
3The applicant appealed the WSIB’s denial of benefits to a WSIB Appeals Resolution Officer (“ARO”). While that decision has not been provided to the Tribunal, the applicant has provided a copy of a Notice of Appeal, dated December 16, 2010, indicating that he is appealing a November 22, 2010 ARO decision to the WSIAT and that he seeks ongoing Loss of Earnings benefits.
APPLICANT’S POSITION
4The applicant submits that the Application should be deferred. He submits that the Application deals with the question of accommodation by the respondent, as well as harassment and reprisal in the accommodation process. He further submits that the question before the WSIAT deals with entitlement to Loss of Earnings and re-training following the unsuccessful return to work process, and the case at WSIAT will deal with many of the same facts and issues as will be placed before the Tribunal. Additionally, the applicant submits that the remedy he will seek at the Tribunal will depend upon WSIAT’s decision regarding entitlement to Loss of Earnings benefits.
DEFERRAL CONSIDERATIONS
5The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not, in and of itself, a reason to defer dealing with an application.
6The Tribunal summarized its jurisprudence regarding deferral in Bhagdasserians v. 674460 Ontario, 2008 HRTO 404 (“Bhagdasserians”), as follows:
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.
The Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues (Krieger v. Toronto Police Services Board, 2008 HRTO 270, 2008 HRTO 270). The Tribunal has also deferred an application where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council 2008 HRTO 228, 2008 HRTO 228). In such circumstances, the Tribunal is concerned about the prospect of concurrent overlapping proceedings and the potential for conflicting findings of fact or law. Where the civil action is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.
7In Cui v. MSM, 2008 HRTO 449 (“Cui”), the Tribunal deferred an application pending the conclusion of proceedings at the WSIAT where the question of the suitability of modified work offered by the employer was at issue. At paragraph 9, noting the principles enumerated above in Bhagdasserians, the Tribunal found as follows:
Applying these principles to this case, I find that it is appropriate to defer this Application pending the conclusion of proceedings at the WSIAT. The suitability of the modified work offered by the employer, informed by a statutory obligation to accommodate to the point of undue hardship, is a central issue in both proceedings. The substance of the legal issues is therefore similar or the same (see Berisa v. Toronto (City), 2008 HRTO 46, 2008 HRTO 46 at paras. 38-40). Moreover, the WSIB proceedings are well underway, and the WSIAT appeal of the ARO decision is scheduled in just over two months. If the WSIAT upholds the applicant’s position, he will be entitled to LOE benefits, which may affect the damages to be awarded by the Tribunal if the Application is allowed. All of these factors support deferral.
8While there is no indication that the applicant in this case, unlike the applicant in Cui, has a hearing date scheduled for his appeal to WSIAT, the WSIB has issued its final decision in this matter and the applicant provided his Notice of Appeal to the WSIAT several months ago. As in Cui, the suitability of modified work offered by the employer, informed by a statutory obligation to accommodate to the point of undue hardship, is central to both proceedings. The substance of the legal issues and the factual allegations underpinning them are therefore similar or the same. Further, here, as in Cui, WSAIT’s determination of entitlement to Loss of Earnings benefits may affect the damages to be awarded by the Tribunal if the Application is allowed.
9In light of these considerations, I am satisfied that the Application should be deferred and the Tribunal will defer this Application pending completion of the WSIAT proceedings. The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
10I am not seized of this matter.
Dated at Toronto, this 27th day of May, 2011.
”signed by”_____________
Maureen Doyle
Vice-chair