Michael Duncan v. Churchill Logistics Inc., 2011 HRTO 1102

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Duncan Applicant

-and-

Churchill Logistics Inc. Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: June 7, 2011 Citation: 2011 HRTO 1102 Indexed as: Duncan v. Churchill Logistics Inc.

WRITTEN SUBMISSIONS BY

Michael Duncan, Applicant ) No submissions Churchill Logistics Inc., Respondent ) Jennifer Costin, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In his Application, the applicant advises that he is also appealing a decision of the Workplace Safety and Insurance Board ("WSIB").

2Section 45 of the Code confirms the Tribunal's authority to defer consideration of an application. Under Rule 14 of the Tribunal's Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

3In its response to the Application, the respondent requested deferral of this Application pending the outcome of the WSIB appeal.

4On May 3, 2011, the Tribunal wrote to the Applicant advising of the respondent's request and inviting him to make submissions in response to the request by May 17, 2011. The Tribunal has not received submissions from the applicant.

FACTS AND SUBMISSIONS

5The applicant alleges that he was injured at work on December 9, 2010. The respondent employer provided him with modified work, which was to last until March 9, 2010, but on March 4, 2010, gave him a letter terminating his employment effective April 9, 2010. He alleges that he was "banished" from the workplace once the employer realized that he would be making a claim for WSIB benefits. By way of remedy, he seeks financial compensation related to lost wages and to "emotional stress and disability in my left knee".

6The termination letter from the employer, dated March 4, 2010, states that the employer was terminating his employment due to "the current economic climate and an overall reduced workload".

7The respondent alleges that the termination was for economic reasons and that after March 11, 2010, the applicant did not return to work, but advised that he was "going on compensation".

8The respondent provided a copy of the WSIB's April 7, 2010 letter denying entitlement to health care and loss of earnings benefits on the basis that the adjudicator was "unable to establish proof that a workplace accident caused your injury". The denial also states that the adjudicator was "unable to connect the flare-up on March 8, 2010 with the injury reported on December 10, 2009".

9The respondent submitted that this Application should be deferred as the appeal of the WSIB decision "would deal with many of the same facts… including Churchill's decision to terminate Duncan, Churchill's treatment of his injuries and medical restrictions, etc."

DECISION

10The 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.

11In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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. 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 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.

12The subject matter of the other proceeding is not the same as the subject matter of this Application. Though the respondent has indicated that the WSIB appeal would deal with many of the same facts, including its decision to terminate the applicant's employment, and its treatment of his injuries and medical restrictions, it appears that the WSIB appeal will be centred on the question of causation and whether the applicant's injuries are related to a workplace accident. The nature of the other proceeding is an "initial entitlement" decision, which will consider the question of causation in order to determine his eligibility for benefits related to loss of earnings after his last day at work, March 11, 2010, as well as eligibility for benefits related to medical expenses. The question before this Tribunal, however, is whether the respondent employer considered the applicant's disability in making its decision to terminate his employment.

13Even if the applicant is successful in his appeal regarding initial entitlement, it is not clear that the decision will result in a determination regarding what, if any, loss of earnings benefits should be paid to the applicant. The remedy sought by the applicant in his Application before this Tribunal includes monetary compensation for lost wages. However, in the proceeding at the WSIB, the applicant is seeking eligibility for loss of earnings benefits that will include the same period that he claims compensation for loss of earnings in the proceeding at this Tribunal. As such, there is potentially some overlap in regard to the remedies that may be available in the two proceedings, although each system would have regard to any remedies or benefits paid by the other system.

14The proceeding at the WSIB is not very far advanced. There is no indication yet that a hearing date has been set for the applicant's appeal regarding his eligibility for benefits. The question of what loss of earnings benefits, if any, should be paid to him, may well be dealt with much later still. Accordingly, there could be significant delay before there is a final decision from the workplace safety and insurance system on the issues that are relevant to the question of remedy in the Application before this Tribunal. The proceeding at this Tribunal, while not at an advanced stage, will not involve any intermediate questions, such as eligibility for benefits.

15In considering the factors of 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 defer having regard to the status of each proceeding and the steps that have been taken to pursue them, I find that it is not appropriate to defer consideration of the Application at this time. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.

16I am not seized of this matter.