Adam Szmiett v. Ontario Power Generation and Babcock & Wilcox, 2011 HRTO 1110

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam Szmiett

Applicant

-and-

Ontario Power Generation and Babcock & Wilcox

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 8, 2011

Citation: 2011 HRTO 1110

Indexed as: Szmiett v. Ontario Power Generation

1The applicant filed an Application with the Tribunal on October 13, 2010, pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the employment on the basis of disability. The Application indicates that the last incident of discrimination was in April 2009 and remains continuing.

2The applicant alleges that he was laid off from working with respondent Babcock & Wilcox (“B&G”) at the respondent Ontario Power Generation (“OPG”) facility in April 2009 because of his learning disability. Since that time, the applicant, his union, and the respondents have engaged in various discussions and inquiries in regards to appropriate workplace accommodation. The applicant alleges that, notwithstanding these discussions and the provision of a disability assessment in March 2010, the respondent OPG continues to refuse to provide the applicant with reasonable workplace accommodation.

3On April 15, 2011, the Tribunal issued a Notice of Intent to Dismiss the Application, which noted that, pursuant to section 34 of the Code, the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

4The applicant filed submissions in response to the Notice. The applicant submits that the failure to accommodate constitutes a series of events and a continuing breach of the Code. The applicant alleges that it was not until September 2010 that the respondent OPG made it clear that it was not prepared to provide the accommodation requested.

DECISION

5An application will only be dismissed at a preliminary stage, before it is delivered to respondents, if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction, see for example, Carbone v. Bruzzese, 2009 HRTO 2042. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.

6The chronology set out in the Application and the applicant’s submissions indicate that, following the lay-off, the parties were involved in on-going discussions with respect to the issue of workplace accommodation. In April 2009, the respondent OPG requested medical information to determine whether it was able to provide accommodation and the parties agreed to have the applicant submit to a disability assessment, which was completed in March 2010. In May 2010, after receipt of the disability assessment, respondent OPG refused to reinstate the applicant with accommodation.

7Based on the Application and the applicant’s submissions, the allegations may constitute a series of incidents of discrimination and, therefore, it is not plain and obvious that the Application is out of time. Accordingly, the Tribunal will continue to deal with the Application. This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application.

8As such, I am satisfied that the Application should be served on the respondents and the affected party and that they should be given an opportunity to address the allegations and any jurisdictional issues.

DEFERRAL

9The applicant’s materials indicate that the applicant was represented by his union and that a grievance was filed on his behalf with respect to the failure to accommodate. The applicant submitted a copy of the grievance dated September 28, 2010.

10Rule 14.1 of the Tribunal’s Rules of Procedure states that the 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. 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404. The Tribunal will generally defer an application where there is an on-going grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5.

11Given that there is a potential of concurrent proceedings with respect to the same facts and issues, the Tribunal determines that it may be appropriate to defer the consideration of this Application. The parties and affected party are specifically required to provide the Tribunal with information of the status of the applicant’s grievance and to make submissions with respect to whether this Application should be deferred.

DIRECTIONS

12The Registrar is directed to serve the Application and a copy of this Interim Decision on the respondents and affected party, along with a copy of the applicant’s submissions in response to the Notice. Along with their Responses, the respondents are directed to file submissions with respect to whether or not this Application should be deferred. Along with his Reply, the applicant is directed to file submissions with respect to whether or not this Application should be deferred. The affected party may also file submissions in accordance with the Tribunal’s Rules of Procedures.

13I am not seized of this matter.