Gerhard Walz v. DMI Canada Inc., 2011 HRTO 1124

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerhard Walz

Applicant

-and-

DMI Canada Inc., Betsy VandeBeld and Don Simpson

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 9, 2011

Citation: 2011 HRTO 1124

Indexed as: Walz v. DMI Canada Inc.

WRITTEN SUBMISSIONS

Gerhard Walz, Applicant ) Bradley J. Troup, Counsel )

DMI Industries Inc., Betsy VandeBeld, )

Don Smith, Respondents ) Amanda Hunter, Counsel

1The applicant filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on September 13, 2009. He alleges discrimination on the basis of disability and reprisal in employment.

2Specifically the applicant alleges that various management personnel made discriminatory comments about his disability and the corporate respondent failed to accommodate his disabilities which culminated in his termination at a meeting held with the respondents on March 4, 2009. The applicant also filed a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”).

3The respondents filed a joint Response dated December 7, 2009 denying the allegations. They assert that the applicant was properly accommodated and identify some discipline that had been issued to him. The respondents deny that the applicant was terminated at the March 4, 2009 meeting. Instead, the respondents claim that the applicant was terminated for cause when he abandoned his employment by failing to return to work following a suspension.

4A mediation was held with the parties on October 15, 2010, but did not result in a settlement.

Respondents’ Request for Order During Proceedings

5A Request for Order During Proceedings (“RFOP”) dated May 13, 2011 was filed by the respondents requesting that the Application be deferred pending completion of proceedings under the WSIA. They note that a Workplace Safety and Insurance Board (“WSIB”) hearing was held on September 22, 2010 with a decision issued on October 8, 2010 by an Appeals Resolution Office (“ARO”). The ARO denied loss of earnings benefits following the applicant’s work cessation on March 4, 2009 and found that the applicant abandoned his job and refused to cooperate in the return to work process.

6The respondents submit that the applicant filed a notice of appeal of the ARO decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) on or about February 17, 2011, about which the corporate respondent learned by letter dated March 17, 2011. The respondents note that hearing dates have not yet been set by either WSIAT or the Tribunal.

7The respondents submit that the Application should be deferred because: there is an overlap of facts in both proceedings; the central issue of whether the applicant was terminated at the March 4, 2009 meeting or abandoned his employment is before both Tribunals; both Tribunals will be required to make a determination as to whether the applicant was terminated or abandoned his employment which could result in conflicting decisions and the unnecessary expenditure of resources; and there is an overlap of remedies in the event that the applicant is successful before both Tribunals.

Applicant’s Response to RFOP

8The applicant opposes the respondents’ request to defer. He submits that there are issues for the Tribunal to determine beyond those which will be determined by WSIAT, including whether he was accommodated under the Code prior to March 2009, whether the disciplinary action taken following the March 4, 2009 meeting was a reprisal under the Code, and whether he was subject to a poisoned work environment precipitating his departure from employment in March 2009. Further, he submits that the issue of the termination/abandonment must be considered in different legal contexts. A finding that the applicant resigned or abandoned his employment could be different if there is a finding of discrimination on the part of the corporate respondent as a contributing cause for the applicant’s departure. The remedies are also different before the two Tribunals.

9The WSIAT hearing, the applicant notes, has not yet been scheduled for hearing and there is no indication as to when it will be scheduled. A deferral of the Application will further delay his Application and would run contrary to the Tribunal’s mandate to provide a fair, just and expeditious resolution of the merits of the Application.

Decision

10Rule 14.1 of the Tribunal’s Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

11The Tribunal will generally defer an application where there is an ongoing proceeding based on the same facts and issues. Deferral of an application ensures that proceedings dealing with similar or overlapping issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

12The initial consideration for the Tribunal in deciding whether or not to defer to anther proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues. When human rights issues are not clearly engaged in the other proceeding, but the application raises facts or issues which overlap with those in another concurrent proceeding, the Tribunal may nonetheless defer determination of the application. In making this determination the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.

13I do find that a central issue to be determined by both the Tribunal and WSIAT is whether the applicant was terminated at the March 4, 2009 meeting or whether he was terminated as a result of abandoning his position. In addition, there are a number of other facts and issues which overlap between the two proceedings. These are factors in favour of deferring the Application. The Tribunal has held that applications can be deferred where there is an overlap of facts and issues, and particularly central issues. (See Guydos v. Workplace Safety Insurance Appeals Tribunal, 2011 HRTO 479 at para. 26; Dhunsi v. J.T. Bakeries, 2010 HRTO 540 at para. 18; and Cui v. MSM, 2008 HRTO 449 at para. 9.)

14As recently stated in Clarke v. Taylor Manufacturing Industries, 2011 HRTO 1061, albeit in the context of denying a hearing adjournment request, the Tribunal quoted at para. 3 from Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 with the following:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. (…) The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances

15While this comment was made in reference to an adjournment request, I find this reasoning to be applicable in considering whether this Application should be deferred. I note that the Tribunal has held that an application can be deferred if WSIB proceedings are well underway. (See Cui, at para. 9.) However, as all the parties noted, while the applicant has filed a notice of appeal to WSIAT, no hearing date has yet been set. Without a hearing date being set by WSIAT, I do not find it appropriate to defer this Application indefinitely to the WSIB proceeding, particularly since the Application was filed in September 2009.

16Accordingly, the request to defer is, at this time, denied. However, upon receiving a hearing date from WSIAT, the parties are directed to advise the Tribunal of the WSIAT hearing date and the Tribunal may revisit the deferral issue upon the request of a party or on its own initiative.

17I am not seized with this matter.