Hamel v. Voith Industrial Services of Canada, 2011 HRTO 1303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Hamel Applicant

• and-

Voith Industrial Services of Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: July 7, 2011 Citation: 2011 HRTO 1303 Indexed as: Hamel v. Voith Industrial Services of Canada

1The applicant filed this Application on February 11, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that he suffered a workplace injury in 2008 and that since then his employer, the respondent, has discriminated against him and failed to accommodate his disability-related needs. The applicant alleges that as a result of the respondent’s treatment he “experienced a mental breakdown”. The applicant alleges that his employment was unfairly terminated in July 2010 when the respondent failed to appreciate that a comment he made alluding to violence was a result of the fact that he experienced significant frustration because he was denied the use of his cane.

3On May 6, 2011, the respondent filed a Response denying the allegations of discrimination. The respondent alleges that applicant was appropriately accommodated throughout his employment and that the applicant’s dismissal was not due to his disability. The respondent alleges that the applicant’s employment was terminated because the applicant had communicated a threat, which was fundamentally incompatible with his continued employment. In its Response, the respondent also clarified that, while the Application was filed against Premier Manufacturing Support Services of Canada Corp., at all material time the applicant was employed by Voith Industrial Services of Canada Inc. (“Voith”) and therefore the proper legal name of the respondent is Voith.

4On May 9, 2011, the respondent filed a Request for Order During Proceedings (“RFOP”). In the RFOP, as well as in its Response, the respondent requests that the Application be dismissed as an abuse of process and/or deferred because of an ongoing Workplace Safety and Insurance Board (“WSIB”) appeal. The respondent also requests that allegations with respect to the events of 2008 and 2009 be dismissed as untimely.

5On May 19, 2011, the applicant filed submissions in response to the respondent’s RFOP. The applicant denies that the issues before the WSIB are the same as the Application. The applicant submits that several issues in the Application, for example, whether or not the applicant was permitted to use his cane; accommodation of the cane; the alleged inadequate investigation of applicant’s concerns; alleged comments regarding the applicant’s medication; etc., were not part of the WSIB proceeding.

DECISION

Abuse of Process

6The respondent argues that the Application is an abuse of process because the Application is a collateral attack on the WSIB process. The respondent submits that the Application essentially seeks to challenge the WSIB’s findings with respect to the level of his disability, whether the respondent provided suitable accommodation/modified work, and the grounds for termination.

7The Tribunal has the jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of abuse of process as follows (at para. 55):

The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.

8It is well-established that the application of the doctrine of abuse of process is to be determined on a case-by-case basis and that dismissal of a proceeding is “an extraordinary remedy” where “the party requesting it must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it”, see Smith v. Menzies Chrysler Incorporated, 2008 HRTO 37 at para. 27 citing Fiorini v. DiPoce Management Ltd. (No. 2) (1997), CHRR Doc. 97-233 (Ont. Bd. Inq.).

9While there are similarities between the facts and issues before the WSIB and the Application, I do not accept that the Application constitutes an abuse of the Tribunal’s process. The allegations of discrimination, harassment, failure to investigate and failure to accommodate at time termination made in the Application raise unique human rights issues distinct from the legal concepts contemplated by the WSIB. In addition to these separate legal issues, I further find that there are different remedies available in the two proceedings. Although damages for loss of income may, to a certain extent, overlap with WSIB benefits, the Code provides for human rights damages and other purposive remedies.

10In the circumstances of this case, I do not find the applicant’s pursuit of his rights before both the Tribunal and the WSIB amounts to an abuse of process.

Timeliness

11The respondent seeks that certain allegations in the Application with respect to events in 2008 and 2009 be dismissed because of an alleged lack of timeliness.

12Subsection 34(1) of the Code provides:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2:

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

13The Application narrative expressly states that, following his initial workplace injury, the applicant experienced “over the course of 2.5 years” a number of incidents of alleged intimidation, discrimination and failure to accommodate culminating in his dismissal in 2010. I find the alleged events constitute a series of incidents related to the incident the applicant alleges occurred within one year of filing his Application. Therefore, based on the chronology of events, it appears the Application satisfies the requirements of section 34 of the Code.

Deferral

14The 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 (Rule 14.1). 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.

15Some factors that have been identified as 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO.

16The Tribunal has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540. In Dhunsi, supra, the Tribunal deferred the Application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. In assessing the issue of deferral, the Tribunal in Dhunsi considered it relevant that the WSIB has significant expertise in addressing issues of disability.

17Based on the information provided by the parties, it appears that there is an ongoing WSIB appeal, which was commenced prior to the Application, and that there is an overlap between some of the facts in dispute before the WSIB and the Tribunal. The WSIB is considering the applicant’s claim for benefits for certain periods of time, including periods that are implicated in the Application. As such, the findings of fact made in the WSIB process, particularly with respect to level of disability and loss of income, may well be relevant to this Application. Given that the legal issues in the Application and the WSIB appeal arise out of the some of the same factual circumstances, and the possibility that there may be overlapping remedies, the Tribunal finds that, in these circumstances, it is appropriate to defer consideration of this Application pending the conclusion of the WSIB appeal process.

CONCLUSION

18The Tribunal orders that the style of cause be amended to reflect Voith Industrial Services of Canada Inc. as the proper respondent.

19The Tribunal denies the respondent’s request to dismiss because of alleged abuse of process and untimeliness.

20The Tribunal orders the deferral of the Application pending the conclusion of the WSIB appeal process. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

21I am not seized of this matter.

Dated at Toronto, this 7th day of July, 2011

”Signed by”

Ena Chadha Vice-chair