HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joanne Badgley
Applicant
-and-
Somerville Graphics Inc. and Ken Somerville
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Badgley v. Somerville Graphics
1The applicant filed this Application on January 7, 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 she suffered workplace injuries and that the respondents failed to provide her with appropriate accommodation. The applicant also alleges that the respondents subjected her to undue scrutiny and offensive comment and conduct in relation to her disability and disability-related absences. The Application indicates that a Workplace Safety and Insurance Board (“WSIB”) claim was filed regarding the applicant’s workplace injuries and that this claim is still in progress.
3On April 15, 2011, the respondents filed a Response requesting early dismissal of the Application on the basis that another proceeding, namely the WSIB process, has appropriately dealt with the substance of the Application. The respondents indicate that the WSIB Case Manager has determined that the applicant did not suffer a workplace injury and denied the applicant’s claim for benefits. In the alternative, the respondents submit that the Application should be deferred until the conclusion of the applicant’s appeal of the WSIB decision. The respondents indicate that the applicant has launched an appeal of the Case Manager’s decision to the Workplace Safety and Insurance Appeals Tribunal.
4On June 6, 2011, the Tribunal issued a Notice of Intent to Dismiss or Defer. The Notice indicated that the respondents seek the Application be dismissed, under section 45.1 of the Code, on the basis that another proceeding appropriately dealt with the substance of the Application or that the Application be deferred pending the resolution of another legal proceeding pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal directed the applicant to file a Reply with submissions as to whether or not the Application should be dismissed or why consideration of the Application should or should not be deferred.
5The applicant did not file submissions.
DECISION
6The 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.
7Some 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 404.
8The Tribunal has found it to be appropriate to defer applications where there are on-going 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, Dhunsi v. J.T. Bakeries, 2010 HRTO 540, and Mehrpooya v. Future Shop/ Best Buy Canada, 2011 HRTO 647. In assessing the issue of deferral, the Tribunal in Dhunsi, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability. In Mehrpooya, supra, the Tribunal considered it relevant that there were overlapping issues with respect to damages as both the Application and the WSIB claim sought lost income.
9In the present case, the factual background of the Application clearly overlaps with the WSIB proceeding. Both arise out of the events surrounding the applicant’s alleged workplace injuries and both have, as part of their focus, the applicant’s allegations of failure to accommodate. It also appears that there is some similarity in the remedies sought in the two proceedings. The WSIB process was commenced first and, as of January 2011, the applicant filed an appeal of the WSIB decision. In my view there is an overlap between the issues that are raised in the two proceedings and findings of fact made in the WSIB process, particularly the circumstances in relation to the applicant’s re-injury and cessation of employment, may well be relevant to this Application. In these circumstances, I find that it is appropriate to defer the Application.
10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which set out the procedure if a party wishes to proceed with an application pending the conclusion of another proceeding.
11Given the decision to defer the Application, the Tribunal will not deal with the respondents’ Request to dismiss at this time. Should this matter be reactivated, the respondents may renew their Request to dismiss under section 45.1 of the Code at that juncture.
12I am not seized of this matter.
Dated at Toronto, this 28th day of January, 2011.
”signed by”__________________
Ena Chadha
Vice-chair