Flynn v. DGN Marketing Services Ltd., 2011 HRTO 1419

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianne Flynn

Applicant

-and-

DGN Marketing Services Ltd.

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: July 28, 2011

Citation: 2011 HRTO 1419

Indexed as: Flynn v. DGN Marketing Services Ltd.

1The applicant filed an Application on December 9, 2009 under section 34 of the 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. The applicant alleges that she was discriminated against and her employment terminated because she sustained workplace injuries and filed Workplace Safety and Insurance Board (“WSIB”) claims.

2On June 6, 2011, the applicant filed a Request for Order During Proceedings asking that the Application be deferred pending the conclusion of a proceeding before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The applicant provided a copy of the WSIAT Hearing Ready Letter dated March 11, 2011.

3No submissions were received from the respondent with respect to the applicant’s Request to defer.

DECISION

4The 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 similar or overlapping issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

5Some 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.

6Based on the materials field by the parties, it appears that the level of the applicant’s disability, the alleged aggravation of the disability and her benefits entitlement are the issues in dispute in the WSIAT matter. The respondent indicates that certain alleged verbal statements made by the applicant to the employer’s health and safety representative with respect to the WSIB claim are also in dispute and may have implication to whether or not the applicant’s employment was terminated with knowledge of the WSIB claim. All of these issues also appear to be in dispute in the Application. In addition, the applicant has claimed damages for loss of income and psychological stress, which may, to a certain extent, overlap with WSIB claim wherein permanent injury and psychotraumatic disability benefits are being sought.

7As such, I find there are similarities and some overlap between the facts and issues before the WSIAT matter and the Application. I find that it is in the interest of fairness, justice and expeditiousness that multiple proceedings simultaneously dealing with related subject matter be avoided and thereby minimize the risk of conflicting factual and legal findings. In these circumstances, deferral is appropriate.

8The Application will therefore be deferred pending the completion of the WSIAT process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WSIAT process.

9I am not seized of this matter.