Bourque v. Sarnia (City), 2011 HRTO 142

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Bourque Applicant

-and-

The Corporation of the City of Sarnia Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: January 19, 2011 Citation: 2011 HRTO 142 Indexed as: Bourque v. Sarnia (City)

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the outcome of a related, ongoing Workplace Safety and Insurance Board (“WSIB”) proceeding.

2This Application, which was filed on November 23, 2009, alleges discrimination on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). Specifically, the applicant, who was a bus driver for the respondent, alleges that, following a recurrence of a work-related injury, the respondent failed to provide her with modified duties.

3The applicant states that the respondent only offered her pre-injury job, which she was medically no longer able to do. The reason the applicant states she was unable to return to bus driving is that she was suffering from dizziness and blackouts, which resulted in the suspension of her license.

4The applicant was on WSIB benefits following her first injury on the job in March 2003 and recurrence of that injury in September 2005. In January 2006, the WSIB claims adjudicator determined that she was able to return to her pre-injury job as a bus driver. The applicant states that as a result of that determination, the respondent did not offer her modified work.

5The applicant states in her Application that the respondent only offered her modified duties in April 2009, in response to a request from the WSIB adjudicator asking the respondent to provide the WSIB information on whether modified duties were available. She returned to work in May 2009.

6As implied in the above narrative, the WSIB was involved in the applicant’s return to work. The respondent attached decisions of and correspondence to and from the WSIB to its Response. Briefly, these documents would indicate the following with respect to the applicant’s ability to return to work and her entitlement to loss of earnings (LOE) benefits:

• On January 13, 2006, the WSIB claims adjudicator ruled that the applicant was able to return to her pre-injury job.

• This decision was confirmed on March 9. 2006, and the applicant advised that she would be entitled to partial LOE benefits between the period of January 20-February 20, 2006.

• On March 30, 2009, the claims adjudicator restored the applicant’s LOE benefits from January 21, 2009 onward, but denied full benefits for the three-year period from January 2006 to January 2009.

• On appeal, the Appeals Resolution Officer, in a decision dated November 20, 2009, ruled that the applicant was entitled to full LOE benefits from January 20, 2006 to April 24, 2006, and then partial benefits thereafter until January 2009.

DECISION AND ANALYSIS

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). In this case, the Tribunal sent a Notice to the parties on December 6, 2010 asking them to file submissions on the question of deferral. Both the applicant and the respondent filed submissions in response to this Notice.

8The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

9In her submissions to the Tribunal, the applicant objects to deferral. She notes that she did not pursue her Application to this Tribunal until after the Appeals Resolution Officer decision, dated November 20, 2009, granted her partial entitlement to LOE benefits. She indicates that she has appealed this decision, seeking full benefits for the period from March 2006 to December 2007, but this decision will “not resolve the issues in dispute with respect to the HRTO Application.”

10In its submissions on the deferral issue, the respondent notes that, in addition to the applicant’s appeal, it has filed an appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) of the November 20, 2009 decision on the basis that the applicant failed to keep in contact with the respondent and failed to cooperate with the accommodation process by not providing the respondent with the medical information requested. It submits that this is the same position that it is taking in its defence of the claim in the instant Application that it violated the applicant’s rights under the Code.

11Based on the pleadings before this Tribunal, the decisions of the WSIB and the submissions of the parties on the issue of deferral, it would appear that there is a substantial overlap between the issues in the WSIB proceedings concerned with LOE benefits and the issues in this Application. The question of the applicant’s entitlement to lost wages and her cooperation in the accommodation process will be determined by the WSIB and WSIAT. If this Application were to proceed concurrently, there would be the very real risk that there would be inconsistent findings of fact on these issues.

12Given that the WSIB proceedings are already underway, the Tribunal is of the view that deferral is the most fair, just and expeditious way of proceeding with this Application. The Tribunal orders the deferral of this Application pending the conclusion of the WSIB/WSIAT proceedings on the applicant’s entitlement to LOE benefits and cooperation with the return to work 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 WISB/WSIAT process.