HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Chad Randell
Applicant
-and-
Ornamental Mouldings Inc.
Respondent
-and-
Canadian Auto Workers Union, Local 1524
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Date: August 2, 2011
Citation: 2011 HRTO 1441
Indexed as: Randell v. Ornamental Mouldings
1The applicant filed this Application on December 8, 2010 under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent employer failed to accommodate his workplace injury.
2The respondent filed a Response on May 17, 2011 and requests the Application be deferred until the conclusion of another proceeding before the Workplace Safety and Insurance Board (“WSIB”).
3On May 30, 2011, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the applicant and directed the applicant to file submissions in response to the respondent’s requests to defer on or before June 13, 2011. The applicant did not file submissions in response to the Notice.
4On June 1, 2011, the applicant’s union, the Canadian Auto Workers, Local 1524 (“Union”) filed a Request to Intervene. The Union seeks to intervene in this Application because it is concerned that its interests may be affected by this matter.
5Neither applicant nor respondent filed submissions in response to the Union’s request to intervene.
REQUEST TO INTERVENE
6As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:
A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
7In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union, the Union’s Request to intervene is granted. The scope of the Union’s participation in the hearing will be determined by the adjudicator hearing the Application.
BACKGROUND
8The applicant was injured at work on April 10, 2008. He alleges that when he returned to work he was placed in a physically demanding job, which he was unable to do at the requisite speed. During this period, the applicant alleges that he asked to be placed in jobs with lighter duties and there was on-going involvement and investigation by the WSIB. In November 2009, the WSIB Return to Work Specialist recommended that the applicant be placed in a Labour Market Re-entry Program (“LMR”) and, in December 2009, the WSIB determined the applicant’s non-economic loss (“NEL”) award. In early 2011, the applicant filed notices of objections with respect to both the NEL award and LMR plan. The applicant is currently participating in a work trial program, which involves the applicant working reduced hours.
DEFERRAL
9The Tribunal will generally defer an application where there is an on-going legal proceeding based on the same facts and issues. 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.
10The respondent requests that the Tribunal defer this Application because the applicant is currently engaged in the WSIB return to work program and is being monitored by the WSIB. The respondent submits that the issues being dealt with by the WSIB, namely the extent of the applicant’s disability, the suitability of modified work, and the respondent’s efforts to accommodate, are the same issues raised by the Application. The respondent also points out that the applicant has two outstanding appeals.
11Some 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.
12The 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, 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.
13Based on the information in the file, it appears that the applicant is currently involved in proceedings before the WSIB. The WSIB claims deal with the same allegations and issues that the applicant has raised in his Application; specifically, the nature of this disability, the propriety of the modified work offered by the respondent and the availability of appropriate alternate accommodation. It appears that the applicant is also appealing two WSIB determinations before the WSIB Appeals Branch.
14As such, I find that the factual background of the Application is the same as the WSIB matters. Further, it appears that the human rights allegations of failure to accommodate are the same concerns raised in the WSIB claims. There is also the potential of overlap with respect to the issue of damages because the income compensation sought before the WSIB may be relevant to any remedies, if awarded, by the Tribunal. 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 may well be relevant to this Application. I find that in these circumstances deferral is appropriate.
DIRECTIONS
15The Tribunal orders as follows:
The Union is added as an intervenor to this Application and the style of cause is amended to reflect the same; and
The Application is deferred pending the conclusion of the applicant’s WSIB appeals.
16Where 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).
17I am not seized of this matter.
Dated at Toronto, this 2nd day of August 2011.
”Signed by”
Ena Chadha
Vice-chair