Michele Zigman-Peebles v. Corporation of the City of Kingston, 2011 HRTO 1450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michele Zigman-Peebles

Applicant

-and-

Corporation of the City of Kingston

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: August 2, 2011

Citation: 2011 HRTO 1450

Indexed as: Zigman-Peebles v. Kingston (City)

1This is an Application filed on September 14, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondent discriminated against her on the basis of disability in respect of employment. Specifically, the applicant claims that the respondent employer infringed her rights under the Code by failing to accommodate her disability-related needs following a May 2010 workplace injury, and by engaging in reprisals against her for her attempts to seek accommodation for her disability.

2In the Application, the applicant indicates that the facts are part of another proceeding that is still in progress, referencing a union grievance and a claim before the Workplace Safety and Insurance Board (the Board). The applicant indicates that she has appealed a decision by the Board to deny wage loss benefits.

3On January 11, 2011, the Tribunal issued a Notice of Intent to Defer, directing that the parties as well as the applicant’s union provide submissions on whether it is appropriate to defer consideration of the Application pending the resolution of other legal proceedings. The respondent sent submissions dated February 9, 2011. Neither the applicant nor her union have responded to the Notice.

4The respondent submits that the Tribunal should defer consideration of the Application pending the completion of the appeal before the WSIB. It states that although the Appeals Branch of the Board will not determine all of the issues set out in the Application, there is a significant overlap in the issues. The Board will consider whether the respondent attempted to properly accommodate the applicant by offering suitable modified work, whether the applicant fulfilled her duty to reasonably co-operate in the accommodation process, and whether the respondent’s accommodation efforts were sufficient in the sense that it made all reasonable efforts to accommodate short of undue hardship. In order to determine these issues, it submits, the Board will be required to make findings of fact with respect to many of the same factual issues before the Tribunal.

5I am satisfied that there is a significant overlap in the facts and issues in the applicant’s WSIB appeal and her Application to the Tribunal.

6Deferral of an application seeks to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given the significant overlap in the facts and issues in the WSIB appeal and the Application, deferral of the Application is appropriate.

7The Tribunal orders the deferral of this Application pending the conclusion of the appeal to the Board’s Appeal Branch. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the appeal process has concluded.

8As the respondent has indicated that there is no longer a grievance in process, there is no reason to defer to a grievance proceeding.

9I am not seized of this matter.