McIntosh v. Shred-It, 2011 HRTO 1527

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin McIntosh

Applicant

-and-

Shred-It

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 16, 2011

Citation: 2011 HRTO 1527

Indexed as: McIntosh v. Shred-It

1The applicant filed this Application on May 16, 2011 under Part IV 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 The applicant alleges that his driver’s license was revoked on a medical basis due to complications related to a previous workplace injury. The applicant alleges that he had no other reliable or economical form of transportation to get to work. The applicant alleges that he was dismissed as abandoning his employment because of his failure to report for work. The Application indicates that the applicant has a Workplace Safety and Insurance Board (“WSIB”) claim in progress. A copy of a WSIB decision, dated December 7, 2010, was provided along with the Application.

2On May 30, 2011, the Tribunal issued a Notice of Intent to Defer (“Notice”) and invited the parties to file written submissions on or before July 3, 2011 with respect to deferral.

3In response to the Notice, the respondent submits that the applicant is currently appealing a decision of the WSIB to discontinue loss of earnings benefits (“LOE”).. The respondent submits that the applicant’s WSIB matter deals with exactly the same facts and circumstances as alleged in the Application and, therefore, the Application should be deferred until the resolution of the WSIB matter.

4The applicant did not file submissions in response to the Notice.

DEFERRAL

5The Tribunal will generally defer an application where there is an ongoing 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.

6The respondent requests that the Tribunal defer this Application because the applicant is currently appealing a WSIB decision. The respondent submits that the issues being dealt with by the WSIB, namely the extent of the applicant’s disability-related income losses and the reasons for dismissal, are the same issues raised by the Application. The respondent also points out that the applicant has claimed similar income related damages as those that are the subject matter of the WSIB claim.

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 ongoing 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, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability.

9Based on the information in the file, the WSIB decision under appeal expressly canvassed the issue of whether or not the applicant’s driver’s license was suspended and the medical evidence supporting the applicant’s claim that there had been a deterioration of his injury. The WSIB Case Manger concluded that there was no objective medical evidence to support the applicant’s claim and that there was no information confirming that his driver’s license was suspended.

10As such, it appears that the applicant is currently pursuing a WSIB appeal and that process was commenced prior to the human rights Application. It appears that the WSIB claim deals with similar allegations and issues that the applicant has raised in this Application, in particular, the reasons surrounding his dismissal and his entitlement to loss of earnings compensation. Consequently, I find that there is a potential of overlap with respect to the factual allegations and the issue of damages because the income compensation sought before the WSIB may be relevant to any remedies, if awarded, by the Tribunal. In the circumstances of this case, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.

DIRECTIONS

11The Tribunal orders as follows:

• The Application is deferred pending the conclusion of the applicant’s WSIB appeal.

12Where 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).

13I am not seized of this matter.