Vimalkumar Naik v. HCR Personnel Solutions Inc., 2011 HRTO 157

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vimalkumar Naik

Applicant

-and-

HCR Personnel Solutions Inc., Innovative Cooling Dynamics, a division of Magna Powertrain Inc.

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: January 21, 2011

Citation: 2011 HRTO 157

Indexed as: Naik v. HCR Personnel Solutions Inc

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in employment on the ground of disability.

2According to the Application, the applicant was employed by HCR Personnel Inc. (“HCR”), a temporary labour agency that supplies workers to other employers. He was sent to Innovative Cooling Dynamics, a division of Magna Powertrain Inc. (“Magna”) and suffered a work-related injury while working at Magna. The Application names HCR and Magna as respondents.

3The Application indicates that the applicant applied for benefits from the Workplace Safety and Insurance Board (WSIB). The status of the claim is not clear from the Application but it appears that the claim was denied.

4On November 24, 2010, the Tribunal issued a Notice of Intent to Defer consideration of the Application pending the resolution of the claim at the WSIB. The applicant and respondents were invited to make submissions on whether the Tribunal should defer consideration of the Application. The respondents were advised that it was not necessary to file a Response to the Application (Tribunal Form 2) at that time. Submissions were received from Magna but not from HCR or the applicant.

5The submissions from Magna ask the Tribunal to defer consideration of the Application until the applicant’s claim with the WSIB is resolved. However, the submissions provide no information about the status of the claim. This is understandable as it would appear that the accident employer for WSIB purposes is likely HCR and Magna may therefore not know the status of the WSIB claim.

6It is often appropriate to defer consideration of an Application that is founded in the same facts as a WSIB claim. Deferral can ensure that there are not two legal proceedings going on at the same time involving the same issues. It can also be appropriate because the resolution of the WSIB claim may resolve some or all of the human rights issues and also affect the remedy that may be available if the human rights allegations are found to be true. However, deferral is not always appropriate only because an applicant has made a WSIB claim.

7In this case, I find that there is not enough information to conclude that the Application should be deferred at this time. There is very little information about the status of the WSIB claim, including whether there are ongoing issues at the WSIB. At this stage of the processing of the Application, it is not plain and obvious that the Application should be deferred and I find that it is not appropriate to defer at this time.

8The respondents are now required to file a Response to the Application (Tribunal Form 2). Their Responses must be filed with the Tribunal within 30 days of this Interim Decision.