Halder v. Workplace Safety and Insurance Board, 2011 HRTO 1591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shila Halder Applicant

-and-

Workplace Safety and Insurance Board and NRCS Inc. Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 25, 2011 Citation: 2011 HRTO 1591 Indexed as: Halder v. Workplace Safety and Insurance Board

1The applicant filed this Application on January 24, 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 services, goods and facilities on the basis of disability. The Application indicates that the applicant has a Workplace Safety and Insurance Board (“WSIB”) claim in progress. The applicant’s allegations relate to her concerns during a labour market re-entry (LMR) program.

2On June 14, 2011, the Tribunal issued a Notice of Intent to Defer (“Notice”) and invited the parties to file written submissions on or before July 14, 2011 with respect to deferral.

3The applicant filed submissions indicating that she agrees that her Application should be deferred because both the Application and the WSIB matter deal with the same subject matter, namely whether the applicant was provided with appropriate accommodation in the provision of the LMR program services. The applicant indicates that the WSIB proceeding is awaiting a hearing date at the Appeals Branch.

4In response to the Notice, the respondent submits that the applicant is currently appealing a decision of the WSIB to discontinue loss of earnings benefits because of the applicant’s non-cooperation with the LMR plan. The respondent submits that the Application is a clear duplication of the applicant’s WSIB matter. The respondent submits that it is appropriate to defer the Application to avoid duplicative remedies.

5The respondent NRCS Inc., the alleged LMR service provider, did not file submissions in response to the Notice.

DEFERRAL

6The 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.

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.

9The applicant and the respondents agree that the Tribunal should defer this Application because the applicant is currently appealing a WSIB decision.

10Based on the information in the file, 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 her alleged non-cooperation with the LMR process. 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 Hutchinson v. Donalda Club, 2011 HRTO 1002, the Tribunal considered the potential overlap between the loss of earning benefits sought in the WSIB proceeding and the damages claimed in the Application as a basis to defer. 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.