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Faizool Shaffick v. The Oakville Club Ltd., 2011 HRTO 1592 — HRTO | minicounsel | minicounsel

August 25, 2011

Faizool Shaffick v. The Oakville Club Ltd., 2011 HRTO 1592

Case Summary

The respondents sought to dismiss the human rights application under s. 45.1 of the Human Rights Code, arguing its substance was already dealt with in a Workplace Safety and Insurance Board Appeals Resolution Officer decision. The applicant had appealed that decision to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The Tribunal deferred the application pending the final WSIAT decision, noting that proceeding with a preliminary hearing could lead to inconsistent findings or overlapping remedies if the WSIAT appeal overturned the underlying decision.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faizool Shaffick

Applicant

-and-

The Oakville Club Ltd.,

Larry Monpetit and Bram Weitzman

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 25, 2011

Citation: 2011 HRTO 1592

Indexed as: Shaffick v. The Oakville Club Ltd.

written submissionS BY

Faizool Shaffick, Applicant ) Cecil Norman, Representative

The Oakville Club Ltd., ) Lior Samfiru, Counsel

Larry Monpetit and Bram Weitzman, )

Respondents )

[1] This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), dated April 27, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on March 3, 2008.

[2] A decision by a Workplace Safety and Insurance Board Appeals Resolution Officer dated November 4, 2009 (the "ARO decision") has been released, upon which the respondents have sought dismissal of the application pursuant to s. 45.1 of the Code on the basis that its substance already has been appropriately dealt with in another proceeding. The applicant has appealed the ARO decision to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT").

[3] The purpose of this Interim Decision is to determine whether this matter should be deferred pending the result of the WSIAT appeal or should be scheduled for a preliminary hearing to address the issue of whether the application should be dismissed as a result of the ARO decision. In my previous Decision in this matter ([2011 HRTO 925](https://www.minicounsel.ca/hrto/2011/925)), the parties were asked to provide submissions on these issues, which they have done.

[4] The respondents' primary position is that this matter should proceed to a preliminary hearing to determine their request for dismissal pursuant to s. 45.1 of the Code on the basis of the ARO decision. In the alternative, the respondents request that this matter be deferred pending the result of the WSIAT appeal.

[5] The applicant takes the position that this matter should proceed to a hearing before this Tribunal on the merits or substance of the Application and should not be deferred. The applicant's submissions included submissions as to why this Application should not be dismissed on the basis of the ARO decision. That is not the issue before me at this time, nor am I making a decision as to whether a hearing should proceed on the merits or substance of the Application. Rather, the only issue before me is whether this matter should be deferred pending the WSIAT appeal or be scheduled for a preliminary hearing to determine the s. 45.1 issue.

[6] I appreciate that this matter has been longstanding and should be determined sooner rather than later. At the same time, however, I am concerned about scheduling this matter for a preliminary hearing to determine the s. 45.1 issue while the WSIAT appeal is still pending. Necessarily, at this stage, a determination under s. 45.1 of the Code would be made on the basis of the very ARO decision which is under appeal. Were such a preliminary hearing to proceed and a decision made to dismiss the Application on the basis that its substance already had been appropriately dealt with in the ARO decision, this would create the possibility that a subsequent WSIAT decision could overturn or alter the findings in the ARO decision upon which this Tribunal had relied in making its decision to dismiss. Alternatively, if this Tribunal were to allow the Application to proceed, a subsequent decision by WSIAT could potentially re-ignite the request for dismissal under s. 45.1 of the Code or make potentially inconsistent factual findings or order overlapping remedies. These, in my view, are the very kinds of circumstances which the Tribunal's power to defer an Application was designed to avoid.

[7] Accordingly, I am hereby deferring this Application pending a final decision arising out of the applicant's WSIAT appeal. Pursuant to Rule 16.5 of the Tribunal's Rules of Procedure for Transitional Applications, if a party wishes this Application to proceed following a final decision by WSIAT, a request to proceed shall be made by serving and filing a Request for Order during Proceedings (Form TR-4) no later than 60 days after the conclusion of the WSIAT proceeding. The party filing this Request shall set out the date that the WSIAT proceeding concluded and shall include a copy of the final WSIAT decision.

Dated at Toronto, this 25^th^ day of August, 2011.

"Signed by"

Mark Hart

Vice-chair