Kevin Killby v. Kappeler Masonry Corporation, 2011 HRTO 164

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Killby

Applicant

-and-

Kappeler Masonry Corporation

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: January 24, 2011

Citation: 2011 HRTO 164

Indexed as: Killby v. Kappeler Masonry

1The applicant filed an Application on August 9, 2010 under section 34 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 he was laid off from his job because the respondent employer refused to accommodate his work-related injury.

2The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of other legal proceedings dealing with the subject matter of the Application.

3The Application indicates that the applicant has a grievance in progress and a copy of the grievance letter, dated July 15, 2010, was attached to the Application.

4On December 10, 2010, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondent, and the applicant’s union, Labourer’s Local 1059 (as an affected party), to file submissions within 30 days of the date of the letter as to why consideration of the Application should or should not be deferred.

5The respondent filed submissions in response to the Notice of Intent to Defer. The respondent submits that the applicant also has a Workplace Safety and Insurance Board (“WSIB”) appeal underway. The respondent submits that the Application should be deferred until the conclusion of all appeal processes before the WSIB and Workplace Safety and Insurance Appeals Tribunal.

6No submissions were received from the applicant, nor the affected party, Labourer’s Local 1059, the applicant’s union.

DECISION

7The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

8There appears to be significant overlap between the facts and issues in the Application and the outstanding grievance. The main allegations in the Application concern the duty to accommodate the applicant’s workplace injury, failure to provide modified duties and lay-off. The Application seeks lost wages and punitive damages. The July 15, 2010 grievance letter alleges that the respondent employer “improperly and unjustly laid off (the applicant) contrary to the Human Rights Code and in breach of its duty to accommodate an injured worker.” The grievance letter seeks lost wages and reinstatement as remedial relief for the applicant. As such, the subject matter of the grievance is the same as the Application and both seek similar remedies.

9The Application indicates that the grievance is still in progress. The Application does not identify any particular factors which would cause the Tribunal to depart from its normal approach and no submissions were received from the applicant or his union.

10In these circumstances, deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance. I appreciate that the applicant also has an outstanding WSIB appeal; however, there is no indication that the WSIB matter specifically relates to the issues raised in the Application. If the respondent believes on conclusion of the grievance process that this Application should be deferred pending the conclusion of the WSIB processes, the respondent may make such a request at that time.

11The Application will therefore be deferred pending the completion of the grievance process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

12I am not seized of this matter.