Johnson v. Direct Fire Protection, 2011 HRTO 1655

BETWEEN:

Roger Johnson Applicant

-and-

Direct Fire Protection Respondent

Adjudicator: Ena Chadha Date: September 7, 2011 Citation: 2011 HRTO 1655 Indexed as: Johnson v. Direct Fire Protection

1The applicant filed this Application on June 14, 2011 under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent employer rescinded its offer to return him to work because the respondent indicated that, while it was able to accommodate the applicant's compensable elbow injury, it was unable to accommodate his Multiple Sclerosis. The Application notes that the applicant has a claim progressing through the Workplace Safety and Insurance Board ("WSIB") with respect to the elbow injury.

2On July 8, 2011, the Tribunal issued a Notice of Intent to Defer ("Notice") to the parties and affected party, the applicant's union, and directed them to file submissions in regards to whether or not the Tribunal should defer consideration of the Application pending the completion of the WSIB process.

3The applicant filed submissions in response to the Notice on July 20, 2011 opposing deferral. The applicant submits that the WSIB has stated that the respondent's refusal to accommodate the applicant's Multiple Sclerosis condition is an "employment situation rather than a WSIB issue" and therefore outside of the WSIB's jurisdiction. The applicant acknowledges that he is in the process of appealing the WSIB's decision to deny him further benefits for his compensable left elbow injury; however, the applicant submits that the "real problem" is the employer's discriminatory actions as a result of his non-compensable medical condition, which the WSIB has indicated is not within its jurisdiction. The applicant provided a copy of the WSIB's May 2011 correspondence confirming its position in this regard.

4The respondent filed submissions in response to the Notice on July 28, 2011. The respondent submits that the Application should be deferred because, given the history of the applicant's WSIB claims, those matters should be addressed in their entirety prior to any determination of liability by the HRTO.

DEFERRAL

5The Tribunal will generally defer an application where there is an on-going 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.

6Some 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.

7The applicant submits the Tribunal should not defer the Application because the alleged disability discrimination, specifically refusal to return the applicant to work because of his Multiple Sclerosis condition, is not within the WSIB's jurisdiction. The respondent submits that the Tribunal should defer this Application because the applicant is currently involved in the WSIB process. The respondent submits that the claims issues being dealt with by the WSIB should proceed first.

8In the present case, while the factual background to the Application overlaps with the WSIB proceeding, it appears, based on the applicant's submissions, that the human rights substance of the Application, specifically the allegations of discrimination because of the applicant's Multiple Sclerosis condition, are not the subject of the WSIB proceeding. As noted in Naik v. HCR Personnel Solutions Inc, 2011 HRTO 157, it is often appropriate to defer consideration of an Application that is founded in the same facts as a WSIB claim; however, deferral is not warranted simply because the applicant has made a WSIB claim. Based on the information in the file, it appears that the WSIB has expressly taken the position that it will not be considering the Code concerns in regards to the applicant's allegations of disability discrimination because of the applicant's Multiple Sclerosis condition. In these circumstances, the Tribunal will not defer this Application.

DIRECTIONS

9The Tribunal orders as follows:

The Tribunal will continue to process this Application;
A copy of this Interim Decision will be provided to the respondent along with the Notice of Application; and
The respondent is required to file its full Response (Form 2) within 35 days of the date of the Notice of Application and, in its Response, the respondent is required to specifically indicate whether or not it is amenable to participating in mediation.

10I am not seized of this matter.

Dated at Toronto, this 7th day of September 2011.

"signed by"__________

Ena Chadha Vice-chair