Human Rights Tribunal of Ontario
B E T W E E N:
Spence McCarthy Applicant
-and-
Ceasar’s Plumbing and Heating Respondent
INTERIM decision
Adjudicator: Geneviève Debané Date: September 14, 2011 Citation: 2011 HRTO 1690 Indexed as: McCarthy v. Ceasar’s Plumbing and Heating
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on August 11, 2011. The Application alleges discrimination in employment on the ground of disability.
2The respondent filed a Response on October 20, 2010 denying any breach of the Code and requesting that the Application be deferred pending the determination of the applicant’s appeal for WSIB benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A (“WSIA”).
3In response to a Case Assessment Direction issued by the Tribunal on July 25, 2011 both parties filed additional submissions on the issue of the appropriateness of deferring this Application. This Interim Decision addresses the issue of whether the Application should be deferred pending the conclusion of the applicant’s appeal pursuant under WSIA.
Submissions of the Parties
4The respondent asserts that the applicant was injured at work after five months of employment, and that based on an independent medical assessment that the applicant could reintegrate to his regular duties after a few months. However, the applicant reapplied for WSIB benefits for the same accident which was denied by WSIB. The respondent submits that the issues to be determined by the WSIB could not be more relevant to the subject matter of this Application.
5The applicant opposes the deferral of this Application on the basis, amongst other reasons, that it is immaterial whether or not the applicant qualifies for WSIB benefits because the respondent has the duty to accommodate the applicant pursuant to the Code, since he made a claim for WSIB benefits. Further, the applicant asserts that it may take years for the matter to be finally determined under WSIA, since the applicant has taken no steps to move the matter forward since the objection letter he filed last year. It appears that the applicant has only recently retained counsel to assist him with his WSIB claim.
Decision
6The 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 of the Tribunal’s Rules of Procedure). The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.
7Applying these principles to this case, I agree with the respondent and find that it is appropriate to defer this Application pending the conclusion of the proceeding before the Appeals Resolution Officer. I note that the applicant’s claim for WSIB benefits was refused on the basis that the Case Manager did not accept the medical documents provided by the applicant and that she determined that the applicant did not require modified duties. If this Application proceeds, one of the central issues before this Tribunal will be whether the applicant can establish that he required disability related accommodation. It would not be constructive to have two proceedings concurrently consider the same facts and related issues as this may lead to contrary findings and decisions. In rendering this decision, I am guided by the reasoning in the Tribunal’s decision in Dhunsi v. J.T. Bakeries, 2010 HRTO 540.
8With respect to the applicant’s position that it may take years for the WSIB proceedings to conclude, I note that any delay to date was largely caused by the applicant’s failure to pursue this appeal with diligence. In such circumstances, especially given that the respondent immediately sought a deferral of this Application in its Response, it is not appropriate to refuse to defer this Application for that reason. I note that there was no evidence presented which would support that it may take years for an Appeals Resolution Officer to render a decision once the applicant diligently pursues his appeal. Therefore, it is most fair, just and expeditious to defer this Application.
9However, this Application will only be deferred pending the decision of the Appeals Resolution Officer. Once the Appeals Resolution Officer renders a decision either party can choose the reactivate this Application and the Tribunal will have to decide whether or not the Application should continue to be deferred based on the circumstances before it at that time.
10The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
11I am not seized of this matter.
Dated at Toronto, this 14th day of September, 2011.
”signed by”_____________
Geneviève Debané
Vice-chair