HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Briner
Applicant
-and-
Ricoh Canada Inc.
Respondent
INTERIM decision
Adjudicator: Maureen Doyle
Indexed as: Briner v. Ricoh Canada
WRITTEN SUBMISSIONS
John Briner, Applicant ) Pamela Kraus, Counsel
Ricoh Canada Inc., Respondent ) Peter Straszlynski, Counsel
1This Interim Decision addresses the respondent’s request, stated in its Response, that this matter be deferred pending the completion of proceedings at the Workplace Safety and Insurance Board (the “WSIB”) pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A as amended (the “WSIA”). On August 29, 2011, the Tribunal wrote to the applicant directing him to file a Reply to the Response, including complete submissions regarding the respondent’s request to defer. The Tribunal has received submissions from the applicant regarding the request to defer, in addition to the respondent’s submissions in its Response to the Application.
2Additionally, in its Response, the respondent identified the WSIB as an affected person. The Tribunal is in receipt of correspondence from counsel for the WSIB indicating that it has decided not to request to intervene in this proceeding.
BACKGROUND
3The applicant alleges that the respondent discriminated against him on the basis of disability in employment when it failed to accommodate him at work and when it terminated his employment. He worked as a Customer Operations Specialist for the respondent and suffered a workplace injury in March, 2010. He filed a claim with the WSIB and he stopped work, citing his injury as the reason, in May, 2010. The WSIB reviewed his case on July 16, 2011 and determined that modified work offered by the respondent was suitable and it ceased payment of Loss of Earnings (“LOE”) benefits beyond July 21, 2010. He alleges that this was contrary to his doctor’s orders to remain off work and he did not return to work. On October 21, 2010, the WSIB confirmed its decision regarding the denial of further LOE on the basis that the respondent had offered work which was “suitable and available to you and well within the restrictions noted”.
4The respondent alleges that it made suitable modified work available to the applicant and states that in view of the WSIB’s finding, it expected him to return to work in October, 2010. On November 8, 2010, the respondent advised the applicant that it was terminating his employment.
5The applicant has now commenced an appeal of the WSIB decision.
6In his Application before this Tribunal, the applicant seeks “Monetary Compensation”, being an award for “general damages” and an award for loss of wages for “two years…for discrimination on the basis of disability”.
THE PARTIES’ POSITIONS
7The respondent submits that the Application should be deferred. It submits that central to both the WSIB appeal and the Application are the issues of the suitability of the modified work offered by the employer, informed by a statutory duty to accommodate to the point of undue hardship, and the applicant’s refusal to perform the work offered. It also submits that the remedies sought at each proceeding overlap, and if the WSIB appeal is successful, any LOE benefits awarded may affect the damages to be awarded at the Tribunal if the Application is allowed.
8The applicant submits that the Application should not be deferred. He submits that the issues on appeal at the WSIB are whether he is entitled to LOE payments from July 20, 2010 to November 8, 2010, and whether he is entitled to a non-economic loss (“NEL”) award for permanent impairment. He submits that the issues in this Application are whether the respondent discriminated against him on the basis of disability in terminating his employment and whether it accommodated him to the point of undue hardship prior to termination. He submits that there is “no overlap in the issues in each proceeding”. He also submits that there is no overlap in the remedies sought in each proceeding, as he is not seeking LOE payments after the date of his termination and in the alternative, if such benefits are awarded, he would have to report income to the WSIB who would then pay back the third party. Finally, he submits that a decision in the WSIB proceeding is not imminent.
DEFERRAL CONSIDERATIONS
9The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the application is not in and of itself a reason to defer dealing with an application.
10The Tribunal summarized its jurisprudence regarding deferral in Bhagdasserians v. 674460 Ontario, 2008 HRTO 404 as follows:
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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be 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 type 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.
The Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues (Krieger v. Toronto Police Services Board, 2008 HRTO 270). The Tribunal has also deferred an application where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council, 2008 HRTO 228). In such circumstances, the Tribunal is concerned about the prospect of concurrent overlapping proceedings and the potential for conflicting findings of fact or law. Where the civil action is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.
11In Cui v. MSM, 2008 HRTO 449 (“Cui”), the Tribunal deferred an Application pending an upcoming hearing before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). As in this case, the applicant in Cui had not attended work following an offer of modified work that he believed was inconsistent with the duty to accommodate and was dismissed. The WSIAT proceedings involved his entitlement to LOE benefits in light of the offer made by the employer. The Tribunal held as follows:
Applying these principles to this case, I find that it is appropriate to defer this Application pending the conclusion of proceedings at the WSIAT. The suitability of the modified work offered by the employer, informed by a statutory obligation to accommodate to the point of undue hardship, is a central issue in both proceedings. The substance of the legal issues is therefore similar or the same (see Berisa v. Toronto (City), 2008 HRTO 46 at paras. 38-40). Moreover, the WSIB proceedings are well underway, and the WSIAT appeal of the ARO decision is scheduled in just over two months. If the WSIAT upholds the applicant’s position, he will be entitled to LOE benefits, which may affect the damages to be awarded by the Tribunal if the Application is allowed. All of these factors support deferral.
12I agree with the respondent that there is an overlap of factual issues which favours deferral. The allegations in the Application relate to the applicant’s allegations that the modified work offered by the respondent was not appropriate. While the WSIB decision addresses the issue of benefit entitlement, underlying that decision is an acceptance that the work assigned was suitable modified work consistent with the applicant’s physical restrictions.
13Other factors, however, suggest that deferral may not be appropriate at this time. For example, notwithstanding the overlap, I cannot conclude that the proceedings at the WSIB will address all the same legal issues being raised by the Application. As the Tribunal stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 (“Boyce”), where it was faced with a similar request for deferral, the WSIB proceedings will not consider Code remedies or whether the dismissal violated the Code.
14Further, as in Boyce, the applicant’s WSIB matter is not before the WSIAT, an independent statutory tribunal. Rather, it is at the initial stages of an internal WSIB appeal, which must be completed before an appeal may be made to the WSIAT. Unlike in Cui, where a final hearing and decision under the WSIA were imminent, the appeal process regarding the determinations about the offer of modified work is just beginning.
15With regard to the question of any overlap in remedies sought at the WSIB and at the Tribunal, I am satisfied that an award either at the WSIB or at the Tribunal can adequately address the question of any payments made to the applicant as a result of other proceedings.
DECISION
16In light of all these considerations, I am satisfied that deferral would not be fair, just and expeditious and I do not find that the Application should be deferred pending the completion of the WSIB proceedings.
NEXT STEPS
17As the parties have agreed to mediation, the Registrar will schedule a mediation.
18I am not seized of this matter.
Dated at Toronto, this, 6th day of October, 2011.
”signed by”_____________
Maureen Doyle
Vice-chair