Janssen v. Magna Qualtech Seating Systems, 2011 HRTO 203

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Janssen

Applicant

-and-

Magna Qualtech Seating Systems and Tricia Montminy

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: January 27, 2011

Citation: 2011 HRTO 203

Indexed as: Janssen v. Magna Qualtech Seating Systems

WRITTEN SUBMISSIONS

Michael Janssen, Applicant Self Represented

Magna Qualtech Seating Systems Eric T. Gresham (Counsel)

and Tricia Montminy, Respondents

1The Application was filed on September 22, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in respect of employment. The applicant alleges that the respondents discriminated against him on the basis of disability when they terminated his employment.

2On November 17, 2010, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding (i.e. an appeal under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A (“WSIA”) dealing with the subject-matter of the Application. The Tribunal directed the parties to deliver and file any written submissions, which they wished to make in respect of the deferral issue within 30 days of the date of the Notice of Intent to Defer.

3In his Application, the applicant acknowledges that the facts of the Application are part of a legal proceeding, which is still in progress. However, he opposes deferral of the Application on the basis that the respondents’ actions have caused him mental anguish and financial hardship. The applicant submits that the issues in the WSIA appeal are different from those raised in his Application. He submits that the WSIA appeal relates to the termination of his benefits by the Workplace Safety and Insurance Board (“WSIB”) whereas the Application relates to the termination of his employment by the respondents.

4The respondents submit that the Application ought to be deferred. They submit that an appeal under the WSIA is scheduled to be heard on February 10, 2011. They submit that the issues in the Application and the issues in the WSIA appeal significantly overlap and that proceeding concurrently with the WSIA appeal and the Application would result in the unnecessary duplication of proceedings. The respondents point out that the adjudicator in the WSIA appeal has the authority to determine whether the respondents met their return to work obligations to the applicant and fulfilled their duty to accommodate his disability-related needs.

5Based on documents submitted with the Application, it appears that the applicant’s benefits were terminated by the WSIB in 2009, based on covert surveillance of the applicant which the WSIB found to have revealed that the applicant was capable of returning to work at full duties.

6According to its October 29, 2008, letter to the applicant, the respondent terminated the applicant’s employment on the stated basis that the applicant had intentionally misrepresented the extent of his workplace injury and improperly remained off work on WSIB benefits. According to the letter, the respondent reached this conclusion based on its review of the WSIB surveillance video and report.

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). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8Both the Application and the WSIA appeal appear to relate, at least in part, to the level of the applicant’s injur(ies) and whether he was able to work for the respondent employer during the relevant time frame. Since the issues in the Application and the WSIA appeal overlap, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the WSIA appeal. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate.

9The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the WSIA appeal. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “New Applications”.

10I am not seized.