Rodney Fowler v. Fer-Pal Construction Ltd., 2011 HRTO 2037

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rodney Fowler

Applicant

-and-

Fer-Pal Construction Ltd.

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: November 9, 2011

Citation: 2011 HRTO 2037

Indexed as: Fowler v. Fer-Pal Construction

WRITTEN SUBMISSIONS

Fer-Pal Construction Ltd., ) Jeremy Schwartz,

Respondent ) Counsel

BACKGROUND

1This is an Application filed April 26, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). A Response to the Application was filed on July 21, 2011.

2In the Application, the applicant alleges his employment was terminated by the respondent because he was, “a disabled employee working modified duties”, and further that, “…I have been subjected to discriminatory treatment because of my disability and Fer-Pal has failed to accommodate my return to work…”.

3This Interim Decision deals with a Request to Defer (“Request”) by the Respondent pending the outcome of the applicant’s claim before the Ontario Workplace Safety and Insurance Board (“WSIB”). The Respondent advises that:

…WSIB has found that there was no work at Fer-Pal within the Applicant’s restrictions, and that he was terminated due to a shortage of work. That is why he continues to receive loss of earnings benefits and access to the Worker Transition program….

…Fer-Pal is currently appealing this finding before the WSIB Appeals Branch, on the basis that the primary reason for not re-hiring the Applicant was the August 2009 incident [of alleged sexual harassment by the applicant], and not simply a shortage of work….the WSIB has not found that Fer-Pal failed to accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship, within the meaning of the Workplace Safety and Insurance Act, 1997.

4The Request was filed with the Response on July 21, 2011. No submissions with regard to the respondent’s Request were received from the applicant and the time for filing submissions under the Tribunal’s Rules has elapsed.

ANALYSIS

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. However, a deferral under section 45 of the Code does not require the conclusion that the other proceedings must potentially dispose of all of the issues in the Application: Bradshaw v. Complex Services, 2010 HRTO 1215.

6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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. See, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

7It is not fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Clearly there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules apply. It is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues. See, Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.

8In this case while the issues as articulated in the Application are not precisely the same as the issues in the WSIB claim, some important underlying considerations appear likely to be common to all proceedings. For example, the applicant asserts that he is a person with a disability pursuant to the Code. Obviously the nature and extent of the applicant’s disability is an issue before the WSIB. The litigation of the disability issue in two different proceedings is hardly an efficient use of adjudicative resources and could lead to inconsistent results: Bradshaw, supra.

9In the present case, the Tribunal is satisfied that it is appropriate to defer further consideration of the Application until the applicant’s objection to the decisions of the WSIB Claims Manager has been resolved at the WSIB Appeals Branch or the Workplace Safety and Insurance Appeals Tribunal. As well as the disability issue noted above, there is a substantial overlap on the issues of accommodation and loss of employment income. The extent to which the respondent is required to accommodate the applicant and the compensation that the applicant may be entitled to from WSIB would likely be important considerations in the event that the applicant succeeds in showing an infringement of his Code-protected rights at the Tribunal: Mahjour v. Joe Singer Shoes, 2010 HRTO 1053.

ORDER

10In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s WSIB claim. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

11I am not seized.