Anand v. Coppley Corp. and Dorothy Anderson, 2011 HRTO 2055

Human Rights Tribunal of Ontario

Between:

Kawalie Anand Applicant

-and-

Coppley Corp. and Dorothy Anderson Respondents

Interim Decision

Adjudicator: Brian Cook Date: November 10, 2011 Citation: 2011 HRTO 2055 Indexed as: Anand v. Coppley Corp. and Dorothy Anderson

1This is an Application filed on June 8, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a proceeding currently under way at the Workplace Safety and Insurance Board (WSIB).

2The applicant reported a work-related injury on September 15, 2010. The applicant filed a claim with the WSIB. The WSIB determined that the applicant had suffered a work-related repetitive strain injury but that she was not entitled to loss of earnings benefits because the employer had offered work that was suitable for the applicant's disability. The applicant was subsequently off work for various periods. Her claim for loss of earnings for these periods was also denied by the WSIB.

3In April 2011, the applicant was disciplined for allegedly submitting false piece work claims. She subsequently stopped work and according to the respondents, she has been off work on a "stress leave" since April 2011.

4The applicant has filed an objection to the decisions of the WSIB regarding her entitlement to loss of earnings for the various periods that she has been off work. According to the respondents, the applicant has also claimed entitlement to benefits for the loss of earnings since April 2011.

5In their Response, the respondents request that the Tribunal defer further consideration of the Application, pending the conclusion of the processes currently underway at the WSIB and/or at the Workplace Safety and Insurance Appeals Tribunal.

6The applicant filed a Reply in which she opposes deferral on the grounds that the issue before the Tribunal is a "separate and distinct proceeding before another decision maker."

7In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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. 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 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.

8The WSIB and WSIAT have full authority to consider the applicant's allegation that her disability was not appropriately accommodated by the respondents and to award the applicant benefits under the Workplace Safety and Insurance Act, 1997, S.O. Chapter 16, Schedule A, if it is found that the applicant was not accommodated.

9If a person has commenced another proceeding that raises the same human rights issues, it is generally appropriate for the Tribunal to defer the Application until the other proceeding is complete. An important reason for this is that it 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. Secondly, 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 may apply. However, 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.

10In this case, the circumstances giving rise to the Application and the WSIB claim are essentially the same. If the WSIB claim and the Application proceed at the same time, the parties will be required to concurrently address the same issues in two different forums. There is a potential for inconsistent findings.

11In these circumstances, I conclude that it is appropriate for the Tribunal to defer further consideration of the Application at least until the WSIB process has been completed.

12The Union's Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.

13The procedure by which an Application may be brought back on after it has been deferred is set out in Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure.