HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Krzysztof Bednarski
Applicant
-and-
Naka Sales Limited
Respondent
Interim Decision
Adjudicator: Sheri D. Price
Indexed as: Bednarski v. Naka Sales
1In this Application filed on November 5, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”), the applicant alleges that the respondent discriminated against him on the basis of disability in respect of employment by denying him necessary workplace accommodation, and reprised against him contrary to the Code when it terminated his employment.
2This Interim Decision addresses the respondent’s Request to defer the Application and its Request that the Tribunal dismiss the Application on the basis that another proceeding has in whole or in part appropriately dealt with the substance of the Application.
Request to Defer
3The respondent submits that the Tribunal ought to defer the Application pending the resolution of the applicant’s appeal to an Appeals Resolution Officer of the Workplace Safety and Insurance Board (“WSIB”).
4The applicant opposes the Request to defer because the Appeals Resolution Officer has already rendered a decision on the applicant’s appeal.
5Deferral of an application seeks to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
6A decision on the applicant’s appeal to the Appeals Resolution Officer was rendered on November 18, 2010. Accordingly, it appears that there is no ongoing legal proceeding before the WSIB to which the Tribunal could defer, even if it were inclined to do so. The respondent’s Request to defer the Application is denied.
Request to Dismiss because Another Proceeding has Appropriately Dealt with the Substance of the Application (Section 45.1)
7The respondent further submits that the proceedings before the WSIB Appeals Resolution Officer have appropriately dealt with the substance of the Application and asks that the Tribunal dismiss the Application pursuant to s. 45.1 of the Code.
8Section 45.1 of the Code reads as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
9The Tribunal has stated that in determining whether to dismiss an Application pursuant to s.45.1 of the Code, the Tribunal should consider (a) where there was another “proceeding”, and (b) if so, whether it “appropriately dealt with” the substance of the Application. See Carlos v. 1174364 Ontario, 2008 HRTO 403.
10In this case, assuming without finding that the applicant’s appeal to the Appeals Resolution Officer was a “proceeding” for the purposes of section 45.1 of the Code, I am not satisfied that the substance of the Application was “appropriately dealt with” by those proceedings.
11According to the Appeals Resolution Officer’s November 18, 2010 Decision, the issue in the WSIB appeal was whether the applicant proved that he had a workplace accident in March or April 2009 such that he was entitled to benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A.
12There is nothing before me that could lead me to conclude that the issues in the Application – namely, whether the respondent employer refused to accommodate the applicant’s disability-related needs and/or reprised against him by terminating his employment - were dealt with in the WSIB proceedings. Clearly, I could not find that the Appeals Resolution Officer appropriately dealt with the substance of the Application if she did not deal with it at all. The respondent’s Request that the Tribunal dismiss the Application pursuant to s.45.1 of the Code is therefore denied.
13I am not seized of this matter.
Dated at Toronto, this 28th day of January, 2011.
”signed by”____________
Sheri Price
Vice-chair