Edward Ellsworth v. Jim Tubman Motors, 2011 HRTO 2247

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Ellsworth

Applicant

-and-

Jim Tubman Motors

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: December 14, 2011

Citation: 2011 HRTO 2247

Indexed as: Ellsworth v. Jim Tubman Motors

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on August 10, 2011. In the Application, the applicant indicated that it may be appropriate to defer consideration of the Application pending the resolution of a proceeding before the WSIB. The respondent has not yet filed a Response to the Application. The Application alleges discrimination in employment on the basis of disability. In particular, the applicant alleges that the respondent failed to accommodate his disability to the point of undue hardship.

2On October 20, 2011, the Tribunal invited the submissions of the parties on the question of whether or not it would be appropriate to defer the Application pending the completion of the WSIB proceeding.

3The applicant made no submissions in support of deferring the Application. The respondent opposes deferral on the basis that the WSIB has issued a final decision which has not yet been appealed by the applicant. The issue before the WSIB was that the injury sustained by the applicant was not due to the nature of the work performed by him. The respondent reserved the right to make further submissions on deferral should the applicant file an appeal of the WSIB decision.

4I am not satisfied that deferral of the Application is appropriate in the circumstances. Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. The Tribunal will generally defer an application where, for example, there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

5In this case the WSIB has made a final decision which has not been appealed. The issues raised in the Application do not appear to have been raised or dealt with by the WSIB decision. In these circumstances I find it is not appropriate to defer this Application and the most fair, just and expeditious outcome is to proceed with this Application.

6The respondent shall deliver and file its Response within 28 days of the date of this Interim Decision.

7The Request to Defer is therefore denied.

8I am not seized of this matter.