Arnold v. Costco Wholesale Canada Ltd., 2011 HRTO 2287

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Arnold

Applicant

-and-

Costco Wholesale Canada Ltd., Chris Cudmore and Jamie Riberio

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 21, 2011

Citation: 2011 HRTO 2287

Indexed as : Arnold v. Costco Wholesale Canada Ltd.

WRITTEN SUBMISSIONS BY

Greg Arnold, Applicant ) Self-represented

Costco Wholesale Canada Ltd., ) Michael Horvat, Counsel

Chris Cudmore and Jamie Riberio, )

Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, ch.H.19 (the “Code”) dated June 10, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 24, 2007.

2The purpose of this Interim Decision is to address the applicant’s request for deferral of this Application pending the outcome of a hearing before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) scheduled for March 26, 2012.

3The applicant alleges that he experienced discrimination in employment because of disability, on the basis that his needs arising from what he alleges is a recurrence of a workplace injury to his back were not adequately accommodated and, as a result, he has been off work since March 3, 2007. The applicant also alleges that he has experienced discriminatory treatment because of his disability in relation to other matters, including a negative performance appraisal issued in February 2007 and various other things.

4The respondents state that they have been unable to accommodate the applicant’s restrictions based upon the functional abilities forms filed by his various doctors, and deny any discrimination.

5This matter originally was scheduled for mediation on December 1, 2009. Unfortunately, respondents’ counsel was unavailable on this date due to a scheduled trial, and requested that the mediation be re-scheduled for early in 2010. The Tribunal accordingly re-scheduled the mediation to January 11, 2010, prior to receiving correspondence from the applicant indicating that he had retained legal counsel and requesting mediation later in January. As a result, the January 11 mediation date was cancelled and the Tribunal proceeded to canvass the parties for a mutually agreeable date. Due to difficulties in scheduling with the Tribunal and the parties, the mediation was unable to be scheduled again until October 14, 2010.

6The mediation proceeded on October 14, 2010, but neither the applicant nor his counsel appeared. Apparently, applicant’s counsel had attempted to send correspondence to the Tribunal indicating his inability to attend on the scheduled date, but this correspondence had not been received.

7On January 7, 2011, the Tribunal proceeded to canvass the parties regarding the further scheduling of this matter. As a result, a further mediation date was scheduled for June 8, 2011. On June 3, 2011, the Tribunal was advised that the parties were endeavouring to settle this matter between themselves. By letter from applicant’s counsel dated June 6, 2011, it was stated that there was no reasonable prospect of proceeding with mediation on June 8, 2011, but that the parties would update the Tribunal within 14 days as to whether they had been able to settle the matter. As a result, the mediation scheduled for June 8, 2011 was cancelled and the parties were asked to advise as to the status of this matter by June 20, 2011.

8Having heard nothing from the parties, on June 27, 2011 the Tribunal wrote to request that the parties advise whether this matter had settled. Still having heard nothing from the parties, the Tribunal followed up again on September 20, 2011. Yet again having heard nothing from the parties, the Tribunal sent a further letter on November 4, 2011, requiring the applicant to advise within 14 days whether he intended to proceed with his Application.

9On November 15, 2011, the applicant wrote to the Tribunal to advise that there was no settlement between the parties and that he was no longer represented by his former legal counsel. The applicant stated that he still wanted to proceed with his Application, but asked that his Application not proceed until he had received a decision from the WSIAT following a hearing on March 26, 2012.

10By letter dated November 23, 2011, the Tribunal indicated that it would treat the applicant’s correspondence as a request for deferral of the Application pending the outcome of the WSIAT proceeding, and invited submissions from the respondents.

11By letter dated December 5, 2011, respondents’ counsel wrote to oppose the deferral request. The respondents expressed concern about further delay in proceeding with this matter, given that the allegations date back to early 2007 and may extend to even earlier events. The respondents also note that there is no overlap of remedy or issue with the WSIAT proceeding. They note that the WSIAT proceeding relates to a question of the applicant’s initial entitlement to Workplace Safety and Insurance Board (“WSIB”) benefits arising from a workplace incident that occurred on August 26, 2006, while the issue in the proceeding before this Tribunal primarily relates to the respondents’ ability to accommodate the applicant’s restrictions after March 3, 2007.

12By letter dated December 15, 2011, the applicant asserts that there are overlapping issues between the WSIAT proceeding and the proceeding before this Tribunal, though he does not indicate what those overlapping issues are alleged to be.

13In my view, deferral of this matter pending the outcome of the WSIAT proceeding is not justified. As I understand the issue to be addressed before the WSIAT, the WSIB determined that the applicant experienced a recurrence of his workplace injury on August 26, 2006 due to horseplay and he thereby was denied entitlement to WSIB benefits on that basis. I appreciate that the applicant disputes that horseplay was involved, but that is a matter for the WSIAT to determine.

14In contrast, in relation to the matters at issue in the proceeding before this Tribunal, it does not matter whether the applicant’s injury was caused by horseplay or was related to the workplace or any pre-existing injury. Rather, the issues before this Tribunal are: whether the applicant had a disability at the relevant time, however it may have been caused; whether the applicant experienced discrimination in employment because of any such disability; what needs for accommodation arose as a result of any such disability; and whether any such needs could have been accommodated by the respondents without undue hardship. In my view, there is little, if any, overlap between these issues and the issue of initial entitlement to be determined by the WSIAT.

15I appreciate that there may be some evidentiary overlap between the two proceedings. As part of the applicant’s case, I may need to hear his evidence about the August 26, 2006 incident and I may need to hear about the material filed with the WSIB about this incident, as this evidence may be relevant to certain allegations raised in the applicant’s human rights complaint. However, the mere fact that there may be some evidentiary overlap does not necessarily justify deferral, particularly where the issues are distinct. If the WSIAT issues its decision prior to the issuance of any decision by this Tribunal, then the WSIAT decision and any relevant factual findings it may have made can be brought to this Tribunal’s attention for consideration. If this Tribunal’s decision is issued first, then any relevant factual findings may be brought to the WSIAT’s attention.

16I am prepared, however, to bifurcate the hearing so that the first stage of the hearing will only deal with the issue of whether the applicant’s rights under the Code have been violated and not with any issue regarding remedy. At a separate and later stage, and only if I found a violation of the applicant’s rights under the Code, I would establish a process to deal with any issue of remedy. I do so on the basis that if the applicant is able to establish initial entitlement to WSIB benefits as a result of the WSIAT proceeding, this may affect any remedy to which he may be entitled in this proceeding.

17Accordingly, the applicant’s request for deferral of this proceeding is denied. The parties will be contacted by the Tribunal shortly to schedule the hearing in this matter.