Mei Ling Yang v. Yee Hong Centre for Geriatric Care, 2011 HRTO 3

Human Rights Tribunal of Ontario

Between:

Mei Ling Yang Applicant

-and-

Yee Hong Centre for Geriatric Care Respondent

Interim Decision

Adjudicator: Naomi Overend Date: January 4, 2011 Citation: 2011 HRTO 3 Indexed as: Yang v. Yee Hong Centre

1This Application was filed on June 11, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of disability. Specifically, the applicant states that she was fired from her employment because she was unable to return to her pre-injury duties.

2In its Response, the respondent takes the position that the Workplace Safety and Insurance Board (“WSIB”) has determined the substance of the Application, and that the Application should, therefore, be dismissed pursuant to s. 45.1. Alternatively, the respondent takes the position that Application should be deferred pending the outcome of the appeal of the WSIB decision commenced by the applicant.

3By letter dated September 15, 2010, the applicant was provided a copy of the Response and specifically directed to file a Reply with submissions on the issue of dismissal and deferral. No such Reply was filed, nor did the applicant provide submissions in any other format.

4In light of the ongoing nature of the WSIB proceeding, it is not appropriate to dismiss the Application under s. 45.1. However, it is appropriate to consider whether this Application should be deferred pending the completion of this WSIB proceeding.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Application contains a scant description of the allegations against the respondent company, other than to say she was fired because of a workplace injury. She does, however, enclose a letter from the respondent explaining the reason for her termination. In that letter, the respondent advises that the WSIB takes the position that the applicant was fit to return to pre-injury duties without restrictions. It further notes that it had been accommodating the applicant in a “make work” position, comprised of a number of the more sedentary tasks of her pre-injury position, and that its more recent attempts at “work hardening” were met with resistance.

7It is clear from this description, as well as from the respondent’s submissions, which the applicant does not dispute, that the factual underpinning of the Application will be determined, in large part, by the appeal of the applicant’s WSIB denial of her claim for benefits. As noted by the respondent, this appeal will determine whether the applicant has a workplace injury and, if so, whether she requires further modifications to her work.

8In the circumstances of this case, the Tribunal is of the view that deferral is the most fair, just and expeditious way of proceeding with this Application. The Tribunal orders the deferral of this Application pending the conclusion of the WSIB proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WSIB process.

9Dated at Toronto, this 4^th^ day of January, 2011.