Chi Nghiem v. Frendel Kitchens Ltd., 2011 HRTO 313

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chi Nghiem

Applicant

-and-

Frendel Kitchens Ltd.

Respondent

Interim decision

Adjudicator: David Muir

Date: February 14, 2011

Citation: 2011 HRTO 313

Indexed as: Nghiem v. Frendel Kitchens

1This is an Application filed on June 24, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a Request for an adjournment made by the respondent on February 11, 2011. The hearing is scheduled to begin on February 17, 2011.

2Although framed as a Request for an adjournment, this is essentially a request that the Application be deferred pending the conclusion of Workplace Safety and Insurance Act (“WSIA”) proceedings commenced by the applicant. The respondent had previously requested that this Application be dismissed, claiming the applicant was estopped from re-litigating issues already dealt with by the WSIB. Alternatively, the respondent stated that the Application should be dismissed pursuant to section 45.1 of the Code because the substance of it had been appropriately dealt with by the WSIB.

3In 2010 HRTO 210, I rejected those earlier Requests on the basis that the WSIB had not made a final decision. Accordingly, I found that there was no basis to conclude that the applicant was estopped from proceeding with his Application, nor could it be said that the substance of the Application had been appropriately dealt with. I did not deal with the applicant’s arguments that the issues before the WSIB and the Tribunal were not the same and that there is nothing to prevent an applicant from pursuing both claims simultaneously.

4The respondent’s Request seems to flow from its view that, where the applicant has now decided to pursue his WSIA claim after leaving it dormant for several years, it would be appropriate to wait for the conclusion of that proceeding. This is based on the respondent’s underlying position that the issues raised in the two proceedings are substantially the same.

5It is my view that in the specific circumstances of this case, deferral would not be the most fair, just and expeditious manner of proceeding. In coming to this conclusion, I appreciate that there may be some level of overlap in the issues to be determined in both proceedings, but they are also distinct in many respects. Based on the materials filed to date, which are incomplete, the focus of the dispute before the WSIB is whether or not the impairment of the applicant is or was work-related. This question will not be determined by the Tribunal and in fact is largely irrelevant here. Thus, a determination by the WSIB that the applicant is not entitled to benefits because there is insufficient evidence to establish that the injury was work related would not be determinative of any issue in this Application. I do recognize that the outcome of the WSIA proceeding may be particularly important for the consideration of appropriate remedies should a violation be found, but that issue can be dealt with by bifurcating the hearing of this matter, leaving the determination of the appropriate remedy if a violation is found to be determined at a later date.

6I have also considered that the events giving rise to this Application occurred in October 2004 and I am troubled by the prospect of further extensive delay in the adjudication of this case. The Tribunal has set a hearing date and based on the pleadings it seems likely that the case can be adjudicated in the one day scheduled for it. On the other hand, the claims process at the WSIB is in its earliest stages there being no initial determination of entitlement to WSIA benefits. Depending on the outcome of the initial claims adjudication, there is the possibility of an appeal to the Appeals Resolution Officer and then the WSIAT.

7I appreciate the concerns about the possible duplication of evidence and potentially inconsistent findings of fact. However, one proceeding or the other will have to go first and the results here may inform to some degree the deliberations of the WSIB to the extent that there are common issues at all. In this case, given the very advanced stage of the proceeding before the Tribunal in contrast to the relatively early stage of proceedings before the WSIB and potentially the WSIAT, it is my view that the hearing in this matter should proceed as scheduled to consider, initially, whether or not the circumstances plead in the complaint underlying this Application constitute a violation of the Code.

8Accordingly, I find that it would not be appropriate to defer the hearing of this matter on liability at least and I make the following Directions:

a. The hearing will proceed as scheduled on February 17, 2011, to hear the evidence of the parties on the issue of liability,

b. In the event that it is found that the Code has been violated the Tribunal will entertain the parties’ submissions on whether it would be appropriate to defer the remedies phase of the hearing pending a decision of the WSIB.

9I am not seized.