HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Upchurch
Applicant
-and-
MTI Mechanical Trade Industries Ltd. and Stephen Chartrand
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Date: February 15, 2011
Citation: 2011 HRTO 328
Indexed as: Upchurch v. MTI Mechanical Trade Industries
APPEARANCES
Donald Upchurch, Applicant ) Ron Franklin, Counsel
MTI Mechanical Trade Industries Ltd. ) Glenn E. Cohen, Counsel
and Stephen Chartrand, Respondents )
[1] The following Interim Decision was delivered orally at today’s hearing:
This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability and reprisal. The applicant alleges that upon learning of or coming to believe the applicant had a need for accommodation, the respondent decided to terminate his employment. Among the respondent’s defences are that the applicant resigned from employment. The Application identified only a proceeding at the Ontario Labour Relations Board as an ongoing proceeding dealing with the same issue
In their Response, the respondents took the position that the Application should be dismissed pursuant to s. 45.1 of the Code, on the basis that proceedings at the Workplace Safety and Insurance Board, including decisions of a Case Manager and an appeal of those decisions to an Appeals Resolution Officer (“ARO”), had appropriately dealt with the substance of the Application.
In his Reply to the Response, filed on May 31, 2010, the applicant stated that he had since decided to appeal the ARO’s decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).
By Interim Decision dated June 10, 2010, 2010 HRTO 1323, the Tribunal, differently constituted, directed that a hearing be held on the issue of whether the Application should be dismissed pursuant to s. 45.1 of the Code. The Interim Decision did not seek further information on the proposed appeal to the WSIAT, nor did the applicant provide any such information, nor did the respondent request it.
The hearing was held on February 15, 2011. At the outset of the hearing, I inquired of the applicant’s counsel whether the appeal to the WSIAT was being pursued. He advised that an appeal had been filed but that further steps beyond the filing of the appeal had not yet been taken, pending the outcome of this request to dismiss. I advised the parties that in circumstances where another proceeding that appears to deal with related issues is ongoing, the Tribunal often proposes deferral. Accordingly, I sought oral submissions from the parties on this issue.
Each party opposes deferral, but supports deferral in the alternative to its primary position. The applicant submits that the circumstances for deferral are not present as there is no overlap between the issues in the Application and the WSIAT proceeding, but submits that if the Tribunal finds there is overlap, the result should be deferral rather than consideration of the respondent’s s. 45.1 arguments. The respondents submit that the Tribunal should not consider whether deferral is appropriate, and should consider whether the Application should be dismissed based on its s. 45.1 arguments. They state that the applicant has not confirmed that he is challenging the WSIB adjudicator’s factual findings, and that it should not be deferred because he has not taken action to move the appeal forward. They submits that the appeal to the WSIAT has not been brought in good faith, but merely to preserve rights to go forward in two different fora.
Having considered the parties’ submissions, I accept neither party’s primary argument, and find that this Application should be deferred pending the completion of the WSIAT proceedings.
Under Rule 14.1, the Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
The Tribunal has not typically examined a party’s motivation in bringing another proceeding or required that the party confirm the arguments that it is making in the other proceeding. I see no reason to do so here. The applicant is entitled to pursue both an appeal of conclusions with which he disagrees at WSIAT and an Application to the Tribunal, and there is nothing illegitimate about doing so. If the existence of the WSIAT proceeding provides grounds to defer, the Tribunal should do so.
In my view, it is evident that there are significant live issues in the WSIAT proceedings that may affect the Tribunal’s determinations. The Tribunal should not proceed to determine whether the ARO decision has “appropriately dealt with” the substance of this Application while another proceeding challenging it is ongoing.
One of the critical issues in the Tribunal Application will be whether the applicant voluntarily severed his employment, as found by the ARO and argued by the employer, or was dismissed, as he submits. It is evident that whether the applicant resigned will also be a central issue before the WSIAT. It would not be appropriate for the Tribunal to proceed, either with the merits of the Application or the respondent’s request to dismiss based on the findings in the ARO decision, while an appeal of this finding, and others that may affect the Tribunal’s determinations, is outstanding.
The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which a party may ask that the Application be reactivated.
The respondents retain the right to file a Request for Order During Proceedings in Form 10 asking that this matter be reactivated if the applicant fails to take steps to move the WSIAT appeal forward in a timely manner. Either party may bring a Request for Order During Proceedings seeking to reactivate the Application pursuant to Rules 14.3 and 14.4 within 60 days of the WSIAT decision or the withdrawal of the proceeding.
I am not seized.
Dated at Toronto, this 15th day of February, 2011.
“Signed by”
David A. Wright
Interim Chair