Richard Cull v. Alliance Forming Ltd., 2011 HRTO 383

Human Rights Tribunal of Ontario

B E T W E E N:

Richard Cull Applicant

-and-

Alliance Forming Ltd. Respondent

Interim Decision

Adjudicator: Sheri D. Price Date: February 22, 2011 Citation: 2011 HRTO 383 Indexed as: Cull v. Alliance Forming

WRITTEN SUBMISSIONS

Richard Cull, Applicant Self Represented Alliance Forming Ltd., Respondent Blair McCreadie, Counsel

1In this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), the applicant alleges that the respondent discriminated against him on the basis of disability in respect of employment. Specifically, the applicant claims that the respondent employer infringed his rights under the Code by failing to accommodate his disability-related needs following a December 2009 workplace injury; and by laying him off from employment in March 2010.

2This Interim Decision addresses the respondent's Request that the Tribunal dismiss the Application because another proceeding has appropriately dealt with the substance of the Application; or, in the alternative, that the Tribunal defer the Application.

Request to Dismiss because Another Proceeding has Appropriately Dealt with the Substance of the Application (Section 45.1)

3The applicant made a claim with the Workplace Safety and Insurance Board ("WSIB") for losses arising out of the December 2009 workplace injury. The WSIB accepted the applicant's claim for loss of earnings benefits commencing on March 11, 2010. However, the WSIB denied the applicant's claim for loss of earnings benefits beyond June 7, 2010 on the basis that the respondent employer had suitable modified work available for the applicant.

4In August 2010, the applicant filed an appeal under the Workplace Safety and Insurance Act 1997, S.O. 1997, c. 16, Sch. A, ("WSIA") objecting to the WSIB's June 2010 decision. That appeal has not yet been heard and determined by the WSIB.

5The respondent submits that the appeal to the WSIB relates to the respondent's duty to accommodate the applicant, which issue is also raised in the Application to the Tribunal. The respondent submits that as the matter raised in the Application is the subject of an ongoing proceeding before the WSIB, the Tribunal ought to dismiss the Application without a hearing pursuant to s. 45.1 of the Code.

6Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

7Even if the appeal to the WSIB deals with the allegations in the Application, based on the plain and ordinary meaning of the words in s.45.1 of the Code, I cannot find that the WSIB appeal "has appropriately dealt with" the substance of the Application at this point in time. The respondent acknowledges that the proceeding under the WSIA is pending. It has not yet dealt with substance of the Application at all. It therefore cannot be said to have appropriately dealt with the Application. See also Wright v. Catholic Children's Aid Society of Toronto, 2010 HRTO 125 at para. 10; Hadley v JACS Cartage, 2010 HRTO 226 at para. 18.

8The respondents' Request for early dismissal of the Application under s. 45.1 is denied.

Request to Defer

9In the alternative, the respondent submits that the Tribunal ought to defer the Application pending the resolution of the applicant's appeal to the WSIB.

10The applicant opposes the Request to defer on the basis that he has not received any correspondence regarding his appeal to the WSIB since it was submitted in August 2010. In light of this fact, the applicant submits that his appeal was "never allowed" by the WSIB and that the WSIB no longer has any dealings with him.

11I am not persuaded that the WSIB has decided to dismiss the applicant's appeal simply because the applicant has not received any correspondence regarding his appeal since he submitted it. The material before the Tribunal indicates that the WSIB accepted the applicant's appeal and gave the respondent notice that the appeal would be heard by the WSIB in late August 2010. There is nothing before the Tribunal to suggest that the appeal has yet been determined by the WSIB. Accordingly, it would appear that the WSIB appeal is still pending.

12In his Application, the applicant contends that the respondent failed to accommodate his disability-related needs, including during the period from May or June 2010 onwards. Whether the respondent offered the applicant suitable modified work during that period is the subject of the WSIB appeal. Accordingly, there appears to be a significant overlap in the facts and issues in the applicant's WSIB appeal and his Application to the Tribunal.

13Deferral of an application seeks to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given the significant overlap in the facts and issues in the WSIB appeal and the Application, deferral of the Application is appropriate. The respondent's Request to defer the Application is granted.

14The Tribunal orders the deferral of this Application pending the conclusion of the proceedings under the WSIA. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the WSIB appeal process has concluded.

15If and when any party seeks to bring the Application back on before the Tribunal in accordance with Rule 14 of the Tribunal's Rules of Procedure, the respondent may pursue its Request under s. 45.1 of the Code at that time.

16I am not seized of this matter.