Jennifer Blackmore v. Craig Moss, 2011 HRTO 461

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Blackmore Applicant

-and-

Craig Moss Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: March 4, 2011 Citation: 2011 HRTO 461 Indexed as: Blackmore v. Moss

WRITTEN SUBMISSIONS

Jennifer Blackmore, Applicant ) James Howard, Representative Craig Moss, Respondent ) Self-represented

INTRODUCTION

1This is an Application filed April 19, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Interim Decision deals with a Request to Defer by the applicant pending the outcome of her claims before the Ontario Workplace Safety and Insurance Board (“WSIB”) and the Ontario Ministry of Labour pursuant to the Ontario Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2No submissions with regard to the applicant’s Request were received from the respondent and therefore it appears he takes no position on the issue of deferral.

3By correspondence dated February 24, 2011, the applicant confirmed that her claim before the WSIB is still active and that an appeal of an Ontario Ministry of Labour Order to Pay against the respondent pursuant to the ESA is ongoing.

4Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. However, a deferral under section 45 of the Code does not require the conclusion that the other proceedings must potentially dispose of all of the issues in the Application: Bradshaw v. Complex Services, 2010 HRTO 1215.

5While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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. Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

6It is not fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Clearly there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules apply. It is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues: Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.

DECISION

7In this case while the issues as articulated in the Application are not precisely the same as the issues in the ESA and WSIB claims, some important underlying considerations appear likely to be common to all proceedings. For example, the applicant asserts that she is a person with a disability pursuant to the Code. Obviously the nature and extent of the applicant’s disability is an issue before the WSIB. The litigation of the disability issue in two different proceedings is hardly an efficient use of adjudicative resources and could lead to inconsistent results: Bradshaw, supra.

8The Tribunal has generally deferred applications where there is an ongoing ESA proceeding the subject matter of which is parallel to that of the application: Golan, supra. A review of the nature of the ESA claim filed by the applicant reveals it is virtually identical to the subject matter of the Application. The outcome of the ESA appeal may have a particular bearing on the issue of compensation for loss of employment income by the applicant in a subsequent adjudication of her Application pursuant to the Code.

9Also in the present case, the Tribunal is satisfied that it is appropriate to defer further consideration of the Application until the applicant’s objection to the decisions of the WSIB Claims Manager has been resolved at the WSIB Appeals Branch or the Workplace Safety and Insurance Appeals Tribunal. As well as the disability issue noted above, there is a substantial overlay on the issue of loss of employment income. The extent of compensation that the applicant may be entitled to from WSIB would likely be an important consideration in the event that the applicant succeeds in showing an infringement of her Code-protected rights at the Tribunal: Mahjour v. Joe Singer Shoes, 2010 HRTO 1053.

ORDER

10In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s WSIB and ESA claims. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

11I am not seized of this matter.