HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Silvaggio

Applicant

-and-

Finn Way General Contractor Inc.

Respondent

interim DECISION

Adjudicator: Kathleen Martin

Date: April 6, 2011

Citation: 2011 HRTO 662

Indexed as: Silvaggio v. Finn Way General Contractor

WRITTEN SUBMISSIONS

Timothy Silvaggio, Applicant ) Glen Oram, Representative

Finn Way General Contractor ) Robert Botsford, Representative

1This is an Application filed on October 22, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c, H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability and reprisal. The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of a proceeding at the Workplace Safety and Insurance Board (“WSIB”) and to provide directions regarding a Request to Intervene made by the WSIB.

Background

2The Application arises out of the applicant’s employment and termination of his employment with the respondent. The applicant injured his foot in a workplace accident in 2007 and subsequently went off work due to that injury and was approved for benefits by the WSIB. While it is not entirely clear from the Application, it appears that the applicant’s primary complaint in the Application relates to the period November 23, 2009 when the applicant performed modified duties pursuant to a return to work plan that had been negotiated with the assistance of the WSIB until his termination on February 17, 2010.

3The applicant alleges that he was discriminated against when the respondent failed to provide any meaningful work when he returned from his medical absence (which he states was due to a work-related and a non-work related illness). The applicant alleges that he was not accommodated, was harassed and was ultimately terminated because of his disability. The applicant cites reprisal and states that he was terminated and harassed because he attempted to enforce his rights under the Workplace Safety and Insurance Act and the Code. As a remedy the applicant seeks damages and 12 years of wages for an unspecified period.

4A Response has been filed. The respondent states that the applicant was accommodated in accordance with two consecutive return to work plans signed by the applicant and a representative of the respondent. According to the respondent, the applicant began a pattern of consistent tardiness and absenteeism with no notification or explanation and that it is this conduct which eventually led to the applicant’s termination. The Response identifies that the Application is part of another proceeding that is still in progress and asks that the Application be deferred. The Response also identifies the WSIB as an affected party.

5The Tribunal delivered the Response to the applicant and sought submissions on deferral. On January 5, 2011, the applicant filed his Reply and addressed the issue of deferral. The applicant indicated that he opposed deferral and asked for an opportunity to make further submissions.

6On February 2, 2011, the Tribunal issued a Case Assessment Direction seeking further submissions from the parties including clarification of the subject matter of each proceeding currently underway at the WSIB.

7Additional submissions have now been received.

8The applicant has indicated that there are nine decisions of the WSIB which have been appealed by him or by the Office of the Worker Advisor on his behalf. A summary of the decisions is as follows:

1. Denial of left knee injury as part of claim entitlement; decision of adjudicator, April 4, 2008;

2. Denial of left knee injury as part of claim entitlement; decision of adjudicator December 5, 2008;

3. Denial of Partial Loss of Earnings Benefits (“LOE”) premised on a view that applicant is capable of working a full work day; decision of case manager dated January 13, 2010;

4. Denial of LOE Benefits as of February 10, 2010 premised on applicant having been provided with suitable modified work within his restrictions; decision of case manager dated February 16, 2010;

5. Denial of Physiotherapy and medication expenses; decision of nurse consultant dated February 25, 2010;

6. Decision of February 16, 2010 remains unchanged; decision of case manager dated February 26, 2010;

7. Quantum calculation of Non Economic Loss; decision of Registered Nurse; dated April 14, 2010.

8. Denial of LOE premised on the applicant not being employed following his choice to not participate in the accommodated alternative work made available to him; decision of case manager, dated June 25, 2010;

9. Partial Denial of LOE February 2010 to June 22, 2010 (LOE benefits allowed effective June 22, 2010 as there is objective medical evidence supporting that the applicant is unable to return to work in any capacity); decision of a case manager dated September 28, 2010

9The applicant clarifies that the decisions listed in paragraphs 1 and 2 above (which relate to the same underlying issue) have nothing to do with the issues in the Application and I proceed below on this basis.

10The applicant states that each of the “appeals” is at the operational level and has not, as yet, been moved to the appeals branch.

11The respondent has provided submissions which are not inconsistent with what is described above. The respondent relies on a letter received from the WSIB which suggests that there are only four issues in dispute (the decisions set out in paragraphs 2, 3, 8 and 9 of paragraph [8]) and that, while the applicant has advised of an intent to proceed with an appeal, the objection form has not been returned which would result in a further review. As of February 15, 2011, the respondent has filed a request to participate in the WSIB proceedings.

12The WSIB has filed a Request to Intervene but has indicated that its interest is proportionate to the extent the applicant alleges discrimination against the WSIB.

Should the Application be deferred?

12Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the HRTO may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

13In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the HRTO made the following general comments about deferral at paras. 18-19:

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. However, 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.

14The respondent argues that this is an appropriate case to defer. The respondent argues that there is an overlap in the issues before the Tribunal and those in the WSIB proceedings. The respondent states that the Application raises issues of accommodation, termination and lost wages, all of which will be addressed by the proceedings at the WSIB. The respondent states that the WSIB will determine whether the respondent offered suitable modified work which relates to the issues of accommodation raised in the Application. Further, the WSIB will determine whether the applicant has a disability or not, as part of its assessment of whether or not the applicant is entitled to further benefits and that this determination may give rise to issues related to the allegations that the respondent violated the Code by treating the applicant’s absences as disciplinary issues. As well, the failure to provide medical information is at the root of the termination issue and the WSIB proceeding. Finally, there is significant overlap in the applicant’s request for lost wages in the Application and the applicant’s request for WSIB benefits.

15The respondent further argues that to not defer could lead to inconsistent findings and that the Application is at an early stage and there will be no prejudice to the applicant should it be deferred.

16The applicant objects to the deferral stating, among other things, that the issues in the Application relate to the respondent’s actions (as opposed to entitlement to loss of earnings benefits) and any further delay will run counter to the Tribunal’s goal of ensuring the fair, just and expeditious resolution of the merits of matters before it.

17I agree with the respondent that there is an overlap of factual issues which favours deferral. The allegations in the Application relate to the applicant’s return to work after a work injury and whether or not the work provided was appropriate. While the WSIB decisions address the issue of benefit entitlement, underlying those decisions is an acceptance that the work assigned was suitable modified work consistent with the applicant’s restrictions. Similarly, there is at least a factual overlap between the allegations in the Application pertaining to termination and the request for LOE benefits as of February, 2010.

18However, other factors suggest that deferral may not be appropriate at this time. For example, notwithstanding the overlap, I cannot conclude that the proceedings at the WSIB will address the same legal issues raised by the Application. As the Tribunal stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 where it was faced with a similar request for deferral, the WSIB proceedings will not consider whether Code remedies are appropriate nor a determination of whether the dismissal violated the Code.

19Further, there is the stage of the proceedings at the WSIB. While the applicant has notified of his intent to object/appeal the various WSIB decisions related to the time period covered in the Application, there is nothing in the material submitted which indicates that the decisions at the WSIB are being addressed at the WSIB appeals branch. Instead the various objections/appeals indicate that while filed “to meet time limits” there is a request being made that no action be taken until the WSIB is advised that the applicant is ready to proceed.

20Finally, the applicant has raised the issue of timing and expressed the concern that any further delay would run contrary to the Tribunal’s mandate to provide a fair, just and expeditious resolution of the merits of an application. In the absence of any indication that the matters at the WSIB are being addressed by the appeals branch, I have difficulty concluding that the Tribunal should defer the Application for an undetermined period.

21The respondent’s Request to defer is therefore denied.

Next Steps

22As the parties have agreed to mediation, the Registrar will schedule mediation. The WSIB will be provided with notice of the mediation, but the Request to Intervene, will be addressed, if necessary, following mediation.

23I am not seized of this matter.