HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janos Burai

Applicant

-and-

Hilton Niagara Falls Fallsview

Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: April 20, 2011

Citation: 2011 HRTO 805

Indexed as: Burai v. Hilton Niagara Falls Fallsview

WRITTEN SUBMISSIONS

Janos Burai, Applicant ) Self-represented

1This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of a claim filed by the applicant under the Employment Standards Act, 2000, S.O. 2000, c.41 as amended (the “ESA“) and pending the adjudication of his claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16 as amended.

2The Application alleges discrimination in employment on the grounds of disability. When the Tribunal received the Application it sent the applicant a Notice of Intent to Defer because there appeared to be ongoing related legal proceedings before the Workplace Safety and Insurance Board (WSIB) and the Ontario Labour Relations Board (OLRB). The respondent was not required to file a Response, pending a decision on whether the Tribunal would defer consideration of the Application. The applicant filed submissions on the Notice of Intent to Defer.

BACKGROUND

3According to the Application, on July 28, 2009, the applicant suffered a right hand injury in the course of his employment with the respondent but did not experience any loss of earnings at that time. In approximately April 2009 he experienced a gradual onset of upper body pain that he related to his job duties. He filed a claim for benefits with the Workplace Safety and Insurance Board (WSIB). In August 2010, the WSIB Eligibility Adjudicator concluded that he was not entitled to benefits because there was no proof that the symptoms were work-related. The applicant has apparently objected to that decision but the status of the objection is not clear.

4The applicant also filed a claim under the ESA. The applicant claimed that he was entitled to a personal emergency leave under section 50 of the ESA. In August 2010, an Employment Standards Officer denied the applicant’s claim. The applicant filed an appeal of that decision with the OLRB and a hearing has been scheduled for June 30, 2011. It appears that an important issue in that appeal may be whether the applicant resigned his employment of if he was fired.

5The applicant submits that the Tribunal should not defer consideration of the Application because neither the ESA nor the WSIA proceeding directly raises the human rights issues raised in the Application.

6In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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. 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 types 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.

7Applying these considerations to this case leads me to conclude that it is appropriate for the Tribunal to defer consideration of the Application until the ESA appeal currently before the OLRB is resolved. That appeal is scheduled for June 30, 2011. While it may not deal directly with the human rights issues raised in the Application, it appears that the issues before the OLRB may include the reasons and circumstances of the end of the applicant’s employment with the respondent. These would likely be important issues in the Application as well.

8At this time it is not clear whether the Application should be deferred pending the resolution of the claim before the WSIB.

9The Tribunal will defer consideration of the Application until the conclusion of the ESA proceeding. If the applicant wishes to proceed with the Application at the conclusion of the ESA proceeding, he must also provide information about the status of the WSIB claim.

10The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.

11I am not seized of this matter.