Lavallee v. Metro Ontario Inc., 2011 HRTO 890

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Betty Lavallee

Applicant

-and-

Metro Ontario Inc., Brian Burdon, Derik J. McArthur, Jeff Black, Rob Cullen and Peter Disisto

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: May 6, 2011

Citation: 2011 HRTO 890

Indexed as: Lavallee v. Metro Ontario

WRITTEN SUBMISSIONS BY

Betty Lavalle, Applicant ) Kate Sellar, Counsel

Metro Ontario Ltd., Brian Burdon and ) Christine O’Donohue, Counsel Peter Disisto, Respondents )

INTRODUCTION

1This is an Application filed July 23, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination based on disability, age, record of offences and reprisal or threat of reprisal.

2This interim decision deals with a Notice of Intent to Defer sent to the applicant on February 11, 2011, in which the Tribunal determined that it might be appropriate to defer the consideration of the Application pending the resolution of the applicant’s claim pursuant to the Ontario Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 (“WSIA”).

3In submissions of March 11, 2011, the employer respondent, along with personal respondents Brian Burdon and Peter Disisto, advised that they were in favour of deferral.

4In a Reply filed with the Tribunal on April 19, 2011, the applicant opposes deferral because the WSIA appeal does not deal with the Application’s allegations of discrimination due to her age, or in some respects the alleged failure of the employer respondent to accommodate the applicant’s disability.

5Deferral 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.

6While 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 of Ontario, 2009 HRTO 438, at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

7It 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

8In this case while the issues as articulated in the Application are not precisely the same as the issues in the WSIB claim, 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.

9In 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 claim. 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.