HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Khanh Truong

Applicant

-and-

Megaform Automotive Inc.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 21, 2012

Citation: 2012 HRTO 1224

Indexed as: Truong v. Megaform Automotive Inc.

WRITTEN SUBMISSIONS

Khanh Troung, Applicant ) Stefano Oliverio, Representative

Megaform Automotive Inc., Respondent ) Darko Milanovic, Representative

1This Application was filed on January 9, 2012 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent failed to appropriately accommodate his disability, subjected him to unfair discipline and discriminatorily dismissed his employment because of his disability concerns.

2The respondent filed a Response on February 8, 2012, wherein it requested that the Tribunal dismiss the Application under section 45.1 of the Code on the basis that the Workplace Safety and Insurance Board (“WSIB”) appropriately dealt with the substance of the Application. The respondent alleged that the WSIB determined that the applicant did not require modified duties and that the applicant was not re-injured. The respondent submits that the Application should be dismissed because the WSIB has established that the applicant is not disabled.

3By way of an earlier Interim Decision, the Tribunal directed the parties to file submissions with respect to the issue of deferral pending the completion of the WSIB matter.

Background

4The applicant alleges that he suffered a workplace injury in June 2011. He alleges that he was subsequently required to perform work contrary to his medical restrictions and that, on or about January 3, 2012, he communicated his concerns to the respondent. The applicant claims that on January 4, 2012, only after he raised concerns that the duties were aggravating his injury, the respondent issued him a letter of reprimand. The applicant alleges that the respondent unfairly treated his concerns as insubordination and then terminated his employment the next day. The applicant alleges that he was discriminatorily dismissed for refusing to perform work that he believed was not suitable for his condition.

5On December 13, 2011, a WSIB case manager determined that the applicant was entitled to loss of earnings for a period of time in June-July 2011 following the aggravation of his pre-existing lower back problems. On January 24, 2012, a WSIB eligibility claims adjudicator determined that the applicant did not experience an injury recurrence on January 5, 2012.

Deferral

6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). 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.

7Some factors that have been identified as 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8The Tribunal has found it to be appropriate to defer applications where there are on-going WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540. In assessing the issue of deferral, the Tribunal in Dhunsi considered it relevant that workplace safety and insurance proceedings have significant experience in addressing issues of disability. I see no reason to depart from this line of jurisprudence given the on-going WSIB process in the present case.

9The applicant filed submissions on May 23, 2012 indicating that he does not object to deferral given that the WSIB claim has been referred to the Appeals Branch. The applicant indicates that, depending on the disposition of certain issues, the claim may proceed to the Workplace Safety and Insurance Appeals Tribunal.

10The respondent filed submissions on June 4, 2012 indicating that it opposes deferral. The respondent maintains that the Application should be dismissed as lacking merit.

11I find that the matters that comprise the substance of the applicant’s WSIB claim and appeal to the Appeals Branch are directly related to the applicant’s human rights allegations. Further, it appears that the applicant may be seeking overlapping remedies with respect to loss of earnings in both processes. Given the overlap in the subject matter of this Application and that of the outstanding WSIB claim, I conclude that deferral is the most fair, efficient, and just way of proceeding with this Application.

12Accordingly, the Tribunal orders that the Application is deferred pending the completion of the WSIB matter, specifically the conclusion of any appeals to the Appeals Branch and the Workplace Safety and Insurance Appeals Tribunal.

13Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

14I am not seized of this matter.