Grabnor v. AGO Industries, 2012 HRTO 1323

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adelina Grabnor

Applicant

-and-

AGO Industries

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: July 4, 2012

Citation: 2012 HRTO 1323

Indexed as: Grabnor v. AGO Industries

WRITTEN SUBMISSIONS

Adelina Grabnor, Applicant Carrie Venner, Representative

AGO Industries, Respondent Jeff Steeves, Representative

1This is an Application filed 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 because of disability.

2This Interim Decision addresses whether the Tribunal should defer further consideration of the Application pending the result of a proceeding at the Workplace Safety and Insurance Board (WSIB).

3The applicant suffered a work-related shoulder injury which was reported to the WSIB. The date of injury is January 29, 2008. According to the Application, the applicant lost time from work as a result of the injury and was advised by her family doctor not to return to her pre-injury job but this was the only job offered by the respondent. The applicant’s employment was terminated in September 2011 because the applicant refused to do the pre-injury job.

4The respondent states that the WSIB determined that the pre-injury job was suitable with modifications but the applicant refused to do the job and so she was fired for refusing to work.

5It appears that the WSIB determined that the applicant had no entitlement to any benefits after September 2011 because it found that the applicant has no remaining impairment as a result of the injury. It appears that the applicant has objected to these decisions although the status of the objections is not clear from the documents provided by the parties.

6The usual considerations when determining if an Application should be deferred were stated in Calabria v. DTZ Barnicke, 2008 HRTO 411:

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.

7As noted by the applicant in her Reply, the issues before the Tribunal and the WSIB are not identical. However, it appears that there is considerable overlap in the issues before the WSIB and the issues raised in the Application. In both proceedings, the issues include whether the applicant had a disability in September 2011 and, also whether the respondent offered suitable work and made appropriate steps to accommodate the applicant’s disability.

8In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the proceeding underway at the WSIB is complete. The proceeding at the WSIB will be considered complete when the WSIB has issued a final decision on the issues relevant to the issues in the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. If there is a subsequent appeal of such a decision to the Workplace Safety and Insurance Appeals Tribunal, the question of whether the Application should be deferred to that proceeding may be reviewed.

9The 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.