Human Rights Tribunal of Ontario
Between:
Steven Ennis Applicant
-and-
Drain-All Ltd. Respondent
Interim Decision
Adjudicator: Maureen Doyle Date: July 11, 2012 Citation: 2012 HRTO 1372 Indexed as: Ennis v. Drain-All Ltd.
Written Submissions
Steven Ennis, Applicant Grace Vacarelli, Counsel
Drain-All Ltd., Respondent Martin J. Thompson, Counsel
Introduction
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 with respect to employment because of disability.
2The respondent denies that it has discriminated against the applicant and also seeks deferral of this Application on the grounds that the worker is currently appealing a decision of the Workplace Safety and Insurance Board (WSIB).
3The applicant filed a Reply to the Response and also objected to the respondent’s request to defer the Application.
FACTS AND SUBMISSIONS
4The applicant alleges that he was injured at work and that the employer harassed him while he was on disability leave and failed to accommodate his need for modified work when he was ready to return to work. By way of remedy, he seeks “General Damages” for humiliation when he was denied reinstatement to his former position”, as well as for “loss of self-respect and self-esteem; loss of dignity and confidence; and the experience of victimization”. He also seeks “Special Damages” reflecting wage loss for certain periods when he alleges he was ready to return to work but was not permitted to do so.
5The respondent denies that it has discriminated against the applicant, submits that the applicant has not “spelled out a disability within the meaning” of the Code, and submits that the Application should be deferred pending the outcome of the decision of the WSIB Appeals Branch. The respondent submits that the appeal “is a matter which involves similar, if not identical facts as the ones referred to in this Application.” It also submits that if the applicant is successful in his appeal at the WSIB, he may be entitled to loss of earnings which form part of the relief requested in the Application, and there is a “potential for double recovery”.
6The respondent provided a copy of the WSIB’s January 24, 2012 letter confirming the decision to deny initial entitlement. In it, the WSIB decision-maker states that she “was unable to allow for entitlement to benefits for Mr. Ennis low back injury claim as I was unable to establish proof of accident”. The letter then recounts the history of reporting of symptoms and of the accident. It concludes as follows:
…given the inconsistent history of reporting and the lack of medical support for a specific injury at work and unclear diagnosis, I remain unable to establish a work related cause for Mr. Ennis low back pain.
As such, I am unable to change my initial entitlement decision…
7The applicant objects to the deferral of this Application and submits that the issue before the WSIB Appeals Branch and the issues stated in this Application are “not in any way related and the finding of one will not impact the finding in the other.”
IS DEFERRAL APPROPRIATE IN THESE CIRCUMSTANCES?
8The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not in and of itself a reason to defer dealing with an Application.
9In 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.
10Though the respondent has indicated that the WSIB appeal would deal with many of the same facts, it appears that the WSIB appeal will be centred on the question of causation and whether the applicant’s injuries are related to a workplace accident. The question before this Tribunal, however, is whether the respondent employer discriminated against the applicant contrary to the Code by its treatment of the worker while he was on sick leave and on his attempt to return to work. In particular, the applicant has alleged harassment during his sick leave and a failure to return him to work in accommodated employment. The subject matter of the other proceeding is not the same as the subject matter of this Application. The nature of the other proceeding is to consider the question of causation in order to determine his eligibility for benefits from the WSIB. There is no indication that the other proceeding will consider whether the respondent employer discriminated against the applicant during his sick leave or whether the respondent employer discriminated against him by failing to accommodate the worker’s disability for a return to work.
11In the proceeding at the WSIB, the applicant is seeking eligibility for loss of earnings benefits which will include the same period that he claims compensation for loss of earnings in the proceeding at this Tribunal and so there is potentially some overlap in regard to the remedies that may be available in the two proceedings, although each system would have regard to any remedies or benefits paid by the other system.
12The proceeding at the WSIB is not very far advanced. There is no indication yet that a hearing date has been set for the applicant’s appeal regarding his eligibility for benefits. The question of what loss of earnings benefits, if any, should be paid to him, may well be dealt with much later still. Accordingly, there could be significant delay before there is a final decision from the workplace safety and insurance system on the issues that are relevant to the question of remedy in the Application before this Tribunal. The proceeding at this Tribunal, while not at an advanced stage, will not involve any intermediate questions, such as eligibility for benefits.
13In considering the factors of 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 defer