HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Celio Mateus Applicant
-and-
Brock Restoration and Geoff Grist Respondents
INTERIM DECISION
Adjudicator: Naomi Overend Decision Date: July 23, 2012 Citation: 2012 HRTO 1436 Indexed as: Mateus v. Brook Restoration
WRITTEN SUBMISSIONS
Celio Mateus, Applicant Manuel Castro, Representative
Brook Restoration and Geoff Grist, Respondents Gregory Power, Counsel
Introduction
1The purpose of this Interim Decision is to determine whether the Application should be re-activated.
2The applicant filed this Application in which he alleges discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant alleges that the respondents have threatened him and accused him of lying with respect to his return to work following a workplace injury that occurred on April 22, 2009.
3By Interim Decision dated May 18, 2012, 2012 HRTO 940, the Tribunal deferred the Application pending the conclusion of the WSIB/WSIAT proceedings on the applicant's participation with the return to work process.
4The parties do not seem to dispute that the applicant filed an objection to the determination by his Case Manager at the Workplace Safety and Insurance Board ("WSIB") that the duties assigned to him by the respondent company as part of this Return to Work (RTW) Plan were within his restrictions and not inappropriate. This objection has been referred to the Appeals Branch of the WSIB.
5On April 10, 2012, the respondents brought a Request for an Order During Proceedings (Form 10) asking the Tribunal to defer the Application pending the completion of the ongoing WSIB proceedings. The applicant did not receive the Form 10 at the time because his representative was not present when it was delivered by the courier company and did not subsequently pick up the package from the courier company. The applicant takes the position that his representative did not get the Form 10 until April 30, 2012, ten days after the respondents' counsel states it was mailed to him, and six days after the applicant's representative says it was postmarked.
6Rule 19.6 of the Tribunal's Rules of Procedure provide that a responding party has 14 days from the day it was delivered to respond to a Request for Order. The Tribunal issued the decision deferring the matter on May 11, 2012. Assuming that delivery was realized April 30, 2012, the applicant was not given the full 14 days to file his Response to the Request for an Order (Form 11). The applicant's Request to re-activate is based on this alleged procedural failure.
Decision and Analysis
7The order deferring this Application states that the parties can request reactivation under Rules 14.3 and 14.4 upon the conclusion of the other proceeding. As pointed out by counsel for the respondent, the other proceeding has not concluded, which means that the necessary pre-condition for requesting reactivation under Rules 14.3 and 14.4 does not exist.
8However, Rule 14.5 provides that, on its own motion, the Tribunal may "require a deferred Application to proceed in the appropriate circumstances" and I am prepared to consider the applicant's request under this provision. Both parties have supplied written submissions concerning whether continued deferral to the WSIB proceeding is appropriate.
9Having reviewed all the submissions, I continue to be of the view that if the proceeding before this Tribunal proceeds concurrently with the appeal before the WSIB, there is the real risk of contradictory findings between the two decision-making bodies.
10The Application is premised on the applicant's belief that he cannot undertake the delivery duties the respondents are trying to "make" him do as part of the RTW plan and that the individual respondent is being derogatory and abusive in his attempt to make the applicant comply. This is set out in the applicant's answers to questions A17 and A18 of his Application.
11It is difficult to see how the Tribunal can determine whether the respondents' actions are derogatory and abusive without determining the threshold issue of whether the duties proposed by the respondents were within the applicant's restrictions. The WSIB, and possibly the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"), must also determine this issue.
12Accordingly, the Tribunal is not prepared to reactivate the Application. It remains deferred pending the conclusion of the WSIB/WSIAT proceedings on the applicant's participation with the return to work process. As noted above, Rules 14.3 and 14.4 outline the procedure by which the Application may be brought back on after the conclusion of the WISB/WSIAT process.
13I am not seized of this matter.
Dated at Toronto, this 23rd day of July, 2012.
Signed by
Naomi Overend Vice-chair