Jeffrey Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 1513

Human Rights Tribunal of Ontario

B E T W E E N:

Jeffrey Seberras Applicant

-and-

Workplace Safety and Insurance Board Respondent

-and-

Attorney General for Ontario, Office of the Worker Advisor, and Ontario Human Rights Commission Intervenors

INTERIM DECISION

Adjudicator: David A. Wright Date: August 2, 2012 Citation: 2012 HRTO 1513 Indexed as: Seberras v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Workplace Safety and Insurance Board, Respondent Gurjit Brar, Counsel

Attorney General for Ontario, Intervenor Matthew Horner, Counsel

Ontario Human Rights Commission, Intervenor Cathy Pike, Counsel

Office of the Worker Advisor, Intervenor Margaret Keys, Counsel

1Sections 13 (4) and (5) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, provide that Workplace Safety and Insurance benefits are not available for mental stress unless it is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. Section 13(5) also provides that "the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment". The applicant alleges that these provisions discriminate against him with respect to services because of disability. The issue in this Interim Decision is whether this Application should be deferred pending the decision in another case at the Workplace Safety and Insurance Appeals Tribunal ("WSIAT") challenging the same provision.

2In a previous Interim Decision, the Tribunal held that it has jurisdiction over this Application: 2012 HRTO 115. Since then, the Attorney General for Ontario ("Ontario") has sought and obtained intervenor status (2012 HRTO 896) and asked that this Application be deferred pending the determination of the WSIAT case. The Tribunal sought submissions from the other parties on the issue of deferral. The respondent supports Ontario's request. The applicant did not file submissions. The Office of the Worker Advisor ("OWA") and Ontario Human Rights Commission ("OHRC") filed joint submissions opposing deferral.

3The applicant was employed as a security guard. He alleges that as a result of discipline he received on December 16, 2008 for leaving a gate open as well as other unspecified discrimination and harassment, he "became overwhelmed and stressed to the point where I could no longer continue working for the company". He alleges that the failure to cover this under the WSIA is discrimination on the basis of disability because it "excludes gradual harassment and discrimination in my case which resulted in my denial of benefits".

4The OWA and OHRC have filed a joint pleading which does not refer to the facts of this case, but argues that the establishment of a more stringent test for workers with mental disabilities than those with physical disabilities constitutes discrimination. Their detailed pleading reviews the history of workers' compensation legislation, and argues that a similar provision in British Columbia was found unconstitutional under s. 15(1) of the Canadian Charter of Rights and Freedoms in Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188. They rely upon Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, also a Charter case.

Request for deferral

5It is undisputed that there are several appeals before the WSIAT raising similar allegations that s. 13 (4) and (5) of the WSIA discriminate contrary to s. 15 of the Charter and/or the Code. In one of those appeals (WSIAT File No. 2006-1939) WSIAT has made a ruling on the non-Charter merits of the worker's claim, the parties have filed materials on the discrimination issues (including an expert's affidavit filed by Ontario) and the worker is in the process of preparing reply materials. Ontario and the respondent submit that this application should be deferred pending the resolution of that case.

6The respondent argues that whether framed under s. 15(1) of the Charter or under the Code, the matters before the WSIAT (and others before the Workplace Safety and Insurance Board appeals branch) are considering the same or substantially the same issues. It argues that in light of the jurisdiction of these tribunals to consider the Charter and the Code, and the stage those other matters may be at, deferral will avoid a duplication of proceedings and be the most appropriate manner of proceeding.

7Ontario relies upon McIntosh v. Ontario (Government Services), 2010 HRTO 2363 and Silveira v. Ontario (Government Services), 2011 HRTO 249, in which the Tribunal deferred applications pending the resolution of another HRTO application raising similar, complex issues. It argues that WSIAT file 2006-1939 involves very similar, complex issues to this case and it has progressed significantly further than this Application. It also notes that having proceeded through the statutory appeals process, the issues in that case are more clearly defined. Ontario points to differences in the focus of the issues as between the applicant and the intervenors who support his position.

8As noted above, the applicant did not make submissions on deferral. The OWA/OHRC submissions suggest that it would be inconsistent with the Tribunal's role and mandate and unjust to the applicant to defer to a proceeding in a different tribunal in a case where the applicant is not a party. They state that the principle purposes of deferral are to foster internal tribunal consistency, as in McIntosh, or to prevent relitigation by an applicant in different fora. They state that in deferring the Tribunal may appear to have ceded its decision making to the WSIAT, and there will be difficult issues in deciding the weight to be given to the WSIAT decision. They state that the Tribunal is the pre-eminent authority in human rights adjudication and should fulfil its mandate in such cases. They state that this type of case does not raise the same issues as possible inconsistent decisions involving the same applicant before different tribunals. They state that the WSIAT cases are considering only the Charter, and the available defences are different. They argue that it is not appropriate to consider the degree of development of a case of a different individual in a different forum, and note that WSIAT cases will always be more developed because they deal with facts first, and discrimination second. Finally, they note that the Commission is not an intervenor in any of the WSIAT proceedings.

Decision

9Deferral suspends the Tribunal's process pending the outcome of another proceeding. It is aimed at avoiding duplication of legal processes. It results from the recognition that a variety of tribunals have the jurisdiction to deal with human rights matters (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14) and that the facts underlying them may also arise in other proceedings.

10Deferral is a discretionary decision. The Tribunal has recognized various factors as relevant to the exercise of that discretion, including the subject of the other proceeding, the nature of the other proceeding, and whether it would be fair to the parties overall to defer, having regard to the status of each proceeding: Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11The context for the exercise of my discretion in this case is that this is complex test case litigation, involving a challenge to a government benefits scheme. The issues in such cases often involve extensive expert evidence, take many days of hearing, involve complex legal argument and may result in significant costs to the parties. In these circumstances, is it appropriate that the Tribunal proceed with this case while another, more developed case is before the WSIAT?

12I am not persuaded that the differences in defences between the Code and the Charter are of any relevance to this determination. There is evidently at very least a significant overlap between the Charter and Code analysis, as the OWA/OHRC joint submissions make clear in their extensive reliance upon two Charter cases. I also do not accept the OWA/OHRC argument that the failure to defer would cause problems for the Tribunal in deciding what weight to give the WSIAT case, since this issue will likely arise in any event. Given that the WSIAT proceeding is more advanced, there is every reason to think that its decision will be released before the decision of this Tribunal in this case. I give no significance to the fact that the OHRC is not an intervenor in the WSIAT case. There is no suggestion that it sought such status. While this Tribunal has a particular expertise in human rights, WSIAT has an expertise in the structure and history of workplace safety legislation, and the two interact in this case.

13In my view, the exercise of my discretion in these circumstances requires a balance between, on the one hand, the applicant's interest in having his Code claims heard expeditiously and, on the other, the effective administration of justice in avoiding duplication of proceedings and the respondent and Ontario's interest in not simultaneously defending the same provisions in two tribunals with concurrent jurisdiction.

14Most significant to me in deciding whether deferral is appropriate is that the applicant has not opposed deferral. The only submissions on this issue, including about the effects on the applicant, have been made by the intervenors who appear to have a different and more developed theory of the case than the applicant. I am wary about proceeding when closely related issues are before the WSIAT in a much more developed case, and about the possibility for inconsistent determinations based on different evidence that may result. Given the manner in which the applicant has articulated his challenge, in my view the balance tips in this case toward avoiding duplicative litigation in two tribunals.

15I am also concerned that, as noted by Ontario and the respondent, it appears that for the applicant to succeed the Tribunal may well have to find that both the requirement that there be a sudden and traumatic event, and that it not arise from actions or decisions by the worker's employer related to employment are contrary to the Code. The intervenors, who have put forward much more detailed pleadings than the applicant, appear to challenge only the first limitation and not the second. This is a further reason why, in my view, it is preferable for the administration of justice that the WSIAT case, which is much more fully developed, proceed first.

16Considering all the circumstances of this case, therefore, I find that deferral pending the WSIAT decision in File No. 2006-1939 is appropriate. Accordingly, pursuant to Rule 14.1, this Application is deferred pending completion of those proceedings. Counsel for the respondent is directed to send the other parties a copy of the Decision in WSIAT File No. 2006-1939 upon its release. The parties' attention is directed to Rule 14.4, which requires that a Request to reactivate an Application be filed no later than 60 days after the conclusion of the other proceeding. The Tribunal will also consider a request to reactivate if the WSIAT proceeding does not move forward toward hearing in a timely way.