Human Rights Tribunal of Ontario
Between:
Daniel Chevalier Applicant
-and-
A.P. Plasman Inc., Donna Lajoie, Donna Pocock, Brian Sieben, Sean Dolan and Chris Platjouw Respondents
Interim Decision
Adjudicator: Jay Sengupta Date: August 9, 2012 Citation: 2012 HRTO 1543 Indexed as: Chevalier v. A. P. Plasman Inc.
Written Submissions
Daniel Chevalier, Applicant Christine Lundy, Representative
A.P. Plasman Inc., Donna Lajoie, Donna Peacock, Brandy Sieben, Sean Dolan and Chris Platjouw, Respondents David Amyot, 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 in respect of employment because of disability. The Tribunal issued a Notice of Intent to Defer the Application pending resolution of another legal proceeding dealing with the subject matter of the Application.
2The applicant notes in his Application that there is another proceeding going on that deals with the facts of his Application and in subsequent submissions clarifies that there are, in fact, three WSIB claims, two of which are currently in the appeal process, with three outstanding objections/appeals.
3The two active claims involve injuries to the applicant’s left ankle, right elbow and right shoulder relating to a workplace accident that took place on May 21, 2010 (claim #25692158) and an alleged injury to the applicant’s left shoulder and left ankle relating to an incident on January 24, 2011 (claim #26210618). However, the applicant argues that the two processes are “substantively different” and that there would be no duplication if both the WSIA and Code processes continued.
4The applicant characterizes the ongoing WSIB appeals in the following way:
Appeal of a November 9, 2011 decision concerning the quantum of Non Economic Loss (NEL) benefits under claim #25692158;
Appeal of a January 25, 2011 decision denying of loss of earnings benefits under claim #26210618; and
Appeal of an April 12, 2012 decision denying a claim for physiotherapy expenses under claim #25692158.
5The respondents do not dispute the above description or characterization of the appeals (above). However, they argue that the Application ought to be deferred given that the active WSIB files concern alleged injuries that occurred in May 2010 and January 2011 and involve “early and safe return to work” issues under WSIB policy. They point out that the Application before this Tribunal involves issues of absence from work, return to work and accommodation in the workplace and there is significant overlap.
Decision and Analysis
6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
7In my view, having reviewed the detailed and thorough submissions provided on behalf of the applicant, it appears that the three matters actively being adjudicated under the WSIA will not be determinative of the issues of discrimination and harassment in the workplace raised in the human rights Application.
8Although the respondents indicate that “early and safe return to work” issues are part of the process under the WSIA, there is no indication that any “early and safe return to work” issues are presently under appeal. As stated above, the outstanding appeals deal with quantum of NEL and entitlement to LOE and physiotherapy benefits.
9I agree with the applicant that deferral to the processes involving a loss of earnings issue, the quantum of a NEL award and the entitlement to compensation for physiotherapy expenses would be inappropriate.
10In light of the above, I find it is not appropriate to defer this Application. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.
11I am not seized.
Dated at Toronto, this 9th day of August, 2012
“Signed by”
__________________________________
Jay Sengupta
Vice-chair