Davies v. Honda of Canada Mfg., 2012 HRTO 1567

Human Rights Tribunal of Ontario

Between:

Peter Davies Applicant

-and-

Honda of Canada Mfg., Ellen Purchase, John Brennan, Darren Stewart, John Moulding, Ally Woodley, Patricia LeBlanc, Chris Daly, Peter Sledz, Kirby Brooks, Steven Hepburn, Dave Arsenault, Matt Forrester, and Darin Vojin Respondents

Interim Decision

Adjudicator: David A. Wright Date: August 14, 2012 Citation: 2012 HRTO 1567 Indexed as: Davies v. Honda of Canada Mfg.

Written Submissions

Honda of Canada Mfg., Ellen Purchase, John Brennan, Darren Stewart, John Moulding, Ally Woodley, Patricia LeBlanc, Chris Daly, Peter Sledz, Kirby Brooks, Steven Hepburn, Dave Arsenault, Matt Forrester, and Darin Vojin, Respondents

Jayson Rider, Counsel

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 and reprisal. The allegations relate to an alleged series of incidents involving alleged failure to accommodate and discrimination against the applicant between 2007 and 2011.

2There are various other ongoing related proceedings. The Workplace Safety and Insurance Board ("WSIB") has made various decisions refusing the applicant loss of earnings benefits on the basis that positions offered by the respondent to the applicant were consistent with his restrictions. The applicant has filed objections contesting at least several of these decisions. On or around June or July of 2011, the applicant contacted the Ministry of Labour and a complaint was filed containing allegations of reprisal, harassment and a failure of the respondent to provide the applicant with safe accommodative work within his restrictions. The inspectors from the Ministry of Labour did not uphold the complaint. The applicant did not appeal this decision to the Ontario Labour Relations Board as he had the right to do, but also filed a subsequent reprisal complaint with the OLRB that overlaps with some of the allegations in this Application.

3On June 19, 2012, the Tribunal issued a Notice of Intent to Defer which asked the parties to make submissions within 30 days on whether the Tribunal should defer the Application pending the resolution of the WSIB proceedings. The Notice of Intent to Defer did not refer to the OLRB proceedings as the Tribunal was unaware of them until the filing of a Request for Order During proceedings by the respondents.

4The applicant did not make any submissions in response to the Notice of Intent to Defer. The respondents filed a Request for Order During Proceedings on July 19, 2012, seeking a dismissal of portions of the Application under s. 45.1 of the Code, based on decisions of the Ministry of Labour inspectors. They also seek deferral of the remaining parts of the Application.

5For the reasons that follow, I find that the Application should be deferred pending the resolution of the applicant's s. 50 reprisal complaint before the OLRB and until such time as the applicant has completed his objections and appeals before the WSIB and Workplace Safety and Insurance Appeals Tribunal in relation to the issue of whether he was provided with suitable accommodated work. The respondents' Request to Dismiss under s. 45.1 shall be addressed if the Application is reactivated.

6Deferral 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. 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 type 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.

7In this case, the respondent supports deferral pending resolution of the various WSIB and OLRB proceedings and the applicant has made no submissions on this issue. There is a direct overlap with the proceedings at the WSIB and OLRB and the central issues in this Application, whether the respondent met its duty to accommodate in the positions it offered the applicant. Given the multiple proceedings already underway before this Application was filed, in my view deferral of this Application pending resolution of the other proceedings would be most fair and just in the circumstances.

8Given the fact that the respondents' s. 45.1 request would not result in the dismissal of the entire Application if accepted, and the fact that following the conclusion of the other administrative proceedings the respondents may have further arguments under s. 45.1, in my view it is preferable and less duplicative to deal with the respondents' s. 45.1 issues if and when the Application is reactivated.

9The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be reactivated, which must be done within 60 days after the other proceedings have concluded.

ORDER

10The Application is deferred pending the resolution of the applicant's s. 50 reprisal complaint before the OLRB and until such time as the applicant has completed his appeals before the WSIB and Workplace Safety and Insurance Appeals Tribunal in relation to the issue of whether he was provided with suitable accommodated work. The respondents' Request to Dismiss under s. 45.1 shall be addressed if the Application is reactivated.

11I am not seized of this matter.