Human Rights Tribunal of Ontario
B E T W E E N:
Phillip J. Durdle on behalf of Phillip Durdle Applicant
-and-
The Workplace Safety and Insurance Board Respondent
INTERIM DECISION
Adjudicator: Keith Brennenstuhl Date: August 23, 2012 Citation: 2012 HRTO 1617 Indexed as: Durdle v. The Workplace Safety and Insurance Board
WRITTEN SUBMISSIONS
Phillip J. Durdle on behalf of Phillip Durdle, Applicant Self-represented
The Workplace Safety and Insurance Board, Respondent Gurjit Brar, 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 services because of disability.
2The applicant filed a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, with the respondent, the Workplace Safety and Insurance Board (“WSIB”), in May 2009. The applicant’s claim was that he suffered a paraesophageal hiatus hernia as a result of the heavy lifting involved in his job duties as a Tool and Die Maker. Allegedly, the applicant suffers from depression and has dyslexia and other communication barriers.
3The applicant claims that the WSIB discriminated against him when it initially refused to allow treatment for the applicant’s depression and that while the WSIB eventually agreed to the treatment it took many months for the WSIB to render this decision. The applicant also claims that the WSIB’s repeated use of complicated assessment tools and processes failed to accommodate the applicant’s language disability. Moreover, the applicant feels that the WSIB’s position that his depression is not related to his workplace injury and therefore not compensable is also discriminatory.
4Rule 14.1 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
5In Baghdasserians v. 674469 Ontario, 2008 HRTO 404 the Tribunal made the following general comments about deferral at paras. 18 -19.
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. However, 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.
6In my view, deferral is the most fair, just and expeditious way of proceeding with this Application. It would appear, based on my review of the parties’ materials that the applicant is raising to a large extent the same facts and issues related to his allegations of discrimination before both the WSIB and the Tribunal. It would appear that the applicant’s objection is before the WSIB Appeal Branch. The applicant has a further right of appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Both WSIB and WSIAT have jurisdiction to apply the Code in matters properly before them.
7In the circumstances, the Tribunal determines that it is appropriate that the Application be deferred. The Tribunal orders the deferral of the Application, pending the conclusion of the WSIB proceedings before the WSIB and any further appeal to the WSIAT.
8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outlines the procedure by which the Application may be brought back on after the conclusion of the WSIB proceedings. If the WSIB proceedings have already concluded, a request that this Application proceed may be made to the Tribunal within 60 days of the date of this Interim Decision.
9I am not seized.
Dated at Toronto, this 23rd day of August, 2012.
Signed by
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Keith Brennenstuhl Vice-chair