Tesfamariam v. Camcor Manufacturing, 2012 HRTO 1645

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tesfalem Tesfamariam Applicant

-and-

Camcor Manufacturing Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: August 28, 2012

Citation: 2012 HRTO 1645

Indexed as: Tesfamariam v. Camcor Manufacturing

APPEARANCES

Tesfalem Tesfamarium, Applicant

Peter Mancini, Counsel

Camcor Manufacturing, Respondent

Malcolm Mackillop and Alison Adam, 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 with respect to employment because of disability.

2Rule 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 a party. Prior to the commencement of the hearing into this matter, the Tribunal raised whether it should defer further consideration of the Application pending the result of a proceeding at the Workplace Safety and Insurance Board (WSIB). This Interim Decision addresses that issue.

background

3The applicant suffered work-related injuries which had been reported to WSIB. The applicant alleges that the respondent failed to accommodate his injuries by failing to provide work within the restrictions set out by his family doctor, which in particular, limited his hours of work to four hours per shift.

4The respondent denies that it failed to accommodate the applicant. The respondent maintains that it offered the applicant modified work within his medical restrictions as identified by the WSIB, which did not restrict his hours of work.

5One of the central issues raised in the Application is the extent of the applicant’s medical restrictions and whether the respondent’s offer of modified work accommodated those restrictions. That issue was addressed before the WSIB in the December 7, 2011 decision of an Appeals Resolution Officer who determined that the modified work offered by the respondent was within the applicant’s medical restrictions. The applicant has appealed the decision of the WSIB to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The appeal is pending.

analysis

6The usual considerations when determining if an Application should be deferred were stated in Calabria v. DTZ Barnicke, 2008 HRTO 411:

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. 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 types 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.

7It would appear that there is considerable overlap in the issues before the WSIB and the issues raised in the Application. In both proceedings the issues include the nature of the applicant’s disability and whether the respondent offered suitable work and made appropriate steps to accommodate the applicant’s disability.

8In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application. The parties agree that, in these circumstances, deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings before the WSIB and any appeal to the WSIAT.

9The Tribunal’s Rule 14 sets out the procedure by which the Application may be brought back on after the conclusion of another proceeding.

10I am not seized.