HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Purchase Applicant

-and-

City of Burlington, Transit Division Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 29, 2012 Citation: 2012 HRTO 1648 Indexed as: Purchase v. Burlington (City)

WRITTEN SUBMISSIONS

Susan Purchase, Applicant Self-represented

City of Burlington, Transit Division, Respondent Deborah Hudson, Counsel

Canadian Union of Public Employees, Local 2723, Affected Party Elizabeth Nurse, Counsel

1The applicant filed this Application on November 21, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that she suffered from a workplace injury and that the respondent failed to properly accommodate her condition. The applicant further alleges that the respondent terminated her employment on November 19, 2010 while she was absent on sick leave. The applicant indicates that the facts of the Application are part of a Workplace Safety and Insurance Board (“WSIB”) proceeding.

3On February 16, 2012, the Tribunal issued a Notice of Incomplete Application (“Incompleteness Notice”) and Notice of Intent to Dismiss Application (“NOID”) because the Application may be outside of the Tribunal’s jurisdiction on the basis that it appears that the Application was filed more than one year after the last incident of discrimination.

4On March 21, 2012 and June 5, 2012, the applicant filed supplementary information in response to the Incompleteness Notice and NOID. The applicant indicated that the delay in filing her Application was due to the fact that she was overwhelmed and grieving because her husband had recently died and that they had only shortly before moved residences. The applicant further noted that the delay was caused by the fact that she had difficulty with her internet because of the move. The applicant provided copies of her WSIB documentation, including correspondence which indicated that there is an appeal before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

5On July 4, 2012, the Tribunal forwarded a copy of the Application to the respondent and the applicant’s union, Canadian Union of Public Employees, Local 2723, as an affected party. The Tribunal’s letter stated that it may be appropriate to defer consideration of the Application pending the resolution of the WSIB and WSIAT proceedings. The Tribunal directed the parties and the affected party to file written submissions with respect to the issue of deferral. The letter also stated that the Tribunal may proceed to deal with the jurisdictional issue highlighted in the NOID at a later stage.

6On August 3, 2012, the respondent filed submissions opposing the Tribunal’s jurisdiction and, in the alternative, supporting deferral. The respondent submits that the Tribunal should defer this Application because the parties are currently involved in the WSIB process dealing with the same issues as the Application. The respondent noted that there are several issues before the WSIB Appeals Branch and WSIAT regarding the applicant’s entitlement for benefits flowing from the alleged work injury.

7The affected party wrote to the Tribunal and advised that it takes no position with respect to the issue of deferral. The applicant did not file submissions regarding deferral.

Deferral

8The 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 (Rule 14.1). 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.

9Some factors that have been identified as 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

10The Tribunal has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; and Dhunsi v. J.T. Bakeries, 2010 HRTO 540. In Dhunsi, supra, the Tribunal deferred the Application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. In assessing the issue of deferral, the Tribunal in Dhunsi, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability.

11Based on the information in the file, it appears that the respondent is currently pursuing an appeal before WSIAT regarding the applicant’s entitlement to benefits opposing the finding that the condition is a work-related injury, as well as an appeal at the WSIB Appeals Brach regarding the applicant’s entitlement to further loss of earning benefits. It appears that the appeals were commenced prior to the human rights Application and that a WSIAT hearing is pending. There is no doubt that the factual background of the Application is entirely the same as the WSIB matter. Further, it appears that the human rights allegations of failure to accommodate the applicant’s restrictions are considerations in the WSIB claim. I find that the subject matter of the WSIB and WSIAT proceedings overlap with the Application, specifically the issue of the nature and degree of the applicant’s disability and ability to return to work. In addition, there is the matter of compensation that flows from the challenged benefits entitlement which potentially also overlaps with the remedies sought in the Application.

12As previously noted, the Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts raised in the Application. I see no reasons to depart from this approach given the on-going WSIB proceedings. I find that there is overlap with respect to the factual allegations and the legal issues before the WSIB and the Application. In these circumstances, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.

13Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings.

14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the WSIB proceedings. Should this Application be reactivated, the Tribunal may proceed to deal with the jurisdictional issue highlighted in the NOID.

15I am not seized of this matter.

Dated at Toronto, this 29th day of August, 2012.