Gahagan v. James Campbell Inc., 2012 HRTO 1667

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Gahagan

Applicant

-and-

James Campbell Inc.

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: September 4, 2012

Citation: 2012 HRTO 1667

Indexed as: Gahagan v. James Campbell Inc.

WRITTEN SUBMISSIONS

Cathy Gahagan, Applicant

Don Menzies, Representative

James Campbell Inc., Respondent

Jeffrey Ayotte, Counsel

1The applicant filed these Applications on September 13, 2011 and October 26, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination and reprisal with respect to employment on the basis of disability.

2The applicant's first Application alleges that the respondent failed to accommodate her disability and, in particular, did not cooperate with Workplace Safety and Insurance Board ("WSIB") Return to Work specialist in facilitating an inspection of the premises so that an assessment of the applicant's workplace accommodation needs could be better evaluated. The applicant noted that there is Workplace Safety and Insurance Board ("WSIB") proceeding underway. The applicant's second Application alleges that the respondent failed to assist the applicant to receive long term disability benefits and terminated her employment as a reprisal.

3The respondent filed Responses on December 16, 2011 and March 7, 2012 denying the allegations of discrimination and reprisal. The respondent requests that the Tribunal defer the Applications because the facts of the Applications are part of ono-going WSIB proceedings.

4By way of Case Assessment Direction ("CAD"), the Tribunal directed the applicant to provide further information with respect to whether there were any current proceedings before the WSIB.

5The applicant filed submissions on July 20, 2012 in response to the CAD and opposing the respondent's request to defer. The applicant asserts that the Application should not be deferred because the applicant's WSIB proceedings do not address the employment discrimination issues, but rather deal with the WSIB's failure to consider the applicant's learning disability and did not provide necessary education and tools for re-employment.

6Notwithstanding having been given the opportunity to file submissions in reply as per the Tribunal's CAD, the respondent did not file further submissions regarding the issue of deferral.

DECISION

7The 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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8Some 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.

9The applicant submits the Tribunal should not defer the Application because the alleged disability discrimination, specifically refusal to accommodate the applicant's disability needs, are not the subject of the applicant's WSIB appeal. The applicant submits that the WSIB proceedings relate to other matters of suitable alternate work and her learning disabilities.

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 applicant is currently pursuing a WSIB appeal. The applicant filed objection to the WSIB decision in February 2012 with respect to whether or not there was suitable work available for her to be re-employed. The applicant alleges that the WSIB did not address her learning disability and did not give her the necessary education and tools to re-employ herself in alternate work. The applicant also challenges that WSIB's failure to consider her lack of access to public transportation in reaching its decision. It appears that the applicant is challenging the WSIB's determination that there is suitable occupation for her skills and needs.

12I see no basis to defer the Application pending the resolution of the WSIB appeal. The WSIB process will not determine the Code-related issues as it relates to the applicant's allegations against her employer. I find that any overlap between this Application and the applicant's WSIB concerns is minimal. While the factual background regarding the applicant's disability may be relevant to both proceedings, the allegations of discrimination, including a failure to accommodate, and reprisal are distinct from her claims involving the WSIB appeal.

13Accordingly, the respondent's request to defer is denied.

Consolidation

14As previously noted, the applicant has two Applications against the respondent regarding her employment concerns.

15The respondent requests that the two Applications be heard jointly as the underlying facts are related.

16Rule 1.7(d) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

17In my view, the Applications should be consolidated and heard together in order to avoid multiplicity of proceedings, as well as considerations of expense, convenience and to avoid inconsistent findings of fact.

ORDERS

18The respondent's request to defer is dismissed. The Applications will be consolidated.

19I am not seized of this matter.