Anibal Condor Golec v. Pfenning’s Organic Vegetables Farm Inc., 2012 HRTO 1711

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anibal Condor Golec Applicant

-and-

Pfenning’s Organic Vegetables Farm Inc. Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: September 12, 2012 Citation: 2012 HRTO 1711 Indexed as: Golec v. Pfenning’s Organic Vegetables Farm Inc.

WRITTEN SUBMISSIONS

Anibal Golec, Applicant Self-represented

Pfenning’s Organic Vegetables Farm Inc., Respondent Steven D. Gadbois, Counsel

Introduction

1This Interim Decision addresses the issues of delay and possible deferral of the Application to proceedings before the Workplace Safety and Insurance Board (“WSIB”). On July 17, 2012, I issued a Case Assessment Direction setting out the Tribunal’s concerns and asking for the parties submissions on these two issues. Both parties filed written submissions.

Decision and Analysis

Delay

2The Application in this matter was filed on July 16, 2010. In the applicant’s narrative in section 8, he describes events that he alleged took place from July to September, 2008, almost two years before his Application was filed. The applicant states that August 27, 2008 was his last date worked for the respondent.

3However, in section 7c of his Application, the applicant asserts the last incident of alleged discrimination took place on July 12, 2010. The Tribunal sent the applicant a Notice of Incomplete Application, in which he was asked to explain why he had selected the July 2010 date. The applicant responded to that inquiry as follows:

On July 12, 2010 I got an email from Jennifer Pfenning from Pfenning’s Organic Vegetables farm Inc, saying that there were no positions that would accommodate the restrictions from the functional abilities form from WSIB of date 12/7/2010. On July 20, 2010 the same refusal was given by Wolfgang Pfenning.

On August 9, 2010 Jennifer Pfenning sent an email saying that there was not desire to re-hire me.

4The respondent did not respond to this information in its Response to the Application, but in its written submissions on delay, acknowledged that the applicant had applied for a job in 2010, but took the position that there were no positions within the applicant’s physical limitations and/or linguistic abilities.

5The applicant also made reference to communication between himself and the respondent that took place in 2009, but this is simply an email from the respondent advising the applicant that it was the respondent’s position that it was not responsible for the injury to his right hand and refusing to pay for his physiotherapy treatments. This is an issue that would be germane to the WSIB claim, but is not an allegation of discrimination.

6Section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), states in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7The Tribunal does not have the power to consider claims filed more than one year after the last incident of discrimination, or the last in a series of incidents of discrimination, unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8In deciding whether to dismiss all or a portion of the allegations for delay, the Tribunal must determine whether the more recent incidents are part of a “series of incidents” as that term is used in s. 34(1)(b) of the Code. The Tribunal has held that to be a series of incidents, the time between incidents should generally be less than one year and they should otherwise be related: See Al Saigh v. University of Ottawa, 2010 HRTO 2 at para. 15.

9There was no ongoing relationship between the applicant and the respondent other than through his WSIB claim. He did not ask to work for the respondent until two years after his initial employment with it. Given the gap in time and break in the employment relationship between the parties, I find that the 2008 allegations are not part of a “series of incidents” as that term has been interpreted.

10In order to accept applications filed beyond the one year time limit, the Tribunal must be satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. I specifically sought submissions from the parties on the question of good faith and prejudice.

11The applicant submits that he should be exempt from the one-year time limit as the WSIB Appeals Officer did not issue a decision until February 18, 2010. The applicant fails to explain why a determination by the WSIB was necessary before filing an Application to this Tribunal. On their face, the allegations in this Application from 2008 – namely that the respondent failed to offer the applicant modified work to accommodate his disability – stand regardless of whether the WSIB accepts the disability was workplace related or not.

12In the absence of any other explanation, I find that the 22-month delay between the incidents in 2008 and the filing of the Application was not incurred in good faith. Although the respondent filed submissions in which it asserted it would be prejudiced by the delay, is not necessary to address the issue of prejudice to the respondent.

13The applicant’s allegations in section 8 of his Application concerning events that took place in 2008 are, accordingly, dismissed. The allegations concerning the refusal to hire the applicant in 2010 remain.

deferral

14As noted above, the applicant filed a WSIB claim in Ontario concerning the events in 2008. The parties advise that the matter is proceeding to a hearing before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) to determine whether the applicant is entitled to loss of earnings benefits after September 2008 from what the applicant asserts is an ongoing disability caused by the workplace.

15It would appear that the hearing before WSIAT has been delayed due to the fact that the applicant is out of the country seeking medical treatment, although the applicant has asked to have the hearing held by teleconference. It also would appear that WSIAT may be awaiting decisions on three workers compensation claims filed by the applicant in Alberta and a further claim in British Columbia, all of which relate to the applicant’s right hand.

16The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

17In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal articulated the problem with concurrent legal proceedings and set out the factors that might be taken into account:

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.

18Having reviewed the material, it would appear deferral is appropriate. A central question with respect to the remaining allegation before this Tribunal, which concerns the respondent’s refusal to hire the applicant in 2010, is whether the applicant was physically capable of performing the essential duties of the position.

19It would appear from the materials submitted by the parties that WSIAT will be required to determine whether the applicant is subject to ongoing physical impairment as a result of what the applicant asserts is a workplace injury. If the two proceedings were to proceed simultaneously, there is real possibility that the two tribunals could arrive at inconsistent conclusions regarding the applicant’s level of functional impairment.

ORDER

20In sum, I have made the following orders:

1. The applicant’s allegations in section 8 of his Application concerning events that took place in 2008 are dismissed. His allegations with respect to events that took place in the summer of 2010 remain.

2. This Application is deferred pending the conclusion of the WSIB/WSIAT proceedings on the applicant’s entitlement to loss of earnings benefits from his 2008 employment with the respondent. Rules 14.3 and 14.4 outline the procedure by which the Application may be brought back on after the conclusion of the WISB/WSIAT process.