HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Keith

Applicant

-and-

GNI Management Group Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 12, 2012

Citation: 2012 HRTO 1726

Indexed as: Keith v. GNI Management Group Inc.

WRITTEN SUBMISSIONS

Douglas Keith, Applicant ) Jim Dimovski, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of another legal proceeding.

BACKGROUND

2On February 9, 2012, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his disability. Specifically, he alleged that the respondent failed to accommodate his disability-related needs during his employment, and terminated his employment because of his disability.

3On May 3, 2012, the respondent filed a Response, which denied the allegation of discrimination. The respondent stated that it fully accommodated the applicant’s disability-related needs during his employment, and terminated his employment for non-discriminatory reasons.

4On July 5, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for March 7 and 8, 2013.

5On July 16, 2012, the applicant filed a Request for an Order During Proceedings, which requested that the Tribunal defer consideration of his Application pending the conclusion of a proceeding before the Workplace Safety and Insurance Board (“WSIB”). He stated that on June 20, 2012, the WSIB, on its own initiative, advised him that it was reconsidering his entitlement to further loss of earnings benefits as a result of compensable or work-related injuries, and it was reconsidering its decision which found that the respondent had not breached its re-employment obligations when it terminated his employment.

6The respondent did not file a Response to the applicant’s Request, and the time for doing so has now passed.

ANALYSIS

7Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides 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.

8In 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.

9Where there are concurrent proceedings before both the WSIB and the Tribunal that deal with the same issues, the Tribunal will normally defer consideration of the Application. See, for example, Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; Dhunsi v. J.T. Bakeries, 2010 HRTO 540; Hussey v. Crossby Dewar Inc., 2012 HRTO 618; and Purchase v. Burlington (City), 2012 HRTO 1648. 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 considered it relevant that the WSIB has significant expertise in addressing issues of disability.

10In his submissions, the applicant stated that his Application should be deferred because the WSIB proceeding is at a more advance stage than the proceeding before this Tribunal, the WSIB will undertake a comprehensive medical review of his injury, there is overlap between the two proceedings with respect to the issues relating to the accommodation process and the termination of his employment, and there are overlapping remedy claims in the two proceedings.

11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant’s claim to the WSIB was filed before he filed his Application with this Tribunal, and is at a more advanced stage. Furthermore, although the issues in the two proceedings are not identical, there is a clear overlap between some of the key facts and issues, as well as the applicant’s remedy claims, which raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law.

ORDER

12The Tribunal makes the following order and direction:

1. The Application is deferred pending the conclusion of the proceeding before the WSIB and any related appeals to the Workplace Safety and Insurance Appeals Tribunal.

2. Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not seized of this matter.