HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianna Rose

Applicant

-and-

Revera Long Term Care Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 12, 2012

Citation: 2012 HRTO 1728

Indexed as: Rose v. Revera Long Term Care Inc.

WRITTEN SUBMISSIONS

Dianna Rose, Applicant ) Christine Lundy, Representative

Revera Long Term Care Inc., Respondent ) Erin Porter, 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

2The applicant is employed as a personal support worker in a long-term care home for seniors, which is owned by the respondent. In February 2009, she injured her back at work. She filed a claim with the WSIB, and returned to work on modified duties. Her WSIB claim is ongoing.

3On January 16, 2012, a WSIB Case Manager issued a letter, which decided that the applicant was at maximum medical recovery with no permanent impairment, that she was to participate in a graduated return to work plan, and that she was considered to be fit for full regular job duties as of March 5, 2012. On April 4, 2012, a WSIB Case Manager issued a further letter, which confirmed that the respondent could return the applicant to her regular position.

4On May 17, 2012, the applicant filed an internal objection/appeal to the WSIB’s decision. She stated that she had been able to cope with the pain caused by her back injury until March 2010, when the respondent changed her position, and that the medical evidence shows that she cannot perform her full regular duties because of ongoing back pain. She requested that the WSIB grant her entitlement to a permanent impairment, and all loss of earnings caused by the WSIB’s decisions.

5On May 17, 2012, the applicant also 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 her with respect to employment because of her disability. Specifically, she alleged that since her injury the respondent had discriminated against her by not taking her disability-related restrictions seriously, by requiring her to perform tasks outside of her restrictions, and by failing to accommodate her disability-related needs up to the point of undue hardship. She requested that the Tribunal order the respondent, among other things, to pay her monetary compensation for lost wages and injury to dignity, feelings and self-respect, and to accommodate her disability-related needs up to the point of undue hardship.

6On July 17, 2012, the Tribunal issued a Notice of Intent to Defer to the parties and the Canadian Union of Public Employees, Local 4654 (the “Union”), which informed them that the Tribunal determined that it may be appropriate to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Notice invited submissions from the parties and the Union on this issue. The parties filed submissions, but the Union did not.

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 her submissions, the applicant stated that the Tribunal should not defer consideration of the Application because the issue before the WSIB and the Tribunal are not the same. She stated that the issue before the WSIB is whether she has reached maximum medical recovery with no permanent impairment with respect to her back injury, while the issue before the Tribunal is whether the respondent accommodated her disability-related needs up to the point of undue hardship.

11In its submissions, the respondent stated that the Tribunal should defer consideration of the Application because the issues before the WSIB and the Tribunal, though not identical, are substantially similar. The respondent stated that the main issue before both the WSIB and the Tribunal relates to the same facts, that is, the requirement that the applicant participate in a work hardening program, and then return to regular job duties. The respondent also stated that the WSIB and the Tribunal will both have to hear background and medical evidence about whether the applicant was unable to perform the essential duties of her job.

12In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant’s claim to the WSIB, which is ongoing, was filed in 2009, which is more than three years before she filed her Application with this Tribunal in 2012. In addition, the applicant’s objection/appeal to the WSIB and her Application with this Tribunal, which were filed on the same day, were triggered by the same set of facts. Furthermore, although the issues in the two proceedings are not identical, there is a clear overlap between some of the key facts and issues, which raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law. I do not agree with the applicant’s suggestion that the facts and issues in two proceedings can be parsed and separated.

ORDER

13The 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).

14I am not seized of this matter.