Tranchemontagne v. C.J. Morris Investments Ltd., 2012 HRTO 1801

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Tranchemontagne

Applicant

-and-

C.J. Morris Investments Ltd. o/a Sudbury Hyundai

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: September 20, 2012

Citation: 2012 HRTO 1801

Indexed as: Tranchemontagne v. C.J. Morris Investments Ltd.

APPEARANCES

Michael Tranchemontagne, Applicant

Self-represented

C.J. Morris Investments Ltd. o/a Sudbury Hyundai, Respondent

Brian Gatien, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.

SUMMARY HEARING

2On May 23, 2012 the Tribunal issued a Case Assessment Direction directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3The summary hearing was held on September 6, 2012. During the summary hearing, I heard submissions from the applicant and the respondent’s counsel on whether the Application has a reasonable prospect of succeeding. I need only to briefly refer to these submissions for the purposes of my decision.

4The applicant was hired by the respondent as a service manager on February 12, 2011. The applicant’s employment was terminated on February 13, 2012. The respondent submits that the applicant left work on eight occasions between January 30, 2012 and February 10, 2012 without prior permission even though he had been previously warned by the respondent that prior to taking any time off he needed to submit a written request and have this request approved. The respondent submits that it was a result of the applicant’s repeated refusal to comply with his assigned work hours and to follow the procedure for making requests for time off that the applicant’s employment was terminated.

5The applicant suffered a work place injury on December 19, 2011. He submits that his doctor subsequently recommended that he have physiotherapy. He submits that he verbally told the respondent in January 2012 that he would be attending physiotherapy for his injury and no objections were expressed. He also submits that he understood the respondent’s requirement to provide a written request for time off was to request personal time off which he distinguished from requiring time off for the treatment of a work related injury. He further submits that he made up the one hour he took off for each of his physiotherapy sessions by working his lunch hours.

6I cannot conclude that the Application has no reasonable prospect of success. Consequently, the Tribunal will continue to process the Application.

7On the basis of the parties’ submissions and the information before me it appears that there are a number of the facts that are in dispute. For example, it appears to be in dispute as to whether the applicant told the respondent he was going to attend physiotherapy and what their response if any was to this. This is an issue that can only be decided on the basis of evidence and, very likely, a determination of credibility. A finding that the applicant did tell the respondent he required physiotherapy and would be attending physiotherapy sessions could, in my view, lead to a determination that the applicant’s rights under the Code have been violated. At this point I cannot conclude that the applicant has no reasonable prospect in proving that the decision to terminate his employment was related to a disability or that the respondent had a duty to accommodate a disability that it failed to meet.

THE APPLICANT’S PROCEEDINGS BEFORE THE WORKPLACE SAFETY AND INSURANCE BOARD

8The applicant has ongoing proceedings before the Workplace Safety and Insurance Board (WSIB). The applicant filed a report of his December 19, 2011 workplace injury with WSIB. The WSIB subsequently considered what benefits the applicant might be entitled to following the termination of his employment on February 13, 2012. On February 17, 2012 the applicant’s WSIB case manager wrote to the applicant to state that, based on the information the case manager had obtained, that he was of the view that the applicant’s employment had been terminated due to an employment situation, not the applicant’s injury and that the applicant was fit to perform the essential duties of his job. The case manager concluded that given that the termination of the applicant’s was a result of an employment situation and that the applicant was fit to perform the essential duties of his job the applicant was not entitled to loss of earnings benefits commencing on February 13, 2012. The applicant has appealed this decision.

9At the summary hearing the respondent submitted that the Tribunal should dismiss the Application pursuant to section 45.1 of the Code. Section 45.1 of the Code provides that the Tribunal may dismiss an application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. The respondent submitted that the applicant’s proceedings before the WSIB related to the termination of his employment and whether it was related to his injury and as such these proceedings have dealt with the substance of the Application.

10I do not find it appropriate to deal with the respondent’s request to dismiss the Application pursuant to section 45.1 at this time. The Tribunal’s CAD did not alert the applicant that dismissing the Application pursuant to section 45.1 of the Code would be addressed at the hearing. It also became apparent at the Summary Hearing that the applicant has an ongoing proceeding before the WSIB that may continue to deal with some of the same issues raised in the Application. Under these circumstances I find it appropriate to direct the parties to provide submissions on whether the Application should be deferred pending the outcome of the applicant’s proceedings before the WSIB.

THE ISSUE OF DEFERRAL

11The Tribunal did not hear submissions during the summary hearing on the issue of whether the Application should be deferred pending the outcome of the applicant’s proceedings before the WSIB. The Tribunal now seeks written submissions from the parties on the issue of deferral.

12The 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.

13Some 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 nature and status of each proceeding and the steps that have been taken to date.

DECISION

14The Application is not dismissed on the basis that there is no reasonable prospect that it can succeed.

15The parties are directed to provide written submissions on whether the Application should or should not be deferred pending the outcome of the applicant’s proceedings before WSIB.

i. The respondent is directed to deliver to the applicant and file with the Tribunal, no later than 14 days from the date of this decision, its submissions on deferral of this proceeding pending the resolution or completion of the WSIB (or WSIAT) proceeding. The respondent is to include any information it may have as to the status and nature of the proceeding before the WSIB.

ii. The applicant may reply to the respondent’s submissions within 14 days of receiving them. The reply is to include the applicant’s position and understanding of the status and nature of the proceeding before the WSIB.

16I am not seized of this matter.