Leduc v. Loblaw Companies Limited, 2012 HRTO 1987

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anita Leduc Applicant

-and-

Loblaw Companies Limited and Real Canadian Superstore - Chatham Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: October 19, 2012 Citation: 2012 HRTO 1987 Indexed as: Leduc v. Loblaw Companies Limited

WRITTEN SUBMISSIONS

Anita Leduc, Applicant ) Christine Lundy, Representative

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 29, 2011. The Application alleges discrimination with respect to employment based on disability. It describes what appears to be an ongoing effort involving the Workplace Safety and Insurance Board (“WSIB”) to have modifications made to the applicant’s job until February 15, 2011, at which point it appeared to the applicant that the respondent decided not to try to find her further modified work and made her feel as if she had been “fired”. The Application states that the facts of the Application are part of another proceeding that is still in progress, indicating the proceedings at the WSIB.

2Despite the applicant’s position that the WSIB process is lengthy and that the Application should therefore not be deferred, in an Interim Decision (2012 HRTO 519), the Tribunal deferred the Application pending the outcome of the proceedings at the WSIB. The Tribunal held that the subject matter of the Application— whether the respondent accommodated the applicant— substantially overlaps with the subject matter involved in the WSIB proceedings, and the WSIB proceedings were well under way. As well, the remedies sought in both proceedings overlap.

3The applicant filed a Request for Reconsideration, citing a new study which made conclusions about big delays in the WSIB process for cases generally. The Request for Reconsideration of the deferral was refused (2012 HRTO 943).

4On August 28, 2012, the applicant filed a Request for Order During Proceedings, seeking to reactivate her Application (“the Request”). This Interim Decision denies the Request.

Position of the Applicant

5The applicant’s submissions accompanying the Request state that the WSIB has recently allowed “Loss of Earnings benefits for the applicant from September 26, 2011 to the present time [but not] for the period from February 15, 2011 to September 26, 2011.” The applicant has filed an objection at the WSIB with respect to the denial of those Loss of Earnings benefits, but she argues that the WSIB process for dealing with her objection may take until the middle of 2013, and then, if the decision is not favourable to her, she may appeal it.

6The respondents did not respond to the Request.

Analysis

7Rule 14 of the Tribunal’s Rules outlines the procedure by which a party may seek to bring the Application back on once the conditions set out in the deferral decision have been satisfied. Rule 14.4 states that:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

8The Interim Decision which deferred the Application held:

Either party can ask the Tribunal to re-activate the Application when it appears to the applicant or respondents that the WSIB proceedings are no longer continuing.

9Based on the applicant’s submissions, it is clear that the WSIB matter remains outstanding and has yet to be determined. The WSIB process continues to deal with the Application’s allegations of “being fired” on February 15, 2011, and for the accompanying allegation that the reason for which she was not allowed to work was because the respondents failed to accommodate her. The WSIB process deals with the remedy claimed in the Application for “lost wages since February 15, 2011”. As such, I decline to reactive this Application.

10A request to proceed with a deferred application can only be granted when the other process, upon which the application was deferred, has been completed. 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. To allow this Application to proceed in these circumstances would thwart the Tribunal’s previous order and would result in concurrent legal proceedings. (See Chandiwala v. Weston Bakeries Ltd., 2012 HRTO 514).

11Accordingly, the applicant’s request to reactivate this Application is denied.

12I am not seized.