HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nichole Fisher
Applicant
-and-
Columbia Forest Long Term Care Centre
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Fisher v. Columbia Forest Long Term Care Centre
WRITTEN SUBMISSIONS
Nichole Fisher, Applicant
Gavin Cond, Counsel
Introduction
1This is an Application filed on May 22, 2012, 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 sex (pregnancy).
2The applicant alleges that the respondent employer denied her requests for accommodation related to her disability. She also alleges that because of its refusal to accommodate her, she was unable to work the necessary hours required to be entitled to maternity leave and she therefore alleges discrimination because of sex (pregnancy).
3On July 30, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the parties and to the applicant’s union identified in the Application, and directed them to file submissions in regards to whether or not the Tribunal should defer consideration of the Application pending the completion of the WSIB process.
4The applicant filed submissions in response to the Notice on August 23, 2012, opposing deferral. Neither the respondent nor the applicant’s union filed submissions in response to the Notice.
DEFERRAL
5The Tribunal will generally defer an application where there is an on-going legal proceeding based on the same facts and issues. 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. As noted in Naik v. HCR Personnel Solutions Inc., 2011 HRTO 157, it is often appropriate to defer consideration of an Application that is founded in the same facts as a WSIB claim; however, deferral is not warranted simply because the applicant has made a WSIB claim.
6Some factors that have been identified as 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
7The applicant submits that her WSIB issues have now been dealt with by a decision of an appeals resolution officer dated June 28, 2012, except that the denial of her entitlement for chronic pain by a case manager remains under appeal. In reviewing the case manager’s decision, it appears that the issue with respect to the applicant’s chronic pain is whether the cause was organic, and it appears that the issue is unrelated to the issues or the facts relevant to the Application.
8In the absence of submissions from the respondent, and in these circumstances where the WSIB proceedings appear to have been concluded with respect to overlapping facts and issues with the Tribunal process, the Tribunal will not defer this Application. The Tribunal makes this Interim Decision without prejudice to the respondent’s right to make any request to defer should matters change in the WSIB process, and without prejudice to the respondent’s right to make any submissions with respect to s.45.1 of the Code.
DIRECTIONS
9The Tribunal orders as follows:
The Tribunal will continue to process this Application;
A copy of this Interim Decision and a Notice of Application will be provided to the respondent and the union named in the Application, although I note that the union has not requested to intervene. (The Tribunal has already provided the respondent and the union with a copy of the Application when it sent them the Notice); and
The respondent is required to file its full Response (Form 2) within 35 days of the date of the Notice of Application.
10I am not seized of this matter.
Dated at Toronto, this 9th day of November, 2012.
“Signed by”
Mary Truemner
Vice-chair