HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Harry Ims Applicant
-and-
Conestoga-Rovers & Associates Limited Respondent
INTERIM DECISION
Adjudicator: Mary Truemner Date: November 14, 2012 Citation: 2012 HRTO 2143 Indexed as: Ims v. Conestoga-Rovers & Associates Limited
WRITTEN SUBMISSIONS
Harry Ims, Applicant Justin Heimpel, Counsel
Conestoga-Rovers & Associates Limited, Respondent Maureen Quinlan, Counsel
Introduction
1This is an Application filed on September 13, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging harassment and discrimination with respect to employment because of disability. The applicant’s allegations include an allegation that the employer refused to accommodate his needs arising from his disability, and an allegation that his employment was terminated because of his disability on September 28, 2010. The Application alleges that the reason provided by the respondent for the termination was a shortage of work due to the economic climate, but the applicant disputes the truth of the reason because new employees were hired to replace him.
2The Application indicates that the facts of the Application are part of a proceeding at the Workplace Safety and Insurance Board (WSIB) that is still in progress; consequently, the Tribunal requested a status update with respect to the WSIB proceeding, and counsel for the applicant advised that the WSIB claim was rejected but is under appeal. On August 31, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the parties, 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.
3Both parties filed submissions on October 15, 2012.
DEFERRAL
4The 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.
5Some 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.
6The applicant submits that his WSIB claims, while they predate the Application, raise issues that are very different from those raised in his Application. In the WSIB proceeding, the applicant seeks:
a) Ongoing entitlement for a low back injury of February 17, 2006;
b) Entitlement for recurrence of the injury; and
c) Recognition of a permanent impairment with respect to the low back dating back to the 2006 injury.
7The respondent argues that the Application should be deferred and, in particular, notes that in both proceedings, the applicant is claiming damages with respect to the termination of his employment. The applicant agrees that there is an overlap with respect to the loss of income remedy (post-termination) claimed in both proceedings, but the Tribunal and the WSIB could take into account any ruling by the other in the case that such a remedy is ordered. The applicant argues that the other remedies claimed in each proceeding are unrelated because the applicant is not claiming in the WSIB proceeding any harassment, failure to accommodate or discrimination in the termination.
8In these circumstances where the WSIB proceedings appear to raise issues that are not related to the issues in the Application, 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.
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. (The Tribunal has already provided the respondent with a copy of the Application when it delivered 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 14th day of November, 2012.
”signed by”
Mary Truemner Vice-chair