HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aaron Himmelman
Applicant
-and-
Toyota Motor Manufacturing Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Himmelman v. Toyota Motor Manufacturing Canada Inc.
WRITTEN SUBMISSIONS
Aaron Himmelman, Applicant
Self-represented
Toyota Motor Manufacturing Canada Inc., Respondent
Ted Kovacs, Counsel
Introduction
1This is an Application was filed on June 19, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. This Interim Decision addresses the respondent’s request that the Application be deferred pending the outcome of a proceeding before the Workers Safety and Insurance Board (“WSIB”).
2According to the Application a Regional Evaluation Centre (REC) determined in March 2012 that the applicant had ongoing shoulder problems that would require permanent work restrictions. The Application alleges the respondent subsequently provided the applicant with modified work that followed the work restrictions identified by the REC until June 2012 when the respondent told the applicant that it would no longer be able to provide this modified work because his injury was not work related. The Application alleges that this decision to deny him with modified work in June 2012, is related to the fact that on May 30, 2012, the WSIB issued a decision denying that the applicant’s ongoing shoulder injuries were work related and that as a consequence the WSIB would cease consideration of his Non Economic Loss (“NEL”) benefits that would be paid if the WSIB determined that the applicant had suffered permanent impairment from a work-related injury or illness. The applicant is appealing the WSIB’s May 30, 2012 decision
3The respondent denies the allegations. In its Response filed October 22, 2012, the respondent details the history of the applicant’s injury dating back to 2009 and the efforts by the respondent to assist the applicant with his physical recovery and return to the workplace and to identify and provide modified work. The respondent submits that it was apprised at the beginning of June 2012 of the WSIB’s May 30, 2012, decision and the fact that the WSIB was of the view that the applicant’s prior work related shoulder injury had healed and that the applicant’s ongoing problems with his shoulder injury were not based on a work related injury. Of note, the respondent identifies in the Response the efforts that have taken place from the filing of the Application (on June 19, 2012) to October 15, 2012, to provide appropriate modified work for the applicant. It appears from the applicant’s subsequent Reply filed November 19, 2012, that the applicant continues to work for the respondent.
4The respondent submits that the Application should be deferred in light of the Applicant’s ongoing WSIB appeal. The respondent submits that the allegations in the Application are based on the same facts as those that form the basis of the applicant’s WSIB appeal in which he is seeking compensation for an alleged workplace injury including loss of earnings, medical benefits and other compensation. The respondent submits that there exists a real possibility that the issues raised in the Application will be resolved through the WSIB appeal.
5The Tribunal directed the applicant to file submissions in response to the respondent’s request to defer. The Tribunal received the applicant’s submissions opposing the respondent’s request as part of his Reply.
6The applicant submits that while there are facts in common between his WSIB claim and his Application but they are distinct. He submits that the WSIB case is dealing with a determination as to whether his shoulder injury is work related and whether he will receive compensation for his ongoing shoulder issues. He submits that the WSIB is not denying that he has ongoing shoulder issues or the REC’s assessment that he requires permanent restrictions. By contrast he submits that the Application is dealing with the respondent’s decision on June 18, 2012 to no longer accommodate the applicant’s permanent restrictions, a decision the applicant alleges is discriminatory.
DECISION
7The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. In considering whether to defer an application the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
8It appears the applicant’s proceeding before the WSIB will determine whether the applicant’s shoulder injury was work related and if so whether the applicant should receive compensable benefits. It does not appear that this proceeding will determine whether or what work related restrictions the applicant may require because of his injury (in June 2012 or at any other time) or whether the applicant was offered suitable or appropriate modified work (in June 2012 or at any other time). In my view this is decidedly distinct proceeding from the Application which very specifically alleges that the applicant was discriminated against in June 2012 when the respondent failed to provide the applicant with modified work.
9There is the potential that the applicant’s proceeding before the WSIB could overlap with the Application with respect to the issue of damages because the income compensation sought before the WSIB may be relevant to any remedies, if awarded, by the Tribunal for lost wages arising from a failure to provide modified work in June 2012.. However, I am satisfied that an award either at the WSIB or at the Tribunal can adequately address the question of any payments made to the applicant as a result of the other proceeding.
10In light of all these considerations, I am satisfied that deferral would not be fair, just and expeditious and I do not find that the Application should be deferred pending the completion of the WSIB proceedings.
11As both parties have indicated a willingness to participate in mediation a mediation will be scheduled.
12I am not seized of this matter.
Dated at Toronto, this 4th day of December, 2012.
”signed by”
Eric Whist
Vice-chair