Michael Tranchemontagne v. C.J. Morris Investments Ltd. o/a Sudbury Hyundai, 2012 HRTO 2322

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: Ena Chadha

Date: December 11, 2012

Citation: 2012 HRTO 2322

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

WRITTEN SUBMISSIONS

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.

2By way of Interim Decision 2012 HRTO 1801, the Tribunal directed the parties to file written submissions with respect to the issue of deferral. The Tribunal noted that the applicant had on-going proceedings before the Workplace Safety and Insurance Board ("WSIB").

3The respondent filed submissions on October 12, 2012 supporting deferral on the basis that the applicant has pursued an appeal that squarely raises allegations made in the present Application.

4The applicant filed submissions on November 25, 2012 opposing deferral on the basis that the WSIB appeal relates to lost wages and not his human rights claims of wrongful dismissal.

BACKGROUND

5The previous Interim Decision described the background to this Application as follows at paras. 4 and 5:

The 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.

The 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.

6The previous Interim Decision described the applicant's WSIB case as follows at para. 8:

The 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.

DEFERRAL

7The 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.

8Some 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.

9The Tribunal has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540.

10In assessing the issue of deferral, the Tribunal in Dhunsi, supra, considered it relevant that workplace safety and insurance proceedings have significant experience in addressing issues of disability. I see no reasons to depart from this line of jurisprudence given the on-going WSIB appeal in the present case.

11Based on the materials in the file, it appears that there is an overlap of facts and issues before the WSIB and the subject matter of this Application. Both proceedings involve matters regarding the respondent's decision to terminate the applicant's employment and whether this was in any way related to the applicant's injury/disability or other employment circumstances. I find that the matters that comprise the substance of the applicant's WSIB appeal are directly related to the applicant's human rights allegations. Further, it appears that the applicant may be seeking overlapping remedies with respect to loss of earnings in both processes.

12Given the overlap in the subject matter of this Application and that of the outstanding WSIB appeal, I conclude that deferral is the most fair, efficient, and just way of proceeding with this Application.

13Accordingly, the Tribunal orders that the Application is deferred pending the completion of the WSIB matter and, specifically, the conclusion of any appeals.

14Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

15I am not seized of this matter.