Post v. Stevens Resource Group, 2012 HRTO 2371

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Post

Applicant

-and-

Stevens Resource Group and Workplace Safety and Insurance Board

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: December 19, 2012

Citation: 2012 HRTO 2371

Indexed as: Post v. Stevens Resource Group

WRITTEN SUBMISSIONS

Elizabeth Post, Applicant

Erin Buchner, Counsel

Stevens Resource Group, Respondent

Elizabeth Traynor, Counsel

Workplace Safety and Insurance Board, Respondent

Gurjit Brar, Counsel

INTRODUCTION

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant is an injured worker and alleges that she experienced discrimination on the grounds of disability and creed when she was required by her employer to work as a member of the Salvation Army Kettle Campaign, as part of a modified return to work program.

2This Interim Decision deals with a request that the Application be dismissed or deferred and confirms who the respondents to the Application are.

BACKGROUND

3The applicant suffered a work-related injury in July 2009. At the time of the injury, she was employed by Stevens Resource Group (SRG). According to the Response filed by SRG, it is a human resources staffing firm, specializing in meeting the temporary staffing needs of its clients. At the time of the work-related injury, the applicant was working for a SRG client. According to the Response, SRG offers modified work assignments to its injured employees. This may involve a placement with an "Employment Partner". An Employment Partner is a not-for-profit community organization with which SRG has established a relationship "whereby our disabled worker works with the Employment Partner's organization at no cost to the Employment Partner." During the assignment, the worker's wage is paid by SRG.

4In this case the applicant was assigned work with The Salvation Army, one of SRG's Employment Partners. She was first assigned on October 1, 2009 and worked in a Salvation Army Thrift Shop until November 3, 2009 when she was employed at the SRG office. Later in November, this work was no longer available and the applicant was again assigned to the Salvation Army. This time the assignment consisted of assisting with the Salvation Army Kettle Campaign and involved a placement in a retail environment with a cash donation box or "kettle".

5In the Application, the applicant indicates that she was not comfortable with this assignment as she felt it involved soliciting funds for a religious organization, contrary to her own belief system. The applicant self-identifies as an atheist.

6The applicant alleges that SRG told her that she was required to accept the assignment. She called her Claims Manager at the WSIB and explained the situation. He determined that the job was physically suitable for the applicant and that if she refused to accept it, she would not be entitled to loss of earnings benefits. The Claims Manager confirmed this in a decision dated November 23, 2009. There is also reference to another decision dated August 5, 2010.

7The applicant filed an objection to these decisions and the matter has been referred to the WSIB Appeals Branch. The status of the objection is not known.

8On or about January 4, 2010, SRG offered the applicant alternate employment, which she accepted.

9The applicant alleges that she experienced discrimination on the grounds of disability and creed when she was required by SRG to do work that she was not comfortable doing because of her belief system and when the WSIB refused to accept that her belief system was a valid reason for declining the work with the Salvation Army.

THE RESPONDENTS

10When the Application was first filed, the respondents identified were SRG and the WSIB Claims Manager. In subsequent communications, the applicant agrees with the WSIB's submission that the WSIB is the appropriate respondent, and not the Claims Manager. Given this agreement, the Claims Manager is removed as a respondent and the WSIB is added as a respondent and the style of cause is amended accordingly.

REQUEST TO DISMISS OR DEFER THE APPLICATION

11The WSIB submits that the Tribunal should dismiss the Application against it. The WSIB submits that the Application against it is in essence an attempt to attack the decision of the Claims Manager that the applicant is not entitled to loss of earnings benefits. In the alternative, the WSIB submits that the Tribunal should defer further consideration of the Application until the applicant's objection has been considered by the WSIB Appeals Branch.

12The applicant submits that the Application should not be dismissed but agrees that it is appropriate to defer further consideration of the Application until the applicant's objection has been considered by a WSIB Appeals Resolution Officer.

13The Response filed by SRG denies that it discriminated against the applicant but takes no position on whether the Application should be deferred.

CONCLUSIONS

14The Tribunal may defer consideration of an Application on its own motion or at the request of a party. Some of the factors that may be 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 type 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.

15In my view, it is appropriate to defer further consideration of the Application pending a determination of the applicant's objection to the decision of the Claims Manager.

16The reason for this is that it appears that there is a significant overlap in the issues that will be considered by the WSIB Appeals Resolution Officer and the issues raised in the Application.

17The applicant submits that the Tribunal should defer further consideration of the Application only to the time when the WSIB Appeals Resolution Officer determines the applicant's objection to the decision of the Claims Manager. The applicant submits that the Application should not be deferred until the matter has been dealt with by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) because the matter may not be appealed to WSIAT. I agree.

ORDER

18Further consideration of the Application is deferred until the applicant's objection to the decision of the WSIB Claims Manager has been considered by a WSIB Appeals Resolution Officer. If at that time the applicant believes that the substance of her Application has not been appropriately dealt with she may ask to have the Application re-activated. Any remaining issues about whether the Application should be dismissed in whole or in part or be further deferred can be determined at that time.

19Under Rule 14.3 of the Tribunal's Rules of Procedure, where an Application is deferred pending the outcome of another legal proceeding, a request to proceed 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.