HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Whitwell
Applicant
-and-
U.S. Steel Canada Inc. – Hamilton Works,
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Date: February 2, 2012
Citation: 2012 HRTO 240
Indexed as: Whitwell v. U.S. Steel Canada
WRITTEN SUBMISSIONS
Joseph Whitwell, Applicant ) Self-represented
U.S. Steel Canada Inc. – ) Patricia G. Murray, Hamilton Works, Dan Fisher, ) Counsel Dean Comand and James Kee, ) Respondents )
Ontario Human Rights Commission ) Cathy Pike, Counsel
Workplace Safety and Insurance Board ) Gurjit Brar, 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 in employment because of disability.
2In Interim Decision 2012 HRTO 169, the Tribunal solicited requests to intervene regarding the respondent’s Request for an Order during Proceedings (the “Request”) seeking dismissal of the Application on the basis that another proceeding (the decision of a Workplace Safety & Insurance Board Case Manager) had appropriately dealt with the substance of the Application, pursuant to section 45.1 of the Code. The respondent argues that the Supreme Court of Canada’s decision in Canada British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, released October 27, 2011, requires the Tribunal to treat the Case Manager’s decision regarding the availability of accommodated work for the application as dispositive of the issues raised in the Application. The Interim Decision directed potential intervenors to file a Request to Intervene by February 1, 2012, since the hearing of the matter was scheduled to for February 6 and 7, 2012.
3The Human Rights Commission (the “Commission”) and the Workplace Safety & Insurance Board (the “WSIB”) have both stated an intention to intervene in the matter. However, they also indicate that they are unable to adequately prepare their submissions in support of their Requests to Intervene or to effectively participate in the hearing if it proceeds as currently scheduled. Consequently, both prospective intervenors seek adjournment of the hearing to allow them adequate time to address the Request.
4In reply, the respondent recognized the importance of the issues raised in the Request, but resists adjournment of long standing hearing dates for which the parties have invested significant time and resources to prepare. The respondent suggests that the Tribunal defer dealing with the Request and proceed with the hearing on February 6 and 7, 2012 solely for the purpose of receiving the parties’ evidence on the merits of the matter. In its proposal the Tribunal would not, however, rule on the merits of the Application until it has rendered a decision regarding the Request. In this way, the parties shall be able to make use of the scheduled hearing dates and the prospective intervenors shall have sufficient time to take instructions and file Requests to Intervene. The applicant supports the Request for adjournment on the basis that the potential intervenors are well placed to address the significant issues raised in the Request. The applicant asserts that the respondent’s witnesses are all employed by the respondent and therefore does not accept that adjournment of the hearing dates will cause any inconvenience.
5I am certainly alive to the respondent’s submissions regarding the economical use of resources in litigation. The Tribunal is generally very reluctant to adjourn hearing dates without good reason. In this case, the issues raised by the Request may be of interest beyond the parties, and it was for that reason the Tribunal gave notice to potential intervenors. However, the evidence and submissions on the merits of the Application are not of broader interest and can be readily heard separately from the Request. In my view, the respondent’s suggestion provides a reasonable compromise in the circumstances. Accordingly, the hearing shall proceed on February 6 and 7, 2012 for the sole purpose of receiving the parties’ evidence and submissions regarding the merits of the Application. Following this, the Tribunal will schedule a one day hearing to hear evidence and submissions regarding the Request from the parties and intervenors, if any. After receiving the evidence and submissions on all issues, including the Request, I will render my decision on the Application.
6The time for filing Requests to Intervene is extended to February 14, 2012.
Dated at Toronto, this 2nd day of February, 2012.
”signed by”___________
Douglas Sanderson
Vice-chair