Seecharran v. Keybrand Foods Inc., 2012 HRTO 252

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juliet Seecharran

Applicant

• and-

Keybrand Foods Inc. and Butch Siebenmorgen

Respondents

INTERIM decision

Adjudicator: Brian Cook

Date: February 6, 2012

Citation: 2012 HRTO 252

Indexed as: Seecharran v. Keybrand Foods Inc.

wRITTEN SUBMISSIONS

Juliet Seeccharran, Applicant ) Carmine Tiano, Counsel

Keybrand Foods Inc. and )

Butch Siebenmorgen, Respondents ) Mathew Mihailovich, Counsel

INTRODUCTION

1This Interim Decision is further to an earlier Case Assessment Direction that found it was not appropriate to dismiss the Application because of an ongoing process at the Workplace Safety and Insurance Board (WSIB) but that it might be appropriate to defer further consideration of the Application pending the conclusion of that process. The Case Assessment Direction invited submissions from the parties on the deferral question and these have now been received. The respondent supports deferral and the applicant opposes deferral.

2The Application arises out of a work-related low back injury that occurred on or about December 29, 2009. The applicant filed a claim with the Workplace Safety and Insurance Board (WSIB) and loss of earnings benefits were granted for her lost time from work from the date of the injury to February 22, 2010. The WSIB determined that the corporate respondent had offered the applicant suitable work that the applicant had refused. Although she remained off work, she was not entitled to loss of earnings benefits beyond February 22, 2010. The applicant has not yet returned to work.

3The applicant’s WSIB claim is now in the WSIB’s Appeals Branch where it has been assigned to an Appeals Resolution Officer. A date for a hearing has not yet been scheduled. The issues before the Appeals Resolution Officer include the nature and extent of the applicant’s disability, her entitlement to benefits under the Board’s chronic pain disability policy and its psychotraumatic disability policy, whether the applicant refused suitable work that was available with the corporate respondent and her entitlement to loss of earnings benefits subsequent to February 22, 2010.

4In the Application, the applicant alleges that subsequent to February 2010, there were further discussions about a return to work with the corporate respondent. She alleges that she was not offered suitable work and that instead her employment was terminated.

5In submissions on the deferral issue, the applicant’s representative submits that the issues in the Application are different than the issues that will be dealt with by the Appeals Resolution Officer. The representative submits that the Appeals Resolution Officer will not deal with the allegation that the termination of the applicant’s employment was related to her disability and will not be able to order that the applicant be reinstated. The Appeals Resolution Officer will also not be able to award the applicant compensation for injury to dignity, feelings and self-respect and will not make provide and public interest remedies.

6The respondent’s representative submits that deferral is appropriate because there is a significant overlap between the issues raised in the Application and the issues that will be considered by the Appeals Resolution Officer.

CONCLUSIONS

7It is clear that the issues before the Appeals Resolution Officer and the issues raised in the Application are not identical. However, it appears to me that there is a substantial overlapping of issues. The critical issue at the Tribunal will be whether the respondents accommodated the applicant’s disability to the point of undue hardship. Consideration of that issue will necessarily include some determination about the nature and degree of the applicant’s disability. The Appeals Resolution Officer will have to make a similar determination, although the focus there will be on whether the disability is work-related. The WSIB has not considered the termination of the applicant’s employment but could do so if it were to determine that the applicant has ongoing entitlement to benefits.

8It is true that the WSIB does not have the power to order reinstatement or award compensation for injury to dignity, feelings and self-respect. However, the WSIB has remedial powers that this Tribunal does not have, including return to work assistance. The fact that the WSIB and this Tribunal have different remedial powers is true in all cases where there is an ongoing process at the WSIB and is not a reason in itself to not defer.

9For these reasons, I am satisfied that the Tribunal should defer further consideration of the Application.

10A concern that arises in deferring an Application because of an ongoing process at that the WSIB is that the adjudicative process at the WSIB is not a static process. In this case, for example, the Appeals Resolution Officer has already sent the applicant’s claim back to the WSIB Operating level for a review. When the Appeals Resolution Officer does come to a conclusion, it may or may not resolve the workers compensation issues. An appeal lies to the Workplace Safety and Insurance Appeals Tribunal from any decision of the Appeals Resolution Officer. As a result, there is no clear time frame in which the WSIB proceeding will be concluded. Substantial delays can arise that are beyond the control of the parties.

11In my view, the solution to this in a case such as this, where an objection before an Appeals Resolution Officer is pending, is for the Tribunal to defer consideration of the Application until the Appeals Resolution Officer has issued a final decision in respect of the objection. At that time, either party can ask the Tribunal to re-activate the Application. Depending on the circumstances, the Application may then be re-activated or deferred again if there is an ongoing process that means that further deferral is appropriate.

12For these reasons, the Application is deferred until the Appeals Resolution Officer issues a final decision. Rule 14 of the Tribunal’s Rules of Procedure sets out the process for re-activating a deferred Application.

13I am not seized.