HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Pillon
Applicant
-and-
Turtle Island Recycling Corp., and Tim Latam
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Pillon v. Turtle Island Recycling Corp.
1The applicant filed this Application on January 7, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondents failed to provide him with appropriate disability-related accommodation and unfairly terminated his employment. The Application notes that there is a Workplace Safety and Insurance Board (“WSIB”) proceeding underway.
2The applicant alleges that he suffered workplace injuries and was placed on modified duties. The applicant alleges that the respondents insisted that, contrary to medical advice, he return to regular duties when the WSIB rescinded its initial decision granting his claim. The applicant alleges that he was dismissed a few days later.
3The respondents filed a Response on November 15, 2011. The respondents deny the allegations and submit that, since the applicant’s WSIB claim was denied, his alleged condition is not covered by the Code. The respondents allege that the applicant was dismissed due to performance concerns.
4The applicant filed a Reply on December 30, 2011. The applicant refutes the performance concerns. The applicant indicates that his appeal of the WSIB’s denial of his claim is still in progress.
5On January 10, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”). The Notice indicated that, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer an Application pending the resolution of another legal proceeding. The Tribunal directed the parties to file submissions as to why consideration of the Application should or should not be deferred.
6The respondents filed submissions on January 20, 2012. The respondents indicate that the Application should be dismissed because the WSIB determined that the applicant did not suffer a workplace injury and denied the applicant’s claim for benefits. In the alternative, the respondents submit that the Application should be deferred until the conclusion of the applicant’s appeal of the WSIB decision.
7The applicant filed very brief submissions on January 23, 2012. The applicant opposes deferral on the basis that the Application and the WSIB claim are separate matters.
DECISION
8The 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.
9Some 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.
10The Tribunal has found it to be appropriate to defer applications where there are on-going 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, Dhunsi v. J.T. Bakeries, 2010 HRTO 540, and Mehrpooya v. Future Shop/ Best Buy Canada, 2011 HRTO 647. In assessing the issue of deferral, the Tribunal in Dhunsi, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability. In Mehrpooya, supra, the Tribunal considered it relevant that there were overlapping issues with respect to damages as both the Application and the WSIB claim sought lost income.
11In the present case, the factual background of the Application clearly overlaps with the WSIB proceeding. Both arise out of the events surrounding the applicant’s alleged workplace injuries and both have, as part of their focus, the applicant’s allegations of failure to accommodate. It also appears that there is some similarity in the remedies sought in the two proceedings. The WSIB process was commenced first and it appears that the applicant also filed his appeal of the WSIB decision prior to filing his Application.
12There appears to be an overlap between the issues that are raised in the Application and the WSIB claim, particularly with respect to the circumstances in relation to the applicant’s alleged injury, the nature of the injury, any medical restrictions and whether there is any connection between the cessation of employment and the WSIB process, may well be relevant to this Application. In these circumstances, I find that it is appropriate to defer the Application.
13As previously noted, the Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts raised in the Application. I see no reasons to depart from this approach given the impending concurrent WSIB appeal. I find that there is significant overlap with respect to the factual allegations before the WSIB and this Application. In the circumstances of this case, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.
ORDER
14The Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings.
15The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which set out the procedure if a party wishes to proceed with an Application pending the conclusion of another proceeding.
16I am not seized of this matter.
Dated at Toronto, this 9th day of February, 2012.
“Signed by”
Ena Chadha
Vice-chair