HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sahira Bedri
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Bedri v. Workplace Safety and Insurance Board
1This Application was filed on August 23, 2011 under, the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in the provision of services on the basis of disability. The Application alleges that the respondent discriminated against her during the period 2006 to 2011 while she was attempting to return to work in a position that would accommodate her disabilities. The Application includes allegations that the respondent allowed the applicant’s employer to impose working conditions that did not accommodate the applicant‘s disability and that the respondent’s actions and inactions in managing the applicant’s return to work have led to further injuries for the applicant. The Application alleges that the respondent sent the applicant to have an MRI in a facility that did not have an MRI machine that suited patients with claustrophobia, a condition the applicant states she has.
2In her Application the applicant identifies the respondent as the Workers Compensation Board. Information in the Application makes it clear that the respondent is the Workplace Safety and Insurance Board (“WSIB”). The style of cause has been changed accordingly.
3This Interim Decision addresses the issue of deferral. In her Application the applicant indicates that the facts of the Application are part of another proceeding, specifically an “Appeal”. Consequently, on January 16, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that it may be appropriate to defer consideration of the Application pending the resolution of this other legal proceeding. The Notice states that the respondent is not required to file a Response to the Application at this time and that submissions from the parties are due within 30 days. The Tribunal has received submissions from the applicant and the respondent.
4The applicant objects to having her Application deferred. It appears the applicant is contending that the respondent has already denied all her appeals. The applicant also indicates that the respondent did partially allow one appeal when it made a finding that supports a claim for Loss of Earnings. The applicant appears to suggest that under these circumstances there is no reason for her to continue to make further appeals to the respondent.
5The respondent submits that the Application appears to have been as a result of decisions made by the respondent to deny benefits under the Workplace Safety and Insurance Act arising from the applicant’s workplace injury on March 14, 2006. The respondent submits that the applicant has filed numerous appeals in response to the denial of benefits and that these appeals are currently being reviewed and are in the process of being scheduled for a hearing.
ANALYSIS AND DECISION
6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
7It is not entirely clear, based on the submissions before me, the degree to which the allegations raised in the Application overlap with the applicant’s claims before the respondent. However, I am satisfied that there is a significant overlap in that both consider the respondent’s actions and decisions in response to the applicant’s efforts to return to modified work in the period 2006-2011. It is relevant to note that the applicant appears to be seeking similar remedies before the Tribunal and the respondent, namely financial compensation for loss of future earnings, arising, in part, out of the loss of the use of her right and left arms. On the other hand the allegation that the applicant was denied access to an appropriate MRI machine does not appear, based on the limited information before me, to be part of an ongoing claim before the WSIB.
8I am satisfied, based on the information provided by the respondent, that the applicant is currently continuing to pursue her appeal rights before the WSIB. I am further satisfied that this appeal process will involve some consideration of the principal allegations the applicant has included as part of her Application. Under these circumstances I am of the view that it would not be just, fair or expeditious to proceed with the Application at this time. The Application will be deferred until the completion of the applicant’s appeal process before the respondent and any further appeals to the Workplace Safety and Insurance Appeals Tribunal. Deferring the Application in these circumstances ensures that proceedings dealing with the many of the same issues will not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
9I direct the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the applicant’s appeal proceedings.
10I am not seized of this matter.
Dated at Toronto this 15th day of February 2012.
“Signed by”
Eric Whist
Vice-chair