HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin McIntosh

Applicant

-and-

Shred-it

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: February 28, 2012

Citation: 2012 HRTO 420

Indexed as: McIntosh v. Shred-it

WRITTEN SUBMISSIONS

Kevin McIntosh, Applicant ) Self-represented

Shred-it, Respondent ) Lauren Bernardi, Counsel

Background

1The applicant filed this Application on May 16, 2011 under Part IV of the 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 The applicant alleges that his driver’s license was revoked on a medical basis due to complications related to a previous workplace injury. The applicant alleges that he had no other reliable or economical form of transportation to get to work. The applicant alleges that he was dismissed as abandoning his employment because of his failure to report for work. The Application indicates that the applicant has a Workplace Safety and Insurance Board (“WSIB”) claim in progress. A copy of a WSIB decision, dated December 7, 2010, was provided along with the Application.

2On May 30, 2011, the Tribunal issued a Notice of Intent to Defer (“Notice”) and invited the parties to file written submissions on or before July 3, 2011 with respect to deferral.

3In response to the Notice, the respondent submits that the applicant is currently appealing a decision of the WSIB to discontinue loss of earnings benefits (“LOE”). The respondent submits that the applicant’s WSIB matter deals with exactly the same facts and circumstances as alleged in the Application and, therefore, the Application should be deferred until the resolution of the WSIB matter.

4The applicant made no submissions with regard to the Notice.

5The Tribunal issued an Interim Order on August 16, 2011, 2011 HRTO 1527, deferring the Application, “pending the conclusion of the applicant’s WSIB appeal”.

6On February 20, 2012, the Applicant filed with the Tribunal a Request for an Order During Proceedings seeking to reactivate the deferred Application. In the Request the applicant states in part, “While there is a decision pending with WSIB in this matter the proceeding should resume due to the fact that any monies paid or overpaid would be repaid by the applicant to the payee…”.

7On February 1, 2012, the respondent filed a response to the Request admitting that the WSIB appeal had been withdrawn by the applicant on November 30, 2011, but objecting to the reactivation on the basis that the Tribunal, “should not allow him to seek redress in another forum with respect to the same facts and circumstances”.

8On February 2, 2012, the applicant wrote to the Tribunal again reiterating that his WSIB claim was one in which the WSIB:

…has yet to make a ruling on. I did not withdraw the case in November, my file was moved back to operations pending the results of an EMG and returned when the results were received….

ANALYSIS

9Rule 14.4 of the Tribunal’s Rules of Procedure provides:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 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 [emphasis added].

10Notwithstanding the respondent’s impression that the applicant’s WSIB claim is concluded, I find that by the applicant’s own admissions it is still an on-going process.

11As the Interim Decision of August 16, 2011, explained, 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. The fact that any duplication of awards by the WSIB and the Tribunal could potentially be reconciled is not a sufficient reason to re-active the Tribunal process. To allow this Application to proceed in these circumstances would thwart the Tribunal’s previous order and would result in concurrent legal proceedings. This would effectively disregard the very basis upon which deferral is considered appropriate. See the recent decision in Norland v. The Corporation of the City of North Bay, 2012 HRTO 200.

12Given that the WSIB process is still proceeding, the applicant is, in essence, now attempting to re-litigate the 2011 Interim Decision. A decision to defer consideration of the Application, “pending the conclusion of the applicant’s WSIB appeal”, has already been made by the Tribunal and will not be reversed.

ORDER

13The Request to re-activate the Application is denied.

14I am not seized.