Ikrar Mughal v. 2138894 Ontario Inc. o/a Metro Protective Services, 2012 HRTO 425

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ikrar Mughal

Applicant

• and-

2138894 Ontario Inc. o/a Metro Protective

Services

Respondents

INTERIM decision

Adjudicator: Douglas Sanderson

Date: February 28, 2012

Citation: 2012 HRTO 425

Indexed as: Mughal v. 2138894 Ontario Inc.

INTRODUCTION

1The applicant filed an Application with the Tribunal pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment because of disability. The purpose of this Interim Decision is to address the respondent’s request that the Tribunal dismiss the Application because another proceeding has appropriately dealt with the substance of the Application.

BACKGROUND

2The applicant suffered a workplace injury that required medical treatment and absence from work. He received benefits from the Workplace Safety and Insurance Board (“WSIB”). The respondent offered him modified work that the WSIB return to work specialist agreed was suitable and, when the applicant declined this offer, the respondent took the position that the applicant resigned his employment. The applicant filed a claim under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”) against the respondent seeking termination and vacation pay. An employment standards officer conducted an investigation and concluded that the respondent offered the applicant his pre-injury position with modifications to accommodate his restrictions. The officer effectively accepted the respondent’s position that the applicant resigned and found no violation of the ESA. The applicant filed an Application for Review of the officer’s decision to the Ontario Labour Relations Board (“OLRB”) on August 31, 2011.

3The respondent filed a Response and requested the Tribunal dismiss the Application because another proceeding had appropriately dealt with the substance of the Application, pursuant to section 45.1 of the Code. Specifically, the respondent argued that the WSIB determined the respondent offered the applicant modified work to accommodate him and that he was able to return to work and the employment standards officers found that the applicant resigned his employment. In his Reply, the applicant submits that neither the decision making process of the WSIB return to work specialist nor the employment standards officer’s investigation can be considered a “proceeding” and, in any event, neither decision maker dealt with the question of accommodation under the Code as described in the Tribunal’s jurisprudence. The applicant concedes that the review before the OLRB is a proceeding, but notes that the applicant does not know when the case will be heard. The applicant also submits that the OLRB will only determine whether the applicant is entitled to termination pay, not the human rights issues raised by his Application. In the alternative, the applicant submits the Tribunal should defer the Application until the OLRB completes the review of the employment standards officer’s decision.

DECISION

4The 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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 Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170,.

6The applicant is correct that the OLRB’s review will determine whether the application was entitled to termination pay. However, to reach a decision on this issue the OLRB shall also have to determine whether the respondent offered the applicant accommodation and whether the applicant withdrew from work, as the employment standard’s officer concluded. As the Tribunal noted in Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448, the extent to which an employment standards officer may have the authority to deal with alleged human rights issues has not been established. The ESA does not expressly incorporate the Code or give decision makers authority to resolve human rights issues. However, in Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14, the Supreme Court of Canada found that statutory tribunals that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them. The OLRB is clearly such a tribunal. Accordingly, the OLRB is empowered to deal with accommodation issues under the Code, which in this case are intertwined with the termination of the applicant’s employment. As a result, it seems likely that the OLRB will deal with issues that overlap significantly with the issues arising in this Application, which would required the parties to deal with the same issues concurrently and raises the possibility of inconsistent results. In these circumstances, the appropriate course of action is to defer the Application until the OLRB review is completed.

7If the applicant intends to proceed with this Application following the conclusion of the ESA proceeding, the applicant is directed to contact the Registrar no later than 60 days after the conclusion of the ESA proceeding to make a request to proceed, and shall indicate the date the ESA proceeding concluded and include a copy of any decision or order in the ESA proceeding (see Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure).

8I am not seized of this matter