Chiuchiarelli v. Dow Motors (Ottawa) Ltd., 2012 HRTO 518

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Chiuchiarelli

Applicant

-and-

Dow Motors (Ottawa) Ltd.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: March 13, 2012

Citation: 2012 HRTO 518

Indexed as: Chiuchiarelli v. Dow Motors (Ottawa) Ltd.

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on October 14, 2011 alleging discrimination in employment on the basis of disability and age.

2The applicant suffered a work-related injury on April 2010, following which he was placed on modified work. The applicant indicates that he was eventually laid off in October 2010, despite the fact that it was the busy season in his department. As a result of his lay-off, the applicant underwent a Work Transition Plan with the Workplace Safety and Insurance Board ("WSIB") and was offered an alternate position in June 2011 through the WSIB's work transition program. The applicant alleges that he declined the alternate position because of various concerns regarding the suitability of the job and a potential hostile work environment. The applicant alleges that a respondent manager made discriminatory comments about his age to the WSIB. The applicant alleges that the respondent failed to accommodate his disability and subjected to him discrimination and harassment, including the October 2010 lay-off and a failure to return him to work suitable to his medical restrictions.

3On January 23, 2012, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal's Rules of Procedure. The Tribunal invited the parties to file submissions within 30 days from the date of the letter as to why consideration of the Application should or should not be deferred.

4The applicant filed submissions on February 13, 2012. The respondent did not file any submissions.

DECISION

5The 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.

6Some 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.

7The 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, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540. In Dhunsi, supra, the Tribunal deferred the application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. 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.

8In the present case, the applicant submits that the Application should not be deferred because the subject of the WSIB matter differs from the Tribunal Application. The applicant indicates that the WSIB appeal objects to the closure of his WSIB work transition plan and the quantum of benefits. The applicant submits that the WSIB will not consider the respondent's alleged failure to accommodate and alleged discriminatory lay-off. The applicant argues that, while there is some factual overlap, the rights and remedies sought in the two proceedings are different and the proceedings involve different legal theories.

9Based on the information in the file, it appears that the applicant is actively pursuing a WSIB appeal and that the WSIB process was commenced prior to the human rights Application. There is no doubt that the factual basis for WSIB appeal overlaps with much of the Application. I find that there is also significant overlap with respect to the issues in dispute in the WSIB process and this Application. Both the WSIB matter and this Application appear to be challenging the suitability of the alternate work. Therefore, in determining whether it was appropriate to end the applicant's work transition plan, the WSIB appeal will evaluate and address the the alternate work offered by the respondent and the nature and validity of the applicant's concerns regarding suitability or lack thereof. As such, it appears that the human rights allegations of failure to accommodate and failure to provide alternate work within the applicant's medical restrictions are likely be considered in the WSIB proceeding. In addition, it appears that correspondence from the WSIB process may form the basis of one of the allegations raised in this Application and, as such, it may be best for the WSIB appeal to first address any evidentiary disputes about that correspondence arising out of its process. Lastly, it appears that some of the financial compensation sought as a remedy to this Application may also be part of the WSIB claim.

10As 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 do not accept the applicant's submission that this case is similar to Vey v. Reliable Wood Shavings, 2010 HRTO 1851. Unlike Vey, supra, I find that there is substantial overlap with respect to the factual allegations and the legal issues before the WSIB and this Application. This case is also distinguishable from Vey because in that case the parties agreed not to defer. In the circumstances of this case, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.

11The Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings.

12The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the WSIB proceedings.

13I am not seized.