HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anita Leduc
Applicant
- and-
Loblaw Companies Limited and Real Canadian Superstore - Chatham
Respondents
INTERIM decision
Adjudicator: Mary Truemner
Indexed as: Leduc v. Loblaw Companies Limited
wRITTEN SUBMISSIONS
Anita Leduc, Applicant ) Christine Lundy, Representative
Loblaw Companies Limited and )
Real Canadian Superstore, Respondents ) John O’Reilly, Counsel
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on November 29, 2011. The Application alleges discrimination with respect to employment based on disability, and describes what appears to be an ongoing effort involving the Workplace Safety and Insurance Board (WSIB) to have modifications made to the applicant’s job. The Application states that the facts of the Application are part of another proceeding that is still in progress, indicating the proceedings at the WSIB. The purpose of this Interim Decision is to address the respondents’ request that the Application be dismissed because another proceeding has appropriately dealt with the substance of the Application, and their request that the Application be deferred pending the outcome of the proceedings at the WSIB. The applicant has provided submissions opposing the requests to dismiss and defer the Application.
Background
2The applicant reported a work-related arm injury in 2006 and filed a claim with the WSIB. The applicant alleges that further health issues arose subsequent to her injury and contributed to her need for accommodation. Between 2006 and 2011, the employer engaged with the WSIB to provide modifications and to return the applicant to work after various leaves related to the applicant’s health. In January 2011, the applicant was working full time, but by February 15, 2011, she claimed that she was unable to work because of wrist pain. She has not worked since.
3On April 12, 2011, the WSIB denied the applicant’s request for loss of earnings benefits. The Case Manager who made the decision found that the respondents had offered the applicant suitable work. The applicant states that she filed on July 29, 2011 an objection to the Case Manager’s decision, and, in September 2011, she filed an application for a non-economic loss award to the WSIB. On October 11, 2011, the applicant sent the WSIB medical documentation for the purposes of the continuing claim for loss of earnings benefits and for the non-economic loss award. It appears that the WSIB process is not complete, and the applicant’s request for loss of earnings benefits on the basis that the respondent has not provided modified work continues.
Request to Dismiss pursuant to s.45.1
4Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
5Even if the WSIB matters deal with the allegations in the Application, based on the plain and ordinary meaning of the words in s.45.1 of the Code, I cannot find that the WSIB decision of April 12, 2011 “has appropriately dealt with” the substance of the Application as argued by the respondents. At this point in time, the proceedings are ongoing given the applicant’s objection that is still pending at the WSIB. The WSIB has not yet dealt with the substance of the Application. It therefore cannot be said to have appropriately dealt with the Application. See Cull v. Alliance Forming, 2011 HRTO 383; Wright v. Catholic Children’s Aid Society of Toronto, 2010 HRTO 125; and Hadley v JACS Cartage, 2010 HRTO 226.
6It appears that the adjudication process at the WSIB is still underway. The request to dismiss the Application on the grounds that the subject-matter of the Application has been appropriately dealt with in another proceeding is denied.
Request to Defer
7Pursuant to the Tribunal’s Rules of Procedure, the 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).
8In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal explained some of the considerations about when it may be appropriate to defer an Application:
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. 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 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.
9The critical issue at the Tribunal will be whether the respondents accommodated the applicant’s disability to the point of undue hardship. The subject matter of the Application substantially overlaps with the subject matter involved in the claims at the WSIB.
10The remedies sought in both the Tribunal and the WSIB proceedings overlap given the focus in both on loss of income and accommodating disability. It is true that the WSIB does not have the same power as the Tribunal to make some awards, for example, compensation for injury to dignity, feelings and self-respect. However, the fact that the WSIB and this Tribunal do not have identical remedial powers is not a reason in itself to not defer. See Seecharran v. Keybrand Foods Inc., 2012 HRTO 252.
11The process at the WSIB is well underway, and I am satisfied that the Tribunal should defer further consideration of the Application pending the outcome of the WSIB matter. Either party can ask the Tribunal to re-activate the Application when it appears to the applicant or respondents that the WSIB proceedings are no longer continuing. Rule 14 of the Tribunal’s Rules of Procedure sets out the process for re-activating a deferred Application. Depending on the circumstances, the Application may then be re-activated or deferred again if there is an ongoing process that means that further deferral is appropriate.
12The request to defer is granted.
13I am not seized.
Dated at Toronto, this 13th day of March, 2012.
“signed by”
Mary Truemner
Vice-chair```