Human Rights Tribunal of Ontario
Between:
Heather Blackier Applicant
- and -
Zellers Inc. and Sherry Young Respondents
Interim Decision
Adjudicator: Ena Chadha Date: January 11, 2012 Citation: 2012 HRTO 59 Indexed as: Blackier v. Zellers
1The applicant filed this Application on January 11, 2011, under section 34 of the Ontario 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.
2The applicant alleges that she was forced to resign her employment because of the respondent employer’s unwillingness to accommodate her disability and address her worker’s compensation issues. The applicant alleges that the respondent employer insisted that she return to a position that was not suitable to her medically prescribed physical restrictions. The Application notes that there is Workplace Safety and Insurance Board (“WSIB”) proceeding underway.
3The respondents filed a Response on October 13, 2011 denying the allegations of discrimination. The respondents request that the Tribunal defer the Application because the facts of the Application are part of WSIB proceeding.
4The applicant filed a Reply on December 13, 2011 opposing the respondents’ request to defer. The applicant asserts that the Application should not be deferred because the applicant’s WSIB claim does not address the failure to accommodate circumstances leading to the applicant’s resignation.
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 applicant submits the Tribunal should not defer the Application because the alleged disability discrimination, specifically refusal to accommodate the applicant’s physical needs and constructive dismissal, are not the subject of the applicant’s WSIB appeal. The applicant submits that the loss of earning (“LOE”) benefits at issue in the WSIB matter relate to while the applicant was employed, whereas the current Application also includes the issues of the applicant’s loss of employment as a result of constructive dismissal. The respondents submit that the Tribunal should defer this Application because the parties are currently involved in the WSIB process dealing with the same issues as the Application.
8The Tribunal has found it to be appropriate to defer applications where there are ongoing 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.
9Based on the information in the file, it appears that the applicant is currently pursuing a WSIB appeal and that the WSIB process was commenced prior to the human rights Application. The applicant filed objection to the WSIB denial of LOE loss of benefits in the summer of 2010 and the matter has now been referred to the WSIB Appeals Branch. It appears that the issues in appeal are 1) the suitability of the job offered by the respondent employer, and 2) the cessation of LOE benefits from approximately one year prior to the applicant’s resignation. It appears that the applicant is challenging the WSIB’s determination that she was able to return to work and the nature of functional abilities.
10There is no doubt that the factual background of the Application is entirely the same as the WSIB matter. Further, it appears that the human rights allegations of failure to accommodate and to comply with the applicant’s medically prescribed restrictions are the same concerns considered in the WSIB claim. The WSIB appeal specifically raises the issue of the scope of the applicant’s medical restrictions, ergonomic alternate options for the applicant’s position, and whether the respondent employer provided suitable modified work, and, therefore, will examine the same questions put into issue in this Application.
11As 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 find that there is significant overlap with respect to the factual allegations and the legal issues before the WSIB and this Application. In the circumstances of this case, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.
12The Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings.
13The 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.
14I am not seized of this matter.
Dated at Toronto, this 11th day of January, 2012
”signed by”____________
Ena Chadha Vice-chair