Hussey v. Crossby Dewar Inc., 2012 HRTO 618

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cecil Hussey

Applicant

-and-

Crossby Dewar Inc. and Workplace Safety and Insurance Board

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: March 23, 2012

Citation: 2012 HRTO 618

Indexed as: Hussey v. Crossby Dewar Inc.

WRITTEN SUBMISSIONS

Cecil Hussey, Applicant ) Michael Farago, Counsel

Crossby Dewar Inc., Respondent ) Carissa Tanzola, Counsel

Workplace Safety and Insurance Board, ) Gurjit Brar, Counsel

Respondent )

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 December 1, 2011 alleging discrimination with respect to employment on the basis of disability. The Application is filed against the applicant’s employer, the corporate respondent, and the Workplace Safety and Insurance Board (“WSIB”).

2The applicant suffered a work-related injury in March 2005, following which he was placed on modified work. In October 2005, the applicant was laid off as a result of work shortages. In September 2011, the applicant was returned to work in an accommodated position as a scaffold technician as part of the WSIB’s work reintegration program and the applicant worked until about the end of November 2011. The applicant alleges that the corporate respondent failed to properly accommodate him during the work reintegration program. The applicant alleges that the WSIB failed to provide him with appropriate loss of earnings benefits.

3The materials filed by the parties indicate that on January 20, 2012, a Case Manager of the WSIB determined that the accommodated job of scaffold technician was a suitable position and that the applicant was only entitled to partial loss of earnings benefits.

4The WSIB filed a Response on February 13, 2012 and the corporate respondent filed a Response on February 17, 2012. Both respondents have requested that the Application be dismissed. In the alternative, both respondents submit that the Application should be deferred pending the outcome of the WSIB proceedings.

5The WSIB alleges that, to the extent that the Application challenges the proper calculation of his benefits, the Application should be dismissed as pursuant to the Tribunal’s reasoning in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 and/or for failing to establish a prima facie case.

6The corporate respondent alleges that the Application should be dismissed, pursuant to section 45.1 of the Code, as appropriately dealt with by the WSIB. The corporate respondent also requests that the Tribunal order the applicant to seek and produce a complete copy of his WSIB file pertaining to his 2005 injury and subsequent accommodation.

7The applicant filed a Reply and submissions in response to the respondents’ requests on March 7, 2012. The applicant objects to the respondents’ requests to dismiss. The applicant alleges that the WSIB, in deciding that the modified work offered by the corporate respondent was suitable, contributed to the corporate respondent’s discriminatory behaviour. The applicant agrees, in the alternative, that the Application be deferred.

PRODUCTION

8While the applicant does not object to his WSIB claim file being made part of the Tribunal’s record, I note that requests for production are normally not addressed until the parties have complied with their disclosure obligations under the Tribunal’s Rules of Procedure (“Rules”). Rule 16 contemplates that parties will exchange arguably relevant documents 21 days after the Notice of Hearing is sent out by the Tribunal, which has not yet occurred in this case. The documents sought by the corporate respondent may potentially be part of the WSIB’s arguably relevant disclosure. Consequently, the corporate respondent’s request for production of the applicant’s WSIB is denied because the request is premature.

DEFERRAL

9The 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.

10Some 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.

11The 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.

12In the present case, the materials indicate that the corporate respondent has appealed the WSIB’s determination of the applicant’s permanent disability. It also appears that the applicant has appealed the finding of the WSIB work transition specialist that the applicant is employable. It is unclear whether or not the applicant has appealed the Case Manager’s decision that the accommodated job as scaffold technician was a suitable position.

13Based on the information in the file, it appears that there are currently two, and possibly a third, WSIB appeal underway. The WSIB process was commenced prior to the human rights Application. The propriety of the WSIB process forms part of the events alleged to be discriminatory in the 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 matters and this Application. The WSIB matters and this Application pertain to the suitability of the alternate position. In determining whether the scaffold technician job was appropriate, the WSIB appeal will likely evaluate and address the alternate work offered by the corporate respondent and the nature and validity of the applicant’s concerns regarding the suitability of the job. As such, it appears that the human rights allegations of failure to accommodate and failure to provide adequate benefits are live issues as part of the WSIB proceedings. It also appears that the financial compensation sought as a remedy to this Application is directly part of the WSIB claim.

14As 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 substantial overlap with respect to the factual allegations and the legal issues before the WSIB and this Application.

15In the circumstances of this case, I conclude that deferral is the most fair and just way of proceeding with this Application. I find that it would be more efficient to defer the Tribunal process until the WSIB appeals are concluded. I determine that it would be best to address the respondents’ preliminary and jurisdictional issues after the completion of the disputed WSIB process.

16The Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings. The 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.

17I am not seized.