HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dennis Caissie
Applicant
- and-
Reko Automation and Machine Tool and Joseph Sirianni
Respondents
INTERIM decision
Adjudicator: Brian Cook
Indexed as: Caissie v. Reko Automation and Machine Tool
wRITTEN SUBMISSIONS
Dennis Caissie, Applicant ) Christine Lundy,
) Para-Legal
Reko Automation and Machine Tool and ) Jean Leslie Marentette,
Joseph Sirianni, Respondents ) Counsel
Introduction
1This Interim Decision considers whether further processing of the Application should be deferred because of an ongoing claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. Chapter 16, Schedule A (“WSIA”).
2The Application was filed on November 14, 2011, and alleges discrimination in employment because of disability. The Application indicated that there is an ongoing claim for benefits at the Workplace Safety and Insurance Board (“WSIB”). The Tribunal issued a Notice of Intent to Defer on January 5, 2012. The applicant filed submissions opposing deferral. The respondents filed submissions supporting deferral.
Background
3The applicant suffered a work-related knee injury on August 30, 2010. He returned to work after a few days and was assigned modified work duties. He was laid off in November 2010 and was granted loss of earnings by the WSIB. He returned to work in April 2011. There was an issue about the hours that the applicant was capable of working. He felt that he was capable of only part-time hours but the WSIB determined he was capable of working full-time hours. The applicant was laid off again on October 5, 2011 and had not returned to work with the corporate respondent at the time he filed the Application.
4In a decision dated August 24, 2011, the WSIB Claims Manager determined that the applicant fully recovered from the effects of the work-related injury as of August 28, 2011 and that any ongoing disability beyond that was related to a pre-existing degenerative knee condition and not due to the work-related injury. The Claims Manager also determined that the applicant was not entitled to benefits for a right hip and low back condition on the grounds that any such condition did not result from the work-related knee condition. Finally, the Claims Manager determined that the applicant was not entitled to additional loss of earnings benefits for the period from May 13 to June 13, 2011, during which the applicant worked only part-time hours.
5On October 18, 2011, the applicant filed an objection to the Claims Manager’s decision with the WSIB Appeals Branch. The Application was filed with this Tribunal on November 14, 2011.
6In submissions in response to the Notice of Intent to Defer, the applicant’s representative indicates that the objection to the Claims Manager’s decision has not yet been dealt with. He anticipates that it may not be dealt with for up to eighteen months. Further delay would result if the result of the objection is appealed to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).
7The applicant submits that while there may be some overlap between the issues raised in the Application and the ongoing claim for benefits at the WSIB, the Application should not be deferred because there are issues raised in the Application that will not be dealt with under the WSIA and because of the significant delay that could result if the Application were deferred.
8The respondents submit that there is a substantial overlap between the issues raised in the Application and the issues raised in the objection the applicant has filed with the WSIB, and support deferral on that basis.
Conclusions and Analysis
9In the objection that is before the WSIB Appeals Branch, the applicant seeks loss of earnings benefits. The WSIB Case Manager concluded that the applicant fully recovered from the effects of his work-related injury and that any disability that the applicant has is related either to a pre-existing and non-compensable condition or to other factors that are not work-related. In the WSIB objection, the applicant seeks to establish that he has an ongoing work-related knee condition and that this condition has caused secondary injury to his right hip and low back. He also seeks to establish that work that was offered to him in the period from May 13, 2011 to June 13, 2011 was not suitable. He also seeks entitlement to loss of earnings subsequent to October 2011 when he was laid off due to a lack of work.
10Factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal include 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 for example, 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. However, the Tribunal does not automatically defer an application only because there is an ongoing proceeding at the WSIB.
12In the present case, the proceedings under way at the WSIB relate to the same facts and issues as alleged in the Application. The applicant is correct that the WSIB proceeding may not resolve all of the issues raised in the Application. For example, if the conclusion of the WSIB is that the applicant does not have a work-related disability, this will not resolve the issue of whether the respondent accommodated any non-work-related disability the applicant may have. The applicant also notes that it is not clear how long the proceedings underway at the WSIB will take and it is possible that it could be quite some time before they are concluded. These are factors that suggest that deferral may not be appropriate.
13However, it is also possible that the WSIB will address accommodation issues if it finds that the applicant does have an ongoing work-related injury. It is also likely that the proceeding at the WSIB will result in further evidence and understanding about the nature of the applicant’s disabilities. In addition, deferral means that the parties will not be involved in two proceedings arising out of the same factual history and avoids the potential of inconsistent findings on the same facts. These are factors that support deferral.
14In my view, in this case, the factors that favour deferral outweigh those that do not favour deferral. I therefore find that it is appropriate for the Tribunal to defer further consideration of the Application until the proceedings at the WSIB have concluded. When those proceedings have concluded or if the applicant feels that it is clear that the proceeding at the WSIB are not in fact going to address the issues raised in the Application, he may apply to the Tribunal to have the Application reactivated. The process for doing this is set out in Rule 14 of the Tribunal’s Rules of Procedure.
15I am not seized.
Dated at Toronto, this 17th day of April, 2012.
”signed by”__________
Brian Cook
Vice-chair