Dawood v. 770976 Ontario Limited, 2012 HRTO 773

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farah Dawood

Applicant

-and-

770976 Ontario Limited

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: April 17, 2012

Citation: 2012 HRTO 773

Indexed as: Dawood v. 770976 Ontario Limited

WRITTEN SUBMISSIONS

Farah Dawood, Applicant ) J. Schwartz, counsel

770976 Ontario Limited, )

c.o.b. Tim Hortons, Respondent ) No submissions

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She alleged discrimination in employment on the basis of disability. In her Application, she advised that she is also appealing a decision of the Workplace Safety and Insurance Board (WSIB).

2Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an Application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

3On December 14, 2011, the Tribunal sent a Notice of Intent to Defer consideration of the Application, pending resolution of another legal proceeding dealing with the subject matter of the Application, pursuant to Rule 14 of the Tribunal’s Rules of Procedure. It invited submissions from the parties as to why consideration of the Application should or should not be deferred.The parties were to have made any such submission no later than January 13, 2012.

4On January 13, 2012, the applicant made submissions requesting that the matter not be deferred. The Tribunal has not received any submissions from the respondent.

FACTS AND SUBMISSIONS

5The applicant alleged that she was injured at work and suffered an injury to her shoulder, resulting in a requirement for modified duties. She alleged that: the respondent failed to provide her with modified duties for approximately a month and one half, approximately May and June, 2010; the respondent required her to communicate with her store manager in writing, regarding accommodation and regarding other employment related issues and that this was not the required method of communication for other employees; the respondent took no action in response to harassment and an assault by a co-worker who accused her of faking her injury; the respondent refused to provide her with accommodated duties after September 6, 2010.

6She has also indicated that in August, 2010, the WSIB terminated her healthcare benefits, finding that she should be recovered from her injury by August 31, 2010. This is the decision she has identified as being a decision she intends to appeal. In her submissions, the applicant states that she has not yet objected to this decision, due to a delay in obtaining the required medical information.

7She submits that the subject matter of her Application and the matter before the WSIB are different, and that though there may be some overlap, “with the exception of whether she required accommodation, it is unlikely that any of these issues will ever be before the WISB”.

8The applicant also submits that the remedies available to her in the two proceedings are different. She submits that her Application seeks both lost wages and an award for injury to dignity, and that though there may be some overlap with what she seeks from the WSIB and what she seeks at the Tribunal, any overlap could be addressed by the other decision-maker.

9She submits that the WSIB claim is at an “embryonic stage” and that all she has done to date is submit a letter objecting to the decision to discontinue health care benefits. She has not yet requested reconsideration of the decision, nor has she filed an objection form. She states that due to the difficulty in obtaining the required medical evidence, she is not sure when she will be in position to request reconsideration of the August 31, 2010 decision.

Is Deferral Appropriate in these Circumstances?

10The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not in and of itself a reason to defer dealing with an Application.

11In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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.

12Though the WSIB appeal would likely deal with many of the same facts, the only issue for the WSIB’s determination at this point appears to be the applicant’s entitlement to further medical benefits. While findings regarding this issue may touch upon her need for modified work, the matter of accommodation does not appear to be before the WSIB at this point. There are several questions before this Tribunal, including the issue of accommodation. The subject matter of the other proceeding is not the same as the subject matter of this Application. Even if the applicant is successful in her pursuit of further entitlement for medical benefits, it is not clear that the decision will result in a determination regarding the issues before this Tribunal.

13The applicant submits that at some point, the question of lost wages may be before the WSIB for their determination and that there is potentially some overlap in regard to the remedies that may be available in the two fora, although each system would have regard to any remedies or benefits paid by the other system. Should this Application result in an award for lost earnings, this award could be taken into account by the WSIB or the Workplace Safety and Insurance Appeals Tribunal in calculating any benefits otherwise payable.

14The proceeding at the WSIB is not very far advanced at all. Accordingly, there could be significant delay before there is a final decision from the workplace safety and insurance system on the issues that are relevant to the question of remedy in the Application before this Tribunal. Given the very early stage of that proceeding, the concern that concurrent proceedings may result in an inconsistent decision on facts or law does not appear to be a factor which would weigh in favour of deferral in these circumstances.

15In considering the factors of the subject matter of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to defer having regard to the status of each proceeding and the steps that have been taken to pursue them, I find that it is not appropriate to defer consideration of the Application at this time. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.

16I am not seized of this matter.