Pawlikowska v. 1378045 Ontario Inc. (MTC Manufacturing & Technology Centre), 2012 HRTO 792

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Pawlikowska Applicant

• and -

1378045 Ontario Inc. o/a MTC Manufacturing & Technology Centre Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: April 19, 2012 Citation: 2012 HRTO 792 Indexed as: Pawlikowska v. 1378045 Ontario Inc. (MTC Manufacturing & Technology Centre)

WRITTEN SUBMISSIONS

Anna Pawlikowska, Applicant | Monika Tomazewska, Representative 1378045 Ontario Inc. o/a MTC Manufacturing & Technology Centre, Respondent | Ian A. Johncox, Counsel

1The applicant filed an Application on November 8, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging discrimination and reprisal with respect to employment on the basis of disability. The applicant alleges that she was not provided with appropriate modified work and was terminated from her employment for not being able to meet production quota due to her work related disability.

2In her Application, the applicant notes that the facts relied upon in her Application are part of proceedings before the Workplace Safety Insurance Board ("WSIB"). In her narrative, the applicant makes numerous allegations regarding the alleged failure of the WSIB to properly intervene and assist her in obtaining modified work.

3On January 27, 2012, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal's Rules of Procedure. The Tribunal invited the parties to file submissions within 30 days as to why consideration of the Application should or should not be deferred.

4On February 24, 2012, the respondent filed submissions asking the Tribunal to defer the Application. The respondent submits that the applicant is appealing various WSIB rulings, including decisions regarding the cessation of loss of earnings benefits and other awards, the applicant's entitlement to work transition services, and issues with respect to the respondent's obligation to accommodate and suitability of work, all of which were commenced prior to this Application.

5On February 24, 2012, the applicant filed submissions opposing deferral. The applicant submits that the Application relates to the respondent's discriminatory actions as opposed to entitlement to WSIB benefits, the WSIB proceedings will not address her claim for severance pay and reinstatement, and the issues before the Tribunal and WSIB are distinguishable.

6On April 3, 2011, the respondent wrote to the Tribunal and provided copy of correspondence indicating that the applicant is actively pursuing an appeal and seeks to call two witnesses in a WSIB Appeals Branch hearing.

DEFERRAL

7The 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.

8Some 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.

9The 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.

10There are a number of compelling reasons why applications should be deferred when parties are engaged in other legal proceedings that raise related issues. As noted in various Tribunal decisions, it may be unfair for parties to be required to simultaneously present their cases in multiple fora, particularly when the matters overlap; when the same facts or issues are in dispute there is a potential for inconsistent findings, and it is generally preferable for one proceeding to be completed before the other starts. See Klein v. Toronto Zionist Council, 2008 HRTO 189; Tekes v. Markham (Town), 2009 HRTO 1665; and Mahjour v. Joe Singer Shoes, 2010 HRTO 1053 ("Mahjour"). As recently stated in McFarlane v. Farraway, 2012 HRTO 657, "[w]here the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding."

11The Tribunal has also found it to be appropriate to defer applications where there are on-going workplace safety and insurance proceedings relating to the same facts and issues as alleged in the application. See Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour; Dhunsi v. J.T. Bakeries, 2010 HRTO 540, ("Dhunsi"); and Chiuchiarelli v. Dow Motors (Ottawa) Ltd., 2012 HRTO 518. In assessing the issue of deferral, the Tribunal in Dhunsi considered it relevant that workplace safety and insurance proceedings have significant experience in addressing issues of disability. I see no reasons to depart from this line of jurisprudence given the on-going WSIB process in the present case.

12I have reviewed all of the documentation and submissions provided by the parties. Based on these materials, it is clear that there are a number of outstanding WSIB issues and an on-going appeal dealing with the same facts and allegations that are raised in this Application. Specifically, the parties' concerns with respect to the scope of the applicant's medical restrictions, the appropriate modified work, whether the respondent's requirements constituted alleged mistreatment, and the issue of appropriate accommodation all underpin the WSIB and Tribunal claims. The applicant seeks overlapping remedies with respect to loss of income in both processes.

13I find that the matters that comprise the substance of the WSIB claims and appeal are identical to the applicant's human rights allegations. As such, I conclude that there is significant overlap in the subject matter of the Application and that of the outstanding WSIB claims and appeal.

14In the circumstances of this case, I conclude that deferral is the most fair, efficient, and just way of proceeding with this Application. The Tribunal orders the deferral of the Application pending the conclusion of the WSIB process.

15Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

16I am not seized of this matter.

Dated at Toronto, this 19th day of April 2012.

"signed by"____________

Ena Chadha Vice-chair