Gitangeli Goberdhan v. Aditya Birla Minacs Worldwide Inc., 2012 HRTO 848

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gitangeli Goberdhan Applicant

-and-

Aditya Birla Minacs Worldwide Inc. Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: April 25, 2012

Citation: 2012 HRTO 848

Indexed as: Goberdhan v. Aditya Birla Minacs Worldwide Inc.

1In this Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant, who was employed by the respondent during the relevant period as a customer service representative, alleges that the respondent discriminated against her on the basis of disability with respect to employment. In particular, the applicant alleges that the respondent infringed her rights under the Code by not accommodating her disability-related need to have cycles of two hours on the phone and two hours off, commencing in or around October 2011. The applicant alleges that her need for accommodation arose out of her inability to perform “stress-related” activities for more than two hours at a time.

REQUEST TO DEFER

2In its Response to the Application, the respondent requests that the Tribunal defer consideration of the Application pending the final disposition of the applicant’s appeal of a Workplace Safety and Insurance Board (“WSIB”) decision dated June 2, 2011. In that decision, the WSIB denied the applicant’s claim for Loss of Earnings benefits for a psychotraumatic disability resulting from the effects of work-related mental stress. In doing so, the WSIB emphasized that whereas benefits may be available for stress that develops as a result of a sudden and unexpected traumatic event arising out of and in the course of employment, they are not available to compensate for lost time due to stress that develops as a result of an employer’s actions or decisions. Since the applicant did not identify a specific sudden or unexpected traumatic event in the workplace that had caused her stress (defined to include, among other things, being the object of physical violence or threats of violence; being the object of harassment that includes physical violence or threats of violence; or being the object of harassment that includes being placed in life threatening situation), the WSIB denied the applicant’s claim for traumatic mental stress and the resulting lost time.

3The applicant has not responded to the respondent’s Request to Defer.

DECISION

4The 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 seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

5In the circumstances of this case, I am not persuaded that deferral of the Application is appropriate. The issue in the Application is whether the respondent failed and/or refused to accommodate the applicant’s alleged disability-related need to perform “stress-related” activities for no more than two hours at a time. By contrast, the applicant’s disability-related needs and the respondent’s alleged failure to meet them do not appear to be issues before the WSIB. Rather, on the basis of the materials before me, it appears that the issue before the WSIB is the cause of the applicant’s alleged traumatic mental stress (i.e. whether it was due to a sudden and unexpected traumatic event as opposed to the employer’s actions or decisions). The cause of the applicant’s alleged mental stress has limited, if any, relevance to the issues to be determined under the Code. This is because, under the Code, employers have a duty to accommodate employees’ disability-related needs, up to the point of undue hardship, whatever the cause of the disability.

6In the circumstances, I am not persuaded that the facts and issues raised by this Application overlap sufficiently with those in the proceeding before the WSIB to warrant deferral of the Application. The respondent’s Request to Defer is denied accordingly.