Mateus v. Brock Restoration, 2012 HRTO 940

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Celio Mateus

Applicant

-and-

Brock Restoration and Geoff Grist

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Decision Date: May 11, 2012

Citation: 2012 HRTO 940

Indexed as: Mateus v. Brook Restoration

WRITTEN SUBMISSIONS

Brook Restoration and Geoff Grist, Respondents

Gregory Power, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. Specifically, the applicant alleges that the respondents have threatened him and accused him of lying with respect to his return to work following a workplace injury that occurred on April 22, 2009.

2The applicant notes in his Application that there is no other proceeding going on that deals with the facts of his Application. However, the respondents state that the substance of the applicant’s allegations are being addressed in the Workplace Safety and Insurance Board (“WSIB”) process, which has been involved in the applicant’s return to work from a period pre-dating his Application to this Tribunal.

3The respondents have brought a Request for an Order During Proceedings asking the Tribunal to defer the Application, pending the completion of the ongoing WSIB proceedings. The applicant has not filed a Response to the Request, nor has he filed written submissions that address the issues raised by the respondents in their Request.

decision and analysis

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

5In their submissions on the deferral issue, the respondents note that the WSIB Case Manager sent the applicant a decision letter, dated January 24, 2012 indicating that she believed that the duties described in his Return to Work (“RTW”) Plan were appropriate and within his restrictions. The applicant filed an objection to that determination, which has been referred to the Appeals Branch of the WSIB. The respondents also included a more recent decision letter of the Case Manager, dated March 22, 2012, in which she indicated to the applicant that she believed that the delivery duties assigned to him by the respondent company were not unsuitable or inappropriate.

6The applicant has filed no submissions refuting the above facts or the respondents’ submissions that the WSIB will be dealing with “whether or not the Return to Work Plan is appropriate and whether or not the respondents have met their obligations to offer suitable work.” In the WSIB process, the applicant refutes that the RTW Plan is appropriate. He seems to state that his continued objection to the plan has led to the threats and accusations addressed in his Application to this Tribunal.

7In order to determine the allegations in this Application, the Tribunal will be called upon to determine, as a base fact, whether the RTW plan proposed by the respondents was/is appropriate. If the two proceedings were allowed to proceed concurrently, there is the real risk that the WSIB and/or the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) could make a finding of fact inconsistent from that made by this Tribunal.

8Given that the WSIB proceedings are already underway, the Tribunal is of the view that deferral is the most fair, just and expeditious way of proceeding with this Application. The Tribunal orders the deferral of this Application pending the conclusion of the WSIB/WSIAT proceedings on the applicant’s participation with the return to work process.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WISB/WSIAT process.