Leduc v. Loblaw Companies Limited, 2012 HRTO 943

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anita Leduc

Applicant

-and-

Loblaw Companies Limited and Real Canadian Superstore - Chatham

Respondents

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: May 9, 2012

Citation: 2012 HRTO 943

Indexed as : Leduc v. Loblaw Companies Limited

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination with respect to employment on the basis of disability. In an Interim Decision, 2012 HRTO 519, I deferred the Application pending the outcome of proceedings at the Workplace Safety and Insurance Board (“WSIB”) because the subject matter of the Application substantially overlaps with the subject matter involved in the ongoing claims at the WSIB.

2On April 5, 2012, the applicant filed a Request for Reconsideration of the Interim Decision. The applicant’s submissions state that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The “new facts or evidence” referenced in the submissions is an undated report prepared by auditors (“the KPMG report”), which the applicant’s representative only discovered after the Interim Decision. The KPMG report essentially concludes that the processes at the WSIB are lengthy and that they are so complex that bringing finality to a WSIB claim is difficult. The applicant argues that it could be years before the WSIB processes finally determine the applicant’s issues, depending on outcomes of certain steps, and the Tribunal should not have deferred the Application.

3The respondents did not file a response to this Request for Reconsideration.

The Rules of Procedure

4Subsection 45.7 (1) of the Code provides, “Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.”

5Rule 26.1 of the Tribunal’s Rules of Procedure states, “Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.” [my own emphasis]

6Rule 26.7 requires that the Tribunal not grant a Request for Reconsideration unless at least one of several conditions are met. One of the conditions is that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

The Interim Decision is not a “Final Decision”

7There are occasions when an interim decision might constitute a “final decision” as in the case, for example, of an interim decision to remove certain respondents or to not add parties. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. In this case, however, the Interim Decision deferred the Application, and stated that once the process at the WSIB, which was well underway, was no longer continuing, either party can ask the Tribunal to re-activate the Application. It did not dismiss the Application. It can hardly be said to constitute a final decision on any of the issues raised by the Application. Given that the Interim Decision is not a final decision, I cannot reconsider it.

8Furthermore, the KPMG report does not affect the actual proceedings pursued at the WSIB by the applicant. In her Reply (to the Response), which was before me in determining the respondents’ request to defer the Application and which argued that the Application should not be deferred, the applicant states, “The process still has a long way to go.“ The Reply also noted the many variables which make a prediction of when the WSIB process might be completed difficult, including any objections the applicant might make to decisions at the WSIB. The Reply states, “As things are going, it might be two or three years before… a final decision is reached.” Therefore, the essence of the KPMG report’s relevant message, that processes at the WSIB may be very long and involved, was already considered by me at the time I made the Interim Decision, and I see no reason to revisit it on that basis.

The WSIB Process Continues

9Even if the Request to Reconsider were to be construed as a request to re-activate the Application, I am not satisfied that the applicant’s claim at the WSIB is not continuing. The submissions attached to the Request in fact state that the applicant’s claim at the WSIB for Loss of Earnings benefits continues in order to address approximately seven months after she stopped working because she believed that she was no longer receiving modified work which would accommodate her disability. This continuing claim addresses issues which substantially overlap with the issues before the Tribunal.

10The applicant’s submissions ask the Tribunal to identify a point in the WSIB process at which it would consider that the WSIB had reached a final decision on the applicant’s claim, such that the Application might be reactivated. It would be ill advised to attempt to answer this hypothetical question without actual facts that the applicant claims end matters at the WSIB and that the respondents might address in submissions.

Conclusion

11The Request for Reconsideration is dismissed and the Application shall continue to be deferred pending the conclusion of the WSIB proceedings and a request by any party to reactivate the Application.