HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Walsh
Applicant
-and-
The Barclay Construction Group Inc.
Respondent
-and-
Laborers’ International Union of North America, Local 837
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Walsh v. The Barclay Construction Group Inc.
1The applicant filed this Application on January 20, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment on the basis of disability. The Application narrative notes that the applicant has an Workplace Safety and Insurance Board (“WSIB”) appeal underway regarding his condition.
2The Respondent filed a Response on March 5, 2012, wherein the respondent asks that the Application either be dismissed pursuant to section 45.1 of the Code or deferred pending the completion of the WSIB process.
3The applicant filed a Reply on March 29, 2012. The applicant opposes the respondent’s request to dismiss and/or defer. The applicant indicates that the Application and WSIB matter involve different issues.
4By way of Interim Decision 2012 HRTO 760, the Tribunal granted the applicant’s union, Laborers’ International Union of North America, Local 837 (“union”), intervenor status in this matter. The Tribunal provided the union with the opportunity to file submissions in response to the request to dismiss and/or defer; however, the union did not file submissions.
DEFERRAL
5The 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.
6Some 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.
7The 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.
8There 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”).
9As 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.”
10The 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, supra; Dhunsi v. J.T. Bakeries, 2010 HRTO 540 (“Dhunsi”); and Chiuchiarelli v. Dow Motors (Ottawa) Ltd., 2012 HRTO 518.
11In 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. 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. The WSIB claim was commenced prior to the Application and an appeal is outstanding. The WSIB matters raise concerns with respect to the degree of impairment, proof of accident, the scope of diagnosis/medical restrictions and the respondent’s knowledge of the applicant’s restrictions. Based on the parties’ materials, it is apparent that the issues raised in the WSIB matters underpin the Application. It also appears that the applicant seeks overlapping remedies with respect to loss of income in both processes.
13I find that the facts and issues 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. In light of the decision to defer the Application, it is not necessary at this stage to deal with the respondent’s request to dismiss under section 45.1 of the Code.
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 14th day of May, 2012.
“Signed by”
Ena Chadha
Vice-chair