HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Khanh Truong

Applicant

-and-

Megaform Automotive Inc.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 18, 2012

Citation: 2012 HRTO 988

Indexed as: Truong v. Megaform Automotive Inc.

WRITTEN SUBMISSIONS

Khanh Troung, Applicant ) Stefano Oliverio, Representative

Introduction

1This Application was filed on January 9, 2012 under section 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. The applicant alleges that the respondent failed to appropriately accommodate his disability, subjected him to unfair discipline and discriminatorily dismissed his employment because of his disability concerns.

2The respondent filed a Response on February 8, 2012, wherein it requests that the Tribunal dismiss the Application under section 45.1 of the Code on the basis that the Workplace Safety and Insurance Board (“WSIB”) appropriately dealt with the substance of the Application. The respondent alleges that the WSIB determined that the applicant did not require modified duties and that the applicant was not re-injured. The respondent submits that the Application should be dismissed because the WSIB has established that the applicant is not disabled.

3On February 22, 2012, the applicant filed a Reply and submissions opposing the request to dismiss. The applicant submits that no formal decision has been made by the WSIB with respect to the respondent’s obligations to provide accommodation short of undue hardship and the alleged discriminatory dismissal.

Background

4The applicant alleges that he suffered a workplace injury in June 2011. He alleges that he was subsequently required to perform work contrary to his medical restrictions and that, on or about January 3, 2012, he communicated his concerns to the respondent. The applicant claims that on January 4, 2012, only after he raised concerns that the duties were aggravating his injury, the respondent issued him a letter of reprimand. The applicant alleges that the respondent unfairly treated his concerns as insubordination and then terminated his employment the next day. The applicant alleges that he was discriminatorily dismissed for refusing to perform work that he believed was not suitable for his condition.

5On December 13, 2011, a WSIB case manager determined that the applicant was entitled to loss of earnings for a period of time in June-July 2011 following the aggravation of his pre-existing lower back problems. On January 24, 2012, a WSIB eligibility claims adjudicator determined that the applicant did not experience an injury recurrence on January 5, 2012. The applicant has until the summer of 2012 to appeal either decision.

Request to Dismiss

6The request to dismiss the Application on the grounds that the subject-matter of the Application has been appropriately dealt with in another proceeding is denied.

7Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

8In Frankson v. Workplace Safety and Insurance Board, 2011 HRTO 2107, the Tribunal described the WIB process. The Tribunal noted that an initial decision is made by an “eligibility adjudicator”, following which a “case manager” is assigned the file to make determinations about the worker’s benefits. The adjudicator or case manager may reconsider their decision based on new information and, if the decision remains unchanged, the file will be referred to the WSIB’s Appeals Branch. Only after the matter has progressed through the Appeals Branch can a worker appeal a decision to the Workplace Safety and Insurance Tribunal.

9In the circumstances of this case, I am not satisfied that the applicant’s Application come within the scope of section 45.1 of the Code.

10It does not appear that the WSIB has rendered any decisions with respect to whether or not the respondent infringed the applicant’s Code-protected rights by allegedly failing to accommodate his disability to the point of undue hardship. The WSIB process is still in its early stages.

11Based on the information provided by the parties, it appears that the WSIB claims manager made a single determination with respect to temporary loss of earnings and the eligibility adjudicator has provided preliminarily consideration of whether an injury recurrence occurred. These determinations do not appear to address the various discrimination issues raised by the Application. The applicant alleges that the respondent discriminated against him when it treated him unfairly by issuing the letter of warning, considered his reluctance to perform certain tasks as insubordination and dismissed him without proper consideration of his disability and accommodation options. In my view, it cannot be said at this early stage that the proceeding at the WSIB has appropriately dealt with the substance of the Application.

12Accordingly, at this time, the respondent’s request for dismissal of the Application is denied.

Deferral

13The 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.

14Some 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.

15The Tribunal has found it to be appropriate to defer applications where there are on-going WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540.

16Accordingly, the Tribunal orders that within 21 days of the date of this Interim Decision, the parties are required to file written submissions with respect to the issue of deferral.

17The Tribunal will consider the parties’ submissions, and may determine any of the preliminary issues based on the parties’ written submissions, and/or may schedule future steps.

18I am not seized of this matter.