Introduction

1This Interim Decision addresses whether the Tribunal should defer further consideration of the Application pending the result of a proceeding at the Workplace Safety and Insurance Board (“WSIB”).

2By Application filed on April 29, 2013, the applicant alleges that the respondent discriminated against him because of disability, race, colour, ancestry, ethnic origin and place of origin. Specifically, he claims that the respondent discriminated against him by failing to provide reasonable accommodations for his disability by requiring him to transfer from his pre-injury position of shipper to the position of assembler/tester. He also claims that the respondent failed to accommodate him and transferred him to the assembler/tester position because of his race and the other race-related grounds listed above.

3The applicant noted in his Application that he was in the process of requesting reconsideration of a WSIB decision dated March 12, 2013. In that decision, a WSIB case manager found that the applicant’s pre-injury position exceeded his functional limitations and was no longer available in his workplace. The case manager also found that the assembler/tester position was suitable and met the applicant’s functional limitations. By letter dated April 19, 2013, the WSIB informed the respondent of the applicant’s appeal and listed the issue in dispute as the denial of loss of earnings benefits due to the availability of suitable modified work.

4On May 24, 2013, the Tribunal issued a Notice of Intent to Defer consideration of the Application (“Notice”) pending the outcome of the WSIB proceeding and sought submissions from the parties on the issue.

5The applicant did not file submissions in response to the Notice.

6The respondent submits that the Application should be deferred because most of the allegations raised in the Application form part of the WSIB appeal. The respondent submits that the crux of the WSIB appeal is whether the respondent provided the applicant with suitable work within his functional limitations. It notes that, when determining whether an employer has offered suitable work, the WSIB must consider whether the employer has accommodated the employee up to the point of undue hardship. Therefore, the respondent submits that the issues in the Application and WSIB appeal are in essence the same. It also notes that the remedies sought in the Application and the WSIB appeal overlap as the applicant is seeking compensation for lost wages in the Application and loss of earnings benefits from the WSIB.

Analysis

7The usual considerations when determining if an Application should be deferred were stated in Calabria v. DTZ Barnicke, 2008 HRTO 411:

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. Some of the factors that may be 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.

8In my view, the issues before the Tribunal and the WSIB are substantially the same. Although the WSIB proceeding will not deal with the applicant’s allegations of discrimination because of race-related grounds, the Application centers on the respondent’s failure to accommodate the applicant in the shipper position and his transfer to the assembler/tester position. The applicant alleges that this failure to accommodate him constituted discrimination because of disability and race-related grounds. The issues in both proceedings center on whether the respondent offered the applicant suitable work and whether it took appropriate steps to accommodate his disability up to the point of undue hardship.

9In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the proceeding underway at the WSIB is complete. The Tribunal has held in several cases that a proceeding at the WSIB will be considered complete when the WSIB has issued a final decision on the issues relevant to the issues in the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. See, for example, Seecharran v. Keybrand Foods Inc., 2012 HRTO 252 and Grabnor v. AGO Industries, 2012 HRTO 1323.

10In this case, I find it is appropriate for the Tribunal to defer consideration of the Application until the Appeals Resolution Officer has issued a final decision in the current proceeding. At that time, either party can ask the Tribunal to re-activate the Application. Depending on the circumstances, the Application may then be re-activated or deferred again if there is an ongoing process that means that further deferral is appropriate.

[11] It should be noted that, where 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).

[12] I am not seized of this matter.

Dated at Toronto, this 4th day of July, 2013.

“Signed by”

Jo-Anne Pickel

Vice-chair

Sujnarine Samaroo v. Victaulic Company of Canada Limited, 2013 HRTO 1165

Case Summary

Introduction

Analysis

[11] It should be noted that, where 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).

[12] I am not seized of this matter.