Mehdi Yousefi v. Eugene Collision Limited, 2013 HRTO 1180

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mehdi Yousefi Applicant

-and-

Eugene Collision Limited Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: July 5, 2013 Citation: 2013 HRTO 1180 Indexed as: Yousefi v. Eugene Collision Limited

WRITTEN SUBMISSIONS

Mehdi Yousefi, Applicant John Bartolomeo, Counsel

Eugene Collision Limited, Respondent Self-represented

1This Interim Decision addresses the issue of whether the Application should be deferred pending the conclusion of proceedings underway at the Workplace Safety and Insurance Board (WSIB).

2The Application was filed 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 because of disability. Upon review of the Application, the Tribunal noted that the applicant had filed a claim for benefits with the WSIB arising out of the same facts as the facts that underlie the Application. The Tribunal issued a Notice of Intent to Defer, pending the resolution of a proceeding under the Workplace Safety and Insurance Act, 1997, S.O. Chapter 16, Schedule A (WSIA). The parties were invited to make submissions. The respondent has not yet been required to file a Response to the Application.

3The applicant has provided submissions. The respondent forwarded a copy of a decision of a WSIB Eligibility adjudicator.

BACKGROUND

4According to the Application, the applicant's employment was terminated on October 9, 2012. The applicant alleges that the termination of his employment was related to complaints he made about work-related exposure to paint fumes and to the possibility that he would file a claim with the WSIB in relation to the exposure. The applicant included a copy of a WSIB Worker's Report of Injury/Disease (Form 6) with the Application. It is dated November 19, 2012 and sets out substantially the same history as is set out in the Application, which was filed on December 7, 2012.

5The applicant's submissions in response to the Notice of Intent to Defer indicate that the applicant has filed a claim with the WSIB. At the request of the Tribunal the applicant provided further information about the status of the claim with the WSIB. The applicant provided a copy of a decision of a WSIB Eligibility Adjudicator, dated April 13, 2013. The letter reviews information provided by the applicant and evidence concerning medical investigations and treatment. The letter concludes that entitlement to benefits is denied because the evidence does not support a relationship between the applicant's employment and his medical condition.

6In submissions to this Tribunal, the applicant's counsel notes that the definition of "disability" under section 10 of the Code includes:

(c) an injury for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

7The applicant submits that a decision to terminate an employee that is influenced by the fact the employee has made a claim for benefits from the WSIB is discriminatory even if the WSIB does not accept that the applicant has a work-related injury or disease, based on the definition of "disability" in s. 10(1) of the Code.

DEFERRAL CONSIDERATIONS

8The factors that the Tribunal generally considers were set out in Baghdasserians v. 674469 Ontario, 2008 HRTO 404 at paragraphs 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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 type 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….

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.

9In cases where there is a concurrent WSIB claim, there may be particular considerations because of the complexity of the WSIB system.

10Other proceedings to which the Tribunal will typically consider deferring to, such as a proceeding under the Employment Standards Act, a grievance under a collective agreement or a proceeding before the Courts, usually involve a proceeding on a clearly defined issue or issues. The issue or issues are typically resolved following a decision.

11Proceedings under WSIA can be much less clear. The WSIA establishes a multi-faceted system for the adjudication of entitlement to various benefits for workplace injury and disease. Decisions are made in the first instance by Case Managers. The worker and employer have a right to object to any decision of the Case Manager to an Appeals Resolution Officer and a right to appeal a decision of an Appeals Resolution Officer to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

12In the course of adjudicating a complex claim the WSIB may make a large number of separate decisions, each of which can potentially be the subject of an objection or appeal. The outcome of those objections or appeals may require a re-determination of other decisions and those in turn can lead to further objections or appeals. Even a decision by WSIAT will not necessarily bring finality to the adjudication of the claim as the decision may deal with one aspect of a claim. WSIAT will also typically remit the claim to the WSIB to make further determinations about entitlement to benefits that may flow from a successful appeal by a worker. A complex claim under the WSIA can continue to be adjudicated for many years or even decades. The adjudication can involve re-visiting earlier decisions based on new information or because of a successful objection or appeal.

13At the point that an Application is received by this Tribunal when there is an ongoing proceeding underway under the WSIA, it can be very difficult for the Tribunal to predict whether the WSIB is likely to deal with issues relevant to the Application and when a final decision on those issues might happen. Depending on how the adjudication of a claim unfolds, the process under the WSIA may deal with issues relevant to the Application before this Tribunal, but it may take a very long time to do so. If at the end of that it turns out that the WSIA process has not in fact dealt with the issues relevant to the Application, and the Application is then re-activated, the delay potentially prejudices the rights of the applicant and respondents.

14For these reasons, in my view, when considering whether to defer consideration of an Application to a proceeding under the WSIA, an important question is whether the proceeding under WSIA is likely to deal with issues relevant to the Application within a reasonable period of time.

15If an Application is deferred to a proceeding underway at the WSIA, the Tribunal may permit a party to apply to have the Application re-activated if the proceeding under the WSIA has become unduly prolonged or if it appears that the proceeding under the WSIA will not in fact deal with issues relevant to the Application (see for example, Jalava v. Ontario Lottery and Gaming Corporation, 2013 HRTO 860).

CONCLUSIONS

16In this case, the applicant filed a claim with the WSIB and filed this Application soon after. Both the claim and the Application arise out of the same alleged facts and history.

17In the Application, the applicant alleges that he asked for accommodation in relation to a sensitivity to chemicals or fumes at work and that this accommodation was not provided. He also alleges that the decision to terminate his employment was in part related to the fact that he had asked for accommodation and also related to the fact that he indicated he intended to file a claim with the WSIB.

18The adjudication of the applicant's claim for benefits from the WSIB could deal with the substance of these allegations. However, the WSIB will not deal with any of them unless the WSIB determines that the applicant has a work-related disability or disease. Unless this "initial entitlement" threshold is met, there will be nothing further for the WSIB to adjudicate and it will not deal with the substance of the Application.

19If initial entitlement is granted, the WSIB may then consider whether the applicant's loss of earnings after his employment was terminated was related to the work-related disability or disease. That consideration might or might not include consideration of the applicant's allegations about the reasons for the termination of his employment.

20Presently, the WSIB has denied initial entitlement, meaning that the applicant is not entitled to any benefits or services under the WSIA. The applicant has objected to that decision and the matter will eventually be considered by an Appeals Resolution Officer.

21As noted by the applicant in this case, the definition of "disability" under the Code includes an injury or disability for which the applicant claimed or received benefits under the WSIA. The WSIA does not give the WSIB or the WSIAT the jurisdiction to determine whether an employer terminated an employee's employment only because the applicant had an injury or disability for which the applicant claimed or received benefits under the WSIA and provides no remedy in respect of this infringement of the applicant's Code-protected rights.

22Consequently, while the WSIB may eventually consider whether the applicant's loss of earnings after October 9, 2012, it will only do so as such time as it determines that the applicant had a work-related condition. So far it has determined that the Application did not have a work-related condition. A final determination of this may take quite some time. If the WSIB determines that the applicant has a work-related condition, it will then determine if he is entitled to loss of earnings as a result of the work-related condition. That consideration might include consideration of the reasons for the termination of the applicant's employment. However, even if the WSIB felt that the decision to terminate the applicant's employment was influenced by the fact that the applicant had an injury or disability for which he claimed or received benefits under the WSIA, the WSIB could not provide any remedy for this infringement of the applicant's Code-protected rights.

23In the Application the applicant is seeking monetary compensation for the loss of earnings that he experienced after his employment was terminated. The applicant would be seeking the same thing from the WSIB if his claim is allowed.

24The fact that the applicant is seeking the same remedy in the Application as he will be seeking from the WSIB if his claim is allowed is not, in my view, a sufficient reason to defer consideration of the Application at this time. It is not clear that the WSIB will address this issue in the near future. It will not address it at all until and unless it determines that the applicant has a work-related condition.

25A finding by the WSIB that the applicant is not entitled to loss of earnings would not resolve the question of whether the respondent infringed the applicant's Code-protected rights.

26If the WSIB were to grant the applicant loss of earnings benefits for a period for which the applicant received monetary compensation in respect of the Application, the WSIB could consider that when determining the amount of the applicant's benefits if it felt it was appropriate to do so.

27For all of these reasons, I find that it is not appropriate to defer the Application at this time.

ORDER

28The Application is not deferred at this time. The respondent is directed to file a Response to the Application not more than 35 days from the date of this Interim Decision.