Harper v. Hospital for Sick Children, 2013 HRTO 1337

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deanna Harper

Applicant

-and-

Hospital for Sick Children

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: August 1, 2013

Citation: 2013 HRTO 1337

Indexed as: Harper v. Hospital for Sick Children

WRITTEN SUBMISSIONS

Hospital for Sick Children, Respondent

Robert Weir and Kate Dearden, Counsel

1This is an Application filed 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 because of disability. The respondent filed a Response denying the allegations against it.

2A hearing in this matter is scheduled for December 16, 17 and 18, 2013 pursuant to a Notice of Hearing dated May 21, 2013 (“the hearing notice”).

3On June 4, 2013, the respondent filed a Request for Order During Proceedings (“RFOP”). The applicant has not filed a Response to a RFOP and the time for doing so has elapsed.

the respondent’s submissions

4In its RFOP, the respondent requests that the Tribunal defer the Application, cancel the December hearing dates, and void the parties’ disclosure obligations because of proceedings before the Workplace Safety and Insurance Board (“WSIB”) under the Workplace Safety and Insurance Act, 1997, S.O. 1997, C. 16, Sched. A. The respondent produced two WSIB decisions, dated May 15 and 16, 2013 (“the May 2013 WSIB decisions), to which the respondent filed an intention to object form with WSIB (“the WSIB appeal”).

5The respondent submits that the Application be deferred pending the outcome of a parallel proceeding before WSIB. It submits that there is a significant overlap between the subject matter of the Application and the WSIB appeal, WSIB has the statutory authority to make determinations with respect to facts that parallel the Application and can issue remedies consistent with the type requested in the Application, and that the WSIB appeal is at a more advanced stage than the Application.

law and analysis

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. 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.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, at para. 18 to 19, the Tribunal stated:

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

8The Tribunal has deferred application where there are proceedings before the WSIB. See, for example, Dhunsi v. J.T. Bakeries, 2010 HRTO 540 and Wei v. Paramount Steel Limited, 2013 HRTO 434.

9However, in reviewing the Application, the May 2013 WSIB decisions and the WSIB appeal, I do not find it appropriate to defer the Application at this time.

10In this case, the Application is about the applicant’s employment for the period May to October 28, 2011 during which the applicant alleges, amongst other things, that she suffered a workplace injury for which she had workplace restrictions that the respondent failed to accommodate. Further, she alleges that on October 28, 2011, the respondent told her that she was required to perform her full duties, refused to provide her with further modified work, and placed her on a medical leave of absence. She was required to apply for long term disability (“LTD”) benefits which, after some time, she received. The applicant seeks, as remedies in the event her Application is upheld, general damages as well as special damages for loss of wages from October 28, 2011 to October 28, 2013. Specifically, she seeks the difference between her full time salary less the amounts received from LTD benefits.

11By contrast, the May 2013 WSIB decisions, upon which the WSIB appeal is based, pertain to the period from November 8, 2011 onwards. The May 15 decision states: “As of November 8, 2011 you [sic] employer stopped accommodating you and asked for you to resume your full regular duties”; “I advised that I would need to confirm whether your employer had attempted to accommodate you since being on LTD. Your employer confirmed that they did not offer any modified work after the initial claim closure in November [2011]. Therefore full LOE would be in order from November 8, 2011 to date”; and “Full LOE is in order from November 8, 2011 to date”. The case manager making the decision advised the applicant that since it was more than two years from the date of her accident, her file would be referred to a long term case manager for further file management.

12The May 16 decision, entitled Loss of Earnings (LOE) Long-Term Recalculation Earnings Review, recalculates the applicant’s weekly benefit rate effective from January 31, 2012 onwards.

13While the May 2013 WSIB decisions may create some overlap with the issues raised in the Application, the overlap pertains only to a portion of the allegations raised in the Application and not all of it.

14The WSIB appeal itself is very brief. In addition to taking positions that do not appear to be relevant to the issues before the Tribunal, such as the respondent’s assertion that the applicant’s current diagnosis is not compatible with the accident history, and that proposed surgery is not the responsibility of the claim, the respondent asserts “the Hospital offered the employee suitable accommodation which was rejected by the employee”. Essentially, the extent to which the WSIB appeal is relevant to the Tribunal’s proceedings appears to be in relation to what prompted the applicant to leave work at the end of October or beginning of November 2011. This is, in my assessment of the pleadings, only part of the applicant’s allegations.

15Further, while the respondent had filed a WSIB appeal, there is no information before me about the status of the appeal before WSIB or the timeframe within which it will be determined. This is not surprisingly considering that the WSIB appeal was filed on May 29, 2013 and the RFOP was promptly filed by the respondent on June 4, 2013. However, deferring this Application, which was filed in October 2012 and has confirmed hearing dates scheduled for December 2013, to some unknown period of time before WSIB is not desirable. As the Tribunal noted in Yousefi v. Eugene Collision Limited, 2013 HRTO 1180 at paras. 11 to 15, “… 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”.

16In light of the above, I do not find it appropriate to defer the Application at this time pending the determination of the WSIB appeal. The December hearing dates will be as currently scheduled and the parties’ disclosure obligations as set out in the hearing notice, and in Rules 16 and 17 of the Tribunal’s Rules of Procedure, will continue to apply. If the parties have not complied with the June 4, 2013 deadline for disclosure of their arguably relevant documents, they should take steps to comply immediately.

17However, the issue of deferring the hearing may become relevant if the status of the WSIB appeal changes. In that regard, the parties are directed to advise the Tribunal, copying the other party, by October 18, 2013 of the status of the WSIB appeal, including any decisions which have been issued by WSIB, and whether the party is requesting that the Application be deferred at that time.

18I am not seized with this matter.