Dhailwal v. Zsemba Apron and Upholstery Ltd., 2013 HRTO 149

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gurbax Dhailwal Applicant

-and-

Zsemba Apron and Upholstery Ltd Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: January 28, 2013 Citation: 2013 HRTO 149 Indexed as: Dhailwal v. Zsemba Apron and Upholstery Ltd.

WRITTEN SUBMISSIONS

Gurbax Dhailwal, Applicant Stephen Ellis, Counsel

Zsemba Apron and Upholstery Ltd., Respondent Michael McQuade, Counsel

1This is an Interim Decision in respect of an Application filed under section 34 of Part IV 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. This Interim Decision deals with a request by the respondent that the Application be dismissed pursuant to section 45.1 of the Code because the subject matter of the Application has been appropriately dealt with in another proceeding, and that in the alternative, the Application be deferred pending the completion of an appeal to the Workers’ Safety.

2I am not satisfied that this Application should be dismissed or deferred on the basis of the material filed.

3In respect of the request for dismissal pursuant to section 45.1, I have reviewed the decision of the Workplace Safety and Insurance Board (WSIB) eligibility adjudicator. Leaving aside the question of whether there has yet been a “proceeding” for the purpose of section 45.1, the decision addresses only the issue of whether the applicant was “injured in a work-related incident June 19, 2012”. The decision was to deny a claim for entitlement to WSIB benefits because “I cannot establish proof of accident“. The facts required to establish the occurrence of a work-related accident may, depending on the situation, overlap slightly with the facts required to establish disability as defined in the Code, but are otherwise not the same issue. On the information filed, there is no reason to believe that the issues relevant to the Code application have been “dealt with” for the purposes of section 45.1.

4The Tribunal may defer consideration of an Application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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.

5As a matter of logic, the subject matter of the respondent’s appeal to Workplace Safety and Insurance Appeals Tribunal (WSIAT) is likely to overlap only slightly, if at all, with the facts that must be established if the applicant is to succeed in this Application. In addition, neither party has given information as to the progress of the appeal to the WSIAT.

6If the WSIAT appeal is heard soon, relevant findings of fact might be made by the WSIAT. This Tribunal may, as a matter of law, be required to adopt findings of fact that have already been litigated and decided in a court or another tribunal, to prevent abuse of process or as a matter of fact estoppel (see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63; Canadian Tire Corp. v. Summers, 1995 CanLII 7183 (ON S.C.)).

7In the circumstances of this case, I see no reason that the Application should not move forward, conditional on the applicant providing an update to the Tribunal about the progress of the WSIAT appeal, and without prejudice to the Tribunal or the respondent raising the issue of deferral, should circumstances warrant that, at a later date.

ORDER

8The parties have agreed to undertake mediation. The Registrar will schedule a mediation in the usual course.

9The applicant is ordered to send written information to the Tribunal that indicates the progress to date of his appeal to the WSIAT, including whether a hearing date has been set. The applicant must send this information within fifteen days of the date of this Interim Decision.

10I am not seized.