HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mile Ravlic

Applicant

-and-

VAC Developments Ltd.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 8, 2013

Citation: 2013 HRTO 1684

Indexed as: Ravlic v. VAC Developments Ltd.

WRITTEN SUBMISSIONS

Mile Ravlic, Applicant ) Dimple Verma, Counsel

VAC Developments Ltd., Respondent ) Douglas Cunningham, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of another legal proceeding.

BACKGROUND

2The applicant, who identifies as a recent immigrant to Canada, is employed by the respondent to perform facilities maintenance. On September 19, 2012, he filed a claim with the Workplace Safety and Insurance Board (“WSIB”), which alleged that he began experiencing right shoulder and elbow pain in the workplace in 2009 and was scheduled for surgery on his right shoulder on September 28, 2012. He further alleged that he did not file his claim earlier because of ignorance of his rights, language barriers, and fear of losing his job.

3On March 26, 2013, the applicant also filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his disability and ethnic origin. Specifically, he alleged that he began experiencing right shoulder and elbow pain in the workplace in 2009, and that since then, the respondent has sabotaged his attempts to file a claim with WSIB solely to reduce its WSIB premiums. Specifically, he alleged that the respondent has bullied and harassed him because of his immigrant status, lack of language skills, and lack of familiarity with his legal rights.

4In section 14 of the Application, the applicant acknowledged that he filed a claim with the WSIB, but did not request that the Tribunal defer his Application because, in his view, a claim for benefits from the WSIB is not a legal proceeding.

5On May 28, 2013, the respondent filed a Response, which denied the allegations of discrimination, and stated that the facts and issues raised in the Application are the subject matter of the claim before the WSIB. The respondent requested, among other things, that the Tribunal defer consideration of the Application pending the conclusion of the proceeding before the WSIB and any related appeals.

6On June 18, 2013, the applicant filed a Reply, which opposed the respondent’s request to defer consideration of his Application. The applicant stated that the WSIB has not and will not be dealing with his allegation of discrimination because of ethnic origin, the psychological effect of the discrimination on him and his family, and any loss of earnings capacity beyond his regular work week and hourly wage.

7On July 4, 2013, the Tribunal issued a Case Assessment Direction, which directed the parties to provide an update on the status of the applicant’s claim before the WSIB.

8On July 22, 2013, the applicant filed written submissions, which stated that he appealed WSIB decisions dated October 23, 2012, December 21, 2012, January 21, 2013, April 4, 2013, and May 23, 2013, but withdrew the appeals without prejudice in order to obtain additional medical information from his treating specialist.

9On August 15, 2013, the respondent filed written submissions, which stated that it understands from the WSIB that the applicant withdrew his appeals on the ground that further medical evidence was being collected to submit to the WSIB.

ANALYSIS

10Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

11In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 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.

12Where there are concurrent proceedings before both the WSIB and the Tribunal that deal with the same issues, the Tribunal will normally defer consideration of the Application. See, for example, Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; Dhunsi v. J.T. Bakeries, 2010 HRTO 540; Hussey v. Crossby Dewar Inc., 2012 HRTO 618; and Purchase v. Burlington (City), 2012 HRTO 1648. In Dhunsi, supra, the Tribunal deferred the Application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. In assessing the issue of deferral, the Tribunal considered it relevant that the WSIB has significant expertise in addressing issues of disability.

13In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant’s claim before the WSIB, which is ongoing, was filed more than six months before he filed his Application with this Tribunal. Although the issues in the two proceedings are not identical, there is a clear overlap between some of the key facts and issues, which raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law. I do not agree with the applicant that his claim before the WSIB is not a legal proceeding, or his suggestion that the facts and issues in two proceedings can be parsed and separated.

ORDER

14The Tribunal makes the following order and direction:

1. The Application is deferred pending the conclusion of the proceeding before the WSIB and any related appeals to the Workplace Safety and Insurance Appeals Tribunal.

2. Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

15I am not seized of this matter.