Robabeh Pourasadi v. Bentley Leathers Inc., 2013 HRTO 1685

Human Rights Tribunal of Ontario

Between:

Robabeh Pourasadi Applicant

-and-

Bentley Leathers Inc. Respondent

Interim Decision

Adjudicator: Ena Chadha Date: October 7, 2013 Citation: 2013 HRTO 1685 Indexed as: Pourasadi v. Bentley Leathers Inc.

Written Submissions

Robabeh Pourasadi, Applicant Self-represented

Bentley Leathers Inc., Respondent Josee Hetu, Representative

1The applicant filed this Application on June 12, 2013, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent failed to accommodate her workplace injury and terminated her employment because of her disability.

2The respondent filed a Response on August 27, 2013 denying the allegations of discrimination and failure to accommodate. The respondent requests that the Tribunal defer the Application because the facts of the Application are part of on-going Workplace Safety and Insurance Board ("WSIB") appeal proceedings.

3The applicant filed reply submissions opposing the respondent's request to defer. The applicant asserts that the Application should not be deferred because the WSIB appeal does not address the employment discrimination and accommodation issues, but rather deals with the WSIB's termination of her Loss of Earnings benefits. The applicant submits that the WSIB ceased paying her benefits alleging that she stopped participating in the WSIB's Work Transition Plan when she was out of the country seeking medical treatment.

Decision

4The 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 (Rule 14.1). 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

5Some factors that have been identified as 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.

6The applicant submits the Tribunal should not defer the Application because the alleged disability discrimination, specifically the respondent employer's refusal to accommodate her disability needs, is not the subject of the WSIB appeal. The applicant submits that the WSIB proceedings relate to the issue of her participation in a WSIB program.

7The Tribunal has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the application. See Gibson v. Arc Resources Canada, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540. 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 in Dhunsi, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability.

8The applicant is currently pursuing an appeal of the WSIB decision terminating her LOE benefits. Based on my review of the WSIB decision, it appears the applicant's benefits were halted because the WSIB concluded that the applicant stopped participating in the work transition program because she had left the country to seek medical treatment. The WSIB decision states that the applicant should have discussed this prior to her departure.

9I see no basis to defer the Application pending the resolution of the WSIB appeal. The WSIB appeal will not determine the Code-related issues as that appeal relates to the applicant's trip and her participation in the work transition program. The applicant's WSIB appeal does not appear to challenge any issues related to her employment with the respondent. I find that any overlap between this Application and the applicant's WSIB appeal is minimal. While the factual background regarding the applicant's disability may be relevant to both proceedings, the allegations of discrimination and failure to accommodate are distinct from the issues involved the WSIB appeal.

10Accordingly, the respondent's request to defer is denied.

Orders

11The respondent's request to defer is dismissed. The applicant has agreed to mediation. Within 7 days of the date of this Interim Decision, the respondent is directed to write to the Tribunal, copied to the applicant, confirming whether or not it is amenable to mediation.

12I am not seized of this matter.