HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christina Daniel
Applicant
-and-
St. Thomas Elgin General Hospital
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Daniel v. St. Thomas Elgin General Hospital
WRITTEN SUBMISSIONS
Christina Daniel, Applicant ) Robert Whitteker, Counsel
St. Thomas Elgin General Hospital, ) Brian O’Byrne, Counsel
Respondent )
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 respondent employed the applicant as a clerk. In 2008, she filed a claim with the Workplace Safety and Insurance Board (“WSIB”) with respect to pain that she was experiencing in her arms. Various medical specialists subsequently diagnosed her with chronic bilateral forearm pain, and recommended restrictions with respect to her job duties.
3In September 2011, the WSIB decided that the respondent had made a modified job offer to the applicant that was suitable and within her restrictions. The applicant did not agree that the job offer was suitable and within her restrictions. She filed an internal appeal at the WSIB with respect to its decision. The appeal is ongoing.
4The respondent subsequently terminated the applicant’s employment mainly because of her refusal to accept the job offer and return to work.
5On April 13, 2012, the applicant 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 her with respect to employment because of her disability. Specifically, she alleged that the respondent denied her necessary accommodation and modified work in the workplace and then terminated her employment.
6On March 4, 2013, the Tribunal issued a Case Assessment Direction, which, among other things, apologized for the delay in processing the Application, and directed the parties to address in the Response and the Reply (1) the current status of the proceeding before the WSIB, (2) the issue of whether there is an overlap between the issues in the proceeding before the WSIB and those in the proceeding before this Tribunal, and (3) the issue of whether any such overlap should lead to the deferral of the Application.
7On April 9, 2013, the respondent filed a Response, which denied the allegations of discrimination, and stated that the substance of the Application is more properly within the jurisdiction of the WSIB.
8On April 30, 2013, the applicant filed a Reply, which opposed deferring her Application. She stated that her current appeal at the WSIB is with respect to the suitability of the new modified work plan offered to her, and is not with respect to the termination of her employment and the respondent’s re-employment obligations. She stated that she filed her Application with this Tribunal because under the Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16, Schedule A, as amended, she cannot pursue a remedy with respect to the termination of her employment and the respondent’s re-employment obligations.
9On August 20, 2013, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.
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 appeal before the WSIB is ongoing. Although the issues in the two proceedings are not identical, there is a clear overlap between some of the key facts and issues. Specifically, the main issue before the WSIB is whether the respondent’s job offer to the applicant was suitable and within her restrictions, while one of the two main issues before this Tribunal is whether the respondent accommodated the applicant’s disability-related needs up to the point of undue hardship. This clearly raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law. I do not agree with the applicant’s suggestion that the accommodation and termination of employment issues can be parsed.
ORDER
14The Tribunal makes the following order and direction:
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.
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.
Dated at Toronto, this 8th day of October, 2013.
“Signed By”
Ken Bhattacharjee
Vice-chair