Rose v. Revera Long Term Care Inc., 2013 HRTO 1736

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianna Rose Applicant

-and-

Revera Long Term Care Inc. Respondent

A N D B E T W E E N:

Dianna Rose Applicant

-and-

Revera Long Term Care Inc. Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: October 15, 2013 Citation: 2013 HRTO 1736 Indexed as: Rose v. Revera Long Term Care Inc.

WRITTEN SUBMISSIONS

Dianna Rose, Applicant | Christine Lundy, Representative Revera Long Term Care Inc., Respondent | Erin Porter, Counsel

INTRODUCTION

1The applicant has filed two Applications with the Tribunal. The first Application alleged that the respondent discriminated against her with respect to employment because of her disability. The Tribunal deferred consideration of this Application pending the conclusion of another legal proceeding. The second Application alleged that the same respondent and another respondent subjected her to a reprisal for filing her first Application.

2The purpose of this Interim Decision is to (1) decide whether the Tribunal should defer consideration of the second Application pending the conclusion of another legal proceeding, (2) decide whether the two Applications should be consolidated, and (3) identify the correct respondent(s).

BACKGROUND

3On May 17, 2012, the applicant filed an Application (the "first Application") under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), which alleged that Revera Long Term Care Inc. ("Revera") discriminated against her with respect to employment because of her disability. Specifically, she alleged that since her injury Revera had discriminated against her by not taking her disability-related restrictions seriously, by requiring her to perform tasks outside of her restrictions, and by failing to accommodate her disability-related needs up to the point of undue hardship.

4On September 12, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1728, which ordered that the first Application be deferred pending the conclusion of a proceeding before the Workplace Safety and Insurance Board (the "WSIB") and any related appeals to the Workplace Safety and Insurance Appeals Tribunal (the "WSIAT").

5On November 22, 2012, a WSIB Appeals Resolution Officer (the "ARO") issued a decision, which upheld the applicant's objection to a Case Manager's decision, which had found that she had fully recovered from a work-related lower back injury. The ARO found, among other things, that the applicant had low back strain with permanent impairment.

6On December 18, 2012, Revera terminated the applicant's employment, and on December 20, 2012, Revera filed an appeal of the ARO's decision to the WSIAT.

7On December 21, 2012, the applicant filed a Request for an Order During Proceedings ("RFOP"), which requested that her Application be reactivated, and on February 19, 2013, she filed a further RFOP, which requested that her Application be amended to include the termination of her employment.

8On March 25, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 502, which denied the applicant's Request to reactivate her deferred Application because of the ongoing appeal before the WSIAT, and granted her Request to amend her Application to include the termination of her employment.

9On May 14, 2013, the applicant filed a new Application (the "second Application) under s. 34 of the Code, which alleged that Revera and Versa-Care Limited ("Versa") subjected her to reprisals for filing her first Application with the Tribunal by terminating her employment, filing an appeal to the WSIAT, and refusing to allow her to attend a re-employment meeting. Specifically, the applicant alleged that she obtained a WSIB document dated April 18, 2013, which indicated that a Versa staff person informed a WSIB employee that Versa was not prepared to discuss return to work options for her while the first human rights Application that she had filed was before this Tribunal.

10On July 12, 2013, Revera filed a Response, which denied the allegations of reprisal. Specifically, Revera denied that the WSIB document accurately captured the essence of the discussion between one of its managers and a WSIB employee. Rather, Revera stated that its manager told the WSIB employee that it was not prepared to alter its decision to terminate the applicant's employment given the exhaustive work that it had done in attempting to return her to suitable modified work. Revera also stated that it had a statutory right to file an appeal to the WSIAT.

11In its Response, Revera also stated that Versa is Revera by way of amalgamation and amendment.

12On July 12, 2013, Revera also filed an RFOP, which requested that the second Application be consolidated with the first Application, and that the second Application be deferred pending the conclusion of the proceeding before the WSIAT. Specifically, Revera stated that the applicant is attempting to bypass the Tribunal's two previous Interim Decisions by filing a new Application, rather than requesting that her first Application be amended to include the allegation of reprisal, and that it would be unfair to Revera if it had to deal with two statutory bodies about the same facts and issues.

13On July 23, 2013, the applicant filed a Response to the RFOP, which did not specifically address whether the two Applications should be consolidated, but opposed deferring her second Application pending the conclusion of the proceeding before the WSIAT. She stated that there is no similarity of issues between the second Application and the appeal before WSIAT, which means that there is no possibility of inconsistent decisions between the WSIAT and this Tribunal.

14On August 27, 2013, the applicant filed a Reply, which only named Revera as a respondent, and maintained that Revera had subjected her to reprisals contrary to the Code.

ANALYSIS

Deferral

15Section 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.

16In 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.

17In my view, deferral is the most fair, just and expeditious way of proceeding with the second Application because it is inextricably linked to the first Application, which the Tribunal has already deferred. Specifically, the first Application contains allegations of discrimination related to accommodating the applicant's disability-related needs and terminating her employment, while the second Application contains allegations of reprisal, which are also linked to the termination. Furthermore, although the applicant has taken the position that the reprisal issues in the second Application are distinct from the issues before the WSIAT, Revera disagrees, and states that the issues that she has raised are, in fact, linked to its attempts to accommodate her disability-related needs. In these circumstances, I find that there is a potential for duplication of evidence, and a possibility of inconsistent findings of fact and law, if the second Application is allowed to proceed before this Tribunal concurrently with the proceeding before the WSIAT.

18Accordingly, the second Application shall also be deferred pending the conclusion of the proceeding before the WSIAT.

Consolidation

19Rule 1.7(d) of the Tribunal's Rules states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

20In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

21In my view, the two Applications should be consolidated. There are clearly common and overlapping issues of fact and law, and a public interest in avoiding a multiplicity of proceedings. Furthermore, there is no evidence that consolidating the Applications will result in prejudice to any person.

Named Respondent

22In her second Application, the applicant named Revera and Versa as respondents. However, in its Response, Revera stated that Versa is Revera by way of amalgamation and amendment, and in her Reply, the applicant appeared to accept this by only naming Revera as a respondent. Accordingly, the title of proceeding shall only name Revera as a respondent.

ORDER

23The Tribunal makes the following orders and directions:

1. The second Application shall be deferred pending the conclusion of the proceeding before the WSIAT.

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.

3. The two Applications shall be consolidated

4. The title of proceeding shall only name Revera Long Term Care Inc. as a respondent.