Rowley v. Kappeler Masonry Corporation, 2013 HRTO 1826

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darryl Rowley Applicant

-and-

Kappeler Masonry Corporation Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: October 30, 2013

Citation: 2013 HRTO 1826

Indexed as: Rowley v. Kappeler Masonry Corporation

WRITTEN SUBMISSIONS

Darryl Rowley, Applicant

Carrie Venner, Counsel

Kappeler Masonry Corporation, Respondent

Doug Forsyth, Counsel

background

1This is an Application filed under s. 34 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 to defer consideration of this Application until the Workplace Safety and Insurance Appeals Tribunal ("the WSIAT") has disposed of a pending appeal for loss of earnings benefits and for benefits arising from a psychotraumatic disability.

2Since March of 2009 the applicant has been employed by the respondent as a masonry labourer. In June of that year he injured his back at work. After returning to work in July of 2009 he reinjured his back and had to take time off work. He attempted a second return to work but has not been able to resume work since October of 2009.

3With the assistance of the Workplace Safety and Insurance Board ("the WSIB") the parties worked out a plan to accommodate the applicant's disability which was in effect from January to February 26 of 2010. The applicant maintains that the plan did not adequately accommodate his disability and he discontinued his participation in it. This led to the termination of his WSIB loss of earnings benefits. He appealed that decision.

4The applicant also filed a claim for psychotraumatic disability which was denied in March of 2011, and was subsequently appealed.

5An Appeals Resolution Officer ("ARO") of the WSIB issued a decision on March 25, 2013 denying both appeals. The ARO determined that there was no entitlement to benefits for psychotraumatic disability. The reasons appear to conclude that any psychotraumatic disability that the applicant has did not arise out of and in the course of employment. In relation to loss of earnings benefits the ARO determined that was no entitlement to such benefits for the period ending in February 2010. In discussing the accommodation plan that ended on February 26, 2010 the ARO stated:

Some of the duties appear to be a concern but the employer has been very accommodating and open to the tolerances and needs of the worker. The plan was created on a temporary basis with anticipation that the worker could return to his full duties. It remains unclear as to whether the employer could accommodate the worker on a permanent level.

6The ARO reasons go on to conclude that in relation to the applicant's claim for loss of earnings in the period following that date there was insufficient information about medical treatment of the applicant or the efforts the applicant made to find alternate work. The ARO remits this issue to the WSIB operating area to decide.

7The respondent's request for deferral is limited to asking the Tribunal to defer because the ARO decision is being appealed to the WSIAT. There is no analysis or argument offered by the respondent that explains the nature or extent of the potential for overlapping or duplicate decision-making by the WSIAT and the Tribunal if the request is not granted.

8The applicant's argument is also unhelpful. It cites some Tribunal decisions which deal with dismissal pursuant to s.45.1 of the Code, whereas the respondent is seeking deferral. The only case it cites relating to deferral is one where the matter was at the early stages of determination by the WSIB, whereas here the applicant is awaiting a final level determination. The applicant offers little else to explain why deferral would be inappropriate in these circumstances.

analysis

9The 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

10It is unclear from the Application or Reply whether the applicant is alleging that he sought any accommodation of his psychotraumatic disability and, if so, whether the respondent failed in its duty to accommodate this disability. Given the ARO's determination that this disability did not arise out of or in the course of the applicant's employment, it would seem that the issue the WSIAT would rule upon is whether the ARO was right on this point or not. In other words the WSIAT would look at whether there was a sufficient causal connection between the initial physical injury (which has been found to be compensable) and the psychological injury that the applicant alleges followed from it.

11If the applicant is in fact alleging a failure to accommodate his psychotraumatic disability, then I cannot see how the question of whether that disability is compensable overlaps with the issue the Tribunal might be called upon to adjudicate, namely whether the duty to accommodate this disability was triggered at all (regardless of whether it originated at work) and, if so, whether the duty was met by the respondent.

12However, in relation to the claim for loss of earnings benefits, there appears to be potential for an overlap of many of the facts that would be determined by the WSIAT and the Tribunal. An appeal to the WSIAT on this issue is likely to examine the evolution of the applicant's back injury, the treatment he underwent, the extent to which the respondent was kept informed of the treatment and the applicant's prognosis and the request or requests made by the applicant for accommodation so that he could continue working. The efforts made by the respondent in response to those requests would also be examined by the WSIAT.

13These are all factual questions that the Tribunal would also adjudicate in the course of determining whether the applicant sought accommodation for his disability and whether the respondent accommodated it to the point of undue hardship.

14While the WSIAT might not focus on whether the respondent made efforts to accommodate to the point of undue hardship, its examination of the issues mentioned above gives rise to the risk that the WSIAT and the Tribunal could make a series of conflicting determinations on the same factual questions. This is a reason to exercise discretion in favour of deferral.

15Further, given that the WSIAT appeal is pending and the proceedings in relation to compensation benefits are more advanced than the Tribunal's process, I am of the view that deferral is the most fair, just and expeditious way of proceeding with this Application.

order

16The Application is deferred pending the conclusion of the WSIAT appeal.

17The parties' attention is directed to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WSIAT appeal.