Peter Babcock v. BMP (1985) Limited, 2013 HRTO 1939

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Babcock

Applicant

-and-

BMP (1985) Limited – cob: Atkinson’s Home Hardware

and Darlene Atkinson

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 22, 2013

Citation: 2013 HRTO 1939

Indexed as: Babcock v. BMP (1985) Limited

APPEARANCES

Peter Babcock, Applicant

Self-represented

Atkinson’s Home Hardware and Darlene Atkinson, Respondents

Joseph Dart, Counsel

1This Interim Decision deals with the respondent’s request that the Tribunal defer further consideration of the Application pending the conclusion of adjudication of the applicant’s claim for benefits at the Workplace Safety and Insurance Board (WSIB).

2On November 19, 2012, the applicant reported to his employer that he had sustained a work-related ankle injury on November 16, 2012. The injury was reported to the Workplace Safety and Insurance Board (WSIB). The Board ultimately concluded that proof of a work-related injury had not been established and that the applicant was not entitled to benefits. The applicant has objected to that decision but the status of his objection is not clear from the information provided to the Tribunal.

3The applicant alleges that his employment was terminated because of his disability and because the respondents were not prepared to accommodate his disability. The respondents deny this allegation and state that the applicant was laid off because of lack of work.

DEFERRAL

4Some 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.

5In this case, there is another proceeding underway at the WSIB. In that process, the applicant is seeking to establish that his ankle injury is work-related or compensable. If he does establish this, the WSIB would then consider the applicant's entitlement to loss of earnings benefits. This would involve a consideration of whether the applicant's loss of earnings after the lay-off was as a result of the injury. This consideration would likely not involve a determination of whether the respondents discriminated against the applicant by terminating the applicant's employment. If the applicant is not successful in his objection at the WSIB he could appeal a final decision of the WSIB to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Even if the applicant is successful at the WSIAT, there would still not likely be a determination of the Code-related issue of whether the respondents discriminated against the applicant by terminating the applicant's employment.

6In summary, while there is another proceeding underway at the WSIB, the proceeding may be underway for a long time before any of the issues relevant to the Application are addressed There is some overlap between the issues that may be considered in that proceeding and the issues in the Application. However, since the WSIB has so far not recognized that the applicant has a work-related injury and since, even if that were to be accepted, the WSIB and/or WSIAT will not likely determine the Code-related issue of whether the respondents discriminated against the applicant by terminating the applicant's employment, I conclude that it is not appropriate to defer the Application at this time.

7The Tribunal will continue to process the Application.

8The applicant is directed to keep the Tribunal informed about the status of his objection at the WSIB. He is directed to advise the Tribunal when a hearing date has been scheduled, and the results of any hearing at the WSIB.

9The respondent is directed to consider whether it is prepared to try mediation at the Tribunal. The respondent should advise the Tribunal and the applicant of this by December 6, 2013. If the respondent has not indicated a willingness to try mediation by that time, the Tribunal will proceed to schedule a one-day hearing.