Frank Fata v. Workplace Safety and Insurance Board, 2013 HRTO 1992

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Fata Applicant

-and-

Workplace Safety and Insurance Board Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: December 2, 2013 Citation: 2013 HRTO 1992 Indexed as: Fata v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Frank Fata, Applicant John Bartolomeo, Counsel

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to services because of disability and age.

2This Interim Decision deals with the respondent’s request to defer this Application following my determination that the Application would not be dismissed for no reasonable prospect of success: 2013 HRTO 1213. The respondent’s request is based on the fact that the applicant has initiated an appeal under the Workplace Safety and Insurance Act in relation to part of his claim before this Tribunal.

3The basic facts of this Application are set out in my previous Interim Decision (213 HRTO 1213). The applicant is diabetic. He has been in receipt of benefits from the respondent since 1985 as the result of an accident. At some point in the late 1980’s the applicant moved his residence. He alleges that as a result of his disability and the distance he travels to access benefits in the form of medical services, he was provided with travel expenses and two meal allowances. The applicant alleges that the provision of the meal allowance is not a benefit provided by the respondent but a disability-related accommodation. The applicant alleges that he received this assistance until 2011 when his meal allowance was reduced from two meals to one.

4With respect to the ground of age, the applicant alleges that because of the age of his claim, his file was never converted into electronic form. He alleges that he is at a disadvantage in dealing with issues arising from his file with the respondent because his file remains in paper form and can only be accessed by one person at a time. By comparison, the applicant alleges that those individuals whose files can be accessed electronically by any employee of the respondent, have an advantage in receiving more timely service.

5Following a Summary Hearing, I determined that this matter could not be resolved at this early stage in the proceeding on the basis of a finding of no reasonable prospect of success. Whether or not the applicant is able to demonstrate a distinction between the benefits he receives and what he alleges to be accommodations for his disability is an issue which should be determined after hearing evidence.

6I also came to the same conclusion about the applicant’s allegations of age discrimination. I determined that the presiding adjudicator would need to hear evidence about the disadvantage alleged to be experienced by the applicant and evaluate whether there is a connection between the disadvantage and the applicant’s age.

7I also indicated that it was not clear whether this issue will be the subject of an adjudicative decision which could result in the reinstatement or denial of the meal allowance and remained seized of any request to defer this matter.

8The respondent now seeks deferral of this Application pending the outcome of the applicant’s appeal. The applicant objects to deferral. He argues that he filed an appeal with respect to the meal allowance to protect the time limitation, however, he also takes the position that the actions of the WSIB in relation to the meal allowance do not arise from an adjudicative decision. The fact that the applicant has initiated an appeal does not resolve that ambiguity. In addition, the applicant argues that with respect to the allegation that his paper file causes him a disadvantage because of age, there is no decision of the WSIB under appeal. The applicant argues that the deferral request would unnecessarily delay an issue that is only before this Tribunal.

9Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application. 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. 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.

10In this case I am satisfied that it would not be fair, just and expeditious to defer this Application. The applicant alleges that he is not challenging the benefits which were conferred on him but an accommodation which assists him in accessing the benefits. Framed in that way, this may be one of those unique cases where the Tribunal is the better forum for adjudicating whether the WSIB has failed to accommodate the applicant. In addition, only one of two issues engaged by this Application is before the WSIB whereas this Tribunal can adjudicate the discrimination allegations underlying both issues.

11At this stage my determination is limited to whether or not this Application should be deferred. It remains open to the hearing adjudicator to determine the merits of the applicant’s allegations. Given how narrow the facts are in this case, and my finding that these issues cannot be resolved without the benefit of evidence, I have determined that the Application will move forward to be resolved either by way of a mediated resolution or a final Decision.

12I am not seized

ORDER

1. The respondent’s request to defer is dismissed;

2. The Tribunal will schedule this matter for a two day hearing unless the parties indicate, within 10 days of the date of this Interim Decision, that they wish to participate in mediation in advance of a hearing.