Emily Ly v. The Hospital for Sick Children, 2013 HRTO 2071

Human Rights Tribunal of Ontario

Between:

Emily Ly Applicant

-and-

The Hospital for Sick Children Respondent

Interim Decision

Adjudicator: Alison Renton Date: December 16, 2013 Citation: 2013 HRTO 2071 Indexed as: Ly v. The Hospital for Sick Children

Written Submissions

Emily Ly, Applicant Laura Lunansky, Counsel

The Hospital for Sick Children, Respondent Robert W. Weir, Counsel

1In an Interim Decision dated May 3, 2013, 2013 HRTO 744, the Tribunal deferred the Application pending the completion of WSIB’s return to work services and WSIB’s decision, at its next level, of the applicant’s appeal under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”), as amended.

2The applicant filed a Request for Order During Proceedings (“RFOP”) dated November 21, 2013 seeking to re-activate her Application. The respondent filed a Response to the RFOP, dated November 28, 2013, opposing the applicant’s request to re-activate.

The Parties’ Submissions

3The applicant submits that the Workplace Safety and Insurance Board (“WSIB”) has now issued further decisions dated March 27, 2013, April 25, 2013, June 5, 2013, and September 26, 2013. Its most recent decision indicates that the return to work phase has ended and WSIB has now moved to the work transition phase (“WT”), which used to be called labour market re-entry. Through WT, the applicant is being retrained into a different position, which indicates that WSIB has redirected its services away from return to work with the respondent. The applicant submits that it will not be appealing the suitability issue to the next level because WSIB has agreed with her that the work offered by the respondent was not suitable. The applicant does not know if the respondent would appeal the suitability of the work to the next level of WSIB.

4The respondent opposes re-activation and requests that the Tribunal continue to defer the Application. It submits that there are 6 decisions made by WSIB, all determined at the same level, which have been appealed to the next level by either the applicant or the respondent and which remain outstanding. Further, it notes that WSIB has not issued a decision “at the next level” with respect to the applicant’s appeal of the November 6, 2012 WSIB decision, and that the work services stage is also not complete as the applicant has appealed WSIB’s decision to place her in WT.

5Further, the respondent submits that the WSIB proceedings are at a more advanced stage than the proceedings before the Tribunal. It would be unfair for the parties to simultaneously present their cases in multiple fora when the factual and legal issues overlap and there is a likelihood of inconsistent decisions on central issues in both proceedings. The respondent notes that it has not yet been required to file a Response and if required to do so at this stage, the duplication and overlap in responding in both proceedings will result in additional costs for the respondent in two administrative forums where it cannot recover its defence costs.

Analysis

6While I have concerns about continuing to defer the Application when the respondent has yet to file a Response, I find that it is appropriate to continue to defer the Application. Based upon the materials and submissions filed, and the Application, it appears that there is significant overlap between the factual and legal issues in the WSIB proceedings and the Application thus giving rise to potential inconsistent results in different fora.

7However, the Application is not going to be deferred indefinitely. At this point, the Tribunal has not received any information from the parties about hearing dates scheduled by WSIB to hear the appeals. The Tribunal will continue to defer the Application for a further 6 month period of time. At the end of that 6 month period, the parties are to advise the Tribunal by email, copying the other party, about the status of the WSIB appeals. It may be that following a review of that information, the Tribunal may require the respondent to file a Response and provide its position on whether or not it is agreeable to mediation as the applicant has consented to mediation and/or issue further case directions.

8I am not seized with this matter.