Janice Kierstead v. Kawartha Participation Projects, 2013 HRTO 2077

Human Rights Tribunal of Ontario

B E T W E E N:

Janice Kierstead Applicant

-and-

Kawartha Participation Projects Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: December 16, 2013
Citation: 2013 HRTO 2077
Indexed as: Kierstead v. Kawartha Participation Projects

WRITTEN SUBMISSIONS

Kawartha Participation Projects, Respondent

Christopher J. Edwards, Counsel

Introduction

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.

2The respondent requested in its Response that the Application be deferred because the applicant has commenced an appeal to the Workplace Safety and Insurance Board (“WSIB”) that has not concluded.

3The Tribunal requested submissions from the applicant by Case Assessment Direction, dated October 18 and December 2, 2013. While the applicant updated the Tribunal with respect to the status of the WSIB proceeding, she did not provide any submissions with respect to the deferral issue.

4The respondent submitted that the applicant has commenced an appeal to WSIB which will determine whether the respondent provided suitable modified work; whether the applicant co-operated in the accommodation process; and whether the respondent accommodated the applicant to the point of undue hardship, all of which are issues that overlap with the issues in this Application.

5The applicant advised that the appeal has been sent to the scheduling department at the Workplace Safety and Insurance Appeals Tribunal, although no appeal date is yet set.

6The Tribunal has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the application. See Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; and Dhunsi v. J.T. Bakeries, 2010 HRTO 540. In Dhunsi, above, the Tribunal deferred the Application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. In assessing the issue of deferral, the Tribunal in Dhunsi considered it relevant that the WSIB has significant expertise in addressing issues of disability.

7The factual background of the Application is the same as the WSIB matter. Further, it appears that the human rights allegations of failure to provide suitable modified work and to accommodate to the point of undue hardship are the same concerns considered in the WSIB claim.

8The Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts raised in the Application. I see no reason to depart from this approach given the impending concurrent WSIB appeal. There is significant overlap with respect to the factual allegations and the legal issues before WSIAT and this Application. In the circumstances of this case, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.

9The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the WSIAT appeal.