HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Hannis
Applicant
-and-
Blackadar Continuing Care Centre and Extendicare Assist Management & Consulting Services
Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Hannis v. Blackadar Continuing Care Centre
WRITTEN SUBMISSIONS
Deborah Hannis, Applicant
Christine Lundy, Representative
Blackadar Continuing Care Centre and Extendicare Assist Management & Consulting Services, Respondent
Mary Kokosis, Counsel
Introduction
1This is an Application filed under section 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 applicant alleges that she suffered from a workplace injury and that the respondent failed to properly accommodate her condition. The applicant indicates that the facts of the Application are part of a Workplace Safety and Insurance Board ("WSIB") proceeding.
3The respondent filed a Response requesting that the Tribunal defer the Application pending the completion of the applicant's workplace safety and insurance claims and proceedings. The applicant filed a Reply opposing the request to defer.
4On April 23, 2013, the Tribunal issued a Case Assessment Direction ("CAD") seeking clarification of the applicant's intentions with respect to the WSIB claim. Those submissions have now been received.
5The applicant indicates that two appeals of decisions of the WSIB, dated August 1, 2012 and November 2, 2012, were commenced. While the parties have subsequently met with a Work Transition Specialist to attempt to resolve issues regarding suitability of the accommodation being provided, there is no indication that the appeal process has concluded.
Deferral
6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). 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.
7Some 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. See Klein v. Toronto Zionist Council, 2008 HRTO 189.
8The 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, supra, 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, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability.
9Based on the information in the file, it appears that the respondent is currently pursuing an appeal before WSIAT regarding the applicant's entitlement to benefits and opposing findings that modified duties provided by her employer were suitable and denying changes to the applicant's restrictions.
10There is no doubt that the factual background of the Application is entirely the same as the WSIB matter. Further, it appears that the human rights allegations of failure to accommodate the applicant's restrictions are considerations in the WSIB claim. I find that the subject matter of the WSIB proceedings overlap with the Application, specifically the issue of the nature and degree of the applicant's disability and ability to return to work. In addition, there is the matter of compensation that flows from the challenged benefits entitlement which potentially also overlaps with the remedies sought in the Application.
11As previously noted, the 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 reasons to depart from this approach given the on-going WSIB proceedings. I find that there is overlap with respect to the factual allegations and the legal issues before the WSIB and the Application. In these circumstances, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.
12Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings.
13The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the WSIB proceedings.
14I am not seized of this matter.
Dated at Toronto, this 19th day of December, 2013
"signed by"
Jay Sengupta
Vice-chair```