Roberts v. Phoenix Building Components Inc., 2013 HRTO 31

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marden Roberts

Applicant

-and-

Phoenix Building Components Inc.

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 8, 2013

Citation: 2013 HRTO 31

Indexed as: Roberts v. Phoenix Building Components Inc.

WRITTEN SUBMISSIONS

Phoenix Building Components Inc, Respondent

Robert Boswell, Counsel

Introduction

1The applicant filed this Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the ground of disability. In its Response, the respondent requests that the Application be deferred until the applicant’s appeal of the denial of his claim for benefits by the Workplace Safety and Insurance Board (the “WSIB”) is resolved. This Interim Decision deals with the Request to Defer.

Submissions

2The respondent is a manufacturer and distributor of wood building products. Beginning in 2006, the applicant worked for the respondent as a crew chief, overseeing the assembly of trusses. In 2008 he slipped and fell at work, injuring his right shoulder. He was granted benefits by the WSIB and returned to work, performing modified duties.

3The applicant alleges that his assignment to modified work has been the source of tension with his co-workers and managers, especially since 2010. He describes being the subject of abuse and harassment by co-workers, who regarded him as slow and lazy in performing easier work than they were given. The Application alleges that the respondent’s managers condoned the abusive behaviour of his co-workers.

4The applicant also maintains that the unsuitable nature of his modified work caused him to injure his left shoulder through overuse, as he had to compensate for the original injuries to his right shoulder. Further, he maintains that he re-injured his right shoulder in September 2011.

5The applicant states that he was diagnosed with depression in April 2011 and he attributes the depression to the atmosphere of conflict at work, and to the stress of pursuing his WSIB claim.

6The respondent denies the allegations that it has failed to accommodate the applicant’s disability and denies that it has condoned harassment of the applicant.

7The applicant left work in September 2011 and has not returned. He maintains that he continues to be disabled and has claimed WSIB benefits for loss of earnings due to the injuries to both shoulders, as well as for a psychotraumatic disability. The WSIB denied these claims and he has appealed to the Appeals branch of the WSIB.

8The respondent requests deferral on the ground that there is an overlap between the facts and issues in this Application and those of the WSIB claim. Specifically, the respondent maintains that its efforts to accommodate the applicant’s disability will be addressed in the WSIB’s determination on the suitability of the applicant’s return to work plan. In addition, it argues that the applicant’s claim for loss of earnings before the WSIB overlaps with his claim for damages in this Application.

9The Tribunal directed the applicant to address the respondent’s request in his Reply to the Response. The applicant has not filed a Reply and the time for doing so has now passed.

analysis and decision

10The 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.

11Some 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

12The 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, 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.

13I am satisfied that there is a sufficient overlap of facts and issues to justify deferring this Application. First, the WSIB appeal will likely address the applicant’s claim for loss of earnings following his departure from work. To the extent that the applicant asserts a loss of earnings as a result of discrimination in this Application, there is potential for overlap on the issue of any remedy the Tribunal may award.

14Second, the Application alleges a failure of the respondent to accommodate his disability to the point of undue hardship. As part of this allegation the applicant maintains that he was not given suitable modified work and that the work offered by the respondent and approved by WSIB officials caused the shoulder injuries. In determining whether these injuries arose out of and in the course of his employment, the WSIB appeal will likely examine whether the modified duties had an impact on his shoulder injuries. This gives rise to an overlap of facts and issues to be determined in both proceedings.

15The WSIB proceedings started before this Application was filed and are more advanced than the proceedings before the Tribunal. The WSIB has made an initial ruling on the issues which overlap with this Application, and the respondent indicates that the appeal of those issues is to be heard in the late spring of 2013.

16The applicant has not opposed the respondent’s Request to Defer. In this case the overlap of facts and issues between the two proceedings raises the possibility of inconsistent decisions if the proceedings run concurrently. This, along with the fact that the WSIB proceedings are more advanced than the Tribunal’s proceedings, lead me to conclude that deferral is the most fair, just and expeditious way of dealing with this Application.

order

17The respondent’s Request to Defer is allowed.

18The parties’ attention is directed 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.

19I am not seized.