DeVuono v. Cozza Bros. Excavating Ltd., 2013 HRTO 336

Human Rights Tribunal of Ontario

B E T W E E N:

Lou DeVuono Applicant

-and-

Cozza Bros. Excavating Ltd. Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: February 27, 2013 Citation: 2013 HRTO 336 Indexed as: DeVuono v. Cozza Bros. Excavating Ltd.

WRITTEN SUBMISSIONS

Lou DeVuono, Applicant Alan G. McConnell, Counsel

Cozza Bros. Excavating Ltd., Respondent No submissions filed

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. The Tribunal has not yet required the respondent to file a Response.

2The Tribunal issued a Notice of Intent to Defer, dated January 15, 2013, about deferring consideration of the Application pending the resolution of another legal proceeding before the Workplace Safety and Insurance Board ("WSIB") dealing with the subject-matter of the Application. The Tribunal invited the parties to file submissions with respect to deferral by February 14, 2013. The applicant filed submissions, but the respondent did not and the time for doing so has elapsed.

3The applicant, who identified in his Application that there is an outstanding claim before WSIB, opposes deferral of his Application. He advises that his WSIB claim, which pertains to the respondent's re-employment obligations under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, is at an internal appeal stage to an appeals resolution officer ("ARO"), rather than to the independent Workplace Safety and Insurance Appeals Tribunal ("WSIAT").

4Further, the applicant submits that there are essentially four issues raised in his Application, specifically that the respondent: a) failed to accommodate him after his return from work on April 14, 2011; b) harassed him on the basis of disability between April 14, 2011 and December 13, 2011; c) laid him off on December 13, 2011 because of disability when modified work was available; and d) failed to recall him to work when modified work was available. The applicant submits that while there may be a potential overlap with c) and d) between the Tribunal and WSIB proceedings, WSIB will not consider any issues before the applicant's December 13, 2011 layoff and will not order remedies under the Code if the applicant's layoff was in violation of the Code.

law and analysis

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6Some of the factors that may be relevant in deciding whether or not to defer consideration of an application before the Tribunal are the subject matter of the other proceedings, the nature of the other proceeding, the type 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 nature of the steps that have been taken to pursue them. See Bhagdasserians v. 674460 Ontario, 2008 HRTO 404.

7While there may be an overlap of some issues in this matter, which would favour deferral, there is not an overlap of two of the issues that have been raised in the Application and those two issues are not insignificant. Further, the applicant's WSIB matter is not before WSIAT, an independent statutory tribunal, but rather at the ARO stage, an initial appeal stage under the WSIA. These factors favour not deferring the Application.

8With respect to any possible overlap in remedies sought from the WSIB and the Tribunal, I am satisfied that an award at either the WSIB or the Tribunal can adequately address the question of any payments made to the applicant as a result of other proceedings in the event that the Application is upheld. See Briner v. Ricoh Canada, 2011 HRTO 1808 at para. 15.

9In light of these considerations, I am satisfied that deferral would not be fair, just and expeditious and I do not find that the Application should be deferred pending the completion of the WSIB proceedings.

next steps

10The respondent will have 35 days to file a Response.

11I am not seized with this matter.