HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ana Dacosta
Applicant
-and-
Orlick Industries Ltd.
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Dacosta v. Orlick Industries Ltd.
WRITTEN SUBMISSIONS
Ana Dacosta, Applicant
Self-represented
Orlick Industries Ltd., Respondent
Patricia G. Murray, Counsel
Introduction
1This Interim Decision addresses whether the Tribunal should defer further consideration of the Application pending the result of a proceeding at the Workplace Safety and Insurance Board ("WSIB").
2By Application filed on November 7, 2012, the applicant alleged that she was harassed and/or discriminated against because of disability in employment. Specifically, she claims that the respondent discriminated against her when it provided her with modified duties based on a 2009 return to work plan that did not take into account an injury she sustained in 2010. She also claims that the respondent discriminated against her when it terminated her employment in May 2012 on the basis that she was only performing 25% of her assigned duties. Finally, she alleges that the respondent failed to take action to prevent harassment by her co-workers which commenced in or around October 2009.
3The applicant noted in her Application that she had an appeal pending before the WSIB. She attached written submissions made on her behalf to a WSIB Appeals Resolutions Officer in October 2012. The submissions claim loss of earnings benefits due to the respondent's failure to provide the applicant with appropriate modified duties and because the respondent failed to prove that the applicant's ability to perform only 25% of the job expectation created an undue hardship for it.
4On January 11, 2013, the Tribunal issued a Notice of Intent to Defer consideration of the Application pending the outcome of the WSIB proceeding and sought submissions from the parties on the issue.
5The applicant submits that the Application should not be deferred, stating that the Tribunal's decision is a fundamental component of her claim to the WSIB.
6The respondent submits that the Application should be deferred because most of the allegations raised in the Application form part of the WSIB appeal. Among other things, the respondent notes that, in her WSIB appeal, the applicant claims that she ought to be entitled to loss of earnings benefits due to "termination and unsuitability of modified duties". Therefore, it submits that there is significant overlap in the facts and issues in this case which gives rise to a risk of inconsistent factual or legal decisions.
Analysis
7The usual considerations when determining if an Application should be deferred were stated in Calabria v. DTZ Barnicke, 2008 HRTO 411:
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. Some of the factors that may be 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.
8While the issues before the Tribunal and the WSIB are not identical, it appears that there is considerable overlap in the issues before the WSIB and the issues raised in the Application. In both proceedings, the issues include whether the respondent offered the applicant suitable work and whether it took appropriate steps to accommodate her disability up to the point of undue hardship before it terminated her employment. The applicant's appeal submissions specifically reference the applicant's rights under the Code and the respondent's obligation to accommodate the applicant up to the point of undue hardship prior to terminating her employment.
9In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the proceeding underway at the WSIB is complete. The Tribunal has held in several cases that a proceeding at the WSIB will be considered complete when the WSIB has issued a final decision on the issues relevant to the issues in the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. See, for example, Seecharran v. Keybrand Foods Inc., 2012 HRTO 252 and Grabnor v. AGO Industries, 2012 HRTO 1323.
10In this case, I find it is appropriate for the Tribunal to defer consideration of the Application until the Appeals Resolution Officer has issued a final decision in the current proceeding. At that time, either party can ask the Tribunal to re-activate the Application. Depending on the circumstances, the Application may then be re-activated or deferred again if there is an ongoing process that means that further deferral is appropriate.
11It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
12I am not seized of this matter.
Dated at Toronto, this 4th day of March, 2013.
"signed by"
Jo-Anne Pickel
Vice-chair```