Deoranie Singh v. Villa Colombo Homes for the Aged Inc., 2013 HRTO 378

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deoranie Singh

Applicant

-and-

Villa Colombo Homes for the Aged Inc.

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: March 6, 2013 Citation: 2013 HRTO 378 Indexed as: Singh v. Villa Colombo Homes for the Aged Inc.

WRITTEN SUBMISSIONS

Deoranie Singh, Applicant Rani Khan, Counsel

Villa Colombo Homes for the Aged Inc., Respondent Mary Kokosis, 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 because of disability.

2The applicant has worked as a Personal Support Worker with the respondent since 1999. In 2009 she sustained a workplace injury to her shoulders. Since then she has been off work at times, has undergone surgery on both shoulders and has tried various forms of modified work with the respondent.

3The applicant has an outstanding claim with the Workplace Safety and Insurance Board (WSIB). The WSIB terminated her benefits in October 2011 on the grounds that she had refused two positions which the WSIB had deemed as suitable for her. She has appealed that decision. The applicant maintains that there is work which she could do, but that the respondent refuses to accommodate her by offering modified work which is within her capabilities.

4The Tribunal has requested submissions from the parties on whether it should defer considering the Application until the WSIB proceedings are resolved.

Submissions

5In submissions filed on January 15, 2013 the applicant objected to deferral. She argued that the WSIB appeal deals with the narrow issue of whether she was not cooperative in regard to a proposed return to work in September 2011, whereas this Application deals with an alleged pattern of refusals to accommodate on the part of the respondent.

6The applicant also argued that while there is some overlap between the two proceedings with respect to remedies, it is not significant enough to justify deferral. In both proceedings she is seeking to recover a wage loss, but the remedies sought in this Application are broader and include general damages, placement in a position which accommodates her disability and public interest remedies. Finally, she maintained that the WSIB proceedings are not significantly advanced and no date has been scheduled for the WSIB appeal.

7Subsequent to filing those submissions the applicant filed further submissions on February 25, 2013 objecting to deferral. With these she enclosed a decision of a WSIB Appeals Resolution Officer dated January 31, 2013. That decision allows the applicant’s objections in part. It finds that the applicant was co-operative in attempting to return to work and that the positions offered by the respondent were not suitable for her physical restrictions. The decision grants entitlement to loss of earnings benefits from September 7, 2011 to May 2, 2012 but makes no conclusion about whether she is entitled to loss of earnings benefits from August 1, 2012 to the present, as this issue requires further investigation by the WSIB.

8In its submissions filed on February 4, 2013 the respondent requested deferral. It argued that the factual background in both proceedings is similar, if not identical, as both proceedings arise out of the same set of events. The respondent also maintained that there is a clear overlap in remedies sought in both proceedings.

9In responding to the applicant’s February 25 submissions the respondent still argues for deferral on the grounds that an aspect of the applicant’s claim for wage loss is still outstanding and has yet to be ruled on by the WSIB.

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. The WSIB proceedings have yet to deal with a part of the applicant’s claim for loss of earnings. This overlaps with the remedy the Tribunal may award for loss of earnings if the Application succeeds.

14Given that the outstanding issue of loss of earnings in the WSIB proceedings overlaps with a potential remedy in this Application, and given that the process of determining that issue is well underway, I am of the view that deferral is the most fair, just and expeditious way of proceeding with this Application.

Order

15The Application will be deferred until the WSIB proceedings are resolved.

16The 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.

17I am not seized.