HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Della-Marie Iley
Applicant
-and-
The Corporation of the City of Sault Ste. Marie, Joe Fratesi and John Luszka
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Iley v. The Corporation of the City of Sault Ste. Marie
WRITTEN SUBMISSIONS
Della-Marie Iley, Applicant
Self-represented
The Corporation of the City of Sault Ste. Marie, Joe Fratesi and John Luszka, Respondents
Paula Rusak, Counsel
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, marital status and association with a person identified by a Code related ground. The Application alleges that the respondents did not properly accommodate the applicant’s disability and that inappropriate consideration of this disability and other Code related issues led to the termination of the applicant’s employment.
2The Application indicates that facts of the Application are part of a proceeding before the Workplace Safety and Insurance Board (WSIB) that is still in progress. The applicant provides along with her Application a December 16, 2011, decision by a WSIB Eligibility Adjudicator denying the applicant loss of employment income and payment for health care benefits on the basis that the Eligibility Adjudicator found that the injury reported by the applicant was not work related. The applicant has filed an objection to this decision with the WSIB.
3The Tribunal issued a Notice of Intent to Defer to the parties on February 22, 2013, and directed them to file submissions in regards to whether or not the Tribunal should defer consideration of the Application pending the resolution of the applicant’s WSIB proceeding.
4The applicant filed submissions on February 25, 2013 requesting that her Application not be deferred. She submits that her Application should proceed because proceedings before the WSIB can take years to resolve. The respondents filed their submissions on March 7, 2013 agreeing with the applicant that the Application should not be deferred. They submit that it is their understanding that the applicant has filed an appeal of a WSIB claim but that no date for the hearing of her appeal has been set. They submit that it is not in their best interest to allow the issues raised by the application to remain unresolved for an indefinite period of time. They submit this is not an appropriate case for deferral.
ANALYSIS AND DECISION
5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (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. 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. 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 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 steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
6The parties have agreed that the Application should not be deferred. While I am mindful of this shared interest this is only one factor when considering all the circumstances of this case and whether the Application should be deferred.
7I am satisfied that the subject matter of the WSIB proceeding is not the same as the subject matter of this Application although the WSIB appeal will likely deal with some of the same facts underling the Application. The issue of the applicant’s accommodation and the termination of her employment are not directly before the WSIB. The only issue for the WSIB’s determination appears to be whether the applicant’s injury is work related and what the applicant’s entitlement to lost wages and medical benefits might be. There is some risk of inconsistent findings on the facts related to how this injury occurred and was addressed if the two proceedings were to occur concurrently.
8I recognize that there is also potentially some overlap in regard to the remedies that may be available under the WSIB and Tribunal processes but should this Application result in an award for lost earnings, this award could be taken into account by the WSIB or the Workplace Safety and Insurance Appeals Tribunal in calculating any benefits otherwise payable.
9The proceeding at the WSIB is not far advanced at all. I agree with the parties that there may be a significant delay before there is a final decision from the workplace safety and insurance system on issues that overlap with the Application. I find that given the very early stage of the WSIB proceeding, the concern that concurrent proceedings may result in an inconsistent decision on facts or law does not appear to be a factor which weighs in favour of deferral in these circumstances.
10Having considered the parties’ stated preference to proceed, the subject matter of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to defer having regard to the status of each proceeding and the steps that have been taken to pursue them, I find that it is not appropriate to defer consideration of the Application at this time. I am satisfied that, in the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application. However, it is also appropriate that the parties be required to advise the Tribunal immediately of any subsequent decisions arising from the WSIB process so that the Tribunal has an opportunity to review those and determine if they give rise to concerns regarding the potential for inconsistent findings of fact.
DIRECTIONS
11The Tribunal orders as follows:
The Tribunal will continue to process this Application;
A copy of this Interim Decision and a Notice of Application will be provided to the respondent. (The Tribunal has already provided the respondent with a copy of the Application when it delivered the Notice); and
The respondent is required to file its full Response (Form 2) within 35 days of the date of the Notice of Application.
The parties shall immediately advise the Tribunal of any subsequent decisions arising from the WSIB process and provide a copy of any such decision to the Tribunal at that time.
12I am not seized of this matter.
Dated at Toronto, this 15th day of March, 2013.
“signed by”
Eric Whist
Vice-chair