HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Ridsdale
Applicant
-and-
Alba Transport Trailer Services Limited
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Ridsdale v. Alba Transport Trailer Services Limited
WRITTEN SUBMISSIONS
Joseph Ridsdale, Applicant
Self-represented
Alba Transport Trailer Services Ltd., Respondent
Lorenzo Lisi, Counsel
1This Interim Decision addresses the respondent’s request that the Tribunal defer consideration of the Application pending the result of a proceeding at the Workplace Safety and Insurance Board (“WSIB”).
1By Application filed on October 17, 2012, the applicant alleged that the respondent discriminated against him in employment because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, he appears to claim that the respondent failed to provide reasonable accommodation, discriminated against him by reducing his hourly rate, and assigned him work that exceeded his physical restrictions.
2The applicant attached certain WSIB documents to his Application including a decision dated March 1, 2012 by an Eligibility Adjudicator from the WSIB’s Initial Entitlement Branch which denied his application for WSIB Loss of Earnings (“LOE”) and health care benefits.
3In its Response dated January 7, 2013, the respondent sought, among other things, that the Application be deferred pending the outcome of the applicant’s WSIB claim. By correspondence dated February 6, 2013, the respondent forwarded to the Tribunal a decision dated January 23, 2013 from the same WSIB adjudicator in which he declined to reconsider his decision to deny the applicant’s entitlement to benefits. In his decision, the adjudicator states that he will be referring the applicant’s case back to the Appeals Branch for further consideration.
4In his Reply, the applicant opposed the respondent’s deferral request.
5By Case Assessment Direction dated March 6, 2013, I directed the parties to clarify the status of the applicant’s WSIB claim. By correspondence dated March 7, 2013, the applicant advised that he had not had any contact or follow-up from the WSIB following the January 23, 2013 decision.
Decision
6The 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 seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
7In the circumstances of this case, I am not persuaded that deferral of the Application is appropriate. As noted above, the Application raises the issues of whether the respondent met its duty to provide reasonable accommodation, whether it discriminated against the applicant by reducing his hourly rate, and whether it assigned him work that exceeded his physical restrictions. By contrast, the applicant’s disability-related needs and the respondent’s alleged failure to meet them do not appear to be issues before the WSIB. On the basis of the materials before me, it appears that the issue before the WSIB is the cause of the applicant’s shoulder injury (i.e. whether it arose out of and in the course of the applicant’s employment). The cause of the applicant’s injury has limited, if any, relevance to the issues to be determined under the Code. This is because, under the Code, employers have a duty to accommodate employees’ disability-related needs, up to the point of undue hardship, whatever the cause of the disability.
8In the circumstances, I am not persuaded that the facts and issues raised in this Application overlap sufficiently with those in the proceeding before the WSIB to warrant deferral of the Application. Therefore, the respondent’s deferral request is denied.
9As the parties have agreed to mediation, the next step will be for the Registrar to schedule a mediation in this matter.
Dated at Toronto, this 22nd day of March, 2013.
“Signed by”
Jo-Anne Pickel
Vice-chair