Michael Hastings v. ArcelorMittal Dofasco Inc., 2013 HRTO 683

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Hastings

Applicant

-and-

ArcelorMittal Dofasco Inc.

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 24, 2013

Citation: 2013 HRTO 683

Indexed as: Hastings v. ArcelorMittal Dofasco Inc.

APPEARANCES

Michael Hastings, Applicant

Angela Mancini, Representative

ArcelorMittal Dofasco Inc., Respondent

Bettina Burgess, Counsel

1This is an Application filed 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 states that the respondent failed to accommodate the applicant after he suffered a work related injury. The respondent denies the allegations and asserts that it made reasonable efforts to accommodate the applicant.

3In an earlier Interim Decision in this matter, 2013 HRTO 337, the Tribunal directed the parties to make written submissions regarding whether the Tribunal should defer this Application in light of the applicant’s ongoing proceedings before the Workplace Safety and Insurance Board (“WSIB”) arising out of the same factual circumstances as the Application.

RESPONDENT’S SUBMISSIONS

4The respondent submitted that the applicant received loss of earnings (“LOE”) benefits and non-economic loss (“NEL”) benefits from the WSIB as a result of his injury. The respondent submitted that the WSIB advised the applicant in April 2012 that it considered that no further significant improvement in his medical condition was expected. The respondent submitted that by this time it had informed the WSIB that it did not have a position for the applicant that he could perform given his physical restrictions. Accordingly, the WSIB required the applicant to participate in a Work Transition Plan (“WTP”) intended to provide training to the applicant in order that he could obtain employment in a job within his medical restrictions. The respondent submitted that the applicant objected to the WTP and filed an appeal with respect to it. The respondent submitted that the applicant also appealed a reduction in his benefits, which occurred after the WSIB took the position that the applicant was not participating in the WTP process.

5The respondent submitted that applicant’s allegations of discrimination and failure to accommodate relate to his compensable injury and the attempts to return the applicant to work following that injury. The respondent submits that the Tribunal would be required to assess the applicant’s physical restrictions, the work he is able to perform, the respondent’s efforts to accommodate the applicant and the availability of accommodated work in the respondent’s operations. The respondent submits that the WSIB will have to consider the same issues in determining the suitability of the WTP, the applicant’s LOE benefits and his NEL benefits. The respondent noted that the applicant is seeking damages in the Application for losses that are compensable under the WSIB insurance plan, which raises the prospect of double recovery. In that regard, the respondent submitted that any WSIB ordered increase in the applicant’s LOE benefits would reduce the damages the Tribunal could order, assuming the applicant establishes a breach of the Code. However, the respondent submitted that it would not be able to obtain such a reduction if the Tribunal awarded damages for lost income and the WSIB subsequently also granted increased LOE benefits, since the WSIB pays benefits directly to its employees.

6The respondent submitted that the Tribunal will generally defer to WSIB proceedings that raise similar issues of fact or law, or that seek similar remedies.

APPLICANT’S SUBMISSIONS

7The applicant acknowledged that the applicant has appealed the suitability of the WTP and the reduction of his NEL award. The applicant submitted that the issues arising in these appeals are not related to the issues arising in the Application. The applicant submitted the WSIB will not address the issue of an alleged failure to accommodate the applicant. The applicant further submitted that the WSIB does not assess an employer’s accommodation efforts and does not determine undue hardship. The applicant submitted that his WSIB appeals have not yet been assigned to an Appeals Resolution Officer. The applicant noted that the WSIB pays only 85 per cent of lost wages and that the applicant seeks compensation for lost benefits and general damages in the Application.

RESPONDENT’S REPLY

8The respondent submitted that the applicant effectively argued that because the WSIB and Tribunal will address different legal issues the Application should not be deferred. The respondent submitted that the WSIB will address the same factual issues in determining whether the WTP and the applicant’s benefits were appropriate as the Tribunal will consider in determining whether discrimination or a failure to accommodate occurred.

9The respondent also submitted that the WSIB does in fact have clear and express jurisdiction to address allegations that the respondent did not accommodate the applicant to the point of undue hardship when he attempted to return to work, pursuant to section 41(6) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16. The respondent submitted that this issue was addressed through the WSIB’s Return to Work Specialist and is an issue in the appeal regarding the suitability of the WTP.

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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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 Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

11The issues involved in the applicant’s WSIB appeals and the Application are not identical, but I am satisfied that the Application should be deferred pending the resolution of the WSIB proceedings. There is significant overlap in the factual issues raised in the proceedings before the WSIB and the Tribunal, which raises the potential for inconsistent findings if the matters proceed concurrently. The remedial issues also overlap, as the applicant seeks compensation for lost income in both forums and the Tribunal would likely consider the LOE benefits to which the applicant is entitled in assessing the appropriate remedy, assuming the applicant succeeds in establishing a breach of the Code.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

13I am not seized.