HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muhammad Rizwan

Applicant

-and-

Cosmetica Laboratories Inc.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: April 24, 2013

Citation: 2013 HRTO 688

Indexed as: Rizwan v. Cosmetica Laboratories Inc.

WRITTEN SUBMISSIONS

Cosmetica Laboratories Inc., Respondent

Carmine Scalzi, Counsel

1The applicant filed this Application on June 25, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent denied him appropriate disability-related accommodation, tried to force him to resign and then ultimately issued a record of employment erroneously indicating that he had quit.

2The respondent filed a Response on July 31, 2012 denying the allegations. The respondent alleges that the applicant did not notify it about his disability or accommodation needs and maintains that the applicant resigned. The respondent alleges that it only learned about the applicant's disability-related claims when contacted by the Workplace Safety and Insurance Board ("WSIB").

3On March 23, 2013, the respondent filed a Request for an Order during Proceedings seeking that the Application be deferred to allow an appeal before the Workplace Safety and Insurance Appeals Tribunal ("WSIAT") to be heard first. The respondent indicates that the facts of the Application are part of a WSIB claim. The respondent provided a copy of a WSIB Eligibility Adjudicator decision dated April 27, 2012, which the respondent submits is now under appeal. The respondent argues that the WSIAT appeal will address fundamental issues that applies to the current human rights matter.

4The applicant did not file submissions regarding deferral.

DEFERRAL

5The 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.

6Some 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.

7The 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, supra, 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, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability.

8Based on the information provided by the respondent, it appears that the applicant is currently pursuing an appeal before WSIAT regarding his entitlement to benefits and challenging the finding that his conditions are not a work-related injury. It appears that the WSIB claim was commenced prior to the human rights Application and that the factual background of the Application is entirely the same as the WSIB matter. Further, it appears that the human rights allegations of failure to accommodate the applicant's conditions are matters relevant to the WSIB claim.

9I find that the Tribunal should defer this Application because the parties are currently involved in the WSIB/WSIAT process dealing with the same issues as the Application. The subject matter of the WSIB/WSIAT proceedings overlap with the Application, specifically the issue of the nature and degree of the applicant's disability, ability to work, the respondent's knowledge of the applicant's conditions and whether or not accommodation was forthcoming. In addition, there is the matter of compensation that flows from the challenged benefits entitlement which potentially also overlaps with the remedies sought in the Application.

10As previously noted, the Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts raised in the Application. I see no reasons to depart from this approach given the on-going WSIB/WSIAT proceedings. In these circumstances, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.

11Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the WSIAT appeal.

12The Tribunal directs the parties' attention 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 WSIAT process.

13I am not seized of this matter.

Dated at Toronto, this 24th day of April, 2013.