Ly v. The Hospital for Sick Children, 2013 HRTO 744

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emily Ly

Applicant

-and-

The Hospital for Sick Children

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: May 3, 2013

Citation: 2013 HRTO 744

Indexed as: Ly v. The Hospital for Sick Children

WRITTEN SUBMISSIONS

Emily Ly, Applicant

Laura Lunansky, Counsel

The Hospital for Sick Children, Respondent

Robert W. Weir, Counsel

Introduction

1This is an Application filed on March 11, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to disability because of employment. In the Application, the applicant identified that a claim has been filed under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”) and was proceeding before the Workplace Safety and Insurance Board (“WSIB”).

2On March 18, 2013, the Tribunal sent a Notice of Intent to Defer letter to the parties stating that it may be appropriate to defer the consideration of the Application pending the resolution of the WSIB proceedings and seeking their submissions on this issue. The Tribunal stated that the respondent was not required, at this time, to file a Response.

3Both parties have filed submissions. The applicant opposes deferring the Application and the respondent consents to the deferral.

background

4The applicant alleges that in 2009, she became to experience pain in some fingers and an elbow when she performed her job preparing patient files. She was accommodated when she was provided with alternate work until 2011.

5In 2011, the applicant alleges, she was told that the department would no longer accommodate her. From then until December 2012 there were various meetings between her, management, and members of the respondent’s health absence management program about the work the applicant could perform. The applicant supplied a variety of medical documentation with respect to her medical condition including restrictions. The applicant disagreed with the appropriateness of the work offered by the respondent throughout this period, was disciplined when she refused to perform work that caused her pain, and was threatened with termination if she did not perform the work assigned to her by the respondent. The applicant has stopped working due to, she alleges, the respondent’s failure to accommodate her disability.

6The applicant filed a claim for benefits under the WSIA and had various interactions with personnel from WSIB including an occupational therapist, and a return-to-work specialist about appropriate suitable work. She received a decision from WSIB dated November 6, 2012 which determined that a work related permanent impairment did not exist and there was no further entitlement to benefits. She has appealed that decision (“the applicant’s appeal”).

the parties’ position

7The applicant opposes deferring the Application. She submits that there is no overlap between the remedies sought in each proceeding and WSIB has issued a further decision allowing ongoing entitlement for one of the applicant’s areas of disability and has re-activated return to work services. While both proceedings may address the issue of whether or not the respondent has offered suitable accommodated work, WSIB will not consider the human rights issues of harassment and discrimination. The issue that WSIB will consider will be much narrower than that examined by the Tribunal. The Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) could review the situation more broadly than WSIB, but it will take a long time for the applicant to appear before WSIAT as she must exhaust avenues before WSIB before appearing before WSIAT.

8The respondent submits that the Tribunal should defer the Application pending the outcome of the WSIB appeal. The proceedings before the WSIB are not at a very early stage and they are not proceeding slowly. The issues before WSIB and the Tribunal raise similar issues, the suitability of modified duties, and in similar situations the Tribunal has deferred other Applications.

decision

9The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

10In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, at para. 18 to 19, the Tribunal stated:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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

11In this case, there is overlap between the issues before the Tribunal and those before WSIB, particularly with respect to the issue of work that was offered to the applicant and work that the applicant is capable of performing. As there has been, since November 2012, a further WSIB decision which not only allows part of the applicant’s claim but re-activates return to work services, and the applicant’s appeal of WSIB’s November 6, 2012 decision, it is appropriate, in my view, to defer the Application until the WSIB return to work services and WSIB’s decision, at its next level, of the applicant’s appeal are completed.

12The Application will therefore be deferred pending the completion of WSIB’s return to work services and WSIB’s decision, at its next level, of the applicant’s appeal.

13The 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 return to work services and WSIB’s decision of the applicant’s appeal.

14I am not seized with this matter.