Darrell Soulliere v. Mucci-Pac Ltd., 2013 HRTO 858

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Soulliere

Applicant

-and-

Mucci-Pac Ltd.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: May 17, 2013 Citation: 2013 HRTO 858 Indexed as: Soulliere v. Mucci-Pac Ltd.

WRITTEN SUBMISSIONS

Darrell Brian Soulliere, Applicant ) Christine Lundy, Representative

Mucci-Pac Ltd. ) Garth M. Kidd, 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”).

2In his Application, 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 claimed that the respondent failed to accommodate his disability and terminated him because it did not want to accommodate his disability.

3The applicant suffered a work-related back injury which was reported to the WSIB. Following this, he suffered an injury to his ribs due to a fall down the stairs at his home. The applicant and respondent participated in various return to work meetings with a WSIB representative. The parties signed a return to work agreement but the applicant took the position that the accommodated job did not meet the restrictions identified by his doctor. By letter dated February 3, 2012, the WSIB terminated the applicant’s loss of earnings benefits for refusing suitable work. The applicant filed an objection to the WSIB Case Manager’s decision.

4On its Response form, the respondent requests a deferral of the Application. However, it did not provide reasons for its request.

5The applicant submits that a deferral is inappropriate because, in its view, the issues in each proceeding are significantly different. The applicant submits that there is no duplication between the proceedings and the risk of conflicting decisions is non-existent. According to the applicant, the issues raised in the WSIB appeal are the following:

a. the process by which the WSIB determines that work proposed by an employer is “suitable”;

b. whether, when assessing the suitability of work, the WSIB takes into account the presence of conditions other than those deemed compensable under the Workplace Safety and Insurance Act (WSIA); and

c. whether the WSIB Case Manager properly assessed the applicant’s experience of pain.

6The applicant submits that there is nothing in the appeal that addresses the termination of the applicant’s employment. It also submits that there is nothing that addresses the respondent’s failure to accommodate disabilities that extend beyond those that are compensable under the WSIA.

7The usual considerations when determining if an Application should be deferred were stated in Calabria v. DTZ Barnicke, 2008 HRTO 411:

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. 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 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.

8The Tribunal has generally deferred consideration of Applications when there is considerable overlap between the issues raised in the Application and the issues raised in a WSIB proceeding. It is clear that the issues raised in the WSIB appeal and the issues raised in the Application are not identical. However, it appears to me that there is an overlap of issues that is not insignificant. The critical issue at the Tribunal will be whether the respondent accommodated the applicant’s disability to the point of undue hardship and whether it terminated his employment for discriminatory reasons. Consideration of that issue will necessarily include some determination about the nature and degree of the applicant’s disabilities as well as whether the modifications offered by the employer met its duty to accommodate. The WSIB Appeals Resolution Officer will have to make a similar determination, although the focus there will be on whether the applicant refused suitable work. The WSIB has not considered the termination of the applicant’s employment but could do so if it were to determine that the applicant has an ongoing entitlement to benefits.

9In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the proceeding underway at the WSIB is complete. The proceeding at the WSIB will be considered complete when the WSIB has issued a final decision on the issues relevant to the issues in the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. If there is a subsequent appeal of such a decision to the Workplace Safety and Insurance Appeals Tribunal, the question of whether the Application should be deferred to that proceeding may be reviewed.

10The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding. In particular, under this Rule, a party wishing to proceed with an Application must file a request to proceed no later than 60 days after the conclusion of the other proceeding

Dated at Toronto, this 17th day of May, 2013.

“signed by”

Jo-Anne Pickel

Vice-chair

CORRECTION

The Interim Decision dated May 17, 2013 contains a typographical error on the cover page in the “Indexed as” line. In the original Interim Decision, the Index is identified as “Lang v. Servisol Home Improvements Inc. instead of “Soulliere v. Mucci-Pac Ltd”.

The Interim Decision now reflects the correct index.