Sheri Jalava v. Ontario Lottery and Gaming Corporation, 2013 HRTO 860

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheri Jalava Applicant

-and-

Ontario Lottery and Gaming Corporation Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: May 17, 2013 Citation: 2013 HRTO 860 Indexed as: Jalava v. Ontario Lottery and Gaming Corporation

1This is an Application filed under s. 34 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. The Application was filed on August 12, 2011.

2In Interim Decision 2012 HRTO 2396, the parties were asked to make submissions on whether the Application was filed in accordance with section 34 of the Code:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

3The applicant was directed to file a summary of the Code-related issues and to address the issue of whether the allegations that relate to things that happened more than one year before the Application was brought can be heard.

4The applicant filed submissions indicating that she has a number of disabilities and that some are work-related and some are not. The applicant indicates that these started in 2003 with the onset of bilateral carpal tunnel syndrome. The submissions provided by the applicant do not identify any specific issues relating to accommodation of disability until a period starting in January 2010, following a period of about one year when the applicant was off work after neck surgery although there is a suggestion that there was a failure to accommodate as early as June 2008 when the applicant went off work and received full loss of earnings benefits from the WSIB.

5The applicant indicates that after January 2010 she was offered a number of different positions which were found by the WSIB to be not suitable. Laterally there was in particular a focus on the position of Player Services Representative. The applicant indicates that she had further neck surgery in February 2011.

6She indicates that return to work discussion resumed in about August 2011 and that the focus was again on the Player Services Representative position. The WSIB eventually determined that this position was suitable for the applicant. However the applicant stopped work on January 13, 2012 and she has apparently remained off work since.

7The applicant alleges that the Player Services Representative position was not suitable and that the respondent failed to accommodate her disabilities.

8In addition, the applicant advances an argument that the respondent has discriminated against the applicant on the grounds of disability in the way it has calculated the applicant’s entitlement to various work benefits since January 13, 2012.

9The applicant submits that there has been a series of incidents relating to the respondent’s overall alleged failure to accommodate the applicant’s disabilities. In the alternative she submits that any delay was incurred in good faith because the applicant was waiting to see if the respondent would accommodate without having to resort to litigation.

10In its submissions, the respondent submits that the Player Services Representative position was suitable for the applicant. The respondent did not specifically address the timeliness of the Application but instead submitted that the Application should be deferred because there is ongoing adjudication at the WSIB.

11The respondent then filed a Request for Order During Proceedings, expressly asking that the Application be deferred pending a determination of the applicant’s entitlement to benefits from the Workplace Safety and Insurance Board (WSIB).

12The parties both indicate that the applicant objected to the decision that the Player Services Representative was suitable and that the objection was referred to the WSIB Appeals Services Division. The applicant indicated that the objection would be considered by an Appeals Resolution Officer in May 2013.

13The applicant submits that the Application should not be deferred. The applicant submits that the main issue in the Application is whether the respondent has accommodated the applicant to the point of undue hardship. The applicant agrees that the issue of the suitability of the Player Services Representative position is an important issue but that “there is a much larger issue looking at the history as a whole as to whether the Respondent has accommodated the applicant since she left work in June 2008.”

CONCLUSIONS

14It appears to me that all of the allegations in the Application relate closely to the adjudication by the WSIB. The suitability of the Player Services Representative position seems to have figured large in that adjudication starting in 2010. Since January 2012, the suitability of the Player Services Representative position has been a major issue. The respondent maintains that it accommodated the applicant when it offered the position to the applicant. The applicant maintains that the position is not suitable. The WSIB has determined that the position is suitable. The applicant has objected to that determination and the objection is expected to be dealt with in May 2013.

15Some 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.

16I am satisfied that it is appropriate to defer further consideration of the Application until at least the WSIB Appeals Resolution Officer has made a decision on the applicant’s objection. That decision will represent a final decision of the WSIB on what is clearly an important issue in the Application. A decision appears imminent.

17The Application is deferred pending a decision of the Appeals Resolution Officer. If it turns out that a decision is not imminent and if the applicant feels that the deferral will result in undue delay she may file a Request for Order During Proceedings explaining the circumstances. Otherwise, the applicant may apply to have the Application re-activated within 60 days of the decision of the Appeals Resolution Officer.

18The issue of the timeliness of the Application is also deferred. There are two reasons for this. First, unless the Application is re-activated it may not be necessary to determine this issue. Second, it appears to me that the issue of the timeliness of the Application needs to be considered in conjunction with section 45.1 of the Code:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

19Section 45.1 arises because it seems clear that the WSIB has been intricately involved in the return to work and accommodation process in this case. It has been required to make a number of decisions regarding these processes and also has made determinations regarding the applicant’s entitlement to benefits. It seems possible that the WSIB proceedings may have dealt with the substance of the Application as it relates to allegations of a failure to accommodate in the period from 2008, when the applicant alleges the respondent failed to accommodate her disability up to August 2010 (one year before the Application was filed). As noted, it seems clear that the issue presently before the WSIB Appeals Resolution Officer of whether the Player Services Representative position was suitable is very relevant to any allegations concerning events since January 2012 when the applicant went off work.

20If and when the Application is re-activated it will be necessary to further clarify both the timeliness of the Application and the operation of section 45.1 of the Code.

ORDER

21The Application is deferred pending a decision of the Appeals Resolution Officer. If it turns out that a decision is not imminent and if the applicant feels that the deferral will result in undue delay she may file a Request for Order During Proceedings explaining the circumstances. Otherwise, the applicant may apply to have the Application re-activated within 60 days of the decision of the Appeals Resolution Officer.