HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dean Lawrence
Applicant
-and-
Lift Services Incorporated
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Lawrence v. Lift Services Incorporated
WRITTEN SUBMISSIONS
Dean Lawrence, Applicant
Self-represented
Lift Services Incorporated, Respondent
No Submissions
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”, alleging discrimination in employment due to disability. In his Application, the applicant advises that he is also appealing a decision of the Workplace Safety and Insurance Board (WSIB).
2The applicant was employed by the respondent as a truck driver. He alleges that the respondent terminated his employment due to his workplace injury.
3The respondent provided a Response to the Application, denying that it had violated the Code.
4The applicant did not file a Reply, but filed a Request for Order During Proceedings (RFOP) on April 26, 2013, seeking deferral of his application pending completion of his appeal of a WSIB decision.
5The respondent has not filed a Response to the applicant’s Request.
6Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.
FACTS AND SUBMISSIONS
7The applicant alleges that the respondent terminated his employment without notice on September 27, 2012, “due to an on-the-job injury”. He alleges that he injured his knee at work on April 30, 2012, and that when he returned to work on modified duties on May 29, 2012, some members of management treated him in a “different manner” which made him uncomfortable and fearful of reprisal. He alleges that the modified work irritated his injury, leading to his absence from work again effective July 13, 2012. He states that his family physician provided new medical restrictions on August 16, 2012, and that the respondent advised it had no duties suitable to his restrictions. Accordingly, he states, he remained off work. He indicates that on August 24, 2012, the WSIB issued a decision denying him any benefits after July 12, 2012. He alleges that the respondent terminated his employment on September 17, 2012, advising that his termination was due to the increased expense they incurred in hiring an “outside contractor” to perform his duties in his absence. He also states that he had corrective surgery to his knee on October 23, 2012 and that he was cleared for a return to work on November 7, 2012. By way of remedy, he seeks financial compensation, which he appears to be claiming for loss of wages for a period of five years.
8The applicant provided a copy of the WSIB’s August 24, 2012 decision with his application. It reviews medical reporting of degenerative changes and a medial meniscus tear in his right knee, and confirms that his WSIB entitlement remains “limited to a right knee sprain/strain”. It states that the work he had been performing prior to July 12, 2012, was “considered suitable for the allowed entitlement in this case”. In this decision, the WSIB denies him entitlement to Loss of Earnings benefits from July 13, 212 and denies him entitlement to health care benefits beyond August 2, 2012, when it considered the strain/strain to be resolved.
9In its Response, the respondent asserts that it retained the services of a third party to provide truck driving services for it when the worker was absent due to his workplace injury. It asserts that following receipt of correspondence from the WSIB on August 27, 2012, the respondent concluded that the applicant’s continuing inability to work was not due to his initial workplace injury, but was due to degenerative conditions. It asserts that it concluded that there was “no foreseeable prognosis for Dean’s return to work”. It asserts that it continued to ask the applicant for information regarding when he may be able to return to work, but that the applicant confirmed that there was “no prognosis for his return to work”. The respondent asserts that in these circumstances, given the extra costs involved in contracting with an external third party for truck driving services, it faced an “undue hardship” and “had no choice” but to terminate the applicant’s employment and fill his position.
10In his RFOP, the applicant submits that the Response “relies heavily on statements drawn from decisions made by the WSIB” and states that a successful appeal of those decisions “will clearly show that the statements made by the respondent are erroneous”.
Is Deferral Appropriate in these Circumstances?
11The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not in and of itself a reason to defer dealing with an Application.
12In Calabria v. DTZ Barnicke, 2008 HRTO 411, 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. 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.
13Though the applicant has indicated that the WSIB appeal would affect the weight to be given to the respondent’s statements, it appears that the WSIB appeal will be centred on the question of causation and whether the applicant’s ongoing knee condition was related to a workplace accident. The question before this Tribunal, however, is whether the respondent employer violated the Code in terminating the applicant’s employment. The subject matter of the other proceeding is not the same as the subject matter of this Application. The nature of the other proceeding is likely to focus on the question of causation in order to determine his eligibility for benefits related to loss of earnings after his last day at work, July 12, 2012, as well as eligibility for benefits related to medical expenses.
14In the proceeding at the WSIB, the applicant is seeking eligibility for loss of earnings benefits which may include the same period that he claims compensation for loss of earnings in the proceeding at this Tribunal and so there is potentially some overlap in regard to the remedies that may be available in the two proceedings, although each system would have regard to any remedies or benefits paid by the other system.
15The proceeding at the WSIB is not very far advanced. There is no indication yet that a hearing date has been set for the applicant’s appeal regarding his eligibility for benefits. Accordingly, there could be significant delay before there is a final decision from the workplace safety and insurance system on the issues that are relevant to the question of remedy in the Application before this Tribunal. The proceeding at this Tribunal, while not at an advanced stage, will not involve any intermediate questions, such as eligibility for benefits.
16In considering the factors of 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 defer having regard to the status of each proceeding and the steps that have been taken to pursue them, I find that it is not appropriate to defer consideration of the Application at this time. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.
17I am not seized of this matter.
Dated at Toronto, this 22nd day of May, 2013.
”signed by”
Maureen Doyle
Vice-chair