Ana Dacosta v. ORLICK Industries Limited, 2014 HRTO 103

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ana Dacosta

Applicant

-and-

ORLICK Industries Limited

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: January 23, 2014
Citation: 2014 HRTO 103
Indexed as: Dacosta v. ORLICK Industries Limited

APPEARANCES

Ana Dacosta, Applicant
Laura McCleary, Representative

Orlick Industries Limited, Respondent
Patricia G. Murray, Counsel

Introduction

1This is an Application filed on November 7, 2012 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 and sex.

request to dismiss

2The respondent filed a Request for Order During Proceedings (“RFOP”) on June 19, 2013 seeking the dismissal of the applicant’s allegations because:

a. they are untimely;
b. the only timely allegation made in April, 2012 had no connection to a Code ground; and
c. the applicant’s allegations have been properly dealt with in another proceeding, namely in a WSIB claim (section 45.1 of the Code).

3The applicant opposed the RFOP and asserted that:

a. the allegations are not untimely because the treatment of the applicant in the workplace constituted a series of incidents ongoing since October, 2009; and
b. the Workplace Safety and Insurance Board (“WSIB”) decision is under appeal, but the decision did not deal with the issue raised in this Application, namely that the respondent did not accommodate the applicant’s updated restrictions in accordance with her 2011 medical information.

4A Case Assessment Direction (“CAD”) was issued on July 15, 2013 directing that a summary hearing take place, which it did by conference call, and all parties participated.

analysis and decision

5I heard submissions from both representatives and during the submissions with respect to section 45.1 of the Code, it became clear that there is an outstanding WSIAT appeal, which has not been resolved.

6This Application initially was deferred by the Tribunal in Decision 2013 HRTO 365 on March 4, 2013. On April 22, 2013, the applicant made a Request for Order During Proceedings (“Request”) in which she requested to reactivate the Application. She attached to the application the decision of the Appeals Resolution Officer (“ARO”) in her case which is dated October 22, 2012 -- that is, approximately two weeks before she filed her Application.

7On May 30, 2013, in Decision 2013 HRTO 955 the Tribunal noted, in reactivating the Application, that had it had full information about the status of the ARO’s decision at the time it ordered deferral, it would not have done so.

8During arguments in this hearing, the applicant’s representative submitted that she has appealed the ARO’s decision, meaning that there is an ongoing Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) appeal. The respondent’s representative argued that the appeal was filed late and may not be allowed to proceed. However, while that may be the case, the status of that appeal remains unknown at this point, and the WSIAT appeal remains ongoing.

9In the decision of the ARO, the applicant appears to have alleged that the respondent failed to accommodate her 2011 restrictions. She stated that she was terminated on May 22, 2012 because she was only performing 25% of her modified duties, but also states she is unsure why she was terminated. She further stated she was terminated by WSIB because she could not perform modified duties to the expectations of the employer. She asserted that her inability to perform her modified duties as set out in the Return to Work plan established in 2009 was prior to her diagnosis of carpal tunnel syndrome, which although it first occurred in July, 2008 recurred in November, 2010.

10The ARO’s decision concluded that “the permanent modified job of plant services housekeeping is suitable and there is no entitlement to Loss of Earnings benefits.”

11The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing WSIAT appeal based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

12In this case, some if not all of the facts and issues raised in this Application are part of the WSIAT appeal that is still in progress. Both the Application and the WSIAT appeal relate to whether the respondent offered suitable work and whether the applicant was terminated for reasons related to her injury. These issues are the same as those the Tribunal will have to decide in this Application.

13Since the issues in the Application and in the WSIAT appeal overlap, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and in the WSIAT appeal. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring this Application is appropriate. It will be the fairest and most just way of proceeding.

14The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal.

15In light of the finding with respect to deferral, I find that it is not appropriate at this stage to determine the other outstanding issues in this Application, namely the request for a section 45.1 dismissal, the dismissal of certain allegations as untimely or the request for a finding that there is no reasonable prospect of success. Those issues will be dealt with once the proceeding before the WSIAT is concluded, in the event this Application is reactivated.

order

16The Tribunal makes the following order:

a. The Application with respect to whether the applicant’s termination violated her rights under the Code and whether the applicant was appropriately accommodated is deferred until such time as the proceeding that is now before the WSIAT is completed; and
b. The remaining issues will be dealt with by the Tribunal in the event that the Application is reactivated.