Gauthier v. EFCO Canada Co., 2014 HRTO 1193

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean-Marc Gauthier

Applicant

-and-

EFCO Canada Co.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: August 8, 2014

Citation: 2014 HRTO 1193

Indexed as: Gauthier v. EFCO Canada Co.

WRITTEN SUBMISSIONS

Jean-Marc Gauthier, Applicant

Beth Walden, Counsel

EFCO Canada Co., Respondent

Sara Malkin, Counsel

1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that his employment was terminated because of his age and an ongoing disability.

2The respondent denies it discriminated against the applicant on any ground. The respondent submits that the Application should be dismissed as having no reasonable prospect of success. In the alternative, the respondent submits that the Application should be deferred pending a proceeding underway at the Workplace Safety and Insurance Board (WSIB).

REQUEST FOR SUMMARY HEARING

3It appears that the request for a summary hearing rests on the respondent’s view that it did not discriminate against the respondent. If the respondent’s view of the matter were accepted, this would be true. However, if the applicant's view of what happened were accepted, there would be a basis for a finding of discrimination. The fact that the respondent disputes the applicant's allegations is not a sufficient reason to hold a summary hearing. The request for summary hearing is denied. At this time the Tribunal will not schedule a summary hearing.

DEFERRAL

4Deferral of an application ensures that proceedings dealing with the same issues do not run at the same time, to reduce the possibility of inconsistent decisions on facts or law.

5Some 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, having regard to the status of each proceeding and the steps that have been taken to pursue them.

6In this case, the applicant has filed an objection with the WSIB in regards to various issues. These include whether various disabilities are work-related, whether he has a work-related permanent impairment, “suitability of the light work”, and whether the applicant is entitled to loss of earnings from February 6, 2013, the date his employment was terminated.

7The substance of the Application is the applicant’s allegation that he was harassed because of his age and disability in the period from 2010 to 2012 and that he was fired for discriminatory reasons.

8It is apparent that there is some overlap between the issues that may be considered by the WSIB and the issues in the Application. However, in my view, the overlap is not sufficient that the Application must be deferred. If the applicant is successful at the WSIB, he could be entitled to additional benefits from the WSIB. In particular, he could be entitled to loss of earnings benefits after February 6, 2013. Since the applicant is also claiming compensation for lost income in the Application, a successful objection at the WSIB could impact any remedy the applicant might receive from this Tribunal following a hearing where it was determined that the termination of the employment was discriminatory. If this finding was reached after a successful outcome at the WSIB, any loss of earnings awarded would be considered in calculating any wage loss claim the applicant might have. If the WSIB determination followed a successful outcome at this Tribunal, the WSIB would consider any award for loss of earnings award by the Tribunal. The fact that there is a potential overlap in respect of remedy is not a reason to defer.

9It does not appear that the WSIB would consider whether the termination of the applicant’s employment was discriminatory or whether the applicant experienced harassment contrary to the Code during his employment. First, it is not clear that these issues are relevant to the issues in the applicant’s objection to the WSIB and secondly the WSIB has no jurisdiction to determine if the respondent infringed the applicant’s Code-protected rights in the manner alleged by the applicant in the Application.

10For these reasons, I find that it is not appropriate to defer the Application at this time. However, the applicant is directed to keep the Tribunal and the respondent advised of the progress of his objection at the WSIB and in particular of any decision the WSIB may make respecting his entitlement to benefits.

11As both parties have consented to mediation, the Tribunal will schedule a mediation session.