Weatherill v. PepsiCo Canada ULC, 2014 HRTO 1337

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Weatherill

Applicant

-and-

PepsiCo Canada ULC

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 10, 2014

Citation: 2014 HRTO 1337

Indexed as: Weatherill v. PepsiCo Canada ULC

WRITTEN SUBMISSIONS

Elizabeth Weatherill, Applicant

Wade Poziomka, Counsel

PepsiCo Canada ULC, Respondent

Lorenzo Lisi, 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”). It also addresses the respondent’s request for particulars.

1By Application filed on May 28, 2014, the applicant alleged that the respondent discriminated against her in employment because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, she claimed that the respondent failed to provide reasonable accommodations for her disabilities.

Deferral Request

2In its Response, the respondent requested that the Tribunal defer consideration of the Application pending the outcome of the applicant’s WSIB appeal. By correspondence dated April 25, 2014, the WSIB determined that the applicant had recovered from her two workplace injuries and suffered from an underlying non-occupational injury. The applicant has appealed this determination.

3The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any 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 to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

4I find that deferral is not appropriate in the circumstances of this case. As noted above, the Application raises the issue of whether the respondent met its duty to provide reasonable accommodation for the applicant’s disabilities. By contrast, the applicant’s disability-related needs and the respondent’s alleged failure to meet them are not issues before the WSIB. The issue raised in the applicant’s WSIB appeal is the cause of the applicant’s ongoing injury (i.e. whether it arose out of and in the course of the applicant’s employment). The cause of the applicant’s injury has no relevance to the issues to be determined under the Code. This is because, under the Code, employers have a duty to accommodate employees’ disability-related needs, up to the point of undue hardship, whatever the cause of the disability.

5In the circumstances, I am not persuaded that the facts and issues raised in this Application overlap sufficiently with those in the proceeding before the WSIB to warrant deferral of the Application. Therefore, the respondent’s deferral request is denied.

Request for particulars

6In its Response, the respondent requested full particulars of the applicant’s alleged loss of benefit coverage. It took the position that it could not fully respond to the allegations in the Application without this information.

7The respondent’s request is denied. Any particulars relating to the applicant’s loss of benefits relate exclusively to the issue of remedy. These particulars are not required for the respondent to be able to file a full Response to the Application. In fact, I note that the respondent has filed a full Response to the Application which further supports my finding that the requested particulars were not necessary at this point of the proceeding.

ORDER

8For the reasons set out above, the respondent’s deferral request and its request for particulars are denied.

9As the parties have agreed to mediation, the next step will be for the Registrar to schedule a mediation in this matter.