Groen v. Windsor-Essex Children’s Aid Society, 2014 HRTO 1439

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Lou Groen Applicant

-and-

Windsor-Essex Children’s Aid Society Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 26, 2014 Citation: 2014 HRTO 1439 Indexed as: Groen v. Windsor-Essex Children’s Aid Society

WRITTEN SUBMISSIONS

Mary Lou Groen, Applicant Christine Lundy, Representative

Windsor-Essex Children’s Aid Society, Respondent Jack Sullens, Representative

INTRODUCTION

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of an objection/appeal filed in relation to a decision made by a case manager from the Workplace Safety and Insurance Board (“WSIB”).

2In her Application the applicant alleged that the respondent discriminated against her because of disability in violation of the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). In particular, the applicant alleged that the respondent failed to accommodate her disability after she experienced a concussion after a fall on the respondent’s property. She also claimed that her disability was a factor in her termination of employment by the respondent.

APPLICANT’S WSIB CLAIM

3After her fall, the applicant filed a claim with the WSIB. The parties took part in a return to work process and the WSIB determined that the applicant was not entitled to loss of earning benefits beyond November 11, 2013. The applicant’s file was then referred to the WSIB’s re-employment team as the respondent terminated the applicant’s employment during the re-employment obligation period found in the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A. A case manager of the WSIB’s Re-Employment Team determined that the respondent had provided sufficient information to support its position that the decision to terminate the applicant was unrelated to her workplace injury or her WSIB claim. The applicant filed a Notice of Objection on June 3, 2014, in which she sought to have the case manager review her decision.

4On August 14, 2014, the Tribunal issued a Notice of Intent to Defer in which it advised the parties of that it may be appropriate to defer consideration of the Application pending the outcome of the WSIB proceeding. The Notice sought submissions from the parties on the deferral issue.

5The applicant opposed deferral on the basis that the WSIB process is still at a very early stage and that it remains at an administrative rather than adjudicative stage. The applicant also claimed that the WSIB process is focused on a claim for loss of earning benefits and not on the applicant’s broader discrimination claims set out in her Application.

6The respondent supported deferral.

ANALYSIS AND CONCLUSIONS

7Section 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, 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.

8Deferral 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.

9Some 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.

10The applicant’s main claim in her Application is that her disability was a factor in the respondent’s decision to terminate her employment. The issue before the WSIB is whether the applicant has a loss of earnings that resulted from her work-related injury. As the applicant noted in her submissions on the deferral request, the WSIB does not have jurisdiction to determine whether the termination of her employment was discriminatory under the Code. However, it does appear that the WSIB will be called upon to determine whether the applicant’s injury was a factor in the respondent’s decision to terminate her employment.

11This means that there is a clear potential that the main issue raised in the Application will also be dealt with by the WSIB. This fact favours deferral. In my view, it is appropriate to defer further consideration of this Application at least until such time as the applicant's objection has been considered by a WSIB Appeals Resolution Officer (“ARO”). At that point, there may be some clarity about the issues that the WSIB is or is not dealing with. However, if the applicant believes in the future that the WSIB process has become unduly delayed, she may request that the Application be re-activated on that basis.

ORDER

12The Application is deferred pending a decision by a WSIB ARO with respect to the applicant’s case or a decision by the applicant not to pursue an appeal to an ARO. The applicant must request re-activation within 60 days of a decision by an ARO or the expiry of the period during which she may file an appeal to an ARO.

13The applicant may also request re-activation of the Application if she believes that the WSIB process has become unduly delayed. Such a request must include the status of the process and the reasons why the applicant believes that there is undue delay.

14I am not seized of this matter.