Tate v. Strathroy Turf Farms, 2014 HRTO 1448

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruce Tate

Applicant

-and-

Strathroy Turf Farms and James Glover

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: September 26, 2014

Citation: 2014 HRTO 1448

Indexed as: Tate v. Strathroy Turf Farms

WRITTEN SUBMISSIONS

Bruce Tate, Applicant

Beth Walden, Counsel

Strathroy Turf Farms and James Glover, Respondents

Todd Cook, Representative

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application is scheduled for hearing on January 7 and 8, 2015.

2This Interim Decision deals with a request by the respondents that the Application be deferred pending the conclusion of proceedings at the Workplace Safety and Insurance Board (WSIB).

3The applicant alleges that the respondents terminated his employment because he reported that he had suffered a work-related injury. The respondents allege that the applicant's employment was terminated for cause and that the termination occurred before the applicant said anything about an injury.

4The applicant filed a claim with the WSIB. The WSIB determined that the applicant had suffered a work-related knee injury on the date reported by the applicant. However, the WSIB determined that the applicant was not entitled to loss of earnings benefits for two reasons.

5First, the WSIB determined that the applicant had sustained only a minor injury and that any ongoing knee disability was related to a pre-existing condition that was not the responsibility of the WSIB. Second, the WSIB determined that the applicant was fired for cause and concluded that as a result, any ongoing loss of earnings did not result from the injury.

6The applicant has filed an objection with the WSIB Appeals Branch. It appears that a date has not yet been set. As noted, at this Tribunal, hearing dates in January 2015 have been set.

Deferral

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.

Analysis and Conclusions

10In the Application, the applicant alleges that the fact that he suffered a work-related injury and reported the injury to his employer was a factor in the decision to terminate his employment. The definition of "disability" in section 10 of the Code includes:

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

11The applicant therefore alleges that he therefore experienced discrimination because of disability.

12The issue before the WSIB is whether the applicant has a loss of earnings that results from the work-related injury. The WSIB has determined that he doesn't for two reasons. First the WSIB has determined that the applicant had only a temporary disability as a result of the work-related injury and that any ongoing disability results from a pre-existing and non-work-related condition.

13It appears that if the applicant's objection to that finding is upheld, the applicant will be not entitled to loss of earnings benefits and the WSIB will not consider the issue of whether the applicant reported an injury and whether this was a factor that contributed to the decision to terminate the applicant's employment.

14However, the WSIB may also consider the applicant's objection to the determination that he was fired for cause and concluded that any ongoing loss of earnings did not result from the injury.

15As the applicant notes in his submissions on the deferral request, the WSIB does not have jurisdiction to determine whether the termination of his employment was discriminatory under the Code. However, the WSIB does have jurisdiction to determine if the applicant's loss of earnings results from the work-related injury. It appears to me that if this issue is considered by the WSIB, that consideration will likely include the applicant's allegation that he reported his injury before his employment was terminated and that his reported injury was a factor in the decision to terminate the applicant's employment.

16This means that there is a clear potential that the issue raised in the Application will also be raised in the proceeding at the WSIB. This fact favours deferral.

17Factors that suggest deferral may not be appropriate include that the WSIB may not deal with the issue raised in the Application and that the Tribunal has set a date for a hearing but the WSIB has not. In regard to the timing issue, I note that the respondent's request that the Application be deferred was filed with the Tribunal on August 20, 2014, shortly after the Notice of Hearing was sent to the parties on August 6, 2014, and not long after a mediation session at the Tribunal on July 14, 2014.

18In 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. At that point, there may be some clarity about the issues that the WSIB is or is not dealing with. In my view, the fact that the Tribunal has set a date for a hearing and the WSIB has not is not a sufficient reason to not defer. However, if the applicant believes in the future that the WSIB process has become unduly delayed, he may request that the Application be re-activated on that basis.

19The Application is therefore deferred pending a decision by a WSIB Appeals Resolution Officer. The applicant must request re-activation within 60 days of that decision.

20The applicant may also request re-activation of the Application if he 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.

21The hearing scheduled for January 7 and 8, 2015 is canceled.