Abu Amin v. ASP Incorporated, 2014 HRTO 1533

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abu Amin

Applicant

-and-

ASP Incorporated

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 14, 2014

Citation: 2014 HRTO 1533

Indexed as: Amin v. ASP Incorporated

WRITTEN SUBMISSIONS

Abu Amin, Applicant

Self-represented

ASP Incorporated, Respondent

David Ross, Counsel

1This Case Assessment Direction addresses issues raised by the respondent in its Response to the applicant’s Application. The Application alleges discrimination in employment because of disability. In particular, the Application alleges that the respondent failed to adequately accommodate his disability when it offered the applicant a job that he felt was not suitable.

2The Response noted that the disability in this case arose as a result of a work-related injury for which the applicant was entitled to benefits from the Workplace Safety and Insurance Board (WSIB). The respondent noted that the WSIB determined that the job that the respondent offered was suitable and determined that the applicant had refused suitable work that was available at no loss of earnings. On that basis, the WSIB determined that the applicant was not entitled to loss of earnings benefits after the date that the job was offered by the respondent and refused by the applicant.

3The applicant has filed an objection with the WSIB Appeals Branch.

4The respondent asserts that the Application should be dismissed under section 45.1 of the Code which provides:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

5The respondent asserts that the WSIB appropriately dealt with the substance of the Application through its decision about the suitability of the job that was offered.

6The applicant argues that the WSIB has not appropriately dealt with the substance of the Application. He says that the substance of the Application deals with his allegation that the respondent discriminated against him contrary to the Code. He says that the WSIB does not have jurisdiction to make a finding of discrimination under the Code and that as a result, the WSIB cannot deal with the substance of the Application.

7In the alternative, the respondent asks that the Application be deferred until the applicant has a final decision from the Workplace Safety and Insurance Appeals Tribunal on this issue.

8The applicant opposes deferral for the same reason that he opposes dismissal under section 45.1.

Application of section 45.1

9In this case, there is clearly significant overlap between the issues raised in the Application and the issues that are part of on-going adjudication at the WSIB.

10Because the adjudication is ongoing at the WSIB, with an objection pending before a WSIB Appeals Resolution Officer, it is not appropriate to dismiss the Application under section 45.1.

Deferral

11Some 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.

12In this case, the issue that will be considered by an Appeals Resolution Officer is whether the applicant refused suitable work in May 2014. The applicant says that the job was not suitable because the commute was too long.

13The issue in the Application is the applicant’s allegation that the respondent failed to accommodate his disability when it offered a job that involved too long a commute.

14It therefore appears that the issue in the Application is virtually identical to the issue that the WSIB Appeals Resolution Officer will deal with.

15As the applicant correctly notes, the WSIB does not have the jurisdiction to make a finding that the respondent discriminated against him contrary to the Code. However, the WSIB does have the jurisdiction to consider the Code when making its determination about whether a job offered by an employer is suitable (see WSIB Operational Policy Manual Document No. 19-02-02) and indeed, it is obliged to consider the Code when making its decisions (see Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14).

16In my view, in this case, it is appropriate to defer consideration of the Application to the WSIB proceeding because the issue before the WSIB Appeals Resolution Officer is virtually identical to the issue in the Application.

17However, I do not agree with the respondent that it is appropriate to defer the Application until the applicant has exhausted the objection and appeal process that is available under the Workplace Safety and Insurance Act.

18The WSIB adjudicative process is potentially very complex and lengthy. In addition to typically long delays before objections and appeals are heard, a decision by an Appeals Resolution Officer or WSIAT may not finally dispose of an issue and may instead lead to the need for further front line adjudication, which can in turn lead to more objections and appeals.

19In this case, I find that it is appropriate 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. 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.

20The 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.

21The 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.