Mariusz Szewczyk v. McMaster University, 2014 HRTO 1583

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mariusz Szewczyk

Applicant

-and-

McMaster University

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 27, 2014

Citation: 2014 HRTO 1583

Indexed as: Szewczyk v. McMaster University

WRITTEN SUBMISSIONS

Mariusz Szewczyk, Applicant

Laura McCleary, Representative

McMaster University, Respondent

Mark Mendi, Counsel

1The applicant worked as a physical plant manager/custodian for the respondent university. He asserts he was injured on the job on August 28, 2009, a fact which the respondent disputes. Both parties, however, appear to agree that the applicant has an elbow disability which has restricted his ability to return to work. His employment with the respondent was terminated on July 3, 2013.

2The applicant filed this Application, alleging 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”). He alleges that his employer improperly terminated his employment on the basis that he had abandoned it, despite the fact that he had supplied the respondent with many functional abilities forms and doctors reports. He also asserts that the respondent improperly had him sign an incident report to the Workplace Safety and Insurance Board (“WSIB”) and provided information to the WSIB that resulted in the termination of his benefits.

3The applicant applied for and was initially deemed eligible for WSIB benefits. However, the respondent challenged that finding and the Appeals Resolution Officer overturned the decision that the applicant has sustained a work related injury. The applicant has appealed this decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

4In its Response to the Application, the respondent requested deferral of this Application because of the pending WSIAT appeal. The applicant opposes deferral.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6A key objective of deferral is avoid concurrent and potentially conflicting decisions by the Tribunal and other adjudicative bodies on the same or overlapping issues.

7It is unlikely that there is a significant danger of conflicting decisions in light of the narrow issue in the WSIAT appeal, namely whether the injury occurred at work. The Tribunal has jurisdiction over this matter, regardless of whether this injury occurred at work or elsewhere. Although the applicant challenges the respondent’s manner of handling his claim to the WSIB in his Application, it is likely that these matters are outside the Tribunal’s jurisdiction to hear and remedy.

order

8The respondent’s request for deferral is denied.

9As both parties have indicated that they are willing to try to resolve this Application through mediation, the Registrar is requested to schedule a mediation session.