Douglas Keith v. GNI Management Group Inc., 2014 HRTO 1824

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Keith

Applicant

-and-

GNI Management Group Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: December 23, 2014 Citation: 2014 HRTO 1824 Indexed as: Keith v. GNI Management Group Inc.

1This Interim Decision concerns the applicant’s request that the Application be re-activated.

2This 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”). In particular, the applicant alleges that the respondent did not accommodate his disability following a work-related injury in November 2010, and then terminated his employment in February 2011 in part because the applicant was disabled and had made a claim for benefits to the Workplace Safety and Insurance Board (WSIB).

3The WSIB determined that the applicant sustained a work-related injury but that the results of the work-related injury had resolved by March 2011 and that the applicant had no ongoing work-related disability. The WSIB further determined that the termination of the applicant’s employment was unrelated to the injury or to the claim for benefits from the WSIB.

4The Application was filed in February 2012. On July 5, 2012, the Tribunal scheduled the Application for hearing on March 7 and 8, 2013. On July 16, 2012, the applicant’s counsel filed a Request for Order During Proceedings, asking that the Application be deferred. He advised that the WSIB had indicated that it was going to reconsider decisions about the applicant’s entitlement to benefits and that reconsidered decisions could have an impact on the Application with this Tribunal.

5The Request to defer the Application was granted in Interim Decision 2012 HRTO 1726, dated September 12, 2012. The Interim Decision directed as follows:

The Application is deferred pending the conclusion of the proceeding before the WSIB and any related appeals to the Workplace Safety and Insurance Appeals Tribunal.

6In August 2014, the applicant filed a Request for Order During Proceedings asking that the Application be re-activated. The applicant advised that the proceedings before the WSIB had not been concluded and that the request for re-activation was based on excessive delay in the workplace safety and insurance system. The anticipated reconsideration had not happened and he was waiting to hear from the WSIB Appeal Services Division. An appeal or objection had not been scheduled by the Division and he was still waiting to hear whether the matter would be the subject of an oral hearing or if the objection would be determined on the basis of a paper review.

7The applicant’s counsel advised that he anticipated that the applicant would likely have to file an appeal with Workplace Safety and Insurance Appeals Tribunal (WSIAT). He noted that this could result in a further extensive delay. The applicant’s counsel referred to a message from the Chair of WSIAT dated April 9, 2014. The message states that the number of active appeals before WSIAT had increased from 4,000 to 8,000. The Chair noted that as a result of a government directive creating a limit on appointments of Vice-Chairs and Members of WSIAT, and also because of fiscal restraint, appeals could take longer to process and decide. The applicant's counsel anticipates that an appeal filed with WSIAT could well not be decided for over two years. And in the meantime, as of September 2014, the WSIB Appeals Division had not even scheduled a time to deal with the applicant’s objection.

Deferral and the WSIB process

8As noted in the earlier Interim Decision in this case, the factors that the Tribunal has generally considered when determining whether it is appropriate to defer consideration of an Application because of a related ongoing proceeding were set out in Baghdasserians v. 674469 Ontario, 2008 HRTO 404, at paragraphs 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some 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 defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

The workplace safety and insurance system and deferral

9The Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended (“WSIA”) establishes a complex system for compensating workers who have a work-related disability. In cases where there is a concurrent WSIB claim, there may be particular considerations because of the complexity of the WSIB system.

10In Yousefi v. Eugene Collision Limited, 2013 HRTO 1180, I commented, at paragraphs 10-17:

Other proceedings to which the Tribunal will typically consider deferring to, such as a proceeding under the Employment Standards Act, a grievance under a collective agreement or a proceeding before the Courts, usually involve a proceeding on a clearly defined issue or issues. The issue or issues are typically resolved following a decision.

Proceedings under WSIA can be much less clear. The WSIA establishes a multi-faceted system for the adjudication of entitlement to various benefits for workplace injury and disease. Decisions are made in the first instance by Case Managers. The worker and employer have a right to object to any decision of the Case Manager to an Appeals Resolution Officer and a right to appeal a decision of an Appeals Resolution Officer to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

In the course of adjudicating a complex claim the WSIB may make a large number of separate decisions, each of which can potentially be the subject of an objection or appeal. The outcome of those objections or appeals may require a re-determination of other decisions and those in turn can lead to further objections or appeals. Even a decision by WSIAT will not necessarily bring finality to the adjudication of the claim as the decision may deal with one aspect of a claim. WSIAT will also typically remit the claim to the WSIB to make further determinations about entitlement to benefits that may flow from a successful appeal by a worker. A complex claim under the WSIA can continue to be adjudicated for many years or even decades. The adjudication can involve re-visiting earlier decisions based on new information or because of a successful objection or appeal.

At the point that an Application is received by this Tribunal when there is an ongoing proceeding underway under the WSIA, it can be very difficult for the Tribunal to predict whether the WSIB is likely to deal with issues relevant to the Application and when a final decision on those issues might happen. Depending on how the adjudication of a claim unfolds, the process under the WSIA may deal with issues relevant to the Application before this Tribunal, but it may take a very long time to do so. If at the end of that it turns out that the WSIA process has not in fact dealt with the issues relevant to the Application, and the Application is then re-activated, the delay potentially prejudices the rights of the applicant and respondents.

For these reasons, in my view, when considering whether to defer consideration of an Application to a proceeding under the WSIA, an important question is whether the proceeding under WSIA is likely to deal with issues relevant to the Application within a reasonable period of time.

If an Application is deferred to a proceeding underway at the WSIA, the Tribunal may permit a party to apply to have the Application re-activated if the proceeding under the WSIA has become unduly prolonged or if it appears that the proceeding under the WSIA will not in fact deal with issues relevant to the Application (see for example, Jalava v. Ontario Lottery and Gaming Corporation, 2013 HRTO 860).

11As a result of the nature of the system, deferral of an Application pending the conclusion of proceedings before the WSIB and any related appeals to the Workplace Safety and Insurance Appeals Tribunal can mean that the deferral is almost indefinite. As a practical matter, it means that the allegations in the Application may never be considered. If they are considered, the consideration could well happen many years after the events in question. This potentially leads to significant prejudice for the applicant and the respondent.

12Of course, in some cases, the substance of the Application will be addressed in the adjudication under the WSIA. In that event, any delay in addressing the human rights related allegations may not be as relevant. However, in other cases, the substance of the Application may not be addressed in the WSIA proceeding. In those cases, if the Application is eventually re-activated at this Tribunal, the events in question may be several years in the past.

13For these reasons, when considering whether to defer an Application to a related proceeding under the WSIA, a relevant consideration may be whether there is a reasonable prospect that the substance of the Application will be dealt with in that proceeding. If the substance of the Application is something that the WSIB/WSIAT have jurisdiction to determine, and if there is a reasonable prospect that the substance of the Application will be dealt with, deferral may be appropriate. However, if the substance of the Application is not likely to be dealt with, the delay associated with deferral may mean that deferral is not appropriate. As stated in Baghdasserians:

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.

14One of the reasons that the Tribunal has deferred Applications to proceedings under the WSIA is that the applicant is seeking a similar remedy – loss of earnings benefits at the WSIB, and compensation for lost wages at this Tribunal. In itself, this may not be a good reason for deferral as any payment made in one system can be taken into account in the other system. For example, if an applicant is granted monetary compensation for lost wages at this Tribunal, this can be taken into account in any subsequent adjudication under the WSIA.

15Another reason for deferral in general is to avoid the prospect of the possibility of inconsistent decisions on facts or law. This is a concern particularly if two systems are dealing with the same or substantially the same facts and law. While Applications where there is a concurrent WSIA proceeding may involve the same facts and law, the facts relevant to the WSIB proceeding may not be the facts relevant to the Application. Since the WSIB/WSIAT do not have explicit jurisdiction to make a finding of discrimination under the Code, the legal theory in the WSIB/WSIAT proceeding may differ from the legal theory at this Tribunal.

16Of course, it can be very difficult to know whether the WSIB/WSIAT proceeding will deal with the substance of the Application. This can be because of the potentially complex and multi-faceted nature of adjudication under the WSIA, or because there is simply not enough information, especially during the early stages of the processing of the Application at this Tribunal. In some cases, it may be appropriate to defer to a specific aspect of the adjudication under the WSIA. For example, if a hearing before an Appeals Resolution Officer or WSIAT is scheduled, deferral to the conclusion of that specific proceeding may be helpful. See, for example, Seecharran v. Keybrand Foods Inc., 2012 HRTO 252. Deferral of this sort may lead to further clarification of the focus of adjudication at the WSIB/WSIAT and of the question of whether that adjudication will likely deal with the substance of the Application.

17However, since delay is a typical feature of adjudication of complex cases under WSIA, it may also be appropriate to favourably consider a request for re-activation if the delay becomes excessive (see Yousefi, noted above).

Deferral in this case

18In the present Application, the applicant alleges that the respondent discriminated against him during his employment following the work-related injury by failing to provide appropriate accommodation and that the termination of employment was related to the applicant’s disability and the fact that he had claimed benefits under the WSIA.

19The WSIB has determined that the applicant fully recovered from the effects of the work-related injury and that any ongoing disability results from a pre-existing non-work-related condition. The applicant is objecting to that decision, arguing that he has a continuing work-related disability. The applicant’s representative anticipates that the applicant will be successful, but not likely until an appeal is heard at WSIAT. If the applicant is successful, WSIAT might determine the benefits the applicant is entitled to, but it might remit a determination of benefit entitlement to the WSIB. The applicant's claim would go back to the Claims Manager for further adjudication, potentially giving rise to further objections or appeals.

20One of the decisions that the WSIB has made is that the termination of the applicant’s employment was unrelated to the injury or to the claim for benefits from the WSIB. This is a decision that concerns part of the substance of the Application as the applicant alleges that the termination of employment was at least in part related to his disability and his claim for benefits. Based on the information provided by the parties to this point, it is not clear if the applicant is pursuing this issue as part of his objection before the Appeals Resolution Officer, or if it is an issue that the Appeals Resolution Officer would be able to deal with.

21As of September, 2014, the applicant apparently did not know when his objection would be dealt with by an Appeals Resolution Officer. However, the matter had apparently been in the queue for assignment for some time.

22In consideration of all of the circumstances, I conclude that it is appropriate for the Application to be deferred until a decision is reached by an Appeals Resolution Officer. If the applicant wishes to pursue the Application at that time, he may ask that the Application be re-activated within 60 days of the decision of the Appeals Resolution Officer.

23If the applicant can show that the matter will still not be dealt with by an Appeals Resolution Officer within a reasonable period of time, he may ask that the Application be reactivated on that basis.

ORDER

24The Application is deferred until a decision is reached by an Appeals Resolution Officer. If the applicant wishes to pursue the Application at that time, he may ask that the Application be reactivated within 60 days of the decision of the Appeals Resolution Officer.

25If the applicant can show that the matter will still not be dealt with by an Appeals Resolution Officer within a reasonable period of time, he may ask that the Application be reactivated on that basis.