Paradis v. Teppen Corporation, 2014 HRTO 194

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie Paradis

Applicant

-and-

Teppen Corporation

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: February 12, 2014

Citation: 2014 HRTO 194

Indexed as: Paradis v. Teppen Corporation

APPEARANCES

Laurie Paradis, Applicant

Christine Lundy, Representative

Teppen Corporation, Respondent

Dawn Phillips-Brown, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

Background

2The Application indicates that the applicant sustained an injury at work, for which she claimed benefits under the Workplace Safety and Insurance Act 1997, S.O. 1997, c. 16, Sched. A, and that the respondent failed to accommodate her injury related restrictions and ultimately terminated her employment. The respondent denies these allegations and asserts that it terminated the applicant’s employment after she refused to return to work, despite the fact that the Workplace Safety and Insurance Board (“WSIB”) confirmed that her injury was minor and she was able to perform the essential duties of her position. In its Response, the respondent requested dismissal of the Application on the basis that another proceeding, i.e., the WSIB’s claims adjudication process, has appropriately dealt with the substance of the Application, pursuant to section 45.1 of the Code. As the parties agreed to mediation, the Tribunal scheduled a mediation session on February 27, 2014 and advised the parties that the Tribunal will consider the Request for Dismissal if the parties do not resolve the matter at mediation.

3On January 27, 2014, the respondent wrote to the Tribunal to request adjournment of the mediation session. The respondent submitted that it learned through the applicant’s Reply, filed on December 10, 2013, that the applicant appealed the decision of a WSIB Appeals Resolution Officer and, accordingly, the appeal process in the applicant’s matter before the WSIB is not complete. The respondent submitted that the mediation should be adjourned until the WSIB matter is complete. By letter dated January 27, 2014, the Tribunal directed the applicant to file written submissions in response to the respondent’s adjournment request by February 3, 2014.

4The Tribunal received the applicant submissions on February 4, 2014. The applicant submitted that the request to adjourn is in effect a Request to Defer. The applicant submitted that the respondent did not make this Request in accordance with the Tribunal’s Rules of Procedure and it was not supported by any documentation or authorities. The applicant also submitted that deferral is not necessary in this case to avoid potentially conflicting rulings. In any event, the applicant submitted that no rulings will be made during mediation; therefore, adjournment of the mediation session is unnecessary. The applicant also submitted that the respondent was aware of the applicant’s WSIB appeal on or about December 10, 2013 and received the Notice of Mediation on or about December 23, 2013, but did not make its adjournment request until January 22, 2013, a month later. Consequently, the adjournment request came after the 14 day period following the Notice of Mediation in which the Tribunal will generally grant adjournment requests, after which the Tribunal will grant adjournments only in exceptional circumstances. The applicant submitted that the respondent did not identify any exceptional circumstances that would warrant adjournment of the mediation.

Analysis and Decision

5I agree with the applicant that the respondent’s request is in effect a Request to Defer the Application. 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. While the Tribunal often defers Applications when an applicant is also engaged in WSIB proceedings involving the same facts, the respondent made no submissions that would support deferral, presumably because it framed the issue in terms of an adjournment request. Consequently, there is no basis on which the Tribunal could conclude that deferral is appropriate, at this time.

6The Notice of Mediation advised the parties that requests to reschedule must be made within 14 days of receiving the Notice of Mediation and that outside that time rescheduling will be granted only in exceptional circumstances. The Notice further provided that absent extraordinary circumstances and if one or both of the parties decide to cancel the mediation, then the Tribunal will schedule the Application for hearing and no further mediation date will be offered.

7The respondent was aware or ought to have been aware that the applicant was pursuing an appeal at the WSIB by the time it received the Notice of Mediation, on or about December 23, 2014. The respondent gave no explanation for why it did not make its request to adjourn within the 14 period after the date of the Notice of Mediation, and, in fact, made no submissions regarding why the applicant’s WSIB appeal amount to an exceptional circumstance. Accordingly, I find that there is no proper basis on which to conclude that the applicant’s WSIB appeal amounts to an exceptional circumstance warranting rescheduling of the mediation and the request to adjourn the mediation is denied. Of course, participation in mediation is voluntary and the respondent should clarify whether it intends to participate in the scheduled mediation in light of the denial of its request.

Order

8The Tribunal orders as follows:

1. The respondent’s request to adjourn the mediation is denied; and,

2. Within 7 days of the date of this Interim Decision, the respondent will inform the Tribunal and the applicant, in writing, regarding whether it will participate in the currently scheduled mediation.

9I am not seized.