Human Rights Tribunal of Ontario
Between:
Drazenko Radakovic Applicant
-and-
Corma Inc. Respondent
Interim Decision
Adjudicator: Brian Cook Date: February 13, 2014 Citation: 2014 HRTO 196 Indexed as: Radakovic v. Corma Inc.
Written Submissions
Drazenko Radakovic, Applicant Richard Miller, Counsel
Corma Inc., Respondent Barry Prentice, Counsel
Introduction
1This Interim Decision considers whether the Tribunal should defer further consideration of the Application pending the conclusion of an appeal at the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
2The Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), and alleges discrimination with respect to employment because of disability.
Background
3There is no dispute that the applicant experienced work-related low back pain on or about May 13, 2011. A claim was filed with the Workplace Safety and Insurance Board (WSIB). The WSIB has determined that the applicant had a significant low back condition that pre-existed the May 2011 work-related injury. The WSIB has found that the effects of the work-related injury had resolved as of August 8, 2011 and that any ongoing back problems that the applicant may have are related to the pre-existing condition and not related to the May 2011 injury. These findings were confirmed by a WSIB Appeals Resolution Officer in a decision dated December 13, 2012.
4The applicant has appealed this decision to the WSIAT. A letter to the parties from WSIAT dated September 13, 2013, indicates that the applicant's appeal will be sent to the WSIAT Scheduling Department to schedule a hearing. It is not known if a date has been set.
5The Tribunal scheduled a mediation which the parties attended but which did not result in a resolution of the Application. The respondent has subsequently filed a Request for Order During Proceedings asking that the Tribunal defer further consideration of the Application until the WSIAT appeal process is concluded. The applicant opposes deferral.
Analysis and conclusions
6Some factors that have been identified as 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 types 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.
7The applicant's employment was terminated by the respondent in April 2012. The respondent submits that the termination was necessary because the employment contract had been frustrated. The applicant alleges that the termination and the events leading up to the termination were discriminatory.
8In the appeal to WSIAT, the applicant is seeking to establish that he did not fully recover from the effects of the work-related injury and that he has a permanent impairment as a result of the injury. He is seeking entitlement to loss of earnings for the period after his employment was terminated in April 2012.
9In the Application, the applicant is claiming entitlement to lost earnings from the respondent for the same period. There is therefore some clear overlap between the issues in the Application and the issues that will be before WSIAT. However, in my view, this alone is not a sufficient reason to defer the Application. If the applicant is successful at this Tribunal and is granted compensation for lost earnings, this fact will presumably be made known to WSIAT. Similarly, if it happens that the WSIAT process is concluded first, the results of that process will be made known to the Tribunal.
10Under the workers' compensation system, it is of course important to determine if a worker has a disability or impairment and also whether the disability or impairment is work-related. In this case, the WSIB has determined that the applicant does not have a work-related disability or impairment and that any ongoing disability or impairment results from pre-existing, non-work-related conditions. In the human rights system, while it may be important to determine if an applicant has a disability, it is generally not relevant whether the disability is work-related.
11It appears that the issue before WSIAT is whether the applicant has a work-related disability. It does not appear that WSIAT will consider whether the termination of the applicant's employment resulted in an infringement of the applicant's Code-protected rights. WSIAT does not have jurisdiction to make this finding and it is not clear that such a finding would be relevant to the adjudication of the applicant's entitlement under the Workplace Safety and Insurance Act.
12There is clearly some overlap between the issues that are before WSIAT and the issues that this Tribunal may have to determine in respect of the Application. However, this alone is not a reason to defer further consideration of the Application. On the basis of the information currently before the Tribunal, I find that it is not appropriate to defer the Application at this time. The parties are expected to keep the Tribunal informed of any significant developments, including developments at the WSIAT, which may affect the Tribunal's consideration of the Application. However, for now, the Tribunal will proceed to process the Application including scheduling of a hearing.
Dated at Toronto, this 13th day of February, 2014.
"Signed By"
__________________________________
Brian Cook Vice-chair