Sujnarine Samaroo v. Victaulic Company of Canada Limited, 2014 HRTO 200

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sujnarine Samaroo Applicant

-and-

Victaulic Company of Canada Limited Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: February 13, 2014 Citation: 2014 HRTO 200 Indexed as: Samaroo v. Victaulic Company of Canada

APPEARANCES

Sujnarine Samaroo, Applicant Ron Franklin, Counsel

Victaulic Company of Canada Limited, Respondent Carissa Tanzola, 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, race, colour, ancestry, ethnic origin and place of origin.

Background

2In an earlier Interim Decision in this matter, Samaroo v. Victaulic Company of Canada Limited, 2013 HRTO 1165, the Tribunal found it was appropriate to defer the Application pending the result of a proceeding at the Workplace Safety and Insurance Board (“WSIB”) dealing with substantially the same issues as those before the Tribunal. Specifically, the Tribunal ordered deferral of the Application until the Appeals Resolution Officer (“ARO”) has issued a final decision regarding the applicant’s WSIB claim.

3On January 24, 2014, the applicant filed a Request for an Order During Proceeding (the “Request”) in which he requested reactivation of the Application, despite the fact that the ARO has not rendered a final decision in the WSIB proceeding, and amendment of the Application to include allegations regarding incidents occurring after the Application was filed. With respect to the request to reactivate the Application, the applicant submitted that he has been advised that the earliest his WSIB appeal will be heard is between four and seven months and that it may take longer to receive a decision. The applicant submitted that deferring the Application until the ARO has made a final decision amounts to a significant and unreasonable delay and that he is in a precarious position financially and psychologically. The applicant submitted that the respondent has now acknowledged that he has a restriction with respect to standing; therefore, the WSIB proceeding should not bar reactivation of the Application. The applicant also submitted that the WSIB proceeding will not address his allegations of discrimination because of race, colour, ancestry, place of origin and ethnic origin.

4On February 7, 2014, the respondent filed a Response to a Request for an Order (the “Response”). In the Response, the respondent did not oppose the applicant’s request to amend the Application (although it denies the allegations) and opposed the request or reactivate the Application. Regarding the reactivation request, the respondent submitted that the Tribunal has previously held that financial hardship is not a relevant consideration regarding whether an application should be deferred or, in this case, continued to be deferred. The respondent submitted that the length of the WSIB proceeding do not justify reactivation and noted that Rule 14 of the Tribunal’s Rules of Procedure, regarding deferral, contemplates completion of the other proceeding before a deferred application can be reactivated. The respondent also noted that the Tribunal specifically stated that the applicant could request reactivation only after the ARO made a final decision. The respondent submitted that the Tribunal has consistently declined to reactivate deferred applications because the other proceeding was unfolding too slowly and, in any event, the delay incurred in the WSIB proceeding is not unreasonable. In that regard, the respondent submitted that the WSIB proceeding had been delayed because the applicant’s conduct of the proceeding, e.g., temporarily withdrawing his appeal and request that the WSIB make certain rulings before resuming his appeal. The applicant submitted that the issue of “standing restrictions” is not new and is before the WSIB. The respondent submitted that Tribunal addressed the fact that there are other allegations of discrimination that will not be addressed by the WSIB and nonetheless concluded that deferral was appropriate.

Analysis and Decision

5In Samaroo, above, the Tribunal concluded that the issues before the Tribunal and WSIB are substantially the same and that, while the WSIB will not deal with the applicant’s race-related allegations, “[T]he issues in both proceedings center (sic) on whether the respondent offered the applicant suitable work and whether it took appropriate steps to accommodate his disability up to the point of undue hardship”. Nothing in the applicant’s submissions provide any basis for questioning that conclusion. Accordingly, allowing reactivation of this point would result in concurrent proceedings and creates the risk of inconsistent decisions of fact and law, which, of course is why the Tribunal deferred the Application. The applicant made no submissions in response to the respondent’s original Request to Defer and it is clear that he is attempting to re-litigate the issue of deferral, which the Tribunal has generally discouraged. See Groves v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1245 and Cassie v. Reko Automation and Machine Tool, 2013 HRTO 332.

6As the applicant submitted, there may be circumstances in which the Tribunal will permit reactivation of an Application before conclusion of the other proceeding, e.g., if the other proceeding becomes unduly prolonged or it appears that the other proceeding will not in fact deal with the issues before the Tribunal. See Yousefi v. Eugene Collision Limited, 2013 HRTO 1180. This is not such a case. First, there is no question that the matters before the Tribunal and WSIB shall deal with overlapping issues. Second, I am not satisfied that the WSIB has become unduly prolonged. The applicant indicates that he expects his WSIB to be heard within four to seven months, which is approximately the time frame in which he could expect a hearing of the Application to be scheduled, and does not seem undue in my view. The applicant’s narrative regarding the WSIB matter indicates that it has moved at a reasonable pace. Moreover, the applicant acknowledges that he temporarily withdrew his appeal and asked the WSIB to make rulings on outstanding issues with a view to resuming his appeal once he received these ruling. Accordingly, while it does not appear that the applicant has acted inappropriately, it does appear that his decisions regarding the conduct of the WSIB matter has contributed to the delay of his appeal to the ARO.

7In these circumstances, there is no proper basis for reactivating the Application.

Order

8The Tribunal orders as follows

1. The request to reactivate the Application is denied;

2. The request to amend the Application is granted. Within 21 days of the date of this Interim Decision the applicant shall file the Amended Application with the Tribunal and deliver it to the respondent;

3. Within 35 days of the day on which the respondent receives the Amended Application, the respondent may file a Response and deliver it to the applicant; and,

4. Within 14 days of the day on which the applicant receives the Amended Response, the applicant may file a Reply with the Tribunal and deliver it to the respondent;