Lajoy v. Vrents Inc. o/a Volvo Rents, 2014 HRTO 31

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Lajoy

Applicant

-and-

Vrents Inc. o/a Volvo Rents

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: January 8, 2014

Citation: 2014 HRTO 31

Indexed as: Lajoy v. Vrents Inc. o/a Volvo Rents

WRITTEN SUBMISSIONS

James Allan Lajoy, Applicant

Christine Lundy, Representative

Vrents Inc. o/a Volvo Rents, Respondent

Blair McCreadie, Counsel

1This Interim Decision addresses the respondent’s request that the Tribunal either dismiss or defer further consideration of the Application due to a decision made by a case manager of the Workplace Safety and Insurance Board (“WSIB”).

2By Application filed on September 26, 2013, the applicant alleged that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). The applicant injured his thumb at work and also has been found to have carpal tunnel syndrome in both hands. Among other things, the applicant claimed that the respondent failed to meet its duty to accommodate his disability(ies). He also claimed that the respondent used disciplinary action against him and terminated his employment because of his disabilities.

3The applicant noted in his Application that the facts of his application were part of a proceeding before the WSIB that was still in progress. The applicant has two claims before the WSIB. The first, WSIB file #26633550, involved a claim that the respondent had breached its re-employment obligations under the Workplace Safety and Insurance Act (“WSIA”). The second claim addresses whether the applicant’s carpal tunnel syndrome is compensable under the WSIA.

4On November 1, 2013, a WSIB case manager issued a decision in WSIB file #26633550. In her decision, she found that the respondent had not breached its re-employment obligations under the WSIA because she found that the applicant’s termination was not related to his injury or his claim for WSIB benefits.

5In its Response, the respondent submitted that the Application should be dismissed under s. 45.1 of the Code if the applicant did not appeal the WSIB decision by the deadline for appeal. The respondent submitted that, if the applicant did appeal the WSIB decision, the Tribunal should defer this Application pending the final outcome of the applicant’s claim in WSIB file #26633550. The respondent submitted that there is a substantial overlap between the two proceedings. It argued that a deferral would be consistent with previous jurisprudence in which the Tribunal has deferred consideration of applications pending the outcome of an ongoing WSIB proceeding.

6In his Reply, the applicant confirmed that he has filed a notice of intent to object to the WSIB case manager’s November 1, 2013 decision in file #26633550. The applicant submitted that the Application should not be dismissed under s. 45.1 of the Code because the case manager’s decision is not a final decision and because it has not dealt with the substance of the Application. On the issue of deferral, the applicant submitted that it would not be fair or just to defer consideration of this Application as the WSIB process is at a preliminary stage. In support of his position, the applicant cited the Tribunal’s decision in Lennon v. Hydro One Networks Inc., (“Lennon”).

Analysis

7I deny the respondent’s request to dismiss the Application under s. 45.1 of the Code since the proceeding before the WSIB is ongoing.

8The usual considerations when determining if an Application should be deferred were set out Calabria v. DTZ Barnicke, 2008 HRTO 411:

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. 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 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.

9In my view, there is a significant overlap between the issues raised in this Application and the issues raised in WSIB file #26633550. The Application centers on the respondent’s failure to accommodate the applicant’s injury(ies) and whether his disabilities were a factor in the termination of his employment. While WSIB file #26633550 may not address the substance of the applicant’s accommodation claim, it will address issues that overlap significantly with his claim that his disability was a factor in his termination. In ruling on the applicant’s appeal, the WSIB will have to consider whether the case manager erred in finding that the respondent did not breach its re-employment obligations. In doing so, the WSIB will have to decide whether the case manager erred in finding that the applicant’s termination was not related to his injury or his claim for WSIB benefits.

10I note that the facts of this case are distinguishable from the facts in Lennon, the case cited by the applicant. In Lennon, the Tribunal held that there was no ongoing legal proceeding before the WSIB since an appeal was merely being “contemplated”. In this case, the case manager’s decision is under appeal and therefore the WSIB proceeding is ongoing.

11In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the proceeding underway at the WSIB is complete. The Tribunal has held in several cases that a proceeding at the WSIB will be considered complete when the WSIB has issued a final decision on the issues relevant to the issues in the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. See, for example, Seecharran v. Keybrand Foods Inc., 2012 HRTO 252 and Grabnor v. AGO Industries, 2012 HRTO 1323.

12In this case, I find it is appropriate for the Tribunal to defer consideration of the Application until a WSIB Appeals Resolution Officer has issued a final decision in the current proceeding. At that time, either party can ask the Tribunal to re-activate the Application. Depending on the circumstances, the Application may then be re-activated or deferred again if there remains an ongoing process that would make a continued deferral appropriate.

13It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

14I am not seized of this matter.