Peltier v. 1243564 Ontario Limited o/a Total Scrap Management, 2014 HRTO 362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mitchell Peltier

Applicant

-and-

1243564 Ontario Limited, o/a Total Scrap Management, and Henry Rivas

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: March 14, 2014

Citation: 2014 HRTO 362

Indexed as: Peltier v. 1243564 Ontario Limited o/a Total Scrap Management

APPEARANCES

Mitchell Peltier, Applicant

Shawn Weston, Representative

1243564 Ontario Limited o/a Total Scrap Management, Respondent

Kathleen Andrew, Counsel

Henry Rivas, Respondent

Crista Rea, Counsel

INTRODUCTION

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.

2The Tribunal has previously issued a number of Case Assessment Directions and an Interim Decision in this Application. In Interim Decision 2013 HRTO 1756, dated October 17, 2013, the Tribunal added Henry Rivas as a personal respondent to the Application, limited the allegations to the period after August 22, 2011, and allowed the applicant to amend the Application to add more detailed particulars about the alleged events after August 22, 2011. In the same decision, the Tribunal denied the corporate respondent’s request to defer the Application because of an ongoing proceeding before the WSIB because it appeared that there was no ongoing proceeding before the WSIB.

3After the Interim Decision was issued, the applicant filed an objection with the WSIB Appeals Branch in regard to decisions of the WSIB Case Manager. The corporate respondent has reiterated its request that the Tribunal defer the Application on the grounds that the applicant is now pursuing the WSIB proceeding.

4The applicant has filed a request that this Application be joined or heard together with another Application.

DEFERRAL

5Some 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.

6In the Application, the applicant alleges that the personal respondent harassed and discriminated against him during his employment; that both respondents failed to accommodate disabilities; and that the respondents terminated his employment on December 7, 2012 because of his work-related and non-work-related disabilities.

7The WSIB has determined that the applicant suffered a work-related right shoulder rotator cuff injury on July 4, 2012. The WSIB has determined that the applicant's work-related injuries were not factors that contributed to the decision to terminate the applicant's employment. The WSIB has determined that, on that basis, the applicant is not entitled to loss of earnings or return to work assistance for the period after December 7, 2012.

8Under the Workplace Safety and Insurance Act, 1997 (WSIA) a worker must file an objection to any decision about benefit entitlement with the WSIB Appeals Branch within six months. The WSIB appeals process allows workers to file an objection form to meet the time limit. When the worker is ready to proceed with the objection, the worker files an Appeal Readiness Form, indicating that the worker is ready to proceed with the appeal.

9In this case, at the time of the earlier Interim Decision, the applicant had not filed an objection with the WSIB in regard to the decisions limiting his entitlement to the period before December 7, 2012. The applicant’s representative indicates that he subsequently determined that it was necessary to preserve the applicant's appeal rights under the WSIA. He accordingly filed the first, Intent to Object Form. The applicant’s representative indicates that the applicant intends to wait to see the results of this Application before considering whether to proceed with the objection at the WSIB. According to the applicant’s representative, if this Tribunal were to determine that the termination of the applicant’s employment was not an infringement of the applicant’s Code-protected rights, the applicant will not pursue the objection at the WSIB.

10Based on the information now available, it appears that there is still no proceeding that is actively underway at the WSIB and thus no proceeding to defer the Application to.

11Even if there were a proceeding underway at the WSIB it might not be appropriate to defer the Application. While there is obviously some overlap between the issues the WSIB would consider in respect of the applicant’s objection, the main issue before the WSIB would be whether the applicant is entitled to loss of earnings benefits beyond December 7, 2012. Part of that consideration will be whether the applicant’s work-related injuries and disability were factors that contributed to the decision to terminate the applicant's employment. If the WSIB concludes that they were factors, the applicant would be entitled to loss of earnings and perhaps return to work assistance. The Application alleges that the decision to terminate the employment was influenced by the work-related injuries and disabilities, and also by non-work-related disabilities. In addition, the applicant alleges that he experienced ongoing harassment and discrimination during his employment prior to the termination. The WSIB would not have jurisdiction to determine whether this occurred.

THE REQUEST TO JOIN THE APPLICATION

12The applicant has asked that this Application be joined or heard together with another Application. The respondents oppose this.

13The request to join this Application with another Application appears to be premised on the fact that both applicants were employees of the respondent and both have filed Applications that have some similarity in terms of the allegations. In addition, both applicants are represented by the same paralegal.

14In my view these factors are not sufficient reasons to join the Applications. As noted by the respondents, when considering whether to amalgamate Applications, the Tribunal will typically consider whether amalgamation will be expeditious and fair to the parties. While some duplication of evidence will likely result if the two Applications are heard separately, the facts of each case are different. In each case, the evidence will focus primarily on the circumstances of the individual applicant. There are also different procedural issues in each case.

15While the Tribunal may assign one adjudicator to hear both Applications, they will be heard separately.