Swarna Vijayakumaran v. InnVest Hotels GP Ltd. o/a Holiday Inn Express Toronto Downtown, 2014 HRTO 378

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Swarna Vijayakumaran

Applicant

-and-

InnVest Hotels GP Ltd. o/a Holiday Inn Express Toronto Downtown

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 17, 2014

Citation: 2014 HRTO 378

Indexed as: Vijayakumaran v. InnVest Hotels GP Ltd. o/a Holiday Inn Express Toronto Downtown

WRITTEN SUBMISSIONS

Swarna Vijayakumaran, Applicant

Alberto Lalli, Representative

InnVest Hotels GP Ltd. o/a Holiday Inn Express Toronto, Respondent

Samantha Crumb, Counsel

1This Interim Decision addresses the respondent’s request that the Tribunal defer consideration of the Application pending the conclusion of two grievances filed by the applicant’s trade union as well as a proceeding at the Workplace Safety and Insurance Board (“WSIB”).

2By Application filed on October 16, 2013, the applicant alleged that the respondent discriminated against her in employment because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, the applicant claimed that the respondent discriminated against her by terminating her employment. She also alleged that the respondent failed to provide reasonable accommodations for her disability.

3The applicant attached to her Application copies of two grievances she had filed with her union. She also attached a decision dated May 10, 2013 by a WSIB case manager that denied her application for WSIB benefits on the basis that the mechanism of her injury was not compatible with her diagnosis. The applicant has appealed this decision and the appeal remains in its early stages.

4In its Response, the respondent requested that the Tribunal defer the Application pending the outcome of the applicant’s grievances and also her WSIB appeal. In subsequent correspondence, the applicant confirmed that her union had withdrawn her grievances at her request. In her Reply, the applicant opposed the respondent’s deferral request on the basis that the issue before the WSIB is distinct from the human rights issues before the Tribunal. The applicant submitted that the issue before the WSIB is whether her injury was work-related whereas the issue before the Tribunal is whether the respondent breached the Code.

Decision

5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

6In the circumstances of this case, I am not persuaded that deferral of the Application is appropriate. As noted above, the Application raises the issues of whether the respondent discriminated against the applicant when it terminated her employment and whether it failed to meet its duty to provide reasonable accommodation. By contrast, the issue before the WSIB is the cause of the applicant’s injury -- that is, whether her injury is work-related. The cause of the applicant’s injury has limited, if any, relevance to the issues to be determined under the Code. This is because, under the Code, employers have a duty to accommodate employees’ disability-related needs, up to the point of undue hardship, whatever the cause of the disability.

7In the circumstances, I am not persuaded that the facts and issues raised in this Application overlap sufficiently with those in the proceeding before the WSIB to warrant deferral of the Application.

order

8For the reasons set out above, the respondent’s deferral request is denied.

9The respondent is directed to file a full Response to the Application within 21 days of the date of this Interim Decision.