Gonzalez v. Firan Technology Group Corporation, 2014 HRTO 418

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Gonzalez Applicant

-and-

Firan Technology Group Corporation Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: March 25, 2014 Citation: 2014 HRTO 418 Indexed as: Gonzalez v. Firan Technology Group Corporation

APPEARANCES

Wendy Gonzalez, Applicant Sheldon Kasman, Counsel

Firan Technology Group Corporation, Respondent Abdul-Basit Khan, 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 respondent asks that the Application be deferred because of an ongoing civil action and because of ongoing proceedings at the Workplace Safety and Insurance Board (WSIB). The respondent has not yet filed a full Response. The applicant opposes deferral.

3Some 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.

The Application

4In the Application, the applicant alleges that the respondent failed to accommodate various disabilities. It appears that the applicant has been off work since June 2013.

The civil action

5The civil action was originally commenced against the respondent and against the Great West Life Insurance Company (“GWL”), which is the respondent’s disability insurance carrier. The statement of claim was amended to remove the respondent to this Application and it is now only against GWL. The main issue in the claim against GWL is the applicant’s claim for entitled to short-term disability benefits for various periods of lost time from work and ongoing.

6There is some overlap between the civil action and the Application. In particular, the applicant is claiming entitlement to short term disability benefits for periods which are also at issue in the Application. In the Application, the applicant is seeking a remedy that includes compensation for lost earnings for the same periods.

7However, it appears that the civil action is unlikely to involve any consideration about whether the respondent to this Application appropriately accommodated the applicant’s disability to the point of undue hardship, which is the central issue in the Application.

8In my view, the overlap regarding potential remedy is not a sufficient reason to defer consideration of the Application.

The WSIB proceeding

9According to information provided by the respondent, the applicant has filed an objection with the WSIB Appeals Services Division and has confirmed that she is ready to proceed with the objection before a WSIB Appeals Resolution Officer. The objection appears to relate to a number of different decisions of WSIB adjudicators. Neither party has provided copies of any of these decisions. According to a letter dated January 10, 2014 from a WSIB Case Manager, the applicant has filed an objection and an Appeal Readiness Form regarding various decisions “denying initial entitlement including the neck, back, entire right arm and hand, the right leg and [post-traumatic stress disorder].

10A finding that there is no “initial entitlement” means that the WSIB has determined that the applicant does not have any work-related injury or condition. It therefore appears that the issue before the WSIB is whether the applicant has any work-related disability. For the WSIB, a determination of whether a worker’s disability is work-related is obviously critical as a worker is only entitled to benefits from the WSIB for a work-related injury. Under the Code, the issue is whether the person has a disability and the cause of the disability is rarely an issue. In this case, the applicant appears to have a number of different disabilities. Even if the WSIB accepted that the applicant has a work-related injury it might conclude that other conditions are not work-related.

11If the WSIB were to determine that the applicant has a work-related injury, it might then go on to consider whether the applicant refused suitable and available work which could involve a consideration of whether the work that the respondent offered the applicant was suitable. Those considerations could overlap with the issues in the Application. However, the WSIB may never get to those considerations if it determines that the applicant has no work-related disability. If the WSIB were to find that some of the applicant's disability is work-related but some is not, the WSIB would not likely consider the respondent’s Code-related duty to accommodate the applicant's disability to the point of undue hardship regardless of the source of the disability.

12It therefore appears that the WSIB may or may not deal with any of the issues relevant to the Application. If it does deal with any of the issues, it may be quite some time before those issues are dealt with and they are in any event consideration of those issues is not likely to deal with all of the allegations in the Application.

13Any monetary compensation that results from the Application at this Tribunal can be considered by the WSIB in its future adjudication if it determines that the applicant is entitled to loss of earnings benefits.

Decision

14The respondent’s request that the Application be deferred is dismissed at this time.

15The applicant shall keep the Tribunal informed of relevant decisions that are made by the WSIB.

16The respondent shall file a full Response within 21 days of this Interim Decision.