HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Hurrell
Applicant
-and-
Kent Trusses Limited and Brian Harmer
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Hurrell v. Kent Trusses Limited
WRITTEN SUBMISSIONS
David Hurrell, Applicant
Leonard Kerrigan, Representative
Kent Trusses Limited and Brian Harmer, Respondents
Sheryl Johnson, 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, record of offences and reprisal. This matter is currently scheduled for hearing on January 27, 28 and 29, 2014 in North Bay.
2The Application raises the issue that a factor in the respondents’ decision to terminate the applicant’s employment was that the applicant had previously filed a claim pursuant to the Workplace Safety and Insurance Act (“WSIA”).
3The respondent has previously raised the issue that the Application should be dismissed pursuant to section 45.1 of the Code because the applicant has initiated proceedings pursuant to the Employment Standards Act, 2000 (the “ESA”), and WSIA.
4Based on the submissions of the parties to the Tribunal it was unclear whether the proceedings pursuant to ESA and WSIAT have been concluded. On December 12, 2013, the Tribunal issued a Case Assessment Direction seeking submissions from the parties with respect to the status of these other proceedings and whether the Application should be deferred pending their conclusion.
ESA Proceeding
5The applicant filed a complaint under ESA for the payment of his termination and severance pay. The complaint was determined by an ESO who found in favour of the applicant. The respondents indicated in their Response that they intended to appeal the ESO’s decision. However, the respondents have confirmed that they have not and will not appeal the ESO’s decision. Therefore, this proceeding is concluded.
WSIA Proceedings
6The applicant made a complaint pursuant to WSIA that the employer breached his reemployment rights. A Case Manager dismissed the applicant’s complaint on July 18, 2012.
7The applicant appealed the Case Manager’s decision to the Workplace Safety and Insurance Board (“WSIB”) and a hearing was held on November 20, 2013. On November 27, 2013, an Appeals Resolution Officer (“ARO”) at WSIB issued a decision which found that the employer breached its reemployment obligation and referred the matter back to the operating area to determine the penalty and if any additional benefits were owed to the applicant.
8On December 10, 2013, the WSIB sent a letter to the parties advising that the ARO’s decision was being reconsidered on the basis that it may have incorrectly applied its Re-employment policy.
9The respondents have made submissions in support of deferring the Application. It is their position that the proceeding currently before the WSIB has not concluded and they have stated that they will appeal any unfavourable decision.
10The applicant opposes the deferral of the Application.
Deferral
11Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the 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. The Tribunal will 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.
12In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:
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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
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 type 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.
13Where there are concurrent proceedings before both the WSIB and the Tribunal that deal with the same issues, the Tribunal will normally defer consideration of the Application. See, for example, Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; Dhunsi v. J.T. Bakeries, 2010 HRTO 540; Hussey v. Crossby Dewar Inc., 2012 HRTO 618; and Purchase v. Burlington (City), 2012 HRTO 1648.
14Having considered the matter, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant’s appeal before the WSIB is ongoing. The issues in the two proceedings appear to be almost identical, and there is a clear overlap between some of the key facts and issues. Specifically, the main issue before the WSIB is whether the applicant’s claim was a factor in the respondents’ decision to terminate his employment which is the very issue before this Tribunal. In fact, the applicant is seeking to rely on the ARO’s decision in this very proceeding. This clearly raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law.
15Having considered the matter I find that it is appropriate to defer the Application. However, this will only be deferred until the conclusion of the proceeding before the WSIB.
Other Matters
16Both the applicant and the respondents have filed a number of Requests for Orders During Proceedings (“RFOP”) which the Tribunal will not address at this time since the matter has been deferred.
17The applicant has filed a Form 6, Notice of Commission Intervention under Section 37(2) of the Code. Only the Commission can file a Form 6. I do not know if this form was filed by error; however, I note that he applicant’s representative has filed numerous Form 10-RFOPs in the past. Therefore, I dismiss the Form 6, Intervention on the basis that the Commission is not seeking to intervene in this matter.
Order
18The Tribunal orders:
a. The applicant’s Form 6 is dismissed;
b. The Application is deferred pending the conclusion of the proceeding before the WSIB with respect to the applicant’s reemployment with the respondent; and
c. The hearing dates are cancelled.
19The Tribunal reminds the parties that pursuant to Rules 14.3 and 14.4 of the, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding.
20I am not seized.
Dated at Toronto, this 13th day of January, 2014.
“Signed by”
Geneviève Debané
Vice-chair