Roebuck v. MSSC Canada Inc., 2014 HRTO 511

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shannon Roebuck

Applicant

-and-

MSSC Canada Inc. – A Division of Mitsubishi Steel Mfg. Co., Ltd.

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: April 10, 2014

Citation: 2014 HRTO 511

Indexed as: Roebuck v. MSSC Canada Inc.

WRITTEN SUBMISSIONS

Shannon Roebuck, Applicant

Self-represented

MSSC Canada Inc. – A Division of Mitsubishi Steel Mfg. Co., Ltd., Respondent

Mike Fife, Representative

UNIFOR and its Local 127, Affected Party

Mark Woodrow, Representative

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability. In her Application, the applicant advises that she has filed a grievance regarding the employer’s failure to provide her with accommodated work and is also appealing a decision of the Workplace Safety and Insurance Board (WSIB).

2Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

3On February 27, 2014, the Tribunal sent a Notice of Intent to Defer (NOID) to the parties, indicating that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. It directed the parties to make submissions regarding why the consideration of this Application should or should not be deferred.

FACTS AND SUBMISSIONS

4The applicant alleges that she was injured at work when back pain arose “out of the course of employment” on March 12, 2013. In her narrative, she describes communications with the respondent employer regarding modified work and a period of time when she performed modified duties within her medical restrictions. She alleges, however, that in April 2013, the respondent’s Human Resources manager advised her that the Workplace Safety and Insurance Board (WSIB) had denied her claim, and that she was therefore required to return to full regular duties or go off work on sickness and accident benefits.

5In her Application, she indicates that in December 2013, her union filed a grievance on her behalf regarding the respondent’s failure to accommodate her return to work. She indicates in her Application that the respondent denied her grievance. The grievance, which she included in her Application, states that the union contends that the employer “violated Article 47 and any and all related articles, of the Collective Agreement”. She has also included Article 47 of the relevant Collective Agreement, which is titled “Non-Discrimination” and which states, in part, “Parties agree to abide by the Human Rights Code.”

6Also in her Application, she indicates that she has made an appeal to WSIB regarding its decision. She includes a copy of the March 26, 2013 WSIB decision, which indicates that entitlement to WSIB benefits was not granted as the adjudicator was “unable to determine that [your] injury arose out of the course of [your] employment based on the job duties reported, therefore a work related accident history has not been established”.

7In response to the NOID, the applicant provided a note dated March 6, 2014, from the Plant Chairperson of her union, indicating that the grievance “will be considered resolved/settled by the Union”. It indicates that the outcome of the grievance is that “the Company will accommodate Shannon with restrictions and graduated hours…bringing Shannon back to work, with accommodations, starting Monday, March 10, 2014”. The applicant also submits that the WSIB decision which is under appeal is regarding initial entitlement and that this is a separate issue from the matter of accommodation at work. She submits that the Tribunal’s consideration of her Application should not be deferred.

8The respondent submits that the Tribunal’s consideration of the Application should be deferred pending the resolution of the eligibility appeal the applicant has filed with WSIB. The respondent submits that as the claim coincided with her concerns regarding accommodation, “it is critical to have the ruling from WSIB to fully understand all the facts of this issue(s) of accommodation under the Return to Work Rules of WSIB and/or the duty to accommodate under the Human Rights Code of Ontario”.

9The potentially affected party, the applicant’s union, UNIFOR and its Local 127, provided submissions, stating that the matter should not be deferred by the Tribunal. It states that the union considers the grievance resolved and submits that the matter of the applicant’s eligibility for WSIB and the issue of whether her disability is work-related, “should have no bearing on the Employer’s duty to accommodate a disability”.

Is Deferral Appropriate in these Circumstances?

10The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not in and of itself a reason to defer dealing with an Application.

11In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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.

12The grievance has been resolved and there is no longer any grievance process to consider in deciding if deferral is appropriate.

13Though the respondent has indicated that the WSIB appeal decision will be necessary to “fully understand all the facts and of this issue(s)”, it appears that the WSIB appeal will be centred on the question of causation and whether the applicant’s injuries are related to a workplace accident. The question before this Tribunal, however, is whether the respondent employer discriminated against the applicant in employment. The subject matter of the other proceeding is not the same as the subject matter of this Application. The nature of the other proceeding is to consider the question of causation in order to determine her eligibility for benefits. The issue at the WSIB appeal is regarding eligibility for those benefits, or an “initial entitlement” decision. Even if the applicant is successful in her appeal regarding initial entitlement, it is not clear that the decision will result in a determination regarding whether the respondent discriminated against her with respect to her employment.

14In considering the factors of 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 defer having regard to the status of each proceeding and the steps that have been taken to pursue them, I find that it is not appropriate to defer consideration of the Application at this time. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.

15I am not seized of this matter.