HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patrick Kinsella

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: April 11, 2014

Citation: 2014 HRTO 524

Indexed as: Kinsella v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Patrick Kinsella, Applicant

Self-represented

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

1This is an Application file under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination with respect to goods, services and facilities on the basis of disability and age. In his Reply, the applicant confirms that he only intended to allege discrimination on the basis of disability and had inadvertently checked off the additional boxes in error.

2The applicant alleges that he was denied entitlement to benefits by the respondent for discriminatory reasons. He alleges that the WSIB’s policy excludes those with prior mental illness from making a claim for benefits for stress or mental illness arising out of employment.

3In its response, the respondent argues that the Tribunal lacks jurisdiction to hear this Application and, in the alternative, seeks dismissal of the Application by way of summary hearing, and in the further alternative, seeks deferral of the Application. In support of its request for deferral, the respondent has provided documents to establish that the facts of the Application are part of a Workplace Safety and Insurance Board (“WSIB”) proceeding as the applicant has initiated an appeal with the Appeal Services Division of the WSIB of the April 12, 2013 decision denying him benefits.

4The applicant opposes deferral but does not dispute that there is a pending appeal of the April 12, 2013 decision.

Deferral

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 ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6Some 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7The Tribunal has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; and Dhunsi v. J.T. Bakeries, 2010 HRTO 540. In Dhunsi, supra, the Tribunal deferred the Application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. In assessing the issue of deferral, the Tribunal in Dhunsi, supra, considered it relevant that the WSIB has significant expertise in addressing issues of disability.

8Based on the information in the file, it appears that the applicant is currently pursuing an appeal before WSIAT regarding his entitlement to benefits. It appears that the appeal was commenced just prior to the human rights Application. There is no doubt that the factual background of the Application is entirely the same as the WSIB matter. I find that the subject matter of the WSIB proceedings overlap with the Application. In addition, there is the matter of compensation that flows from the challenged benefits entitlement which also overlaps with the remedies sought in the Application.

9As previously noted, the Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts raised in the Application. I see no reasons to depart from this approach given the on-going WSIB proceedings. I find that there is overlap with respect to the factual allegations and the legal issues before the WSIB and the Application. In these circumstances, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.

10Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the WSIB proceedings.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the WSIB proceedings.

12I am not seized of this matter.

Dated at Toronto, this 11th day of April, 2014.