Parbatty Prowell v. North York General Hospital, 2014 HRTO 543

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Parbatty Prowell

Applicant

-and-

North York General Hospital

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 16, 2014

Citation: 2014 HRTO 543

Indexed as: Prowell v. North York General Hospital

APPEARANCES

Parbatty Prowell, Applicant

Jim Dimovski, Counsel

Noth York General Hospital, Respondent

Scott Williams, 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. This Interim Decision deals with the applicant's request to defer pending the completion of a related proceeding before the Workplace Safety and Insurance Board ("WSIB").

2The applicant submits that there are a number of issues that remain outstanding with the WSIB that the applicant intends to pursue, including whether some of her medical conditions are compensable. The applicant submits that determination of the issues in the WSIB proceeding may narrow or render moot some of the issues arising in the Application, e.g., remedy. The applicant also submits that the WSIB has more comprehensive medical review and investigative powers regarding the nature of the applicant's injury and that the Tribunal's process will likely benefit from the WSIB's investigation. Finally, the applicant submitted that the Application and the WSIB's process overlap significantly with respect to whether the respondent accommodated the applicant's disability and that the WSIB may be required to determine whether the respondent provided the applicant with "suitable work" or took steps to return her to work or provide retraining.

3The respondent states that is consents to the request for deferral. However, the respondent submits that it is concerned about the potential length of the delay and any ongoing liability to which it is potentially exposed. The respondent submits that the Tribunal should specify the length of the deferral to be the earlier of the date on which either party requests reactivation of the Application or the conclusion of the applicant's WSIB/WSIAT process.

Analysis and Decision

4The 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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: see Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

5I am satisfied that the Application should be deferred pending the resolution of the WSIB proceedings. While not necessarily determinative, the parties consent to deferral. There is also significant overlap in the factual and legal issues raised in the proceedings before the WSIB and the Tribunal, which raises the potential for inconsistent findings if the matters proceed concurrently. The WSIB proceeding also may narrow the issues in the Application, in particular regarding remedy.

6I appreciate the respondent's concerns about delay, but the Tribunal will generally reactivate a deferred Application only after the conclusion of the proceeding to which it was deferred. The parties are nonetheless free to request reactivation if they believe there are circumstances that favour reactivation prior to the conclusion of the WSIB proceeding.

7The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

8I am not seized.