Romeo Leonides v. Mevotech Inc., 2014 HRTO 555

Human Rights Tribunal of Ontario

B E T W E E N:

Romeo Leonides Applicant

-and-

Mevotech Inc. Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: April 17, 2014 Citation: 2014 HRTO 555 Indexed as: Leonides v. Mevotech Inc.

WRITTEN SUBMISSIONS

Romeo Leonides, Applicant Leeanne Bielli, Counsel

Mevotech Inc., Respondent John Mastoras, Counsel

1The applicant, a former employee of the respondent, worked as a packager from January 17, 2011, to September 19, 2012. His main functions were to assemble boxes and to fill them with the auto parts that the respondent manufactures. However, on February 21, 2011, the applicant was doing some other work for the respondent when a steel beam fell on his head. He was injured and was off work until March 6, 2011.

2When he returned to work he did not return to his original job. The respondent maintains that he was accommodated by being given modified duties. The applicant disagrees that the work he was given accommodated the disability that resulted from the accident.

3The Workplace Safety and Insurance Board (“WSIB”) awarded the applicant benefits for loss of earnings. It also determined that the accident resulted in a permanent impairment because the impact of the steel bar had damaged two cervical vertebrae. It made a Non-Economic Loss (“NEL”) award of 7% but reduced it by half because the applicant had a pre-existing vulnerability in the cervical vertebrae. The applicant has appealed that decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

4In January of 2012 the applicant was off work for an unrelated medical condition. He came back to work on August 19, 2012. In September of 2012 the WSIB’s Return to Work specialist determined that the respondent could no longer offer the applicant modified work. As a result the WSIB placed the applicant in a work transition program. The aim of the program is to enable the applicant to find a job that is within the physical restrictions resulting from his disability.

5The applicant has filed this Application, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He maintains that although the employer was aware of the accident, it did not report it to the WSIB until January of 2012. Based on this, he argues that his disability should have been accommodated from the time of his return to work, not just from the point in time that the WSIB became involved, and that the employer failed in this regard.

6He also appears to disagree with the WSIB’s determination that the employer can no longer accommodate his disability. However, there is no indication that he has challenged that determination through the WSIB’s internal adjudication process.

7In addition to appealing the NEL award, the applicant has challenged two decisions of the WSIB regarding payment of his medical treatment and the management of his return to work plan. One is a decision letter dated 19 December, 2012 denying further coverage of physiotherapy treatment. The other is a decision letter dated April 11, 2013 in which the applicant is informed that his work transition program is being amended by adding a further two weeks of computer training to his plan.

8The respondent has requested deferral of this Application because of the pending WSIAT appeal, as well as the pending challenges to the WSIB’s decisions mentioned in the paragraph above. The applicant opposes deferral.

9The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

10A key objective of deferral is avoid concurrent and potentially conflicting decisions by the Tribunal and other adjudicative bodies on the same or overlapping issues.

11The pending WSIAT appeal is a challenge by the applicant to the quantum of the NEL award. The WSIB determined that the applicant has a permanent disability and that disability arose, in part only, out of and in the course of employment. The Tribunal is not concerned with how much of the disability is attributable to a workplace accident and how much of it is due to a non-work related condition. The WSIAT may decide to increase that award or maintain it at the same level, but I cannot see that a decision by the WSIAT on the quantum of the NEL award has a direct bearing on whether the employer attempted to accommodate the applicant up to the point of undue hardship. As I indicate above, the WSIB has decided that the respondent can no longer accommodate the applicant, but the WSIAT is not being asked to decide that issue. For these reasons the pending WSIAT appeal is not a basis for deferring this Application.

12There is also not sufficient reason to defer because the applicant has asked the WSIB to review how much physiotherapy it will pay for or how many weeks of computer training the applicant should receive. Neither issue has a direct bearing on whether the respondent accommodated the applicant up to the point of undue hardship.

13I do not see that the pending appeal before the WSIAT or the challenges to the WSIB decisions raise a risk that the Tribunal will make decisions that overlap (and possibly conflict) with the workers’ compensation proceedings.

Order

14The respondent’s request for deferral is denied.

15As both parties have indicated that they are willing to try to resolve this Application through mediation, the Registrar is requested to schedule a mediation session.