HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jason Leduc Applicant
-and-
Canadian Stebbins Engineering and Mfg. Co. ULC Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Date: May 5, 2014
Citation: 2014 HRTO 628
Indexed as: Leduc v. Canadian Stebbins Engineering
WRITTEN SUBMISSIONS
Jason Leduc, Applicant Self-represented
Canadian Stebbins Engineering and Mfg. Co. ULC, Respondent Walter T. Langley, Counsel
1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In its Response the respondent requests that the Tribunal dismiss the Application pursuant to section 45.1 of the Code. Alternatively, the respondent seeks the deferral of the Application.
3Both parties have filed detailed submissions with respect to these two issues.
S. 45.1
4The respondent asserts that there has been a proceeding before the Workplace Safety and Insurance Board (WSIB) which has appropriately dealt with the substance of the Application. The respondent relies on a number of WSIB decisions.
5Section 45.1 reads as follows:
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
6Having considered the matter I find that the substance of the Application has not been appropriately dealt with by the WSIB. The issue that has been considered at the WSIB is whether the applicant’s disabilities are work related. It appears, at this time, that the WSIB has concluded that the applicant’s disabilities are not work related. However, the Code contemplates that an employer must accommodate an employee’s disability regardless of whether it is work related. Therefore, the WSIB’s decisions have not appropriately addressed the human rights issues raised in the Application. The respondent’s request to dismiss pursuant to section 45.1 is denied.
Deferral
7The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. In considering whether to defer an application the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
8As discussed above, it appears the applicant’s proceeding before the WSIB will determine whether the applicant’s disabilities are work related and if so whether the applicant should receive compensable benefits. This is an issue that falls solely within the jurisdiction of the WSIB. I have some concerns that the parties in their submissions have spent a considerable amount of time addressing the issue of the cause of the applicant’s disabilities which is largely irrelevant to the Tribunal’s jurisdiction. It does not appear that the WSIB proceeding will determine whether the applicant’s disabilities were accommodated. Further, it is unclear to me whether the applicant is in fact pursuing an appeal at the WSIB.
9There is the potential that the applicant’s proceeding before the WSIB could overlap with the Application with respect to the issue of damages because the income compensation sought before the WSIB may be relevant to any remedies that are awarded by the Tribunal. However, I am satisfied that an award either at the WSIB or at the Tribunal can adequately address the question of any payments made to the applicant as a result of the other proceeding.
10In light of all these considerations, I am satisfied that deferral would not be fair, just and expeditious and I do not find that the Application should be deferred pending the completion of the WSIB proceedings.
Order
11The Tribunal orders:
a. The respondent’s request to dismiss pursuant to s. 45.1 of the Code is denied; and
b. The respondent’s request to defer the Application is denied.
12The matter will be scheduled for two days of hearing in Ottawa.
13I am not seized.
Dated at Toronto, this 5th day of May, 2014.
“Signed By”
Geneviève Debané
Vice-chair