HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jon Nicholson

Applicant

-and-

Brant County Brewing Company Ltd. o/a Grand River Brewing

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: May 7, 2014

Citation: 2014 HRTO 649

Indexed as: Nicholson v. Brant County Brewing Company

1In this Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent employer discriminated against him because of disability with respect to employment. In particular, the applicant alleges that the respondent failed to provide him with work within his restrictions and terminated the applicant’s employment, following a workplace injury in July 2013.

2For its part, the respondent denies that it terminated the applicant’s employment. In essence, the respondent alleges that it laid the applicant off in September 2013, because he was unable to perform the work that the respondent had available. However, the respondent maintains that it is prepared to allow the applicant to resume his duties once he has been medically cleared to do so.

REQUEST TO DEFER

3In its Response to the Application, the respondent requests that the Tribunal defer consideration of the Application pending the outcome of an appeal that the applicant filed with respect to the denial of his claim for Workplace Safety and Insurance Board (“WSIB”) benefits.

4The applicant opposes the Request to Defer.

5The applicant submits that the Application should not be deferred because the issues in the WSIB appeal do not overlap with the issues in the human rights Application. Specifically, the applicant submits that the issue in the WSIB appeal is whether the applicant was injured at work, such that he is entitled to benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c 16, Sch A. This, the applicant submits, is not an issue in the human rights Application. The applicant also submits that there is “no clear timeline” as to when his WSIB appeal will be heard by the WSIB, and that the human rights Application is likely to be resolved before the WSIB appeal. Accordingly, the applicant submits that proceeding with the Application would not give rise to a risk of inconsistent findings on the issues in the Application.

DECISION

6The 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 seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

7In the circumstances of this case, I am not persuaded that deferral of the Application is appropriate. The issue in the Application is whether the respondent discriminated against the applicant by failing to provide him with available work within his restrictions and/or by terminating his employment. By contrast, the issue before the WSIB appears to be the cause of the applicant’s alleged injury (i.e. whether the applicant was injured at work or while playing sports). The cause of the applicant’s alleged disability, and whether or not it is work-related, has limited, if any, relevance to the issues to be determined under the Code.

8In addition, there is no information before the Tribunal to indicate that proceeding with the human rights Applications would create a real risk of inconsistent decisions on the factual or legal issues raised in the Applications. In the absence of such risk, deferring the Applications would be inconsistent with the Tribunal’s mandate of ensuring the fair, just and expeditious resolution of Applications. See C.G. v. Markstay-Warren Minor Hockey Association, 2014 HRTO 546; St. Louis v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1637; Pal v. 723736 Ontario, 2010 HRTO 1759; Glen v. York Regional Police, 2010 HRTO 1916.

9Accordingly, the Request to Defer is denied. The Application will continue to be processed by the Tribunal.