Sylvia Francis v. Great Northern Hydroponics, 2014 HRTO 75

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sylvia Francis

Applicant

-and-

Great Northern Hydroponics

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 17, 2014

Citation: 2014 HRTO 75

Indexed as: Francis v. Great Northern Hydroponics

WRITTEN SUBMISSIONS

Sylvia Francis, Applicant

Maryth Yachnin, Counsel

Great Northern Hydroponics, Respondent

Anthony Giannotti, Counsel

Background

1This Interim Decision deals with a request by the respondent to dismiss the Application on the grounds that another proceeding has appropriately dealt with the substance of the Application. For the reasons which follow, I deny this request but determine that it is appropriate to defer consideration of the Application. Depending upon the outcome of pending proceedings before the Workplace Safety and Insurance Board (“WSIB”) the Tribunal may decide at a later stage whether those other proceedings have appropriately dealt with the substance of the Application.

2The applicant self-identifies as a woman of colour, a non-Canadian and a person with a disability. She is a seasonal agricultural worker. From 2004 to 2012 she came annually from Jamaica to work for the respondent. On September 3, 2012 she injured her back at work. Her employment was terminated on October 3, 2012.

3The respondent maintains that the termination of the applicant’s employment was for cause. It claims that her conduct in the workplace was disruptive and had a negative impact on her co-workers. The applicant alleges it was discriminatory. She maintains that once she injured herself the respondent regarded her as expendable. She alleges that a combination of factors including her disability, her race and her status as a non-Canadian caused the respondent to simply ship her home rather than keep her in the workplace and accommodate her disability.

4The Workplace Safety and Insurance Board (WSIB) accepted a claim in relation to the injury and paid loss of earnings benefits from September 12-17, 2012. The applicant sought a review of this decision. She claimed loss of earnings benefits from the date of her injury to December 7, 2012, the date that her seasonal contract was to end, on the grounds that she should have been allowed to work for the duration of her contract.

5While the WSIB Case Manager then granted loss of earnings benefits for six weeks to cover a period in which the applicant would have received physiotherapy treatment, her February 26, 2013 decision denied any further loss of earnings benefits on the grounds that she was repatriated to Jamaica on October 4, 2012 for reasons unrelated to her injury.

6The applicant applied for reconsideration of this decision. In her decision of June 1, 2013 the WSIB Case Manager maintained her finding that the applicant was not entitled to loss of earnings benefits from the date of her injury to the end of her contract. An appeal by the applicant of that decision is pending.

7The applicant filed this Application alleging discrimination with respect to employment because of race, colour, ancestry, place of origin, citizenship, ethnic origin, disability and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

8The respondent argues that the June 1, 2013 WSIB decision appropriately dealt with the substance of the Application because it found that the applicant’s repatriation was not due to her workplace injury, but because of a breach of contract. The decision reads in its relevant part as follows:

Although it may have appeared Ms. Francis was sent home on October 4, 2012 (as per her letter to me dated April 15, 2013) due to her claim for benefits for a work-related low back injury, the statements throughout the file confirm this was not the case. Statements obtained on file from the Jamaican Liaison Services and the employer confirm that on September 28, 2012, due to reasons unrelated to her low back injury under this claim, Ms. Francis was sent home due to breach of contract. Therefore, my decision denying entitlement to loss of earnings benefits for the period October 4, 2012 to December 7, 2012 (season/contract end date) remains unchanged.

9The applicant argues that the WSIB decision does not constitute a proceeding because she did not participate meaningfully in the WSIB process or know the case she had to meet in claiming benefits. Further she argues that the WSIB decision did not deal with the substance of her Application in that it focused on the narrow issue of entitlement to compensation and did not deal with the question of whether she was discriminated against.

analysis

10In s. 45.1 the Code provides that 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.”

11The decision of the WSIB Case Manager is cursory. This observation is not intended as a criticism, given the volume of claims that the WSIB deals with and the pressures on the initial level of decision-making in the WSIB’s system of deciding requests for review.

12In any event, the applicant has appealed the Case Manager’s decision. In light of the fact that the WSIB proceedings are ongoing I deny the respondent’s request to dismiss pursuant to s.45.1.

13The 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.

14The usual considerations when determining if an Application should be deferred are set out Calabria v. DTZ Barnicke, 2008 HRTO 411:

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. 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 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.

15While the respondent did not request deferral as an alternative to dismissing the Application, the applicant made submissions on both issues.

16She argues that although she has appealed the Case Manager’s decision, her Application should not be deferred because the Application is about why she was terminated, and the WSIB adjudication will be confined to the questions of whether she is entitled to any further loss of earnings and health care benefits. Further, she argues that the WSIB process is in its early stages and may continue for years. A final resolution of her Application would come about much sooner.

17Contrary to the applicant’s submissions, the question of why the applicant’s contract was terminated is common to both the Application and the WSIB appeal of the denial of loss of earnings benefits. This is evident from both the Case Manager’s decision cited above, which states that the termination was unrelated to the applicant’s workplace injury, and the applicant’s allegation in the Application that her termination was tainted by racism and unwillingness to accommodate her disability. This overlap of facts and issues is significant, and it seems that in light of the Case Manager’s decision, the next level of WSIB appeal will be faced squarely with deciding whether the termination was wholly unrelated to the applicant’s injury.

18If the two proceedings were allowed to proceed concurrently, there is a real risk that the WSIB could make findings of fact inconsistent from those made by the Tribunal. Given that the WSIB proceedings are already underway and given the risk of inconsistent fact finding on these core questions, I am of the view that deferral is the most fair, just and expeditious way of proceeding with this Application.

19However, I am mindful of the applicant’s concern about how long the appeal process before the WSIB and, possibly, the Workplace Safety and Insurance Appeals Tribunal could take. It is appropriate in the circumstances to defer consideration of this Application pending a decision of the WSIB Appeals Resolution Officer on the applicant’s objection to the decision of the Case Manager.

20Once that decision has been issued, either party may request that the Tribunal re-activate the Application. The request to re-activate must be made within 60 days of the decision of the Appeals Resolution Officer. The Tribunal can then determine whether any further deferral is in order.

order

21The respondent’s request to dismiss the Application is denied.

22Consideration of this Application is deferred pending a decision of the WSIB Appeals Resolution Officer on the applicant’s objection to the decision of the Case Manager.

23Once that decision has been issued, either party may request that the Tribunal re-activate the Application. The request to re-activate must be made within 60 days of the decision of the Appeals Resolution Officer.