El Hage v. Heron Terrace (S & R Nursing Homes Ltd.), 2014 HRTO 871

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chahine El Hage

Applicant

-and-

Heron Terrace (S & R Nursing Homes Ltd.)

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: June 13, 2014

Citation: 2014 HRTO 871

Indexed as: El Hage v. Heron Terrace (S & R Nursing Homes Ltd.)

WRITTEN SUBMISSIONS

Chahine El Hage, Applicant

Christine Lundy, Representative

Heron Terrace (S & R Nursing Homes Ltd.), Respondent

Maria Kotsopoulos, Counsel

Introduction

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of a proceeding before the Workplace Safety and Insurance Board ("WSIB").

BACKGROUND

2In 2003, the respondent hired the applicant as a laundry aide. Between 2008 and 2013, the applicant suffered injuries to her lower back and neck, which led to her taking time off work at various times, claiming and receiving benefits from the WSIB, and being on modified duties when she was at work.

3In June 2013, the applicant went off work because of lower back pain. She claimed but was denied benefits from the WSIB. She subsequently informed the WSIB that she intended to file an internal appeal of the decision to deny her benefits. In November 2013, the respondent terminated the applicant's employment.

4On February 20, 2014, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), which alleged that the respondent discriminated against her with respect to employment because of her disability. Specifically, she alleged that the respondent failed to accommodate her disability-related needs up to the point of undue hardship because it failed to assign her proper modified duties, which led to further injuries, and then terminated her employment because it did not want to further accommodate her needs.

5On April 28, 2014, the respondent filed a Response, which denied the allegations of discrimination. The respondent stated that it accommodated the applicant's disability-related needs up to the point of undue hardship because it assigned the applicant proper modified duties, and only terminated her employment when it became evident that, because of her medical restrictions, she would be unable to perform those duties in the reasonably foreseeable future.

6In its Response, the respondent also requested that the Tribunal defer consideration of the Application pending the conclusion of the proceeding before the WSIB because there are common issues before the WSIB and this Tribunal.

7On June 2, 2014, the applicant filed a Reply, which opposed the deferral of her Application because the proceeding before the WSIB is only dealing with the narrow issue of whether the recurrence of her lower back injury was work or non-work-related, and is not dealing with the main issues before this Tribunal.

ANALYSIS

8Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal's Rules of Procedure. Rule 14.1 of the Tribunal's Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

10Where there are concurrent proceedings before both the WSIB and the Tribunal that deal with the same issues, the Tribunal will normally defer consideration of the Application. See, for example, Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; Dhunsi v. J.T. Bakeries, 2010 HRTO 540; Hussey v. Crossby Dewar Inc., 2012 HRTO 618; and Purchase v. Burlington (City), 2012 HRTO 1648.

11In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application because, although there is some overlap between the facts and issues in the two proceedings, the main issues before this Tribunal are not before the WSIB.

ORDER

12The respondent's request that the Tribunal defer consideration of the Application pending the conclusion of the proceeding before the WSIB is denied.

13I am not seized of this matter.