Wilson v. The Original Cakerie, 2014 HRTO 90

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Wilson Applicant

-and-

The Original Cakerie Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: January 22, 2014
Citation: 2014 HRTO 90
Indexed as: Wilson v. The Original Cakerie

WRITTEN SUBMISSIONS

The Original Cakerie, Respondent

Ron LeClair, Counsel

Introduction

1This Application alleges 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”).

2By Case Assessment Direction, dated January 9, 2014, the Tribunal requested that the parties provide by January 16, 2014 any submissions with respect to the Tribunal’s notice to them that it appeared that this may be an appropriate case for deferral in light of an outstanding WSIAT appeal.

3The applicant provided no submissions. The respondent wrote to the Tribunal on January 17, 2014 and stated that this Application should be deferred until the WSIAT appeal has been fully and finally dealt with.

reasons and order

4The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a 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. The Tribunal will generally defer an application where there is an ongoing WSIAT appeal based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

5In this case, some if not all of the facts and issues raised in this Application are part of the WSIAT appeal that is still in progress. Both the Application and the WSIAT appeal relate to whether the respondent complied with its return to work obligations, or in other words, whether the applicant was terminated for reasons related to her injury. This issue is the same one the Tribunal will have to decide in this Application. Since the issue in the Application and in the WSIAT appeal overlap, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and in the WSIAT appeal. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring this Application is appropriate. It will be the most fair and just way of proceeding. Although WSIAT stated in its August 1, 2013 letter that requesting the WSIB file could take several months, it now has been several months. The next step in the WSIAT appeal is for WSIAT to send to the applicant a Confirmation of Appeal form, which based on the August 1, 2013 letter, should be imminent. As such, deferral of this Application will be the most expeditious way to proceed in this matter.

6The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance process.