Jerome Leong v. The Staffing Edge, 2014 HRTO 935

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Leong

Applicant

-and-

The Staffing Edge (aka Freedom Staffing - Branch Office)

and Workplace Safety and Insurance Board

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: June 25, 2014

Citation: 2014 HRTO 935

Indexed as: Leong v. The Staffing Edge

WRITTEN SUBMISSIONS

Jerome Leong, Applicant

Self-represented

The Staffing Edge (aka Freedom Staffing - Branch Office), Respondent

Brian Silva, Counsel

Workplace Safety and Insurance Board, Respondent

No submissions

1This Interim Decision explains why the Tribunal is deferring consideration of this Application, which alleges discrimination with respect to employment because of race, colour, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2While the applicant was working for the respondent The Staffing Edge in October 2011 he injured his back. The accident was reported to the Workplace Safety and Insurance Board (“WSIB”) and the applicant was awarded benefits. He has since had further injuries to his back, both at work and outside of the workplace. The respondent employer has provided him with modified duties. In January of 2013 the initial injury was again aggravated when he exited a car.

3The applicant sought full Loss of Earnings Benefits (“LOE”) in relation to this last incident. He was awarded partial LOE benefits by the WSIB. A March 5, 2014 decision of the WSIB Appeals Resolution Officer denied full LOE benefits on the grounds that the applicant is fit to perform the modified work that the respondent has made available to him. The applicant has appealed that decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

4The Application before the Tribunal alleges that the respondent employer repeatedly failed to accommodate the applicant’s disability. The applicant alleges that the respondent employer pressured him into returning to work by offering him modified duties and that when he tried to perform those duties, they were beyond what he was physically able to do. He alleges that the respondent employer also imposed additional tasks upon him that were even beyond the scope of the modified work and that it ignored his concerns whenever he suggested changes that would enable him to keep working.

5The Tribunal has sought submissions from the parties on whether the Application should be deferred until the WSIAT has heard the applicant’s appeal. The respondent employer requests deferral because it argues that the facts and issues before the WSIAT and the Tribunal are the same. There is also some overlap of remedies requested in that the applicant is seeking compensation for lost earnings in both proceedings.

6The applicant says that the Tribunal should not defer dealing with his Application because the Application deals with broader issues than a loss of earnings. He says that the WSIAT will not deal with the injury to his dignity, feelings and self-respect that flow from the alleged discriminatory conduct of the respondent.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that 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.

8In my view this Application should be deferred. There is a significant degree of overlap between the facts and issues in this Application and the appeal before the WSIAT. Under both the Code and s.41(6) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, an employer is under a duty to accommodate a disabled worker up to the point of undue hardship. The WSIAT will likely examine what modified duties were offered to the applicant and whether he could have performed them. The Tribunal would engage in a similar inquiry in order to determine whether the respondent’s conduct was discriminatory. If the two proceedings were allowed to proceed concurrently, there is a real risk that WSIAT and the Tribunal could make inconsistent findings on the same issues.

9While the remedies that the Tribunal might award differ from the remedies the WSIAT might award if the applicant succeeded in both proceedings, this difference is not sufficient reason to allow them to run concurrently.

order

10Given that the WSIAT appeal has been initiated, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application. The Application is deferred pending the conclusion of the WSIAT appeal.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WSIAT process.