Rios v. Con-Cast Pipe, 2015 HRTO 1000

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bryan Rios

Applicant

-and-

Con-Cast Pipe

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 27, 2015 Citation: 2015 HRTO 1000 Indexed as: Rios v. Con-Cast Pipe

WRITTEN SUBMISSIONS

Bryan Manuel Rios, Applicant Christine Lundy, Representative

Con-Cast Pipe, Respondent Dennis Touesnard, Counsel

1This Interim Decision addresses the respondent’s request that the Tribunal either dismiss or defer consideration of the Application due either to an ongoing grievance proceeding or an ongoing appeal under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A.

2In his Application, the applicant alleged that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). The applicant injured his knee at work. Among other things, the applicant claimed that the respondent failed to meet its duty to accommodate his disability and terminated his employment because of his disability.

Parallel Claims

3Following his injury, the applicant claimed loss of earnings benefits before the Workplace Safety and Insurance Board (“WSIB”). WSIB Case Managers made six decisions in relation to the applicant’s claims. Among other things, the WSIB denied the applicant’s claim for loss of earnings benefits on the basis that the respondent had offered him work that fell within his medical restrictions.

4The applicant has filed objections to at least two of the WSIB Case Managers’ decisions. In addition to these objections before the WSIB, there is an ongoing grievance in this matter. The applicant’s union filed a grievance on behalf of the applicant in October 2013. That grievance was ultimately withdrawn. Then, in January 2015, the union filed a grievance in relation to the applicant’s termination in which it alleged a violation of the Code. The applicant’s union filed the grievance after he filed this Application. The grievance is ongoing although, it appears that it has not yet been submitted to arbitration.

5In its Response, the respondent requests that the Tribunal either dismiss or defer consideration of the Application due to one or both of these parallel claims.

6In his Reply, the applicant opposes both dismissal and deferral.

Analysis

7I deny the respondent’s request to dismiss the Application under s. 45.1 of the Code since both the grievance filed by the applicant’s union and the proceeding before the WSIB remain ongoing. Therefore, there has been no completed “proceeding” in this case within the meaning of s. 45.1 of the Code.

8Deferral 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. Such a risk of inconsistent decisions is particularly significant when three proceedings have been commenced, all of which raise some of the same or similar issues.

9Some 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.

10The normal practice of the Tribunal is to defer considering an Application where there is a pending grievance and there is an overlap of facts and issues in the two proceedings. This is because the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes, as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

11In my view, there is a significant overlap between the issues raised in this Application and the issues raised in both the grievance filed on behalf of the applicant and also in his WSIB appeals. The Application centers on the respondent’s failure to accommodate the applicant’s injury and whether his disability was a factor in the termination of his employment. The grievance filed on behalf of the applicant squarely raises the issue of whether the applicant’s disability was a factor in his termination. I appreciate the applicant’s submission that the union only filed the grievance after he filed his Application. He also submits that he has no say over the disposition of the grievance. However, I would observe that if the applicant does not wish to have the union proceed with the grievance, it is open to him to request that the union withdraw it. For the time being, the grievance has been filed on behalf of the applicant, it is ongoing, and he has taken no steps to ask that it be withdrawn.

12In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application pending the completion of the grievance proceeding.

13In addition, I find that there is a significant overlap between the applicant’s WSIB appeals and this Application. While the issues raised in the WSIB appeal and the issues raised in the Application are not identical, it appears to me that there is an overlap of facts and issues that is not insignificant. The critical issue at the Tribunal will be whether the respondent accommodated the applicant’s disability to the point of undue hardship and whether it terminated his employment for discriminatory reasons. The Tribunal’s consideration of that issue will necessarily include a determination about whether the modified duties offered by the employer met its duty to accommodate. The WSIB Appeals Resolution Officer will have to make a similar determination, although the focus there will be on whether the applicant refused suitable work.

14In these circumstances, I am satisfied that it is also appropriate for the Tribunal to defer further consideration of the Application until the proceeding underway at the WSIB is complete. The Tribunal has held in several cases that a proceeding at the WSIB will be considered complete when the WSIB has issued a final decision on the issues relevant to the issues in the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. See, for example, Seecharran v. Keybrand Foods Inc., 2012 HRTO 252 and Grabnor v. AGO Industries, 2012 HRTO 1323.

15In this case, I find it is appropriate for the Tribunal to defer consideration of the Application until a WSIB Appeals Resolution Officer has issued a final decision in regards to the applicant’s appeals. At that time, either party can ask the Tribunal to re-activate the Application. Depending on the circumstances, the Application may then be re-activated or deferred again if there remains an ongoing process that would make a continued deferral appropriate.

Order

16For the reasons set out above, the Tribunal orders as follows:

a. The respondent’s request that the Tribunal dismiss the Application is denied.

b. The respondent’s request that the Tribunal defer consideration of the Application is granted. The Tribunal will defer consideration of the Application until the ongoing grievance and WSIB proceedings are complete. The grievance proceeding will be considered complete when an arbitration decision has been rendered or when the grievance is withdrawn. On the issue of when the WSIB proceeding may be considered complete, see paras. 14-15 above.

17It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceedings (Rules 14.3 and 14.4).

18I am not seized of this matter.

Dated at Toronto, this 27th day of July, 2015.

“Signed By”

Jo-Anne Pickel

Vice-chair```