McKee v. Workplace Safety and Insurance Board, 2015 HRTO 1059

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell McKee

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: August 10, 2015

Citation: 2015 HRTO 1059

Indexed as: McKee v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Darrell McKee, Applicant

Angelo Procopio, Representative

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of another legal proceeding.

2The applicant is an injured worker who was in receipt of wage loss benefits from the respondent. In February 2015, the respondent decided to reduce his benefits because of his failure to comply with a Work Transition plan, which involved attending and completing college courses. The applicant filed an Intent to Object Form with the respondent’s Appeal Branch.

3On April 1, 2015, 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 him with respect to services because of his disability. Specifically, he alleged that the respondent failed to accommodate his disability-related needs in the Work Transition program, and then reduced his benefits when he was unable to cope with participating in the program.

4On June 17, 2015, the respondent filed a Response, which denied the allegation of discrimination, and requested, among other things, that the Tribunal defer consideration of the Application pending the conclusion of the appeal before the respondent.

5On July 7, 2015, the applicant filed a Reply, which opposed deferring his Application. He stated that the issue before the respondent (the reduction of his benefits) is different than the issue before the Tribunal (the discriminatory practices of the respondent and its Work Transition plan). He further stated that it would be unfair to him to delay the proceeding before the Tribunal.

6Section 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.

7In 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.

8In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant’s appeal before the respondent is ongoing. Although the issues in the two proceedings may not be identical, there is a clear overlap between the key facts and issues. This clearly raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law. I do not agree with the applicant’s suggestion that the reduction of benefits and discrimination issues can be parsed.

9The Tribunal makes the following order and direction:

1) The Application is deferred pending the conclusion of the proceeding before the respondent.

2) Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

10I am not seized of this matter.