Lesley McIntyre v. Sitel TeleServices Canada, 2015 HRTO 1072

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lesley McIntyre

Applicant

-and-

Sitel TeleServices Canada

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 12, 2015

Citation: 2015 HRTO 1072

Indexed as: McIntyre v. Sitel TeleServices Canada

WRITTEN SUBMISSIONS

Lesley McIntyre, Applicant

Angela Browne, Representative

Sitel Teleservices Canada, Respondent

Giselle Hinds, Representative

1This Interim Decision addresses the respondent’s request that the Tribunal defer consideration of the Application pending the result of an appeal before the Workplace Safety and Insurance Board (“WSIB”).

1In her Application, the applicant alleged that the respondent discriminated against her in employment because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, the applicant claims that the respondent failed to provide reasonable accommodations during a mandatory training process that took place as part of the applicant’s return to work following an absence due to a workplace injury.

2The applicant applied for WSIB benefits as a result of her workplace injury. Although she appears to have been successful in obtaining loss of earnings benefits for a period of time, she was denied further loss of earnings benefits in decisions dated March 27, 2014 and July 8, 2014. She has appealed those decisions.

3In its Response, the respondent requested that the Tribunal defer consideration of the Application pending the outcome of the applicant’s WSIB appeal.

4The applicant opposed the respondent’s deferral request on the basis that the issues raised in the Application are distinct from those raised in her WSIB appeal.

Decision

5The 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 (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 to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the Tribunal must 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.

6In the circumstances of this case, I am not persuaded that deferral of the Application is appropriate. As noted above, the Application raises the issue of whether the respondent discriminated against the applicant and failed to provide reasonable accommodations during the training period that took place as part of her return to work program. By contrast, her WSIB appeal addresses whether the applicant was entitled to continued loss of earnings benefits as a result of her workplace injury. On the basis of the materials before me, it appears that the arrangements relating to the training program were decided upon by the respondent with no involvement by the WSIB. Therefore, in my view, there does not exist a sufficient overlap of facts or issues that would make it appropriate to defer consideration of this Application. It is possible that an overlap may exist as between the applicant’s claim for loss of earnings benefits before the WSIB and what appears to be a claim for lost wages in her Application. However, in my view, the Tribunal or the WSIB can take any overlap into account if the applicant were to be successful in both claims.

7For the above reasons, I am not persuaded that deferral of this Application is appropriate

Order

8The respondent’s deferral request is denied. Since both parties have agreed to mediation, the Tribunal Registrar will schedule a mediation in this matter and advise the parties of the date of the mediation by Notice of Mediation.