Paradis v. Teppen Corporation, 2015 HRTO 1078

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie Paradis

Applicant

-and-

Teppen Corporation

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 13, 2015

Citation: 2015 HRTO 1078

Indexed as: Paradis v. Teppen Corporation

WRITTEN SUBMISSIONS

Laurie Paradis, Applicant

Christine Lundy, Representative

Teppan Corporation, Respondent

Robert Bickle, Counsel

1By Application filed October 1, 2013, the applicant alleged that the respondent discriminated against her with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant claimed that she was not properly accommodated in the workplace following a workplace injury, which ultimately led to her termination.

2By Interim Decision 2014 HRTO 1443, the Tribunal deferred consideration of the Application pending the conclusion of the applicant’s appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In the Interim Decision, the Tribunal noted that there was a significant overlap between the factual and legal issues raised in the Application and the issues raised in the applicant’s appeal to WSIAT.

3By Registrar’s Letter dated June 29, 2015, the Tribunal sought an update from the applicant as to the status of her WSIAT appeal.

4By Request for Order During Proceedings (“Request”), the applicant requested that the Tribunal re-activate her Application due to uncertainty about the timing of her appeal to the WSIAT. The applicant filed her Notice of Appeal with the WSIAT on October 21, 2013. She has yet to receive confirmation of a hearing date for her WSIAT appeal. The applicant attached to her Request a letter from her representative for the WSIAT appeal. This letter stated that the WSIAT currently has a backlog of 18-24 months. The applicant argues that if the Application is re-activated now, the Tribunal should be able to schedule a hearing and render a decision well in advance of her WSIAT hearing. She disputes the Tribunal’s comments in the Interim Decision that there is a significant overlap of issues between the Application and the WSIAT appeal.

5The respondent opposes the applicant’s request to re-activate her deferred Application. It submits that the applicant has mischaracterized the time required for the WSIAT appeal to be heard and that the applicant’s appeal could be heard in 2016. The respondent also argues that the applicant has not been diligent in advancing her appeal. It states that she did not file her Confirmation of Appeal with WSIAT until over a year after her Notice of Appeal form despite the fact that this was a necessary step to move her appeal forward. The respondent also submits that there is significant overlap between the Application and the applicant’s WSIAT appeal. The respondent claims it would suffer prejudice by potentially having to defend two claims at the same time dealing with the same issues.

Findings

6Although I am concerned about the delay in this case, I find that, on balance, the Application should remain deferred. I agree with the applicant that a significant amount of time has passed since she filed her Application. Therefore, there is a risk that memories will fade and potential witnesses may not be available to testify. However, I note that a portion of the delay appears to have been attributable to the fact that the applicant’s Confirmation of Appeal was not filed with the WSIAT until over a year after her Notice of Appeal.

7Also, I agree with the Vice-chair who decided the Interim Decision that there is a significant overlap between the factual and legal issues raised in the Application and the WSIAT appeal. Both claims will have to address the issue of whether the applicant continued to have an injury/disability in late February 2013 which prevented her from performing the regular duties of her job. While the issue raised in the Application concerns whether the respondent provided reasonable accommodations to the applicant, a threshold issue will be whether the applicant continued to have a disability which required accommodation at the time that her employment was terminated in February 2013. The applicant claims she continued to have restrictions due to her work-related injury that required accommodation. She has not suggested that she had any other disability other than the work-related injury that is the subject of her WSIB claim.

8I note that the letter attached to the applicant’s Request from her counsel in the WSIAT appeal states that the WSIAT is currently booking “into 2016”. Therefore, it is possible that the applicant’s appeal will be heard at some point in the new year. Due to the overlap in the factual and legal issues in this case, this raises the risk of parallel proceedings and possible inconsistent findings.

9In light of all of the above, I find that it is not appropriate to re-activate the Application at this time. This determination is made without prejudice to the applicant’s right to renew her request to re-activate her Application if the WSIAT’s delay in setting a hearing date for her appeal continues for an excessive or unduly prolonged period of time.

order

10For the reasons set out above, although I am concerned about the delay in this matter, the applicant’s request to re-activate the Application is denied at this time.

11I am not seized with this matter.