Loro v. Complex Services Inc., 2015 HRTO 1081

Human Rights Tribunal of Ontario

B E T W E E N:

Robert Loro Applicant

-and-

Complex Services Inc. Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 13, 2015 Citation: 2015 HRTO 1081 Indexed as: Loro v. Complex Services Inc.

WRITTEN SUBMISSIONS

Complex Services Inc., Respondent

Paul Pingue, Counsel

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

2In his Application, the applicant alleged that the respondent discriminated against him in employment because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Although the basis for the applicant’s claim of a breach of the Code is unclear from the Application, he clarified in his submissions in response to the Tribunal’s Notice of Intent to Dismiss that he is alleging that the respondent violated the Code by harassing and/or discriminating against him due to his workplace injuries. He alleges that he was the subject of critical comments due to his injury/ies and that the respondent failed to provide reasonable accommodations for his injury/ies.

3The applicant has applied for Short Term Disability benefits and WSIB benefits. Both claims were denied. With respect to the WSIB claim, a WSIB case manager determined that the applicant did not meet the criteria for traumatic mental stress set out in the WSIB Operational Policy on traumatic mental stress. The applicant has appealed this determination.

4The applicant has not responded to the respondent’s deferral request.

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 issues of whether the respondent discriminated against the applicant with respect to certain comments that were made to him in the workplace. It also alleges that the respondent did not meet its duty to provide reasonable accommodations for the applicant’s alleged disabilities. By contrast, the applicant’s disability-related needs and the respondent’s alleged failure to meet them do not appear to be issues before the WSIB. On the basis of the materials before me, it appears that the issue before the WSIB is whether the applicant meets the criteria for compensable traumatic mental stress set out in the applicable WSIB policy. The cause of the applicant’s alleged injury (and whether it satisfies the WSIB’s criteria for traumatic mental stress) has limited, if any, relevance to the issues to be determined under the Code. This is because, under the Code, employers have a duty to accommodate employees’ disability-related needs, up to the point of undue hardship, whatever the cause of the disability.

7In the circumstances, I am not persuaded that the facts and issues raised in this Application overlap sufficiently with those in the proceeding before the WSIB to warrant deferral of the Application.

Order

8The respondent’s deferral request is denied. The Registrar will schedule a two day hearing of this matter and confirm the dates of the hearing with the parties by Notice of Hearing.