HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paulo De Sena

Applicant

-and-

Real-Time Contracting Group Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Laurie Letheren

Date: September 24, 2015

Citation: 2015 HRTO 1280

Indexed as: De Sena v. Real Time Contracting Group Inc.

WRITTEN SUBMISSIONS

Paulo De Sena, Applicant

Kimberley Ann Smith, Representative

Real-Time Contracting Group Inc., Respondent

Leah Simon, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent made a Request to Defer this Application pending the outcome of a proceeding at the Workplace Safety and Insurance Board (“WSIB”). The Tribunal issued Interim Decision 2015 HRTO 1048 in which the request to defer was denied on the basis that the WSIB case manager’s investigation had concluded and a decision had been issued so there was no on-going proceeding.

3The respondent has filed a Request for Reconsideration of the Interim Decision to defer the Application. The Respondent indicates that it has filed a Notice of Objection to the WSIB case manager’s decision and submits that there is now an on-going WSIB proceeding. The respondent submits that there are overlapping facts and issues in the WSIB proceeding and this Application, and that allowing both to go forward at the same time could result in inconsistent findings.

4The applicant opposes the Request for Reconsideration taking the position that the Notice of Objection is irrelevant as the respondent may never chose to proceed with the next step in the WSIB appeal process which is filing an Appeal Readiness Form. There is no deadline for filing an Appeal Readiness Form so a deferral could cause an extensive delay.

5Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See for example Marsden v. Board of Directors of the Halton Condominium Corporation No. 41, 2013 HRTO 1844 which makes reference to Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371.

6In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsideration power. After carefully considering the policy issues and the relevant authorities the Tribunal concluded:

As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.

7Having considered these authorities and the context in which the issue arises, I have concluded that the Interim Decision to not defer this Application is not a final one. I find that it does not deprive the applicant of “any prospect of a remedy” as against the respondent and does not dispose of the entirety of the complaint. Not being a final decision, it cannot be the subject of a reconsideration request. See Galuego v. Kensington Health Centre, 2009 HRTO 49.

8For these reasons the Request for Reconsideration is dismissed.

9However, under Rule 16, the Tribunal has the discretion to defer a matter on its own motion.

10The Application was filed on May 25, 2015. Around the same time the applicant filed a complaint with the WSIB alleging that the respondent had breached its re-employment obligation. This alleged breach of re-employment is also the basis for the allegations that the respondent violated the applicant’s Code rights on the basis of his disability.

11On July 24, 2015, a WSIB case manager issued a decision in relation to the applicant’s claims that his right to re-employment had been breached. The case manager concluded that the respondent is in breach of its re-employment obligations and ordered that the applicant was entitled to re-employment payments.

12As evidenced by the document attached to the respondent’s Request for Reconsideration, the respondent has filed a Notice of Objection of the WSIB case manager’s July 24, 2015 decision.

13Some 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.

14Deferral 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 significant when the proceedings raise the same or similar issues.

15In my view, the issues raised in this Application and the issues raised in the WSIB appeal appear to be almost identical. 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 applicant was fit to return to his pre-injury job or a modified position and whether the respondent had work available that suited the applicant’s needs. The WSIB Appeals Resolution Officer will have to make a similar determination, although the focus there will be on the respondent’s re-employment obligations as determined under the Workplace Safety and Insurance Act.

16In these circumstances, I am satisfied that it is 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.

17It would appear that there is no timeline for the respondent to file the Appeal Readiness Form and as a result, there may be a significant delay before the WSIB Appeals Resolution Officer issues a decision. 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 respondent’s appeal or until six months from the date of this Decision have passed, whichever is sooner. Either party can ask the Tribunal to re-activate the Application. In the interest of avoiding excessive delay, if the WSIB Appeals Resolution Officer has not issued a decision within six months of the date of this Decision, the respondent shall advise the Tribunal of the status of that appeal. 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

18For the reasons set out above, the Tribunal orders as follows:

a. The respondent’s request for Reconsideration of Tribunal decision 2015 HRT 1048 is denied.

b. The Tribunal will defer consideration of the Application until the WSIB Appeals Resolution Officer issues a decision; or

c. If the Appeals Resolution Officer has not issued a decision within six months from the date of this Decision, the respondent shall provide the Tribunal with an update on the status of that appeal.

17I am not seized of this matter.