Berkau v. Toyota Motor Manufacturing Canada Inc., 2015 HRTO 1287

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karsten Berkau Applicant

-and-

Toyota Motor Manufacturing Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: September 29, 2015 Citation: 2015 HRTO 1287 Indexed as: Berkau v. Toyota Motor Manufacturing Canada Inc.

WRITTEN SUBMISSIONS

Karsten Berkau, Applicant Robert Whitteker, Representative

Toyota Motor Manufacturing Canada Inc., Respondent Ted Kovacs, Counsel

Introduction

1This Application filed on January 16, 2014 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”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a Workplace Safety and Insurance Board (“WSIB”) proceeding.

2This Application was deferred on consent of the parties because of an ongoing WSIB proceeding. The applicant now requests that the Application be reactivated.

background

3The Appeals Resolutions Officer (“ARO”) issued a decision on June 29, 2015, in which the applicant was provided with partial redress for loss of earnings. However, the ARO decision also concluded that because of a lack of information about return to work activity after November 19, 2014, the decision with respect to additional loss of earnings benefits after that date was to be remitted back to the operating area to determine.

4The applicant requests reactivation of the Application because the applicant’s human rights issues have not been determined in the ARO’s decision.

5The respondent objects to the reactivation because the ARO has remitted the matter back for further determination of loss of earnings.

decision and analysis

6The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a 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.

7One of the applicant’s main claims in this Application is that he was discriminated against on the basis of disability, was not provided with accommodated work and he therefore suffered a loss of earnings. The WSIB was and is being called upon to determine whether the applicant is entitled to a loss of earnings for the same period of time this Tribunal is being called upon to determine. At the time the matter was deferred, it was done because there is a clear potential for overlap in this case.

8Deferral was considered to be the fairest and most just and expeditious way of proceeding with the Application.

9The Tribunal advised in the deferral decision that on conclusion of the WSIB process, if his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10Having considered the matter, I remain of the view that the continued deferral of the Application is appropriate for the reasons expressed in Interim Decision 2015 HRTO 666. The Application is deferred pending the conclusion of the WSIB proceeding.

order and directions

11The Application is deferred pending further decision by the WSIB.

12The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal. The applicant must request re-activation of the Application within 60 days of the ARO’s decision.

13The applicant may also request re-activation of the Application if he believes that the WSIB process becomes unduly delayed. Such a request must include the status of the process and the reasons why the applicant believes there is undue delay.

14The applicant’s request to reactivate also should include details of what allegations the applicant alleges are outstanding at the conclusion of the WSIB proceedings, and what remedies he seeks.