HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Thomas Phillips Applicant
-and-
Chippewas of Georgina Island First Nation Respondent
A N D B E T W E E N:
Thomas Phillips Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel Date: September 30, 2015 Citation: 2015 HRTO 1294 Indexed as: Phillips v. Chippewas of Georgina Island First Nation
WRITTEN SUBMISSIONS
Thomas Phillips, Applicant Alan McConnell, Counsel
Chippewas of Georgina Island First Nation, Respondent William Henderson, Counsel
Introduction
1In his Applications, the applicant alleged that the respondents discriminated against him because of disability in violation of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In particular, the applicant alleged that the respondents failed to accommodate his disabilities after he experienced a work-related injury. He also alleged that his disability and/or his Workplace Safety and Insurance Board ("WSIB") claim were a factors in the respondents' decision not to renew his contract of employment.
2The Tribunal has consolidated these two Applications filed by the applicant. It also denied the Request for a Summary Hearing filed by the Chippewas of Georgina Island First Nation.
3This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of an objection/appeal filed in relation to a decision made by a case manager from the WSIB.
Applicant's WSIB claim
4After the respondents did not renew the the applicant's contract, a case manager of the WSIB's Re-Employment Team addressed whether the employer (Ontario Provincial Police) was in breach of its re-employment obligations under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A. The case manager determined that the employer had provided sufficient information to support its position that the decision to terminate the applicant was unrelated to his workplace injury or his WSIB claim. The applicant has appealed this decision to a WSIB Appeals Resolution Officer.
5The respondent, Chippewas of Georgina Island First Nation, has requested that the Tribunal defer consideration of the Application pending a decision in the applicant's WSIB appeal.
6The applicant opposed deferral on the basis that the WSIB appeal will not address his accommodation-related allegations, nor will it grant him remedies to which he is entitled under the Code.
Analysis and Conclusions
7Section 45 of the Code confirms the Tribunal's authority to defer consideration of an Application. Under Rule 14 of the Tribunal's Rules of Procedure, the Tribunal may defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.
8Deferral of an application ensures that proceedings dealing with the same issues do not run at the same time, to reduce the possibility of inconsistent decisions on facts or law.
9Some 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 type of remedies available in the other proceeding, and whether it would be fair overall to the parties to, having regard to the status of each proceeding and the steps that have been taken to pursue them.
10The applicant's primary claims in his Application are that the respondents failed to provide reasonable accommodations for this disability and that his disability and/or WSIB claim were factors in the respondents' decision not to renew his employment contract. While it appears that the applicant's WSIB appeal may not address the substance of the applicant's accommodation claim, it will address his claim that his disability and/or WSIB claim were factors in the termination of his employment. In ruling on the applicant's appeal, an Appeals Resolution Officer ("ARO") will have to consider whether the case manager erred in finding that the respondent did not breach its re-employment obligations. In so doing, the ARO will have to decide whether the case manager erred in finding that the applicant's termination was not related to his injury or his claim for WSIB benefits.
11In 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.
12In this case, 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 the current proceeding. At that time, either party can ask the Tribunal to re-activate the Application. 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.
13It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
ORDER
14The Application is deferred pending a decision by a WSIB ARO with respect to the applicant's case.
15I am not seized of this matter.
Dated at Toronto, this 30th day of September, 2015.
"Signed by"
_________________________________
Jo-Anne Pickel Vice-chair