John McGean v. Cotton Inc., 2015 HRTO 1428

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John McGean

Applicant

-and-

Cotton Inc.

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 26, 2015

Citation: 2015 HRTO 1428

Indexed as: McGean v. Cotton Inc.

WRITTEN SUBMISSIONS

John McGean, Applicant

Loreta Zubas, Counsel

Cotton Inc., Respondent

Bradley Troup, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2The applicant alleges that the respondent failed to accommodate his physical restrictions arising from a workplace injury and ultimately dismissed him from employment because of his disability. The respondent denies any violation of the Code and asserts that it dismissed the applicant for just cause because of an unauthorized absence from work.

Request to defer

3On August 11, 2015, the respondent filed a Request for an Order During Proceedings seeking an order deferring the Application pending the conclusion of proceedings under the Workplace Safety and Insurance Act (“WSIA”) regarding a workplace injury sustained by the applicant. The applicant filed a claim under the WSIA regarding a work-related injury and the respondent submitted that the Workplace Safety and Insurance Board (“WSIB”) was involved in coordinating the applicant’s return to work process with the respondent. The respondent created a modified position to accommodate the applicant’s restrictions, which the WSIB confirmed was suitable. Before beginning in the modified position, the applicant identified physical restrictions in his lower back and legs not related to his workplace injury that could prevent him from performing the modified duties. The applicant was directed to provide updated medical information regarding these newly identified restrictions, which he did not do. The WSIB decided that the applicant was not entitled to benefits under WSIA regarding his lower back and legs. The respondent submitted that on July 14, 2015, it learned that the applicant filed an appeal of the WSIB’s decision. The respondent submitted that the WSIB matter involves the same or similar factual determinations as the Tribunal will have to make in this Application. Specifically, the respondent submitted that the WSIB appeal will require determination of the applicant’s injuries and restrictions, whether the respondent accommodated the applicant and whether the applicant conducted himself appropriately with respect to the accommodation offered to him. Accordingly, the respondent submitted that the Tribunal should defer this Application pending the outcome of the WSIB matter to avoid potentially conflicting findings of fact and because any remedies awarded by the Tribunal for loss of income could be affected by the outcome of the WSIB appeal.

4In a letter dated September 8, 2015, counsel for the applicant indicated that the applicant was not pursuing appeals of the WSIB decisions identified in the request to defer. The applicant did not provide any documentation or any other basis for finding that the applicant was not pursuing appeals before the WSIB. Accordingly, in a Case Assessment Direction dated September 30, 2015, the Tribunal directed the applicant to provide documentation confirming the status of the applicant’s WSIB file.

5On October 14, 2015, the applicant filed submissions in response to the Case Assessment Direction. The submissions included an affidavit sworn by the applicant. In the affidavit, the applicant stated that he had filed Intent to Object forms with the WSIB to preserve his timelines to object. The applicant stated that he has not submitted any Appeals Readiness Forms to the WSIB and has not initiated any appeals. The applicant stated that he intends to appeal only the Non-Economic Loss benefit awarded in respect of his neck condition. The applicant also submitted a letter from a WSIB Case Manager who confirmed that filing an Intent to Object form does not mean that an appeal has been filed. Rather, the Case Manager clarified that that a party must file an Intent to Object form within a specified time limit after a decision made by the WSIB. The Intent to Object form triggers the WSIB to take certain administrative steps, but does not indicate that an appeal has begun. An appeal begins when a party files an Appeals Readiness Form and the Case Manager confirmed that the applicant has not filed an Appeals Readiness Form regarding any of the decisions to which he has objected.

Analysis and Decision

6The 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 ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. Some 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 defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: see Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

7There is no dispute that the applicant filed Intent to Object forms regarding several decisions of the WSIB. The materials the applicant filed, however, confirm that filing an Intent to Object is required to preserve a party’s right to object and does not initiate an appeal. The WSIB confirmed that the applicant has not filed any Appeals Readiness Forms, the document required to initiate an appeal. The applicant stated that he intends to appeal only the WSIB’s decision regarding his entitlement to Non-Economic Loss benefits and there is no reason to question that statement. The WSIB’s decision awarding the applicant Non-Economic Loss benefits describes these benefits as a payment intended to compensate a worker for permanent impairments caused by a workplace injury. In light of the applicant’s submissions, it does not appear that the WSIB shall be called upon to decide any issue that overlaps with the issues arising in this case, in particular whether the duty to accommodate arose in the applicant’s circumstances and whether the respondent met that duty. The Tribunal does not award remedies that are equivalent to a Non-Economic Loss award and the proceeding before the Tribunal has been scheduled for hearing in the near future, whereas no proceeding before the WSIB has been initiated at this time. Accordingly, I find that deferral of the Application is not appropriate and the respondent’s request is denied.

8I am not seized.