Panditharatne v. Logistics in Motion Inc., 2015 HRTO 1495

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerard Panditharatne Applicant

-and-

Logistics in Motion Inc. Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: November 5, 2015 Citation: 2015 HRTO 1495 Indexed as: Panditharatne v. Logistics in Motion Inc.

WRITTEN SUBMISSIONS

Gerard Panditharatne, Applicant Jo-Ann Seamon, Counsel

Logistics in Motion Inc., Respondent Leah Simon, Counsel

Introduction

1This 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 Workplace Safety and Insurance Board (“WSIB”).

2In his Application, the applicant alleged that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleged that the respondent terminated his employment because he had sustained an injury while at work and because he had made a claim to the WSIB.

3The respondent denied any discrimination. It claimed that it terminated the applicant’s employment due to an alleged safety infraction that occurred one month before his workplace accident.

Applicant’s WSIB claim

4The applicant sustained a work-related injury to his tibia in or around January 2015. He filed a claim for WSIB loss of earnings (“LOE”) benefits. A WSIB Case Manager issued a decision in which he allowed the applicant’s claim in part. The Case Manager granted the applicant LOE benefits until February 26, 2015. Among other things, the Case Manager found that the applicant’s medical condition was stable as of February 27, 2015, and that certain modified duties that the respondent offered to him in January 2015 would have been suitable for him as of February 27, 2015. However, he found that the applicant was unable to perform the modified work because the respondent terminated his employment on January 21, 2015, due to a safety violation. The Case Manager made additional findings in his decision regarding the likely time frame within which the applicant would be able to return to his regular duties and the time frame within which he would be expected to have full function of his tibia.

5The applicant filed an Intent to Object to the Case Manager’s decision in May 2015. The Intent to Object form indicates that the issue in dispute in the appeal is the denial of LOE benefits beyond February 26, 2015.

Request to defer

6The respondent requested that the Tribunal defer consideration of the Application pending the conclusion of the applicant’s WSIB appeal. The respondent submits that a deferral is appropriate because there is substantial overlap between the nature and subject matter of the Application and the applicant’s WSIB appeal. The respondent submitted that, in both cases, the principal question will be whether the respondent terminated the applicant’s employment in whole or in part because of his WSIB or whether it had just cause to terminate his employment.

7The applicant opposed deferral on the basis that the counsel for his WSIB appeal is still gathering medical information and has yet to file an Appeal Readiness Form. He also opposed deferral on the basis of his counsel’s estimation that his WSIB appeal may not be heard until the spring or fall of 2016. The applicant also cited possible future delays if the applicant or respondent were to appeal the Appeals Resolution Officer’s decision to the Workplace Safety and Insurance Appeals Tribunal.

8In addition, the applicant submitted that there is no substantial overlap between the two proceedings. The applicant submitted that the issue of the applicant’s termination is ancillary to the main issue in his WSIB appeal, which centers around the termination of LOE benefits. The applicant submitted that there are a number of sub-issues that the WSIB likely will address in determining the length of his entitlement to LOE benefits. Most of these sub-issues relate to the applicant’s medical status and his ability to perform the modified duties offered by the respondent prior to his termination. The applicant noted that this Application does not raise any accommodation issues, but instead focuses on whether the applicant’s disability and/or WSIB claim were factors in the termination of his employment. He also noted that he is not covered by the re-employment protections in s. 41 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (“WSIA”).

Analysis and Conclusions

9Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an Application. Deferral 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.

10Some 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.

11Having considered the above factors, I find that it is appropriate to defer consideration of this Application due to the overlap between the Application and the WSIB appeal. I do not agree that there is a clear distinction between the issue in this Application (that is, whether the applicant’s disability and/or claim for benefits was a factor in his termination) and the issue in the WSIB appeal (that is, whether the applicant was entitled to LOE benefits beyond February 26, 2015). I understand the applicant’s argument that the applicant in this case is not covered by the re-employment protections in s. 41 of the WSIA. However, it appears likely that an Appeals Resolution Officer will be called upon to address WSIB Policy No. 19-02-02, which addresses the responsibilities of workplace parties in work reintegration. Among other things, the policy sets out the parties’ co-operation obligations as part of the return to work process. The policy notes that these obligations apply from the date of the injury to the earlier of various alternative dates. One of the alternative dates is the date on which there is no longer an employment relationship between the parties because the employer terminated the worker’s employment for reasons unrelated to the work-related injury, treatment for the injury, or the claim for benefits. In determining whether the applicant is entitled to LOE benefits beyond February 26, 2015, it seems likely that the Appeals Resolution Officer will have to determine whether the applicant’s termination was related to his work injury, treatment for the injury or his claim for benefits. That is precisely the issue in this Application. Therefore, there is a potential for significant overlap between the two proceedings.

12In addition, if the Tribunal did proceed with this Application and found in favour of the applicant, the Tribunal would have to determine the appropriate time period during which the applicant would be entitled to lost wages. In determining this time period, the Tribunal would have to determine the date on which the applicant would have been capable of returning to work to perform either modified or regular duties. This is the main question at the center of the applicant’s WSIB appeal.

13Due to the overlap described above, I find that it is appropriate to defer consideration of this Application until a WSIB Appeals Resolution Officer has issued a decision with respect to the applicant’s appeal. 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. I find that the points raised by the applicant regarding delays in appeals to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) may be considered at a later stage if there is an appeal to the WSIAT in this case.

14It 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

15The respondent’s deferral request is granted. The Tribunal will defer consideration of this Application until a WSIB Appeals Resolution Officer has issued a decision with respect to the applicant’s appeal.

16I am not seized of this matter.