Caissie v. Reko Automation and Machine Tool, 2015 HRTO 1594

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Caissie

Applicant

-and-

Reko Automation and Machine Tool and Joseph Sirianni

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 25, 2015

Citation: 2015 HRTO 1594

Indexed as: Caissie v. Reko Automation and Machine Tool

WRITTEN SUBMISSIONS

Dennis Caissie, Applicant

Christine Lundy, Paralegal

Reiko Automation and Machine Tool and Joseph Sirianni, Respondents

Jean Leslie Marentette, Counsel

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”). The Application was filed on November 14, 2011. The Application was deferred by the Tribunal in Interim Decision 2012 HRTO 752, dated April 17, 2012, because of ongoing and related adjudication at the Workplace Safety and Insurance Board (“WSIB”).

2In 2013, the Tribunal asked for an update and the applicant submitted a request that the Application be re-activated. That request was denied in Interim Decision 2013 HRTO 332 because the adjudication at the WSIB was still ongoing.

3In June 2015, the Tribunal asked for another update. The applicant again requested that the Application be re-activated. The respondents opposed re-activation.

4In an October 2, 2015, the Tribunal asked for further information about the nature of the ongoing adjudication at the WSIB in order to deal with the re-activation request. That information has now been received.

Background

5The applicant suffered a work-related right knee injury on August 30, 2010. He was off work for a few days and returned to modified duties. He was laid off in November 2010 and was granted loss of earnings by the WSIB. He returned to work in April 2011. There was an issue about the hours that the applicant was capable of working. He felt that he was capable of only part-time hours but the WSIB determined he was capable of working full-time hours. The applicant was laid off again on October 5, 2011. In January 2012, this became a permanent lay-off.

6In a decision dated April 2, 2015, a Workplace Safety and Insurance Board Appeals Resolution Officer denied an objection by the applicant and determined:

1. The applicant was not entitled to partial loss of earnings benefits from May 13, 2011 and June 13, 2011.

2. The applicant's work-related knee injury did not result in a secondary injury to the applicant low back and hip.

3. The applicant does not have a permanent right knee impairment as a result of the right knee injury.

4. The applicant is not entitled to loss of earnings beyond August 28, 2011.

7The applicant’s representative in respect of his WSIB claim filed an appeal of the decision of the Appeals Resolution Officer with the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) in June 2015.

8The same representative advised the applicant that he anticipates that a it will likely be June 2017 at the earliest before a hearing at the WSIAT will be held.

9The applicant’s representative before this Tribunal notes that the WSIAT has stated on its website that it has experienced a doubling of its workload and that as a result appeals are necessarily subject to long wait times before hearings are scheduled.

10The problem of excessive delays in the WSIB/WSIAT system as they relate to processing Applications at this Tribunal has been recognized in decisions of this Tribunal.

11In Keith v. GNI Management Group Inc., 2014 HRTO 1824, I commented (at paragraphs 11 – 17):

As a result of the nature of the system, deferral of an Application pending the conclusion of proceedings before the WSIB and any related appeals to the Workplace Safety and Insurance Appeals Tribunal can mean that the deferral is almost indefinite. As a practical matter, it means that the allegations in the Application may never be considered. If they are considered, the consideration could well happen many years after the events in question. This potentially leads to significant prejudice for the applicant and the respondent.

Of course, in some cases, the substance of the Application will be addressed in the adjudication under the WSIA. In that event, any delay in addressing the human rights related allegations may not be as relevant. However, in other cases, the substance of the Application may not be addressed in the WSIA proceeding. In those cases, if the Application is eventually re-activated at this Tribunal, the events in question may be several years in the past.

For these reasons, when considering whether to defer an Application to a related proceeding under the WSIA, a relevant consideration may be whether there is a reasonable prospect that the substance of the Application will be dealt with in that proceeding. If the substance of the Application is something that the WSIB/WSIAT have jurisdiction to determine, and if there is a reasonable prospect that the substance of the Application will be dealt with, deferral may be appropriate. However, if the substance of the Application is not likely to be dealt with, the delay associated with deferral may mean that deferral is not appropriate. As stated in Baghdasserians:

Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

One of the reasons that the Tribunal has deferred Applications to proceedings under the WSIA is that the applicant is seeking a similar remedy – loss of earnings benefits at the WSIB, and compensation for lost wages at this Tribunal. In itself, this may not be a good reason for deferral as any payment made in one system can be taken into account in the other system. For example, if an applicant is granted monetary compensation for lost wages at this Tribunal, this can be taken into account in any subsequent adjudication under the WSIA.

Another reason for deferral in general is to avoid the prospect of the possibility of inconsistent decisions on facts or law. This is a concern particularly if two systems are dealing with the same or substantially the same facts and law. While Applications where there is a concurrent WSIA proceeding may involve the same facts and law, the facts relevant to the WSIB proceeding may not be the facts relevant to the Application. Since the WSIB/WSIAT do not have explicit jurisdiction to make a finding of discrimination under the Code, the legal theory in the WSIB/WSIAT proceeding may differ from the legal theory at this Tribunal.

Of course, it can be very difficult to know whether the WSIB/WSIAT proceeding will deal with the substance of the Application. This can be because of the potentially complex and multi-faceted nature of adjudication under the WSIA, or because there is simply not enough information, especially during the early stages of the processing of the Application at this Tribunal. In some cases, it may be appropriate to defer to a specific aspect of the adjudication under the WSIA. For example, if a hearing before an Appeals Resolution Officer or WSIAT is scheduled, deferral to the conclusion of that specific proceeding may be helpful. See, for example, Seecharran v. Keybrand Foods Inc., 2012 HRTO 252. Deferral of this sort may lead to further clarification of the focus of adjudication at the WSIB/WSIAT and of the question of whether that adjudication will likely deal with the substance of the Application.

17However, since delay is a typical feature of adjudication of complex cases under WSIA, it may also be appropriate to favourably consider a request for re-activation if the delay becomes excessive (see Yousefi, noted above).

12In this case, the Application alleges that the respondents discriminated against the applicant in respect of his requests for accommodation of his disability during his employment and that the termination of his employment was related to his disability.

13As noted in the earlier Interim Decisions, there is clearly some overlap between the issues that will be considered by the WSIAT and the issues raised in the Application. However, it is not clear that the substance of the Application will be dealt with by the WSIAT.

14With regard to the issues of accommodation during employment, it appears that the only aspect of this issue that WSIAT is likely to specifically deal with is the applicant's claim for loss of earnings for the one month period in 2011.

15The Appeals Resolution Officer found that the applicant had recovered from the effects of the work-related injury by August 28, 2011 and that any ongoing impairment the applicant had after that was not work-related. If the WSIAT determines that the applicant did have an ongoing work-related disability it may make findings about the applicant's entitlement to loss of earnings benefits following the lay-off in October 2011 and this may result in a consideration of the circumstances of the lay-off. However, even if the applicant is successful at WSIAT these subsequent issues may also not be considered by WSIAT and could be sent back for consideration by the WSIB, which could mean even further delay before those issues were considered. If the WSIAT denies the applicant's appeal, it will not necessarily resolve the question of whether the applicant's disabilities were accommodated or whether the lay-off was related to his disability, but only whether any disability the applicant had was work-related.

16In my view it is also important to consider the events giving rise to the Application occurred in 2011. The lay-off was in October 2011, more than four years ago. It appears that further deferral until after WSIAT has dealt with the appeal could mean a further delay of two or more years still. And it is not clear that even that delay would mean that the substance of the Application was appropriately dealt with.

17Having considered the findings of the Appeals Resolution Officer and the allegations in the Application, together with the passage of time since the events giving rise to the Application and the anticipated further delay before the applicant's claim is considered by WSIAT, I conclude that it is now appropriate to re-activate the Application.

18The respondents are directed to file a Response to the Application within 35 days of the date of this Interim Decision.

19The respondents are also directed to clarify the legal name of the corporate respondent.