Lajoy v. BlueLine Rental Inc., 2015 HRTO 1647

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Lajoy Applicant

-and-

BlueLine Rental Inc. Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: December 4, 2015 Citation: 2015 HRTO 1647 Indexed as: Lajoy v. BlueLine Rental Inc.

WRITTEN SUBMISSIONS

James Allan Lajoy, Applicant Christine Lundy, Paralegal

BlueLine Rental Inc., Respondent Blair McCreadie, Counsel

1On January 8, 2014, in 2014 HRTO 31 (“the deferral decision”), the Tribunal (“HRTO”) granted a request to defer this Application until a WSIB Appeals Resolution Officer (“ARO”) issued a final decision, finding that there was a significant overlap between the issues in the WSIB proceeding and the Application. The deferral decision also noted that the Application could be further deferred following the ARO decision, if appropriate.

2In December 2014, the applicant advised the HRTO that he had filed an appeal of the ARO decision with the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The HRTO confirmed that in the circumstances the Application remained deferred.

3On October 27, 2015, the applicant filed a Request to Re-activate the Deferred Application (“the Request”). The applicant acknowledges that the WSIAT appeal is still ongoing but claims that there are institutional delays in the WSIAT appeal process that justify his request to reactivate this Application at this time.

4The applicant has provided a letter from his representative in the WSIAT appeal (“WSIAT representative”) which claims that the timeline for a WSIAT appeal to be heard is 18 to 24 months from the time the appeal is commenced. The WSIAT representative further characterizes these timelines as “unreasonable” and “extreme.” The applicant also claims that if reactivated now the HRTO process would be complete well in advance of a hearing at the WSIAT.

5The respondent opposes reactivation.

Analysis and Decision

6The request to reactivate the Application is denied.

7The deferral decision has already determined that there is a significant overlap of the issues between the Application and the WSIB proceeding. The same issues are now before WSIAT, so the justification for deferral remains.

8If the time estimate the applicant’s WSIAT representative provided is accurate, the WSIAT appeal will be heard anywhere from April to October 2016, 18 to 24 months after the appeal was commenced in October 2014. If reactivated today, according to the current HRTO Service Standards, this Application would likely be scheduled for a mediation in April or May 2016, and if the mediation was unsuccessful, scheduled for a hearing in late 2016.

9As noted in the deferral decision, Calabria v. DTZ Barnicke, 2008 HRTO 411 explained, at para. 7, that “[d]eferral 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.” Reactivation now would mean the HRTO and WSIAT processes would be running concurrently, and may be heard at the same time. These are precisely the circumstances where deferral is appropriate.

Order

10The request to reactivate is denied.

11As noted in the deferral decision, if either party wishes to proceed with the Application, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the WSIAT proceeding (Rules 14.3 and 14.4).