Smith v. Poly Dome Ontario Inc., 2015 HRTO 360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Smith Applicant

-and-

Poly Dome Ontario Inc. c.b.a. Agri-Plastics Manufacturing Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: March 23, 2015 Citation: 2015 HRTO 360 Indexed as: Smith v. Poly Dome Ontario Inc.

WRITTEN SUBMISSIONS

Ronald Smith, Applicant Christine Lundy, Representative

Poly Dome Ontario Inc., Respondent Jane Gooding, Counsel

1By Application filed November 19, 2014, the applicant alleges that the respondent discriminated against him in his employment on the basis of his disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant alleges that the discrimination arose from the respondent’s failure to accommodate his disability-related needs in failing to offer suitable work after his workplace injury.

2This Interim Decision considers whether to defer this Application pending completion of the applicant’s appeal to the Workplace Safety and Insurance Appeal Tribunal (“WSIAT”). The Tribunal issued a Notice of Intent to Defer the Application on January 19, 2015, pursuant to Rule 14 of the HRTO’s Rules of Procedure.

3The applicant opposes deferral. The applicant submits that his Application raises issues that are much broader than the issues raised in the WSIB claim and that the remedies he seeks extend beyond those that can be ordered by WSIAT. In particular the applicant argues the scope of the duty to provide suitable modified work under the WSIB regime differs from the Code’s duty to accommodate to the point of undue hardship.

4The respondent supports deferral. It states the facts and issues in both proceedings are identical and consequently there is a potential risk that there will be contradictory findings of fact and outcomes.

ANALYSIS

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. In considering whether to defer an application, the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

6It would appear that there is a significant degree of overlap between the facts and issues in this Application and the appeal before the WSIAT. Under both the Code and s.41(6) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, an employer is under a duty to accommodate a worker with a disability up to the point of undue hardship. The WSIAT will likely examine what modified duties were offered to the applicant and whether he could have performed them. The Tribunal would engage in a similar inquiry in order to determine whether the respondent’s conduct was discriminatory. If the two proceedings were allowed to proceed concurrently, there is a real risk that WSIAT and the Tribunal could make inconsistent findings on the same issues.

7For these reasons the Application is deferred.

8The Tribunal’s Rule 14 sets out the procedure by which the Application may be brought back on after the conclusion of another proceeding.

9I am not seized of this matter.