Samuel Faria v. CO-FO Concrete Forming Construction Limited, 2015 HRTO 401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Faria

Applicant

-and-

CO-FO Concrete Forming Construction Limited

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: March 26, 2015

Citation: 2015 HRTO 401

Indexed as: Faria v. CO-FO Concrete Forming Construction Limited

1This Application was filed on June 23, 2014. It alleges discrimination in employment because of disability. The respondent filed a Response and a Request for Order During Proceedings, which asked that the Tribunal defer further consideration of the Application because there was on-going adjudication of issues that were relevant to the Application at the Workplace Safety and Insurance Board (“WSIB”). The applicant filed a Reply to the Response. It appears that the applicant’s representative did not receive a copy of the respondent’s Request for Order During Proceedings opposing deferral.

2As both parties had consented to try mediation at the Tribunal, the Tribunal acknowledged the respondent’s request for deferral and determined that this issue could be revisited if necessary following mediation.

3The mediation session occurred in October 2014, but did not settle the Application.

4On November 18, 2014, the applicant’s representative, Christine Lundy, then wrote to the Tribunal to say that she had become aware of the respondent’s request for deferral. On November 28, 2014, Ms. Lundy filed her submissions opposing deferral. The respondent had not reiterated its request for deferral following the mediation session.

5In a Case Assessment Direction dated January 6, 2015, the Tribunal granted the respondent’s deferral request.

6The Case Assessment Direction concluded as follows:

I agree with the applicant that the issues in the Application and the issues relevant to the ongoing adjudication at the WSIB are not identical. However, it is clear that there is substantial overlap. The prime issue in both proceedings is the nature of the work that was available and how the parties interacted with each other.

The applicant has initiated an objection under the WSIB internal appeal system and, as of last July, was waiting for an Appeals Resolution Officer to be assigned.

In these circumstances, I find that the Application should be deferred until the applicant’s objection has been dealt with by the Appeals Resolution Officer. The applicant may ask that the Application be re-activated if the applicant believes that there are Code-related issues that have not been resolved by the Appeals Resolution Officer. The Tribunal’s Rules provide that a request to reactivate must be made within 60 days of the conclusion of the other proceeding.

The applicant may also ask that the Application be re-activated if he believes that the adjudication under the WSIA is unduly prolonged.

7On March 13, 2015, the respondent’s counsel wrote to the Tribunal. Counsel provided a copy of a decision of a WSIB Appeals Resolution Officer dated December 29, 2014. Counsel noted that the applicant had not asked for the Application to be re-activated within 60 days as directed in the Case Assessment Direction, and asked that the Application be dismissed on that basis.

8Ms. Lundy responded on March 18, 2015. She submitted that the applicant had appealed the decision of the Appeals Resolution Officer to the Workplace Safety and Insurance Appeals Tribunal and that as a result, the adjudication process under the Workplace Safety and Insurance Act was not concluded and that the Application should therefore still be deferred.

CONCLUSIONS

9In this case, on January 6, 2015 the Tribunal issued its Case Assessment Direction deferring the Application until the applicant's objection had been dealt with by the Appeals Resolution Officer. However, it turns out that the Appeals Resolution Officer had already issued a decision by that time. The Appeals Resolution Officer’s decision is dated December 20, 2014, and the hearing was on December 5, 2014, which was only one week after Ms. Lundy sent her submissions opposing deferral. Since the applicant was represented before the Appeals Resolution Officer by a colleague of Ms. Lundy, it is difficult to understand why she did not clarify the status of the WSIB objection at the time she sent her submissions. It would seem that had she done so, she would have realized that the objection was due to be heard within a few days of her submissions and might have mentioned this in her submissions.

10As a consequence, by the time this Tribunal issued the Case Assessment Direction deferring the Application until the Appeals Resolution Officer had dealt with the applicant’s objection, the Appeals Resolution Officer had in fact already had a hearing and issued a decision.

11The applicant has in the meantime filed an appeal with the Workplace Safety and Insurance Appeals Tribunal.

12In the unique circumstances of this case, I find that it is not appropriate to dismiss the Application because the applicant did not ask for re-activation of the Application within 60 days of the decision of the Appeals Resolution Officer. However, I do find that it is appropriate to defer the Application pending the conclusion of the appeal the applicant has filed with the Workplace Safety and Insurance Appeals Tribunal.

13If the applicant wishes to re-activate the Application after the conclusion of that appeal, he must do so within 60 days of a final decision from the Workplace Safety and Insurance Appeals Tribunal.