Lefter Bani v. Co-Ex-Tec, a division of Magna Closures Inc., 2015 HRTO 567

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lefter Bani

Applicant

-and-

Co-Ex-Tec, a division of Magna Closures Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: May 5, 2015

Citation: 2015 HRTO 567

Indexed as: Bani v. Co-ex-Tec, a division of Magna Closures Inc.

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”).

2The applicant alleges that he experienced various repetitive strain injuries in the course of his employment and also a low back injury for which surgery was recommended. The applicant alleges that the respondent did not provide any accommodation for these disabilities and then terminated his employment on June 18, 2013 because of his ongoing disability.

3The respondent states that it had no knowledge that the applicant had a disability requiring accommodation until the time of the termination of the applicant's employment and that as a result, any disability the applicant may have had could not have played any role in the decision to terminate his employment. The respondent states that after the termination of employment, the applicant filed a claim for benefits with the Workplace Safety and Insurance Board (WSIB). That claim was denied and the applicant has an appeal pending before the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The respondent further alleges that the termination of the applicant’s employment was part of a large lay-off.

4The respondent submits that the Application should be dismissed because there is no possibility that it can succeed. In the alternative, the respondent submits that the WSIB has appropriately dealt with the substance of the Application, or in the further alternative, that it should be deferred until the proceeding at the WSIAT is complete.

Direction

5The version of events offered by the applicant and the respondent are very different. It seems clear that a determination of which is the true version will require the Tribunal to hear evidence.

6According to the respondent, the WSIB denied the applicant’s claim for benefits because it found that any disability the applicant has is not work-related. While relevant to the Application, this is not a decision that can be said to have dealt with the substance of the Application. The respondent’s request that the Application be dismissed because the WSIB has appropriately dealt with the substance of the Application is denied.

7Some 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.

8If the applicant is successful at the WSIAT, he will have established that he suffered a work-related injury. This finding alone would not deal with the question of whether the applicant experienced discrimination during his employment, or whether the termination of his employment was discriminatory.

9In Keith v. GNI Management Group Inc., 2014 HRTO 1824, I noted the substantial amount of time it can take for the workers’ compensation system to deal with a claim and commented:

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.

10In the present case, I am satisfied that it is not appropriate to defer further consideration of the Application because of the appeal at WSIAT because the WSIAT is not likely to deal with the substance of the Application.

11The Tribunal will schedule a one-day hearing.