Karsten Berkau v. Toyota Motor Manufacturing Canada Inc., 2015 HRTO 666

Human Rights Tribunal of Ontario

B E T W E E N:

Karsten Berkau Applicant

-and-

Toyota Motor Manufacturing Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: May 21, 2015 Citation: 2015 HRTO 666 Indexed as: Berkau v. Toyota Motor Manufacturing Canada Inc.

APPEARANCES

Karsten Berkau, Applicant Robert Whitteker, Representative

Toyota Motor Manufacturing Canada Inc., Respondent Ted Kovacs, Counsel

Introduction

1This Application filed on January 16, 2014 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"). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a WSIB proceeding.

2This Application is deferred on consent of the parties.

3The applicant's representative submits the parties in the WSIB proceeding have filed their submissions with the WSIB Appeals Resolution Officer ("ARO"), except for the applicant's reply submissions which are due imminently. The applicant's representative submits the ARO is then expected to make a decision with respect to the applicant's loss of earnings within three months' time.

4The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. One of the applicant's main claims in this Application is that he was discriminated against on the basis of disability, was not provided with accommodated work and he therefore suffered a loss of earnings. The WSIB will be called upon to determine whether the applicant is entitled to a loss of earnings for the same period of time this Tribunal is being called upon to determine. There is a clear potential for overlap in this case.

5Deferral in these circumstances is the fairest and most just and expeditious way of proceeding with the Application.

6If the applicant believes, on conclusion of the WSIB process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

Order

7The Application is deferred pending a decision by the WSIB ARO.

8The parties' attention is drawn to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure, which address how the Application may be brought back on before the Tribunal. The applicant must request re-activation of the Application within 60 days of the ARO's decision.

9The applicant may also request re-activation of the Application if he believes that the WSIB process has become unduly delayed. Such a request must include the status of the process and the reasons why the applicant believes there is undue delay.