Erit Zajdfudem v. Bluescape Construction and Lou Hack, 2015 HRTO 697

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erit Zajdfudem Applicant

-and-

Bluescape Construction and Lou Hack Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: May 28, 2015 Citation: 2015 HRTO 697 Indexed as: Zajdfudem v. Bluescape Construction

WRITTEN SUBMISSIONS

Erit Zakjfudem, Applicant Sumitha Carvery, Counsel

Bluescape Construction Management Inc. and Lou Hack, Respondents Andrew Zabrovsky, Counsel

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 her employment was terminated because she had a disability as a result of a work-related injury. The respondents assert that the applicant’s employment was terminated because of lack of work. The respondents deny that any disability the applicant had is work-related. The applicant filed a claim for benefits with the Workplace Safety and Insurance Board (WSIB), claiming entitlement for a low back injury. The WSIB Eligibility Adjudicator determined that the applicant had not suffered a work-related injury. The applicant objected to that decision in October 2014. The status of the objection is not clear from the information provided by the parties.

3The respondents submit that the Application should be deferred pending the conclusion of the proceedings under the Workplace Safety and Insurance Act. The respondents refer to an appeal to the Workplace Safety and Insurance Appeals Tribunal but it appears that the applicant's objection is with the WSIB’s internal appeal division and has not yet been considered by a WSIB Appeals Resolution Officer.

Deferral

4Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an Application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

5Deferral of an application ensures that proceedings dealing with the same issues do not run at the same time, to reduce the possibility of inconsistent decisions on facts or law.

6Some of the general 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.

7In cases where the other proceeding is under the Workplace Safety and Insurance Act (WSIA), it is also important to consider the potential for very significant delay before there is any final determination of the workers’ compensation issues. The reasons for this were reviewed in Yousefi v. Eugene Collision Limited, 2013 HRTO 1180 and Keith v. GNI Management Group Inc., 2014 HRTO 1824.

8As stated in Keith, at paragraph 13:

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.

9In this case, the issue that a WSIB Appeals Resolution Officer will deal with is whether the applicant is entitled to benefits for a work-related injury. This is sometimes referred to as a decision regarding “initial entitlement”. If the applicant is successful in establishing that she has initial entitlement for a work-related injury, the next stage in the adjudication process will be a determination of what benefits she is entitled to. In that adjudication, the issue of the reasons for the termination of the applicant’s employment may or may not be determined.

10For the reasons discussed in Yousefi and Keith, if the applicant is not successful in establishing initial entitlement before a WSIB Appeals Resolution Officer, and appeals to the WSIAT, there could be a delay of some years before there is a final decision on initial entitlement. There could then be a further significant delay in any final adjudication of the nature and extent of benefits that the applicant may be entitled to under the WSIA. That adjudication may or may not consider the reasons for the termination of the applicant’s employment and is not likely to address the applicant’s allegations of her treatment during the period following the injury to the termination.

11In my view, it is not clear that the proceedings under the WSIA will deal with the substance of the Application and there is a potential for a very long delay before those proceedings are concluded. For these reasons, I find that deferral of the Application is not appropriate at this time.

12By June 12, 2015, the respondents are directed to advise whether they are prepared to try mediation at the Tribunal. If so, the Registrar will schedule a mediation session. If not, the Tribunal will continue to process the Application.