Caldwell v. Windigo Catering Limited Partnership, 2015 HRTO 905

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Caldwell Applicant

-and-

Windigo Catering Limited Partnership (by its general partner, Windigo Ventures General Partner Ltd.) Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 8, 2015 Citation: 2015 HRTO 905 Indexed as: Caldwell v. Windigo Catering Limited Partnership

WRITTEN SUBMISSIONS

Mary Caldwell, Applicant Jordan Lester, Counsel

Windigo Catering Limited Partnership (by its general partner, Windigo Ventures General Partner Ltd.), Respondent Chantelle Bryson, Counsel

1This Interim Decision addresses the respondent’s request that the Tribunal defer consideration of the Application pending the result of a proceeding at the Workplace Safety and Insurance Board (“WSIB”).

1In her Application, the applicant alleged that the respondent discriminated against her in employment because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, she claimed that the respondent failed to provide reasonable accommodations for her disability.

Deferral Request

2In its Response, the respondent requested that the Tribunal defer consideration of the Application pending the outcome of the applicant’s WSIB appeal. By correspondence dated July 23, 2014, a WSIB adjudicator determined that he could not establish that workplace made a significant contribution to the development of the applicant’s medical condition.

3The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any 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. The Tribunal will generally defer to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

4I find that deferral is not appropriate in the circumstances of this case. As noted above, the Application raises the issue of whether the respondent met its duty to provide reasonable accommodation for the applicant’s disability. By contrast, the applicant’s disability-related needs and the respondent’s alleged failure to meet them are not issues before the WSIB. The issue raised in the applicant’s WSIB appeal is the cause of the applicant’s ongoing injury (i.e. whether her employment significantly contributed to the development of her medical condition). The cause of the applicant’s injury has no relevance to the issues to be determined under the Code. This is because, under the Code, employers have a duty to accommodate employees’ disability-related needs, up to the point of undue hardship, whatever the cause of the disability.

5In the circumstances, I am not persuaded that the facts and issues raised in this Application overlap sufficiently with those in the proceeding before the WSIB to warrant deferral of the Application. Therefore, the respondent’s deferral request is denied.

ORDER

6For the reasons set out above, the respondent’s deferral request is denied.

7As the parties have agreed to mediation, the next step will be for the Registrar to schedule a mediation in this matter.