Soulliere v. Mucci-Pac Ltd., 2016 HRTO 119

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Soulliere

Applicant

-and-

Mucci-Pac Ltd.

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: January 26, 2016

Citation: 2016 HRTO 119

Indexed as: Soulliere v. Mucci-Pac Ltd.

WRITTEN SUBMISSIONS

Darrell Brian Soulliere, Applicant ) Christine Lundy, Representative

Mucci-Pac Ltd., Respondent ) Garth M. Kidd, Counsel

1This Interim Decision explains why the applicant’s Request that the Application be re-activated must be denied and remain deferred pending the result of a proceeding under the Workplace Safety and Insurance Act (“WSIA”).

2In his Application, the applicant alleged that the respondent discriminated against him in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, he claimed that the respondent failed to accommodate his disability and terminated him because it did not want to accommodate his disability.

3The background is set out more completely in the Interim Decision that deferred this Application, 2013 HRTO 858; however, the reasons for the deferral were set out in paragraph 8:

The Tribunal has generally deferred consideration of Applications when there is considerable overlap between the issues raised in the Application and the issues raised in a WSIB proceeding. It is clear that the issues raised in the WSIB appeal and the issues raised in the Application are not identical. However, it appears to me that there is an overlap of issues that is not insignificant. The critical issue at the Tribunal will be whether the respondent accommodated the applicant’s disability to the point of undue hardship and whether it terminated his employment for discriminatory reasons. Consideration of that issue will necessarily include some determination about the nature and degree of the applicant’s disabilities as well as whether the modifications offered by the employer met its duty to accommodate. The WSIB Appeals Resolution Officer will have to make a similar determination, although the focus there will be on whether the applicant refused suitable work. The WSIB has not considered the termination of the applicant’s employment but could do so if it were to determine that the applicant has an ongoing entitlement to benefits.

4The Appeal Resolution Officer (“ARO”) has rendered her decision and the applicant has filed a Request seeking to reactivate the Application. The applicant advises that he has commenced an appeal of the ARO decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) but explains that it could take up to three years for that process to conclude.

5The applicant argues that if the Application had not been deferred the issues raised might have been resolved by now and the WSIB might have relied on the Tribunal’s determinations. However, the fact is that the Application has been deferred in accordance with the Tribunal’s general approach to the issue and the ARO has made her decision. The applicant in effect seeks leave to engage in a collateral attack on the ARO decision before the Tribunal. That would be inappropriate and an abuse of process.

6The applicant also argues that it will take up to three years for the WSIAT process to be completed and that to further defer this Application would be unfair. It is unfortunate that the WSIB/WSIAT process can be protracted; however, that alone is not a sufficient reason to justify the re-litigation of essentially the same issues in multiple fora, leading to the possibility of inconsistent findings of fact.

7The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding. In particular, under this Rule, a party wishing to proceed with an Application must file a request to proceed no later than 60 days after the conclusion of the other proceeding.

8In its Response to the Request, the respondent submitted that the Application ought to be dismissed because to allow it to continue would amount to a collateral attack on the decision of the ARO. The Tribunal does not normally entertain requests that are not made in the appropriate manner, in this case by the filing of Form 10, and as well does not normally entertain requests made when a file has been deferred.

9I am not seized of this case.