Istvan Kovarcsik v. Perpetual Properties Limited, Milton Winberg and Phillip Khetani, 2016 HRTO 1211

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Istvan Kovarcsik Applicant

-and-

Perpetual Properties Limited, Milton Winberg and Phillip Khetani Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 14, 2016 Citation: 2016 HRTO 1211 Indexed as: Kovarcsik v. Perpetual Properties Limited

WRITTEN SUBMISSIONS

Istvan Kovarcsik, Applicant Self-represented

Perpetual Properties Limited, Milton Winberg and Phillip Khetani, Respondents John Campbell, Counsel

1This Interim Decision addresses the applicant’s request to re-activate his deferred Application and two other matters raised by the respondents.

2In his Application, the applicant alleged that the respondents discriminated against him because of age and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. In particular, the applicant alleged that his age and/or disability were factors in the respondents’ decision to terminate his employment. The respondents denied the allegation and stated that the applicant was terminated because the corporate respondent ceased operations shortly after the applicant began a medical leave.

3By Interim Decision, 2014 HRTO 788, the Tribunal deferred consideration of the Application pending the conclusion of a proceeding before the Workplace and Safety Insurance Tribunal (“WSIAT”). It did so because the issues in the two proceedings were similar and therefore there was a risk of inconsistent findings if the two proceeding proceeded concurrently.

4The applicant requested that the Tribunal re-activate his deferred Application since the WSIAT issued a decision in his appeal on June 6, 2016. The WSIAT allowed the applicant’s appeal. It held that the applicant has a permanent impairment to his right elbow and is entitled to an assessment of that impairment for a Non-Economic Loss (“NEL”) award. The WSIAT also held that the applicant is entitled to partial loss of earnings (“LOE”) benefits based on the difference between his pre-injury earnings and an entry level job at minimum wage from May 28, 2012 to his 65th birthday. The WSIAT appeal panel remitted the calculation of the benefits that flow from its decision to the Workplace Safety and Insurance Board.

5The respondents opposed the applicant’s request to re-activate his deferred Application. They submitted that the Application should not proceed until the applicant’s NEL and LOE benefits are calculated.

Findings

6The applicant’s request to reactivate his Application is granted.

7I do not find it appropriate to continue the deferral of the Application pending the precise calculation of the NEL and LOE benefits that flow from the WSIAT’s decision. As noted by the respondents, the Tribunal deferred consideration of the Application until the “conclusion” of the WSIAT proceeding. In my view, the substance of the WSIAT appeal has concluded, even if the precise amount of NEL and LOE benefits remains to be calculated. As noted above, the Tribunal deferred consideration of the Application due to the overlap in issues between the two proceedings and the associated risk of inconsistent results. The substantive issues in the WSIAT proceeding have now been determined such that there no longer exists a risk of inconsistent factual or legal determinations. To the extent that the LOE benefits received by the applicant are relevant to the appropriate remedy in this case if the applicant is successful, this can be dealt with by the adjudicator assigned to the case at the appropriate time.

Filing of WSIAT materials

8The respondents submit that, to expedite matters, the applicant should be ordered to produce all documents filed with respect to his various WSIAT hearings. This request for production is premature at this stage. Rule 16.1 of the Tribunal’s Rules of Procedure sets out a process for the disclosure of arguably relevant documents. If the applicant does not disclose all arguably relevant documents to the respondents within the time frame provided by this rule, the respondents may, at that point, file a Request for Order During Proceedings (Form 10) requesting production of any missing arguably relevant documents.

Applicant’s Assignment in Bankruptcy

9The respondents stated that the applicant filed an assignment into bankruptcy in October 2010 and that this Application is the property of his estate in bankruptcy. The respondents submitted that the applicant’s Trustee in Bankruptcy should have notice of this Application if the applicant has not been discharged from bankruptcy.

10The applicant is directed to write to the Tribunal, copying the respondents, to inform the Tribunal whether he has been discharged from bankruptcy. If he has not been discharged, he must provide contact information for his Trustee in Bankruptcy so that the Tribunal can provide the Trustee with notice of this proceeding.

order

11For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to reactivate the Application is granted. The Tribunal Registrar shall schedule a two-day hearing in this case.

b. The respondents’ request for production of materials is denied as premature at this stage.

c. Within 14 days of the date of this Interim Decision, the applicant must write to the Tribunal, copying the respondents, to advise whether he has been discharged from bankruptcy. If he has been discharged, he must file a copy of the discharge with the Tribunal and copy the respondents. If he has not been discharged, he must provide the Tribunal with the contact information for his Trustee in Bankruptcy.

d. If the applicant advises the Tribunal that he has not been discharged from bankruptcy, the Tribunal’s Registrar shall provide notice of this proceeding to the applicant’s Trustee in Bankruptcy.

12I am not seized of this matter.