Kellar v. S-W Nursing Care Inc., 2016 HRTO 1423

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Kellar

Applicant

-and-

S-W Nursing Care Inc. (o/a Robertson Brown Health Services)

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: November 2, 2016

Citation: 2016 HRTO 1423

Indexed as: Kellar v. S-W Nursing Care Inc.

APPEARANCES

Angela Kellar, Applicant

Nathan Korenberg, Representative

S-W Nursing Care Inc. (o/a Robertson Brown Health Services), Respondent

Dan Black, Counsel

1The hearing in this matter commences on November 14 and 15, 2016. The 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 she told the respondent that the Workplace Safety and Insurance Board (“WSIB”) physician deemed her able to return to her full duties even though she had not been cleared to do so by her own physician. She alleges that after her WSIB benefits were terminated, she was terminated by the respondent.

3The respondent denies the allegations against it. In addition to preliminary issues it raised, it submits that the applicant was never terminated. Instead, it submits it accommodated the applicant’s restrictions until the applicant significantly reduced her availability, down to one or two hour shifts, and then became unavailable such that she could not be scheduled.

4On October 27, 2016, the respondent filed a Request for an Order During Proceedings (“RFOP”) requesting that the Human Rights Tribunal of Ontario (“the Tribunal”) dismiss or defer the Application because it had just received notice of additional appeals the applicant has made to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

5Given the timing of the RFOP to the hearing dates, a case management call was scheduled for November 1, 2016, to hear the parties’ submissions on the respondent’s request to have the Application dismissed or deferred.

6For the reasons set out below, the Application is deferred and the November hearing dates are cancelled.

The Respondent’s Submissions

7The respondent submits that the Application should be dismissed because the WSIB and/or WSIAT have appropriately dealt with, or will appropriately deal with, in whole or in part, the substance of the Application. Alternatively, it requests that the Tribunal defer the Application pending conclusion of the WSIAT appeal.

8It admits that it was aware of WSIB rulings and a WSIAT appeal, about which it raised preliminary issues in its Response, but that on October 25, 2016, it received a letter from WSIAT setting out new issues about which the applicant had appealed. The new issues included: recognition of permanent impairment and entitlement to a non-economic loss award for the low back; entitlement to work transition service; and, full loss of earnings benefits for the period of August 26, 2014 to present date and ongoing. It is based upon this new information that the respondent filed its RFOP.

9The respondent submits that now there are a number of issues which overlap between WSIB/WSIAT and the Tribunal. There is a risk of duplicative and/or contradictory findings being made between the Tribunals, including whether or not the applicant was totally disabled after August 26, 2014, entitled to shifts or terminated. It also submits that the issue of remedies could be affected with the possibility of one tribunal awarding remedies, but not the other one, or the possibility of double recovery if both tribunals award the applicant remedies.

The Applicant’s Submissions

10The applicant’s representative submitted that he is not representing the applicant in her proceedings before WSIB/WSIAT. He became aware of WSIAT’s October 25, 2016 letter when the respondent included it with its RFOP.

11The applicant opposes dismissal of the Application. She submits that the respondent was aware of the WSIB/WSIAT issues at the time the Response was filed, although she acknowledges that new issues are identified in WSIAT’s October 25, 2016 letter. She does not agree that her Application should be deferred, but submits that is preferable than it being dismissed.

12The applicant submits that the Tribunal can address any remedies awarded by WSIAT, but WSIAT does not have the jurisdiction to determine whether or not the applicant was discriminated against by the respondent. However, deferring the Application to the WSIAT process is problematic as WSIAT is a lengthy process and for which there is no hearing date yet scheduled.

Law and Analysis

13It is not appropriate, at this stage, to dismiss the Application pursuant to section 45.1 of the Code as there is an outstanding appeal to WSIAT. It may be, depending on the decision issued by WSIAT, that section 45.1 of the Code becomes a relevant consideration later for the Tribunal.

14The 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 of the Tribunal’s Rules of Procedure (“the Rules”)). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings. See Haskins v. TNS Canadian Facts, 2008 HRTO 287. Some of the 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 defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Calabria v. DTZ Barnicke, 2008 HRTO 411 and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

15In this case, the applicant has filed an appeal to WSIAT seeking recognition for permanent impairment and entitlement to a non-economic loss award for low back, entitlement to work transition services, and full loss of earnings benefits from August 26, 2014 to date.

16A loss of earnings remedy awarded by WSIAT, by itself, is not sufficient in the circumstances of this case to defer the Application as the remedies the applicant is seeking, if her Application is upheld, can be bifurcated. However, there are certainly overlaps between the factual and legal issues raised in the proceedings before the Tribunal and WSIAT. At issue in the hearings between WSIAT and the Tribunal is: whether the applicant has a back injury which constitutes a disability: what, if any restrictions she may have as a result of her disability; whether she was able or unable to work after August 26, 2014, with or without accommodations; whether she was terminated when her WSIB benefits were terminated; and what remedies, if any, should be awarded. All of these support deferring the Application pending completion of the WSIAT process.

17I share the applicant’s concern that deferring the Application to WSIAT will likely mean deferral for a significant period of time. However, without deferral there is a possibility that the two tribunals will come to different findings and conclusions based upon the same set of facts before them.

18Given that WSIB has issued decisions about some of these issues, the fact that an appeal to WSIAT has been made, WSIAT’s expertise in medical issues, and the concern that two concurrent proceedings dealing with the same factual issues may result in inconsistent findings on the same evidence, I have determined that deferral is appropriate. The Application is hereby deferred pending the conclusion of the WSIAT appeal. The Tribunal’s November 2016 hearing dates are cancelled.

19Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website at www.sjto.gov.on.ca.