Clarke v. Caressant Care Nursing and Retirement Home Ltd., 2016 HRTO 1434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Clarke

Applicant

-and-

Caressant Care Nursing and Retirement Home Ltd. and Heather Richardson

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: November 3, 2016 Citation: 2016 HRTO 1434 Indexed as: Clarke v. Caressant Care Nursing and Retirement Home Ltd.

APPEARANCES

Christine Clarke, Applicant Self-represented

Caressant Care Nursing and Retirement Home Ltd. and Heather Richardson, Respondents Thomas Stefanik, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2By letter dated June 8, 2016, the Tribunal provided the parties with a Notice of Intent to Defer in which the Tribunal advised that it may be appropriate to defer the consideration of the Application pending the resolution of a related proceeding before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The Tribunal invited the parties to make submissions regarding whether the Tribunal should defer this Application.

3Both parties filed submissions. The applicant submitted that the Tribunal should not defer the Application because the issues are different in the two proceedings. The applicant submitted that before the WSIAT she is seeking loss of income benefits. The applicant submitted that her Application to the Tribunal concerns her right to work in a safe environment, harassment, discrimination and accommodation of disability.

4The respondent submitted that there is significant factual and legal overlap between the proceedings before the WSIAT and this Tribunal. The respondent submitted that, accordingly, allowing the matters to proceed concurrently raises the possibility of inconsistent decision.

Analysis and Decision

5The 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 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.

6In the Application, the applicant described situations in which she suffered significant symptoms after being exposed to the fumes of cleaning chemicals, including floor wax stripper. The applicant alleges that she asked the respondent to accommodate her by using alternative chemicals and by preventing her from being exposed. The applicant claimed and received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, for a period in respect of her exposure to workplace chemicals. The Workplace Safety and Insurance Board (“WSIB”) discontinued the applicant’s Loss of Earning (“LOE”) benefits when it determined that the respondent took adequate measures to accommodate the applicant that would allow her to return to work. The applicant’s appeal to the WSIAT is in respect of the WSIB’s decision to cease her LOE benefits. Accordingly, it appears that whether the respondent took appropriate steps to accommodate the applicant is a central issue in both the applicant’s appeal to the WSIAT and before this Tribunal. As a result, there is significant overlap in the factual and legal issues before both tribunals and the risk of inconsistent findings arises if the matters proceed concurrently. The applicant’s claim to the WSIB/WSIAT is further advanced than this Application. In the circumstances, I find that it is appropriate to defer this Application pending completion of the applicant’s appeal to the WSIAT.

7The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

8I am not seized.