Human Rights Tribunal of Ontario
B E T W E E N:
Fiorildo Tenace Applicant
-and-
2020 Management Limited Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard Date: February 4, 2016 Citation: 2016 HRTO 164 Indexed as: Tenace v. 2020 Management Limited
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability. This Interim Decision deals with whether the Application should be deferred pending the completion of a related Workplace Safety and Insurance Board (“WSIB”) proceeding.
2The applicant alleges that he suffered from a workplace injury and that the respondent failed to properly accommodate his condition. The applicant further alleges that the respondent terminated his employment shortly after he informed the respondent that he had decided to undergo surgery for his injury.
3In its Response the respondent denies discrimination and asserts that the substance of the Application has been appropriately dealt with by the WSIB in a decision of a Claims Manager dated January 13, 2015 (the “WSIB decision”). The respondent submits that the Application should be dismissed under section 45.1 of the Code.
4In his Reply, the applicant argues that the WSIB has not appropriately dealt with the substance of the Application. He indicates that he has appealed the WSIB decision and submits that it may be appropriate for this Tribunal to defer further consideration of the Application until his appeal has been concluded.
5On December 30, 2015, the Tribunal issued a Case Assessment Direction (“CAD”) directing the parties to file written submissions with respect to the issue of deferral.
6On January 20, 2016, the respondent filed written submissions requesting a dismissal of the case. The respondent did not address the issue of deferral.
7On January 25, 2016, the applicant filed written submissions indicating that he filed an intent to object to the WSIB decision.
Analysis and decision
8The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (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.
9Some factors that have been identified as 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 types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
10The Tribunal has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; and Dhunsi v. J.T. Bakeries, 2010 HRTO 540 (“Dhunsi”). In Dhunsi the Tribunal deferred the application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. The Tribunal considered it relevant that the WSIB has significant expertise in addressing issues of disability.
11Based on the information in the file, it appears that the applicant is currently pursuing an appeal of the WSIB decision. The factual background of the Application is the same as the WSIB matter and the subject matter of the WSIB proceeding overlaps with the Application, specifically the issue of whether the termination was related to the applicant’s work injury. In addition, there is the matter of compensation that flows from the termination which potentially also overlaps with the remedies sought in the Application.
12As previously noted, the Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts raised in the Application. I also find that the WSIB proceeding is ongoing. In these circumstances, I conclude that deferral is the most fair, just and expeditious way of proceeding with this Application.
13With respect to the respondent’s submission that the Application should be dismissed because the substance has been appropriately dealt with by the WSIB decision, I find that the Tribunal may address this issue once the WSIB proceeding has been concluded.
14Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the WSIB appeal.
15The 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 WSIB appeal process.
16I am not seized of this matter.
Dated at Toronto, this 4th day of February, 2016.
“Signed By”
Josée Bouchard Vice-chair