Cartagena v. Spec Furniture Inc., 2016 HRTO 266

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Santos Cartagena

Applicant

-and-

Spec Furniture Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: February 29, 2016

Citation: 2016 HRTO 266

Indexed as: Cartagena v. Spec Furniture Inc.

WRITTEN SUBMISSIONS

Santos Cartagena, Applicant

John Bartolomeo, Counsel

Spec Furniture Inc., Respondent

Andrew Bratt, Counsel

1This 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”).

2An earlier Interim Decision, 2016 HRTO 35, the respondent’s request that the Application be dismissed because a proceeding at the Workplace Safety and Insurance Board (WSIB) had appropriately dealt with the substance of the Application, was denied. However, the parties were asked to provide submissions on the question of whether the Application should be deferred because of the proceeding at the WSIB. Those submissions have been received. The applicant opposes deferral and the respondent supports deferral.

3Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an Application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

4Deferral of an application ensures that proceedings dealing with the same issues do not run at the same time, to reduce the possibility of inconsistent decisions on facts or law.

5Some 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, having regard to the status of each proceeding and the steps that have been taken to pursue them.

6As the applicant notes, in Keith v. GNI Management Group Inc., I stated that when the other proceeding is before the WSIB, there may be particular factors that need to be considered. In particular, deferral of an Application to proceedings under the Workplace Safety and Insurance Act can result in a delay of several years. In some cases, the deferral can be indefinite. I found that because of this, it is appropriate to consider the substance of the Application and the substance of the proceeding at the WSIB. At paragraph 13, I stated:

If the substance of the Application is something the WSIB/WSIAT have jurisdiction to determine, and if there is a reasonable prospect that the substance of the Application will be dealt with, deferral may be appropriate. However, if the substance of the Application is not likely to be dealt with, the delay associated with deferral may mean that deferral is not appropriate.

7In the present case, the substance of the Application appears to be the allegation that the applicant's employment was terminated on June 17, 2014 because he had suffered a work-related injury on June 16, 2016, and not because of performance issues as alleged by the respondent. At the WSIB, the issue appears to be whether the applicant is entitled to loss of earnings benefits from June 17, 2014. The primary question in respect of this issue appears to be whether the termination was related to the work-related injury or to performance issues. It therefore appears that the substance of the Application is the same as the substance of the claim at the WSIB.

8In these circumstances, I find that it is appropriate to defer further consideration of the Application at least until there is a decision of a WSIB Appeals Resolution Officer, or some other final decision on this issue at the WSIB. If the applicant wishes to reactivate the Application after that, he must file a request to reactivate within six months of the final WSIB decision. Such a request must include a copy of the WSIB decision, and also indicate whether the applicant intends to pursue an appeal to Workplace Safety and Insurance Appeals Tribunal.