Lena Ah Yee Mak v. Manulife Financial, 2016 HRTO 373

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lena Ah Yee Mak Applicant

and

Manulife Financial Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: March 23, 2016 Citation: 2016 HRTO 373 Indexed as: Mak v. Manulife Financial

WRITTEN SUBMISSIONS

Lena Ah Yee Mak Applicant Self-Represented

Manulife Financial, Respondent Sophia Zaidi, Counsel

1By Application filed January 22, 2016, the applicant alleges that the respondents discriminated against her on the basis of a contract contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code).

2This Interim Decision considers whether to defer this Application pending completion of proceedings that are concurrently before OmbudService for Life & Health Insurance (OLHI). The applicant is alleging that she experienced discrimination when the respondent denied her long-term disability benefits.

3The applicant’s union has also filed a grievance against the applicant’s employer alleging that the employer has breached the Code by negotiating a contract with the respondent that has a clause that is contrary to the Code. The applicant has not named the employer in this Application so I find that the existence of a concurrent grievance has no impact on my decision whether to defer this Application.

4The respondent, requested that the Application be deferred pending the completion of the complaint that is proceeding before the OLHI. The respondent submits that the facts and issues to be determined by OLHI are same as those that are set out in the Application: whether the applicant should be excluded from long-term disability benefits due to a pre-existing condition. The respondent submits that the OLHI is a national independent complaint resolution service that is to handle complaints of health and disability insurance consumers that have not been resolved through the insurer’s internal complaints process. The respondent submits that the OLHI conducts an independent review and works towards achieving a resolution of the complaint.

5The applicant opposes all of the requests to defer. She submits that she requires financial assistance now and that the Application should not be delayed.

ANALYSIS

6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. In considering whether to defer an application, the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7The documents filed for the OLHI complaint indicate that the issue to be determined by OLHI is whether the applicant should have been denied long-term disability benefits on the basis that her disability which arose in the first 12 months of being insured is the result of a pre-existing condition. The outcome she is seeking from the OLHI complaint is that the Manulife pay her LTD benefits. These issues and the remedies appear to be identical to those set out in this Application.

8Further, the underlying events giving rise to both the OLHI complaint and the Application to the Tribunal are the same. Many of the facts supporting this Application appear, from the materials filed, to be substantially the same as the facts that will be determined by the OLHI. .

9It would appear that there is a significant degree of overlap between the facts and issues in this Application and the OLHI complaint. The OLHI and the Tribunal would be engaging in a similar enquiry. If the two proceedings were allowed to proceed concurrently, there is a real risk of inconsistent findings on the same issues.

10For these reasons the Application is deferred.

ORDER

11For the reasons stated above, the Application is deferred pending the conclusion of the OLHI complaint.

12The Tribunal’s Rule 14 sets out the procedure by which the Application may be brought back within 60 days of the conclusion of another proceeding.

13I am not seized of this matter.