Bouchard v. 1894773 Ontario Inc., 2016 HRTO 399

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andy Bouchard Applicant

-and-

1894773 Ontario Inc. o/a Andy Meyers Lodge and Julian Kalka Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: March 30, 2016 Citation: 2016 HRTO 399 Indexed as: Bouchard v. 1894773 Ontario Inc.

WRITTEN SUBMISSIONS

Andy Bouchard, Applicant Rhonda Howells, Representative

1894773 Ontario Inc. o/a Andy Meyers Lodge and Julian Kalka, Respondents Nicole Smith, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to employment because of disability. This matter is scheduled for hearing on April 4 and 5, 2016, in Thunder Bay, Ontario.

2This Interim Decision addresses a Request for an Order During Proceeding filed by the respondents on March 21, 2016. In light of the short time before the hearing, the Tribunal abridged the time for the applicant to respond to the request in a Case Assessment Direction dated March 22, 2016. The applicant filed a Response to a Request for an Order in compliance with this direction on March 29, 2016.

The Respondents' Request

3The respondents submitted that the Tribunal should dismiss the Application pursuant to section 45.1 of the Code. Section 45.1 states as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

4The respondents submitted that the Workplace Safety and Insurance Board ("WSIB") determined that the applicant's injury in question before both the WSIB and this Tribunal was not a disability. The respondents submitted that the WSIB had therefore determined a central issue in this proceeding. The applicant cannot succeed in this matter if he cannot establish that he has a disability.

5In the alternative, the respondents submitted that the Tribunal should defer (characterized as an adjournment) the Application pending the conclusion of the applicant's appeal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"), filed on February 16, 2016. The respondents submitted that there is significant overlap in the facts and issues in both proceedings and that deferral would avoid inconsistent findings.

6The applicant submitted that the WSIB has not dealt with the substance of the Application. The applicant submitted that the WSIB has not determined that the applicant does not have a disability. Rather, the WSIB has determined the issue of whether the applicant's injury in August 2014 was a recurrence of a previous injury or a new injury and whether the applicant's diagnosis was compatible with the applicant's accident history. The applicant submitted that none of these issues is before the Tribunal. The applicant submitted that he agrees that the issue of income loss is before both tribunals, but submitted that the Tribunal and the WSIB can take into account any ruling of the other tribunal.

7The applicant submitted that he consents to the respondents' request for an adjournment because he has not received his medical file from his physician and has not had an opportunity to review it.

Analysis and Decision

Section 45.1

8The issues in this case are whether the applicant has a disability for the purposes of the Code and, if so, whether the respondents failed to accommodate the applicant's disability-related restrictions and terminated the applicant's employment because of his disability. To succeed, the applicant obviously must establish that he has a disability. However, there is no dispute that the applicant claimed benefits under the Workplace Safety and Insurance Act, 1997 for the injury in question in this Application. "Disability" is defined, in part, at section 10 of the Code as follows:

10. (1) In Part I and in this Part,

"disability" means,

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

Consequently, the applicant has a disability for the purposes of the Code, regardless of any decision of the WSIB. In my view, there is no proper basis for dismissing the Application pursuant to section 45.1 of the Code.

Deferral

9The 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.

10The respondents correctly submitted that the Tribunal has often deferred its proceedings pending the completion of proceedings before the WSIB and WSIAT. There is no doubt that there are overlapping factual and legal issues before the Tribunal and WSIAT. Nonetheless, deferral is not in my view appropriate in this instance. This Application is scheduled to proceed to hearing within a week, whereas the applicant has only recently requested an appeal to the WSIAT. There is no indication of when the applicant's WSIAT appeal will commence and certainly no reason to believe that it will be scheduled in the near future. In my view it would not, overall, be fair to the parties to defer in these circumstances. While there is overlap, the issues before this Tribunal are largely distinct from those that will be before the WSIAT and, assuming the applicant is successful before the Tribunal, the WSIAT can take into account any award for income loss, if any.

Adjournment

11The applicant has effectively requested an adjournment. It is unnecessary to seek the respondents' position on this request because it would be denied regardless of the respondents' position.

12The Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances, such as illness of a party, witness or representative. Accordingly, the Tribunal grants adjournment sparingly regardless of the consent of the other parties. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, The Tribunal stated at paragraph 4:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties' dispute will no longer be used. For that reason, among others, the Tribunal's Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel's availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

13The situation described by the applicant does not amount to extraordinary circumstances that warrant the adjournment of the hearing. As noted in a previous Interim Decision in this matter, 2016 HRTO 371, the applicant should have obtained and produced his arguably relevant medical records some time ago. The fact that he has now experienced delays in receiving this information is not, in these circumstances, a proper basis for adjourning the hearing.

Order

14The Tribunal orders as follows:

1. The respondents' request to dismiss the Application is dismissed;
2. The respondents' request to defer the Application is dismissed; and
3. The applicant's request to adjourn the hearing is dismissed.