Velastegui v. Nailor Industries Inc., 2017 HRTO 1075

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bolivar Velastegui

Applicant

-and-

Nailor Industries Inc.

Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky

Date: August 17, 2017

Citation: 2017 HRTO 1075

Indexed as: Velastegui v. Nailor Industries Inc.

WRITTEN SUBMISSIONS

Bolivar Velastegui, Applicant

Stefano Oliverio, Paralegal

Nailor Industries Inc., Respondent

Daryl Seupersad, Counsel

1This Interim Decision addresses whether the Application should be deferred pending the outcome of appeals filed by the applicant under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A.

2The applicant filed an Application alleging discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that the respondent failed to accommodate his workplace injuries.

applicant’s WSIB claim

3The applicant filed claims with the Workplace Safety and Insurance Board (“WSIB”) seeking loss of earnings (“LOE”) benefits in relation to a right wrist injury and a left hand injury. The applicant also sought modified work from the respondent accommodating both of his injuries.

4On May 20, 2016, the WSIB denied the applicant’s claim for LOE benefits and found that the respondent had suitable modified work in respect of the applicant’s left hand injury. On April 28, 2017, the WSIB Appeals Resolution Officer (“ARO”) denied the applicant’s appeal of this decision. The applicant has appealed the ARO’s decision.

5The applicant also claimed that he suffered from chronic pain disability as a result of his two injuries. On March 9, 2017, the Board denied this claim. The applicant has appealed this decision.

6The respondent has requested that the Application be deferred pending the outcome of the applicant’s WSIB appeals, given the overlap between the cases, and given that the WSIB is familiar with the applicant’s situation and can address his concerns expeditiously.

7The applicant has responded that the Application should not be deferred since there are still a number of issues to be addressed through what could be lengthy and complicated appeal proceedings, and since the appeals do not address the human rights issues raised in the current Application.

findings

8The 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 of the Tribunal’s Rules of Procedure). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

9The Tribunal generally considers the following factors in determining whether to defer consideration of an application: 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 the application 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.

10Having considered the above factors, I find that it is appropriate to defer consideration of this Application.

11The Tribunal has held in several cases that a proceeding at the WSIB will be considered complete when the WSIB has made a final decision on the issues that are relevant to the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. See, for example, Seecharran v. Keybrand Foods Inc., 2012 HRTO 252, and Grabnor v. AGO Industries, 2012 HRTO 1323.

12While an ARO has ruled on some of the applicant’s claims, no such decision has been made on an equally important aspect of the case, namely, whether the applicant suffers from chronic pain disability as a result of his workplace injuries. In my view, this issue is directly relevant to the applicant’s human rights claim that the respondent has failed to properly accommodate his disability. This issue could be brought before an ARO sufficiently expeditiously to allow the Application to proceed in a timely manner.

13Once an ARO has ruled on the applicant’s chronic pain appeal, either party can ask the Tribunal to re-activate the Application. Depending on the circumstances, the Application may be re-activated or deferred again if there is an ongoing appeal that would make a continued deferral appropriate.

14If the applicant believes that the WSIB proceedings did not appropriately deal with the substance of his Application, he may seek to re-activate his deferred Application. However, the applicant should take note that, under s. 45.1 of the Code, the Tribunal has the power to dismiss Applications if the substance of an Application has been appropriately dealt with in another proceeding.

15Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how the Application may be brought back before the Tribunal following conclusion of another proceeding. It should be noted that, a party wishing to proceed with an application must file a Request for Order During Proceedings (Form 10) no later than 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

order

16For the reasons set out above, the Tribunal will defer consideration of the Application pending the outcome of the applicant’s WSIB appeal on the issue of chronic pain disability.