Rafuse v. Qualtech Seating Systems, 2017 HRTO 914

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Rafuse

Applicant

-and-

Qualtech Seating Systems (Magna International Inc.)

Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: July 20, 2017 Citation: 2017 HRTO 914 Indexed as: Rafuse v. Qualtech Seating Systems

WRITTEN SUBMISSIONS

Michael Rafuse, Applicant Michael Hamilton, Counsel

Qualtech Seating Systems (Magna International Inc.), Respondent Laura Karabulut, Counsel

1This Interim Decision addresses the issue of whether two Applications filed by the applicant under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), files 2013-15641-I (the “first Application”) and 2015-20649-I (the “second Application”), should be consolidated, or whether the second Application should be deferred pending the resolution of the first. The applicant argues the Applications should be consolidated. The respondent argues that the second Application should be deferred.

2For the reasons set out below, the Applications are consolidated.

3The hearing of the first Application commenced before another Vice-chair, though the hearing was delayed to deal with certain issues respecting medical evidence, which were addressed in Interim Decision 2017 HRTO 151, dated February 7, 2017 (the “February 2017 Interim Decision”). The previous Vice-chair also ordered that the hearing be bifurcated to hear the issues of liability and remedy separately.

4The allegations in the first Application, set out at paras. 3-10 of the February 2017 Interim Decision, raise the issue of whether the respondent had met its duty to accommodate his disability, and whether the applicant was subject to differential treatment because his disability was not the result of a workplace injury. The first Application addresses allegations for the time period from October 4, 2012 up to the filing of the Reply on December 13, 2013.

5The allegations in the second Application are that the respondent continued to not properly accommodate the applicant from December 13, 2013 to March 2014, that he had to go on a leave of absence for six months because of the treatment he received from the respondent, and that the respondent’s manner of communication changed after he filed the first Application and became more aggressive or cumbersome. He claims that when he was returned to his position at the label station in November 2014, it was at a reduced rate of pay with a higher workload. He argues that the respondent’s actions were a failure to accommodate or were reprisal under s.8 of the Code.

6In Bissonnette v. Windsor Police Services Board, 2016 HRTO 1621 (“Bissonnette”), at paras. 20-25, in similar procedural circumstances, I held that where the parties were the same, and where there was an overlap of the issues and evidence, it was most fair, just and expeditious for the applications to be consolidated, rather than to defer one pending the outcome of the other.

7I agree with the applicant that there is a connection between the allegations respecting accommodation, all of which relate to disputes between the same parties in the same workplace. The claims in the first and second Applications are largely alleging an ongoing failure to accommodate, or alleging reprisal for the applicant having claimed discrimination. The allegations respecting the applicant’s leave of absence from March to September 2014 are primarily with respect to the impact on him of the alleged failure to accommodate.

8The respondent relies on the Tribunal’s decision in Thomas v. IATSE Local 822, 2013 HRTO 353 (“Thomas”), where the Tribunal deferred a second application due to the late stage of the first application in the proceedings, and due to the overlap of the issues. I note that in Thomas, part of the reason for deferring given the stage of the proceedings was that the respondents were, for the most part, different, and though the two applications involved similar allegations against the same individual, the incidents occurred in different workplaces, in different municipalities, for different employers, and under different union locals. In Thomas, of the 12 respondents named in the second application, only two were also parties to the first. The Tribunal determined that consolidation was not appropriate as “it would be fundamentally unfair to require parties to now participate in litigation that has been ongoing for some time.”

9Though not specifically relied on in Thomas, the decision appears to have been based on the issue of prejudice to the respondents being required to become involved in another proceeding in which they were not directly involved, as set out in para. 15 of Persaud v. Toronto District School Board, 2008 HRTO 25, cited in Bissonnette at para. 23. The same concern is not present in a case where the parties and the workplace are the same in both proceedings, such as Bissonnette and the present case.

10I note that in December 2014, the applicant had attempted to raise the issues now set out in the second Application, shortly prior to the first scheduled hearing dates in this matter. The respondent’s submissions from January 2015 included the following: “[t]he appropriate course of action was for the Applicant to file a new application well in advance of the hearing date. Qualtech would then have had an opportunity to inquire into the allegations and file a Response in accordance with the Tribunal’s Rules of Procedure.”

11The presiding Vice-chair ruled at the time that the new allegations would not be considered as part of the hearing of the first Application. That conclusion was appropriate, given that the new allegations were raised for the first time only shortly before the first scheduled hearing dates. However, those allegations have now been incorporated into an Application, the respondent has had an opportunity to inquire into those allegations and has filed a Response, and the applicant has filed a Reply, and the respondent has been aware of the new allegations now for several years.

12Four hearing dates have now been scheduled in this matter for late September and early October 2017. Unlike in Labao v. Toronto Police Services Board, 2013 HRTO 474, consolidating these two Applications will not require the cancellation of the upcoming dates. Rather, consolidation will ensure that the related issues between the parties are dealt with in the same proceeding, avoiding the potential for the same evidence to have to be heard in two separate matters. Though the hearing may be longer than if the first Application was heard on its own, in my view, hearing the two Applications separately would likely result in more hearing time than if the matters were consolidated.

13Given the earlier order bifurcating the hearing into liability and remedy, it is not necessary for the parties to exchange documents related to remedy at this time. Further orders or directions respecting disclosure will be addressed as necessary. The Tribunal may also schedule a further case management conference call prior to the first scheduled hearing date to address any issues respecting the scope of evidence, witnesses, or other procedural issues.

Order and Directions

14Applications 2013-15641-I and 2015-20649-I are consolidated. The allegations will proceed as a single Application under file number 2013-15641-I.

15The parties shall exchange their arguably relevant documents relating to the allegations of liability raised in the second Application, by August 18, 2017.

16The parties shall file any additional or amended witness statements, or additional documents on which they intend to rely, arising from the allegations respecting liability in the second Application by September 1, 2017.