Ismael v. AppleOne Services Limited, 2017 HRTO 940

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rukiah Ismael

Applicant

-and-

AppleOne Services Limited

Respondent

INTERIM DECISION

Adjudicator: Jacek Janczur

Date: July 25, 2017

Citation: 2017 HRTO 940

Indexed as: Ismael v. AppleOne Services Limited

WRITTEN SUBMISSIONS

Rukiah Ismael, Applicant

Maryth Yachnin, Counsel

AppleOne Services Limited, Respondent

Tim Lawson, 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”). This decision deals with the respondent’s request to defer the Application pending the disposition of the applicant’s WSIB claim.

BACKGROUND

2The respondent is a staffing agency that assigned the applicant to work at Winners Merchants Inc. where she worked from September 2015 to December 2015.

3On September 15, 2015 the applicant sustained a left ankle injury at work that did not result in any lost time. The respondent provided the applicant with accommodated work consistent with her medical restrictions until around December 28 2015, the date on which it was determined by the WSIB that she could return to her pre-injury duties.

4The respondent then advised the applicant that it would no longer provide her with accommodated work. It is this decision on the part of the respondent that gives rise to the Application.

5The applicant claims that she still needed accommodated work in accordance with her family doctor’s recommendation past December 28, 2015. Her Application contests the failure of the respondent to continue providing her with accommodated work.

6In addition to filing her Application, the applicant appealed the decision of the WSIB case manager that her ongoing left ankle difficulties are not work related. This WSIB decision was made on December 29, 2015 and upheld on August 11, 2016.

7In the August 11, 2016 decision, the WSIB case manager takes note of the fact that new medical information indicated that the applicant continued to experience difficulties with her left ankle and leg, but that she could not conclude that these ongoing difficulties were attributable to the workplace injury.

8The issue that the applicant pursued before the WSIB is whether she had reached maximum medical recovery in December 2015 and whether her continuing ankle and leg difficulties are attributable to the workplace injury.

DECISION

9Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the HRTO may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

10The fact alone that the same circumstances give rise to two legal proceedings is not a reason to defer the application. The guiding principles applied by the Tribunal in determining requests for deferral are found in Baghdasserians v. 674469 Ontario, 2008 HRTO 404. At paras. 18 -19 the Tribunal made the following general comments:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

11The respondent argues that this is an appropriate case to defer. It states that the nature and degree of the applicant’s disability, her ability to work, and whether appropriate accommodation has been provided are at issue in both this Application and the WSIB proceeding. The respondent states that there will be an overlap of facts and issues and that deferring the Application will not affect the substance of the applicant’s rights, rather it is merely a procedural step that places one of the matters in abeyance while the other one is delayed.

12The applicant is opposed to deferring the Application. In the applicant’s view, the WSIB will not address the same facts or legal issues. The applicant contends that the subject matter and the nature of the Tribunal proceedings and the WSIB proceedings are different as are the remedies available in each forum. According to the applicant, from a fairness perspective, these factors weigh against granting the deferral.

13In considering a request to defer an application pending WSIA proceedings, a central consideration is whether the substance of the Application will be dealt with by the WSIB. As the Tribunal noted in Keith v. GNI Management Group Inc., 2014 HRTO 1824, at paragraphs 12-13:

Of course, in some cases, the substance of the Application will be addressed in the adjudication under the WSIA. In that event, any delay in addressing the human rights related allegations may not be as relevant. However, in other cases, the substance of the Application may not be addressed in the WSIA proceeding. In those cases, if the Application is eventually re-activated at this Tribunal, the events in question may be several years in the past.

For these reasons, when considering whether to defer an Application to a related proceeding under the WSIA, a relevant consideration may be whether there is a reasonable prospect that the substance of the Application will be dealt with in that proceeding. If the substance of the Application is something that 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.

14In the case at hand it cannot be said that there is a reasonable prospect that the substance of the Application with be dealt with in the WSIA proceedings. The substance of the WSIA proceeding is whether the applicant’s ongoing left ankle problems are the result of the workplace injury. The determination of the WSIA proceedings will turn on such things as the details of the accident, any pre-existing conditions and the medical opinions of physicians who are consulted regarding the matter.

15In contrast, the issue in this Application is whether the respondent failed in the duty to accommodate the applicant when it withdrew accommodated work from her in December 2015. The applicant claims she had an ongoing need for accommodation when accommodated work was withdrawn by the respondent. The factual issues will be, among others, whether the applicant required accommodation at that time, and if she did, whether continuing to provide accommodation would have caused undue hardship to the applicant.

16In this case, the issue of accommodation is not before the WSIB. This factor makes this case similar to Dawood v 770976 Ontario Limited 20123 HRTO 773 where the Tribunal denied a request for deferral when the respondent withdrew accommodated work and the accommodation issue was not before the WSIB.

17In addition to the above, the issues before the WSIB are not at an advanced stage. The applicant is currently in the process of gathering the medical information that would be necessary to continue with the appeal but has not yet filed an objection to the case manager’s last decision. The final disposition of her appeal could take years. This has long been recognized by the Tribunal as a factor that militates against granting a deferral. In Yousefi v. Eugene Collision Limited, 2013 HRTO 1180, the Tribunal noted that where there is a concurrent WSIB claim, there may be particular considerations because of the complexity of the WSIB system. Further on the in the decision at paragraph 12, the Tribunal notes that:

In the course of adjudicating a complex claim the WSIB may make a large number of separate decisions, each of which can potentially be the subject of an objection or appeal. The outcome of those objections or appeals may require a re-determination of other decisions and those in turn can lead to further objections or appeals. Even a decision by WSIAT will not necessarily bring finality to the adjudication of the claim as the decision may deal with one aspect of a claim. WSIAT will also typically remit the claim to the WSIB to make further determinations about entitlement to benefits that may flow from a successful appeal by a worker. A complex claim under the WSIA can continue to be adjudicated for many years or even decades. The adjudication can involve re-visiting earlier decisions based on new information or because of a successful objection or appeal.

18In summary, balancing all of the factors at play, deferring the application is not the most fair and expeditious manner of proceeding.

19Accordingly, the request to defer the Application is denied. As both parties have agreed to mediation, this will be the next step in the Tribunal's procedure.

20I am not seized of this matter.