Kevin Murphy v. Quiktemp Inc., 2010 HRTO 2393

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Murphy

Applicant

-and-

Quiktemp Inc.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 1, 2010

Citation: 2010 HRTO 2393

Indexed as: Murphy v. Quiktemp

1The applicant filed an Application on June 25, 2010 under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability. The applicant alleges that he experienced hearing loss while at work due to excessive noise and that the respondent refused to accommodate his hearing needs.

2The respondent filed a Response on September 1, 2010, wherein it requests early dismissal of the Application on the basis that another proceeding through the Workplace Safety and Insurance Board (“WSIB”) has appropriately dealt with the substance of the Application. The respondent asserts that the WSIB considered the medial information provided by the applicant and denied the applicant’s claim for WSIB benefits.

3The applicant filed a Reply November 9, 2010 requesting that the Tribunal reject the respondent’s request for early dismissal on the basis that the WSIB process did not appropriately deal with the substance of the Application.

BACKGROUND

4Based on documentary materials filed by the parties, it appears that the applicant made a claim with the WSIB for health care benefits, which includes hearing aid equipment, for noise induced hearing loss. It appears the applicant underwent an audiogram which was reviewed by a WSIB Noise Induced Hearing Loss Adjudicator. The documentary evidence indicates that this WSIB official determined that the applicant was ineligible for health care benefits because his hearing loss did not meet the requisite decibels hearing loss threshold as per WSIB hearing loss criteria.

SECTION 45.1 REQUEST TO DISMISS

5Section 45.1 of the Code provides 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.

6The Tribunal’s jurisprudence has suggested that s. 45.1 should be considered in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. The purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

7Recently, in Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520, the Tribunal held that because of the overall complexity and inter-related aspects of WSIB decision making, it is appropriate to consider the entire WSIB adjudicative process to be a “proceeding” for the purposes of s. 45.1 of the Code (para 67). While I appreciate that front line decision-makers, such as the Noise Induced Hearing Loss Adjudicator who assessed the applicant’s audiogram, constitute one level of the WSIB decision-making process, I am not confident that, given the circumstances of this case, the processing of the applicant’s WSIB health care benefits claim can constitute a “proceeding” as contemplated by s. 45.1 of the Code.

8Nevertheless, I find it is unnecessary for me to determine whether the WSIB Noise Induced Hearing Loss Adjudicator’s decision constitutes a “proceeding” because I am not satisfied that the human rights substance of the Application was “appropriately” dealt with.

9The applicant alleges that the respondent infringed his Code-protected rights by failing to accommodate his disability to the point of undue hardship. In particular, the Application alleges that the respondent failed to comply with a Ministry of Labour order regarding excessive noise and failed to provide the applicant with appropriate accommodation.

10Based on the information provided by the parties, it appears that the WSIB decision did not fully consider the accommodation issues as required by the Code. As previously noted, it appears that the WSIB official simply considered its noise induced decibels policy. While this application of policy may resolve the issue of the applicant’s entitlement to health care benefits under WSIB legislation, this does not mean that the parties’ respective Code rights and responsibilities have been assessed and appropriately dealt with. For example, there is no indication that the WSIB carried out an assessment of the procedural and substantive components of the duty to accommodate or considered the defence of undue hardship and the underlying factors of health, safety and costs.

11In the circumstances, I am not satisfied that the applicant’s allegations of disability discrimination have been dealt with appropriately by another proceeding. The respondent’s request for early dismissal of the Application is dismissed.

12I am not seized.