Human Rights Tribunal of Ontario
Between:
Katarina Kiss Applicant
-and-
ED Industries Ltd. Respondent
Interim Decision
Adjudicator: Naomi Overend Date: March 16, 2011 Citation: 2011 HRTO 526 Indexed as: Kiss v. ED Industries
Written Submissions
Katarina Kiss, Applicant: Self-represented ED Industries, Respondent: John P. Illingworth, Counsel
1The applicant filed this Application on August 16, 2010, alleging discrimination in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant had previously filed a claim with the Workplace Safety and Insurance Board ("WSIB") alleging that the exposure to mould at her work had caused her to develop asthma and dermatitis.
2This purpose of this Interim Decision is to determine whether the Application should be deferred pending the outcome of the WSIB claim's adjudication. The respondent requested that the Tribunal defer in its Response. The applicant did not address this request in her Reply and so the Tribunal requested her written submissions by letter dated January 17, 2011. Both the applicant and respondent filed written submissions in response to this request.
3The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
4In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal articulated the problem with concurrent legal proceedings and set out the factors that might be taken into account:
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. 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 types 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.
5In the instant case, the applicant alleges that the she developed a disability as a result of exposure to mould in her workplace, which the respondent failed to accommodate. In turn, this has, in part, resulted in a further psychological disability, which she also alleges the respondent has failed to accommodate.
6The difficulty with this case is that the respondent disputes whether the applicant had a physical disability as a result of workplace exposure to mould. It acknowledges that there was mould in the original work site, but that upon discovering this, it moved to an appropriate work site, where the exposure was eliminated.
7The WSIB is in the process of determining whether the applicant's claim is valid. The Tribunal agrees with the respondent's submission that the WSIB is the appropriate body to make the determination concerning this workplace exposure since it is a specialized body dealing with occupational illnesses. Moreover, this matter has been before the WSIB since late 2009.
8The applicant opposes deferral on the basis that the WSIB decision will not determinative of whether she has been "constructively dismissed" and whether the respondent has failed to accommodate her. However, in order to determine whether the applicant requires accommodation, and if so, what is the nature of that accommodation, the Tribunal will have to determine the threshold issues of whether the applicant has a disability, and, if so, what are the needs arising from that disability.
9In light of the above, the Tribunal is of the view that deferral to the WSIB process is appropriate. The Application will be deferred pending completion of the WSIB claim's adjudication.
10The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the WSIB claim's adjudication process.
11I am not seized of this matter.
Dated at Toronto, this 16th day of March, 2011.
"signed by"________________
Naomi Overend
Vice-chair