Valerie Hall v. The Regional Municipality of Niagara Police Services Board and Paul Spiridi, 2015 HRTO 311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valerie Hall

Applicant

-and-

The Regional Municipality of Niagara Police Services Board and Paul Spiridi

Respondents

-and-

Niagara Region Police Association

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: March 13, 2015

Citation: 2015 HRTO 311

Indexed as: Hall v. Regional Municipality of Niagara Police Services Board

APPEARANCES

Valerie Hall, Applicant

Lisa Triano, Counsel

The Regional Municipality of Niagara Police Services Board and Paul Spiridi, Respondents

Woodward McKaig, Counsel

Niagara Region Police Association, Intervenor

Paul LaCourse, Representative

1The hearing in this matter commenced in December 2014. The Application alleges discrimination with respect to employment because of disability, sex and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2At the beginning of the December 16, 2014 hearing date, the respondents advised that an Appeals Resolution Officer (“ARO”) from the Workplace Safety and Insurance Board (“WSIB”) had recently issued a decision with respect to a claim the applicant had filed under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., as amended (collectively “the ARO’s decision”). The respondents provided a copy of the ARO decision to the applicant as she had not seen it.

3A case management call (“the call”) was scheduled for March 2, 2015 for the Tribunal to hear the parties’ submissions on the impact, if any, of the ARO decision on the proceedings before the Tribunal. The Tribunal directed the parties to consider whether section 45.1 of the Code applied in this situation. A Case Assessment Direction, dated December 17, 2014, was issued confirming the call.

4The call was held on March 2, 2015, and the parties participated. During the call, the applicant confirmed that she has filed her intention to appeal the ARO decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), although she had not received any confirmation from WSIAT or WSIB about next steps.

The respondents’ submissions

5The respondents submits that there are two sets of allegations raised in the Application: general discrimination by the personal respondent after the applicant returned to work in December 2012; and allegations that the respondents’ failed to accommodate the applicant’s medical conditions which were triggered by the photocopier, its emissions, and its proximity to the applicant. The respondents deny the allegations against it.

6The issue about the photocopier, its emissions, its proximity to the applicant and whether or not it triggered the applicant’s medical conditions, most specifically asthma, is, the respondents submit, the issue dealt with in the ARO’s decision and the issue upon which the applicant has based her WSIAT appeal. It is also the same issue that the Tribunal is required to determine, although the respondents concede that WSIAT will not be addressing the applicant’s allegations that the respondents failed to accommodate her.

7The respondents argued that these factual issues are central to the dispute in both the Tribunal’s and WSIAT’s proceedings. This is not a situation where WSIAT is determining whether or not the injury was workplace related, but rather whether the photocopier triggered the applicant’s medical condition, which is the same issue as before the Tribunal. If both proceedings continue, there is the possibility of different findings on these key factual issues. The Tribunal could find that the photocopier did trigger the applicant’s medical conditions, whereas WSIAT could determine that it did not trigger the applicant’s medical conditions. The respondents submit that both proceedings cannot proceed at the same time, and the Tribunal should defer the Application to the completion of the WSIAT process.

8The respondents also argued that they have participated in the entire workers’ compensation proceeding to date and will take part in the WSIAT hearing. It would not be fair for the respondents to be required defend themselves in two different proceedings on the same issue.

9The respondents argue that WSIAT’s determination will have an impact on the Tribunal’s proceedings. If it grants the applicant’s appeal, then this will have an impact on the respondents’ obligation to accommodate. If WSIAT dismisses the appeal, then section 45.1 of the Code may arise for part of the Application.

the applicant’s submissions

10The applicant opposes deferral. She submits that her medical conditions affected by the photocopier emissions are not limited to just asthma to which the respondents refer. The applicant argued that environmental sensitivities are relatively new and complex with many potential triggers. The respondents failed to consider the applicant’s triggers and her request to have the photocopier moved and accordingly failed in their obligation to accommodate. The obligation to accommodate was not an issue before the ARO and is not part of the appeal to WSIAT. Instead, it is within the jurisdiction of the Tribunal. It is also within the jurisdiction on of the Tribunal to determine which of her medical conditions was triggered by the photocopier emissions. Deferral of the Application to the WSIAT process will result in significant delay which could take several years before it concludes.

11Further, the applicant submits that she would be prejudiced if the Application were deferred pending completion of the WSIAT appeal given that she is seeking, as a remedy, a return to her previously held position within the corporate respondent and that this ought to be addressed in a timely manner. She submits that she will continue to be subjected to harassment and discrimination by the respondents if her Application is deferred.

12The applicant also argues that section 45.1 of the Code has no bearing on this issue as the ARO and WSIAT do not have the jurisdiction to determine human rights issues, the applicant submits. Further, the ARO made no findings whether the respondents accommodated the applicant or not.

law and analysis

13The 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 (“the Rules”). 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings. See Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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: see Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

14In this case, the applicant has filed a claim for WSIB benefits pertaining to health effects and the lost time she experienced related to the positioning of a photocopier across from her work station in April 2012 and its emissions which, she alleges, triggered at least one of her medical conditions: asthma. The ARO decision dealt specifically with this issue denying her claim for entitlement. The ARO concluded:

I find the in the absence of objective studies showing some aspect of the worker’s workplace environment has been instigating her pre-existing respiratory condition, the balance of evidence before me does not support that the worker’s workplace exposure to photocopier emissions caused an aggravation of her pre-existing respiratory condition.

15The applicant has also raised the location of the photocopier, its emissions, and the effects on her health in her Application. Not only does she claim that it affects her medical conditions, but she also alleges the location of the photocopier, and the respondents’ refusal to move it, were failures on its part to accommodate her disabilities.

16There is certainly an overlap between the factual and the legal issues raised in the proceedings before the Tribunal and WSIAT. At issue in the hearings before WSIAT and this Tribunal will be whether the photocopier and its emissions triggered the applicant’s asthma. The casual relationship of the photocopier to the applicant’s asthma was also identified on Form 1 of the applicant’s Application in response to question A16. In her witness statement, at paras. 31, 33, 35, 38, 39, 40 42, 43, 44, 48, and others, there are references to the applicant’s asthma and/or her asthmatic reaction to the photocopier’s emissions. All of these support deferring the Application pending completion of the WSIAT process.

17While para. 32 of the applicant’s witness statement states that the applicant was later diagnosed with environmental sensitivities, this is not referenced in the Application. The applicant’s environmental sensitivities are also referred to in the ARO decision, although they are called multiple chemical sensitivity (“MCS”). In the opinion of the ARO, they cannot form the basis for entitlement as “MCS is not currently a commonly recognized diseased by most medical practitioners”. Accordingly, it seems to me that the applicant’s asthma and MCS was considered in the ARO decision with such information going before WSIAT.

18It is clear that the accommodation issue is not before WSIAT. However, if the applicant cannot prove that the photocopier triggered her disabilities, there may be an issue of whether the respondents had an obligation to accommodate the applicant with respect to the photocopier.

19I share the applicant’s concern that deferring the Application to WSIAT will likely mean deferral for a significant period of time. However, without deferral there is the possibility that the two tribunals could come to different findings and conclusions based upon the same set of facts before it. As part of its productions before the Tribunal, the parties have presented documentation, including medical documentation, in relation to the photocopier, its emissions and the impact it had on the applicant’s medical conditions.

20Given that WSIB has issued several decisions about this issue, including the ARO decision, the fact that an appeal to WSIAT has been made, WSIAT’s expertise in medical issues, and the concern that two concurrent proceedings dealing with the same factual issues may result in inconsistent findings on the same evidence, I have determined that deferral is appropriate. The Application is thereby deferred pending the conclusion of the WSIAT appeal. The Tribunal’s hearing dates that are currently scheduled are hereby cancelled. Accordingly, I do not need to address the parties’ submissions about continuation dates.

21With respect to the applicant’s concern about experiencing further harassment and discrimination, the applicant, like others, has the ability to file a new application alleging reprisal.

22Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.