Karla Garibay Loera v. Biolyse Pharma, 2016 HRTO 1655

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karla Garibay Loera

Applicant

-and-

Biolyse Pharma, Brigette Klecken and Claude Mercure

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: December 21, 2016

Citation: 2016 HRTO 1655

Indexed as: Loera v. Biolyse Pharma

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In its Response (Form 2) the respondent requested the early dismissal of the Application because they argue the substance of the Application has been appropriately dealt with in a proceeding under the Workplace Safety and Insurance Act ("WSIA"). Although not explicitly referred to, the respondents are relying on section 45.1 of the Code which allows the Tribunal to dismiss an Application where in its opinion the substance of it has been appropriately dealt with in another proceeding.

3The applicant opposed the request to dismiss.

4The request is denied.

5In her Application the applicant raises a great many issues, many of which have no apparent connection to the Code. However the applicant does alleged that the respondent was unwilling to return her to work with appropriate accommodations for her alleged disability related needs. The applicant alleges that as a consequence of the respondents' failure to return her to work with appropriate accommodations she was constructively dismissed by the respondent. The applicant also alleged differential adverse treatment because she was or was perceived to be a person with a disability or because she filed a claim for WSIA benefits.

6In making their Request the respondent relies on a claim for WSIA loss of earning benefits for the period of the applicant's absence from work due to illness. Although it is possible that some of the issues raised in this case might be dealt with in the WSIA proceeding it is not at all clear at this early stage of the proceeding, how the WSIA proceeding impacts the central issues in this case which assuming for the moment that the applicant is or was a person with a disability at the material times the respondents failed in their obligation to return her to work with appropriate accommodations. The WSIA proceeding does not appear to address the other issues raised by the applicant.

7In addition, I have reviewed the limited material provided and it appears that the gist of the decision in the WSIA proceeding was to the effect that the adjudicator was unable to determine that the complaints of the applicant were work related. Whether the alleged disability related needs were caused by something in the workplace is not determinative of an employer's obligations under the Code although it may impact what accommodations are appropriate. The decision does not appear to be a determination that the applicant was not a person with a disability.

8The WSIA proceeding is at an early stage. It may be that as that process moves forward it may be appropriate to revisit this issue however at this stage there is no reason to dismiss the Application pursuant to section 45.1 of the Code.

9To the extent that the decisions in the WSIA process are determinative of some of the issues in dispute in this case that is best left to the member assigned to hear this case.

10Accordingly the request of the respondent is denied at this stage.

NEXT STEPS

11The applicant has agreed to attend mediation, the respondent has not. If the respondents wish to attend mediation they should so advise The Tribunal within 14 days of the date of this Interim Decision failing which this case will be scheduled for a two day hearing.

12I am not seized of this case.