Hall v. Regional Municipality of Niagara Police Services Board, 2016 HRTO 88

Human Rights Tribunal of Ontario

B E T W E E N:

Valerie Hall

Applicant

-and-

Regional Municipality of Niagara Police Services Board and Paul Spiridi

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: January 20, 2016

Citation: 2016 HRTO 88

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

WRITTEN SUBMISSIONS

Valerie Hall, Applicant

Lisa Triano, Counsel

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

Woodward McKaig, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred. This is the second Application filed by the applicant against these respondents.

2The first Application, filed on May 23, 2013 (File No. 2013-14681-I), alleges the respondents discriminated against the applicant because of her disability for the period January 20, 2012 to February 28, 2013. In particular, the applicant alleges that the respondents failed to accommodate her disability when a photocopier was moved in close proximity to the applicant’s desk. The applicant alleges that she has severe asthma and sensitivity to photocopier emissions.

3The first Application was deferred by the Tribunal by Interim Decision dated March 13, 2015 (2015 HRTO 311) because of a contemporaneous appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The applicant had appealed the decision of the Appeals Resolution Officer (the “ARO”) who found the applicant had failed to establish that her exposure to photocopier emissions caused an aggravation of her pre-existing respiratory condition. The Tribunal deferred the first Application because the question of whether the photocopier and its emissions triggered the applicant’s asthma was an issue before WSIAT and the Tribunal. The Tribunal held that without deferral, there was the possibility that the two tribunals could come to different findings and conclusions based on the same set of facts before it. The Tribunal confirmed the issue of accommodation was not before the WSIAT.

4The second Application concerns allegations of a failure to accommodate and reprisal that occurred more than 18 months after the allegations in the first Application. The applicant was off work from April 2013 to September 2014. She alleges that she was not accommodated and reprised against when, upon returning to work in September 2014, she was removed from her job and transferred to another unit in another city.

5On November 25, 2015, the Tribunal proposed the two Applications be consolidated and deferred. The applicant opposes deferral of the second Application, but does not object to the consolidation of the two Applications. The respondents submit the two Applications should be consolidated and deferred pending the conclusion of the WSIAT appeal.

Decision

6The Tribunal may defer consideration of an application on such terms as it may determine (Rule 14.1 of the Rules of Procedure). Deferral of an application ensures that legal processes dealing with the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

7Some 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.

8The first Application was deferred because the WSIAT and the Tribunal were dealing with the same question, that being, whether the applicant’s exposure to the photocopier emissions triggered her asthma.

9The second Application deals with the question of why the applicant was moved from her current job to a different location. In my view, the issues in the second Application have extended well past the issue of whether there is a link between the photocopier emissions and the applicant’s asthma, and the applicant’s claim of payment of two weeks’ wages in the WSIAT appeal. These issues include a failure to accommodate the applicant when she returned to work in September 2014 and whether she was subsequently reprised against when she was moved from her current job.

10Given the lack of significant overlap between the issues raised in the second Application and the WSIAT appeal, I am of the view that deferral to the WSIAT process is not appropriate. In my view, the risk of inconsistent results in the circumstances of this case is minimal. Therefore, this Application will not be deferred.

11In light of this finding, the two Applications cannot be consolidated. The first Application has been deferred by the Tribunal. This Application has not. As such, the two Applications cannot be consolidated.

ORDER

12For the reasons set out above, the Tribunal will not defer consideration of this Application. The respondents must deliver their Response to the Application within 35 days of the date of this Interim Decision.

13I am not seized of this matter.