Wind v. General Motors of Canada, 2009 HRTO 1370

Human Rights Tribunal of Ontario

Between:

Frederick Wind Applicant

-and-

General Motors of Canada and Canadian Auto Workers, Local 222 Respondents

Interim Decision

Adjudicator: Ena Chadha Date: September 1, 2009 Citation: 2009 HRTO 1370 Indexed as: Wind v. General Motors of Canada

1The applicant filed an Application with the Tribunal on May 12, 2009 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").

2On July 30, 2009, the Tribunal issued a Notice of Intent to Dismiss because it appeared the Application was filed more than one year after the last incident of discrimination noted in the Application form. The applicant completed Question 7(d) of the Application form and indicated the date of the last event was in 1995. The Tribunal invited submissions from the applicant as to whether or not his Application satisfied the conditions of section 34 of the Code. The applicant provided his submissions by way of letter dated August 24, 2009.

Decision

3Section 34 of the Code provides:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

4The Application alleges that the respondent employer and respondent union have discriminated against the applicant by negotiating and entering into a collective agreement in the spring of 2008 that includes a provision which adversely impacts on workers who had been on extended sick leave. The applicant alleges that he was not eligible for an early retirement package because the collective agreement's calculation of service does not include any service credits for periods of time that the worker was on sick leave. The applicant was on sick leave from November 1991 to March 1995. In completing Question 7(d) of the Application form to indicate the date of the last event was in 1995, it appears the applicant was referring to his return to work after disability leave. The Application narrative indicates that the applicant's employment was recently terminated and that he was apprised in April 2009 by the respondent union that he did not qualify for the service credits.

5At this preliminary stage, the applicant's response appears to satisfy the requirement of s. 34(1). The Tribunal shall serve the Application, a copy of the applicant's response and this Interim Decision on the respondents. This is not a final decision of the Tribunal regarding any jurisdictional issues in respect of this Application.

6I am not seized of this matter.