Blaine Gallienne v. ArcelorMittal Montreal Inc., 2009 HRTO 1910

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Blaine Gallienne

Applicant

-and-

ArcelorMittal Montreal Inc.

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 9, 2009

Citation: 2009 HRTO 1910

Indexed as: Gallienne v. ArcelorMittal Montreal

1This is an Application filed March 2, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The hearing is scheduled for February 11, 2010. This Interim Decision deals with a request for production.

2The applicant agreed to the removal of Sandra Cabral as a personal respondent and she is ordered removed from the style of cause.

3The applicant alleges that his employment with the respondent was terminated in October 2007 in part because of his age and/or that the respondent declined to hire him into other positions because of his age. The respondent states that the Burlington facility where the applicant worked closed in December 2006, although the respondent continues to operate in Hamilton. All salaried employees from the Burlington location were offered a termination package or a retirement package. The applicant was offered a retirement package.

4The applicant sought all postings for training or permanent positions posted on bulletin boards or email at both the Burlington and Hamilton locations.

5At this stage, it is not clear whether the posting information is arguably relevant. Once the applicant’s employment was terminated, it appears he had no right to access internal postings at the Hamilton location. To the extent that the applicant asserts that the respondent advised him otherwise, if that is established, the Member hearing this Application may revisit this production request.

6The applicant sought the list of salaried employees that received termination notices at the Hamilton and Burlington plants, where they worked between February 1, 2006 and October 31, 2007 and salaried employees as of November 1, 2007.

7I find that the list of salaried employees that received termination notices at the Burlington plant where the applicant worked is arguably relevant to the issue whether age played a factor in the decision to terminate his employment. However, I am not satisfied at this stage that where they worked between February 1, 2006 and October 31, 2007 is arguably relevant nor is a list of salaried employees at the Hamilton location after November 1, 2007.

8The applicant seeks information regarding the contracts entered into between the respondent and two former colleagues (also salaried employees) who obtained contracts with the respondent after their retirement. The respondent asserts, and this is not disputed by the applicant, that these two employees are older than the applicant. Accordingly, I cannot see the relevance of any relationship they had with the respondent after their retirement to the applicant’s allegation of age discrimination.

9The applicant sought the position description and qualifications of the person holding the position of supervisor of sales hired in approximately August 2006. The respondent advised the applicant of his impending termination in May 2006. In my view, it is arguably relevant if the respondent hired a younger person to a position at the Burlington location at the same time as it was planning to terminate the applicant’s employment. Accordingly, the position description of the supervisor of sales is arguably relevant at this stage (if the supervisor is younger than the applicant). Depending on whether the applicant can establish that he was qualified for the position, further production may be ordered.

10The respondent has asserted that any allegation relating to the hiring of the supervisor in August 2006 is out of time. It is not plain and obvious the hiring was not part of a series of actions culminating in the termination which took place in October 2007. If found on the facts to be part of a series of actions, the complaint filed in December 2007,is not untimely.

11The applicant sought information with respect to the continued employment of Fred McDonald, a salaried employee until September 2007. However, Mr. McDonald is older than the applicant and was terminated before the applicant. In these circumstances, I find that this information is not arguably relevant.