Smith v. Ford Motor Company of Canada, Limited, 2009 HRTO 2116

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carl Smith Applicant

-and-

Ford Motor Company of Canada, Limited Respondent

AND B E T W E E N:

Carl Smith Applicant

-and-

CAW-Canada Local 200, Pat Donally, Tim Little and Tom Cochois Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Brian Sheehan Date: December 7, 2009 Citation: 2009 HRTO 2116 Indexed as: Smith v. Ford Motor

APPEARANCES BY

Carl Smith, Applicant (Self-represented) Ford Motor Company of Canada, Limited, Respondent (D. Stephen Jovanovic, Counsel) CAW-Canada Local 200, Pat Donally, Tim Little and Tom Cochois, Respondents (Farah Baloo, Counsel)

INTRODUCTION

1On July 23, 2007, the applicant filed separate Ontario Human Rights Commission (“OHRC”) complaints against his employer, the Ford Motor Company of Canada, Limited (“the Employer) and his bargaining agent CAW - Canada and its Local 200 (the “Union”) and certain members of the executive of the Union. The applicant asserted he had suffered discriminatory treatment with respect to his employment contrary to s. 5 (1) of the Code on account of the following grounds: colour, race, place of origin, ethnic origin and disability.

2On October 8, 2008 and November 27 2008. the applicant filed these Applications under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and as such abandoned his OHRC complaints.

3The Applications were heard together at a Case Resolution Conference in Windsor, on October 7 and 8, 2009.

Preliminary Matters: No Prima Facie Case and Scope of the Applications

4At the outset of the Case Resolution Conference, the respondents brought a preliminary Request asserting that their respective Applications should be dismissed on the basis each Application failed to establish a prima facie violation of the Code. In response to that Request, the applicant suggested that the Case Resolution Conference deal with matters which were not covered by his original OHRC complaints.

5After hearing the submissions of the parties, I issued the following oral ruling regarding these matters:

I have reviewed the submissions of the parties regarding the argument of the respondents that the matters raised in the Applications should be dismissed on account of failing to disclose a prima facie violation of the Code.

I would note that the parties were provided an opportunity to provide written submissions on the issue as to whether this Tribunal has jurisdiction to inquire into these Applications. I also heard from the parties orally on these issues.

It would appear there are five subject areas that were raised in the pleadings, or the opening statements, of the parties. Those five areas are as follows:

• issues associated with the applicant’s return to work in April, 2007
• the applicant’s assertion that he not did receive the appropriate compensation for certain pay periods in the later part of June, 2007
• the applicant's termination in August, 2007 and his subsequent reinstatement
• an alleged physical altercation between the applicant and members of the union executive in August, 2007
• the applicant’s assertion that the Employer had been “siphoning off” monies from his pay for a period extending over 10 years

It is my determination that it would not be appropriate to inquire into issues associated with the applicant’s termination and his subsequent reinstatement. That matter was clearly not part of the applicant’s original complaints and the applicant has acknowledged that he did not seek to amend those complaints. Accordingly pursuant to Rule 6.3 of the Tribunal Rules of Procedure for Section 53(3) Applications to allow those allegations to be part of this proceeding would result in an expansion of the applicant's original complaint. Also, with respect to that allegation, the applicant has failed to demonstrate that a prima facie case of discrimination exists.

Regarding the purported physical altercation between the applicant and members of the union executive, I likewise rule that it would be inappropriate to inquire into that matter as part of this proceeding. It would appear that allegation was not raised at all throughout the litigation of this matter until today. Again, to include it as part of this proceeding would constitute an expansion of the applicant’s original complaints.

Regarding the allegation suggesting that the Employer had, over a ten-year period, been “siphoning off” monies from the applicant’s pay, while there was a mention in the complaints regarding the “siphoning” of monies it would be inappropriate to inquire into that matter for a number of reasons. Firstly, there would seem to be a significant issue regarding the timeliness of such allegations. Secondly, fully delving into those allegations would again in my view constitute an expansion of the applicant’s original complaints. Finally, the applicant failed to demonstrate, in any fashion whatsoever, a connection between those allegations and a prohibited ground under the Code.

Regarding the June, 2007 compensation and return to work issues; those matters were clearly part of the original complaints. While I am concerned that the applicant has not, as of yet, clearly provided sufficient articulation of the connection between those issues and a prohibited ground under the Code, I am not going to dismiss those matters on the basis that they failed to establish a prima facie violation of the Code. I am going to give the applicant an opportunity to lead evidence on those issues. I would, however, emphasize that the evidence to be lead has to be relevant to the issues as to whether the respondents have violated the Code.

6The Case Resolution Conference then proceeded on that basis and evidence was heard with respect to the issues associated with the applicant's return to work in April, 2007 and the compensation issues that arose in June, 2007. The applicant testified as well as two executives of the Union, Mr. Dan Cassady and Mr. Tim Little. Additionally a number of documents were entered into the record as exhibits.

7The applicant, additionally, sought an order compelling a number of individuals including representatives of the Employer and additional members of the Union executive to testify.

8I dismissed that Request relying on the fact that the applicant had made no effort to put the individuals in question under subpoena or supplied “will say” statements with respect of those individuals. More importantly, the applicant failed to articulate how the evidence of any of the individuals in question would significantly add to my appreciation of the relevant issues in dispute. In particular, it was my view that there was a sufficient factual underpinning to determine whether or not there has been a violation of the Code by the respondents.

Applicant’s Return to Work April, 2007

9The applicant went off work as a February 21, 2007 as a result of neck, arm, hip and shoulder injuries he had suffered as a result of an altercation with the City of Windsor Police.

10In late March, 2007, the applicant submitted a note from his chiropractor, dated March 27, 2007, that he was able to return to work on April 2, 2007 seeking modified duties associated with certain identified restrictions regarding his right shoulder. Very shortly thereafter, however, the applicant submitted a further note from his chiropractor, dated March 30, 2007 that stated that the applicant “was able to return to regular work duties on April 2, 2007 with no restrictions.” Given the information provided, he was returned to work without restrictions. He did not return to active work until April 10, 2007, as his work area was on lay off for that April 2, 2007 week.

11Mr. Little, who was then Plant Chairperson of the Ford-Essex Engine Plant for the Union, provided assistance to the applicant regarding his return to work.

12The applicant was able to remain at work performing his duties without need for any modification of his duties. It was only at the mid part of June, 2007 that the applicant raised a concern regarding his assigned duties aggravating his shoulder. He again sought the assistance of Mr. Little who had discussions with representatives of the Employer. The applicant was subsequently, effective June 14, 2007, provided a modified position in the Crankshaft Department which was within his restrictions.

13It was the applicant's assertion that he only returned to work because a representative of the Employer advised him that if he did not return to work that he would be “laid off”. The applicant further suggested that when he returned to work he was given jobs outside his restrictions which caused further damage to his shoulder.

14There was a complete lack of evidence of any effort by the applicant to raise with either representatives of the Employer, or the Union, that he in fact was not capable of returning to work; or that the work he was performing was outside his restrictions. It was incumbent upon the applicant to advise the relevant individuals, and seek assistance in a timely fashion, if, as he has suggested, his injuries were such that they compromised his ability to return to work or continue to work.

15Moreover, the objective evidence does not support the applicant’s assertions. He submitted a medical note that stipulated that he could return to work without restrictions. He did so and was able to perform his duties without registering any concern for a period extending over two months. When, in mid-June 2007, he raised the concerns regarding his duties aggravating his right shoulder the Employer and the Union went about to quickly find him an accommodated position.

16Accordingly, there is no basis, whatsoever, to suggest that the respondents breached the Code with respect to the applicant’s return to work in April, 2007.

The June 2007 Payroll Dispute

17The dispute between the parties related to whether the applicant received the appropriate monies owed him for pay period 26 (June 18 - 24) and pay period 27 (June 5 – July 1) and pay period 28 (July 2 - 8). In pay period 26, the applicant was not provided an opportunity to work overtime on the work days of Saturday June 23 and Sunday, June 24, 2007. The Union filed a grievance on behalf of the applicant asserting that he was improperly denied overtime work on the days in question. The Employer conceded the grievances and, therefore, the applicant was owed monies with respect the resolution of those grievances.

18Regarding pay period 27, the applicant was not initially paid for the 12 hour shifts he worked on both June 29 and 30, 2007. The applicant’s Statement of Earnings and Deductions (“S.E.D.”) for pay period 27 gave the applicant credit for only working 44 hours rather than the 66 hours he actually worked that week. That error was recognized, and following the usual practice in place for such situations, the applicant was provided an “impress” (manual) cheque, on July 6, 2009 for the amount $995.00. No deductions were applied to that amount.

19The applicant’s view that he was improperly paid was directly related to the adjustments in his pay for pay period 28 as a result of the inclusion of amount of the “impress” cheque along with necessary reconciling that had to take place for, among other reasons, statutory deductions were not applied to the issued “impress” cheque. In particular the applicant had difficulty in accepting the fact his net pay for pay period 28, as set on the S.E.D., was only $578.24. The applicant also suggested that it was improper that the full amount of the “impress” cheque was set out as a deduction from his earnings for that week.

20A review of the relevant documentation suggests that the applicant was appropriately paid all the monies owed to him. Even if somehow my analysis regarding the manner in which the monies owed to the applicant were accounted for was off the mark, or I was in error in concluding that the applicant was properly paid, it would not impact upon the result in this matter. The pay dispute between the parties was, and remains, exclusively a pay dispute. There are no human rights permutations, whatsoever, associated with that dispute. There was a not a single piece of evidence connecting the actions of the respondents regarding the pay dispute and one of the prohibited grounds of discrimination under the Code referenced by the applicant. Absent a finding that actions of the respondents were associated with one of those prohibited grounds, there cannot be finding that there was a violation of the Code.

21In conclusion, it is my determination there has not been any violation of the Code by the any of the respondents. Accordingly, the Applications are dismissed.