Aubrey Ellis v. General Motors of Canada Limited, 2009 HRTO 2144

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aubrey Ellis

Applicant

-and-

General Motors of Canada Limited

Respondent

Interim deCISION

Adjudicator: Kaye Joachim

Date: December 10, 2009

Citation: 2009 HRTO 2144

Indexed as: Ellis v. General Motors

1This is an Application filed March 4, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent has filed a Request for Order during Proceedings asking that part of the Application be dismissed as out of time, as indicating no prima facie case and asking for further particulars. They also asked the Tribunal to clarify the scope of the Application.

3The complaint underlying the Application was filed with the Ontario Human Rights Commission on October 21, 2004. The complaint alleges that on November 28, 2001, the applicant was relieved from work. On June 21, 2004, he received a return to work notice, but was advised there were no suitable jobs within his medical restrictions at that time and he was given benefits under the Workplace Safety and Insurance Act.

4The applicant returned to work on October 28, 2002 in the position of Wet Deck Sander. The applicant alleged that this job was not suitable for his restrictions. He sought the assistance of the Workplace Safety and Insurance Board on two occasions, but was not provided with alternative work. He continued to work on the Wet Deck Sander job at the time he filed the complaint. At some point after the complaint was filed, the applicant was moved when the Wet Deck Paint shop closed down.

5In his response to the Request for Order, the applicant agreed that the respondent accommodated the applicant before he was moved to the Wet Deck Paint shop and after he was moved away from the Wet Deck Paint Shop. He wishes to pursue his allegation that the Wet Deck Sander position was not suitable for him for the three and a half years he performed it.

6Accordingly, it appears the applicant has narrowed the scope of his Application to the time frame beginning October 28, 2002. He is attempting to include the time period of the Application to include the year and a half after he filed the complaint while he remained in the Wet Deck Sander position.

REQUEST TO DISMISS THE APPLICATION

7Section 34 of the Code allows the Tribunal to consider applications alleging infringements of the Code brought within one year after the alleged breach. This was one of the amendments to the Code that went into force on June 30, 2008, and extended the limitation period from six months under the old Code. The section also preserves the Tribunal’s discretion to accept late applications in certain circumstances:

34(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.

8Under s. 34, the Tribunal may deal with an application filed more than a year after the incident, or the last incident in a series, if it is satisfied that the circumstances in s. 34(2) exist, that is, that the delay in filing the application was incurred in good faith and there is no substantial prejudice to the respondents.

9I am satisfied that the allegation of the unsuitability of the Wet Deck Sander position is an ongoing matter from October 2002 to the time of the filing of the complaint. Accordingly, I find that the complaint was filed in a timely manner.

10In the alternative, if the period of October 2002 to October 2003 were considered to be outside the one year period, I would find that the delay was incurred in good faith, as the applicant set out in the complaint form several attempts to mediate the situation.

Request to Include Time Period After the Application

11The transitional provisions of the Code provide that the subject matter of the Application must relate to the original complaint. In my view, the subject matter of the original complaint is whether the Wed Deck Sander position was a suitable position for the applicant in light of his medical needs. Accordingly, the Application encompasses the entire period he was in that position.

Particulars and No Prima Facie Case

12The respondent requested that the applicant provide further particulars of the allegation of discrimination.

13The applicant has asserted that the position of Wed Deck Sander is not suitable for his medical restrictions. I agree that the applicant should provide more details of how the position was not suitable, in light of the fact that the applicant did the position apparently successfully for three and a half years. The applicant is directed to provide details of how the position of Wet Deck Sander was not suitable for him within 21 days of the date of this Interim Decision.

14In my view, the applicant has potentially made out a prima facie case by his allegation that he was asked to do work that was not suitable for his restrictions.

15The Registrar-Transition will be in touch with the parties to offer dates for a hearing.