HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raul Martinez
Applicant
-and-
Siemens Canada Limited o/a Siemens Power Generation
Respondent
decision
Adjudicator: Kaye Joachim
Indexed as: Martinez v. Siemens Canada
______________________________________________________________________ APPEARANCES
Raul Martinez, Applicant ) No one appearing
Siemens Canada Limited o/a ) Robert Salisbury, Counsel
Siemens Power Generation, Respondent )
BACKGROUND
1This is an Application filed May 22, 2009, under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A Hearing was held on April 19, 2010.
2On April 15, 2010, the Tribunal issued a Case Assessment Direction advising the parties that the only issues that would be determined on April 19, 2010, were the scope of the Application and whether all or part of the Application should be dismissed in light of two releases signed by the applicant. The parties were offered an opportunity to seek an adjournment if they required more time to prepare for these preliminary issues. Neither party sought an adjournment.
3On April 16, 2010, the applicant advised the Tribunal that he would not be attending the Hearing and would instead rely upon the material already filed and a written submission attached to his April 16, 2010 correspondence.
4The Hearing proceeded in the absence of the applicant. I have considered the documentation previously submitted by the applicant and his written submission of April 16, 2010. I heard from the respondents’ witnesses, Angela Rocci, former Human Resources Specialist and current Manager, Employee Relations of the Hamilton Plant, and Patricia Leishman, a member of the Hamilton Plant Management Team.
5In his original complaint filed with the Ontario Human Rights Commission on October 5, 2007, the applicant alleged that he was discriminated against on the basis of age and disability from November 2005 to the date of the complaint and ongoing.
6The applicant was employed by the respondent at its Hamilton operation from January 15, 2001, to November 15, 2005. On November 15, 2005, he was given a notice of termination of employment. At that time applicant was 60 and experienced total vision loss in his left eye. The applicant asserted in his complaint that he was targeted for termination because of his age and disability.
7On December 2, 2005, the applicant accepted a severance package and signed a release.
8On January 26, 2007, the applicant signed a further release upon receipt of an additional payment.
SCOPE OF THE APPLICATION
9With regard to the scope of the Application, section 53(5) of the Code provides that the complainant may make an application to the Tribunal “with respect to the subject-matter of the complaint”. Rule 12.3 of the Tribunal’s Transitional Rules states in its relevant part that “Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission”.
10While Rule 12.4 contemplates an ability to amend the complaint, this is expressly limited by the words “having regard to Rule 12.3”. The Tribunal’s case law with respect to transition applications has held that, except in very limited circumstances, an applicant will not be permitted to raise new allegations that did not form part of the complaint or amended complaint filed at the Commission.
11In his original complaint dated October 5, 2007 the applicant made three allegations. First, he asserts that his employment as an engineer at the Hamilton Plant was terminated in November 2005 because of his age and visual disability. Second, after his dismissal, he applied numerous times to the Hamilton Plant and was denied a position, because of age and disability. Third, the respondent’s failure to provide him with an adequate reference has impeded his ability to find work elsewhere.
12The respondent’s position is that approximately 100 employees, including the applicant, of the Hamilton plant were terminated by November 2005 and that the applicant’s age and disability played no role in the decision to select him for lay-off. Rather, considerations including his length of service (a little less than five years) and work performance played a role in the decision to select the applicant for termination, although the official termination letter only identified “shortage of work” as the basis for the termination.
13The applicant protested his termination to the head office in Europe and vociferously criticized the management team at the Hamilton plant. For this reason, the respondent says, it did not consider the applicant’s subsequent applications for employment at the Hamilton plant. Finally, the respondent’s corporate policy with respect to the provision of reference letters stipulated that such letters could only contain the length of service and the reason for the termination. If the applicant had difficulty obtaining other employment, the respondent notes that this is not a breach of the Code by the respondent.
14In his statement of additional facts, the applicant set out a detailed chronology of the respondent’s alleged mistreatment of him from 2001 to the date of termination. In my view, these pre-termination allegations do not form part of the subject matter of the complaint, as they did not form part of the original complaint. In addition, as discussed below, they may not be pursued because the applicant signed a release.
15The applicant also set out his post-October 2007 efforts to obtain employment from the Hamilton plant and from other employers. In my view, these post-termination allegations do not form part of the subject matter of the complaint, as they did not form part of the original complaint. In addition, as discussed below, they may not be pursued because the applicant signed a release.
SETTLEMENT AND RELEASE
Alleged Discriminatory Termination of Employment
16On November 15, 2005, the applicant