Ferrari v. Chrysler Canada, 2010 HRTO 409

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicole Ferrari

Applicant

-and-

Chrysler Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: February 23, 2010

Citation: 2010 HRTO 409

Indexed as: Ferrari v. Chrysler Canada

1This is an Application filed on October 2, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the named respondents Chrysler Canada Inc. (“Chrysler”) and Manufacturers Life Assurance (“Manulife”) discriminated against the applicant on the basis of disability and sex contrary to section 5 of the Code.

2This Interim Decision is in regard to a Request for an Order during Proceedings (the “Request”) made by Chrysler. The Request is to dismiss the Application against both respondents on the basis that the Application was filed outside the one-year limitation period set out in Section 34 of the Code. The Request also seeks to have the Application against Manulife dismissed on the basis that as it is a third party insurer and administrator it is not properly a respondent.

Background

3The applicant was on long-term disability leave from Chrysler beginning in June 2006. The Application alleges that in July 2008 she was contacted by Manulife and told that, based on information Manulife had on file, the applicant was capable of returning to work and was expected to meet with Chrysler to discuss this return. The applicant’s long-term disability payments (“LTD” payments) were subsequently terminated by Manulife on July 31, 2008.

4The applicant met with Chrysler on July 30, 2008. It appears that the applicant was told by Chrysler that owing to market conditions and Chrysler having to reduce its workforce there were no positions she could return to in the organization. Chrysler then offered the applicant a separation agreement. The applicant declined this offer and was subsequently put on lay-off as of August 4, 2008.

5Between August 2008 and February 2009 the applicant received benefits and payments from Chrysler that included 28 weeks of a reduced salary under an income protection plan and eight weeks of salary in lieu of eight-week termination notice. The applicant received health coverage until April 2009. It appears the applicant’s employment was formally terminated in February 2009.

6The respondents argue that in the period of January 2008 to June 2008 the applicant’s own doctor indicated that the applicant was capable of returning to work on a modified basis. The respondents submit it was based on this assessment as well as assessments made by a second doctor treating the applicant and a medical consultant who reviewed the functional restrictions and limitations identified by the applicant’s doctors that Manulife concluded that the applicant was medically cleared to return to work. This led to the decision that she was no longer totally disabled and as such no longer eligible for LTD benefits.

7Chrysler argues that the applicant was returning to work in an economic downturn and the organization was reducing its workforce throughout 2008. Chrysler suggests that if the applicant had been working during June 2006 to July 2008 she would have likely been placed on lay-off during that time. Chrysler maintains that the subsequent decision to lay the applicant off effective August 4, 2008, was because of market conditions and the lack of available positions.

8The respondents argue that, as the Application was filed over one year after July 2008, when the applicant’s LTD benefits were ended, and over one year after she was laid off, the Application against both respondents should be dismissed. The respondents rely on the provisions of s. 34 of the Code which state:

(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.

The respondents submit that the applicant does not meet the requirements of section 34(2) as she has not provided any explanation for why the delay in filing her Application was incurred in good faith and both respondents argue that the delay would be prejudicial to them.

9The applicant has not filed a Reply to the Responses nor a Reply to Chrysler’s Request on the issue of delay and the time for responding has elapsed.

Decision

10The mandatory one-year limitation period to file an Application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file an application within one year, when pursuing a human rights claim.

11In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has required applicants to provide a reasonable explanation for the delay: see, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

12The Application against Manulife is dismissed for delay and Manulife is removed as a respondent. The actions of Manulife that appear to have concerned the applicant, namely the decisions to recommend that she was capable of returning to work on a modified basis and that she was no longer eligible for LTD benefits, occurred in July 2008. Even assuming they are otherwise proper allegations before me, the applicant has provided no explanation for why she was unable to file an Application in response to these decisions until October 2009.

13However, I am not prepared to dismiss the Application against Chrysler for delay on the basis of the material before me. The Application sets out a number of incidents commencing in July 2008 but continuing until February 2009. The applicant alleges that sometime in the period after she was put on lay-off, Chrysler could have accommodated her disability and reinstated her employment. In other words there is a dispute as to when the last incident of alleged discrimination may have taken place. Was it in the period up to August 4, 2008, which Chrysler describes as the applicant’s effective “termination-layoff” date, which was approximately 14 months prior to the filing of the Application, or was it potentially a date up until February 2009 when the applicant was still an employee of Chrysler, which would be well within the one-year time limit for filing an Application.

14This is not an issue I can resolve based on the information before me. It is also not clear to me that this issue can be resolved through further written submissions given the issues in dispute and the potential need for evidence. It is also the case that both the applicant and Chrysler have agreed to mediation in this case.

15Given the applicant and Chrysler’s agreement to mediate the Tribunal will proceed to schedule a mediation and the request to dismiss the Application against Chrysler based on delay will be determined if the parties are unable to settle.

16I am not seized of this matter.