Hambleton v. General Motors of Canada, 2010 HRTO 70

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Hambleton

Applicant

-and-

General Motors of Canada

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: January 14, 2010

Citation: 2010 HRTO 70

Indexed as: Hambleton v. General Motors of Canada

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It is scheduled for hearing on February 1 and 2, 2010 in Windsor. Both parties are represented by counsel.

2As originally filed, before the applicant had counsel, the Application challenged a plant closure agreement which contained special provisions for employees on a disability leave of absence. The applicant is receiving workers’ compensation benefits and is on disability leave.

3On December 17, 2009, the applicant filed a Request for Order During Proceedings seeking to add the allegation, in the alternative to the challenge to the agreement, that the respondent had failed to accommodate the applicant in accordance with its Code duties since 2006 and to seek the remedy that the respondent find the applicant appropriate modified work.

4Pursuant to Tribunal Rule 19.6, a Response to a Request for Order must be filed within 14 days of the date of the Request. Indeed, on December 17, 2009 the respondent wrote to the Registrar noting the two-week deadline and requesting an extension of the deadline to provide its documents, otherwise due December 18, 2009, to the same date as the deadline for response to the Request for Order. This request was not granted but the respondent did not file its documents as required.

5No response was received from the respondent by the deadline of December 31, 2009. On the evening of January 11, 2010, the respondent filed its Response and the applicant filed a reply by letter on January 12, 2010.

6I had not yet been provided with that Response, which was being processed by Tribunal staff, when I signed the Interim Decision on January 12, 2010 granting the amendment as unopposed and appropriate: 2010 HRTO 46. On January 13, 2010, the respondent wrote to the Tribunal requesting reconsideration of the Interim Decision on the basis of its submissions. It also asks in the alternative, as it did in its Response to the Request for Order, that the hearing dates be adjourned so that it may properly prepare for the hearing. It says that it does not have enough time to do so in light of the expanded scope of the Application.

7Formal reconsideration is only available for a “final” decision of the Tribunal, although the Tribunal may amend or revise interim decisions. In my view, it would not be appropriate to amend this Interim Decision. First, the respondent’s submissions were not filed by the deadline in the Tribunal’s Rules. While the respondent did submit a late Response prior to the Interim Decision, that took some time to process and be provided to the adjudicator, which is a normal part of the Tribunal’s process. The Tribunal’s Interim Decision reflected the failure of the respondent to Respond.

8In any event, having considered those submissions, I remain of the view that the amendment is appropriate. In considering requests to amend, the Tribunal typically considers factors such as the nature of the amendment, the reasons for the amendment, the stage it is made and whether there would be prejudice to the respondent. This request was made a month and a half before the hearing, resulted from the involvement of counsel in representing a previously self-represented applicant, and while it expands the Application, and the issues are connected. In my view, there is no prejudice to the respondents that cannot be addressed by other orders.

9In all the circumstances, it is my view that the issues of the adjournment request and whether the hearing can be structured in a manner that addresses the concerns of both parties are best dealt with on a telephone case conference. The Registrar is requested to schedule a case conference to take place next week.

10In particular, I note that various witnesses for the applicant are only addressing the issue of the plant closure agreement. It also appears that given the new issues, the applicant’s evidence in chief might take a considerable period of time. It may be that the hearing can be structured so that the respondent will not have to address the new issues on February 1 and 2. I also note that the applicant still makes, as his primary argument, the submission that the plant closure agreement violates the Code. Counsel may wish to consider whether this issue might be dealt with in a preliminary stage of the hearing with issues of accommodation left until later. These issues can be discussed in detail during the call.

11Finally, I note that the previous decision was dated January 12, 2009. That date is corrected to January 12, 2010.