Brady v. Lewenza, 2010 HRTO 872

Human Rights Tribunal of Ontario

B E T W E E N:

David Brady Applicant

-and-

Ken Lewenza Respondent

-and-

General Motors of Canada Intervener

A N D B E T W E E N:

David Brady Applicant

-and-

General Motors of Canada Respondent

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 222 Intervener

INTERIM DECISION

Adjudicator: Sherry Liang Date: April 22, 2010 Citation: 2010 HRTO 872 Indexed as: Brady v. Lewenza

1These Applications were filed on June 22, 2009 and 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”). They will be called the “Lewenza Application” and the “GM Application”. The Requests to Intervene of General Motors of Canada (GM) in the Lewenza Application and the CAW-Canada and its Local 222 (collectively referred to as the Union) in the GM Application are granted. As the Applications raise overlapping facts and issues and concern the same parties, and having regard to the positions of the parties, both Applications will be dealt with together, subject to further direction from the Tribunal.

2The Applications allege discrimination on the ground of disability as well as reprisal under the Code. The events underlying the Applications began when the applicant was working at GM’s facility in Oshawa, Ontario. The applicant alleges that he became ill as a result of exposure to zinc in the workplace. He left the workplace and applied for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A, as amended (the WSIA) to the Workplace Safety and Insurance Board (the WSIB), as well as Sickness and Accident Benefits (S & A Benefits) through GM’s third party claims adjudicator, Sun Life Financial. It appears that both claims were denied. The applicant did not return to work, and his employment was terminated in October 2006, based on a provision of the collective agreement between GM and the Union.

3The Union filed a grievance on the applicant’s behalf in relation to the termination. This grievance is still outstanding and has proceeded through all steps of the grievance process but for arbitration.

4In May 2007, the applicant filed an unfair labour practice complaint against the Union under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, as amended (the LRA). GM intervened in this matter, and in November 2007, based on an agreement of the parties, the Ontario Relations Board adjourned the LRA application sine die for a period of not more than one year. As no request to renew the LRA application was made within the year, the OLRB terminated the proceedings.

5According to GM, the LRA application was adjourned on the agreement of the parties that the applicant would attend for an Impartial Medical Opinion (“IMO”). The respondent Lewenza states that the IMO served as the appeal process regarding the denial of the applicant’s claim for S & A benefits. The respondent Lewenza states that the IMO found against the applicant and upheld the insurer’s denial of those benefits. However, the grievance relating to the applicant’s termination from employment is still continuing.

6As indicated above, the WSIB turned down the applicant’s claim for benefits under the WSIB. The decision of the Claims Adjudicator states that there is

…no objective evidence to support that your symptoms relate to zinc exposure or for need for you to be removed to a zinc free work environment. The workplace has not been shown to be a significant contributing factor in the development of your condition; I am therefore denying entitlement in your claim.

7The applicant appealed the denial of benefits by the WSIB. It is not clear from the materials when this appeal will be dealt with although in the GM Application, the applicant confirms that it is still in progress, in Question 14 of the Form 1. In the applicant’s Reply, filed by a representative, the applicant states that his claim is still “being adjudicated at the Board level.”

8In the Lewenza Application the applicant refers to having been fired, denied employment benefits and denied accommodation. In his narrative he states that the “Union has not followed procedures regarding grievance and support.” The applicant’s Reply significantly expands on the narrative, and focuses to a large extent on the IMO process. In general, the applicant alleges that the Union “faile[d] to protect my rights to accommodation” by, among other things, limiting the information provided to the medical specialist during the IMO process.

9In the GM Application, the applicant alleges that GM discriminated against him “because of following OHSA and WHMIS regulations based on my perceived disabilities from possible exposure to zinc fumes and powders”. He alleges, among other things, that GM discriminated against him in “failing to examine before denying his disability”, in terminating his employment because he was ill, in denying employment benefits, and in being denied necessary accommodation or modified work in the workplace.

10The parties have filed a number of Requests for Order During Proceedings, including a Request by GM for early dismissal of the Application against it, and a Request by the applicant to add the Union as party respondents to the Lewenza Application. The respondent Lewenza has also requested that the Tribunal dismiss the Lewenza Application on the basis that it is an abuse of process in that it seeks to reopen matters that were the subject of the LRA application. He also asserts that the Application fails to set out a prima facie case. The Union has also raised an issue of delay with respect to that Application.

11GM takes the position that the Application against it is untimely. In the alternative, it requests that the Application be deferred pending the completion of the grievance process and the WSIB process. The Union supports GM’s position on the timeliness of the Application and the request to defer. The applicant opposes both.

DELAY

12The Tribunal will not deal with the issue of delay at this time. The events covered by the Applications certainly date back a number of years, starting prior to the applicant’s termination from employment in October 2006. However, some of the allegations relate to the IMO process that occurred in 2007 to 2008. Without making any comment on the merit of those allegations, there is a question about whether those allegations are timely. A decision on this point may require further submissions or evidence from the parties about those events and when the applicant knew of the facts necessary to his claim of discrimination. If those allegations are timely, then there is a question about whether the prior events can be considered part of a “series of incidents” within the meaning of section 34(1)(b), which has not been fully addressed by the parties.

13It may also be appropriate to consider the request to dismiss on the basis of timeliness in conjunction with the request in the Lewenza Application to dismiss on the basis of abuse of process or the failure to set out a prima facie case. In short, several significant preliminary objections have been made to the Applications and the determination of those will require, at the very least, an opportunity for oral submissions.

14In view of my determination that these Applications should be deferred, I find it unnecessary to come to any conclusion at this stage on the timeliness of all or part of these Applications. I also find it unnecessary to determine the objections raised in the Response to the Lewenza Application.

DEFERRAL

15The Tribunal has stated that deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

16Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: Bhagdasserians v. 674460 Ontario, 2008 HRTO 404

17I have considered the submissions of all parties. The facts underlying these Applications overlap with those raised in both the grievance proceeding and the WSIB appeal. Although it is not clear whether the arbitrator will be asked to make any findings about human rights issues in determining the grievance, at the very least, that grievance does go to the validity of GM’s actions in terminating the applicant’s employment and is likely therefore to result in determinations about some of the same events that the applicant alleges constitute discrimination under the Code. There is also a substantial overlap between the remedies claimed in the Applications (which include 5 years loss of income) and the grievance (which requests reinstatement and compensation)

18Further, the Applications allege discrimination on the basis of a disability, arising out of zinc exposure in the workplace. In determining the applicant’s allegations that the respondents failed in a duty to accommodate his disability, the Tribunal must consider the extent and nature of the applicant’s disability. The WSIB process will also consider the nature of the applicant’s disability and whether the applicant is entitled to benefits for work-related zinc exposure. Although the exact questions and the legal framework within which the questions will be considered are different, again, the WSIB proceedings will likely address some of the very issues before the Tribunal.

19The grievance and the WSIB process have also been underway for some time before these Applications were made. The Tribunal therefore finds it appropriate to defer these Applications pending completion of those processes. In view of the deferral of the Applications, it is unnecessary to deal with the other matters raised in the Requests of the respondents and the applicant, pending re-activation of the Applications.

20Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 of the Tribunal’s Rules of Procedure within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

21I am not seized of this matter.