Tibor Simon v. General Motors of Canada Limited, 2011 HRTO 1571

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tibor Simon

Applicant

-and-

General Motors of Canada Limited

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: August 23, 2011

Citation: 2011 HRTO 1571

Indexed as: Simon v. General Motors of Canada Limited

WRITTEN SUBMISSIONS

Tibor Simon, Applicant ) Self-Represented

General Motors of Canada Limited, ) David J. Bannon, Counsel

Respondent )

BACKGROUND

1The applicant filed this Application on April 5, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the grounds of age. Essentially the applicant alleges he was discriminated against with regard to pension entitlement when his employment was terminated due to closure of the workplace.

2A Response was filed on June 15, 2011. Along with the Response the respondent argued that the Application should be dismissed as having been the subject of a grievance filed by the applicant’s bargaining agent and subsequently settled. Therefore, the respondent submitted, the application should be dismissed pursuant to s. 45.1 of the Code because the substance of the application had been appropriately dealt with.

3In support of its request for dismissal the respondent provided a copy of minutes of settlement between it and the bargaining agent dated February 18, 2010, a portion of which reads:

Grievance CZ-38 (RZ4009) – T. Simon

This grievance is withdrawn by the Union without precedent or prejudice to the position of either party at the 4^th step on the basis of the resolve to provide Tibor Simon with a $35,000 vehicle voucher.

4By way of a letter from the Registrar of the Tribunal, the applicant was invited to make submissions in his Reply with respect to the respondent’s request to dismiss.

5The applicant filed a Reply on June 15, 2011, with submissions addressing the request to dismiss. The applicant submits that the grievance settlement did not appropriately deal with the substance of his Application because, while the settlement between the respondent and the applicant’s bargaining agent may have dealt with the issue of the entitlement to a vehicle voucher, it did not address the applicant’s allegations of age discrimination with respect to his pension entitlement.

ANALYSIS

6Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

7Section 45.1 is generally considered in two parts: (1) was there was another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the application.

8With respect to the first issue, the Tribunal has held on a number of occasions that workplace grievance-arbitration process meets the requirements of a “proceeding” for the purposes of section 45.1 of the Code. The Tribunal has also found that, for the purposes of section 45.1 of the Code, a “proceeding” need not involve a hearing or an opportunity to make oral submissions and may involve a settlement: see for example and Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 and Colella v. Toronto Catholic District School Board, 2010 HRTO 678. In both cases the Tribunal held that a grievance settlement constituted a “proceeding” that comes within the ambit of section 45.1.

9I am therefore satisfied that the settlement of the applicant’s grievance is a proceeding within the meaning of section 45.1 of the Code.

10With respect to the second issue, the question is whether or not the grievance process appropriately dealt with the substance of the Application.

11The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application. Accordingly, for the Application to be dismissed at this stage of the proceedings, the respondent must show that the grievance settlement appropriately dealt with the substance of the Application.

12I do not find the settlement reached in the grievance process is determinative of the Application. Although the grievance may have considered the applicant’s allegations with respect to entitlement to a vehicle voucher, there is no basis upon which to conclude that the settlement also contemplated the applicant’s other pension related age discrimination concerns. As such, I cannot conclude that the grievance settlement appropriately dealt with the substance of the Code-related allegations in the Application.

ORDER

13Accordingly, the request for dismissal under section 45.1 is denied.

Dated at Toronto, this 23^rd day of August, 2011.

“Signed by”

Alan G. Smith

Member

ERRATUM

The Decision released on August 23, 2011 incorrectly substituted the words “ESA complaint” for the word “grievance” at paragraph nine of the decision. The error is corrected.