Smith v. Ford Motor Company, 2011 HRTO 1686

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carl Smith

Applicant

-and-

Ford Motor Company of Canada

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: September 13, 2011

Citation: 2011 HRTO 1686

Indexed as: Smith v. Ford Motor Company

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on April 19, 2010 alleging discrimination in goods, services and facilities, contracts and employment on the grounds of race, colour, ethnic origin, disability and marital status. While the applicant did not mark off the ground of reprisal, it appears that his Application is also based on that ground.

2The Tribunal has not yet delivered the Application to the respondents. Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondents, issue a Notice of Intention to Dismiss (“NOID”) the Application to the applicant.

3The Tribunal sent the applicant a NOID dated August 16, 2010 and another one dated September 29, 2010 indicating that that it appears that the Application is outside the Tribunal’s jurisdiction because:

• the events described in the Application fail to identify any specific acts of discrimination allegedly committed by the respondents and within the meaning of the Code;

• the applicant has commenced a civil proceeding seeking an order under section 46.1 of the Code and accordingly is barred from having his Application proceed by section 34(11) of the Code;

• it appeared that the Application alleged discrimination on the basis of “reprisal or threat of reprisal” but failed to explain how the respondents’ behaviour was related to reprisal or threat of reprisal pursuant to section 8 of the Code;

• the Application was filed more than one year after the last incident of discrimination against the respondent Ford and there was no explanation about how the delay was incurred in good faith; and

• the subject-matter of the Application is the same or substantially the same as the subject-matter of a complaint that was filed with the Ontario Human Rights Commission that was determined by a Case Resolution Conference Decision issued December 7, 2009.

4The NOID directed the applicant to provide written submissions addressing the issues identified in them. The applicant faxed some material to the Tribunal on September 15, 2010. That material included the following: a letter dated March 9, 2008 addressed to the Ontario Human Rights Commission from the applicant’s ex-wife describing a meeting she attended at the applicant’s workplace in 2000 and his return to work in 2001; a copy of the respondent Great West Life’s “Claimant’s Explanation of Benefits” dated September 24, 2009; and a document entitled “Specifics regarding Great West Life Assurance Theft” which shows some calculations suggesting the respondent Great West Life allegedly owes the applicant money. The applicant sent another fax on October 4, 2010, containing the same material (and cover sheet) as the September 15 fax as well as a “Claimant’s Explanation of Benefits” dated January 25, 2010. The applicant did not specifically address the issues identified in the NOID.

5The Application itself is unclear and disjointed. Under section 8, “What Happened”, the applicant writes “Constant late payments. No payments. False police report. Conspiracy and identity theft. Disability”. He identifies the date of the last event as being August, September, October, November, December 2009 and January 2010 and alleges that he did not get any pay for these periods. Attached to the Application was a document titled “Appeal” which appears to be a reconsideration submission in relation to another Tribunal file with a different respondent, banking, payroll and Canada Revenue Agency documentation, correspondence with the respondent Great West Life, and calculations about living expenses. Upon request from the Tribunal, he provided a complaint he filed with the Ontario Human Rights Commission in 2007 and a Statement of Claim that he initiated in Windsor in March 2010. He also provided material pertaining to a Request for Taxpayer Relief that he filed with Canada Revenue Agency. It appears that the material that was filed is not complete.

6The essence of the Application, when reading the Application form itself together with the additional materials provided by the applicant, is that that applicant had employment with the respondent Ford Motor Company (“Ford”) and apparently went off work for medical reasons. While off work, it appears that he was or is in receipt of benefits from the respondent Great West Life.

7The applicant alleges that the respondent Ford has been “siphoning” money from his paycheques from 1995 or 1998 (there are different dates presented) to 2010 and that he was forced back to work in 2007 by the respondents. He alleges that he was subjected to reprisal due to “disability, color, race, creed, marital status, religion” and references several complaints he filed with the Ontario Human Rights Commission. It appears from the materials that he was terminated from the respondent Ford in 2007. The respondent Great West Life, the applicant alleges, has not been paying him the correct amount of benefits.

8As remedies, the applicant seeks $100,000, and requests that the respondents “should be made to pay all my CRA debt”. He also requests that “Further investigation must be done to see how many more victims there are being raped & gagged & bound by GWL/Ford Motor”. Included on his Application form, the applicant has written that he has been subjected to “psychological gang-rape by tag-team” comprised of the respondents, his former union and a bank and alleges that he was the subject of police brutality in February 2007.

2009 Case Resolution Conference Decision

9In Smith v. Ford Motor, 2009 HRTO 2116, the Tribunal dismissed an Application filed by the applicant that had initially been a complaint filed with the Ontario Human Rights Commission. In that Case Resolution Conference Decision (“the CRC Decision”), amongst other things, the Tribunal addressed issues pertaining to the applicant’s return to work and subsequent employment issues, including payments that he alleged were owed to him, in 2007 and the applicant’s assertion that the respondent Ford had been “siphoning off” monies from his pay for a period extending over 10 years.

10At para. 5 of the Decision, and specifically in relation to the allegation that the respondent Ford had been siphoning off monies, the Tribunal stated:

Regarding the allegation suggesting that the Employer had, over a ten-year period, been ‘siphoning off’ monies from the applicant’s pay, while there was a mention in the complaints regarding the ‘siphoning’ of monies it would be inappropriate to inquire into that matter for a number of reasons. Firstly, there would seem to be a significant issue regarding the timeliness of such allegations. Secondly, fully delving into those allegations would again in my view constitute an expansion of the applicant’s original complaints. Finally, the applicant failed to demonstrate, in any fashion whatsoever, a connection between those allegations and a prohibited ground under the Code.

11The Tribunal considered the applicant’s allegations about his return to work in April 2007, and June 2007 payroll issues. Ultimately, the Tribunal dismissed the Application on all the issues.

The Application as against the Respondent Ford

12In Snow v. Honda, 2007 HRTO 45, at paras. 36 to 43 the Tribunal held that the criteria to be met for issue estoppel are as follows:

• The same questions are being decided in both proceedings;

• The judicial decision which is said to create the estoppel is a final decision;

• The parties, or their privies, are the same.

13In this case, the Application raises the same questions as against the respondent Ford as in the CRC Decision and specifically those addressing the alleged “siphoning” of monies, return to work and payment issues. The CRC Decision was a final decision, and the parties (being the applicant and the respondent Ford) were the same.

14The Tribunal directs the applicant to advise the Tribunal within 5 days of the date of this Interim Decision whether he wishes to have an oral hearing in relation to his submissions against the respondent Ford. If he does, then a conference call hearing will be scheduled by the Tribunal and any party that wishes to file additional material, documents, or submissions, in addition to those already filed, is directed to file those up to 10 days before the conference call hearing.

15If the applicant advises that he does not want an oral hearing, he is directed to confirm this in writing within 5 days of the date of this Interim Decision. If he seeks to rely upon any additional material, documents or submissions, in addition to those already filed, he is directed to file those within 5 days of the date of this Interim Decision.

16If the applicant does not respond within 5 days, then the Tribunal will make its determination based upon the material that the applicant has already filed.

17In the event that the applicant does not want an oral hearing, or does not respond within the 5 day time period, if the respondent Ford wishes to file any material addressing this issue, it is directed to deliver those to the applicant and file them with the Tribunal within 15 days of the date of this Interim Decision.

Application against the respondent Great West Life

18The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in the areas of goods, services and facilities, contracts and employment on the basis of grounds listed in the Code. In his Application and in the material that he has submitted to the Tribunal, the applicant has marked off race, colour, ethnic origin, disability and marital status as the grounds upon which he bases his Application.

19The essence of the allegations against the respondent Great West Life, as set out in the Application and the supporting material filed by the applicant, is that the respondent Great West Life is not making correct payments to him. In this regard, the applicant has quantified the amounts that he believes are owed to him by the respondent Great West Life as identified in the supporting material that he has submitted to other agencies and the courts.

20The applicant has not, in my opinion, established a connection between the amounts he alleges that are owing to him by the respondent Great West Life and the Code grounds that he marked off on his Application. The Tribunal does not have a general power to inquire into claims of unfairness, or incorrect calculations, outside the areas and grounds listed in the Code and the Application as against the respondent Great West Life is dismissed. The style of cause if amended accordingly. In light of the dismissal of the Application, it is not necessary to address the other issues identified in the NOIDs as against the respondent Great West Life.