George Carter v. Chrysler Canada Inc. and National Automobile Transportation and General Workers Union of Canada (CAW-Canada), 2011 HRTO 1732

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Carter

Applicant

• and-

Chrysler Canada Inc. and National Automobile Transportation and General Workers Union of Canada (CAW-Canada)

Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: September 20, 2011

Citation: 2011 HRTO 1732

Indexed as: Carter v. Chrysler Canada Inc.

APPEARANCES / wRITTEN SUBMISSIONS

George Carter, Applicant ) Self-represented

Chrysler Canada, Respondent ) Clifford Hart, Counsel

CAW, Respondent ) Anthony Dale, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application was filed on October 9, 2009, and alleges discrimination in employment on the basis of disability.

2The hearing of the Application commenced on September 9, 2011. At that time, a number of procedural issues were discussed. The purpose of this Interim Decision is to set out my rulings on the procedural issues and to confirm arrangements for the next steps.

BACKGROUND

3The applicant is employed at the Brampton plant operated by the respondent Chrysler Canada and is a member of CAW Local 1285, the union respondent. The applicant has suffered a number of work-related injuries. In 1997 he sustained a right elbow injury and in May 2002 he sustained a right elbow and wrist injury. He has permanent restrictions relating to his right elbow and wrist.

4After the May 2002 injury, the applicant returned to work in November 2002. In April 2003 the employer advised the Workplace Safety and Insurance Board (WSIB) that it had no suitable employment available for the applicant. The WSIB sponsored the applicant in a two-year Labour Market Re-entry program that featured training to become a paralegal. The program ended in May 2005. The applicant received loss of earnings (LOE) benefits from the WSIB because it was projected that he would have a continuing loss of earnings working as a paralegal when compared to his pre-injury earnings.

5In March 2007, the employer offered the applicant permanent suitable employment. The applicant returned to work. As he had no ongoing loss of earnings, he was no longer entitled to LOE benefits from the WSIB.

6The applicant continued to work in jobs that were classified as permanent until approximately October 2008. He was then employed as a “floater” meaning that he worked at various jobs as assigned. After a few weeks he got a permanent job position but lost that position in January 2008. He then did not have a permanent position. In March 2008, the corporate respondent eliminated the third shift at the plant. This resulted in mass layoffs. The applicant was not laid off but he did not obtain a permanent position again until approximately November 2008.

7In September 2009 he sustained another work-related injury. He returned to work after that injury. At present, the applicant is employed in a permanent suitable job.

8The union and the employer have developed a Modified Work Program. It sets out the process to be followed when an employee has an injury and when the injury leads to temporary or permanent medical restrictions.

9The applicant alleges that under the terms of the Modified Work Program, an employee who has medical restrictions and who does not have a suitable permanent job is only provided with alternate jobs for a period of four weeks. If a suitable permanent job for which the employee has sufficient seniority is not found in that time, the employee is laid off for a period of eight weeks. At the end of that time, the employee returns for a further four weeks and the cycle continues.

10The respondents do not agree that the Modified Work Program operates in exactly this way but do agree that the program does mean that employees with permanent restrictions and without a permanent position may be subject to temporary lay off.

THE APPLICANT’S ALLEGATIONS

11In this Application, the applicant maintains that the Modified Work Program is discriminatory. First, he believes that an employee with permanent restrictions should be placed in suitable jobs even if he or she does not have the seniority for that position and even if the position is occupied by a more senior employee. Secondly, he submits that it is discriminatory for employees with medical restrictions and without a permanent job position to be subject to lay off. He also suggests that he was not appropriately accommodated in the periods when he was under the Modified Work Program because he was subject to lay off even though there was suitable work available.

TIMELINESS OF THE APPLICATION AND REQUEST FOR PARTICULARS

12Section 34 of the Code provides as follows:

34. (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.

13When the Application was sent to the respondents, the corporate respondent filed a Response that asked the Tribunal to direct the applicant to provide particulars about his allegations. The corporate respondent also asked the Tribunal to dismiss the Application as it relates to any period before October 2008 because the Application was filed in October 2009. These matters were discussed at the hearing.

14The applicant indicated that he alleges discrimination on the basis of disability going back to at least 2002 when he suffered the second work-related elbow injury that resulted in permanent medical restrictions. He also suggested that he has experienced at least one further discriminatory incident since October 2009 when he filed the Application.

15The respondents argue that the applicant is attempting to expand the scope of the Application and that the Tribunal should deal only with any incident of alleged discrimination that occurred in the year before the applicant filed the Application.

16In the period from October 2008 to October 2009, there was at least one occasion when the applicant was laid off pursuant to the operation of the Modified Work Program. The respondents agree that the Tribunal can deal with the applicant’s allegations in regard to that incident.

17The applicant submits that the alleged incident that occurred in the period from October 2008 to October 2009 was one of a series of incidents. The series included a similar lay off situation in 2007 and also includes a failure to accommodate going back to 2003 when he was sponsored in the labour market re-entry program by the WSIB because the employer told the WSIB it had no suitable work available.

18After hearing the submissions of the parties, I directed as follows:

• The applicant is to provide a detailed chronology of events starting with his return to work in March 2007 and ending October 9, 2009, when he filed the Application.
• He is to provide a second document specifying in detail his allegations about discrimination in this period.
• If the applicant wishes to amend the Application to include incidents of alleged discrimination subsequent to October 9, 2009, he may make submissions about why he should be permitted to do so.
• These documents and submissions will be filed with the Tribunal and the respondents by October 14, 2011. The respondents may each file a response by November 21, 2011.

19I determined that the applicant would not be permitted to bring any allegations relating to the period before March 2007.

20The Tribunal has held that where there is a gap of longer than one year between incidents, events preceding such a gap will not usually be considered as part of the series: see Chintaman v. Toronto District School Board, 2009 HRTO 1225 at para. 11. The Tribunal has also been clear that to be a “series of events” there must be some nexus or common factor in relation to the events (see, for example, Baisa v. Skills for Change, 2010 HRTO 1621).

21Prior to March 2007, the applicant was out of the workplace for approximately four years. Incidents of alleged discrimination in 2003 and earlier are not, in my view, sufficiently connected to the alleged incidents after March 2007.

22In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

23In this case, there is no explanation for why the applicant did not pursue his rights under the Code in relation to any alleged incident prior to March 2007.

24At the hearing, I noted that in directing the applicant to file a detailed chronology starting in March 2007, I was not finding that he is permitted to include allegations from that date in the Application. The detailed chronology is necessary to understand the context of the allegations and to determine if there is a “series of events” within the meaning of the Code for the period from March 2007 to October 9, 2008. It is also required in order to assess any claim that any delay in respect of incidents in that period was incurred in good faith.

THE APPLICANT’S REQUEST FOR ORDER DURING PROCEEDINGS

25After he received the Response from the corporate and union respondents, the applicant filed a Request for Order During Proceedings with the Tribunal. The Request deals with concerns about the use of medical information and also with a request that the respondents disclose additional documents.

26The medical information that is of concern to the applicant consists of a series of “Request for Medical Assessment” forms. These forms are provided by the plant medical centre. They are used primarily in one of two situations. The first is when an employee brings a letter from his or her own health care practitioner regarding medical restrictions. The letter is kept in the employee’s health file at the medical centre. The medical centre doctor fills in a Request for Medical Assessment form and the form is given to the employee’s supervisor and or the union. The form is also used if an employee brings a restriction to the attention of a supervisor. The employee then goes to the medical centre and brings back a completed form.

27The medical information in the forms in question in this case consists of a code number. The respondents have a system of identifying restrictions using a code. For example, “B09” means “wrist, no twist”.

28At the hearing, I found that the Request for Medical Assessment forms submitted by the respondent in this case contain very minimal medical information and that information relates entirely to the identification of restrictions. This information is clearly relevant to the Application and to the extent that the medical information is personal or sensitive, its personal or sensitive nature does not outweigh its relevance.

29The applicant alleges that his personnel file has been tampered with. He says he knows this because documents that he submitted are not in it. The corporate respondent denied that the applicant’s file has been tampered with and advised that all arguably relevant documents in the applicant’s personnel file were disclosed to the applicant. The corporate respondent did agree to review the file again to make sure that nothing was overlooked and to advise the applicant within one week of the date of the hearing.

30The union respondent advised that by mistake it disclosed documents relating to other employees when it made its disclosure of arguably relevant documents. This was done in error and the documents are not part of the record in this case. The union respondent did agree to also review its files regarding the applicant and to advise the applicant within one week of the date of the hearing if any arguably relevant document had been overlooked.

31At the hearing, I advised that, at least at present, there is no basis for any other order regarding disclosure of documents.

ORDER

32The application is dismissed with respect to any allegations relating to the period before March 2007 on the basis of delay.

33As set out in paragraph 18, above, the applicant will provide the chronology and particulars, together with a request to amend the Application if he wishes to do so, by October 14, 2011.

34If the respondents wish to make submissions with respect to the chronology or particulars, or respond to any request to amend the application, they may do so by November 21, 2011.