Mazzei v. General Motors of Canada Limited, 2012 HRTO 1251

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Mazzei

Applicant

-and-

General Motors of Canada Limited

Respondent

DECISION

Adjudicator: Ian R. Mackenzie

Date: June 26, 2012

Citation: 2012 HRTO 1251

Indexed as: Mazzei v. General Motors of Canada Limited

APPEARANCES

Frank Mazzei, Applicant

Nathan Korenberg, Representative

General Motors of Canada Limited, Respondent

David Bannon, Counsel

Introduction

1Frank Mazzei filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, on September 15, 2010. After testifying, the applicant withdrew his allegations relating to diabetes and relied on his allegations relating to accommodation of a physical disability.

2The Application was deferred pending the completion of a grievance process: 2010 HRTO 2388. The applicant’s union withdrew the grievance in January of 2011. The Application was reactivated in March of 2011: 2011 HRTO 635.

3The Tribunal issued a Case Assessment Direction (“CAD”) on April 19, 2012, reminding the applicant of his obligation under Rules 16 and 17 to provide documents and a witness statement or statements. He did not comply with this CAD. A further CAD was issued on May 2, 2012, requiring the applicant to deliver and file a witness statement and any documents he intended to rely upon by May 10, 2012, or his Application would be dismissed as abandoned.

4A witness statement of the applicant as well as documents were filed on May 10, 2012. On May 22, 2012, the respondent objected to some of the paragraphs in the applicant’s witness statement and also objected to the late filing of certain documents contained in the applicant’s document brief. The parties were advised that the objection would be dealt with at the commencement of the hearing.

5After hearing submissions of the parties, I ruled that the witness statement would be allowed to stand. Although some new details emerged in the witness statement, those details were connected to the allegations raised in the Application. I also stated that any prejudice to the respondent could be addressed through an adjournment, if necessary.

6The respondent objected to the disclosure by the applicant of several documents. After hearing the submissions of the parties, I ruled that the documents were admissible, although I reserved on the relevance of those documents. In the end, the applicant did not rely on any of the disclosed documents in his testimony-in-chief.

7After hearing the applicant’s testimony-in-chief, I requested submissions from the applicant and respondent on whether there was a reasonable prospect of success of all or part of the Application. This decision addresses that issue.

Evidence and background

8The applicant had been working for the respondent for approximately 25 years in car plants located in Oshawa, Ontario. The applicant testified that he injured his knees in and around 2000-2001. He was in receipt of workers compensation benefits and was initially sent on a training program to teach him a trade. He ended that program when he was informed that he would not return to General Motors upon the completion of the program.

9When he returned to the plant, he was accommodated in a forklift position. He testified that he went through a placement coordinator at the plant to obtain this position. The plant doctor assessed the applicant in 2007 and set out the following work restrictions: “avoid twisting on knees. Requires the ability to sit and rest periodically. No job that requires stair climbing. No squatting/kneeling.” The assessment stated that the restrictions would expire in February of 2008.

10In 2009, the applicant received a 30-day suspension for leaving the plant at lunch time and not returning to work. He received a second 30-day suspension later in 2009 for failure to wear a seatbelt while on his forklift.

11When the applicant returned from serving his suspension, in July of 2009, he was told by his supervisor (Jason Ingram) that he would be put on a “tugger”, which is a three-wheeled vehicle that pulls baskets of stock. The applicant testified that there was a lot of “knee work” involved in pushing and pulling the baskets. He stated that he told Mr. Ingram that the job was contrary to his job restrictions. The applicant testified that Mr. Ingram told him to either take the job or leave the plant. The applicant stated that he felt that he had no choice but to accept the position after his 30-day suspension. He testified that he could not go to the plant doctor because if the work was not suitable, the job would not be assigned to him and he would be out of work. He testified that his knees were swollen and he took some days off to cope with the pain. However, he was trying to make up days lost because of the suspensions so he continued to work through the pain.

12In December of 2009, the applicant’s employment was terminated because of a verbal altercation with a security guard at the plant. The termination was grieved. The union withdrew the grievance on January 25, 2011.

13The applicant stated that his supervisor and other management representatives wanted to get rid of him. He stated that the progressive discipline policy was not applied fairly to him and that others did not receive such significant discipline for failing to wear a seatbelt.

14In his Reply to the Response of the respondent, the applicant states that each time he was disciplined “it was always as the fullest extent so not to deal with my disability or diabetes and just best get rid of me and any health benefits”.

Submissions

15In asking for the parties’ submissions on whether there was a reasonable prospect of success, I referred them to Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, which states:

… I have considered the parties’ arguments in light of the evidence in this case in relation to the question of whether the Application has no reasonable prospect of success. In my view, this question should be considered in light of the evidence that has been heard and that is reasonably expected to be presented. This involves a consideration of whether, in light of the pleadings, witness statements, documents relied upon and evidence that has been heard, there is a reasonable prospect that an applicant can meet his or her burden of proof.

16The applicant submitted that the actions of Mr. Ingram resulted in differential treatment within the meaning of the Code.

17The applicant testified about being placed on the tugger, contrary to his medical restrictions. He submitted that his case turns on the respondent’s reasons for dismissal and Mr. Ingram may have evidence to prove the applicant’s case. He also submitted that Dan Godfrey, the immediate supervisor of the applicant, may also have relevant evidence.

18The applicant submitted that in Pellerin the applicant was cross-examined and one of the witnesses for the respondent testified and was cross-examined. Often it is only the respondent that knows the reasons for its decision and the Tribunal should be attentive to the fact that this evidence may only come through the cross-examination of the respondent’s witnesses. The applicant was of the view that he should be given the opportunity to obtain evidence through cross-examination of the respondent’s witnesses. He submitted that this is the fair, just and expeditious approach (section 41 of the Code) and it would be a denial of natural justice to prevent him from cross-examining the respondent’s witnesses.

19The respondent submitted that the applicant was reading the Pellerin decision too narrowly, by focusing on the fact that there was cross-examination in that proceeding.. The reasonable prospect of success test has been applied at various stages of the hearing process. The respondent referred me to Winn v. Costco, 2012 HRTO 990, where the reasonable prospect of success was assessed prior to the calling of any evidence.

20The respondent stated that the role of the Tribunal is not to address any general allegations of unfairness. The focus of the Tribunal is whether or not there is a connection between the alleged unfair treatment and a breach of the Code.

21The respondent submitted that there is an issue of timeliness of the new allegation relating to the tugger. The incident occurred in July of 2009 and was only raised in the witness statement, almost two years after the expiry of the one-year time limit set out in section 34 of the Code. The allegations relating to the two 30-day suspensions are also not timely. The respondent submitted that the Application should be dismissed solely on the basis of timeliness.

22The respondent noted that the note from the plant doctor relied upon by the applicant in his evidence states that any work restrictions expired in 2008. The applicant tendered no evidence of any further medical restrictions at the time of his return to work in July of 2009.

23The respondent submitted that the applicant had not made any allegations nor established any connection between his first 30-day suspension and a prohibited ground of discrimination under the Code. There is no reasonable prospect that he can make that link. Similarly, no connection can be established between his second 30-day suspension and a breach of the Code.

24The respondent submitted that there was no evidence of work restrictions at the time of his return to work after his 30-day suspension. Even if there had been any restrictions, the work was within his stated restrictions. The applicant did not testify why the job was outside his work restrictions. The respondent submitted that the applicant had used the services of his union before and was also aware that he had access to a placement coordinator who looked after accommodated positions. The respondent submitted that there is no credibility to his statement that he was told that he had to do the job or he was out of the plant. In addition, no supervisor has the unilateral authority to remove an employee from the plant. It was the respondent’s position that it is also inconceivable that the applicant would stay in a position outside of his restrictions for five months without going to the plant doctor or filing a grievance and that this was raised by the applicant as an afterthought when he recently filed his witness statement in order to bolster his Application.

25The respondent submitted that the Application should be dismissed in its entirety.

26The applicant submitted that the Tribunal has the discretion to extend time limits. The applicant also submitted that he relied on the grounds that he understood to be grounds set out in the Code. He did refer to the necessity of accommodation of his knee condition. He had been accommodated for a number of years because of this knee condition and he was accommodated until the date of his termination.

27The applicant disputed that the tugger position was within his work restrictions. The applicant submitted that the only way to gather the necessary facts is through examination and cross-examination of the respondent’s witnesses.

28The applicant stated that he was never made aware that his last 30-day suspension would be his “last chance” before being terminated. Although this may not be directly connected to a breach of the Code, it is relevant to the Application.

29The applicant submitted that it was not up to the respondent to assess the credibility of the applicant. The applicant’s credibility needs to be assessed against the testimony of the witnesses for the respondent.

30The applicant stated that it is quite conceivable that he will be able to prove that he was terminated because of the actions of Mr. Ingram, which were based on prohibited grounds under the Code. The fact that the applicant lasted five months on the tugger position should not be held against him, as he remained in this position because he needed the income. The applicant conceded that the suspensions may not be as important to the applicant’s case as the tugger position. The incident involving the tugger should be addressed by the Tribunal and the applicant should be allowed to gather evidence through the examination and cross examination of the relevant witnesses.

DECISION

Timeliness

31The respondent has submitted that the allegations relating to the two suspensions and the return to work in July of 2009 are untimely. Subsection 34(1) 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.

32The respondent relied on the two 30-day suspensions to support its decision to terminate the applicant’s employment. For this reason, the suspensions can be regarded as a “series of incidents” leading up to the termination of employment. Accordingly, I find that these allegations are timely.

33The allegation that the respondent failed to accommodate the applicant on his return to work in July of 2009 is untimely. I allowed the applicant’s reference to this incident in his witness statement to stand because he had alleged in his Application that the employer had failed to accommodate him in a permanent position. However, this allegation can only be considered timely if the applicant is able to show a connection between a failure to accommodate and his termination of employment. If he is not able to demonstrate such a connection, the return to work allegation cannot be considered to be “part of a series of incidents” as required under section 34. As I have concluded later in these reasons that the applicant has not demonstrated any connection between his termination of employment and a prohibited ground of discrimination under the Code, the allegation relating to the return to work in July of 2009 is not timely.

34The Tribunal can extend the time limits if it is satisfied that the delay was incurred in good faith and that no substantial prejudice will be suffered as a result.

35The applicant had been accommodated in the past and had consulted the plant doctor previously. He was familiar with the process for obtaining appropriate accommodation. He testified that he thought he would lose his job if he raised concerns about the suitability of the tugger position. He had been represented by his union in the past, yet he did not approach any union representative for advice on his rights in this situation. He also sought union representation when his employment was terminated. He was therefore aware of his rights under the collective agreement and his right to accommodation. He has provided no evidence that he raised the issue of accommodation with the union at the time of the alleged failure to accommodate.

36I find that the applicant has not demonstrated that the delay was incurred in good faith. I therefore do not need to determine whether there is any substantial prejudice to the respondent.

Reasonable Prospect of Success

37The Tribunal has held in many decisions that it does not have the power to evaluate general claims of unfairness. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at para. 27:

The Tribunal does not have the authority to deal with, decide, or provide remedies in respect of general claims of unfair treatment in employment. Rather, the Tribunal’s jurisdiction is limited to claims which have a nexus with a proscribed ground of discrimination, in this case age.

38A successful claim of discrimination requires an applicant to show that one of the prohibited grounds of discrimination was a factor in disadvantage experienced by the applicant. The applicant must show that discrimination was one of the factors in the respondent’s actions.

39In Pellerin, supra, at paras. 11-14, the Tribunal discussed the balance that the Tribunal must strike in conducting its proceedings:

The burden of proving that a prohibited ground or an intention to reprise was a factor in a respondent’s decision or action lies on an applicant. An applicant must establish a connection between the disadvantage and the ground on a balance of probabilities. However, often only the person who made a decision or took relevant actions will know why they were taken, and relevant evidence will frequently be in the possession of a respondent. Human rights law recognizes that a respondent’s non-discriminatory explanation may in fact be erroneous or a pretext for discrimination.

Reconciling an applicant’s burden of proof with the reality that information from a respondent may be the only way an applicant can prove his or her case is a tension in deciding Code applications. On one hand, because the reasons for a decision are often only known to a respondent, it is important to ensure that the Tribunal process provides a fair and appropriate opportunity for applicants to obtain evidence that would permit them to establish discrimination and that the Tribunal use its expertise to focus on such evidence. It is also important that neither party undergo the cost, inconvenience, and potential stress of Code proceedings where there is no reasonable possibility that allegations of Code violations will succeed, and that public resources be appropriately used in resolving such disputes. Human rights applications should not be an endless search for an unlikely needle in a haystack.

The Code and the Tribunal Rules of Procedure require the Tribunal to apply its expertise in the resolution of human rights disputes in a manner that is principled, practical, proportionate and adapted to the dispute before it. The Code directs the Tribunal, in s. 41, to adopt procedures and practices that offer the best opportunity for a “fair, just and expeditious resolution of the merits of the matters before it” and this principle guides the interpretation of the Rules (Rule 1.1). The Tribunal is specifically empowered to adopt practices or procedures “that are alternatives to traditional adjudicative or adversarial procedures” (s. 43(3)(a) and Rule 1.6). In particular, the Tribunal is empowered to define and narrow the issues and to determine the order in which the issues and evidence will be presented (s. 43(3)(b) and Rule 1.7 (g) and (h)).

These provisions, in my view, instruct the Tribunal not to be formalistic about the order or extent to which evidence is called. They invite the Tribunal to apply its knowledge of human rights law and the types of disputes that come before it to decide what evidence it needs to hear in order to resolve a dispute, in particular one in which the connection to the Code seems weak. They require the Tribunal to balance the principles discussed above. They suggest tailoring the procedure in a particular case to ensure that the applicant has a fair and appropriate opportunity, given the facts of the case, to obtain and present evidence that might prove, on a balance of probabilities, a link between a respondent’s actions and the Code through disclosure or cross-examination. At the same time, in my view, the process must be structured so that the making of a bald allegation or a mere unfounded suspicion does not place inappropriate burdens on respondents, and so that an application or hearing is terminated when it is clear that there is no reasonable prospect an applicant can prove his or her allegations.

40Assessing whether there is a reasonable prospect of success involves a consideration of whether, in light of the pleadings, witness statements, documents relied upon and evidence that has been heard, there is a reasonable prospect that an applicant can meet his or her burden of proof (Pellerin, at para. 30). The applicant submitted that I needed to hear the cross-examination of one of the respondent’s witnesses, as had been conducted in the Pellerin case. There is no requirement of cross-examination of any of the respondent’s witnesses in order to determine a reasonable prospect of success. The requirement is for sufficient information (from the documents on file with the Tribunal) and evidence (if necessary) to come to a conclusion on the reasonable prospect of success. Rule 19A of the Tribunal’s Rules of Procedure sets out a summary hearing procedure for determining if an application has a reasonable prospect of success that does not require the calling of any evidence.

41The approach for assessing the reasonable prospect of success of all or part of an Application has been set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

42The applicant has made two general allegations. The first is that the discipline that was imposed by the respondent (the two 30-day suspensions) was motivated, in part, because of his disability. By inference, this allegation includes his termination of employment, since the termination was linked to these previous suspensions through progressive discipline. He has also alleged that his termination of employment was motivated by discrimination.

43On their face, the two 30-day suspensions relate to misconduct in the workplace. The first one related to unauthorized absences from the workplace and the second related primarily to the failure to wear a seatbelt while driving a forklift. In his Application and in his testimony, the applicant provided no evidence that the discipline was in any way related to his disability. The bald allegation that his supervisors wanted to get rid of him because of his disability is not supported by any evidence. The applicant has not identified any evidence that he will be reasonably able to obtain that would support his allegation. His termination of employment was a result of a verbal altercation at the workplace. The applicant has not linked the discipline to any prohibited ground of discrimination under the Code.

44I have therefore concluded that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.