Smith v. Ford Motor Company, 2012 HRTO 18

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carl Smith

Applicant

-and-

Ford Motor Company of Canada

Respondent

DECISION

Adjudicator: Alison Renton

Date: January 4, 2012

Citation: 2012 HRTO 18

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 as he provided answers on Forms 1-A, 1-C and 1-D of the Application form in relation to reprisal.

2The Tribunal has not yet delivered the Application to the respondents for a Response. 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 (“the NOIDs”) 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 NOIDs 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 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 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 in his faxes of September 15, 2010 and October 4, 2010 did not specifically address the issues identified in the NOIDs.

5The Application itself is unclear and disjointed. Under section 8 of the Application form, which is titled “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” that 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 Great West Life. In a previous Interim Decision dated September 13, 2011 (2011 HRTO 1686) (“the September Interim Decision”), the Tribunal removed Great West Life as a respondent.

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, on Forms 1-A, 1-C and 1-D of the Application form, that he was subjected to reprisal because of complaints he filed with the Ontario Human Rights Commission, and/or the Windsor Superior Court. It appears from the materials that the applicant was terminated from the respondent Ford in 2007.

8As remedies, the applicant seeks $100,000, and requests that the respondent “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.

The September Interim Decision

9In the September Interim Decision, the Tribunal noted that the applicant had filed a previous application which was dismissed by the Tribunal Smith v. Ford Motor, 2009 HRTO 2116 (“the 2009 Decision”). In the September Interim Decision, the Tribunal identified that issue estoppel may apply to the Application as a result of the Decision and directed the applicant to advise the Tribunal within 5 days of the date of the September Interim Decision whether or not he wished to have an oral hearing in relation to his allegations against the respondent and if so to file any additional material, documents or submissions. The applicant was advised that if he did not respond, then the Tribunal would make its determination based upon the material that the applicant had already filed. The respondent was also given the option of filing material addressing this issue.

10The applicant did not respond following the issuance of the September Interim Decision and the time for doing so has passed.

11The respondent filed submissions stating that since 2009 the applicant has filed five Small Claims Court actions against the respondent, its employees, union officials, Great West Life and the respondent’s United States Board of Directors all of which relate to the applicant’s allegation that the defendants in the court actions have conspired to deny his benefits and/or siphoning his wages. The respondent also submitted that all of the court actions had been dismissed or stayed and provided copies of the court actions as well as the orders dismissing or staying the actions. The respondent requests that the Application be dismissed as it is a “continuation of the abuse of process in which Mr. Smith has engaged”.

Analysis

a) Reprisal

12On various Tribunal forms as part of the Application package, questions are asked of an applicant as to why he or she believes that the respondent(s) has reprised against him or her.

13When completing his Application, the applicant responded to the reprisal question as follows:

• on Form 1-A, the applicant wrote, “I am reprised due to: disability, color, race, creed, marital status, religion”;

• on Form 1-C, the applicant responded, “Racism (1) Next; Forgery of Signature (2) Next; Theft (3). All the while discrediting me through lies that I threatened to ‘kill all of them’ from Dr. Shenava, police, GWL, Nat’l Bank. CAW, Ford, Hotel Dieu Grace Hospital everyone says I threatened to kill; and

• on Form 1-D, the applicant responded, “I am reprised due to racism, theft ring – Ford – GWL, and disability and my complaints to Human Rights Tribunal”.

14Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

15The applicant has not alleged nor explained in his Application how the respondent’s behaviour was in response to any of the following:

• Claiming or enforcing a right under the Code;

• Instituting or participating in proceedings under the Code; or

• Refusing to infringe the right of another person.

16The Tribunal’s jurisdiction is exclusively based on the provisions of the Code. The Tribunal does not have a general power to evaluate employment relationships, but hears only applications that allege violations of the Code.

17While the applicant had identified that he had filed other human rights complaints and identified on Form 1-D that he was reprised “due to … and my complaints to Human Rights Tribunal”, the applicant has not alleged any facts in this Application which would constitute a reprisal or threat of reprisal under the Code. Accordingly, the applicant’s reprisal allegations are dismissed as being outside of the Tribunal’s jurisdiction pursuant to Rule 13.1 of the Tribunal’s Rules.

b) Issue Estoppel

18In 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.

19In the 2009 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.

20At para. 5 of the 2009 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.

21The 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.

22In this case, the remaining allegations in the Application raise the same issues as against the respondent as in the 2009 Decision; specifically the allegations that the respondent has “siphoned” the applicant’s monies, and return to work and payment issues. The 2009 Decision was a final decision, and the parties (being the applicant and the respondent Ford) were the same.

23The principles of issue estoppel are met and the remaining allegations in the Application are dismissed on that basis. Accordingly, I do not need to consider the court actions about which the respondent has apprised the Tribunal.

24Therefore, the Application is dismissed in its entirety.