HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Carter

Applicant

• and-

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

Respondents

INTERIM decision

Adjudicator: Brian Cook

Date: February 9, 2012

Citation: 2012 HRTO 283

Indexed as: Carter v. Chrysler Canada Inc

wRITTEN SUBMISSIONS

George Carter, Applicant ) Self-represented

Chrysler Canada, Respondent ) Clifford Hart, Counsel

CAW, Respondent ) Anthony Dale, Counsel

Introduction

1This Interim Decision is pursuant to an earlier Interim Decision, 2011 HRTO 1732.

2The applicant is employed by Chrysler Canada (“Chrysler”) and is a member of the CAW-Canada local 1285 (“CAW”). The Application concerns the applicant’s allegations relating to return to work processes following work-related injuries. In particular, the applicant alleges that the Modified Work Program developed by the employer and the union is discriminatory.

3The Application was filed in October 2009 and the respondents do not dispute that the applicant may raise allegations about events that occurred in the period between October 2008 and October 2009. The applicant wishes to raise allegations about events prior to October 2008. He also wishes to amend the Application to include allegations about events after October 2009.

4For the reasons set out in the earlier Interim Decision, I determined that the applicant is not permitted to bring allegations to the Tribunal about events prior to March 2007. The Interim Decision directed the applicant to provide particulars about his allegations in respect of the period from March 2007 to October 2008, and his reasons for seeking to amend the Application in respect of events after October 2009. The applicant provided submissions on these questions and a response was received from each of the respondents.

The period from March 2007 to October 2008

5In his submissions, the applicant does not appear to raise allegations that he suffered any damages relating to the Modified Work Program for the period from March 2007 to February 2008.

6As a result, it appears that there is no issue in respect of the period from March 2007 to February 2008.

7Both respondents concede that the applicant’s work status was impacted or potentially impacted by the operation of the Modified Work Program for at least brief periods in between March 2007 and October 2008. According to Chrysler, there were two short-term layoffs, one in August 2008 and the other in October 2008 that impacted the applicant as a result of his participating in the Modified Work Program. In his submissions, the applicant appears to say that he was subject to discrimination on the basis of disability for another brief period in February 2008 and again in April 2008. The CAW submits that any lost time from work in April 2008 was unrelated to the Modified Work Program and was instead due to a recurrence of a work-related disability.

8There may therefore, be a disagreement on the facts about the reasons for the applicant’s lost time. In my view, this disagreement can only be resolved by hearing evidence from the parties.

9On the basis of the submissions of the parties, I am satisfied that the operation of the return to work processes generally, and the Modified Work Program specifically in 2008, is connected to the applicant’s allegations about the operation of the Modified Work Program in the period from October 2008 to October 2009. It appears that these allegations, if established, would constitute a series of events within the meaning of section 34 of the Code. The applicant will therefore be permitted to raise allegations of discrimination regarding the return to work process as they relate to events in 2008.

10In respect of the period before October 2009 when the applicant filed the Application, the Tribunal will hear evidence and submissions concerning the period from February 2008 to October 2009.

The period after October 2009

11The applicant sustained a new work-related back injury on September 29, 2009. He alleges that he was appropriately accommodated in respect of various periods of time after that injury. Since September 2011, he has been off work and unable to work due to a heart condition. The applicant wants to amend the Application to allow him to bring allegations about the return to work process for the period from October 2009 to September 2011.

12The respondents submit that the amendment should not be permitted because the allegations for this time are not factually connected to the allegations raised in the Application because they concern medical conditions that arose only after the Application was filed. The respondents are concerned that permitting the amendment will unduly delay the proceedings.

13Based on the submissions of the parties, it appears to me that while the applicant’s situation in the period from October 2009 to September 2011 was different because he sustained a new injury, the substance of his allegations about this period relates to the return to work process and the operation of the Modified Work Program. These are the same issues and allegations raised in the Application. I am satisfied that it is appropriate to permit the applicant to amend the Application with respect to the period from October 2009 to September 2011.

[14] The respondents request that they be permitted to file a further response in respect of the applicant’s allegations regarding the period from October 2009 to September 2011. The respondents may file such a response within 35 days of the date of this Interim Decision.

Order

15The Tribunal will hear evidence and submissions regarding the applicant’s allegations concerning the operation of the respondents’ return to work program and the Modified Work Program as they affected the applicant in respect of the period from February 2008 to September 2011.

16The respondents may file a further response in regard to the period from October 2009 to September 2011 within 35 days of the date of this Interim Decision.