Matthews v. Chrysler Canada Inc., 2013 HRTO 1460

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philip Matthews

Applicant

-and-

Chrysler Canada Inc. and National Automobile, Aerospace, Transportation

and General Workers Union of Canada (CAW-Canada)

Respondents

DECISION

Adjudicator: Ruth Carey

Date: August 27, 2013

Citation: 2013 HRTO 1460

Indexed as: Matthews v. Chrysler Canada Inc.

APPEARANCES

Philip Matthews, Applicant

Self-represented

Chrysler Canada Inc., Respondent

Clifford Hart, Counsel

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Respondent

Farah Baloo, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and membership in a vocational association because of disability, age and reprisal.

2The applicant is an employee of the respondent, Chrysler Canada Inc. (“Chrysler”), and a member of the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (“CAW”). He is not currently actively working due to a number of medical issues. This Application involves allegations concerning the applicant’s return to active work; reprisal in the form of a denial of coverage for the cost of a residential treatment program; a violation of the applicant’s right to privacy in an e-mail from Chrysler dated April 17, 2012; the fact that at age 65, the employee contribution for the group benefits plan decreases; and non-payment to the applicant of a signing bonus.

3By Case Assessment Direction (“CAD”) dated February 15, 2013, the Tribunal scheduled this Application for a summary hearing “to determine whether this Application should be dismissed, in whole or in part, on the basis that elements of it are an abuse of process and/or there is no reasonable prospect that the Application or part of the Application will succeed” (at para. 5).

4The hearing took place by teleconference on May 30, 2013. After the applicant completed his submissions he indicated he would not be able to participate further for medical reasons. I offered to stand the hearing down until the applicant was able to continue and indicated he could request an adjournment if he wished. He stated that he wanted the hearing to continue without him as he knew what the respondents were going to say, he had heard it all before, and he wanted to get the hearing over with. Some minutes after that the applicant left the teleconference and the hearing proceeded without him in accordance with his wishes.

ANALYSIS

5Rule 19A.1 of the Tribunal's Rules of Procedure states:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

6Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

7In accordance with the CAD, the analysis concerning this Application is primarily of the first type described above. The exception is with respect to the issue of reprisal in the form of denial of coverage for the residential treatment program, which requires the second type of analysis described above.

The Return to Work Issue

8The CAD identified the return to work issue as one which might potentially constitute an abuse of process. This is because it is similar to allegations raised by the applicant in two prior Tribunal applications, the most recent of which was dismissed in 2013 HRTO 225, issued on February 8, 2013.

9On March 19, 2013, the applicant filed a letter which indicated that he was withdrawing these allegations. He confirmed that intention at the summary hearing. Therefore, the allegations related to the return to work issue are withdrawn.

Reprisal and Coverage for the Residential Treatment Program

10The Application states that the applicant has a number of health problems and disabilities including substance use disorder. He has received both in-patient and out-patient treatment for this disorder. The applicant’s in-patient treatment has been funded through Chrysler’s health care benefits plan. On April 7, 2011, Chrysler wrote to the CAW about a request for additional funding for in-patient treatment made by the applicant. Its e-mail stated in part:

You will recall that the Company paid for Mr. Matthews to attend a residential treatment program which he completed in January 2011. At that time, we confirmed that this particular program was considered to be outside the scope of the collective agreement language on substance abuse (ltr. 10.25), but that in an effort to assist Mr. Matthews the Company was willing to pay for the program.

Chrysler is not obligated to assume the costs of multi residential treatment programs for any one employee. However, in order to assist Mr. Matthews, and based on the medical information submitted, Chrysler is prepared to again sponsor Mr. Matthews in the Homewood program. We have agreed to do so without prejudice to any position the Company may take in the current litigation involving Mr. Matthews.

11Following this approval, the applicant attended in-patient treatment in July of 2011. Since then the applicant has experienced relapse and his physician has again recommended he be admitted to an in-patient program for further treatment. In an e-mail dated April 17, 2012, Chrysler denied the applicant’s request for further funding:

On behalf of CCI, I acknowledge receipt of the Union’s request for the Company to assume the costs for Mr. Philip Matthews to attend another residential treatment program. A review of the files shows that the company has paid over $44,000 for Mr. Philip Matthews to attend 7 residential treatment programs since June of 2007.

Chrysler is not obligated under the collective agreement language on substance abuse (Ltr. 10.25) to assume the costs of multi residential treatment programs for one employee. The administration process document states: “A maximum of 2 treatment programs within a one year period (lifetime maximum of 3) are authorized, anything beyond these limits requires exception approval from CCI medical or benefit department.”

Chrysler has been more than generous with providing exceptions for Mr. Matthews, but I regret to inform you that CCI will not pay for another residential treatment program for him.

12The Application alleges that Chrysler’s decision of April 17, 2012, refusing funding for further residential treatment, is a reprisal against the applicant contrary to s. 8 of the Code which says:

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 for so doing.

13In the Application, the applicant’s written submissions of March 17, 2013, and during the summary hearing, the applicant argued that Chrysler was estopped from relying on any alleged limitation in the collective agreement to three approvals in a lifetime because it had already waived that limit by granting more than three. He also argued that the reference in the e-mail of April 17, 2011, “without prejudice to any position the Company may take in the current litigation”, is evidence that there is a connection between the applicant’s filing of human rights complaints, and the subsequent decision in 2012 to deny further funding. The applicant argues that these two factors are sufficient to draw an inference of reprisal and that an oral hearing is necessary so that the individuals who made the decision to deny funding may be questioned as to their motives.

14In Noble v. York University, 2010 HRTO 878, the Tribunal stated (at paras. 30-34):

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.”…

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate….

The complainant disputed this principle. He argued that a complainant cannot know what is in the mind of a respondent. This may be true, and in many cases, there may be no direct evidence of a respondent’s intention to reprise. Reprisal, like discrimination, is rarely practiced openly. However, this does not negate the well- established principle in reprisal cases, nor does it prevent a complainant from proving intent. Intention may be proved by inference, drawn from the whole of the evidence. Longstanding human rights jurisprudence provides that where a complainant has established sufficient facts, which if true, would support a finding that the Code has been violated, the evidentiary onus then shifts to the respondent, to provide a reasonable explanation for the impugned conduct. It then falls to the complainant to provide evidence of why the explanation is not credible, or is a simply a pretext. The Tribunal will examine all of the evidence and determine, on a balance of probabilities, whether a violation of the Code, in this case a reprisal, has been proved.

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

15In the context of a summary hearing, what this means is that the applicant has the onus of establishing that some evidence exists that would support three findings. First, was there a negative action or threat against the applicant by the respondents? Second, is the alleged action or threat related to the applicant having filed previous Applications under the Code? Third, did the respondents intend to retaliate against the applicant for filing his Applications with the Tribunal?

16There is no dispute that there was a negative action on the part of Chrysler, as it denied additional funding to the applicant for more residential treatment for his substance abuse disorder. However, the respondent CAW argues that the applicant cannot point to any evidence of a negative action or threat against the applicant on its part. Certainly, the e-mails filed by the applicant indicate the CAW supported the applicant’s requests for funding each time one was made. The applicant points to his allegations that the CAW would not provide him with documentation as to what is in the collective agreement regarding substance abuse treatment, and that it supported without explanation Chrysler’s position that he is ineligible for further funding. Based on these allegations by the applicant, I am not prepared to find that there is no proposed evidence of a negative action on the part of the CAW.

17The next question that must be addressed is whether the applicant can point to any evidence that would support the conclusion that there is a connection between Chrysler’s decision not to fund another residential treatment program, or the CAW’s alleged failure to provide a copy of the collective agreement to the applicant or its alleged support of Chrysler’s decision, and the applicant’s assertion of his rights in previous Applications under the Code?

18The applicant does not point to any proposed evidence that connects the alleged failure of the CAW to provide a copy of the collective agreement to the applicant, or its alleged support of Chrysler’s decision to deny additional funding, to the applicant’s assertion of his rights under the Code. As a result, there is no possibility that the allegation of reprisal as against CAW can succeed.

19With respect to Chrysler, and as stated above, the applicant takes the position that the statement in the e-mail of April 17, 2011, granting him additional funding that indicates the approval of funds is “without prejudice to any position the Company may take in the current litigation”, is evidence that there is a connection between the applicant’s human rights Applications, and the subsequent decision in 2012 to deny further funding. I do not agree with the applicant that the without prejudice statement can be construed in this manner.

20The plain meaning of the statement in the e-mail is that in April of 2011 Chrysler was prepared to fund an additional residential treatment program but doing so could not be used against it in the litigation that was currently ongoing between the parties. There is no logical connection between a decision to grant additional funding for residential treatment in which a respondent asserts the right for that decision not to be used against it, and a decision a year later to deny additional funding. There is also no temporal connection between the without prejudice statement and the decision to deny additional funding. There is no connection with respect to the Applications that were before the Tribunal at the time the two decisions were made. In April of 2011 there was one Application between the parties before the Tribunal that was subsequently disposed of on February 17, 2012. In April of 2012, when Chrysler refused to fund additional residential treatment, there was similarly one ongoing Application before the Tribunal between the parties, albeit a different one.

21At best the without prejudice statement might be taken as evidence that there was a connection between the decision to grant additional funding in April of 2011 and the Application that then existed before the Tribunal.

22Therefore I do not believe there is evidence the applicant can point to that would establish there is a link between the decision to deny additional residential treatment funding and the applicant’s assertion of his rights under the Code.

23The applicant’s submission with respect to estoppel appears to be addressed to the third factor identified in Noble, above. He argues that the respondents knew or ought to have known that the doctrine of estoppel meant that Chrysler had to continue to fund residential treatment programs indefinitely because it waived the alleged limit of three by funding more than three in the past. By refusing to grant additional funding in light of that imputed knowledge, the argument is that the only reasonable conclusion one can come to is that the denial was intentionally retaliatory. The primary difficulty with this argument is that estoppel does not apply on these facts; absent promises by Chrysler that funding would continue, there is no legal doctrine that would require Chrysler to continue to fund discretionary treatment just because it had waived the apparent limit on such funding in the past.

24There is no indication that Chrysler ever said or did anything that would mislead the applicant into believing he could obtain funding for additional programs indefinitely into the future. It consistently indicated the funding was discretionary. The applicant does not indicate there is evidence that Chrysler or the CAW ever promised or implied that funding for multiple residential treatment programs had no limits under the benefits plan.

25As estoppel does not apply to the facts alleged by the applicant, it cannot be argued that the respondents knew or ought to have known that the doctrine meant Chrysler had to continue to fund residential treatment programs because it waived the alleged limit of three by funding more than three in the past. Therefore, it is not possible to draw the conclusion the applicant wishes to: namely, that because Chrysler knew or ought to have known it was estopped from refusing additional funding, the decision to do so in April of 2012 was intentionally retaliatory.

26Given all of the above, I find that there is no reasonable prospect of success with respect to the allegation in the Application that the denial of residential treatment program funding for the applicant’s substance abuse disorder constitutes reprisal under section 8 of the Code.

The Privacy Issue

27The Application states that an e-mail dated April 17, 2012, sent by Chrysler to CAW:

Includes reference to information from the applicant’s “confidential personnel file” respondent management was not authorized [by the applicant] to discuss. The applicant considers it a particularly egregious violation of his “common law right to privacy” as detailed in Jones v. Tsige and it was committed with knowledge and intent…

28The e-mail at issue contained Chrysler’s reasons for denying the residential treatment program discussed above.

29No argument was made by the applicant in his written submissions or during the summary hearing that in sending the e-mail to the CAW, Chrysler breached the Code. The applicant takes the position that the contents of the e-mail are evidence of reprisal, but that argument is addressed above as it pertains to the issue of coverage for the residential treatment program. At the hearing the applicant stated that the only issues in his Application he was pursuing were those related to age discrimination, the reprisal claim, and the allegation of direct discrimination with respect to the signing bonus.

30Absent some indication that there is a connection between the applicant’s allegation of breach of privacy and the Code, there is no reasonable prospect of success with respect to that allegation in the Application.

The Issue of the Employee Contribution for the Group Benefits Plan

31One of the benefits of employment offered by Chrysler to its employees is health care benefits. According to a description of those benefits:

Effective January 1, 2010 a monthly health care contribution will be required by all employees, retirees, surviving spouses and/or dependents enrolled in health care coverage. The required monthly health care contribution will be as follows: Employees and retirees pre age 65 $30 per month; Employees and retirees post age 65 $15 per month…The health care contribution will be automatically deducted from payroll for active employees and from pension for retirees and surviving spouses in receipt of a pension. Inactive employees and surviving spouses and/or dependents not in receipt of a pension will be directly billed. [Emphasis in original.]

32The Application alleges that the decrease in the health care contribution at age 65 is impermissible age discrimination under the Code.

33This allegation was made in a previous Application. In that Application, the Tribunal directed the issue be heard on its merits. See Matthews v. Chrysler Canada Inc., 2011 HRTO 1939. However, the applicant then withdrew that Application, so the allegation of age discrimination was never adjudicated.

34After the applicant left the teleconference summary hearing on May 30, 2013, the respondents argued that s. 15 of the Code was relevant and a complete defence and answer to the applicant’s claim of discrimination with respect to age and Chrysler’s health benefits. Upon review of the Interim Decision in the previous Application, it would appear that the Tribunal’s attention was not drawn to s. 15 of the Code.

35After the conclusion of the summary hearing, I reviewed the Case Assessment Direction that directed this Application be considered at a summary hearing, and the written materials filed by the respondents and delivered to the applicant. They also did not bring s. 15 of the Code to the applicant’s attention. By way of Case Assessment Direction dated August 20, 2013, the Tribunal brought this issue to the applicant’s attention and invited him to make additional written submissions on the following questions:

a. Is section 15 of the Code a defence to the issue of age discrimination and health benefits set out in the Application?

b. Should the allegation of age discrimination with respect to Chrysler’s health benefits be dismissed as having no reasonable prospect of success because of s. 15?

36The Case Assessment Direction was sent to the applicant by way of e-mail and mail to his last known address. It has not been returned to the Tribunal. The applicant did not reply to the Case Assessment Direction or provide additional submissions.

37Section 15 of the Code says:

A right under Part I to non-discrimination because of age is not infringed where an age of sixty-five years or over is a requirement, qualification or consideration for preferential treatment.

38Where the complaint is that preferential treatment is being given to persons aged 65 or older, section 15 constitutes a complete defence. As that is the substance of the applicant’s complaint with respect to the health care contribution amount, I am satisfied that there is no reasonable prospect of success with respect to this part of the Application. In light of this conclusion, there is no need to address the issues of whether or not this allegation in the Application is timely pursuant to s. 34 or constitutes an abuse of process.

The Signing Bonus Issue

39In September of 2012 the respondents concluded negotiations agreeing to a new four-year collective agreement that included a signing bonus. The CAW’s Bargaining Report states:

The CAW has negotiated a ratification bonus. Active employees, as of the Monday following notice of ratification, and members on the inactive roll who performed work for the company between January 2, 2012 and the Monday following notice of ratification will receive a $3,000 bonus. This can be rolled into an RRSP. [Emphasis in original.]

40The applicant did not dispute the respondents’ characterisation of the signing bonus as lump sum compensation that was paid in lieu of a wage increase. There is no dispute between the parties that the applicant was not eligible for this bonus because he was not actively working at the time and he performed no work for Chrysler between January 2, 2012, and the Monday following the notice of ratification. There is also no dispute that the reason the applicant was not actively working was because of disability. The applicant submits that the failure to pay him the signing bonus constitutes discrimination under the Code because of disability.

41The relevant provision of the Code reads as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

42In response to the allegation of discrimination with respect to the signing bonus, the respondents rely on a series of previously decided cases that all follow the reasoning in the Ontario Court of Appeal’s decision in Ontario Nurses’ Assoc. v. Orillia Soldiers Memorial Hospital (1999), 42 O.R. (3d) 692, 1999 CanLII 3687.

43In Ontario Nurses’ Assoc. v. Orillia Soldiers Memorial Hospital, above, the Court of Appeal said (at para. 27): “It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services to the employer and those who are not.” In other words, wages are paid to employees in exchange for work; so when an employee is not working, it is not discriminatory to stop paying wages. The case law indicates this is also true when the compensation in question is being paid in lieu of wages like the signing bonus at issue here.

44The Court in Ontario Nurses’ Assoc. v. Orillia Soldiers Memorial Hospital, above, also said: “it would constitute discrimination if the employer provided different levels of compensation for not working because of handicap”. So if Chrysler had paid the signing bonus to employees not actively working during the relevant period for reasons other than disability, but failed to pay it to the employees not working because of disability, that would constitute discrimination. But a compensation scheme that treats all non-working employees the same is not discrimination under the Code. As there is no indication that the signing bonus paid by Chrysler went to any non-working employees at all, there is no reasonable prospect that the Application could succeed with respect to the issue of the signing bonus.

DECISION

45The Application is dismissed.