Lawrence v. Chrysler Canada Inc., 2013 HRTO 398

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Lawrence

Applicant

-and-

Chrysler Canada Inc., Rick Marshall, Leon Rideout and Dave Wallace

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: March 8, 2013

Citation: 2013 HRTO 398

Indexed as: Lawrence v. Chrysler Canada Inc.

APPEARANCES

Andrew Mark Lawrence, Applicant

Harry Kopyto, Representative

Chrysler Canada Inc., Rick Marshall and Dave Wallace, Respondents

Christopher Dunn, Counsel

Leon Rideout., Respondent

Piper Henderson, Counsel

Introduction

1In his Application, the applicant alleged that Chrysler Canada Inc. (“Chrysler”) and several members of the company’s management team discriminated against him with respect to employment because of race, colour, and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He also alleged that Chrysler and the respondents Rick Marshall and Dave Wallace (the “Chrysler respondents”), reprised against him by eliminating a position for which he had successfully applied. Finally, he alleged that his union’s President, Leon Rideout, discriminated against him by failing to take appropriate action in response to the alleged discrimination and reprisal by the Chrysler respondents.

2By Interim Decision dated May 31, 2012, the Tribunal dismissed as untimely all allegations against Chrysler and members of its management staff except for the applicant’s reprisal allegation.

3By Case Assessment Direction dated September 24, 2012, the Tribunal directed that the matter be scheduled for a summary hearing by teleconference pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The parties were directed to address two issues in the summary hearing: (1) whether there was a reasonable prospect that the applicant would be able to establish that the Chrysler respondents intended to reprise against him by eliminating the position for which he had successfully applied, and (2) whether there were any timely allegations against Mr. Rideout that had a reasonable prospect of success.

4The Summary Hearing was initially scheduled for January 21, 2013. On that date, the applicant requested that the Summary Hearing be adjourned and rescheduled. He indicated that he had retained a representative but that he had mistakenly given his representative the wrong date for the Summary Hearing. I agreed to reschedule the Summary Hearing because I was satisfied that the potential harm to the Applicant of proceeding with the Summary Hearing without his representative outweighed any prejudice to the respondents or administrative inconvenience to the Tribunal of rescheduling it. The Summary Hearing was rescheduled to January 31, 2013.

factual background

5The applicant is an employee of Chrysler and a member of Local 1285 of the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (“union”).

6In or about late March/early April 2011, the applicant bid for an Inspection Job in accordance with the process set out in the collective agreement between Chrysler and the union. Chrysler had created the job to test a new Quality Process. The applicant claims that the Inspection Job was a permanent job that was not subject to elimination. He claims it was a rare occurrence for the employer to eliminate a position.

7By contrast, Chrysler claims that the Inspection Job was intended to be temporary in nature until the Quality Process was completed. According to the company, it was required to post the job even though it was temporary since the time period for the job extended beyond the time period prescribed in the collective agreement. Chrysler submitted that it is not a rare occurrence for positions to be eliminated. According to Chrysler, the fact that the collective agreement prescribes rules to be followed when a position is eliminated supports the position that it is not rare for positions to be eliminated. Leon Rideout, the union’s President, states in his response that the elimination of a posting following a successful bid is a common occurrence in this workplace. According to Mr. Rideout, positions are routinely created and eliminated in accordance with fluctuations in the company’s production demands.

8It is not disputed that the Inspection Job was awarded to two successful bidders: one for Shift A (days) and one for Shift B (afternoons). The applicant was the successful bidder for Shift A. Another employee was the successful bidder for Shift B.

9On or about April 14, 2011, Chrysler eliminated the Inspection Job and the successful bidders were returned to their former positions. The applicant states that he was provided no reasons for why the job was eliminated. The applicant states that Mr. Marshall and Mr. Wallace were supervisors in the area in which the Inspection Job was being performed. He alleges that the only reason the job was eliminated was because he was a successful bidder. He alleges that Chrysler eliminated the job because he had filed a complaint with the Ontario Human Rights Commission against Mr. Marshall and Mr. Wallace in 2005.

10In response, Chrysler states that it had legitimate business reasons for eliminating the Inspection Job. It claims that, by April 14, 2011, it had made a determination with respect to the Quality Process and therefore the Inspection Job was no longer required. According to the company, the Inspection Job was eliminated in accordance with the rules set out in the collective agreement. It is not disputed that the Inspection Job was eliminated for both the A and B shifts. In other words, the applicant was not the only employee who was sent back to his former position. The successful applicant for the B shift was also sent back to his former position.

11Chrysler claims that neither Mr. Marshall nor Mr. Wallace played a role, nor would they ever play a role in making any decisions relating to the Quality Process or the elimination of the Inspection Job. Chrysler also states that Mr. Marshall and Mr. Wallace were not supervisors in the area in which the Quality Process or the Inspection Job were performed.

ANALYSIS

Summary Hearing

12The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

13In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

14As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

15In this case, the applicant alleges that the Chrysler respondents reprised against him for having filed a complaint with the Ontario Human Rights Commission.

16Section 8 of the Code provides as follows:

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.

17In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code: Noble v. York University, 2010 HRTO 878.

18In this case, the applicant submits that the Chrysler respondents reprised against him contrary to the Code when the company eliminated the Inspection Job for which he had successfully bid. The applicant bore the onus of showing that there was a reasonable prospect that he would be able to establish that the Chrysler respondents eliminated the Inspection Job as an intended reprisal against him for filing a human rights complaint against Mr. Marshall and Mr. Wallace in 2005.

19In my view, there is no reasonable prospect that the applicant will be able to prove, on a balance of probabilities, that the Chrysler respondents eliminated the Inspection Job because of an intent to reprise against him. Although the applicant believes that there was no other explanation for Chrysler’s elimination of the Inspection Job, Chrysler has offered a legitimate explanation – that is, that the company always intended the Inspection Job to be a temporary position. In response to this explanation, the applicant simply alleged at the Summary Hearing that the company intended the job to be permanent since he had no indication that it was temporary. In the circumstances, I find that there is no reasonable prospect that the applicant is likely to be able to put the explanation by the Chrysler respondents into doubt on a balance of probabilities.

20As well, the fact that another employee in addition to the applicant was affected by Chrysler’s decision supports Chrysler’s position that the elimination of the Inspection Job was not linked to an intention to reprise against the applicant. Overall, the applicant has not demonstrated that there is a reasonable prospect that evidence he has, or that is reasonably available to him, can show that the Chrysler respondents eliminated the Inspection Job as an intended reprisal against him.

21In light of the above, I find that the reprisal allegation against the Chrysler respondents is dismissed as standing no reasonable prospect of success.

Reasonable Prospect of Success of Allegations Against Mr. Rideout

22In his Application, the applicant claimed that Mr. Rideout breached the Code by failing to take appropriate action in relation to his claims of discrimination against Chrysler going back to 2004. I dismiss these allegations against Mr. Rideout as untimely for the same reasons that the Tribunal dismissed these claims against Chrysler as out of time in its Interim Decision: 2012 HRTO 1087. The alleged incidents occurred more than a year before the Application was filed, they do not form part of a “series of incidents” the last of which occurred within one year of the Application, and the applicant has not made out any good faith reason for the delay in filing his Application with respect to these alleged incidents.

23With respect to the timely reprisal allegation, it was not clear from the Application whether the applicant was claiming that Mr. Rideout breached the Code due to any action or inaction in regards to the alleged reprisal by the Chrysler respondents. When asked whether the applicant was making any allegations against Mr. Rideout in relation to the alleged reprisal by the Chrysler repondents, Mr. Kopyto submitted that Mr. Rideout and the union had “aided and abetted” the Chrysler respondents’ alleged reprisal against Mr. Rideout. According to Mr. Kopyto, Mr. Rideout violated the Code by failing to protect the applicant from being the victim of reprisal. In response, Mr. Rideout’s counsel argued that the applicant has failed to point to any evidentiary link between Mr. Rideout and the incident that formed the alleged reprisal.

24In my view, the applicant’s claim against Mr. Rideout relating to the alleged reprisal by the Chrysler respondents must be dismissed. First, since I have found that the applicant has no reasonable prospect of success in establishing that the Chrysler respondents reprised against him contrary to the Code, his claim that Mr. Rideout “aided and abetted” or was involved in this alleged reprisal also has no reasonable prospect of success. Second, to the extent that the applicant is claiming that Mr. Rideout violated the Code by failing to take action with respect to the alleged reprisal, the Tribunal’s caselaw on this type of claim is well established. The Tribunal has consistently held that it is not discrimination for a union not to file or pursue a human rights grievance on behalf of a member, unless the reason for doing so was based on one of the grounds protected under the Code. See, for example, Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 33. The applicant advanced no evidence to support a claim that Mr. Rideout failed to take appropriate action with respect to his reprisal claims due to any discriminatory reason.

ORDER

25In light of the above, this Application is dismissed as having no reasonable prospect of success.