HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jerome Brettle
Applicant
-and-
General Motors of Canada Limited
Respondent
DECISION
Adjudicator: Maureen Doyle
Indexed as: Brettle v. General Motors of Canada Limited
WRITTEN SUBMISSIONS
Jerome Brettle, Applicant
Self-represented
General Motors of Canada Limited, Respondent
David J. Bannon, Counsel
Introduction
1This Application, filed July 15, 2013, alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By way of remedy, he seeks financial compensation and placement in a job which is in accordance with his medical restrictions.
2The respondent denies that it has discriminated against the applicant and in any event submits that a complaint was filed with the Ontario Human Rights Commission (OHRC) based on the same, or substantially the same, facts as this Application. It also submits that the allegations in the Application are untimely.
3The applicant submits that based on an allegation relating to a meeting with the respondent on July 16, 2012, his Application is timely.
4The Tribunal issued a Case Assessment Direction providing the parties with an opportunity to make submissions with respect to the applicability of subsection 53(8) of the Code. The Tribunal has received submissions from both parties.
DECISION
5This Application is dismissed on the basis that it is not within the Tribunal’s jurisdiction.
BACKGROUND
6The applicant recounts his history of injury and work with the respondent from 1999. He has worked as a machine operator and has done janitorial work. He alleges that when the respondent assigned him to work in the “Gilman room” on October 19, 2000, it was not in accordance with his medical restrictions. He alleges that on March 19, 2002, he experienced a “toxic reaction” due to working in the Gilman room and he was taken away from work in an ambulance.
7He alleges that new restrictions were established in April 2002, namely “no exposure to coolants; no exposure to chemicals (specifically volatile organics). He has not returned to work since March 19, 2002. He also included with his Reply, a July 23, 2003 letter from his doctor indicating that he should not be exposed to coolants.
8He states that a January 2, 2013 decision from the Workplace Safety and Insurance Board (WSIB) supports his position that his assignment to the Gilman room was unsuitable due to his occupational illness.
9He alleges that he returned to the medical department at the respondent eight times from 2002 to 2007 “in hope of re-employment” and provided medical documentation in order to be able to return to work.
10He alleges that in 2007 he was “misled” into applying for Total and Permanent Disability benefits. He alleges that a representative of the respondent told him it would be beneficial to him, as among other things it would recognize his permanent injury and would avoid any reduction of the extended disability benefits he was receiving. He has also provided documentation indicating that he was in receipt of Long Term Disability benefits from an Insurance company at least as early as 2006. He alleges that he did not understand that the consequence of applying for Total and Permanent Disability benefits in 2007 would be to “sever [his] seniority” with the respondent. He asserts that he now believes he should not have applied for Total and Permanent Disability benefits because he was claiming that his injury was work related and was seeking benefits from the Workplace Safety and Insurance Board (WSIB). He also alleges that there were medically suitable jobs available at the respondent to which he could have returned.
11In its Response, in addition to seeking dismissal of the Application on the ground that the applicant had previously filed a complaint with the OHRC, the respondent submitted that the allegations are untimely, and it denies having discriminated against the applicant. It asserts that it accommodated the applicant and that in 2000 it determined that the only positions suitable for his restrictions were in the Gilman room, an environmentally controlled assembly area, closed off from the main plant area, and it also provided the applicant with a respirator. It submits that in April 2002, the applicant’s restrictions were modified by the addition of a requirement that he not be exposed to volatile organic chemicals. It asserts that it conducted extensive searches for suitable work, reviewing all job openings for the applicant until December 2007 when he elected to retire. It states that at that point, all job placement searches in respect of the applicant ceased.
12The respondent submits that the allegations in the Application are untimely and should be dismissed due to delay. It states that the allegations relate to events occurring more than one year before the Application was filed, whether the applicant is relying upon events that occurred before March 19, 2002 or whether he is relying upon events that occurred between March 2002 and his retirement in December, 2007. It submits that during the time period in question, the applicant has been able to advance a complaint to the OHRC and his claim and appeals with the WSIB and the Workplace Safety and Insurance Appeals Tribunal. It also submits that a delay of over 10 years or one of over 5 years is “presumptively prejudicial” and it also indicated actual prejudice to its ability to respond to the allegations.
13The respondent submits that it participated in a “without prejudice” meeting with the applicant on July 16, 2012, as he wished to discuss a letter from his doctor. It submits that the meeting was not a continuation of the accommodation process because he had been retired for over four years at that point. It submits that according to the doctor’s letter, “the same work restrictions continued to apply to the Applicant. Specifically, no exposure to volatile organic chemicals and no exposure to coolants”. It stated that the applicant’s physician’s letter indicated that the loading dock in the basement appeared to be a reasonable accommodation, but the respondent submits that that position had been evaluated by its medical department in 2003 and was found to be unsuitable for the applicant’s restrictions and that based on the new letter from the applicant’s doctor, it continued to be unsuitable. It also submits that its physician’s assessment of work in the plant’s offices was not likely to be suitable due to possible exposure. It also asserts that it did not consider the work of forklift operator suitable to the applicant’s restrictions as operators are required to work in areas where they would be exposed to coolant and volatile organic chemicals. It also notes that since the applicant retired, it has decommissioned the Gilman room and janitorial services have been outsourced.
14In his Reply, he alleges that in January of 2009, his doctor provided him with a note indicating that he could return to work on a “trial basis” and that he took this note to his union representative in order to obtain his assistance. He alleges that the union representative “realized that I had been given Total and Permanent Disability retirement” and explained to him the consequences of his 2007 decision to apply for Total Permanent Disability benefits. He alleges that he was confused and also that after speaking with other union representatives he believed the union could “return [him] to extended disability”, but that if he was not successful in his WSIB claim, “then Permanent Disability is what I should be on”. In his Reply, the applicant also included a February 6, 2009 letter from the union representative to his doctor advising as follows:
I am writing to you as the representative of Jerome Brettle with respect to his WSIB Claims. Please be advised that Jerome signed off on a General Motors Total and Permanent Disability pension meaning he is now retired from General Motors. This makes it impossible to return to the plant in order to monitor his respiratory response to exposure to machining fluids.
15He alleges that the “final incident” of discrimination occurred on July 16, 2012 when he met with representatives of the respondent, including its physician, and his union. He alleges that the reason for the meeting was to arrange a job for him which would be in accordance with his medical restrictions, but that the respondent refused any job suggested, citing possible exposure to substances which would be contrary to his restrictions. He also alleges that at the meeting, the respondent’s plant physician stated that any jobs to which he could have returned “were ‘now gone’”. He alleges that at the meeting he learned that janitorial services were outsourced by the respondent in 2009 and he concludes that he could have worked as a janitor from 2002 to 2009. He also alleges that the plant physician had not supported his receipt of Total and Permanent Disability benefits and that the physician who did support his application for receipt of those benefits had not examined him.
16With his Application, he submitted a May 22, 2012 letter from his physician which states that he should not have exposure to coolants or to volatile organic compounds. The physician states that he writes to “revise” some of the guidelines for exposure and goes on to say that the applicant should have “no exposure” to coolants and should be “at the greatest possible distance from coolants or any machines requiring coolants”. It states that though the recommended distance between the applicant and coolants had previously be “artificially set at 150 feet…the greater the distance the better as even small amounts could cause difficulty”. The letter also states that “an office environment with a sufficient physical divider between him and coolant exposures would be optimal”. The letter further states that he should not be exposed to volatile organic chemicals and that these are “for the most part in his occupation, released during the manufacturing process”. The letter states that they are “ubiquitous but he is able to tolerate tiny amounts which are normally present in normal non-manufacturing environments”. The physician also states that the description he has received of the loading dock basement is “likely a situation ….he would be able to tolerate”.
17In his December 20, 2007 complaint to the OHRC, he recounted his attempts to be accommodated at work in 2001 and 2002. He alleged that ultimately, on March 19, 2002, he left the workplace by ambulance because of a toxic reaction. He alleged that his placement in the Gilman room was a violation of the Code due to the chemical exposure he experienced. He indicated that he was seeking a remedy which would see him returned to an accommodated job at the respondent, along with financial compensation for financial losses he experienced since March 19, 2002. He stated that he would like to be “returned the pension time that I have lost since March 23, 2003”. He also indicates that he had tried to arrange a return to work for himself by meeting with the respondent’s plant physician “numerous times for renewal of restrictions”, but was told that no job was available.
18On April 30, 2008, the OHRC wrote as follows:
The Commission has exercised its discretion under subsection 34(1)(d) of the Code and has decided not to deal with this complaint which alleges discrimination in employment because of disability for the following reasons:
The evidence indicates that the events giving rise to this complaint occurred on or before March 19, 2002.
The complainant contacted with the Commission to file this complaint on November 20, 2007, some five years and eight months after the last incident giving rise to his complaint. The complaint was filed on December 21, 2007.
The complainant has indicated that the reason for his delay was because of his mental impairment, caused by the toxic work environment in which he worked prior to 2002. The evidence indicates, however, that the complainant has been able to file a claim under the Workplace Safety and Insurance Act (WSIA).
The Commission is not satisfied that the delay was incurred in good faith.
For the above-reasons, the Commission considers that this complaint falls within the provisions of subsection 34(1) (d) of the Code.
19The respondent submits that the applicant was employed at one of its facilities until December 1, 2007 when he elected to retire and receive total and permanent disability pension benefits. It denies having discriminated against him and also submits that the Application is barred under section 53(8) of the Code because it was not made under the Code’s Transitional Provisions and is the same or substantially the same as his prior complaint to the OHRC. In such circumstances, the Tribunal has no jurisdiction to hear the Application. It submits that subsection 58(8) applies even where the OHRC exercised its discretion to decide not to deal with the complaint, and it cites Nguyen v. Ontario (Health and Long Term Care), 2009 HRTO 355 at paragraph 26 and DeSousa v. Toronto (City), 2010 HRTO 2209 at paragraph 8.
20The respondent submits that factors supporting a conclusion that the Application is based on the same or substantially the same subject matter as a previous application include whether the Application: concerns the same type of allegations of discrimination based on disability and failure to accommodate; is in reference to a similar period of time as against the respondent; is based on the same or similar allegations or events; relies on the same documents; concerns the same factual history and overlapping circumstances, and; contains nothing new, separate or distinct from the previous allegations. The respondent submits that this Application is based on the same facts and events as grounded the applicant’s 2007 complaint to the OHRC.
21The respondent notes that the applicant relies on the meeting of July 16, 2012 and submits that since the applicant retired on December 1, 2007, its duty to accommodate him by searching for positions which were within his restrictions was extinguished and as such, there can be no new events to ground an allegation that it failed in its duty to accommodate him. It also submits that when the applicant filed his complaint to the OHRC in 2007, he had retired and therefore this Application can contain no new events to ground an allegation by the applicant that it failed in its duty to accommodate him.
22With respect to the July 16, 2012 meeting, the respondent submits that the May 22, 2012 letter from the applicant’s doctor demonstrates that the Applicant’s restrictions are unchanged and that despite there being no evidence of any job openings at the respondent, and despite the fact he had been retired for over four years, the applicant hoped the meeting would result in his re-hire. It submits that the fact it did not re-hire the applicant after the July 16, 2012 meeting cannot underpin an allegation that it failed to accommodate him. It submits that by that time, it no longer had a duty to accommodate him by finding him suitable employment.
23With respect to the finding of the WSIB that the applicant’s assignment to the Gilman room was not suitable in view of his medical restrictions, the respondent submits that this is not a new event upon which to ground an allegation of discrimination, nor would it be determinative of whether the respondent had fulfilled its obligation under the Code.
24The applicant submits that this Application and his earlier complaint to the OHRC are not based on the same facts. He submits that the July 16, 2012 meeting did not form part of his complaint to the OHRC and he also submits that on August 24, 2011 he received further documentation establishing that his work in the Gilman room was not suitable for his medical restrictions, and that such documentation was not considered by the OHRC.
25The applicant made the following submissions in support of his assertion that his Application is not the same as the subject matter of his 2007 complaint to the OHRC and he also indicates that these submissions are in support of his assertion that his Application is timely:
He submits that the “series of events of this Application take place much later from 2011 to 2012”. He submits that as there were “newly discovered facts” at the July 2012 meeting and that those facts could not have been considered in the previous complaint to the OHRC. In particular, he relies upon his allegation that the respondent’s plant physician stated that the jobs to which he could have returned are now gone, and his conclusion that this means he could have returned to work at an earlier time. He also alleges that this statement is evidence of the respondent’s failure to accommodate him. He submits that as “discovery of this fat happened on July 16, 2012”, it “could not have been part of the Application submitted in 2007”.
The applicant also submits that he learned at the July 2012 meeting that the respondent’s plant physician had not supported his application for Total and Permanent Disability benefits in 2007 and that therefore he should have been working. He submits that he learned this for the first time at the July 2012 meeting and that therefore it is “a new event that is separate and distinct from the subject matter of the previous application”.
The applicant submits that the July 16, 2012 meeting was a “clear and new incidence” of the respondent’s “failure to accommodate my occupational disability”. He submits that because the respondent declined the suggestions for accommodated employment made by his doctor and union representatives, and made no suggestions of their own, the respondent did not “fulfil their duty to accommodate”.
Further, the applicant submits that at the July 16, 2012 meeting, there was discussion of his restriction regarding exposure to volatile organic compounds, which was a restriction first established on April 29, 2002 and therefore “could not have been part of the previous 2007 application, which ended March 19, 2007”. He also submits that documentation regarding the Gilman room which was only provided in August 2011 proves that he was unnecessarily exposed to substances which resulted in the restriction against exposure to volatile organic compounds.
26He submits that the above-noted doctor’s letter of May 22, 2012 indicated that he could tolerate work in an office environment where there would be sufficient physical separation between him and coolant exposures. Though he states that the May 22, 2012 letter included “revised restrictions” as it states that he could tolerate the tiny amount of coolant such as what would be associated with an office environment, he also submits that his doctor previously wrote approving him to work in an office environment on May 22, 2002, and March 17, 2003, and that these letters had been provided to the respondent. He also submits that he could perform work as a forklift operator but that the respondent has not made this possibility available to him. He includes a copy of a May 22, 2002 letter from his physician to the respondent’s plant physician, in which he asks “Is it at all possible to find him a desk job, after possibly having some retraining?”. The applicant also includes a copy of his physician’s March 17, 2003 letter which states that the applicant “is safe to return to work in an environment such as an office where he will not be exposed to a great quantity of volatile organic compounds”.
27The applicant disputes the respondent’s assertion that it reviewed all jobs for suitability for the applicant prior to his retirement in 2007, and submits that he could have performed certain janitorial work which was not offered to him.
28The applicant also disputes the respondent’s assertion that it would suffer prejudice if this Application were permitted to proceed.
29He submits that the OHRC “decided not to consider the complaint and therefore another proceeding has not appropriately dealt with the substance of this Application”. He also submits that his Application relates only to the fact that he received documents about the Gilman room in August 2011 and he had a meeting with the respondent on July 16, 2012. He submits that this Application is based on “new separate and distinct events from the previous complaint and is in reference to a completely different period of time”. He submits that he relies on “new facts and concerns”, and “new documentation”, again referencing the July 16, 2012 meeting and the documentation regarding the Gilman room.
30With respect to timeliness, the applicant submits that he has the right to “discuss other incidents of the same form of discrimination…so that a clearer and consistent description of the events can be provided”. He submits that the July 16, 2012 meeting was “a continuation of failure to accommodate”, and submits that as the respondent’s physician stated that he did not support the applicant’s 2007 application for Total and Permanent Disability benefits, the respondent should have provided him with accommodated work. He also submits that no one told him that he could have filed a human rights application after losing his job.
31The applicant also appears to assert that he has diminished cognitive ability and he regrets ever filing a complaint to the OHRC, as he now realizes that it was not going to be considered on its merits due to the fact that was not filed in accordance with the rules under the Code. He indicates that at the time he filed it, he had not understood this. He also asserts that it is not reasonable to expect him to have understood the consequences of applying for Total and Permanent Disability benefits in 2007 as he did not understand and was not provided with accurate information at the time. He also submits that he has consistently wanted to return to work at the respondent.
Previous Complaint to the OHRC
32At subsection 53(8), the Code states as follows:
No application, other than an application under subsection (3) or (5), may be made to the Tribunal if 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 Commission under the old Part IV.
33In his final submissions regarding the applicability of subsection 53(8), the applicant appears to indicate that he offers the allegations relating to events in 2001 and 2002 as background only, and that this Application relates to the July 2012 meeting and the Gilman room documentation he received in August 2011. I do note, however, that he has also submitted that as the OHRC decided not to consider his earlier complaint, he should be able to place it before the Tribunal for consideration. Examining the complaint filed to the OHRC indicates that the applicant has already made his complaint regarding what he considers to be the respondent’s failure to accommodate him and his placement in the Gilman room, an area he left on March 19, 2002. There is no substantive difference between that complaint and the allegations he states in this Application regarding his assignment to the Gilman room and his ultimate departure from that area on March 19, 2002. For clarity, therefore, I make the following determination: If the applicant seeks to have the Tribunal consider the question of whether the respondent discriminated against him by failing to accommodate him when it assigned him to work in the Gilman room, the Tribunal does not have jurisdiction to consider this allegation as it is the same or substantially the same as the subject-matter of the complaint he made to the OHRC in 2007.
DELAY
34Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:
(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.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
35Though in his Application, the applicant deals at some length with events from 2002 and earlier, in his submissions regarding the applicability of subsection 53(8), the applicant states that this Application relates to the documents he received in August 2011 regarding placement in the Gilman room and his July 16, 2012 meeting with the respondent. He submits that accordingly, his Application, filed July 15, 2013, is timely.
36The applicant asserts that it was the documentation he received in August 2011 which led to the ultimate determination in his WSIB claim that work in the Gilman room was unsuitable for his restrictions. Whether this is the case or not, the applicant’s receipt of this documentation is not a new incident of alleged discrimination. It does not revive, nor does it render timely, his allegation regarding the respondent’s failure to accommodate him by placing him in the Gilman room in 2002. As noted above, the Tribunal is without jurisdiction to consider that allegation due to subsection 53(8) of the Code. On its own, the receipt of the documentation is not the discovery of a new allegation, but at its highest is simply the discovery of evidence which he might have used to support his allegation that his assignment to the Gilman room was not accommodation of his medical restrictions.
37The applicant submits that the July 16, 2012 meeting was a continuation of the respondent’s failure to accommodate him at work, and he submits that his Application is therefore timely.
38In Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at paragraph 45 (ON SCDC), the court adopted the following test for a “continuing contravention” as applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 CHRR D/1885, at paragraph 19:
To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.
39Pursuant to s. 34(1)(b) of the Code, an application is considered timely if it is made within one year following the last incident in a “series of incidents”. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal noted at paragraph 41:
In accommodation situations, the Tribunal has held that it is not an ongoing incident of discrimination where an employer has made a particular decision about an applicant’s accommodation and the applicant tries repeatedly to have the employer reverse or change its position. See Hoblack v. St. Mary’s Cement, 2010 HRTO 1799 at para. 21 and Huo v. University of Western Ontario, 2012 HRTO 198 at para. 13. See also Heslin v. Univar Canada, 2010 HRTO 1885 at para. 6 pertaining to an applicant’s ongoing objection to the respondents’ decision to deny him sick benefits. On the other hand, where there is a material change and/or further information is provided, the employer’s continual denial to change its position may constitute a further alleged incident of discrimination. See Whyte v. Sudbury (City), 2011 HRTO 885 at paras. 10 to 12.
40In Hoblak v. St. Mary’s Cement, 2010 HRTO 1799, the Tribunal considered circumstances very similar to the circumstances of this Application. There, the applicant asked the respondent, his employer, for modified duties in October 1997 and continued to make that request up until May 30, 2006. He identified May 30, 2006, the last refusal by his employer, as the final incident of discrimination. The Tribunal found that there was no timely allegation and at paragraph 21 stated as follows:
The applicant’s allegations that he continued to contact the respondents about accommodating him with work at the Ready-Mix operation site and each time they refused are not new and separate contraventions of the Code. These are allegations of the continuing effects of the employer’s original position not to accommodate, that it reiterated each time. These allegations of continuing effects do not constitute further acts of discrimination beyond the alleged 1997 Code infringement and thus also were not brought within the one-year time frame required by the Code. As such, there was a delay within the meaning of section 34(1) in the filing of the Complaint underlying this Application.
41Similarly, in this Application, I find that the respondent’s failure to provide the applicant with accommodated work in the July 16, 2012 meeting was simply a continuing consequence of the position it took in 2002, namely that it could not provide him with work suitable for his medical restrictions. Though the applicant submits that the May 22, 2012 letter from his doctor indicated a revision to his restrictions, the letter indicates that his restrictions continued to be no exposure to coolants or volatile organic compounds. In fact, his physician repeats an assertion that office work would be acceptable, an assertion made and presented to the respondent earlier, in 2002 and 2003. There was no documentation presented to the respondent at the July 16, 2012 meeting to indicate that the applicant’s medical condition had improved, and the employer’s position had remained unchanged for a number of years. The alleged discriminatory event was the respondent’s failure to provide the applicant with work which accommodated his medical restrictions in 2002. The applicant continued to seek to have the same issue revisited but the respondent had already given their answer. The respondent met with him in 2012 and they reviewed essentially the same issues. There was nothing new in 2012 and the Application was not filed within one year of the alleged discriminatory incident. I also note, of course, that in this case, the initial alleged discriminatory incident is outside the jurisdiction of the Tribunal in any event, according to subsection 53(8) of the Code.
42In addition to the applicability of subsection 53(8), I have also considered that the commission declined to consider the applicant’s complaint in 2007 on the basis of delay. It cannot be that the applicant can now, several years later, revive untimely allegations because the parties attended a meeting 10 years after the alleged failure to accommodate him in 2002.
43Again, mindful of the fact that I have found that the central allegation in this Application is that the respondent failed to accommodate the applicant at work in 2002, an allegation which was previously the subject of a complaint to the OHRC, considering the question of timeliness of the Application, I have found that the Application was filed more than one year after the alleged incident of discrimination, and I do not find that the applicant has established a good faith reason for the delay in filing his Application. He makes submissions asserting diminished cognitive abilities, though these submissions appear to be related to his assertion that he did not appreciate the consequences of his decision to apply for Total Permanent Disability pension benefits. Further while he has indicated that no one advised him of his right to file an Application, I note that he previously filed a complaint to the OHRC. Additionally, he has actively pursued his WSIB claim over the course of many years, albeit with assistance. In these circumstances, I do not find that he has been able to demonstrate a good faith reason for the delay in filing his Application.
44As I have not found that the applicant has established a good faith reason for the delay in filing his Application, it is not necessary for me to address the respondent’s submissions regarding prejudice.
ORDER
45The Tribunal orders as follows:
The Application is dismissed.
Dated at Toronto, this 8th day of August, 2014.
“Signed by”
Maureen Doyle
Vice-chair