Human Rights Tribunal of Ontario
Between:
Darryl Norman Applicant
-and-
Mahle Filter Systems Canada ULC and Unifor (formerly CAW), Local 1941 Respondents
Decision
Adjudicator: Mark Hart Date: October 14, 2014 Citation: 2014 HRTO 1532 Indexed as: Norman v. Mahle Filter Systems Canada ULC
Appearances
Darryl Norman, Applicant Self-represented
Mahle Filter Systems Canada ULC, Respondent Stephanie Ramsay, Counsel
Unifor (formerly CAW), Local 1941, Respondent Mike Byrne, Representative
1This is an Application filed September 3, 2013 alleging discrimination with respect to employment and membership in a vocational association because of disability, age and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2By Case Assessment Direction dated April 11, 2014, the Tribunal directed that a summary hearing be held by teleconference to determine whether the Application should be dismissed for delay, on the basis that there is no reasonable prospect that it will succeed, or on the basis that the substance of the Application already has been appropriately dealt with in another proceeding.
3The summary hearing was held on July 16, 2014 and I heard oral submissions from all parties on the identified issues. Subsequent to the summary hearing, the applicant filed a Request for Order During Proceedings (“Request”) seeking disclosure of certain documents from the respondent Mahle Filter Systems Canada ULC (“Mahle”) on August 5, 2014. I will consider this Request in the context of the issues to be addressed at the summary hearing, and whether any further disclosure is required in order to determine those issues.
Background
4The respondent Mahle operates an auto parts production facility in Tilbury, which it acquired from Siemens. The applicant has worked at this facility since 1993, first for Siemens and then for Mahle. In 2007, the applicant was classified as a production operator, but also, since the commencement of his employment in 1993, held a supplementary position as an injection technician. Between October 31, 2007 and December 14, 2007, the applicant worked subject to medical restrictions. In December 2007, Mahle told the applicant that his restrictions could no longer be accommodated. The applicant remained off work until August 2008, when he returned to work as a production operator. However, from August 2008 onwards, the applicant was no longer allowed by Mahle to work in his supplementary position as an injection technician.
5The applicant is represented for the purposes of labour relations matters by the respondent Unifor (formerly CAW), Local 1941 (“union”). The applicant, through his union, filed two grievances arising out of these events: the first grievance was dated January 14, 2008 and challenged Mahle’s decision to hold the applicant off work from December 2007 to August 2008; the second grievance was dated August 26, 2008 and challenged Mahle’s decision to no longer allow the applicant to work in his supplementary position as an injection technician.
6The two grievances proceeded to arbitration before Arbitrator Crljenica, who released his decision on January 22, 2011 (the decision mistakenly is dated January 22, 2010). Arbitrator Crljenica allowed the first grievance in part on the basis that Mahle had not satisfied him that it had done enough to satisfy its duty to accommodate the applicant under the Code and the collective agreement, and awarded the applicant compensation for lost earnings and benefits from the first day of work following the Christmas shutdown in 2007 until March 29, 2008, when he found that the applicant ought to have returned to work on a work hardening program.
7Arbitrator Crljenica dismissed the applicant’s second grievance