HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Arthur Walsh
Applicant
-and-
General Motors of Canada Company
Respondent
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Walsh v. General Motors of Canada Company
APPEARANCES
Arthur Walsh, Applicant
Self-represented
General Motors of Canada Company, Respondent
David Bannon, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.
2By Case Assessment Direction dated May 10, 2016, the Tribunal directed that a preliminary hearing be held to determine whether the Application should be dismissed for delay and/or as an abuse of process. The preliminary hearing took place on October 13, 2016.
The Facts
3The applicant is an employee of the respondent. He was off work from July 31, 2012 to July or August 2015.
4The applicant filed an earlier application with the Tribunal on December 2, 2013 File 2013-16218-I (the “2013 Application”). In the 2013 Application, the applicant alleged that the respondent failed to accommodate his disability. The applicant withdrew the 2013 Application on May 8, 2014.
5The applicant filed this Application on January 4, 2016 (the “2016 Application”). The applicant filed voluminous material, including his 2013 Application and documentation relevant to that Application. He also filed documentation that post-dated the withdrawal of the 2013 Application.
6In the 2016 Application, the applicant stated the last event was August 31, 2012. It was for this reason that the respondent sought a dismissal of the 2016 Application because it was untimely.
Analysis
7I agree with the respondent that the applicant cannot re-litigate the 2013 Application for two reasons. One, the applicant withdrew this Application. It would be an abuse of the Tribunal’s process to allow the applicant to re-litigate the 2013 Application.
8Two, any allegations of a failure to accommodate in 2012 or before are untimely. Section 34 of the Code requires an application to be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of events.
9The issue before me is whether all of the allegations in the 2016 Application are untimely. Although the applicant stated the last event was in 2012, he attached memoranda to the Tribunal in November and December 2015 where he complains that the respondent failed to provide him with proper accommodation upon his return to work. In his November 28, 2015 memorandum, the applicant states:
Just look at now, I am on job repetitive bending, and my doctors state no bending…
… now here I am back at work without proper accommodation ….
10In the Application at question 7, the applicant states:
I felt I had to withdraw previous app (application) to get back to work, and still not being treated fairly be (because of) disability
11The applicant returned to work in July or August 2015. He filed his 2016 Application on January 4, 2016. In the 2016 Application, he complains that he has not been accommodated upon his return to work. That allegation is timely.
12The 2016 Applicant may proceed on the allegation that the respondent failed to accommodate the applicant’s disability upon his return to work in July or August 2015.
Order
13The applicant is directed to file an amended Application setting out the particulars (details) of how the respondent failed to accommodate his disability upon his return to work in July or August 2015. The amended Application must be filed within 30 days of the date of this Interim Decision. The applicant is directed to not file any documentation, such as medical notes or reports, with the amended Application. Documentation is exchanged only after a hearing is scheduled.
14The respondent must file an amended Response within 30 days of receiving the amended Application.
15As the parties have agreed to mediate this matter, a mediation will be scheduled in due course.
Dated at Toronto, this 14th day of October, 2016.
“Signed By”
Jennifer Scott
Vice-chair