HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N:
Phyllis Foster

2020 HRTO 17 (CanLII)

Applicant

-and-

FCA Canada Inc. and Unifor Local 1285

Respondents

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INTERIM DECISION
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Adjudicator: Josée Bouchard

Date: January 10, 2020

File Number: 2017-29754-I

Citation: 2020 HRTO 17

Indexed as: Foster v. FCA Canada Inc.

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 APPEARANCES

)
Phyllis Foster, Applicant ) Sarah Bauer and Susan Toth,

2020 HRTO 17 (CanLII)

) Counsel
)

)
FCA Canada Inc., Respondent ) Clifford J. Hart, Counsel
)
)

)
Unifor Local 1285, Respondent ) Anthony Dale, Counsel
)
)

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BACKGROUND

[1] The respondent FCA Canada Inc. (“FCA Canada”) operates a number of
assembly and/or manufacturing plants or other facilities in Ontario, including the
Brampton Assembly Plant where the applicant worked. The applicant commenced

2020 HRTO 17 (CanLII)

employment with FCA Canada as an hourly production employee on July 1, 1987.
Effective September 2009, she took on the Employee and Family Assistance Program
Representative (“EFAP Representative position”) role. The applicant retired effective
May 31, 2017.

[2] At all material times, the applicant was a member of, and was represented by,
Unifor Local 1285 (“the Union”). As a bargaining unit employee, the terms and
conditions of the applicant’s employment were governed by a collective agreement
between FCA Canada and the Union. Among other things, the collective agreement
sets out a number of job classifications and corresponding pay rates.

[3] The EFAP Representative position is one of 76 Union representative positions

recognized in the collective agreement. It is an appointed position. In her Application,
the applicant stated that the EFAP Representative position entails assisting employees
and their family members with mental health and addiction concerns.

[4] At issue is the applicant’s pay schedule compared to that of male colleagues.
The applicant argues that she was not given the same financial pay as her counterparts
or the previous person who used to do the job. The position requires a university
education paid for by the respondent once the person is appointed to the position. The
applicant submits that she completed the educational requirement for an addiction
counselor in April 2012. She also attained her certification and was registered with the
Canadian Addiction Counselor Certification Federation.

[5] The applicant submits that she was told when she was appointed that the pay
discrepancy had to be renegotiated during contract negotiations. She held the position
during three contract negotiations, the latest negotiation being in September 2016, and

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each time both FCA Canada and the Union decided not to provide her with equalization
pay.

[6] The applicant filed an Application on September 25, 2017 against FCA Canada
and the Union alleging discrimination with respect to employment because of sex

2020 HRTO 17 (CanLII)

contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[7] By Case Assessment Direction dated January 18, 2019, the Tribunal indicated
that it would hold a preliminary hearing to decide whether all or part of the Application
should be dismissed for delay. In addition the Tribunal directed the parties to be
prepared to address the question of the applicability of Garrie v. Janus Joan Inc., 2012
HRTO 1955 (“Garrie”) to this matter.

[8] The Tribunal held the preliminary hearing on November 15, 2019.

SECTION 34(1) OF THE CODE

[9] Section 34 of the Code states:

34.(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 incidents to which the application relates;
or

(b) if there was 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.

[10] The key issue in this matter is whether the alleged incident of discrimination (the
wage differential) was a single act of alleged discrimination with continuing effects or
whether it constituted an ongoing series of incidents within the meaning of section 34(1)
of the Code.

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PARTIES’ SUBMISSIONS

2020 HRTO 17 (CanLII)

The Applicant’s Position

[11] The applicant argues that in this case, there is a series of incidents. The
applicant submits that Garrie, above, applies a four part test to the Tribunal’s
determination of whether or not allegations of discrimination are timely because they
relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the

Application relates?
b. Do the allegations relate to a series of separate and independent
incidents of discrimination or do they relate to the continuing effect of a
single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it
part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?

See also Brooks v. Vancouver Career College (Burnaby) o/a CDI College, 2018 HRTO
517, which applies the findings in Garrie, above.

[12] The applicant submits that the last alleged incident of discrimination is the
applicant’s last pay cheque dated June 15, 2017 for the period ending on June 11,
2017. The Application was filed on September 25, 2017, within one year of the last
incident and as such is timely.

[13] The applicant is of the view that there is no reason not to apply Garrie, above, to
the facts of this case. The Tribunal found in Garrie, above, that the ongoing practice of
paying the applicant less than other employees who did not have developmental
disabilities was an ongoing series of allegedly discriminatory payments for work
performed on a series of occasions, continuing up to a date less than one year prior to
the filing of the Application. It was not a single act of alleged discrimination.

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[14] Applying Garrie to the facts of this case, the ongoing practice of allegedly paying
the applicant less than her male counterparts was an ongoing series of allegedly
discriminatory payments for work performed on a series of occasions, continuing up to
the date of her last pay cheque.

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[15] The applicant argues that she was concerned about reprisal if she filed an
Application while she remained an employee with FCA Canada.

The Respondents’ Arguments

[16] FCA Canada argues that the facts of this case are not similar to Garrie, above, or
other cases relied upon by the applicant. FCA Canada maintains that this is not a case
of a series of discreet incidents, it is a case of a single incident that occurred in 2009 or
2015 and its ongoing effects.

[17] FCA Canada submits that the applicant was a production employee when she
was first hired and she was paid accordingly pursuant to the collective agreement.
When she was appointed to the EFAP Representative position, her salary did not
change. She took with her the production employee rate. The applicant’s predecessor
also took the rate he was at before his appointment to the EFAP Representative
position.

[18] FCA Canada maintains that the rate of pay for each Union representative
position, including the EFAP Representative position, is based only on the individual
employee’s prior job classification. It is not reassessed for any particular employee. The
respondent recognizes that there are exceptions to the rule for some positions that are
the subject of specific negotiations between FCA Canada and the Union, resulting in
Memoranda of Understanding or Unpublished Letters. For example, the Ergonomics
Representative and the Plant Chairperson are paid based on separately negotiated
rates.

[19] FCA Canada acknowledges that in 2012, the applicant completed a certification.
She continued to receive the rate she was being paid prior to being appointed. The

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respondent notes that the applicant raised the issue of her pay level with the Union and
representatives of FCA Canada on a number of occasions but her rate of pay was never
increased. There were three rounds of bargaining after she was appointed to the
position.

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[20] FCA Canada argues that this case is distinct from Garrie, above, in a number of
ways:

a. In Garrie, the applicant’s parents were aware of the differential but

never raised it. In this case, the applicant raised the issue a number of
times but did not file an Application.
b. There was a broader systemic policy issue in Garrie, as a number of
employees would be impacted by the Garrie decision. In this case, there is
one applicant who was aware in 2009 of the alleged differential and
nothing changed after that.
c. In Garrie, the Tribunal held that one must consider whether fresh steps
were taken by the parties. In this case, there were no fresh steps taken.
Getting paid is not sufficient to represent a fresh step.
d. In Garrie, the Tribunal noted that a respondent who maintains a
decision it has already taken is not a fresh step, nor does it give rise to a
separate breach to the Code. FCA Canada argues that it took the decision
in 2009 and never changed it.

[21] FCA Canada also distinguishes Brooks, above, to the facts of this case. It argues
that in Brooks there were a number of new incidents that created a series of incidents.
For example, Ms. Brooks took leave of absence, when she returned, a system was
implemented to allow Ms. Brooks to maintain the same base rate of pay but to increase
her reported hours, there was then an agreement to increase Ms. Brooks’ rate of pay
when she moved from one work location to another but the director of the new location
reneged on this agreement. The Tribunal applied Garrie, above, and found that the
aspect of the pay rate allegations extended back to when the arrangement was first put
in place in August 2013 and continued until April 30, 2015, an incident that was timely.

[22] FCA Canada argues that, contrary to Brooks, above, nothing happened to the
applicant after her appointment in 2009. Her salary never changed and as such there
cannot be a series of incidents.

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[23] The Union adopts FCA Canada’s arguments. It notes that it is not the applicant’s
employer and when the applicant was appointed to the EFAP Representative position
as a Union representative, the applicant continued to be an employee paid by FCA
Canada. The Union also argues that in the collective bargaining negotiations of 2009,

2020 HRTO 17 (CanLII)

2012 and 2016, the applicant raised the pay inequity issue with the Union and FCA
Canada but was unsuccessful.

ANALYSIS AND DECISION

[24] I find the decisions in Garrie, above, and Brooks, above, applicable to this case.

[25] In my view, the alleged ongoing wage differential between the applicant and her
male counterparts and colleagues was a series of incidents within the meaning of
the Code. It was an ongoing series of allegedly discriminatory payments for work
performed on a series of occasions, continuing up to a date less than one year prior to
the filing of the Application. I do not agree with the respondents that the wage was set in
2009 and nothing happened or changed after that. The parties acknowledged that the
applicant unsuccessfully raised this issue often. The respondents acknowledged that
other Union representative positions were paid a different salary than what was in the
collective agreement because of independent negotiations. There was no indication that
the Union and FCA Canada could not have negotiated a separate independent
agreement for the applicant. As such, every time the applicant was paid, it was in my
view a potentially discriminatory event that formed part of a series of incidents. The last
incident in the series, which occurred on June 15, 2017, was timely as the Application
was filed some three months later.

ORDER

[26] For all of the foregoing reasons, the Tribunal orders that the respondents’
request that the Application be dismissed in its entirety as untimely is dismissed. The
Application will proceed for determination at a hearing on the merits.

Dated at Toronto, this 10th day of January, 2020.

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“Signed by”

__________________________________
Josée Bouchard
Vice-chair

2020 HRTO 17 (CanLII)