Horton v. Niagara (Regional Municipality), 1987 CanLII 8548

Horton v. Niagara (Regional Municipality)

1987-10-21

Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE

Christine Horton

Complainant

v.

The Regional Municipality of Niagara

and

E. P. Odell and T. Orvidas

Respondents

Date of Complaint:

November, 1984

Date of Decision:

October 21, 1987

Before:

W. Gunther Plaut

Appearances by:

M. M. Fleishman, Counsel for Christine Horton and the Ontario Human Rights Commission

M. J. Daniel, Counsel for the Regional Municipality of Niagara

DISABILITY — employment terminated on the basis of hypertension and obesity — DISCRIMINATION — mixed motivation — EMPLOYMENT — protection from discrimination for probationary employee

Summary: The Board of Inquiry finds that Christine Horton was discriminated against because of a handicap when her probationary employment as a health care aide at Sunset Haven was terminated.

Ms. Horton is obese and suffers from hypertension. When she was dismissed she was informed orally and in writing that the reasons for her dismissal were inadequate job performance, absenteeism, and an unsatisfactory medical record.

The Board of Inquiry declines to rule on whether obesity is a handicap within the meaning of the Ontario Human Rights Code but finds that hypertension is.

The Board rejects the employer's submission that Ms. Horton's handicap was not one of the reasons for her dismissal, and relies on the respondent's own evidence that Ms. Horton was told that her medical condition was one of the reasons.

The Board orders the Municipality of Niagara and Ms. Odell and Mr. Orvidas to pay Ms. Horton $2032.80 in compensation for wages lost, $750 in compensation for the humiliation suffered and $862.66 in interest. The total award is $3,645.46.

1The background of the case may be summarized briefly as follows: Ms. Christine Horton, after obtaining her certificate as a health care aide in 1982 and having held several jobs, was engaged by Sunset Haven, a facility owned and operated by the Regional Municipality of Niagara (hereafter called "the municipality"). She began a two months' probationary period in September 1984 and toward the end of that period, on November 16, was informed that she would not be retained for permanent employment. This termination of her probation and the refusal to employ her permanently¹ came as a great surprise to Ms. Horton who had no inkling that she would not keep on working. Upon inquiring why such a decision was made she was told by Ms. Edna Pauline Odell, director of nurses at Sunset Haven, that there were three reasons:

Ӣ one, her work performance;

Ӣ two, her excessive absences during the probationary period;

Ӣ and three, her medical record. (In the course of the hearings this was understood to mean Ms. Horton's obesity and hypertension.)

2Ms. Horton vigorously contested the decision and requested to see the administrator of Sunset Haven, Mr. Tony Orvidas. When he saw her a few days later, he confirmed Ms. Odell's decision. Subsequently Ms. Horton launched a complaint with the Ontario Human Rights Com-mission, claiming that she had been discriminated against because of her handicap, viz., her obesity and her hypertension.

3In this instance the question whether the Ontario Human Rights Code (hereafter referred to as "the Code") has been breached turns out to be primarily one of legal interpretation rather than of fact. The question that needs to be considered first and foremost is the following:

Since it is uncontradicted that Ms. Horton was obese and suffered from hypertension, we must ask: Are these conditions covered by section 9(1)(b)(i) of the Code?

If the answer is No, then the Code was not breached and this Board lacks further jurisdiction. If, however, the answer is positive, then — and only then — will certain questions of fact arise:

1. Has the Commission, which carried the complaint, shown that Ms. Horton's handicap was a contributory cause of her failure to be employed?

2. Did the handicap interfere with her ability to perform her duties adequately?

If question (1) is answered positively and question (2) negatively, then it can be further asked:

3. What damages did Ms. Horton suffer and how is she to be recompensed?

Claims Advanced by the Parties:

4The Commission claims that obesity and hypertension are indeed handicaps in the meaning of the law; the respondent denies this.

The Commission claims that the handicaps were a contributory cause for Ms. Horton's failure to be employed; the respondent denies this.

Both Commission and respondent agree that Ms. Horton's obesity and hypertension did not interfere with her ability to perform her job.

Respondent claims that Ms. Horton's work performance was unsatisfactory and that neither her obesity nor her hypertension played any role in the decision to dismiss or further employ her.

Based on the foregoing the Commission requests special and general damages; respondent holds that there is no cause to award either special or general damages since the Code was not breached in any way.

I. Are Obesity and Hypertension Covered by the Code?

5Section 4(1) states that "every person has a right to equal treatment with respect to employment without discrimination because of . . . .handicap" (which is one of the grounds noted among others.)

6The meaning of the phrase "because of . . . handicap" is defined in section 9(1)(b). It says

. . . that the person has or has had or is believed to have or have had,

(i) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness . . .

The paragraph goes on to quote further examples "without limiting the generality of the foregoing."

7This addition makes it possible to consider which other forms of disability are covered by the law. Until now, however, the applicability of either obesity or hypertension has not been adjudicated under the Ontario Code, although both conditions have received attention elsewhere.

8Commission counsel argued that the key phrase in the Ontario Code was that Ms. Horton was "believed to have or have had" a disability. According to counsel, this means that a disability can be either real or perceived, and that, therefore, if the employer perceived that the complainant had a handicap, and discriminated on the basis of that perception, he violated the Code, whether or not the imagined handicap would otherwise have fallen within the Code's definition of a handicap.

9On the basis of this reasoning counsel argued further that the subsequent qualification of the Code, that the disability must be "caused by bodily injury, birth defect or illness," was applicable only to real and not to imagined disabilities. Consequently, since no one had contested that Ms. Horton was physically able to do the required work and the disability was only imaginary, one could not possibly qualify this imaginary handicap as being "caused by bodily injury, birth defect or illness."

10In support of this position, which appears to be a novel interpretation of the Code, the Commission said that:

[It] doesn't make sense that an unreal handicap be caused by bodily injury, birth defect or illness and there's a canon of statutory interpretation that the section must be read to avoid any absurdity. So, it's the Commission's submission to you that causal connection need not be made where there is a perceived handicap at issue. [Emphasis added; Hearing Transcript, arguments, pp. 8–9].

I respectfully disagree with this conclusion by learned counsel. My reading of the Code causes me to deny the validity of his argument.

11Surely, if one were to hold that a person who is actually suffering from a non-covered disability is excluded from the meaning of the section, it would be illogical to include the disability as a covered ground if it is only believed to exist but is not real. If obesity and hypertension are indeed disabilities covered by the law, then they can become grounds for a complaint whether the person has these disabilities or is merely believed to have them. But if they are disabilities not covered by the qualifications alluded to, then they are excluded from the section whether they are real or imagined.

12I therefore read section 9(1)(b)(i) as a logical and syntactical unit, which means that the qualification "caused by bodily injury, birth defect or illness" applies to all disabilities, whether a person has or is believed to have them. Had it been the intention of the law to exclude the latter it would surely not have included them in the main phrase but would have given them a special, exclusionary mention.

13I must therefore conclude that the qualifications cover both actual and imaginary disabilities and that it is the intent of the law to protect a person who has or is believed to have certain defined handicaps from unequal treatment. At the same time it follows that the disabilities on which the complaint is based must fit the requirements of the section under discussion which are that obesity and hypertension must be shown to exist because of bodily injury, birth defects or illness.

14This conclusion is supported by decision reached by federal human rights tribunals. These cases considered complaints made when the relevant handicap provisions of federal human rights legislation was, for our purposes, virtually the same as Ontario's handicap provisions. Hence the reasoning of those cases is instructive for the matter at hand.

15Perceived handicap was considered in Foucault v. Canadian National Railways (1981), 1981 CanLII 4288 (CHRT), 2 C.H.R.R. D/475. The complainant had a back injury which was treated by surgery and was dismissed by the CNR on the grounds that he was "medically unfit for duty." After the dismissed employee laid a complaint of discrimination on the basis of handicap, the CNR argued in a preliminary hearing that the complainant had no case because there was no evidence that the complainant actually had a handicap (since the corrective surgery had been successful). The federal tribunal held it to be enough that the employer perceived the complainant to have had a handicap and that therefore the hearing should proceed. As long as the employer believed that the employee had a handicap which, if the perception was correct would really be a handicap, the case should proceed. Similarly, in the case for our consideration, this vital element required by the Code must be shown to be present, namely, obesity and hypertension must be shown to be handicaps.²

16Respondent counsel argued that these two conditions are not covered by the Code and based himself on a decision under Quebec law. Under that law (S.Q. 1978, c. 7, s. 1(g)) the definition of a handicapped person is:

. . . a person limited in the performance of normal activities who is suffering, significantly and permanently, from a physical or mental deficiency . . .

17In Commission des droits de la personne du Québec c. Heroux et al. (1981), 1981 CanLII 4360 (QC PROVCT), 2 C.H.R.R. D/388 the tribunal held that an obese person who claims that he is not prevented by his condition from doing his job adequately cannot claim that he has a handicap.³ Respondent counsel, basing himself on this decision, argued that in like fashion obesity (and similarly, hypertension) should not be considered a handicap under Ontario law.

18In considering these matters I found it necessary to distinguish between the Commission's claims that (1) obesity and (2) hypertension constitute a handicap in the meaning of the law.

(1) OBESITY

19In so ruling I do not take the position that the Quebec precedent in the Heroux case mentioned above applies to the Ontario Code. The latter is drawn differently. On the one hand it is narrower in that it introduces the qualifications discussed, but much wider in that it applies to both actual and imagined handicaps, while the Quebec Code lacks any mention of other persons' perceptions in determining whether the Code has been breached. Further, the Quebec Code excludes from the definition of handicap a condition which can be shown not to affect a person's work in the circumstances required, while the Ontario Code defines handicap independently from the person's ability to perform his or her job. For this reason I would find the Quebec decision to be non-applicable to the Ontario Code.

20The question then is: Are the qualifications of section 9(1)(b) met in which case obesity may be considered a handicap in the meaning of the Code?

However, no medical expert was called to testify whether Ms. Horton's obesity was or was not caused by bodily injury, birth defect or illness. Respondent counsel properly argued that I could not rule on obesity in the absence of medical evidence (Hearing transcript, Arguments, p. 31). While a leading medical textbook states that obesity may have genetic origins (in which case it would be covered by the Code), I do not have enough information before me to render an informed judgment on whether Ms. Horton's obesity was or was not caused by birth defect or illness (the matter of bodily injury not having arisen). I must therefore leave this question open, especially so since it has not been raised previously before an Ontario board of inquiry. The onus for proving that Ms. Horton's condition is to be considered a handicap in the meaning of the Code falls on the Commission, and this onus has not been discharged.

(2) HYPERTENSION

21Respondent counsel held that hypertension, like obesity, was inapplicable to the Code. He contested the Commission's position that hypertension per se fitted the Code because here too, he argued, medical evidence was lacking (Hearing Transcript, loc. cit.), and therefore he equated hypertension and obesity.

22However, in the applicability of the Code there is an important difference between the two conditions. We do not know whether Ms. Horton's obesity was caused by bodily injury, birth defect or illness. However, there is a general understanding that the condition of hypertension fits the category of illness (though conceivably it could also be a birth defect). Hence, while for the applicability of the Code to obesity I require medical evidence, which was not introduced, I require no such evidence for the condition of hypertension, because both in common understanding and previous jurisprudence hypertension is considered an illness. Significantly, while respondent counsel considered obesity to be self-induced, and therefore, by implication, not genetic in nature, he raised no such argument regarding Ms. Horton's elevated blood pressure.

23The issue of considering hypertension a handicap arose in the case of Wamboldt v. Dept. of National Defence (1983), 1983 CanLII 4695 (CHRT), 4 C.H.R.R. D/1479 before a federal human rights tribunal, under the Canadian Human Rights Act. The federal legislation which applied to the case closely parallels the Ontario Code in that the same causative qualifications of injury or birth defect or illness have to be met. The patient suffered from hypertension along with colitis and chronic duodenal ulcer disease and the tribunal (at para. 12654) accepted these conditions as disabilities covered by the Act.

24The very use of the term "ulcer disease" shows that the tribunal here spoke of illnesses. I have no reason to believe that the Ontario Code employs the word "illness" differently from the Canadian Human Rights Act or in any way other than its common usage.

25I therefore hold that hypertension must be considered an illness in the meaning of the Ontario Human Rights Code, section 9(1)(b)(i) as well, and that in this respect medical evidence was not required. (It would have been required had its extent and effect become an issue in the present case, which they did not.) It is enough to establish that the condition existed and that as an existing condition it fits the legal definition of the Code.

26To sum up the jurisdictional considerations:

I make no ruling regarding obesity as a covered ground under the Code, but I hold that hypertension is a covered ground. Since the complaint before me states that Ms. Horton's hypertension was one factor in her failure to secure employment the complaint falls under the Code and can therefore be adjudicated by this Board.

II Was the Handicap a Contributory Element in the Refusal to Employ Ms. Horton Permanently?

27The answer to this question touches on both the facts of the case and on questions of law.

1. UNCONTRADICTED FACTS

28Ms. Horton suffered from hypertension. While the exact extent of her condition was not presented to me, the fact that, by her own testimony, she suffered from this condition was uncontradicted and was apparently supported by the medical report in the possession of the respondent. This report was not introduced as evidence. However, according to Ms. Joyce Slater of the personnel department who informed Ms. Odell of the report, it was serious enough for Ms. Slater to recommend that Ms. Horton not be engaged permanently. I must conclude that the conditions which caused her to make this recommendation were Ms. Horton's obesity and hypertension for no other abnormal medical conditions were led in argument or testimony.

2. FACTS IN DOUBT

29The Commission claimed that the Code was breached inasmuch as Ms. Horton's employer was aware of her medical condition and mentioned it as a factor in refusing to engage her permanently, both at the time of her termination interview and in her subsequent, confirming letter.

30Respondent did not contest that Ms. Horton's medical condition was mentioned both at the time of her termination and in the subsequent correspondence. It did hold that Ms. Horton's medical condition played no role in the refusal to employ her permanently. Rather, this refusal was said to be caused by her unsatisfactory work performance and her excessive absences from work. Witnesses testified to this effect, though other witnesses produced a different picture.

31As indicated above, it was uncontradicted that Ms. Horton's medical condition was mentioned as a reason for her dismissal, and I have further indicated that hypertension (one of her two stated medical conditions) is an actionable ground for applying the Code.

32Respondent counsel argued that the medical aspect should not be considered as relevant either in fact or in law. To support this point of view, Ms. Odell testified as follows. She had not known of Ms. Horton's medical report on November 13 when she had originally made an appointment to see Ms. Horton and on which occasion she had resolved to tell her that she would not be engaged permanently. The interview was not kept because Ms. Horton went to a cousin's funeral and was absent from work on that day. Ms. Odell subsequently heard from Ms. Slater by telephone that Ms. Horton's pre-employment medical report was not good and therefore Ms. Slater recommended termination.

33This call came after November 13 but before the actual termination conference on November 16 took place. Ms. Odell admitted that while she had mentioned to Ms. Horton on November 16 that the medical report played a role in her termination, she did not in fact actually see it until some months later, after Ms. Horton had launched her complaint with the Commission. When Ms. Odell finally did see it, she testified, she did not find the report bad at all and would not have taken it into consideration had she been aware of it in the first place. She had dismissed Ms. Horton solely, she said, because of her unsatisfactory work performance and frequent absences. Furthermore, the question of Ms. Horton's medical status would not have arisen had the originally scheduled conference taken place (November 13) at which time, so the witness says, she expected to inform Ms. Horton that she would not be employed. She also stated that some time before these events took place she had discussed with Mr. Orvidas that she would discharge Ms. Horton. However, Mr. Orvidas's corroboration was not available since he did not testify.

34Ms. Odell's testimony conveys the impression that Ms. Horton's hypertension (which for this Board is the only medical condition at issue) played no role in the refusal to employ her. However, we have only Ms. Odell's testimony to this effect and it is rendered in hindsight. The November 13 conference did not take place; only the November 16 conference did. And at that conference Ms. Horton's medical report was mentioned as a contributing factor in Ms. Odell's decision.

35On the witness stand Ms. Odell admitted that much. Commission counsel asked (Hearing Transcript, Examination of Ms. Odell, pp. 45–46):

Q. When you discussed the termination with Christine Horton, you had knowledge of the medical report. Was that a factor that was weighing on your mind? Is that why you discussed it with Christine Horton on November 16?

A. I guess it was fresh in my mind because I had just had a phone call about it.

Q. Yes, my question was, was it a factor weighing on your mind?

A. It was on my mind but I had decided to terminate her prior to that.

Q. So, this was an additional factor now that had come to your attention?

A. It was an additional factor that came up in the meantime, yes . . .

Q. . . . it was a factor you were considering?

A. It was in my mind, yes.

36Furthermore, when Ms. Odell confirmed her decision by letter she wrote to Ms. Horton (Exhibit No. 4):

This letter is to confirm our meeting of November 16, 1984 advising you that, as a result of your probationary period, you would not be kept on as a Health Care Aide at Sunset Haven.

As I explained to you, in making this decision the following factors were taken into consideration: performance, absenteeism, and your pre-employment medical.

37Respondent counsel, basing himself on further testimony by Ms. Odell and of other witnesses, argued that a negative decision on Ms. Horton's employment was inevitable in the light of her work record, and that consequently the verbal and written references to her medical condition should be considered irrelevant, since Ms. Odell testified that she would have reached the same conclusion in any case had the conference taken place as originally scheduled, at which time she had no knowledge of the results of the medical.

38However, I cannot decide the case on what might or might not have been in Ms. Odell's mind on November 13 when the evidence available for such judgment is based solely on a retrojection of her own feelings. What is more securely before me is Ms. Odell's statement both on the witness stand and in writing, that she refused to employ Ms. Horton further in part because of medical reasons, and as has been shown, these reasons included Ms. Horton's hypertension. This is the only evidence that I can safely consider, and this must of needs lead to the conclusion that Ms. Horton was denied employment because of a handicap as defined by the Code.

3. LEGAL QUESTIONS

39It is accepted in human rights jurisprudence that even if a breach of the Code is only one among other causes leading to the action in question, then the entire action is tainted. See: R. v. Bushnell Communications Ltd. (1973), 1973 CanLII 475 (ON HCJ), 1 O.R. (2d) 442 (H.C.); Iancu v. Simcoe County Board of Education (1983), 1983 CanLII 4720 (ON HRT), 4 C.H.R.R. D/1203 at 1204 to 1207. In Hendry v. Liquor Control Board of Ontario (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160, Chairman D. Soberman noted that when a ground was one "that played a part even if subconsciously and even if present with other causes" it constituted a prohibited ground. He further ruled in another decision Hawkes v. Brown's Ornamental Iron Works (December 12, 1977), (Ont. Bd. of Inq.) [unreported] that if the prohibited ground was "present in the mind" of the employer then the action of the employer was tainted and the Code was breached.

40Having therefore been established a prima facie case of handicap, the Commission need not prove that the respondent intended to discriminate; such an intent "is not an essential ingredient to a breach of Part I of the Code" (Cameron v. Nel-Gor Castle Nursing Home et al., (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170).

41The onus then falls on the employer to show that there has not been unlawful discrimination. For instance, a respondent may avail himself of the bfoq defense provided for in section 16(1). However, the respondent did not claim that Ms. Horton's medical condition prevented her from doing her job adequately and that the absence of hypertension was a bona fide occupational qualification. In fact, it was clearly stated by the respondent, Ms. Odell, that Ms. Horton's medical condition, once she was fully aware of its extent, would have played no role whatever in her ability to be employed permanently. Thus, the respondent eschewed the bfoq defense in order to justify the discriminatory action.

42Respondent also claimed that it was unreasonable to conclude that Ms. Horton's medical condition was a cause of her termination because no one had ever been discharged at Sunset Haven because of obesity or hypertension. Whether or not that is so is not material in this case. Not only was evidence to this effect not produced except in generalized estimates of past practice (witnesses said they had no knowledge of such discharges), the question before me is: Was hypertension a proximate cause of her termination, in conjunction with other causes? I have already stated that the answer to this is affirmative. I must therefore conclude that in refusing to employ Ms. Horton, the employer was in breach of the Code, as defined by sections 4, 8 and 9(1)(b)(i).

Remedies

43It is accepted practice, where the employer is a corporate entity, and an employee is in contravention of the Code and that employee is part of the "directing mind" of that corporation, then the employer corporation [be] considered as personally in contravention (see: Cameron v. Nel-Gor Castle Nursing Home, supra).

44The respondents in the present case are the Municipality of Niagara, Ms. Odell and Mr. Orvidas. The latter two were agents (and in the specific circumstances at issue, part of the "directing mind") of the municipality, which fact rendered it a proper respondent, a fact which the municipality did not contest. Therefore, any award to be made is levied upon all respondents severally and together.

45The Commission requests both special damages (wage loss sustained) and general damages (for mental anguish), plus interest. The authority for such a request is set out in section 40.

SPECIAL DAMAGES

46Basing itself on the conditions prevailing at the time of Ms. Horton's termination, the Commission calculates that the average work week to be taken into consideration was 35 hours at a wage of $9.68 per hour, amounting to a gross weekly wage of $338.80. The Commission proposes that the terminus ad quem to be considered should be May 1986, which it considers a "reasonable time" for Ms. Horton to find other employment, noting therewith that she has never found a job that paid as well as the one at Sunset Haven when she was terminated. During that time Ms. Horton received unemployment compensation benefits as well as income from another job with a considerably lower pay scale. The Commission proposes that both these latter payments be subtracted from the total, arriving at requested special damages of $13,203.10. In addition, it is requested that interest be paid on these damages.

47The request is based on the termination of Ms. Horton's probationary employment. There is in existence an agreement between the municipality and the Canadian Union of Public Employees, Local 1263, which covers the period from October 1, 1985 to September 30, 1987 (Exhibit No. 11). Article 14 of that agreement is entitled "Probationary Period" and states that during that period employees have all the rights and privileges of the agreement, ". . . except with regard to discharge. The employment may be terminated at any time during the probationary period without recourse to the grievance procedure, unless the union claims discrimination . . . as the basis of termination" [Emphasis added].⁴ It is quite clear that in its labour relations the municipality agreed to consider a probationary period limited by the presence of discrimination. I take this to mean that when discrimination is present in the discharge of a probationer, the probationary period is to be considered like a time of regular, non-probationary employment.

48In making his award in the matter of Torres v. Royalty Kitchenwear Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858, at para. 7748, Prof. P. Cumming held the respondents liable to pay special damages for a reasonable period of time.

49What would be reasonable under the circumstances? A recent decision of the Supreme Court of Ontario [1987 CanLII 8586 (ON HCJ), 9 C.H.R.R. D/4548] dealt with this question in a human rights case. The judgment arose from an appeal laid by the respondent in the matter of Piazza v. Airport Taxicab (Malton) Assn. (1986), 1985 CanLII 5242 (ON HRT), 7 C.H.R.R. D/3196. The court, while upholding the ruling of the board of inquiry with regard to the presence of discrimination and the amount of general damages, reduced the amount of special damages. In so doing it held (Steele J., orally [at D/4548, para. 35371]): "An amount to be awarded for loss of wages is restricted to the period of time of reasonable notice less any mitigation thereof."

50In that case the complainant had worked for the employer for two and a half months and the Divisional Court held that four weeks' notice was proper and reasonable, rather than the period fixed by the board of inquiry which was the entire period during which the complainant was out of work after her termination.

51A similar judgment may therefore be applied to Ms. Horton's discharge. Seeing that she worked for two months (similar to the case cited) it would seem that an award of four weeks' wages would be indicated.

However, there are some differences between the two cases. Rosanna Torres worked as a secretary with relatively little training, while Ms. Horton had her heart set on a life-time profession for which she had hoped and prepared professionally since she was a high school student. The unjust dismissal therefore calls for somewhat larger considerations, and I therefore fix the award for special damages at six weeks' wages or a sum of $2,032.80.

GENERAL DAMAGES

52The matter of general damages is set forth in some detail in the decision of Prof. P. Cumming referred to above (Cameron v. Nel-Gor Castle Nursing Home et al.). There is obviously no fixed amount that can be set out in advance, since every situation must be judged on its own merits. But all human rights violations deserve more than casual acknowledgement and must be reflected in the assessment of general damages where indicated. I therefore take into consideration Ms. Horton's hopes and plans as well as her disappointment and distress arising from her termination.

53It is uncontradicted that Ms. Horton had long hoped for the kind of job she finally obtained at Sunset Haven, and especially so since her mother had worked there for fifteen years and her brother was also employed there. It is not hard to imagine that her termination, unexpected as it was, caused her grievous shock and — in view of her family's work record at Sunset Haven — personal humiliation.

54One may argue, per contra, that her work record was so deficient and her absenteeism so excessive that the major shock she received was the need to face up to her own inadequacies. But not only is the adequacy or inadequacy of her work disputed (some witnesses affirming it and others denying it), the absence of any mechanism by which she was informed of complaints against her made the shock of discovering the presence of such complaints that much the greater. Even assuming that (save for the discriminatory factor) the employer might have let Ms. Horton go for good reason, the fact that she received no counseling, reprimands or warning that could have improved her work, was a less than satisfactory employment practice. Therefore I believe that in this respect too the employer has contributed to the distress suffered by Ms. Horton.

55But aside from all else, the fact that Ms. Horton's family were working at Sunset Haven should have made it obvious to the employer that her termination had very special implications.

56I hold therefore that the complainant suffered mental distress, loss of dignity, and humiliation, and I fix the compensation therefor at $750.

INTEREST

57It has been commonly accepted that interest is chargeable on awards (for references and details see a recent decision by Prof. A. F. Bayefsky, Taylor v. Via Security Systems Inc. (1987), 1987 CanLII 8560 (ON HRT), 8 C.H.R.R. D/3970; although "under the circumstances" that decision did not award interest on the general damages).

58I fix the interest for both special and general damages from the day the complaint was served, on April 11, 1985, until November 9, 1987, at which time I expect the damages to be paid. Should the payment be earlier or later, the applicable amount for the days of earlier or later payment, respectively, should be taken into consideration.

59The interest rate for the quarter preceding April 1985, set by the Registrar in accordance with Courts of Justice Act, was 12 percent. The amount of weeks for which interest is to be paid in this case is 134.

60Special damages having been fixed at $2,032.80 and general damages at $750, for a total of $2,782.80, interest for the 134 weeks at the above rate amounts to $862.66. The award will therefore be for $3,645.46.

Order

61The Code having been breached as set out above, respondents are ordered to pay Ms. Horton in special damages, general damages and interest the sum of $3,645.46.

The Board will remain seized of the matter until the award is satisfied.

NOTES

Similar decisions of this kind are Villeneuve v. Bell Canada (1985), 1985 CanLII 5212 (CHRT), 6 C.H.R.R. D/2988 (varicose veins) and Labelle v. Air Canada (1983), 1982 CanLII 4862 (CHRT), 4 C.H.R.R. D/1311 (malformation of the spine).

Footnotes

1. 1We deal here both with termination of probation and failure to employ permanently, which may be said to be an aspect of every probationary termination.
2. 2There are other cases on hand. In Brideau v. Air Canada (1983), 4 C.H.R.R. D/1413, the complainant was perceived by the employer to have bubbles on his lung and therefore to have a physical handicap. While the condition did not actually exist the tribunal ruled that it had jurisdiction, because if the condition actually existed it would likely be considered a handicap.
3. 3A similar conclusion prevailed, obiter dictum, in Commission des droits de la personne du Québec c. La Cité de Côte St.-Luc (1982), 1982 CanLII 4918 (QC CS), 4 C.H.R.R. D/1287. The tribunal ruled that even if obesity were to be considered a handicap in the meaning of the law the defense of bfoq would in this case prevail.
4. 4I am citing the text only for purposes of general guidance and am aware that the agreement, in article 8, does not list handicap as a ground of discrimination. The Code, of course, does, and it is the Code I am considering.