Engell v. Mount Sinai Hospital
1989-06-15
Ontario Board of Inquiry
Maren Engell Complainant
v.
Mount Sinai Hospital and B. J. Lanigan-Gilmour Respondents
Before: Ontario Board of Inquiry, Constance B. Backhouse
Comm. Decision No.: 365
Appearances by: Anthony D. Griffin, Joanne D. Rosen and Morrie Zucker, Counsel for the Ontario Human Rights Commission Nancy Eber, Counsel for the Respondents
DISABILITY — EMPLOYMENT — disabled employees entitled to same employment benefits as other employees — PHYSICAL DISABILITY — occupational therapist terminated on basis of multiple sclerosis
Summary: The Board of Inquiry rules that Mount Sinai Hospital discriminated against Maren Engell because of a physical disability when it refused to grant her vacation leave and terminated her employment.
Maren Engell has multiple sclerosis. In June of 1984, after Ms. Engell had been working as an occupational therapist for a year in the In-Patient Psychiatric Department, her multiple sclerosis worsened. She was absent from work for several months and then she returned. She worked full time in December 1984 and in January and February 1985, but in March 1985 Ms. Engell began to experience severe nausea and vomiting because she was pregnant. In March and April she was unable to work, and in early May she decided to take vacation leave and go to Denmark to visit relatives.
When Ms. Engell contacted the hospital to obtain approval for her vacation leave, it was denied on the grounds that she had been absent too much because of her multiple sclerosis and pregnancy-related nausea. She was informed that if she went on vacation her employment would be terminated. Ms. Engell went to Denmark and the hospital fired her.
The Board of Inquiry finds that Ms. Engell's vacation leave was denied because of her disability or because of absenteeism caused by it. Persons with disabilities are entitled to the same employment benefits as other employees — the same allocation of vacation credits, and the same rules and procedures for obtaining vacation benefits. Consequently, the Board rules that the hospital violated the Ontario Human Rights Code when it denied vacation leave to Ms. Engell and terminated her employment because she proceeded to take her vacation.
The Board orders the hospital to pay Ms. Engell compensation for lost wages in the amount of $7,200, and general damages in the amount of $1,000. In addition, the Board orders the Hospital to amend Ms. Engell's personnel file by removing the record of her termination, and to issue a letter of reference.
Cases Cited
Horton v. Niagara (Regional Municipality) (1987), 1987 CanLII 8548 (ON HRT), 9 C.H.R.R. D/4611: 32
Maycock v. MDI Mobile Data International Inc. (October 18, 1988), (B.C.S.C.) [unreported]: 49
Taylor v. Via Security Systems Inc. (1986), 1986 CanLII 6550 (ON HRT), 8 C.H.R.R. D/3925: 32
Legislation Cited
Ontario Human Rights Code, 1981 c. 53: 1, 24
1On October 26, 1988, I was appointed to serve as a board of inquiry by the Minister of Citizenship pursuant to the Ontario Human Rights Code, 1981, S.O. 1981, c. 53 to hear the complaint made by Maren Engell against the Mount Sinai Hospital and Mrs. B. J. Lanigan-Gilmour, dated December 10, 1985. The complainant alleges that her right to equal treatment in employment has been infringed on the ground of handicap, contrary to ss. 4(1) and 8 of the Code.
The Facts
2Maren Engell applied to work at Mount Sinai Hospital in April 1983. She was hired to start work as of June 6, 1983, as an occupational therapist at the in-patient psychiatric department. Ms. Engell worked Monday to Friday, 8:30 a.m. to 4:30 p.m., providing in-patient care for up to seventeen patients.
3Services were delivered to the patients by medical teams, each comprised of representatives from psychiatric medicine, nursing and social work. One occupational therapist was assigned to each team. For this ward, there were five occupational therapists: two full-time, two part-time, and one full-time supervisor, Carole Lerner. The occupational therapists were required to do initial assessments of each patient, and to supervise group therapy. The therapy sessions consisted variously of craft-based work, life-skills programs, and community outings.
4At the end of the first six months of Ms. Engell's tenure, she received a positive assessment. Carole Lerner, her supervisor, reported to Engell that she "liked having her in the department" and that the psychiatrists had reported that she was "a good fit."
5Maren Engell suffers from multiple sclerosis, a condition which qualifies as a "handicap" under s. 9 of the Code. Her multiple sclerosis was first diagnosed in 1977, when she began to experience minor, intermittent symptoms of mild numbness in her hands and legs. Engell did not notify her employer of her multiple sclerosis at the point of hiring, something she was not required by law to do. Indeed, s. 22(2) of the Code prohibits employers from making written or oral inquiries during the employment application process that would either directly or indirectly permit a classification by "handicap." Furthermore, the multiple sclerosis had no perceptible impact on Engell's work until the summer of 1984.
6In June of 1984, Engell experienced a "flare" in her multiple sclerosis, which greatly exacerbated the numbness in her legs, and caused double vision. She was understandably distressed about her symptoms, and the turn her disease was taking. According to her physicians, like many multiple sclerosis patients, she was beginning to recognize that her health might ultimately be seriously impaired, and this entailed major emotional adjustments.
7By September of 1984, Engell testified that she could no longer walk. She advised her supervisor that she was unable to work due to multiple sclerosis, and was not certain when she could return. She lost three weeks from work that month, commencing September 10, 1984.
8On September 13, 1984, Engell saw Dr. Gray, a neurologist, who testified as to Engell's condition at that time as follows:
Engell's vision was normally functional, other than rapid side to side movement;
she had occasional spasms in her arm, but her arms would be fairly functional;
she had normal strength in her left leg;
she had marked weakness and decreased function in her right leg;
she might have difficulty in knowing where her feet were, and would have difficulty walking and balancing;
she would have some impairment of fine motor coordination in her hands.
9Dr. Gray prescribed prednisone (an anti-inflammatory steroid), which relieved Engell's symptoms initially. She was able to go back to work through most of October, although she missed one week as a result of her illness that month as well. Her evidence indicates that she was welcomed back to work by her colleagues. By October 27, 1984, when the course of prednisone was complete, Engell's symptoms returned. She had double vision, weakness in her legs, and a bladder infection which had been aggravated by the prednisone.
10The prescription for prednisone was extended, and antibiotics were prescribed for her bladder infection. Her doctors testified that her condition made it very difficult for her to work. She was off three weeks as a result of illness during the month of November. At this point, Engell seemed to rally a bit, and she managed to work for the months of December 1984 and January 1985 without missing a day due to illness. Indeed the record shows that at this point Engell's conscientiousness over her job sometimes led her to disregard medical advice. On January 25, she was diagnosed with an ear infection, and Dr. Likwornik wanted to refer her to a specialist, Dr. Chin Fook that day or the next. Dr. Likwornik's office notes show that Engell refused the appointment because she was "busy at work."
11In February 1985, although she was absent only four days for illness, the situation was rendered more complex because Engell received confirmation of her first pregnancy, on February 21, 1985. Engell began to experience morning sickness, which became increasingly more severe as time went by. In March, she phoned in ill because of continuous vomiting. She did not divulge to her employer at this time the nature of her illness, because she testified that she had not yet told her parents about her pregnancy and wished to inform them first.
12Her morning sickness intensified, and her gynecologist, Dr. Tessler, diagnosed her with hyperemesis gravidarum. She explained her condition, thereby revealing her pregnancy, to her supervisor. By March 8, she was completely unable to work, and notified her employer that she did not know when she could return. She was vomiting six times a day, and beginning to experience weight loss and dehydration. Between the 11th and 15th of April, on the advice of Dr. Tessler, she was admitted to hospital because of hyperemesis.
13March 8 turned out to be the last day that Maren Engell was on the job. Her pregnancy-related nausea abated after she was released from hospital, but her weakness continued, preventing further work in April or May. By mid-May, her doctors testified that she had become very ataxic due to her multiple sclerosis. Indeed, Dr. Likwornik, her family physician, gave evidence that her sick leave was necessary during all of March through June of 1985.
14The evidence also shows that Ms. Engell wished to take a two week holiday in Denmark, a holiday she had been planning for approximately one year. On March 28, 1985 she purchased her flight tickets to Denmark, leaving on the 9th and returning on the 24th of May. Originally she had planned a bicycle trip through the country. Given her health complications, she no longer envisioned a physically active vacation, but rather a restful two week holiday with relatives in Denmark. Dr. Likwornik, Engell's family doctor, testified that in her opinion Engell was well enough to take such a holiday, but not well enough to work full time. In cross-examination, she explained that the particular travel plans Ms. Engell had developed would not require as much coordination and physical strength as her work. Nevertheless, Engell determined to seek vacation leave for this period, not sickness leave.
15Vacation leaves at Mount Sinai were usually negotiated rather informally. Holidays had to be mutually agreeable to the employee and the employer, and according to Engell's job description, she was required to notify the supervising occupational therapist, Carole Lerner, of her vacation plans. In the past, dates had been worked out between the occupational therapists on the ward without much difficulty.
16In this case, Ms. Engell did not seek approval for her holiday in advance of booking the tickets. While this seems somewhat irresponsible, my impression of the witness is that she was to some extent disoriented with respect to work, given her extensive absence and the drain of emotional and physical resources that her illnesses were demanding. In any event, she attempted to contact Carole Lerner the week after she purchased the tickets, without success.
17It was not until April 8, 1985, when Carole Lerner called Engell, that the two actually began to discuss the vacation plans. In this and subsequent telephone discussions, Lerner and Engell put their minds to the difficulties of staffing the ward during Engell's holiday, especially given the unfortunate simultaneous absences of several other members of the staff. Ms. Engell testified that she realized that her holiday would exacerbate the staffing problems, but throughout these discussions she never imagined that her leave would be denied. However the record is clear that approval was never granted.
18In fact staffing problems were so serious on the ward that Carole Lerner had been forced to contact Mrs. B. J. Lanigan-Gilmour, the Director of Personnel and Labour Relations at Mount Sinai, to see about finding a "locum," a temporary placement to cover for absent occupational therapists. Mrs. Lanigan-Gilmour testified that she was not in favour of this solution: "I agreed with her [Lerner's] concern in terms of the staffing," she said, "but I felt that it was inappropriate to place a locum for vacation purposes and that Ms. Engell should come back to work if she was able to come back to work." She requested a full report on the situation from Lerner.
19Carole Lerner complied, with a memo to Lanigan-Gilmour, dated April 16, 1985. It reiterated Ms. Lerner's impression of the events as follows:
Maren Engell was hired June 6th, 1983. During her interviews or upon hiring, she did not mention any health problems or limitations.
Her first year of employment was unremarkable in attendance. However, she appeared to be "accident prone." When questioned she attributed this to "being born a klutz."
One year later to her hiring date she had obvious coordination difficulties. Upon further questioning, she related these to "stress."
[In the fall] of 1984 she was off work several weeks when she finally informed me she would be away for an unknown lengthy period because she had multiple sclerosis.
I have reason to believe this diagnosis was presented to her long before she was hired at Mount Sinai Hospital.
When she has come to work since last fall, her physical coordination varies. (I am often as concerned for her safety as the psychiatric patients.) Other psychiatric staff have commented to me about her emotional ability as well.
Since mid-February to the present, she has again been on sick leave. She informs me this illness is not due to the multiple sclerosis, but due to vomiting from being pregnant.
My last conversation with her April 8, 1985, she informed me she intended to take vacation leave in May to go on a trip to Denmark.
Up to this time, I have felt sympathetic given her illnesses (??), but I now feel she is using and abusing her limit of sick time, vacation time, etc. benefits. As well, I question her judgment.
I would prefer if she could be dismissed on grounds of "innocent absenteeism" in order that I can replace her in the responsible position she holds on the Psychiatric Inpatient Service."
20Mrs. Lanigan-Gilmour did not take this advice to discharge Engell. Instead she wrote to Engell on May 3, 1985, formally denying her vacation leave. The letter, which was delivered by taxi, stated:
Dear Ms. Engell:
I have been advised by your Supervisor Carole Lerner of her concern regarding your employment history at Mount Sinai Hospital.
A Review of your file indicated the following:
a) Commenced employment with Mount Sinai Hospital as an Occupational Therapist effective June 6th, 1983.
b) During the fall of 1984, you advised your supervisor that you had multiple sclerosis. Your supervisor and fellow staff have been most concerned with regard to your safety as well as that of the psychiatric patients because of your difficulty with physical coordination as well as your emotional stability. For the period April 01 1984 to present you have been absent on paid sick leave for a total of 81 days.
c) Since mid February 1985 you have been off on paid sick leave and informed your supervisor that this illness is due to vomitting [sic] because of your pregnancy.
d) On April 8th you further advised your supervisor that you intended to take your vacation leave in May to fly to Denmark. As I understand it you confirmed same on April 23, 1985, stating that you were still too ill to work but that you intended to go to Denmark and your flights were booked to leave May 9th, 1985 and return May 24th, 1985.
Considering the above, we are of the opinion that your sick record far exceeds the standard for your department and the Hospital. Further, that your absences are disruptive and hinder the operation of the department. Therefore, I require a letter from your doctor detailing the nature of your illness, his/her prognosis of same and his/her opinion as to your ability to return to full time employment with an acceptable level of attendance. Please ensure that this letter is in my hands no later than Monday, May 13, 1985.
Further, your decision to take a vacation to Denmark while you are still on sick leave and having been absent from the department for such a lengthy period of time indicates to me a total lack of committment [sic] on your part to your position and to the Hospital. Therefore, your request for vacation at this time is denied. Should you decide, that in spite of this direction, you intend to continue with your vacation plans, I will have no alternative but to assume you have abandoned your position and your services will be terminated immediately.
Sincerely,
Mrs. B. J. Lanigan-Gilmour
21This was the first written indication or warning from the hospital indicating concern about Engell's absences. Maren Engell testified that she was quite taken aback and she replied by letter of May 7, 1985, expressing her concern that the hospital was reacting in an unfair, and indeed illegal manner. She agreed to comply with Lanigan-Gilmour's request in that she requested letters from all three of her doctors, Likwornik, Gray and Tessler, to be sent to Mount Sinai justifying her sick leave. She also notified the hospital that since their denial of her vacation leave was on "unreasonably short notice," she intended to continue with her holiday plans.
22Under cross-examination, Maren Engell testified that when she read the letter, she assumed she was fired. "I thought obviously I'm going on vacation so obviously I'm fired. It didn't seem to be any room to negotiate." She explained that she just could not accept the hospital's decision "because it felt so wrong." She left for Denmark.
23On May 9, 1985, Mount Sinai Hospital terminated Maren Engell. By letter of May 29, 1985, delivered by taxi to Engell upon her return from Denmark, Lanigan-Gilmour explained:
Dear Ms. Engell:
This letter will confirm our telephone conversation at which time I informed you that you were terminated by the Hospital effective May 9th, 1985.
You will recall that I made it abundantly clear in my letter of May 3rd, 1985, that your vacation request was denied and that should you continue with your vacation plans, I would have no alternative but to terminate your services.
You responded with a letter received in this office on May 9th, 1985, indicating that you were in fact flying to Denmark. You completely disregarded the direction given by the Hospital knowing full well the consequences of your actions.
As a result, there was no reason to consider the letters which were received from Drs. Likwornik and Tessler. [Note: Apparently the letter from Dr. Gray, although sent, was never received.] It is however interesting to note that Dr. Likwornik stated that you have had Multiple Sclerosis for a number of years. Yet you never offered this information at the time of hiring. Further, when your supervisor questioned you on a couple of occasions because of her concerns with regard to your co-ordination difficulties and the fact that you appeared to be accident prone, you attributed this to being "born a klutz" and on further questioning, you related this to stress. It wasn't until the fall of 1984 following several weeks of illness that you informed your supervisor that you had Multiple Sclerosis.
Your final papers will be sent to you under separate cover.
Sincerely,
Beverly J. Lanigan-Gilmour
24Maren Engell, who still believed that the matter could be sorted out, called Carole Lerner on June 10. Lerner told Engell that she thought it was very "strange" that she would "consider going on holiday" when she was "first pregnant and had multiple sclerosis." Engell asked her how she would feel about her return to the department. Engell related her response: "She said she'd have to think about it and she said — sometime in that conversation, she had to look ahead to her department with a sick professional in it. That's not a quote, but with someone — with sick problems. She had to look forward to the future with an unstable department." The issue was not resolved between the parties, and the human rights process was engaged.
Decision
25The Ontario Human Rights Code, 1981, S.O. 1981, c. 53 provides in s. 4(1) as follows:
Every person has the right to equal treatment with respect to employment without discrimination because of . . . handicap.
Section 9 states that
because of handicap means for the reason 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 and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a dog guide or on a wheelchair or other remedial appliance or device.
Maren Engell's conditions of multiple sclerosis and hyperemesis gravidarum both constitute "handicaps" within the meaning of the Code.
26At first blush, this case appeared to turn on the question of whether Maren Engell was discharged from her position due to the past absences and potential future absences related to her "handicap." If the evidence had borne out this finding, the respondents would have been able to fall back on s. 16(b), which provides that:
a right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.
27The position of the respondents was unequivocally that Engell was not discharged for absenteeism due to illness, but for insubordination in taking her holiday in direct contravention of hospital orders. Indeed, the employer did not develop an argument under s. 16 here at all. Respondents led no detailed evidence concerning Engell's capacity to perform her duties. Instead, Mrs. Lanigan-Gilmour testified that Mount Sinai had embarked upon an Employee Attendance Awareness Program, which attempted to reduce absences through modifications in the work station, counselling, and supportive employee assistance. The program constituted a sophisticated and humane response to employees with absenteeism problems, such as one might anticipate would be developed by an institution concerned about health policy. Discharge was clearly disfavoured unless all else failed.
28There is some evidence on the record, particularly Carole Lerner's memorandum of April 16, 1985 and her conversation with Engell on June 10, 1985, which might have supported a finding that the discharge was motivated by absenteeism related to the "handicap." On balance, however, I was persuaded by Mrs. Lanigan-Gilmour's testimony that although Engell's absenteeism was a concern, it was not a factor in the decision to discharge. I believe Mrs. Lanigan-Gilmour that the discharge was triggered by Engell's decision to take her holiday against hospital orders.
29This, however, does not dispose of the case. Counsel for the Commission argued that the decision to deny Engell's holiday request contravened the Code because her "handicap" was a factor in the determination to refuse the leave. In other words, the Commission contended that if Engell had been an able-bodied employee, without an extensive absenteeism record, her vacation request would have been granted. This matter warrants further consideration.
30The focus of the legislation is to protect the rights of disabled individuals, among other groups, and to ensure that they have access to the employment opportunities, dignity, and respect that the able-bodied have. Extensive government policy and programming is now directed toward integrating the disabled into the regular work force. Once on the job, it is quite likely that they will experience problems somewhat differently than the able-bodied, and workplace adjustments may have to be made. In some cases, disabled employees may experience disproportionate absenteeism. Yet they are surely entitled to the same employment benefits as other employees — the same allocation of vacation credits, and the same rules and procedures for obtaining vacation benefits. Disabled employees need access to vacation entitlements equally if not more so than able-bodied employees. To permit institutions to set more restrictive policies and regulations regarding vacation for disabled employees — even those who may have been absent for extensive periods of time — would surely frustrate any goal of workplace integration.
31The question to be determined here, then, is whether Maren Engell's multiple sclerosis or hyperemesis gravidarum were factors in Mount Sinai's decision to deny her the vacation leave in May 1985. The evidence on this question is mixed. Mrs. Lanigan-Gilmour testified that the decision was taken solely on the basis of staffing concerns. At the time that Engell was seeking her vacation, the other full-time occupational therapist had been absent due to hospitalization, and Carole Lerner, the supervisor, had been ill as well. Respondents maintained that the reason that the vacation was denied was solely due to internal hospital staffing requirements.
32Counsel for the Commission conceded that the hospital was facing legitimate staffing problems, but argued that Engell's "handicaps" were at least factored into the decision to deny the vacation leave. If the disability played any role whatsoever in the decision, the Commission argued that the entire decision was tainted. (R. v. Bushnell Communications Ltd. (1973), 1973 CanLII 475 (ON HCJ), 45 D.L.R. (3d) 218; aff'd (1974), 1974 CanLII 559 (ON CA), 47 D.L.R. (3d) 668 (CA); Horton v. Niagara (Regional Municipality)(1987), 1987 CanLII 8548 (ON HRT), 9 C.H.R.R. D/4611; Taylor v. Via Security Systems Inc. (1986), 1986 CanLII 6550 (ON HRT), 8 C.H.R.R. D/3925.) In this position, they are clearly correct. If the hospital made its decision to deny the holiday even partly because of Engell's disability, or her absenteeism record due to disability, this violates ss. 4 and 8 of the Code.
33There is certainly some evidence on the record which indicates that Engell's disability, or her absenteeism due to her disability, was in the minds of her hospital employers at the time they refused her vacation leave. Lerner, Engell's immediate supervisor, is perhaps the clearest in her memorandum of April 16, 1985, when she states that Engell's vacation request is an "abuse" of vacation benefits, and that it has prompted her to lose sympathy regarding Engell's illnesses. She repeated this to Engell over the phone, on June 10, 1985, suggesting that it was "strange" that Engell would consider going on holiday when she was pregnant and had multiple sclerosis.
34Lerner, it should be clarified, was not the person who ultimately denied the vacation benefits, but her memorandum was before Mrs. Lanigan-Gilmour as she wrote on May 3, 1985 denying the leave. Furthermore, Lanigan-Gilmour incorporated extensive portions of Lerner's memo in her letter. The entire first half of Lanigan-Gilmour's letter denying the vacation leave revolves around Engell's disability and absenteeism. The actual decision to deny the holiday expressly refers to the absenteeism:
Further, your decision to take a vacation to Denmark while you are still on sick leave and having been absent from the department for such a lengthy period of time indicates to me a total lack of commitment on your part to your position and to the Hospital. Therefore, your request for vacation at this time is denied.
The letter of the May 29, 1985, justifying the termination, is quite similar. There are also disturbing references throughout all of this correspondence — Lerner's and Lanigan-Gilmour's — to their sense of betrayal that Engell had not divulged her multiple sclerosis diagnosis at the outset of her employment. Once again it should be noted that Engell was under no legal obligation to reveal this, especially as her condition had no discernible impact on her work at the time of hiring and for some time thereafter.
35I have no doubt that real staffing shortfalls played a significant role in Lanigan-Gilmour's ultimate decision to deny the vacation request. However, in my opinion, on the balance of probabilities the evidence also reveals that her "handicaps" and her absenteeism resulting from those "handicaps" were also present as factors influencing the determination. The respondents' decision to deny Engell her vacation leave was therefore taken in contravention of the Code because it denied a "handicapped" individual her right to equal treatment with respect to employment.
Damages
36Maren Engell was improperly denied accrued vacation leave on May 3, 1985. In an ideal dispute-resolution setting, the matter would have been heard immediately, the respondents advised of their error, and Engell's vacation plans approved prior to her departure. Given the realities of the modern world, events unfolded in such a way as to significantly compound the damages sustained.
37Maren Engell resolved to contest her employer's veto over her leave, and took her vacation. She had expended considerable funds on her airline tickets, a sum she believed at the time was non-refundable, and she made the decision to follow through on her original travel plans. She did not, in labour relations parlance, "work now, grieve later." The consequence of this was immediate termination as of May 9, 1985. On whose shoulders should the burden of the losses flowing from this termination rest, the complainant's or the respondents'?
38Counsel for the respondents argued that the complainant should not be entitled to compensation for more than her airline fare, following the labour relations rule requiring employees to "work now, grieve later." That is, that employees must follow instructions, even where they consider these to be improper, and seek adjudicatory redress later. The cases of Re Canada Safeway Limited and Retail Clerks Union, Local 409 (1982), 1982 CanLII 5071 (ON LA), 3 L.A.C. (3d) 193; Re Indal Products Ltd. and United Steelworkers, Local 2729(1975), 1975 CanLII 2188 (ON LA), 10 L.A.C. (2d) 374; Re Black Diamond Cheese and Canadian Food and Allied Workers, Local P-688 (1973), 1973 CanLII 2134 (ON LA), 3 L.A.C. (2d) 151, and Re International Woodworkers of America, Local 2-500 and Stancor Central Ltd. (Peppler Division) (1970), 1970 CanLII 1677 (ON LA), 22 L.A.C. 184, were cited in support of this rule.
39The Stancor case, supra, outlines the reason behind the labour relations rule:
. . . an industrial plant is not a debating society. Its object is production. When a controversy arises, production cannot wait for exhaustion of the grievance procedure. While that procedure is being pursued, production must go on. And someone must have the authority to direct the manner in which it is to go on until the controversy is settled. That authority is vested in supervision. It must be vested there because the responsibility for production is also vested there; and responsibility must be accompanied by authority. It is fairly vested there because the grievance procedure is capable of adequately recompensing employees for abuse of authority by supervision. [at 186 quoting from (1946), 3 L.A. 779 at p. 781]
40In my opinion, while this rule may serve well in the context of labour arbitration, it is ill-suited to the field of human rights law. The law relating to labour relations seeks to balance the interests of management and labour, serving the twin goals of efficient production and employees' needs for a supportive working environment. The rule of "work now, grieve later" is an attempt to accommodate the clash of these two interests, forcing employees to bow to the overall needs of the enterprise and to seek remedial measures later through a carefully structured grievance and arbitration system.
41Human rights law, in contrast, is not an attempt to accommodate or balance the interests of institutions and workers. Instead it is designed to protect the rights of individuals who tend to be discriminated against by institutions and other individuals. The focus is the protection of disadvantaged individuals and groups, not the efficient functioning of industry or employment relations. While the latter may at times enter into human rights analysis, it is safe to say that these are not the foremost driving components of the legislation. While human rights adjudicators may recognize the need for hierarchical structures and measurable production quotas, we must be vigilant to ensure that the human rights of employees are preserved regardless of conflicting institutional interests.
42This conclusion is strengthened by the special status that the courts have accorded human rights legislation. Mr. Justice McIntyre, writing for a unanimous Supreme Court of Canada, has stated [Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 546–7, 64 N.R. 161, 23 D.L.R. (4th) 321, [7 C.H.R.R. D/3102 at D/3105]]:
Legislation of this type is of a special nature, not quite constitutional, but certainly more than the ordinary and it is for the courts to seek out its purpose and give it effect. The Code aims at the removal of discrimination.
Legislation of a quasi-constitutional nature, which seeks to accord rights and opportunities to disadvantaged groups, should be interpreted in a manner which upholds those rights even where labour relations rulings might hold differently.
43This position is further buttressed by the fact that the complainant was not a unionized employee, and did not have access to a union grievance procedure. As a result of the Supreme Court ruling in Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468, her only remedy for discrimination was through the auspices of the Commission under [the] Ontario Human Rights Code. The limited resources at the Commission result in protracted delay for most human rights litigants, delay which is more extensive than that generally seen in the labour relations setting. The concept of "grieving later" takes on a different ring within a human rights process which can take years for resolution.
44In summary, it is my view that the labour relations rule of "work now, grieve later" ought not to be transported into the realm of human rights jurisprudence. However, if I am wrong in this, it would appear that the rule ought to have no application in this instance regardless, because the case fits within some of the well-known exceptions that have been developed to the rule. Paul Weiler, the arbitrator in the Stancor case [supra], notes that "the rule is not an absolute obligation and exceptions have been long-established where the order is illegal or dangerous" [at p. 186]. Kevin Burkett, arbitrator in the Canada Safeway case, adds at p. 199:
Where the harm which the employee seeks to avoid by disobeying the order of his employer is substantial and outweighs the harm caused by disregarding the authority of the employer, and where the employee could not, as an alternative to insubordination, obtain a meaningful remedy through the grievance and/or arbitration procedure, arbitrators will find an exception to the general rule of "work now — grieve later."
In this situation, the harm is substantial — the violation of an individual's rights to equal employment opportunities as guaranteed under the Code. And the human rights complaint process, coming to fruition some four years later, is hardly a "meaningful remedy" within the arbitrator's meaning here.
45Given that the losses flowing from Engell's termination are a responsibility of the respondents, it now remains to determine what those are. Maren Engell stated that she was not seeking reinstatement. Counsel for the Commission requested compensation for lost wages for June, July and August 1985. Wages were not sought for September and thereafter because at that time Engell would have been eight months pregnant and would likely not have continued to work.
46There was an extensive amount of medical evidence, some of it conflicting, about Engell's capacity to work during the months of June, July and August 1985. However it was never made clear whether absenteeism due to her illnesses would have been unpaid absences, or whether it would have qualified as compensable disability leave under hospital benefits. Since the respondents did not lead such evidence, and did not argue that Engell's absenteeism warranted dismissal, I have concluded that the matter of her physical capacity to attend work should not affect her right to wages for this period.
47Following Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd. Inq.) aff'd Sept. 17, 1985, (Div. Ct., unreported), the proper measurement of lost wages can best be assessed by reference to tort principles. Lost wages are payable for a reasonable time, that being a reasonably foreseeable period for the complainant to seek alternative employment. In this case, a period of three months does not seem overly long in this regard.
48Counsel for the respondents argued that Maren Engell was required to mitigate her losses, and that the evidence did not show sufficient effort in this regard. Engell began looking for another job in June. Her job search consisted of an examination of the newspapers for occupational therapy positions and contacts with other occupational therapists who were friends to seek information about forthcoming positions. She did not actually apply for any positions. There was some evidence that at least one of the openings required an occupational therapist who could drive, and Engell was uncertain whether she had the physical capacity to drive at that time. Engell conceded that she did not carry out an active job search for the months of July and August.
49Counsel for the Commission argued that the complainant's personal characteristics should be a factor to be weighed in assessing what constitutes reasonable effort to mitigate. [Maycock v. MDI Mobile Data International Inc. (October 18, 1988, (B.C.S.C.) [unreported]]. Given Engell's precarious health and her advancing pregnancy, it becomes more understandable that a vigorous and energetic job search was not practical at this time. In my opinion, this evidence constitutes an acceptable degree of mitigation under the circumstances.
50Counsel for the Commission sought an order for general damages in the amount of $3,500, to compensate Maren Engell for the injury to her dignity and self-respect, and the loss of her right of freedom from discrimination. This seems somewhat on the high side to me on the facts of this case, and I think that $1,000 is a more accurate reflection of the injury.
51Counsel for the Commission also sought the following orders:
a) Rectification of Ms. Engell's personnel file at Mount Sinai Hospital to show her resignation;
b) A written apology to Ms. Engell from Mrs. B. J. Lanigan-Gilmour and from Mount Sinai Hospital (not to be inserted in her personnel file); and
c) The provision of letters of reference to Ms. Engell from medical staff at Mount Sinai Hospital.
I have decided to grant part a) and c) of this request, but not part b). I do not believe that Mrs. B. J. Lanigan-Gilmour had any intention to discriminate against Maren Engell but rather decided to deny the vacation leave under the mistaken belief that there was nothing wrong in doing so. I see no reason to order her to make a formal apology at this point.
Order
52This Board of Inquiry, having found the respondents Mount Sinai Hospital and Mrs. B. J. Lanigan-Gilmour to be in breach of sections 4 and 8 of the Ontario Human Rights Code, 1981, as amended, in respect of the complainant, Maren Engell, for the reasons given, orders as follows:
The respondents are jointly and severally liable to pay forthwith to the complainant, as follows:
a) special damages as compensation for lost wages in the amount of $7,200 ($15 an hour, 37 ½ hours a week, $2,400 a month for three months);
b) general damages in the amount of $1,000.
Interest is payable, as requested by the counsel for the Commission, at the rate of 10.5 percent from the date of April 1, 1986.
53The respondents are also ordered to comply with the following directions:
a) to make rectification of Maren Engell's personnel file at Mount Sinai Hospital to show her resignation;
b) to provide a letter of reference to Maren Engell from the medical staff at Mount Sinai Hospital.