Allan v. Singh
1993-05-17
Theresa Allan
Complainant
Ontario Human Rights Commission
Commission
J.H. Singh
Respondent
Date of Complaint:
July 16, 1990
Date of Decision:
May 17, 1993
Before:
Ontario Human Rights Commission, Katherine Tomaszewski
Comm. Decision No.:
521
Appearances by:
Jennifer Scott, Counsel for the Commission
Theresa Allan, on her own behalf
Michael Gonomi, Counsel for the Respondent
DISABILITY — employment terminated on basis of epilepsy — BONA FIDE OCCUPATIONAL QUALIFICATION — absence of epilepsy for medical receptionist — DISCRIMINATION — intention to discriminate — INTERPRETATION OF STATUTES — definition of "wilful"
Summary: The Board of Inquiry finds that Dr. J.H. Singh discriminated against Theresa Allan when he refused to continue to employ her as a receptionist in his medical office because of a disability.
Dr. Singh hired Theresa Allan to work as a receptionist in his medical office commencing April 2, 1990. On April 3 Dr. Singh observed Ms. Allan massage a patient's back, an action that he considered inappropriate for a person in her position. When he watched her more closely, he decided that she looked glassy-eyed and abnormal.
On April 4 Dr. Singh questioned Ms. Allan about her medical condition. She stated that she had a cranial phringeoma and took Dilantin. Dr. Singh concluded from this information that she was epileptic and had grand mal seizures. He decided that she would not be able to handle the emergency situations that arose in his office from time to time and informed her that she could do secretarial work "in the back" of the office, but could not deal with his patients. Ms. Allan became upset and cried.
The Board of Inquiry finds that Dr. Singh did not take the steps necessary to inform himself fully regarding Ms. Allan's condition. He did not listen to all of her information, nor did he contact her neurologist or her former employers for an account of her capabilities. Ms. Allan was on Dilantin in the past, but did not take this drug any longer. She did not have grand mal seizures. Rather, she experienced simple partial seizures which do not involve loss of consciousness, and are often indiscernible. These seizures do not affect her work.
The Board of Inquiry finds that Dr. Singh cannot claim the benefit of the bona fide occupational qualification defence, merely because he had an honestly held opinion that she was incapable of performing the duties of the job because of her medical condition. Dr. Singh must establish that Ms. Allan was incapable of performing the duties of the job, and that he took all reasonable steps to establish correctly the facts of her medical condition. The Board of Inquiry finds that Dr. Singh failed to meet these requirements.
The Board of Inquiry finds that Dr. Singh discriminated against Ms. Allan. It orders him to pay her $1,080 as compensation for lost wages, and $2,000 as compensation for hurt feelings, with interest on the award.
Cases Cited
Belliveau v. Steel Co. of Canada (1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250 (Ont. Bd.Inq.): 31
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 31, 37
Chamberlin v. 599273 Ontario Ltd. (1989), 1989 CanLII 9081 (ON HRT), 11 C.H.R.R. D/110 (Ont. Bd.Inq.): 31
Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 31
Rapson v. Stemms Restaurants Ltd. (1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449 (Ont. Bd.Inq.): 31, 34
Legislation Cited
Ontario
Courts of Justice Act, S.O. 1990, c. C.43: 35
Human Rights Code, R.S.O. 1990, c. H.19
s. 5: 30
s. 5(1): 1, 14, 29, 34, 38
s. 9: 1, 14, 30, 34, 38
s. 10(1)(b): 29
s. 17: 3, 14, 27, 29
s. 22(2): 34
s. 41: 36
I. INTRODUCTION
1I was appointed by the Minister of Citizenship as a board of inquiry under the Ontario Human Rights Code on December 29,1992. This inquiry involves a complaint made by Theresa Allan that her employment was terminated because of her handicap, causing her to suffer discrimination on the basis of handicap, contrary to ss. 5(1) and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended.
II. MOTION FOR ADJOURNMENT
2At the commencement of the hearing on April 19, 1993, Mr. Bonomi, counsel for the respondent, requested an adjournment for the following reasons: on Wednesday, April 14, 1993, Mr. Bonomi travelled to London, Ontario, to interview an expert witness for the respondent. At that point, he was advised that the witness, an expert neurologist, would not be able to attend at the hearing on any of the scheduled hearing days. It was the respondent's position that the presence of this witness would be necessary to enable the respondent to present a full and fair defence in this matter.
3The theory of the respondent's defence was that the respondent, Dr. Singh, had assessed the complainant's abilities objectively at the time that she had been dismissed from her position, thus bringing him within the defence of s. 17 of the Code. Mr. Bonomi argued in the alternative that, even if that decision had been made arbitrarily, Dr. Singh was still entitled to bring himself within the s. 17 defence by leading evidence that the complainant was incapable of doing the job. The evidence of the expert witness, who would be present to hear the testimony of the other witnesses, was necessary to establish this defence.
In the alternative, Mr. Bonomi requested that I hear the evidence of the Commission, and then adjourn the hearing.
4Ms. Scott, on behalf of the Commission, argued that the evidence of the expert neurologist was irrelevant to the case, and that Dr. Singh was not entitled to use s. 17 as a defence since at the time of the dismissal he had made no effort to determine the complainant's true medical condition, or her ability to perform the job. Ms. Scott stated that she would be calling a neurologist to give evidence in anticipation of the respondent's efforts to raise a s. 17 defence, although it was her position that this evidence would be irrelevant to her case. This approach was chosen to avoid later arguments by the respondent that the Commission was "splitting" its case.
5I ruled that the hearing would continue as scheduled, but that the respondent would have the opportunity to raise the matter again after all available evidence had been presented. I made this ruling in light of the following considerations: (1) The difficulty of rescheduling hearing dates. (2) I had heard no evidence and so was not yet in a position to determine the relevance of the anticipated evidence of any witness. (3) The respondent would suffer no prejudice since the matter could again be considered after the evidence had been presented. (4) The respondent would be able to use the transcript of the hearing to inform the expert witness in the event that I determined that the hearing should be adjourned to permit the respondent to call this witness.
6After the respondent had called all witnesses available at this point, Mr. Bonomi again made a motion for adjournment to permit the expert witness to be called at a later date. The arguments by both counsel were those outlined above, with additional arguments by Mr. Bonomi that because the Commission had called an expert witness, the respondent should also be allowed this opportunity. Mr. Bonomi also stressed that it was important to the respondent to have a neurologist comment on Mrs. Allan's abilities to perform the job, and to assess Dr. Singh's conduct in assessing Mrs. Allan's abilities to perform the job.
7At this point, I indicated to Dr. Singh that I was sensitive to his desire to defend and protect the integrity of his reputation as a doctor, particularly with respect to his ability to diagnose the condition of a patient, and that I understood his desire to call an expert witness on this point. In my opinion, the professional integrity and abilities of Dr. Singh have not been placed in issue by the complainant.
8However, I expressed my concerns about further delaying this hearing, and I indicated that I would be inclined to give very little weight to the evidence of a neurologist who had never met Mrs. Allan, with respect to the issue of whether or not Mrs. Allan was able to perform the job in question at the time in question. This was particularly true since the neurologist called by the Commission has been Mrs. Allan's treating neurologist since 1978. I suggested that at this point Dr. Singh might wish to consult with his counsel, and we broke for a few minutes.
9When we resumed, Mr. Bonomi indicated that, against his advice, Dr. Singh had instructed him to withdraw the motion for adjournment. When I asked Dr. Singh if he was satisfied that he would nonetheless have a fair hearing in this matter, he said, "yes." He also said that he realized that calling a neurologist at a later time would cause great inconvenience for the patients of that neurologist, and that, all things considered, he did not think that this would be an appropriate use of scarce medical resources.
10At all times, Dr. Singh impressed me as a physician who cares a great deal for his patients, and for the "health" of the medical system in general.
III. THE FACTS
11Theresa Allan was hired on a one-month probationary contract to work as a medical secretary for Dr. Singh and his wife, Dr. Alawalyia, in a busy joint family medical practice in St. Catharines. She commenced work on Monday, April 2, 1990, and worked the normal day without incident. On Tuesday, April 3, 1990, Mrs. Allan again worked a normal day. At some point during these two days, or during the job interview on the preceding Saturday, Dr. Singh had requested that Mrs. Allan undergo a medical examination. She requested that the examination be done after the one-month probation period, and Dr. Singh agreed.
12On Tuesday, April 3, 1990, in the morning, Mrs. Allan asked Dr. Singh how he liked her work. Dr. Singh gave evidence that he told her " . . . it's O.K., it's all right. I feel satisfied." At around noon, according to Dr. Singh, an incident occurred which caused him to have doubts about Mrs. Allan's suitability for the job as medical secretary in his office. According to Dr. Singh (what follows is from my notes of Dr. Singh's testimony):
I took the file and went there [the waiting room] to get Mr. Ghoman. I was looking forward to a long term relationship with Mrs. Allan, so I introduced her to Mr. Ghoman as my new secretary. She went around out of the cubicle, around me and Mr. Ghoman and started massaging his back. I was taken aback! I was embarrassed and he was very upset. This put me on the alert. When I see something unusual I must know what is the diagnosis — explain the behaviour — this was not normal. I started watching very closely. I could see she was walking around but with no purpose, just like a robot walking around controlled by someone else. I looked into her eyes. Her eyes were fixed eyes like glassy eyes with no meaning. So to me this indicated something abnormal in that eye in the activity of the brain.
. . . All that night I was turning all these things over in my mind. How could I get a diagnosis for this to fit in because it did not fit in with the known background. I had to make an immediate decision about whether she could sit there and do that job . . . [At around noon on Wednesday, April 4, 1990] I called her into my room and asked her what was present that would be gone in a month? I suspected abnormal brain activity but I thought it would be a drug use (my provisional diagnosis) . . . Because I structured my question carefully the first thing I noticed was that the question was irrelevant. She said I had a cranial phringeoma. I was on Dilantin — QUESTION BY COUNSEL: "Did she mention seizure activity?" — Yes, she said during my fertility period but they are really very minimal . . . she said "I was on Dilantin" — yes I know about this. She had this diagnosis, now I need to know what to do about this (problem solving) I have to function quickly. What do I do now? No doctor is 100% but under the circumstances, what was I to do?
I said "you cannot sit any more on that table there" [meaning the reception area of his office]. She started crying at this point. The amount of duties taken away and the amount of tears were not proportionate. To my mind this was further proof of instability. So what do I do? I must find a solution to this problem, satisfying the immediate problem and the long term problem. So I said "you can do this work at the back" . . . She refused.
13In cross-examination, Dr. Singh agreed that he had concluded on the basis of this information that Mrs. Allan had grand mal seizures and that she would be unsuitable to fit in the "human contact part of the job." He admitted that he did not contact Mrs. Allan's family physician, her neurologist or any of her previous employers to enquire as to her medical condition or her ability to perform her job responsibilities. He also admitted that he did not ask Mrs. Allan how well her seizures were controlled by her medication, because "I had already observed her." There was no evidence that Mrs. Allan had had any seizures during the time that she worked in Dr. Singh's office. Dr. Singh further admitted that he did not speak to Mrs. Allan at any time about the incident with Mr. Ghoman. His concern was "the immediate problem to control what would happen with the next call coming in."
14To summarize, Mrs. Allan worked for two and one-half days for Dr. Singh before she was told that she could not work as a receptionist/secretary because of her epilepsy, but that she could do secretarial work in the back office instead. Dr. Singh based his assessment on his observation that Mrs. Allan wandered around the office, had glassy eyes, wished to postpone the medical examination, had told him that she had had a cranial phringeoma and was on Dilantin, and his conclusion from this that she suffered from grand mal seizures (which, by their nature, induce loss of consciousness). Because emergency calls were common and unpredictable in his practice, Dr. Singh decided that Mrs. Allan, whom he concluded would lose consciousness during a seizure, could not perform the job of medical secretary.
These facts, as admitted by Dr. Singh, constitute a clear prima facie infringement of ss. 5(1) and 9 of the Code. The issue before me is, can Dr. Singh avail himself of the defence in s. 17 of the Code?
15Counsel for the Commission argued that because Dr. Singh did not take all reasonable steps to determine Mrs. Allan's capacity to do the job on an objective basis, s. 17 is not available, even if, once all information about Mrs. Allan's abilities is available, it turns out that she was incapable of doing the job.
16The respondent argued that he had determined Mrs. Allan's abilities on an objective basis in a reasonable manner, and that even if the Board did not agree with this assessment of his decision, s. 17 was also available as a defence if it turned out with the benefit of hindsight that Mrs. Allan was not capable of doing the job. Before turning to this question of law, I would like to tell the story of what happened in April 1990, from Mrs. Allan's perspective.
17Mrs. Allan discovered in March 1971 that she had a cystic cranial phringeoma affecting the pituitary gland. The tumour was removed and she underwent radiation treatments. She was placed on the drug Dilantin. Her condition was called temporal lobe epilepsy. While on this medication, she suffered from severe and frequent seizures. After six or seven years, she was switched to Tegretol, which was more effective in controlling her seizures, but not completely effective. While on this medication, she still experienced grand mal seizures albeit infrequently. The last grant mal seizure (or "clonic tonic seizure") Mrs. Allan experienced was in 1987. This was the last seizure which she experienced during which she lost consciousness. In 1988, she was switched from Tegretol to Epival. This medication controls both the "clonic tonic" or grand mal seizures, and the complex partial seizures (both of which can involve loss of consciousness or concentration), but does not control the simple partial seizures which Mrs. Allan continues to experience.
18It is my understanding of both the evidence of Mrs. Allan and her neurologist, Dr. Wherrett, that simple partial seizures involve no loss of consciousness or concentration, and that in Mrs. Allan's case they last for 45 seconds, and cause the sensation of deja-vu. Mrs. Allan experienced one of these seizures while on the witness stand. In my observation of Mrs. Allan, had she not said anything, no one would have been aware of the fact that she was having a seizure. Her capacity to continue with whatever she was doing did not seem to be affected by the seizure. Mrs. Allan is vulnerable to having these seizures during the fertile time of her cycle, and during periods of fatigue or personal stress. Although the seizures are not completely eliminated by the drug Epival, their frequency and intensity have been reduced to the point where Mrs. Allan is permitted to hold a valid driver's licence, and she is able to function normally. Mrs. Allan held a valid driver's licence in 1990. There was no evidence to suggest that Mrs. Allan had ever failed to take her medication. On the contrary, Dr. Wherrett testified that she was thorough and conscientious about her medication.
19At the time Mrs. Allan applied for the position in Dr. Singh's office, she provided him with a résumé that had several letters of recommendation attached (Exhibit No. 3). Mrs. Allan had experience in a number of secretarial related positions, including two positions as a medical secretary in doctors' offices. Much evidence was led to show how stressful the position of medical secretary is in Dr. Singh's office. The purpose of this evidence was to show that even though Mrs. Allan had performed well in two other doctors' offices, Dr. Singh's office was so much more stressful that this previous job experience would not be indicative of whether she could do the job in Dr. Singh's office. It was also led to show that, because Mrs. Allan is more vulnerable to seizures when she is under stress, the stressful nature of Dr. Singh's office would make the job unsuitable for Mrs. Allan (and hence Mrs. Allan for the job) because she would have more seizures, and this would make her incapable of doing the job.
20While I accept that because of the nature and location of Dr. Singh's practice, the position of medical secretary in his office may have been more stressful than either of the two medical secretary positions which Mrs. Allan had held prior to 1990, there was no evidence before me that Mrs. Allan was incapable of performing the job of receptionist/medical secretary in Dr. Singh's office in 1990. There was also no evidence that Mrs. Allan's seizures would in any way interfere with her performance of the job. At best, there was evidence given by Dr. Wherrett that she was well advised to avoid stressful situations, but the question of whether the position in Dr. Singh's office was too stressful for Mrs. Allan (keeping her health interests in mind, not her capacity to safely perform the job) was something which could only have been determined once she had completed the one-month period of probation. To summarize, the respondent has failed to establish, on the preponderance of probabilities, that Mrs. Allan was incapable of performing the job of receptionist/medical secretary in Dr. Singh's office in 1990.
21What happened in April 1990 from Theresa Allan's perspective? Mrs. Allan's recollection of the events of April 2, 3, and 4, 1990, is substantially the same as Dr. Singh's except that Mrs. Allan denied any touching of Mr. Ghoman. In my opinion, nothing turns on this point, because it was used by Dr. Singh as an explanation of why he started observing Mrs. Allan more closely, and it was not explained as forming any part of the reason why he said that Mrs. Allan could not do the receptionist duties of a medical secretary. Furthermore, from Mr. Ghoman's account of what happened, it appears to me that Mrs. Allan was attempting to be welcoming to Mr. Ghoman. Although this may have been bad judgment on Mrs. Allan's part in the circumstances, I am satisfied that Mrs. Allan was truthful when she denied touching anyone in an improper way. From my observation of Mrs. Allan, I believe that she is a very outgoing, friendly person who is eager to please her employers. Had Dr. Singh expressed his disapproval to her about Mr. Ghoman, I am convinced that nothing of this sort would have ever happened again.
22It was Mrs. Allan's evidence that after she told Dr. Singh on April 4, 1990, of her temporal lobe epilepsy, he closed his eyes, crossed his arms and shook his head, saying, "I don't want you working for me. I want someone more competent. If there is an emergency how do I know that you can relate it to me if you had a seizure? I [Mrs. Allan] said ”˜why: You won't even let me show you what I can do.' He said, ”˜we have room in the back . . . but I don't want you exposed to my patients.' "
23Mrs. Allan testified that she continued to ask him to listen so she could explain everything, but that he refused to listen. She admitted that she was crying at this point and that she was very upset. Dr. Singh denied that he prevented her from telling him about her medical condition, but he did state that he thought that her crying was out of proportion to what had happened, and that it was further evidence of her lack of stability. Both witnesses struck me as honest, sincere and truthful. How are their stories to be reconciled?
24Both Dr. Singh and Mrs. Allan were correct from their perspective. Mrs. Allan was crying. Dr. Singh comes from a culture where emotions are displayed less readily. Dr. Singh thought that Mrs. Allan had finished her account of her medical condition, and he understood that she was on Dilantin at that time. Mrs. Allan on the other hand, had only begun to tell him of her medical history, so that when she told him she was on Dilantin, she meant that she was on Dilantin in the past, and would have proceeded to tell him of her experiences since then, had she had the opportunity. His decision to relieve her from all receptionist responsibilities upset Mrs. Allan so she started to cry. He saw this as further evidence that he was making the correct decision and so communications deteriorated.
25I am quite convinced that Dr. Singh had no intention to violate the Human Rights Code and that he had no malice toward Mrs. Allan. I am also convinced that, had full and complete communication occurred between Dr. Singh and Mrs. Allan on April 4, 1990, they would in all likelihood have enjoyed a long and successful business relationship. Unfortunately, Dr. Singh was not in possession of all relevant information concerning Mrs. Allan's capacity to perform the job when he reached the conclusion that she was not capable of working as a receptionist/secretary. Not only was he not in possession of all relevant information, he was operating on the basis of incorrect information, that is, he made his decision because he believed she was experiencing grand mal or clonic tonic seizures. That was clearly not the case.
26In my opinion, Dr. Singh could have verified Mrs. Allan's medical condition and work capabilities in several ways, quite easily. He could have waited until Mrs. Allan stopped crying to hear more of her story. He could have called her family physician and/or her neurologist. He could have called her previous employers and particularly those who had given her letters of recommendation. If he did not wish to risk having her fail to relay an emergency call to him that afternoon, he could have given her the afternoon off while he checked her references and called her doctors. In the alternative, he could have requested that the other part-time secretary working for him at the time come in to assist while he took these steps to determine Mrs. Allan's true medical condition. Dr. Singh did none of these things.
27Although Dr. Singh is obviously a busy doctor, and although emergency calls do come to his office, there is no evidence to suggest that making a decision about Mrs. Allan's ability to perform the job was in the nature of an "emergency." Dr. Singh in his testimony likened his response to the question of what to do abut Mrs. Allan to the situation of responding to a telephone call from a mother whose child had just swallowed something potentially poisonous. The immediate problem is what did the child swallow, and is it poisonous and how should it be treated. The long term problem is why did the child get the pills in the first place. In relating this analogy, Dr. Singh stressed the urgency with which such decisions must be made. To my mind, Dr. Singh treated the employment question of whether Mrs. Allan could carry on as a receptionist/secretary in the same way as he treats medical questions of some urgency. This method of decision making may be critical in some medical situations, but it is not appropriate for employment decisions, particularly where a decision must be made about an employee's capacity to perform when that employee has a handicap within the meaning of the Human Rights Code. It is no defence under s. 17 of the Code to say that "I had to act quickly and on the basis of the information I had I made a reasonable objective decision. That would have been correct if the information I had had been correct."
28I note that Theresa Allan did everything possible to give Dr. Singh accurate information about her medical condition when he asked for it on April 4, 1990. She in no way perpetuated Dr. Singh's misunderstanding of her condition, and she was under no obligation to do anything further to bring the truth to his attention.
IV. THE LAW: LIABILITY UNDER THE HUMAN RIGHTS CODE
29The issue in this case is whether or not Dr. Singh can avail himself of the defence set out in s. 17 of the Code. Section 17 provides that:
17(1) 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.
(2) . . . a board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Section 5(1) of the Code provides that: "Every person has a right to equal treatment with respect to employment without discrimination because of . . . handicap." Section 10(1)(b) provides that:
"because of handicap" means for the reason that the person has or has had, or is believed to have or have had, . . . epilepsy . . .
Under these provisions of the Code, Theresa Allan has the right to equal treatment with respect to employment without discrimination because she has epilepsy, but this right is not infringed if she is denied employment for the reason only that she is incapable of performing the essential duties or requirements of the employment because of the epilepsy.
30For Dr. Singh to come within the s. 17 defence, he must establish that Theresa Allan was denied employment for the reason only that she was incapable of performing the essential duties of the job of receptionist/secretary. Dr. Singh has established that Theresa Allan was denied employment for the reason only that he believed she was incapable of performing the essential duties of the job of receptionist/secretary. As noted above, Dr. Singh has not established that Theresa Allan was actually incapable of performing the receptionist job. Hence, Dr. Singh has not established a s. 17 defence, and he is liable for his breach of ss. 5 and 9 of the Code.
31This approach is supported by the case law, particularly Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170; Belliveau v. Steel Co. of Canada(1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250; Chamberlin v. 599273 Ontario Ltd.(1989), 1989 CanLII 9081 (ON HRT), 11 C.H.R.R. D/110; Rapson v. Stemms Restaurants Ltd.(1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449; Ghosh v. Domglas Inc. (1992) unreported [now reported 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216]. In the Cameron case, the Board stated at [p. D/2192] para. 18494:
In my opinion, paragraph 16(1)(b) expresses, in itself, simply an objective requirement. A respondent must establish by a preponderance of evidence on an objective basis that the handicap of the complainant renders her incapable of performing or fulfilling the essential duties or requirements relating to the employment position. The subjective [component] is not present in paragraph 16(1)(b).
The Board went on to state at [p. D/2193] para. 18508:
The cases emphasize that a respondent cannot rely upon mere "impressionistic" evidence . . . However, it is not sufficient for an employer to simply form an impression, albeit an honest one in the sense that no improper motive is present, that a person's handicap prevents her from performing the essential tasks of a job.
In the Belliveau case, the Board stated that "the employer has a duty to take all reasonable steps to establish the correct medical situation" ([D/5256] para. 39619). In that case, the employer "had reasonable grounds for thinking the complainant was medically unfit. However, it did not take all the steps appropriate to determine the issue of fitness" ([D/5255] para. 39610).
32Hence, it is no defence for Dr. Singh to assert that he formed an honest opinion based on reasonable grounds. To avail himself of the defence, he must establish both that Theresa Allan was incapable of performing the job and that he had taken all reasonable steps to establish the correct medical situation of Theresa Allan. Dr. Singh failed to establish these elements of s. 17.
33Even if Dr. Singh established on a preponderance of evidence that Mrs. Allan was incapable of performing the job, he could still not avail himself of the s. 17 defence. In the Ghosh case, supra, at 44 [D/232], the Board stated:
In the result, although it is known ex post facto that Mr. Ghosh was incapable of doing the Shift Superintendent's job, since it was not known when the decision was made, that incapacity would not appear to provide a defence to this complaint. Be that as it may, there was no evidence that, at the time of its decision, Domglas either knew that Mr. Ghosh's handicap could not have been accommodated without undue hardship, or that it made any attempt whatsoever to find out whether it could.
34In my opinion, on the basis of the facts in this case, and on a plain reading of the Code in light of the case law, Dr. Singh has breached Theresa Allan's right to be free from discrimination under ss. 5(1) and 9 of the Code, and has failed to establish a s. 17 defence. Before dealing with the question of a remedy, I will deal with two minor matters.
First, the Code clearly protects probationary employees. See Rapson, supra, D/460, para. 83. Second, Mrs. Allan was not obligated to tell Dr. Singh of her medical condition. See Rapson at p. D/460, para. 86: and see also s. 22(2) of the Code.
V. THE REMEDY
35Theresa Allan is seeking special damages for three weeks of unemployment which corresponds to the remainder of her probationary contract. This amounts to 3 x $360 = $1080. She is also claiming pre-judgment interest. Although I am not bound by the Courts of Justice Act [S.O. 1990, c. C.43], it is appropriate to use it as a guide to determine the applicable rate of interest. The complainant is claiming interest from July 16, 1990, to the date of this judgment, which, following the Courts of Justice Act, I will fix at 13.9 percent.
36Mrs. Allan is also seeking general damages under s. 41 of the Code for her loss of right to be free from discrimination, and for mental anguish. I am convinced that Mrs. Allan suffered injury in her loss of right to be free from discrimination. She testified that she felt that she felt [sic] like someone had thrown s — - in her face, and that she was made to feel that she was an invalid or someone from the circus. In light of the amounts of awards made under this head in the cases cited previously in this judgment, I would award Mrs. Allan the sum of $2,000 in general damages, for loss of her right to be free from discrimination, plus interest at the rate of 13.9 percent from July 16, 1990, to the date of this judgment.
37Apart from Mrs. Allan's evidence about how she felt when Dr. Singh dismissed her from the position of receptionist/secretary, there is no evidence about the effect that Dr. Singh's actions had upon Mrs. Allan. Therefore, I am not persuaded that Mrs. Allan suffered mental anguish as a result of Dr. Singh's violation of the Code, and there will be no award for damages under this head. I do find, however, that Dr. Singh's actions were "wilful" within the meaning of s. 41 of the Code. See Cameron, supra, [D/2198] para. 18545:
It seems to me that "wilfully" as used in para. 40(1)(b), and preceded by "where the infringement has been engaged in," means "intentionally," "knowingly" or "deliberately."
VI. ORDER
38This Board of Inquiry having found the respondent Dr. J.H. Singh to be in breach of ss. 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, in respect of the complainant, Mrs. Allan, for the reasons given this Board of Inquiry orders the following:
That Dr. J.H. Singh pay to Mrs. Theresa Allan the sum of $1,080 as special damages, but that Dr. Singh remit 10 percent of this amount to the appropriate Receiver General in payment for income taxes on behalf of Mrs. Allan.
That Dr. J.H. Singh pay to Mrs. Theresa Allan the sum of $2,000 as general damages for the loss of her right to be free of discrimination.
That Dr. J.H. Singh pay to Mrs. Theresa Allan interest on the amounts set out in paras. 1 and 2 from July 16, 1990, to the date of this order at the rate of 13.9 percent per annum.
That Dr. J.H. Singh pay to Mrs. Theresa Allan interest on the total of the amounts set out in paras. 1, 2 and 3 of this order from the date of this order at the rate of interest that would ordinarily be applicable if this were a court order under the Courts of Justice Act.
This Board will remain seized of this matter until payment of the amounts set out above is made in full to the satisfaction of all parties to this proceeding.