Ketola v. Value Propane Inc. (No. 1), 2002 CanLII 46510

Ketola v. Value Propane Inc. (No. 1)

Date: 2002-07-16

Ontario Board of Inquiry

CHRR Doc. 02-131

Tuomo Ketola Complainant

and

Ontario Human Rights Commission Commission

v.

Value Propane Inc., Robert Mungall and Renee Mungall-Brethour Respondents

Date of Complaint: October 10, 2001 Date of Decision: July 16, 2002 Before: Ontario Board of Inquiry, Matthew D. Garfield Decision No.: 02-013

Appearances by: Prabhu Rajan, Counsel for the Commission Tuomo Ketola and Irja Ketola, on behalf of the Complainant Charles Mark, Counsel for the Respondents Renee Mungall-Brethour, on behalf of the Respondents

DISABILITY — discriminatory treatment and employment terminated on the basis of ALS (amyotrophic lateral sclerosis) — perceived disability — RETALIATION — employment terminated and civil action commenced after filing human rights complaint — definition of reprisal — EVIDENCE — credibility of witnesses — INTERPRETATION OF STATUTES — definition of "disability"

Summary: The Ontario Board of Inquiry ruled that Value Propane Inc., Robert Mungall and Renee Mungall-Brethour discriminated against Tuomo Ketola because of a disability.

In 1996 Robert Mungall approached Tuomo Ketola and Rocky De Rocchis (who worked together at another propane company) to help Mr. Mungall start up a propane business in the Sunderland-Beaverton area. Mr. Ketola became an independent contractor to Mr. Mungall and was paid $2,000 per month. His contract involved doing the billings, other related office work (such as answering the telephone and speaking to clients), purging, filling and delivering propane tanks to customers, and assisting in the installation of tanks for customers. Mr. De Rocchis worked as a sales agent for Value Propane.

In June 1997 Mr. Ketola experienced tongue paralysis, which caused slurring of speech and excessive saliva production. Between 1997 and 1999 Mr. Ketola's condition worsened, although he remained able to perform his work. During this period Mr. Ketola did not know what was wrong with him. In December 1999 he was diagnosed with amyotrophic lateral sclerosis ("ALS"), or Lou Gehrig's disease, which is characterized by degeneration of nerve cells and pathways in the brain and spinal chord, which leads to progressive paralysis of the muscles, and ultimately, death.

The Tribunal found that between 1997 and 1999, though his condition had not been identified as ALS, the respondents were aware that Mr. Ketola was ill, and that his condition was deteriorating. Further, the indicia of his illness (slurred speech, excessive saliva production) made them treat him differently, in particular by reducing his hours of work, removing his telephone, and finally by terminating his employment.

The Board of Inquiry rejected the respondent's contentions that they did not consider Mr. Ketola disabled as he continued to perform his work ably and that they fired him solely because he was a thief.

Mr. Mungall argued that in December 1999 he became aware that propane was being stolen from the tank on Value's property. He hired a security firm to investigate and the security firm provided him with video footage of Tuoma Ketola, taking propane from the company's tank and filling 100 pound and 20 pound tanks, which the company did not regularly use.

The respondents fired Mr. Ketola in January 2000 ostensibly because of this theft. The Board of Inquiry found that the respondents genuinely believed that Tuoma Ketola was stealing from them. However, their refusal to admit their error when offered the reasonable and factual explanation that Mr. Ketola was filling and delivering tanks of propane to Bartlett Construction to fulfill the terms of a contract made with that company by Mr. De Rocchis confirmed the Board of Inquiry's conclusion that the respondents wished to get rid of a contractor whom they viewed as sick and becoming progressively sicker.

The Board of Inquiry found that in addition to discriminating against Mr. Ketola by terminating his employment because of his disability, the respondents also retaliated against him by threatening criminal action after he filed his complaint and by launching a civil suit in small claims court specifically in response to the human rights complaint. The respondents freely and openly admitted wanting to punish Mr. Ketola for filing a complaint.

The Board of Inquiry retained jurisdiction to deal with remedy.

Ed. Note: See also (No. 2), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd.Inq.).

CASES CITED

Curling v. Torimiro (No. 2) (1999), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468, [1999] O.H.R.B.I.D. No. 17: 122

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 30

Jones v. Amway of Canada Ltd. (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480, [2001] O.H.R.B.I.D. No. 9 (QL): 116

Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177, [2002] O.J. No. 1504 (QL) (Sup.Ct.): 116

Payne v. Otsuka Pharmaceutical Co. (No. 2) (2001), 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52, [2001] O.H.R.B.I.D. No. 23 (QL): 34

Québec (Comm. des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal (Ville), 2000 SCC 27, [2000] 1 S.C.R. 665, 37 C.H.R.R. D/271: 38

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 3: 4, 33, 138

s. 5(1): 33

s. 8: 4, 115, 138

s. 9: 4, 138

s. 10(1): 37, 40

s. 34: 125

s. 36: 126

s. 45(1): 137

Québec

Charter of Human Rights and Freedoms, R.S.Q. c. C-12: 38

INTRODUCTION

1Tuomo ("Tom") Ketola is terminally ill. He was diagnosed with Lou Gehrig's Disease, named after the famous baseball player. Also known as amyotrophic lateral sclerosis ("ALS"), it is a rapidly progressive and fatal neuromuscular disease. It is characterized by degeneration of a select group of nerve cells and pathways in the brain and spinal chord, which leads to progressive paralysis of the muscles, and ultimately, death.

2These are the Board's reasons for decision involving a complaint by Tom Ketola that he was treated differently, including having his contract for services terminated, due to his disability – namely, ALS. The complaint, by order of the Board, also involves an allegation of reprisal. The respondents say that they terminated Mr. Ketola's contract for services because he was caught stealing propane; that they did not know he was disabled, namely, diagnosed with ALS; that he was able to perform his duties; and that they did not treat him differently because of his health condition, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"). The duty to accommodate to the point of undue hardship is not applicable in the instant case. Regarding the reprisal, the respondents claim that they simply sued Mr. Ketola in Small Claims Court, inter alia, for the alleged theft by Mr. Ketola.

ISSUES

3The Board deals with the following issues:

(1) Was Mr. Ketola disabled within the purview of the Code?

(2) Regarding the issue of disability discrimination, is s. 3 or subsection 5(1) applicable?

(3) Did the respondents treat Mr. Ketola differently because of his disability by removing the telephone he used and reducing his job duties and hours of work?

(4) Was disability a factor in the respondents' termination of Mr. Ketola's contract?

(5) Did the respondents retaliate against Mr. Ketola?

(6) What is the appropriate remedy?

DECISION

4The respondents infringed Mr. Ketola's right to contract without discrimination based on disability and committed a reprisal against him, in violation of ss. 3 and 8 respectively. These violations are contrary to s. 9 of the Code.

LIST OF WITNESSES

5The Board heard evidence from the following witnesses:

(1) Tom Ketola – the complainant. Because of Mr. Ketola's condition, he was not able to speak. On consent of all the parties, his evidence-in-chief was given by way of affidavit. His evidence in cross-examination was heard with the use of a voice synthesizer;

(2) Rocky De Rocchis – a sales agent for the corporate respondent, Value Propane Inc. ("Value");

(3) Allan Bartlett – principal in a building construction company and a customer of Mr. De Rocchis/Value;

(4) Irja Ketola – wife of the complainant;

(5) Robert Mungall – president/director/shareholder of Value;

(6) Renee Mungall-Brethour – director/manager of Value and daughter of Robert Mungall;

(7) Don Heyworth – senior inspector, Fuels Safety Division, Technical Standards & Safety Authority;

(8) Joseph McDonald – respondents' corporate/business lawyer;

(9) Michael Loughlin – private investigator;

(10) Jeff Brethour – employee of Value and husband of Renee Mungall-Brethour; and

(11) Randy Benson – former employee of Value.

SYNOPSIS OF EVIDENCE

6The purpose of this section is to provide an overview so the reader can understand the context in which findings of fact are made.

7Tom Ketola had a fair amount of experience in the propane business. In 1996, Robert Mungall approached Mr. Ketola and Rocky De Rocchis (who worked together at another propane company) to help Mr. Mungall start up a propane business in the Sunderland-Beaverton area. Mr. Ketola entered into an oral contract with Mr. Mungall. Mr. Ketola would be paid $2,000 per month. Mr. De Rocchis acted as a sales agent for Value.

8The evidence indicates that Mr. Ketola was an independent contractor. Value did not make the usual employee deductions and remittances. The $2,000 per month (that exact amount was not always billed every month) was billed by T.K. Sales (Mr. Ketola's company). Mr. Ketola was a full-time independent contractor at Value.

9Mr. Ketola's contract involved doing the billings, other related office work (such as answering the telephone and speaking to clients), purging, filling and delivering propane tanks to customers, and assisting in the installation of tanks for customers. He worked initially from 8:00 a.m. to 4:00 p.m. and later from 7:00 a.m. to 3:00 p.m, Monday to Friday. As will be discussed later, he subsequently did not work Fridays.

10The yard component of his work at Gamebridge was located about twenty-five kilometres from the office in Sunderland, which is located next door to Mr. De Rocchis' Lock Variety, which also acts as a satellite sales office for Value.

11Renee Mungall-Brethour ran the day-to-day affairs of the business. Robert Mungall was the "boss". He made the final decisions on important matters involving the business, including the termination of Mr. Ketola's contract.

12In June 1997, Mr. Ketola experienced tongue paralysis. He and his wife did not know the cause. At first, they thought it might be due to a new dental bridge. The bridge was replaced but the condition did not improve. The paralysis caused slurring of speech and excessive saliva production.

13It was at this point that Mr. Ketola says he noticed that Mr. Mungall and Mrs. Mungall-Brethour did not consult him as much about the business. In the summer of 1997, Mr. Mungall reduced his working days from five to four per week – Fridays would be off. In October 1997, Mr. Ketola returned to five days per week.

14By summer the following year (1998), again his work days were reduced to four. Mr. Ketola says that at this time his health condition was more noticeable, although no one, including himself, knew the diagnosis of his illness. He was still able to perform his duties, although it was getting progressively more difficult to communicate with people – be they co-workers or customers.

15In the fall of 1998, on two separate occasions, Mr. Ketola avers that his telephone in the office was moved. He says it was because of his health condition. The respondents say he was not denied the use of the telephone and that there was only one telephone, not two. Mr. Ketola testifies that "this was an attempt by the respondents to get me to quit".

16By summer of 1999, his condition had become worse and more noticeable. Still, neither he nor anyone else knew exactly what was wrong, but he was still able to do his work effectively, except for communication over the telephone. However, Mr. Ketola felt the Mungalls were speaking to him less often and excluding him from business discussions. He says he "felt shunned, like a persona non grata".

17In August of 1999, Value hired Jeff Brethour, the husband of Renee Mungall-Brethour. Mr. Brethour purged, filled and delivered propane tanks, which were duties of Mr. Ketola. Mr. Ketola was still not working Fridays at this point.

18In November 1999, Mr. De Rocchis, who was a friend of Mr. Ketola and sales agent of Value, approached him and said that Mr. Mungall had agreed to provide Bartlett Construction with propane in small-sized cylinders for its job site at Heritage Farms. It would be provided in 100-pound cylinders rather than the usual 420-pound ones. Mr. De Rocchis was to supply the actual cylinders and Mr. Ketola, on behalf of Value, was to purge, fill and deliver them to Bartlett.

19On the basis of this arrangement, in late November 1999, Mr. Ketola picked up three 100-pound cylinders from Mr. De Rocchis' Lock Variety office (which also acted as a Value satellite office), went to the Value yard next door, purged and filled the tanks. He dropped one tank at Lock Variety and took two to the Bartlett job site. In early December 1999, Mr. Ketola picked up one more 100-pound cylinder from Lock Variety and filled it at the yard. He then picked up the other 100-pound cylinder from Lock Variety and delivered both to the Bartlett job site.

20A few days later, Mr. Ketola picked up three twenty-pound cylinders (the size of standard barbecue propane tanks) from Lock Variety and partially filled them in the yard. He then returned to Lock Variety and used these three to purge one other 100-pound cylinder. He then left all four tanks at Lock Variety.

21On December 6, 1999, Mr. Ketola was diagnosed with ALS by Dr. Cashman, his specialist. Understandably, he was devastated at receiving this "death sentence". On January 6, 2000, his family physician, Dr. Laudanski, confirmed the ALS diagnosis as final. The respondents were not aware of this at this point. For Mr. and Mrs. Ketola, it was a devastating time in their lives both in terms of the current stress, and because of the future progression of the disease.

22In January 2000, Mr. Ketola only worked on the 3^rd, 12^th, 13^th and 17^th. Mr. Ketola testifies that, "I was also concerned that I might be fired once I told them [respondents] that I had been diagnosed with ALS. However, I likely would have told them once I accepted it myself. However, I never got that opportunity". He was "fired" on January 18, 2000.

23In the fall of 1999, unbeknownst to Mr. Ketola, the respondents believed that someone was stealing small amounts of propane from the yard. In December, the respondents retained Hy-Tec Security to find the thief. Michael Loughlin, a veteran Toronto Police officer, of Hy-Tec went undercover and embarked on surveillance of the yard and Lock Variety. What he filmed on several occasions in December 1999 was Mr. Ketola purging, filling and taking cylinders. As will be discussed later in more detail, the respondents and Mr. Loughlin thought the video confirmed that Mr. Ketola, to their surprise, was the thief. What Messrs. Ketola, De Rocchis, and Bartlett and Mrs. Ketola say is that the video supports that Mr. Ketola was doing his job, in furtherance of the deal to provide propane fuel to Bartlett Construction. Mr. Mungall and Mrs. Mungall-Brethour deny there was a deal with Bartlett Construction.

24From approximately December 13, 1999, when Mr. Mungall saw the video and concluded that Tom Ketola was the thief they were looking for, and January 18, 2000, Mr. Ketola was still working for Value. Not wanting to "fire" Mr. Ketola over the Christmas-New Year period, the respondents contacted their lawyer, Joseph McDonald, again in January 2000. With Mr. Mungall in Florida and Mrs. Mungall-Brethour not wanting to do the actual firing, they asked Mr. McDonald to come to the office and terminate Mr. Ketola's contract on January 18, 2000. He did so.

25There is conflicting testimony as to what was said. This will be dealt with later in the Reasons. However, it is clear that the intention was to terminate Mr. Ketola's contract, not to investigate further or question him to see if indeed he had stolen. It was a fait accompli. Mr. Ketola was shocked, and literally and figuratively – speechless. He handed in his keys and was told not to come within 500 yards of the premises.

26Mr. Ketola went home and told his wife what happened. She was stunned. She called Mrs. Mungall-Brethour to discuss the situation. Mrs. Ketola called Mr. De Rocchis. He was shocked. Mr. De Rocchis contacted Mrs. Mungall-Brethour to find out what happened, but it was to no avail. A sales slip for the Bartlett propane and a $126 cheque was subsequently delivered to the Value office. Mrs. Mungall-Brethour cashed the cheque. Mrs. Ketola tried further to "straighten out the mess". Mrs. Mungall-Brethour did not respond. From their perspective, and to the last day of the hearing, the respondents are convinced that Tom Ketola stole propane from Value and they lawfully terminated his contract.

27After not receiving any response to the matter, the Ketolas contacted the Ontario Human Rights Commission ("Commission") and filed a complaint. In November 2000, Mr. Ketola received the respondents' response to his complaint. In that letter, their counsel, Joseph McDonald stated that Mr. Ketola's allegations were a fabrication to avoid prosecution for "unlawful acts" and that the video would be turned over to the Crown prosecutor. Mr. Ketola then retained legal counsel, feeling scared and threatened by the respondents' response.

28On August 8, 2001, the Commission referred the subject-matter of the complaint to the Board of Inquiry ("Board"). A letter to the parties notifying them of this was sent by the Commission on August 14, 2001. Ten days later – August 24, 2001 – Mr. Ketola's lawyer was served with a Statement of Claim in the Small Claims Court. Value was suing him for $10,000. The basis of the claim was the human rights complaint against the respondents and the theft of propane. Mr. Ketola defended the claim and issued a counterclaim for wrongful termination.

29The Board's initial conference call took place in September 2001. During that call, Mr. McDonald indicated that he would be seeking an injunction in the Superior Court of Justice to stop the Board's process. No such application was ever made. On consent of all the parties on the Commission's motion, the Board ordered the complaint be amended to add the ground of reprisal on November 8, 2001. The hearing of the evidence on the merits commenced December 5, 2001, and ended March 25, 2002.

CREDIBILITY

30A challenging task for an adjudicator is making findings involving credibility. This case raises issues of credibility throughout. The Board is mindful of, and has applied, the test as enunciated in the often quoted case on credibility – Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At 356–57, the Court writes:

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility ... The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions ... Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken.

31The Board finds the complainant and his wife were very credible witnesses. Their evidence was reliable. Their answers were consistent with previously filed materials in the pre-referral stage and corroborated by other witnesses. In contrast, the Board has concerns about the credibility of the respondents' evidence. That is not to say that none of their evidence was ever credible and reliable. In certain instances, the Board accepts their evidence as credible and reliable. However, in most instances, where there is a clash between the respondents' evidence and Mr. Ketola's, often corroborated by others, the Board accepts the latter's evidence. Notably, Mr. Mungall's and Mrs. Mungall-Brethour's evidence frequently contradicted each other and evidence of other witnesses.

32Some of the respondents' evidence was simply not credible or reliable. This is also in part because of the shifting of the defence throughout the hearing, which was undoubtedly frustrating for Commission counsel and the complainant. For example, the respondents' pleading indicates Mr. Ketola was "fired" due to theft as a result of the investigation. During the hearing, for the first time, counsel for the respondents argues that he was "fired" due to theft and safety violations. Mr. Mungall vacillates between the reason being theft alone or theft and safety. Mr. McDonald testifies it was due to both theft and safety violations. Another example involves the "conspiracy theory". Before the hearing, the respondents' position was that Mr. Ketola was the thief. However, during the hearing, it changes to either he acted alone or perhaps with others, Mr. De Rocchis was the thief with Mr. Ketola either being duped or acting with Mr. De Rocchis. Interestingly, none of these allegations was put to Mr. De Rocchis when he testified.

DISCRIMINATION GROUND OF THE COMPLAINT

Section 3 or Subsection 5(1)?

33Is Mr. Ketola covered under s. 3 or subsection 5(1) of the Code? Section 3 reads, "Every person having legal capacity has a right to contract on equal terms without discrimination because of ... disability". Subsection 5(1) reads, "Every person has a right to equal treatment with respect to employment without discrimination because of ... disability".

34Mr. Ketola and the respondents considered the former an independent contractor. Value paid Mr. Ketola $2,000 monthly. The cheques were made payable to T.K. Sales, Mr. Ketola's company. Value made no statutory remittances or deductions from those payments. The Commission argues that Mr. Ketola falls within subsection 5(1), notwithstanding that he was an independent contractor. The issue is not important to the question of liability and remedy here. Counsel submits that independent contractors fall within the purview of subsection 5(1). The language of subsection 5(1) – i.e., "with respect to employment" – is broader than a traditional employer-employee relationship: see Payne v. Otsuka Pharmaceutical Co., [2001] O.H.R.B.I.D. No. 23 (QL) at § 34–35 [reported 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52 at D/57]. The Board does not find the analogy to Payne apropos here. Unlike the case in Payne, in the instant case, the relationship of independent contractor is clearly covered by a section of the Code – s. 3. As a rule of statutory interpretation, one must presume that the Legislature created s. 3 for a reason. It was clearly to cover the right to contract without discrimination. The right to contract obviously covers more than the period up to and including the "signing" of the contract – written or oral. It includes the life of the contract, including the termination thereof. The Board finds s. 3 clearly covers the situation of an independent contractor, like Mr. Ketola. Not that it factors into the finding, but the Board notes that the complaint filed (Exhibit 2) refers to s. 3, not subsection 5(1), while the Section 36 Case Analysis (Exhibit 27) refers to both sections.

Was Mr. Ketola disabled?

35At first glance, the reader may find the question strange. Of course he was disabled if the complainant suffers from ALS. However, the respondents argue that the Code was not triggered as Mr. Ketola was not "disabled" during his work at Value. The respondents only found out about his disability after he was fired when Mrs. Ketola told Mrs. Mungall-Brethour. Further, they testify that he was always able to do his job.

36The Commission and the complainant argue that Mr. Ketola was disabled, and while not knowing it was ALS, the respondents were aware he was ill and perceived him to be disabled. Commission counsel states that the evidence shows "the respondents no longer wanted to work or deal with someone they perceived as being disabled". Further, the indicia of his illness (slurred speech, excessive saliva production) made them treat him differently (e.g., reduced work hours and duties, removal of telephone), culminating in the termination of his contract on January 18, 2000, and the respondents' refusal to investigate further and reconsider their decision.

37The Commission also submits that Mr. Ketola falls within the definition of "disability" in subsection 10(1) of the Code:

10(1) "disability" means,

(a) 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, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language. [Emphasis added.]

38The Supreme Court of Canada deals with the issue of perception of disability in Québec v. Montréal; Québec v. Boisbriand, 2000 SCC 27, [2000] 1 S.C.R. 665 [37 C.H.R.R. D/271]. Dealing with the Québec Charter of Human Rights and Freedoms [R.S.Q. c. C-12], the Court makes the following salient points (§ 39 [D/286], § 41 [D/287], § 48 [D/288] and § 81 [D/295]):

The objectives of the [Québec] Charter, namely the right to equality and protection against discrimination, cannot be achieved unless we recognize that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations.

... A "handicap", therefore, includes ailments which do not in fact give rise to any limitation or functional disability.

... Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination: [cases cited].

... It is important to note that a "handicap" may exist even without proof of physical limitations or the presence of an ailment. The "handicap" may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further, the Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future. [Emphasis added.]

Regarding the last point, the Board notes that our Code would also prohibit discrimination based on an actual progressive disability that is perceived as getting worse: i.e., Mr. Ketola's declining health, prior to the actual ALS diagnosis.

39The Concise Oxford Dictionary (8th edition: 1990) defines "disability" as, "physical incapacity, either congenital or caused by injury, disease, etc.; a lack of some asset, quality, or attribute, that prevents one's doing something".

40Discrimination because of disability does not have to be tied to a person's performance. In many cases it is, but it need not be. A person could have extreme blisters due to eczema and be performing exceptionally well in the workplace, yet the employer may not feel comfortable with the person's presence. The Board notes that even if a person is able to do his/her job, there still may be a prejudice or perception of disability if an employer holds the view or acts in a way which suggests the employer does not want an employee around who "seems sick" or "looks disabled". And of course subsection 10(1) is not confined to the employment context. It covers all social areas of discrimination in the Code.

41Applying the foregoing, the Board finds that Mr. Ketola's health condition, prior to his termination, constitutes a "disability" or, at the very least, a perception of disability. He was able to perform his core duties – billing, computer work, purging, filling and delivering propane cylinders. However, his tongue paralysis, slurred speech and noticeable excessive saliva production made communicating with co-workers and customers more difficult. The evidence indicates that answering the telephone and speaking to customers was something he did. This ability was negatively affected by his condition. What's clear as well is that the respondents knew something was seriously wrong with Mr. Ketola's health – he was not exhibiting minor symptoms – and that his condition was not improving. In fact, Mr. Ketola was getting worse.

42Mr. Ketola testifies that he was able to do his job and would have been able to continue for two months following the January 18, 2000, termination. However, while the respondents were not aware of the ALS diagnosis prior to the termination, they were aware that he was not well. Mr. Mungall testifies that by summer 1998, the condition was more noticeable, but he still could do his job. He states, "He [Mr. Ketola] didn't tell me how serious it was. I believed he thought his illness was serious ... His illness was progressive". He states with regards to the issue of the telephone being removed, "He [Mr. Ketola] knew he was having trouble communicating on the phone with customers ... He was shying away from answering. If no one else was there, he would reluctantly answer ... Tom's responsibility was not the phone. He was to put accounts into the computer. Calls weren't his job". Notwithstanding, Mr. Mungall concedes that Mr. Ketola did "fill in" and deal with the "overflow" of calls to the office, when others were busy.

43Mrs. Mungall-Brethour testifies that, while in 1998, she noticed a difference, in terms of Mr. Ketola's slurred speech, it didn't affect his job performance. However, she testifies that "Tom's condition was getting worse over time. We all were concerned about his condition". When asked in cross-examination if it was likely Tom Ketola wouldn't have been able to work much longer, she replies, "No, he was still capable of doing all of his duties". Randy Benson, who worked with Mr. Ketola, states that he "didn't know Tom was sick. I knew he had a speech problem. He never discussed it with me". They observed his slurring of speech, which was progressively getting worse. They knew it was getting harder and harder for him to communicate. They knew he was seeing doctors to find out what was wrong. The Board notes that Value's Statement of Claim in the Small Claims Court reads in § 7:

In and about the 29^th, of July, 2001 the Defendant maliciously and without cause filed a complaint against the Plaintiff, the President of the Company Mr. Robert Mungall and his daughter Rene Mungall-Brethour with the Human Rights Commission alleging that the said persons had discriminated against him because of his medical handicap which was well known to the said parties ... [Emphasis added.]

Mr. Ketola testifies that he spoke frequently to Ann Mungall, wife of Mr. Mungall and mother of Renee Mungall-Brethour, about his illness and the frequent trips to the doctors. The office was also Robert and Ann Mungall's personal residence.

44Mrs. Mungall-Brethour was asked why the respondents, after seeing the investigative video on approximately December 13, 1999 and determining Mr. Ketola was the thief, waited until January 18, 2000, to "fire" him. She responds, "He was sick. I didn't think it was something to be done over the telephone". She also says that she "couldn't come up with the courage I guess" to do it sooner. Earlier she had testified, "I didn't have the guts, courage, the heart to do it". Mr. McDonald testifies that Mr. Mungall contacted him "sometime just before Christmas" in 1999 about the video. He says he advised Mr. Mungall that this was a breach of his contract and that he should be discharged. "They were very upset especially Mr. Mungall's wife because they had become friends. I told him the man has to go if he is a thief. He should do it as soon as possible. They were having a difficult time in the family over this. It was getting into Christmas and the New Year".

45The Board finds that the Mungalls were very upset about what they felt (wrongly as it turns out) was a betrayal by someone they trusted (Mr. Ketola) and as Mrs. Mungall-Brethour puts it, "considered as part of the family". Accordingly, they hesitated in terminating his contract over the Christmas-New Year's season. They did not get around to doing so until January 18, 2000. The Board does not accept the Commission's submissions that the investigation was a "set up" and the delay in "firing" him somehow shows this (i.e., why would you keep a thief around for over a month). On the contrary, if the investigation and the video were a set-up, one would have expected the respondents to have terminated Mr. Ketola's contract immediately.

Differential Treatment

Reduced Hours of Work and Hiring of Others

46Mr. Ketola was the only full-time independent contractor at Value. There were approximately four to six employees at any given time and other part-time independent contractors. Mr. Ketola testifies that his oral contract with Robert Mungall back in 1996 was that he would work five days per week at $100 per day or $2,000 per month. Mr. Mungall disputes this. He says that the work schedule was determined by the work to be done. Given the seasonal nature of the propane business – the summer being slow – in July 1997, he told Mr. Ketola that his work days would be reduced to four per week during the summer (with Fridays off), due to business slowdown in the summer. Mr. Mungall states:

We had no choice. In the summer time, we have no work. Our business is in the fall and winter. Tom did not object to the reduction. I don't recall if it went back to five days. It was predicated on the amount of work we had... We valued Tom's efforts. He was strong up and until he left Value... We don't have any income in the summer to substantiate the cost.

In October 1997, Mr. Ketola was returned to five days per week. The Board heard evidence of the seasonal ebb and flow in Value's business. The Board also heard evidence that Mr. Ketola's services were not needed five days per week in the summer. The Board is satisfied that the respondents had bona fide business reasons for reducing his work schedule in the summer of 1997.

47While they returned Mr. Ketola to five days per week, again in the summer of 1998, Mr. Mungall reduced his work days from five to four (Fridays off). He again said this was due to a business slowdown. However, unlike the previous incident, when October rolled around, Mr. Ketola was not permitted to return to a five-day work schedule. The Board accepts Mr. Ketola's evidence that Mr. Mungall did not provide an explanation. Mr. Ketola says that his "objections fell on deaf ears ... It was Mr. Mungall's way or the door way". The Board finds this consistent with Mr. Mungall's demeanour and testimony. He was difficult and at times showed outright rudeness toward Commission counsel – at one point calling him "a dumb ass". Mr. Mungall clearly resented the Commission process and was angry at the complaint launched by Mr. Ketola. He clearly resented any one telling him how to run his business affairs.

48Mr. Mungall states that he didn't return Mr. Ketola to five days per week in 1998 or thereafter because Mr. Ketola was going to medical appointments and depended on the work that was available. "The four days has always been due to the lack of work". Mrs. Mungall-Brethour testifies that Mr. Ketola "liked his Fridays off. He would go to the Cedar Club". She later adds that he also would go for medical appointments. The Board does not find this evidence credible on either Mr. Mungall's or Mrs. Mungall-Brethour's part. Evidence of Mr. and Mrs. Ketola, corroborated by their calendar (Exhibit 4), shows that only one Friday was used in 1999 for medical appointments. Mr. Ketola clearly did not like having his work schedule reduced by one day per week. The Board accepts Mr. and Mrs. Ketola's evidence that inter alia, the reduction had negative financial implications for them.

49The Board also heard evidence of Value hiring Jim Purvis in the spring of 1998 and Jeff Brethour in August 1999 (when Purvis left). In cross-examination, Mr. Mungall was asked about hiring more people and not returning Mr. Ketola to a five-day work week. He avers:

I don't know. I had had more money in 1997 than 1998 or 1999. We were increasing our customer base but we weren't making money. We hired more people in 1999. I can't answer that [why they didn't resume Mr. Ketola's schedule]. I haven't been here for the last five winters. I don't get into the nitty gritty daily operations [of the business].

Commission counsel then says, "Unless someone is stealing from you" and Mr. Mungall responds, "You bet". Mr. Mungall testifies that Mr. Brethour was hired to replace Jim Purvis, not Mr. Ketola. "He [Mr. Brethour] didn't take away work from Tom". The Board heard evidence that Messrs. Purvis and Brethour did many, but not all (i.e., billing on the computer) of the tasks Mr. Ketola did.

50Mrs. Mungall-Brethour testifies that Value never replaced Mr. Ketola after they terminated his services. They "just changed around the duties", distributing his duties to other employees/contractors. When asked if it would be less strain on Mr. Ketola to do some of the physical work, Mr. Mungall responded in the negative and that the work "didn't show on him [Ketola] physically". The respondents consistently testified that Mr. Ketola was able to do the physically demanding aspects of the purging, filling and delivering of propane tanks and the Board so finds. Commission counsel suggested to Mr. Mungall that Mr. Brethour was healthier than Mr. Ketola. The witness responded, "I assume so and he was a third his age. It's better to have someone younger in that physical business. At times we created new duties that were less physically demanding (e.g., purging). We had younger guys do it with less damage and less wear and tear on Tom". The Board will not address whether this amounts to discrimination due to age. Taken in the context of the further findings the Board is making in these reasons, the foregoing suggests that Mr. Ketola's age and his condition made the respondents consciously believe it would not be such a bad thing if Mr. Ketola no longer contracted his services with Value. The time had come to part ways. The video, which made them honestly believe Mr. Ketola was stealing propane, was the instrument that sealed his fate in terms of his continued business relationship with the respondents.

51The Board heard conflicting evidence about whether only Mr. Ketola's work days were reduced. While Mr. Ketola testifies that only his work days were reduced, Mr. Mungall avers that Brenda Thyne's days were too. Mrs. Mungall-Brethour says that Ms. Thyne's and Mr. Purvis's hours were reduced. The respondents did not provide documentary evidence that other employees' time was reduced. The Board accepts Mrs. Mungall-Brethour's evidence that Ms. Thyne's and Mr. Purvis's hours also were reduced. Mr. Ketola's job description was not exactly the same as other employees/independent contractors. There was some overlap – e.g., Brenda Thyne or Mrs. Mungall-Brethour would put billing entries into the computer when Mr. Ketola was away on Fridays and Messrs. Purvis and Brethour delivered tanks too.

52The Board notes that the respondents are permitted to hire and fire employees and change their hours, from a human rights perspective, as long as it is not done for a discriminatory reason or had a discriminatory effect. In the instant case, the Board finds that the hiring of Messrs. Purvis and Brethour, who did many of the same tasks of Mr. Ketola, was tainted with discriminatory factors, because it was done to ease Mr. Ketola out of the business – to replace him because of his illness. The same applies to Mr. Ketola's reduction of work days in 1998; not in 1997, though. It is true that the propane business has high and low seasons. Mr. Ketola was contracted with to help the Mungalls learn the business. It may well be that the respondents breached an implied term of the contract with Mr. Ketola. Those are employment/contractual matters that will be dealt with in Mr. Ketola's counterclaim filed in the Small Claims Court. They are only matters triggering the Code if they involved differential treatment as a result of disability, including perception of disability. The Board finds this to be the case.

Removal of Telephone

53The Commission and the complainant argue that the respondents had two telephones on the desk in the office and removed Mr. Ketola's telephone because they did not want him speaking to customers with his slurred speech. The respondents say there were never two telephones – just one – and Mr. Ketola always had the use of the telephone.

54There were two separate telephone incidents. Mr. Ketola avers that when he went to work one Monday in the fall of 1998, he discovered that his phone was removed from the desk. Mr. Ketola says he felt "sorely insulted" because there was no previous discussion. "I can only think that they removed my phone to make sure that I never answered or used it".

55One or two months later, the telephone was moved again. On this issue, Mr. Ketola testifies:

Previously, I was working at one end of a long table while Mr. Mungall worked at the other end. Both ends had a phone (until my phone was taken away). In late 1998, Mr. Mungall moved his work area upstairs and I moved over to his old location at the other end of the table, which had a phone. The next morning when I arrived at work, the phone was moved away from me to the other end of the table, my old work location. Again, I was not given an explanation.

56Both Mr. Mungall and Mrs. Mungall-Brethour testify that there was only one telephone on the long table, which was shared, and that it was never taken away from Mr. Ketola. Mr. Ketola was not prevented from using the telephone. His access was never reduced. Mr. Mungall avers that answering the telephone wasn't part of Mr. Ketola's job; he just answered it in "overload situations" if no one else was around. He says he never received any complaints from customers about Mr. Ketola's slurred speech and it didn't jeopardize his work. Mr. De Rocchis testifies that he doesn't remember if there were one or two phones.

57Based on the evidence, the Board finds that Mr. Ketola's evidence on this point is more credible than Mr. Mungall's and Mrs. Mungall-Brethour's. The Board finds that initially there were two telephones on the desk which were shared. The Board also finds that, while the respondents never prevented Mr. Ketola from using the telephone or expressly told him not to do so, the telephones were moved on both occasions without explanation. The Board believes the tacit message was clear: we would prefer that you not use the telephone to speak to our customers, because of your difficulty in speaking (i.e., slurred speech). And that amounts to differential treatment because of disability or perception of disability.

Less Communication and Interaction

58Mr. Ketola testifies that he noticed in 1998 that the respondents did not talk to him as much. "I was hardly ever included in the business discussions or decisions". He did speak with Ann Mungall. Mr. Mungall agrees that communication with Mr. Ketola was reduced over time. He also says it was partly attributable to Mr. Ketola and partly to Mr. Mungall. Mr. Mungall states, "I was busy and had a lot of things on my mind".

59The Board finds that there was less communication and interaction between Mr. Ketola and Mr. Mungall. The reduction in communication could be due to many reasons: e.g., the respondents were more knowledgeable about the business as time went on and didn't need to consult with Mr. Ketola as much; the respondents saw him getting worse and wanted to "keep their distance". The reduction in communication and interaction coincides with the progression of his symptoms. The Board does not find this to be a mere coincidence. The Board finds that the reduction was in part due to Mr. Ketola's worsening condition, as was the case with the removal of the telephones.

Termination of Mr. Ketola's Contract for Services

60The Commission and the complainant argue that Mr. Ketola's contract for services was terminated because the respondents saw he was getting progressively sicker and concocted this whole idea of stolen propane as a pretext to "fire" him. The respondents say this is absurd. They argue that there was indeed stolen propane and the video taken by Mr. Loughlin confirms Mr. Ketola was the thief and they terminated his contract for theft.

61As will be discussed in great detail below, the Board finds that the respondents wrongfully terminated Mr. Ketola's contract. The video and viva voce evidence without a doubt show that Mr. Ketola did not steal propane. He was simply delivering orders to Bartlett Construction. In fact, the Board is not even sure that any propane was in fact stolen – given the testimony about the accuracy of the fuel gauge and the steps taken to ascertain the amount of missing propane. The Board also finds that while Mr. Mungall may not have known of the "deal" to supply Value propane to Bartlett Construction, Value's agent, Mr. De Rocchis, on behalf of Value, entered into a binding arrangement to do so. Mr. Ketola was just doing his job. The Board also finds that the respondents honestly, but mistakenly, believed Mr. Ketola was a thief.

62Regarding the above finding, the Board heard evidence about the respondents spending approximately $4,000 to hire Hy-Tec Security to do surveillance work. Mr. Mungall also testified repeatedly about the importance of money and that he had spent $4,000 and wanted to be "made whole" for this loss, by either the Commission or Mr. Ketola. Given Mr. Mungall's evidence on this point alone, the Board does not believe that Mr. Mungall would have spent this money as a pretext or "set up" to terminate Mr. Ketola's contract. It would have been cheaper for him to have simply terminated Mr. Ketola's contract for services.

63The Board is also satisfied that, while not a pretext, an inference may be drawn that it suited the respondents' purposes to believe from the video that Mr. Ketola was their thief and had to be "fired". They were wilfully blind or reckless when confronted with a plausible explanation from Mrs. Ketola and Mr. De Rocchis. However, they chose not to reconsider their decision or, even at a minimum, to investigate further.

64The Board does not find that the respondents' initial reaction after seeing the video in December 1999 was tainted with a discriminatory motive. The Board is satisfied that the respondents truly believed Mr. Ketola was their thief. The pattern of discrimination began before and continued after this event. "Before" this event, the Board is referring to its findings involving reduced hours of work, hiring of others to do much of his work, removal of the telephone, and less communication and interaction with him. "After" the event, the Board is referring to two aspects. First, that period of over one month between the December viewing of the video and the actual January 18, 2000, termination when the respondents decided Mr. Ketola "had to go". The Board is satisfied that the respondents terminated his contract because they thought he was a thief and because he was no longer as effective a worker and the prospects in the future were that his health condition was going to get worse. Secondly, the failure to investigate further or reconsider their decision to terminate his contract after a plausible explanation was given, crystallizes the Board's finding that the decision to terminate his contract and their business relationship with him, partly because of his declining health condition (constituting a disability), was a fait accompli.

Bartlett Deal

65Mr. Ketola testifies that in November 1999, Mr. De Rocchis told him that he and Mr. Mungall had agreed to provide Bartlett Construction with propane in small-sized cylinders at its job site. Mr. Mungall would supply the fuel and Mr. De Rocchis would provide the cylinders. Mr. Ketola was to purge, fill and deliver the cylinders to Bartlett. Mr. De Rocchis was to submit sales slips to Value.

66Based on this arrangement, in late November 1999, Mr. Ketola says he picked up three 100-pound cylinders from Mr. De Rocchis' Lock Variety office, went to the Value yard, purged and filled the tanks. He dropped one tank at Lock Variety and took two to the Bartlett job site. In early December 1999, Mr. Ketola picked up one more 100-pound cylinder from Lock Variety and filled it at the yard. He then picked up the other 100-pound cylinder from Lock Variety and delivered both to the Bartlett job site.

67A few days later, Mr. Ketola picked up three twenty-pound cylinders from Lock Variety and partially filled them in the yard. He then returned to Lock Variety and used these three to purge one other 100-pound cylinder. He then left all four tanks at Lock Variety. When asked why he delivered the tanks on a Friday (which he was not being paid for), Mr. Ketola says he did it as a favour to his friend Mr. De Rocchis. The Board heard evidence that they are friends and worked together before Value. The Board accepts Mr. Ketola's explanation.

68Mr. De Rocchis confirms that there was a deal among him, Robert Mungall and Allan Bartlett to provide propane. He says they agreed to this in person at a meeting at Lock Variety. "There's no doubt there was a deal to provide fuel to Bartlett". When respondents' counsel suggested to him, "There never was an agreement between Bartlett and Bob to deliver 20 and 100-pound cylinders", he replied, "The agreement was to give fuel for heat. You supply him, it doesn't matter the size [of cylinders]. We use anything we have as long as we can service the client". He says he had a tentative written contract but it was never signed. "Sometimes it is done that way".

69Allan Bartlett testifies that Mr. Mungall "wanted to sell me propane". He admits that Mr. Mungall wanted initially to sell him fuel in larger 420-pound tanks but he wanted them in 100-pound tanks. He says Mr. Mungall agreed. After that meeting, he dealt with Mr. De Rocchis, including paying him for the propane. "As far as I was concerned, Rocky was Value Propane". He did concede that while he didn't have an account with Value, all his dealings were with Rocky, who was the sales representative of Value. Mr. De Rocchis even had a Value Propane sign over his store.

70Mr. Mungall has a different side of the story. He testifies that he was part of that conversation with Rocky De Rocchis and Allan Bartlett. However, he denies that he agreed to supply propane to Mr. Bartlett in 100-pound cylinders. Mr. Mungall did concede that he "wanted Bartlett's business". He says that Value didn't deal with 100-pound cylinders and that it was not economically viable to enter into such a deal. He says the amount charged for the fuel was well below normal pricing and was not approved by him or his daughter Renee. Mr. De Rocchis says that it was done with the hope that future larger business would be gained from Bartlett. This was done before as a business practice. While the Board is not convinced that Mr. Mungall approved the deal directly, it is satisfied that Mr. De Rocchis, as Value's agent, bound Value into this contract with Bartlett. Indeed, Mr. De Rocchis was never admonished for this and still remains a sales agent of Value. As will be discussed later, Value was paid the $126 for the propane, and accepted said payment.

The "Stolen" Propane

71Concurrent with the Bartlett deal and Robert Mungall's and Renee Mungall-Brethour's lack of knowledge about it, was the concern about missing propane at Value. The Board heard evidence that the respondents started noticing in the fall of 1999 that they may have a theft problem. Jeff Brethour told his wife, Renee, that he was noticing fuel missing from the large fuel dispenser in the yard.

72Mr. Brethour then started to set "traps". He spoke to his friend Randy Benson about it. They decided to lock the front gate to the yard in a particular way (for example, five links of the chain on the left and three on the right) and see if it was altered the next morning. They noticed it was altered. They concluded that someone must have been in there between 10:00 p.m. and 6:00 a.m. Mr. Brethour concedes that some mornings it had not been touched. They also put the lock on the electrical panel for the dispenser tank in a certain way. Two or three times they noticed that the lock was not in the same position. The conclusion drawn was that someone had altered it in off hours. Mr. Benson, who was first in the yard in the morning, was to look at the "traps".

73Mr. Brethour also testifies that they monitored the 1,000-gallon dispenser tank gauge. He concedes that one could take seventy-five litres out of it and it would not register a difference on the gauge. The gauge, the Board heard, was similar to the fuel gauge in a car. "Randy's job was to fill it. Some mornings I knew I left it at the 40 percent mark and it would be at 35 or 37 mark. Three percent is quite a bit. I noticed it three times ... I told Renee we had a problem". In cross-examination, Mr. Brethour testifies that it is possible the 3-percent discrepancy in the float gauge was caused by temperature changes and that no propane was in fact missing. Notwithstanding, he still believes that propane was stolen. However, he says it is possible, from looking at the video (Exhibit 8) that Mr. Ketola was taking propane for legitimate purposes.

74Mr. Ketola gives evidence about the "missing" propane and the accuracy of the gauge on the 1,000-gallon dispenser tank:

I also find it hard to believe that the respondents noticed that the percentage of propane in the dispenser tank was going down. Value Propane's yard had, at the time, one 1,000-gallon dispenser tank, which was generally filled to 80% capacity. This translates into approximately 800 gallons or 3,028 litres. A typical daily propane usage was from 200 to 1,500 litres and no records were kept as to how much propane went where. Records were kept only for the amount of propane put into the dispenser tank by the truck tanks. The dispenser tank had a gauge, which has a small floater inside much like a toilet. The gauge attempts to indicate the percentage of fuel from full to empty at 10% intervals but is hardly accurate. Therefore, it would be very difficult to accurately measure the propane taken into the dispenser tank. For example, 3-100 pound cylinders take 270 litres, which is less than 10% of the total propane in the dispenser tank and almost impossible to notice from the percentage gauge.

Based on the evidence the Board heard from various witnesses, the Board finds Mr. Ketola's evidence above very credible and reliable.

75Randy Benson corroborates Mr. Brethour's testimony about the missing propane. Mr. Benson says he thought someone was there taking propane at night. He found the Quonset hut door open. He mentioned to Mrs. Mungall-Brethour and Mr. Brethour that something was strange. He says he wrapped the gate chain in a different way. He locked the dispenser padlock in a certain way. Sometimes he would notice it was not locked in the morning the same way as the night before. His hours varied from 7:00 p.m. to 10:00 p.m. departure from the yard to an arrival of 4:00–4:30 a.m. He testifies that he said to Mrs. Mungall-Brethour and Mr. Brethour, "I think someone is stealing".

76The following exchange between Commission counsel and Mrs. Mungall-Brethour illustrates the accuracy of the supposition that fuel had been stolen:

Q. How did you know [fuel was being taken unlawfully];

A. The dispenser was going down and no one was using it.

Q. Your father said he checked it twice that the fuel was going down.

A. He checked two times. I asked Randy. The gates were not locked the same way.

Q. What about the dispenser?

A. Randy told me about the gate and gauge. I don't remember how many times.

Q. What did Randy tell you?

A. I don't remember. He wanted to know why the dispenser was down. He looked at the gauge. He possibly looked the night before. He was the one who would fill the dispenser. He would know when he last filled it and noticed that it went down.

Q. In between, it could have been used once, twice. Did he know what others did?

A. He would ask me. I knew the majority of the time.

Q. There was no real basis for knowing the fuel went down?

A. Wrong. They (Jeff and Randy individually) would check the gauge. Tom and Jeff used it the most ... Randy would call me or stop by my house on his way home or in the morning and tell me the gauge is down.

Q. How would he have any clue on how far it went down if he didn't know what activity had taken place?

A. You are somewhat correct.

Q. How can you say no one was using the dispenser?

A. I can't say that. I know no one was supposed to be using it. People could be using them. I would know based on the paper work. I relied on Randy.

Q. You relied on Randy and he had no basis.

A. He had somewhat of a basis. He checked it [gauge] whenever he wanted to. He would look at the gauge. The gauge isn't completely accurate. It is as accurate as the gauge in your car. [Emphasis added.]

77Robert Mungall also testifies about the missing fuel. He corroborates Messrs. Benson's and Brethour's testimony about the "traps" that were set in the fall of 1999. He states:

The whole thing was predicated that we were losing fuel over several months and it got worse. We had to do something about it. We would put fuel in the dispenser and have the metre ticket. We would check the gauge. We would monitor it. The tank would be less full than before, not a significant amount, a few percentage points. Eighty per cent is really full. It's hard to quantify. There is a margin of error... It became more and more of an imbalance. And no one would say they were in the yard before. No one admitted it. We knew something was going on. I realized it had to be someone with a key... I was upset about it. I can't quantify how much fuel was lost. The video [Exhibit 8] shows 200–300 litres taken.

78In cross-examination, Mr. Mungall avers, "No one specifically said there was missing fuel. We suspected it ... We were suspicious because the gauge was moving when there was no action. It moved by 2–5 percent on the gauge. One percent you wouldn't notice; could be temperature change". He says they checked for leaks and the tank was fine. So theft was the only conclusion. Mr. Mungall says the topic was discussed in after-work informal gatherings over a beer with Messrs. Brethour, Benson and some of the other contractors. Mr. Ketola was not a part of the group by his choosing, not theirs, says Mr. Mungall. He confirms that he never spoke to Mr. Ketola about the suspicions of theft of propane in the yard. When asked why he never thought to ask Tom Ketola about it, Mr. Mungall replied, "I never thought to ask Tom. What he did wasn't relevant to the missing fuel or checking the gates. These things were done after work. My concern was theft at night". He later says that he didn't ask Mr. Ketola about any possible involvement by Mr. De Rocchis and whether he had lent his key to Mr. De Rocchis because, "I thought he might tell Rocky. They were thick as thieves – I didn't suspect Tom. If I had, I wouldn't have spent the money (i.e., $4,000) on the video".

79Based on the evidence of the witnesses, the Board makes the following findings of fact:

(1) The respondents honestly believed that fuel was missing and unaccounted for;

(2) The respondents did not believe that Tom Ketola was stealing the fuel;

(3) The respondents were suspicious of Mr. De Rocchis regarding the missing fuel;

(4) Mr. Mungall thought that propane was being stolen by someone who worked at Value, after business hours;

(5) The accuracy of the float gauge, affected by the actual markings of the gauge as seen by the human eye, temperature fluctuations, etc., and the fact that intervening lawful depletion of propane in between checking the gauge are such that one cannot be sure what, if any, amounts of propane were missing. The Board is inclined to accept that it is possible that fuel was in fact missing, albeit a very small amount, other than the small amounts that Mr. Ketola lawfully took in November and December, per the Bartlett deal.

Hy-Tec Security Private Investigation

80The Board heard evidence that Mr. Mungall discussed the issue of theft of propane with his lawyer, Joseph McDonald, in the fall of 1999. Mr. McDonald suggested hiring a private investigator. The respondents hired Michael Loughlin of Hy-Tec Security to do surveillance work in November of 1999. Mr. Loughlin is a former Toronto Police officer of twenty-seven years' experience. The Board finds Mr. Loughlin a very credible witness: his answers were clear, straightforward and consistent.

81There was some discrepancy as to whether the Mungalls instructed Mr. Loughlin to watch Mr. Ketola or other people and when to do the surveillance. Ms. Mungall-Brethour testifies that "Tom could have been mentioned to Loughlin. Everyone would have been mentioned". Mr. Loughlin says the respondents believed it was internal theft: small amounts of propane at a time.

82Mr. Loughlin avers that he was told to watch the sales office, hut door and dispenser tank. He says at the first meeting with the Mungalls, they told him who was coming and going. "They were not suspicious of Tom. They told me to look for 20-pound and 100-poun[d] cylinders since Value Propane doesn't deal with those size cylinders". He was also told about the "booby traps" set. When Commission counsel suggests to Mr. Loughlin that his instructions were "so narrow", Mr. Loughlin says, "They explained enough. They said the theft can't be coming from the big trucks, that the big dispenser tank has same type of gauge like in a car. If at ¾ of a full tank and driving a small distance, your gauge won't move. It appears that the small tanks were being filled from the big tank and the gauge wouldn't show it. So I looked for small tanks".

83Commission counsel kept suggesting that Mr. Ketola was "targeted" by the respondents and that the investigation proved this: the video was taken during the day when Mr. Ketola was there, not at night or the weekends when the respondents thought the theft might be occurring. Mr. Loughlin says that he was not told to target any specific person. Mrs. Mungall-Brethour did not tell him that she was suspicious of Mr. De Rocchis. Mr. Loughlin testifies that Mr. Ketola was not targeted in the investigation and he received no such instructions. Indeed, he says Mrs. Mungall-Brethour was "shocked" when he reported what he had seen on the video vis-à-vis Mr. Ketola. He says that, "he [Mr. Ketola] was the main person in the lot during the day. Other people came and went during the day".

84In terms of the hours of surveillance, the Board accepts Mr. Loughlin's evidence. He avers that the respondents "... could have told me [to do surveillance on] the weekends but I wasn't going to work on the weekends because I'm retired. Someone else could have done it. If they said to watch on the weekends, Hy-Tec would have". Regarding the terms of engagement, he says it was left up to his judgment. Mr. Loughlin testifies that employee theft is more likely to occur during work hours than non-work hours. The former Toronto Police veteran says he told the respondents the best time was during the end of shifts.

85As for his own suspicions, Mr. Loughlin testifies:

I was thinking it could be Rocky, Tom, truck drivers, even Jeff was a suspect. Anyone who had access to the tank. Tom is the only one I saw. I didn't see Rocky at the tanks. Anything could be possible [e.g., Rocky in cahoots with Tom] ... What I thought was that one of the [Value] employees was filling tanks, going to Rocky's, selling them and Rocky and the person filling the tank would split the money. But I never saw Rocky selling any tanks so that blew that theory.

86The suspicion of Rocky De Rocchis was held by other witnesses. When asked in cross-examination whether he considered an "outside job", the witness replied, "No, you needed a key to open the hut and unlock the tank. That scenario didn't cross my mind. They told me it was an employee. I was led to believe it was employee theft". Commission counsel asks, "If Tom is the yard boss and at the yard all day, who else could have taken the propane?". Mr. Loughlin responds, "Any of the other people filling the tanks".

87The Board does not find the respondents targeted Mr. Ketola for investigation by Hy-Tec. Even if they had done so, that per se, is not a violation of the Code. An employer is justified, if it suspects a particular employee, to focus its finite resources, to "target" a suspect, as it were. But this was not the case here. The Board believes that the respondents thought it was an "inside job" and were surprised, shocked and felt betrayed when they learned of Mr. Ketola on the video. As stated earlier, while they experienced the above-mentioned emotions, the respondents were wrong in fact. They concluded that Mr. Ketola was their thief and due to stubbornness, pride, and a willingness to terminate his contract due to his worsening condition, they wrongfully terminated Mr. Ketola's services. The Board notes that Mr. Loughlin also incorrectly concluded that Mr. Ketola was the thief.

DECEMBER 3, 1999, INCIDENT

88On December 3, 1999, Mr. Loughlin began his surveillance. He observed Mr. Ketola filling twenty-and 100-pound cylinders. This is all captured on the video he took (Exhibit 8). He observed a big cloud of smoke from the way Mr. Ketola was handling the cylinder. His statement (Exhibit 23) says on Friday, December 3, 1999:

I observed the Value Propane location from 1100 hours to 1600 hours. On this date, at 1510 hours, I observed auto AAMN 482 [Mr. Ketola] pulling a closed-in trailer, arrive at Lock Variety and back-up to the wire storage cage which contains 20 lb and 100 lb tanks. At 1520 hours, the driver of this car loaded 20 lb and 100 lb tanks into the trailer. At 1531 hours, the car and trailer went to the Value Propane lot where the driver (same Value Propane employee) [Mr. Ketola] unlocked the gates and shed. He took a 100 lb tank from the trailer and filled it at the filling tank. He then laid it on the ground on it's [sic] side and let propane run out into the air leaving a very large cloud that looked like smoke. He then loaded the tank onto a dolly cart, as it appeared to be very heavy. He then loaded the tank and the cart onto the trailer and locked up the yard & shed, then returned to Lock Variety. At 1550 hours he left Lock Variety and went southbound on Hwy #12 with the tank still in the trailer.

89After observing the above, Mr. Loughlin telephoned Mrs. Mungall-Brethour. He says that, "... I expected that they would have called the police". He avers that she asked, "Are you sure it was Tom?". He says she was "shocked and surprised". "They [Mrs. Mungall-Brethour] were flabbergasted with the information that I had given them. When I told them what I had seen, they said "whoa, no, leave it with us". I thought my job was completed that day because I had caught the thief". He states that she called next week for him to continue the surveillance. "I asked her what I am doing there. She said, 'to make sure that I had seen what I had seen'". The preceding statement is instructive. It reinforces the Board's view that the surveillance was not a pretext or set-up. Mrs. Mungall-Brethour was shocked by what Mr. Loughlin had told her. And to Mr. Loughlin's surprise, she asked him to go back "to make sure" what he had reported was so, thereby increasing their costs of surveillance. The Board notes that Mr. Loughlin's viva voce testimony was consistent with what was in his Statement (Exhibit 23).

DECEMBER 7, 1999, INCIDENT

90On Tuesday, December 7, 1999, his Statement reads:

I observed the Value Propane location from 1200 hours to 1800 hours. The same employee AAMN 482 [Mr. Ketola] was on scene when I arrived. At 1455 hours the employee drove [h]is car south to the Lock Variety and loaded 3-20 lb tanks into the back seat of his car. He drove back to the Value Propane lot and parked inside the fenced area near the filling tank. He proceeded to fill the 3 tanks and then placed them back into the rear seat of the car. AT 1514 hours he left the Value Propane lot, locking the shed and gates, and returned to Lock Variety beside the wire cage. At 1528 hours he took a 100 lb tank from the wire cage and 20 lb tank from the back seat of his car and joined them together with a rubber hose. He then started his car engine and put the 20 lb tank under his exhaust pipe and left the exhaust blowing on the tank until 1634 hours. During this period of time he kept going from the 20 lb tank to the 100 lb tank and on several occasions entered his car and revved the engine creating more exhaust. At 1634 hours he put the 100 lb tank back into the wire cage and unloaded the other 20 lb tanks and left them at the wire cage. He then returned to the Value Propane lot and put the hose that he had used into the shed. At 1640 hours he returned to Lock Variety, then left the area southbound on Hwy #12.

DECEMBER 10, 1999, INCIDENT

91In his report, the witness observed the following on Friday, December 10, 1999:

I observed the Value Propane location from 1100 hours to 1700 hours. When I arrived the gates were locked and no one was on scene. At 1213 hours the same employee [Mr. Ketola] driving AAMN 482 arrived at Lock Variety with car and closed in trailer. At about 1215 hours he unhooked the trailer beside the wire cage and drove southbound on Hwy #12. At 1245 hours he returned, hooked the trailer to the car, and drove to the end of the driveway and parked. Nothing had been loaded or unloaded from the trailer at this time. He sat at the end of the driveway looking north and south repeatedly from 1245 hours to 1313 hours. At 1313 hours he drove southbound on Hwy #12.

At 1556 hours the person that I had drop off the tank for re-filling on November 29, 1999 attended Lock Variety to pick-up his propane tank. The tank had not been filled and in turn, he was given a full, newer tank and was charged $10.00.

At no time while I was observing the Value Propane locations did I see anyone else enter, deposit or remove any 20 lb or 100 lb tanks from the caged area.

This concludes my involvement with Value Propane.

92After repeated close viewing of the video (Exhibit 8) and with the finding that there was a deal to provide Bartlett Construction with propane from Value, the Board is more than satisfied that the video shows Mr. Ketola doing his job. His actions in the video, as seen by Mr. Loughlin and the respondents, were consistent with the Bartlett deal. However, in the backdrop of what the respondents thought was missing, stolen propane and lack of knowledge of the Bartlett deal, it is understandable that they arrived at the conclusion they did. It was the wrong conclusion. It had disastrous results, but it is fathomable how they came to that conclusion. All three people (Robert Mungall, Renee Mungall-Brethour and Michael Loughlin) who saw the video arrived at that conclusion. What is neither understandable nor reasonable is that, when confronted by Mrs. Ketola and Mr. De Rocchis with a plausible explanation, the respondents refused to investigate further or reconsider their decision. The Board finds that they did not reconsider because they wanted to believe that Mr. Ketola was a thief and they had to terminate his contract. They saw his illness was getting progressively worse and this was an easy way out for them: "fire" him for theft.

Mr. Ketola's Alleged Safety Violations

93The respondents' pleading indicates that Mr. Ketola "was dismissed solely for his dishonesty as set out above". And this was reiterated in the hearing. Indeed, Mrs. Mungall-Brethour's Will Say Statement (Exhibit 30) states, "The decision to discharge Mr. Ketola was based on his having been observed by the private detective to be taking propane from Value Propane without any invoices been issued". However, during the hearing, respondents' counsel, Mr. Mark, and Mr. Mungall and Mr. McDonald in their testimony, indicated that the reason was theft and Mr. Ketola's safety violations in handling the tanks as seen on the video. Mr. Mungall later clarified that he based his decision to terminate on the video only and that it was for theft. However, in their written closing submissions (done with the help of Mr. McDonald, not Mr. Mark who had withdrawn as counsel of record by that point), the respondents stated:

5. Theft: the Criminal Code defines the action of theft as "FRAUDULENTLY AND WITHOUT COLOR OF RIGHT TAKING OR CONVERTING" ... Mr. Ketola entered the storage yard after hours without permission and filled and delivered propane cylinders contrary to the T.S.S.A. codes. Not only did he act contrary to his duty but he put the company in jeopardy because of his actions in breach of his licence to handle propane. This illegal conduct was the sole and only reason for his dismissal as the damage he was causing to the company was significant and undermined the peace, order and efficient carrying on of the business.

94The respondents called Don Heyworth to give evidence. He is a senior inspector, Fuels Safety Division of the TSSA (Technical Standards & Safety Authority). He was qualified as an expert in determining compliance with the TSSA's Propane Installation Code. He gave evidence on what he considered to be safety violations of the Code by Mr. Ketola as seen on the video (Exhibit 8). The Board finds that there may have been violations of the Propane Installation Code by Mr. Ketola. Mr. Ketola may have "cut corners". For example, it appears that his failure to weigh the cylinder on a scale and allowing gas to exhale into the air when putting the cylinder on its side, do not conform with the TSSA standards. However, the Board finds that these did not form part of the reason for his termination. Accordingly, the Board does not find Mr. Heyworth's evidence helpful in its determinations.

Letter from Bartlett, De Rocchis' Paper Work and the $126

95The Board heard evidence about a letter from Mr. De Rocchis to Value explaining the transaction (Exhibit 1-O), a letter from Allan Bartlett (Exhibit 1-R) confirming the deal to provide propane, written "sales slips" of the propane provided along with a copy of the $126 cheque issued to and cashed by Mrs. Mungall-Brethour (Exhibit 1-P). Mr. Ketola testifies:

On or about January 19, 2000, while in my presence, my wife called Ms. Mungall-Brethour again and she said that Mr. De Rocchis had not called. My wife then called Mr. De Rocchis, in my presence, who said he had called Value Propane. She then asked Mr. De Rocchis to write a letter confirming the arrangement between him, Mr. Mungall and Bartlett Construction.

On or about January 24, 2000, Mr. De Rocchis called me to his office and showed me a letter he had written to Value Propane. He also showed me a cheque from Allan Bartlett of Bartlett Construction to Value Propane for $126.00 paying for transaction discussed above.

96Mr. De Rocchis was the sales agent who dealt with Mr. Bartlett. He was responsible for the "paper work". He explains that the slips (Exhibit 1-P) were for fuel provided in November and December, 1999. The total amount charged was $126. These were for four 100-pound and two twenty-pound cylinders which were delivered to Bartlett Construction. The slips are in his handwriting. The respondents say that Mr. De Rocchis never got their permission on the pricing. Mr. De Rocchis was asked, "Did you need permission from the Mungalls to have Tom deliver the propane on this deal?". He replied, "No and I didn't. I was servicing a future customer". He says that it was not uncommon to give a good price as an incentive to "land" a better and bigger deal with that customer in the future.

97The respondents say that his production of the slips, cheque and Mr. Bartlett's letter was done after the fact of the termination on January 18, 2000. They suggest it was done to justify what they considered to be a theft. Regarding billing procedure, Mr. De Rocchis testifies, "I expected the [330-gallon] tank to be put in in the first week of February 2000. Sometimes we hold slips and send them in all at once. Therefore, total billing would be sent regarding Bartlett to head office in the first week of February". When it was suggested to him that there was nothing in writing (e.g., a contract), the witness replied, "Correct. Sometimes it's done that way". In cross-examination, Mr. Brethour was asked, "If a paper trail was created by Rocky, could Rocky had been doing his job [and Tom lawfully delivered the propane]", the witness responded, "Yes. Normally you have to have paper before delivery. You need the proper paper work. But things slip".

98Mr. Mungall testifies that Mr. De Rocchis had the authority to get customers for Value. "He could have brought a signed contract and we would have honoured it. But we didn't get one. Rocky didn't have the authority to contract 100-pound cylinders for Value Propane. He could do what he wanted for himself ... It's too small volume of fuel for us ... We're not interested in taking on service to lose money". However, in cross-examination, Mr. Mungall says, "I encouraged him [Rocky De Rocchis] to sell to Bartlett. I wanted their business". Mr. Mungall concedes that it was not illegal to deliver propane in twenty- and 100-pound cylinders without a signed contract, but that Value does not do so because it is not "economically feasible". However, Commission counsel puts it to him that Value did so with a customer with small twenty-pound cylinders, Brock R.V. Mr. Mungall agrees and says, "We had a special deal ... They were a volume customer who used a lot of tanks". He also admits that Value has, on occasion, delivered propane in twenty or thirty-pound cylinders to customers in emergency situations (e.g., customer ran out of fuel in winter).

99Mrs. Mungall-Brethour admits to having cashed the $126 cheque. Indeed, the evidence from the witnesses indicates that Mr. De Rocchis did not receive a commission from the sale. Mr. Ketola did not receive any payment. Only Value benefited financially from the transaction. On cross-examination, Mrs. Mungall-Brethour admits that the amount of propane as seen in the video (Exhibit 8) was worth less than $126. She agrees with Commission counsel's suggestion that the $126 more than compensated Value for the propane delivered as seen on the video. She goes on to state that more propane, not seen on the video, might have been unlawfully taken and thus the $126 would not have compensated Value. Counsel asks why she would take more money than what Value provided. She replies, "I would figure it afterwards". "But you didn't figure it out afterwards", retorts counsel. "That's right", replies the witness. She later states, "He [Mr. Ketola] took fuel without invoicing". Commission counsel replies, "So did you. So shouldn't you be fired". She answers, "I guess I should be". "Didn't you steal from Bartlett by taking more than what was provided", asks counsel. "No", says Mrs. Mungall-Brethour.

100Counsel asks the witness why, if there was no deal to provide fuel to Bartlett, didn't Value send back the $126 cheque to Bartlett. She says, "I was just told to cash the cheque. I figured eventually it would be figured out". In the next answer, she says that, "I told myself to cash the cheque". When asked by Commission counsel how she knows Mr. Ketola was a thief, Mrs. Mungall-Brethour responds, "He took something he didn't own". Counsel responds that Mr. Ketola didn't receive any money from the transaction. The witness says, "I don't know if I got all the money". She says she asked Mr. De Rocchis what the $126 cheque was for. She says he said that it was for a couple of 100-pounders sold to Bartlett. She says she didn't ask for a contract or billing. She also admits to having created a general journal entry for this "one time customer" for the $126. When Commission counsel asks, if in fact there was a deal to supply Bartlett, that Mr. Ketola may not have been stealing, the witness answers, "I don't know if he took it to Bartlett. He might have a whole network. He used to have a cylinder business". She testifies later that, "It could have been a whole ring of thieves". Commission counsel retorts sarcastically, "But you only got rid of Tom. Tom was the head honcho". She replies, "Could have been".

Events on the Date of Termination: January 18, 2000

101Again, there is some conflict in the various testimonies as to what exactly was said on that date. Mr. Ketola testifies that when he went to work that morning, Joseph McDonald, the respondents' lawyer, was there with Mrs. Mungall-Brethour. Mr. McDonald told him, "There had been some discrepancies in the accounting". They had evidence of him being in the yard without authorization, filling twenty- and 100-pound cylinders. "Mr. McDonald told me that my contract was terminated immediately because of these illegal activities". He was told to hand over company property (e.g., keys), leave immediately and not come within 500 yards of the premises. Mr. Ketola says he did just that. "I was not given a chance to respond to these accusations and I left in complete shock". He denies that he was ever offered to see the video and pictures or was asked by Mr. McDonald if he had anything to say. He avers that Mrs. Mungall-Brethour said to him at the end of the exchange, "We have the evidence. We have the pictures. We have no choice".

102Mr. McDonald says that he asked Mr. Ketola if he wished to see the video and he said 'no'. "I asked him if he had anything to say, and he said 'no'". He testifies that Mrs. Mungall-Brethour was "very upset. She didn't want to speak".

103On the issue of whether it was a "done deal" to fire him on January 18, Mr. Ketola said he was not asked for an explanation. Mr. McDonald says he was instructed to fire Mr. Ketola by Mr. Mungall over the telephone in January 2000. Mr. Mungall was in Florida at the time. Mr. Mungall's evidence is consistent with that. He says that Mr. Ketola didn't merit a chance to explain himself. However, when Commission counsel put that to Mrs. Mungall-Brethour and added, "... but you're saying if he provided an explanation, you would have kept him on?" Mrs. Mungall-Brethour responded, "Yes. That would have been an argument between my father and me". The Board accepts Mr. Mungall's and Mr. Ketola's testimonies. The Board is more than satisfied that it was a fait accompli. Nothing said by Mr. Ketola could have changed the respondents' mind on January 18, 2000, or thereafter – even to the last day of the hearing. Mrs. Mungall-Brethour's answer is not credible. The Board accepts the evidence that the respondents, after viewing the video on approximately December 13, 1999, had decided to "fire" Mr. Ketola. In their minds, they were killing two birds with one stone: they were getting rid of a thief who was becoming progressively sicker.

Post Termination: Failure to Investigate Further and Refusal to Reconsider

104The Board heard evidence about the efforts made by Messrs. Ketola and De Rocchis and Mrs. Ketola vis-à-vis Mrs. Mungall-Brethour to "straighten out the mess". The respondents were provided with verbal and documentary evidence that suggested at a minimum, that they may have been mistaken in "firing" Mr. Ketola. The Board accepts the evidence of Mr. and Mrs. Ketola and Mr. De Rocchis regarding the early efforts made to explain the "misunderstanding" to the respondents.

105Mr. and Mrs. Ketola both testify that upon returning home on January 18, 2000, Mr. Ketola explained to his wife what had happened. He still had difficulty speaking. Mrs. Ketola called Ms. Mungall-Brethour and asked for an explanation. She explained that he had on several occasions been filmed taking propane in twenty- and 100-pound cylinders without authorization. She said Value doesn't deal with those size cylinders. Mrs. Ketola says that the respondent told her they could "lay charges".

106Mr. Ketola explained to his wife why he had been in the yard then and what he was doing, i.e., in furtherance of the Bartlett deal. He explained the Bartlett deal to her. Mrs. Ketola then called back Mrs. Mungall-Brethour with the information. Mrs. Ketola avers that, to her surprise, the respondent was not interested in her explanation and repeated the previous accusations.

107Mrs. Ketola then called Mr. De Rocchis. The Board accepts the evidence of Mr. De Rocchis and Mrs. Ketola that the former could not believe what had happened. He promised to call Mrs. Mungall-Brethour and resolve the problem. Mr. Ketola saw him that day and was assured by Mr. De Rocchis that he would fix the problem.

108By January 19, 2000, one day after the termination, nothing had been resolved. Mrs. Ketola says she called Mr. De Rocchis again and asked him to put everything in written form and send it to her. Mr. De Rocchis told her he had indeed telephoned the respondent.

109On January 24, Mr. Ketola went to Mr. De Rocchis' office. Mr. De Rocchis gave Mr. Ketola a copy of the letter written to Mrs. Mungall-Brethour with a copy of the $126 cheque. Mr. Ketola saw the originals put in a courier envelope.

110The Ketolas heard nothing. A week later, Mrs. Ketola says she called Mrs. Mungall-Brethour and she said she had received the cheque but not the letter and that she had not received a call from Mr. De Rocchis. The Board does not accept Mrs. Mungall-Brethour's evidence on these points. The Board finds that Mr. De Rocchis did telephone her and that she did receive the courier package with the letter and cheque (which she immediately cashed).

111After the foregoing, the complainant and his wife say they "decided to give them one more chance". Mrs. Ketola wrote a letter to Mrs. Mungall-Brethour attaching copies of Mr. De Rocchis' letter and cheque. This time, the respondent called and said it was the first time she had seen the letter from Mr. De Rocchis. Her mind was not changed. She said they "had the evidence".

112Mr. and Mrs. Ketola testify that at this point they realized that the respondents weren't going to do anything to rectify the problem, that Mr. Ketola had been discriminated against, and that their only recourse was to file a complaint with the Commission.

113The Board finds that the respondents refused to reconsider their decision and at a minimum, to make the barest of investigations, even when confronted with evidence that suggested they had made a mistake. Having heard the evidence of the respondents and the other witnesses, the Board finds that this failure to reconsider and investigate was due to Mr. Mungall's and Mrs. Mungall-Brethour's pride, stubbornness and steadfast belief that they had been betrayed by someone they trusted. Mr. Ketola as the thief is also in part a conclusion which they wanted to believe, for Mr. Ketola was progressively getting sicker before their very eyes. The Board finds that the respondents were wilfully blind when confronted with a plausible explanation. It suited their needs to stick to their belief that Mr. Ketola was "fired" for stealing propane. Nothing or no one was going to change their minds.

REPRISAL GROUND OF THE COMPLAINT

114Having found that the respondents violated the rights of the complainant under s. 3, the Board now turns to the separate allegation of reprisal.

The Law

115Section 8 of the Code reads, "Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing". This is a separate ground of liability, distinct from in this case, a s. 3 violation. Damages will be awarded separately for both the ss. 3 and 8 violations.

116The law around reprisal was recently addressed by Vice-Chair DeGuire in Jones v. Amway of Canada Ltd., [2001] O.H.R.B.I.D. No. 9 (QL) [reported 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480] and the Divisional Court in their reasons for dismissing the appeal, [2002] O.J. No. 1504 (QL) [CHRR Doc. 02-177]. The Board in Jones correctly states at § 9 [D/481], "Filing a complaint with the Commission is not a prerequisite for claiming the protection under section 8". A reprisal or threat of reprisal contrary to s. 8 may occur before a complaint is filed with the Commission. There must be a nexus between the actual or threatened retaliation and a complainant's claim to the right to be free from discrimination or harassment.

117There needs to be an element of intent, including wilful blindness or recklessness, for reprisal to be made out. Vice-Chair DeGuire writes at § 108 [D/498]:

There is a marked distinction concerning the elements that must be proven to support a finding where the allegation is unlawful discrimination and where the allegation is reprisal. It is settled law that discrimination will be found whether the act was intentional. Unlike enumerated prohibited grounds of discrimination, inherently, reprisal denotes an intention by the respondent to cause injury. Reprisal is an act of retaliation, which is, to repay an injury or insult in kind: (see The Concise Oxford Dictionary). Reprisal is an intentional act. It is a separate head of protection under the Code intended to encourage complainants to pursue their rights without fear of retaliation.

118The Board's decision was upheld on appeal and the legal reasoning regarding reprisal affirmed. In particular, the Divisional Court makes the following comments (§ 4, 11):

Section 8, obviously, is an extremely important section. Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.

Although it is clear that in human rights law generally there is no need to prove an intent to discriminate, we have great difficulty appreciating how there can be a breach of section 8 without an intent to perpetuate the prohibited conduct.

119The Board adopts the reasoning of the Court and Vice-Chair DeGuire on these two points and has the following two observations. First, the right to be free from reprisal or threat of reprisal is as important as the distinct protection from discrimination and harassment. To allow retaliation upon claiming protection of the Code would be inherently counterintuitive and would gut the protection of human rights anti-discrimination legislation. Secondly, there must be intent, wilful blindness or recklessness to find reprisal. There is no such thing as adverse effect reprisal.

Does suing or threatening to sue a complainant constitute reprisal?

120As the Board will explain in greater detail, suing, or threatening to sue, a complainant may or may not constitute reprisal or threat of reprisal respectively. It will depend on the intent behind the action or threat of action and whether a reasonable complainant would perceive it as retaliation or punishment. The context of the action or threat of action plays an important part in this determination. There will be instances where a respondent legitimately and in a bona fide manner commences a civil action against a complainant, before or during the Code process. To automatically find otherwise would deprive one from exercising those rights available in the civil litigation context. This could be disastrous, inter alia, when limitation periods apply.

121The Board must also be concerned with the situation where a respondent camouflages a retaliatory action as a seemingly bona fide civil action for contract or tort liability. The Board must pay special attention to the content of the actual claim, timing of the commencement of the claim, verbal or other indications from the respondent and the reaction of the complainant.

122In Curling v. Torimiro (No. 2), [1999] O.H.R.B.I.D. No. 17 [reported 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468], the Board dealt with a case where the respondent, in the middle of the hearing before the Board, physically served the complainant with a statement of claim for $1.5 million in damages for "slanderous and defamatory statements in her complaint to the Ontario Human Rights Commission". Vice-Chair Laird found reprisal based on the actual statement of claim, its manner of service and on two letters written by the respondent.

Did the respondents act in a retaliatory way against Mr. Ketola?

123As will be discussed in greater detail below, the Board finds that the respondents committed acts of reprisal against Mr. Ketola in three ways:

(1) threat of criminal prosecution and contacting the police;

(2) threat of retribution; and

(3) Small Claims Court action.

Background

124As recounted earlier, after making efforts to resolve the matter in January and February 2000, the Ketolas realized that the respondents were not going to change their minds. They testify that they had no choice but to pursue the claim with the Commission. On March 14, 2000, Mr. Ketola completed the Commission's Intake Questionnaire (Exhibit 5) and he filed his complaint (Exhibit 2) on October 10, 2000.

125In early November 2000, Mr. Ketola received the respondents' response to his complaint (Exhibit 1-S). Their counsel, Joseph McDonald, wrote that "... the complainant's allegations of discrimination are a fabrication advanced to avoid prosecution for unlawful acts by the complainant". Reference was made to the video, "which will be produced at the appropriate time and turned over to the Crown Prosecutor". Mr. McDonald wrote that he thought it was a s. 34 matter: i.e., the Commission should refuse to investigate the matter. Mr. Ketola testifies that these "threats" scared him. "My human rights complaint had triggered a threat of criminal prosecution. I felt I had no choice but to retain legal counsel to protect my interests".

126Mr. Ketola avers that he was even more shocked and intimidated when he read Mr. McDonald's letter dated July 23, 2001 (Exhibit 1-BB), responding to the s. 36 Case Analysis. In that letter, on behalf of the respondents, Mr. McDonald wrote:

His difficulties arose as a result of his surreptitiously unlawfully taking and converting my clients property; i.e. a simple matter of theft which is against the provisions of the Criminal Code of Canada – as a result of which his services were terminated forthwith.

I will make every attempt to stop this abuse and cause retribution for this wrongdoing by this individual.

127On August 8, 2001, the Commission referred the subject-matter of the complaint to the Board. A letter to the parties notifying them of this was sent by the Commission on August 14, 2001. Ten days later – August 24, 2001 – Mr. Ketola's lawyer was served with a Statement of Claim in the Small Claims Court. Value, on Mr. Mungall's instructions, was suing him for $10,000. The basis of the claim was the human rights complaint against the respondents and the theft of propane. Mr. Ketola defended the claim and issued a counterclaim for wrongful termination.

128The Board's initial conference call took place in September 2001. During that call, Mr. McDonald emphatically stated, "The man is a thief!" He said the proceeding was an abuse of process and he would be seeking an injunction in the Superior Court of Justice to stop the Board's process. No such application was ever made. On consent of all the parties on the Commission's motion, the Board ordered the complaint be amended to add the ground of reprisal on November 8, 2001.

Threat of Criminal Prosecution, Contacting the Police and Retribution

129The Board finds that the November 2000 respondents' response, Mr. McDonald's July 23, 2001, "retribution" letter and Mr. Mungall's contact of the police (after receiving Mr. Ketola's complaint) constituted reprisal. The plain meaning and tone of the language suggests a desire to punish Mr. Ketola for claiming his rights under the Code. The Board does not consider Mr. McDonald's statement that he planned to file for an injunction as constituting reprisal, but lack of knowledge of the Board's role and process. The Board's finding regarding the response and letter is buttressed by the testimony of Messrs. Mungall and McDonald. Mr. Mungall made it clear repeatedly that he was angry about the process (which does not constitute reprisal and is not uncommon among respondents). But it went beyond that. Mr. Mungall indicated that he was not going to "allow Mr. Ketola to get away with it", both in the past and in the future. Indeed, he testifies that he contacted the police after receiving Mr. Ketola's complaint. "I had the police review the tape and they said they had sufficient evidence but it was too late and we would have to lay the charges and we should do so. I contacted the police after I received Tom's complaint". He says he should have had Mr. Ketola charged for theft and may still do so today.

130Mr. Mungall also says that he could have been persuaded to drop the whole matter if Mr. Ketola had withdrawn his complaint and been reimbursed for the $4,000 for the video. (In cross-examination, Mr. Mungall admits that the actual cost was $3,854.42.) Mr. Mungall also avers that "the longer this goes on, the worse it will get for Mr. Ketola. I don't wish to bring harm to this man but I may be forced to. Small Claims Court may not suffice to get my money back". He also states that he will proceed against Mr. Ketola's estate if necessary. "Had he left it alone [not filed the complaint], it would have stayed that way". In cross-examination, he was asked if he wanted to stop Mr. Ketola from making the complaint. He replied, "Yes, I could have been persuaded to back off if he dropped it. I would have backed off on everything [Small Claims Court and criminal prosecution] and if they paid the $4,000.00 to me plus any other incurred expenses ... I have been viciously attacked and I have to respond in kind".

131Commission counsel questions Mr. Mungall about Mr. McDonald's use of the word "retribution" in his letter to the Commission (Exhibit 1-BB): "I will make every attempt to stop this abuse and cause retribution for this wrongdoing by this individual". Surprisingly, Mr. Mungall says he believes "retribution" to mean "compensation": it meant he was seeking compensation for his out-of-pocket expenses. The Board finds this answer is not credible. Mr. McDonald testifies that he sent copies of all his letters to the respondents and he was acting for them at all times prior to retaining Mr. Mark to conduct the hearing before the Board. Mr. Mungall confirms this in his testimony.

132Indeed, while being cross-examined by Mrs. Ketola, Mr. McDonald was aggressive (facial expression and tone of voice) in his responses, quite chilling at times: "We will be talking to him [Mr. Ketola's lawyer] at great length in the future", referring to the continuing Small Claims action.

Small Claims Court Action

133The actual content of the respondents' Small Claims Court claim, standing alone, justifies a finding of reprisal. Coupled with its timing which the Board does not find to be coincidental (i.e., ten days after referral of the subject-matter of Mr. Ketola's complaint to the Board and over twenty months after they saw the video which formed the sole basis of their opinion Mr. Ketola was a thief) and the evidence of Messrs. Mungall and McDonald, the Board is more than satisfied that the standard of proof has been met to find reprisal.

134The claim reads in part:

7. In and about the 29^th, of July, 2001 the Defendant maliciously and without cause filed a complaint against the Plaintiff, the President of the Company Mr. Robert Mungall and his daughter Rene Mungall-Brethour with the Human Rights Commission alleging that the said persons had discriminated against him because of his medical handicap which was well known to the said parties and which they accepted when he first became associated with the Plaintiff as a sub-contractor. [Note: contrary to what is stated above, there is no assertion in the Commission's pleading and in the evidence that Mr. Ketola suffered from a disability when he entered into his contract with Mr. Mungall in 1996].

8. As a result of this false and malicious act the [sic] of the Defendant, the Plaintiff has been further harassed by the Defendant in that it has had to regain [sic] legal Counsel to defend itself and it's [sic] employees and thus been put to further costs and expence [sic] the full amount of which is not now known to the Plaintiff.

9. The Plaintiff says the Defendant is liable for damages suffered by the Plaintiff under the tort of intentional infliction of mental suffering and for the Defendant's fraudulent and vicious attempt to hold the Plaintiff and its employees up to ridicule and contempt.

10 The Plaintiff pleads that the conduct of the Defendant is deceitful, fraudulent, callous and high handed and this unlawful conduct warrants an award of punitive, exemplary and aggravated damages.

135The wording of the above claim shows that Value, on the instructions of Mr. Mungall, was suing Mr. Ketola for his filing the complaint with the Commission. The reference in para. 8 to "this false and malicious act" clearly refers to the preceding paragraph's "the Defendant maliciously and without cause filed a complaint ... with the Human Rights Commission". The Board notes that Mr. Mungall and Mr. Mark, counsel at the hearing, both concede that there was no claim for recovery of monies laid out in the Statement of Claim. The claim, drafted by Mr. McDonald, seeks $10,000 as an award of "punitive, exemplary and aggravated damages".

136With regards to the Small Claims Court action, the Board's finding of liability does not extend to Mrs. Mungall-Brethour. The plaintiff in the civil action was Value, not Mrs. Mungall-Brethour. The evidence indicates that Mr. Mungall gave instructions to Mr. McDonald regarding the commencement of the lawsuit against Mr. Ketola. However, the Board still finds Mrs. Mungall-Brethour liable for reprisal regarding the threat of criminal prosecution and retribution. The evidence is clear that Mr. McDonald was representing her, Mr. Mungall and Value when responding to the Commission in the pre-referral stage.

CORPORATE LIABILITY

137Subsection 45(1) of the Code provides that a discriminatory act by an employee is deemed to be an act of the corporate employer. Accordingly, given the Board's findings, respondent Value is liable for the acts of discrimination and reprisal of its president/director, Robert Mungall and its manager/director, Renee Mungall-Brethour.

REMEDY

138Having found that Mr. Ketola's rights were violated under ss. 3 and 8, which is contrary to s. 9 of the Code, the Board turns its attention to the appropriate remedy. The Board has decided to give the parties an opportunity to settle the question of remedy among themselves. The Board will give the parties three weeks to resolve the question of remedy. If they wish the assistance of a member of the Board, the Honourable Alvin B. Rosenberg, Q.C. would be available to act as mediator. If the parties also wish to use the mediation session to resolve other outstanding matters (i.e., Small Claims Court claim and counterclaim), the mediator would be willing to assist. If the parties do not wish to mediate or do not resolve the matter within three weeks from the date of these reasons for decision, the Board will issue its reasons with respect to remedy forthwith.