HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
James Deroche Complainant
-and-
Nana Yeboah-Koree and Recycling Renaissance International Inc. Respondents
DECISION
Adjudicator: Steven J. Faughnan
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168
APPEARANCES
Ontario Human Rights Commission ) Prahbu Rajan, Counsel James Deroche, Complainant ) Daniel Ublansky, Counsel Nana Yeboah-Koree ) Nana Yeboah-Koree on his Recycling Renaissance International Inc., ) own behalf and on behalf of Respondents ) the Corporate Respondent
Introduction
1In his Complaint dated July 21, 1999, (the “Complaint”) the Complainant states that he had an injury for which benefits were claimed under the Workplace Safety and Insurance Act, 1997, S.O. 1997, C. 16, as amended (formerly the Workers Compensation Act) (the “WSIA”) and was discriminated against because of handicap (now defined as disability) contrary to subsection 5(1) of the Human Rights Code, R.S.O. 1990, ch. H.19 as amended (the “Code”). The Complaint stems from the Complainant’s allegation that he was terminated from his employ at Recycling Renaissance International Inc. (“RRI”) because he had claimed compensation for an injury he suffered at the workplace and that Nana Yeboah-Koree, the directing mind of the Corporate Respondent, was responsible for the termination.
Preliminary Matters
2While the Complainant and the Commission were represented, and at least one adjournment was provided so that counsel could attend to assist him, Mr. Yeboah-Koree acted for the Corporate Respondent and on his own behalf without the assistance of counsel. Unfortunately, this may have resulted in Mr. Yeboah-Koree allowing himself to be distracted by his emotions and by what he viewed as inappropriate conduct by the Counsel for the Commission during the hearing.
3At times the manner of counsel for the Commission was confrontational, as can be expected in an adversarial proceeding. Moreover, counsel for the Commission was not always able to rise above the various aspersions that Mr. Yeboah-Koree cast upon him. However, his conduct at the hearing was certainly not deserving of the level of criticism that Mr. Yeboah-Koree displayed. That being said, Mr. Yeboah-Koree’s only concern that gave me any pause was the Commission’s late disclosure of evidence regarding proceedings under the WSIA, which the Commission sought to introduce at the hearing. This however, was adequately addressed by my offering the Respondents’ an adjournment to consider their options, which Mr. Yeboah-Koree declined. No similar criticisms were levelled against Mr. Ublansky, counsel for the Complainant, although Mr. Yeboah-Koree had much to say about his client.
4It should be noted that the Respondents also engaged in late disclosure of documentation sought to be relied upon at the hearing. This was dealt with as the request to introduce the documentation was made. Except for evidence regarding the calculation of WSIA premiums payable by RRI and whether they would be influenced by a workplace accident, for which I required a representative of the Workplace Safety and Insurance Board (the “WSIB”) to be called, and a letter from Ms. Elizabeth Acheampong, which I said should be led through her if any weight was to be placed upon it, the Respondents were given wide latitude to introduce any document they wished.
5Furthermore, some documentation that may have existed and was at one time in the care and control of the Respondents never materialized. One example was an agenda or diary which Rosemund Yeboah-Koree stated that her husband Mr. Yeboah-Koree would write in, which, after I ordered that best efforts be made to locate it, according to Mr. Yeboah-Koree may not have actually existed. Other examples were a Notice of Meeting under the Employment Standards Act, R.S.O. 1990, ch. E.14 as amended, and the employee file for James Deroche, both of which could not be located.
6While the lack of timely disclosure may have delayed the progress of the hearing, I am satisfied that it did not affect the fairness of the proceeding. By reviewing the contents of the decisions generated under the WSIA proceedings, which were included in an exhibit book prepared by the Commission at the outset of the hearing and provided to the Respondents, the Respondents were sufficiently aware of the position of Ms. Acheampong on whether the Complainant reported sustaining an injury to her, to enable the Respondents to fully question the Complainant on it. Furthermore, as it turned out none of the parties called a representative of the WSIB as a witness, although there had earlier been an indication from the Commission that a representative of the WSIB would be called to testify, nor although they had every right, did the Respondents ultimately call Ms. Acheampong to give evidence with respect to the content of her letter.
7During the course of the hearing the Respondents’ also complained about the conduct and timing of the Commission’s investigation and settlement discussions. Amongst other things the Respondents alleged that the Commission should have conducted its investigation before RRI ceased operating. As discussed in Munsch v. York Condominium Corp. No. 60 (1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 (Ont. Bd. Inq.), however, a party to a human rights complaint is obliged to take steps to preserve its evidence once aware of a claim or a potential claim under the Code. Furthermore, as set out at paragraph 22 in the Response filed by the Respondents under the Tribunal’s Rules of Practice, the Complaint was initially responded to by a letter dated October 29, 1999. This indicates to me that the Respondents were well aware of the Complaint under the Code before RRI experienced any financial difficulties in or about November 1999, or ceased operations in 2000.
8In the Ontario Divisional Court’s decision in Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No.1) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464, similar complaints about the insufficiency, timing and conduct of the investigation are addressed. At paragraph 12 of that decision, the Divisional Court stated that:
Even if there was a poor or biased investigation and notwithstanding the extremely lengthy period upon which the complaints are based, if there was evidence upon which the Commission could recommend the appointment of a Board the Commission had such authority. The Board conducts a full hearing and it is the evidence before the Board that governs, not the investigator's report to the Commission. The Board correctly decided that even if the investigation was not impartial, that it did not affect the Board's de novo hearing.
9I emphasized in Bui v. B & G Foods Inc. (2001), 2001 CanLII 26233 (ON HRT), 41 C.H.R.R. D/191 (Ont. Bd. Inq.) (“Bui”), that what steps the Commission took in its investigation, so long as it did not amount to an abuse of the Tribunal’s process, is for the Divisional Court to examine, not the Tribunal. I heard the concerns of the Respondents, but was not satisfied that the conduct of the Commission amounted to an abuse of the Tribunal’s process.
10In addition, during the evidence of Janet Addo, the Complainant’s supervisor at RRI, the Respondents brought in a two-wheeled dolly and sought to use it for the purposes of demonstrating how, I assume, easy it was to use the dolly, contradicting Mr. Deroche’s assertion that he was injured while manipulating a bale. As I did not believe that such a demonstration by Ms. Addo would assist me in determining how Mr. Deroche was injured, nor be of assistance to me in understanding the operations at the workplace at the time in question (as a great deal of evidence on the operation of the business was otherwise elicited), I refused to allow the demonstration. I did, however, allow for a photograph of the two-wheeled dolly, a barrel and a bale to be entered as an exhibit.
11Finally, before Rosemund Yeboah-Koree testified, both she and Mr. Yeboah-Koree waived any privilege that may have existed with respect to communication between spouses in relation to this matter.
DECISION
12The Tribunal finds that the Respondents violated Mr. Deroche’s right to equal treatment with respect to employment without discrimination because of handicap, now disability, contrary to the Code. The Tribunal finds the Respondents jointly and severally liable to the Complainant.
The EVIDENCE AT THE HEARING
13Only the Complainant and Randy Harvey, a friend and co-worker at RRI, gave viva voce evidence for the case in chief.
14Although I was advised at one point that Johnson Peprah (otherwise known as Peter) and Ganghadai Paul, respectively a senior employee and employee at RRI, would be called as witness for the Respondents, only the following witnesses gave viva voce evidence at the hearing:
Nana Yeboah-Koree: Chief executive officer and directing mind of RRI.
Janet Addo: Otherwise known as Auntie Jane, she was the Complainant’s supervisor on the day shift.
Rosemund Yeboah-Koree: The wife of Nana Yeboah-Koree.
Lakshmi Seudial: Otherwise known as Lisa, she was the receptionist at RRI.
Circumstantial evidence, credibility and inferences
15Discrimination is rarely displayed overtly and rarely are there cases where one can show by direct evidence that discrimination is purposely practiced. The evidence in discrimination cases is often circumstantial (See for example, Basi v. Canadian National Railway Co. (No. 1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T)) and, as emphasized recently in the decision of the Ontario Divisional Court in Smith v. Mardana Ltd. (2005), CHRR Doc. 05-094, intent or motive to discriminate is not a necessary element of discrimination.
16In addition, the credibility of the witnesses that appeared or, alternatively, the inferences that may be drawn when a witness fails to testify are also a consideration in many complaints of discrimination, including this one.
17In determining issues of credibility, I am guided by the following test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356–57 (B.C.C.A.):
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 to what he sincerely believes to be true, but he may be quite honestly mistaken.
18With respect to the type of inference that may be drawn when a witness fails to testify, the following excerpt at page 297, para 6.321, in J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, (2nd Ed. 1999) Butterworths, Canada Ltd. is helpful:
In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. [Citations omitted]
The FACTS
19RRI was incorporated in Ontario on September 22, 1998, and was in the business of shipping second-hand clothing to international destinations for sale. It ceased operations in the year 2000 as a result of financial pressures that began in or about November 1999. There was no evidence that the corporation was ever dissolved.
20As set out in the Corporation Profile Report tendered as an exhibit at the hearing, the registered office of RRI was 1778 Albion Road in Toronto, Ontario, which was also the location of the warehouse operations of the business. Mr. Yeboah-Koree’s nephew Akwasi Agyen Yeboah (“Akwasi”) is listed as President and Director of the company commencing on September 9, 1998. Mr. Yeboah-Koree is listed as President and Director of the Company beginning March 15, 2000 and his wife Rosemund Yeboah-Koree as Director and Secretary beginning that same date.
21At all material times, however, Mr. Yeboah-Koree referred to and conducted himself as the Chief Executive Officer of RRI and was, I find, the directing mind of the company during the events at issue in this proceeding.
22Prior to incorporating RRI, Mr. Yeboah-Koree had a great deal of experience in the recycled clothing industry. The industry is very competitive, operates on slim margins with high labour costs and is affected by the risks of conducting business in the international arena.
The Business Operations at RRI
23RRI purchased second-hand clothing in bulk bundles from a variety of sources. The bulk bundles would be shipped to the warehouse. At the warehouse there was a clear division of labour.
24The bulk bundle would be brought by a clamp forklift truck from the receiving area and placed upon a large table in the front portion of the warehouse. There sat the sorters. The bundle would be opened and the sorting process began. Clothing would basically be sorted according to material content, gender and season. Barrels representing each of the various characteristics would be placed behind the sorters who would fill them with the appropriate items, careful not to let them overflow.
25Once the barrels were filled, they would be transported by a labourer using a two-wheeled dolly to the grading area at the rear of the warehouse. There again was found another table. Behind it sat the graders, who were, I am told by Mr. Yeboah-Koree, typically women.
26The task of grading was highly specialized. It was believed by Mr. Yeboah-Koree that, based on his experience in the industry, only those of the female gender could grade clothing effectively. He remarked that he had never observed a male performing that function.
27The graders would further separate the items into grade of wear, highest for the least worn. The sorted clothing would be put into four-wheeled buggies, which would be brought by the sorters to the weighing station. There the buggies would be pushed onto a large scale and weighed. Then a label identifying the classification of the type of clothing and the weight would be placed on the buggies and pushed to the baling machines, situated at the back of the warehouse.
28Typically, baling was a two-person operation involving a baler and a baler’s helper. Once the labourer delivered the graded clothing to a baling machine a sheet of plastic with the label indicating the type and grade of clothing would be placed at the bottom of a large receptacle, or bucket, of the baling machine. The clothing would then be placed in the bucket, ensuring that the best example of the type and grade of clothing was placed folded down first, so that when the operation was complete, this would be the item that would be seen at the top of the bale of clothing. Once the bucket was filled, the baler would bring down a large press that would compress the clothing into a rectangular bale. The baler’s helper, using a strapping gun, would cause the bale to be encircled with a ribbon of steel. Once the process was complete, if done successfully, there was left a compressed rectangular bale of clothing covered in plastic encircled by a steel ribbon. On the top of the bale, under the plastic, was a label indicating the type, grade and weight of the clothing. Below the label was a visible neatly folded best example of what the bale contained.
29The baler’s helper would then remove the bale from the baling machine and would typically bring it with a two-wheeled dolly to an area behind the baling machines near the rear of the warehouse. The bales were left on edge in a vertical position in a haphazard fashion near the baling machines so that the blade of the two-wheeled dolly could easily be slid under a bale when it had to be moved.
30While the morning shift at RRI which started at 7:00 a.m. and ended at 3:30 p.m. was spent with a greater emphasis on grading and sorting the clothes, the afternoon shift which started at 3:00 p.m. and ended at 11:30 p.m., especially approaching the end of the week, would be spent packing the bales into a large container for shipment. This was done by stacking the bales on a wooden packing skid and placing the packed skid into a shipping container.
31The containers were large and rectangular with a pair of doors that opened to allow access. Space in the container was at a premium and filling it properly took some skill.
32As the goods were to be shipped internationally, it was necessary that a representative of a customs house inspect the goods as they were being packed. The inspector charged by the hour. There were two factors at work during this phase of operation; fill the container as much as possible in as short a time as possible. RRI had on occasion hired out the container packing process to a private company, and there were only a few management staff at RRI who could oversee this operation if it was done internally. Among them were Mr. Yeboah-Koree, Mr. Peprah and Akwasi.
33Once packed, the large container would then be shipped to its final international destination. If the grade of clothing was not as indicated on the label, items that did not share the same characteristics were intermixed or the wrong type of clothing items were sent to the final destination, the end receiver could request a discount or say it was of poor quality and return them. This would detrimentally affect the profitability of the enterprise.
34As a result of the above, it was critical that the operation run efficiently and effectively. Specialization of task was the norm. Although there were supervisors in the warehouse, for the most part, the workers worked relatively independently, knew their duties and how best to perform them. As it would take time to train and errors were costly, sorters, graders and balers had to be experienced. The one area of operation that did not require a great degree of training or experience was moving or transporting the unpackaged clothing from place to place in the warehouse. The persons who fulfilled these functions at RRI were called movers.
James Deroche’s Job at RRI
35James Deroche was a mover. He worked the morning shift. He testified that his first interaction with Mr. Yeboah-Koree was when he attended at RRI with his friend and met with Mr. Yeboh-Koree in his office about a job. He testified that Mr. Yeboah-Koree asked if he could start immediately.
36For his part, Mr. Yeboah-Koree disagreed, testifying that he was not the one who first met with the Complainant and he did not employ him. Mr. Yeboah-Koree stated that it was Akwasi who employed Mr. Deroche. It was Mr. Yeboah-Koree’s position that Mr. Deroche’s evidence in this regard was representative of Mr. Deroche making up facts to support his assertion that there was no set reporting or corporate structure in the warehouse. As Akwasi was not called as a witness, there was no corroboration of either version. Both agree that Mr. Deroche was hired, although his start date was also a point of contention. I am satisfied however, that he began working at RRI in October 1998.
37Mr. Deroche’s testified that his job was to empty the bales and the barrels when the clothes were sorted. He said that when the sorting task was complete he would take the clothes to the scale to weigh the bale, stack the bales and pack them into containers. He testified that when working with the bales they would have to be lifted as high as possible. Although he was 5’4” and of light weight, he testified that the bales weighing 100 to 130 pounds would be lifted over his head and that he lifted the bales by himself, without assistance. To make room in the warehouse he said they would have to be stacked “to the ceiling”. He testified that in addition to these duties he sometimes worked at the baling machine and drove a forklift vehicle.
38Mr. Harvey worked at RRI as a baler. He was Mr. Deroche’s friend at the workplace. He testified that, in addition to Mr. Deroche’s duties as a mover, if things were slow at the warehouse, from time to time Mr. Deroche would work on the baling machine making bales. Mr. Harvey testified that he and an individual named Jarvis showed Mr. Deroche how to bale and that Mr. Deroche would come to work in the baling area three times a week. Mr. Harvey testified that even though he couldn’t see everything the Complainant did while working, the Complainant would bring bales with a forklift vehicle to the tables.
39All of the Respondents’ witnesses who testified about Mr. Deroche’s job duties said that Mr. Deroche never worked as a baler or packed a container, nor did not have the skills or opportunity to do so. Rosemund Yeboah-Koree, however, seemed to acknowledge that in addition to his duties as a mover, Mr. Deroche may have on occasion operated a forklift vehicle.
40To put the matter to rest, I prefer the evidence of the Respondents with respect to the Complainant’s job duties. It is possible that Mr. Deroche did, on very rare occasions, operate the baling machine, but I find this was an exception to his normal job duties as a mover. The operation of a baling machine was a relatively complicated process which required an experienced baler. If it was not done in a timely and efficient manner, production delay would result. I do not believe that when experienced full time balers were present, a relatively inexperienced worker like Mr. Deroche would be permitted to perform the baling functions in the manner his evidence suggested. On those rare occasions that he did use the baling machine, this was done under the supervision of Mr. Harvey and/or an individual named Jarvis, for only an extremely short period of time marked at most in minutes, so that he could experience the operation of the machine. I do not accept that this ever became a part of his job duties or that he ever operated the baling machine alone without a helper or supervision.
41I find that Mr. Deroche’s primary responsibilities were moving clothing from the sorters to graders and replacing the barrels behind the sorters with empty ones. In addition, at times Mr. Deroche would drive a forklift, although that may have been frowned upon.
Training and Policies at RRI
42Training at RRI, for the most part, occurred on the job, although some job tasks such as baling, sorting and grading would benefit from having an experienced employee perform them. The Respondents’ evidence was that when a new employee began working at RRI they were told the “do’s and don’ts”. There was no evidence, however, that anything remotely resembling an employee handbook was provided or that there would be a “formal” training session for new hires.
43There was testimony from the Respondents’ witnesses about advising new employees on the reporting of injuries and how that was to be done, although, as pointed out above, there was nothing in writing. The assertion was that an employee was to notify the supervisor who was then to notify the office staff, who would in turn notify the person in charge that day. That would have been Mr. Yeboah-Koree, who was often away on business, or his second in command, Akwasi.
44I have considered the evidence on this issue and while there may have been some informal discussion of reporting or advising of the requirements by word of mouth or as occasions arose, I do not accept that the explanation about reporting workplace injuries at RRI ever achieved the level of detail as alleged by the witnesses for the Respondents, or that an employee would have been advised at the hiring stage how an injury was to be reported. I was told of three types of incidents involving the welfare of employees at RRI. One was the monthly menstrual discomfort that some women employees suffered and how it was accommodated. Another involved seizures suffered by an individual, that resulted in an ambulance being called, and finally an occasion when a forklift vehicle struck Ms. Addo. The WSIB was never consulted with respect to the first two events, nor on the evidence I heard I believe they should they have been. Curiously, the event involving Ms. Addo was never reported. This is addressed in more detail below.
45By Mr. Yeboah-Koree’s own account there were very few workplace injuries at RRI. As a result, based on the evidence, although I am satisfied that Mr. Yeboah-Koree was aware in a general way of the role and practices of the WSIB and what could be the result of engaging its processes, I do not think that anyone working at RRI was sufficiently aware of the specific mechanics of reporting workplace injuries to communicate it to the employees, especially at the start of their employ.
46There was also testimony from the Respondents’ witnesses about how RRI addressed late arrivals or absences from work. I am satisfied that employees were often referred to RRI by extended family or community members, and they developed social relationships between themselves. Consequently, if a worker was 2 to 3 hours late for their shift, the management at RRI might inquire of somebody at RRI close to the absent employee of the circumstances of their absence. If an employee did not have close friends, management may call them at home to inquire of the reason for their absence.
47I am also satisfied that because baling was a key activity in the process, the absence of a baler would cause production delays, and if a baler were absent, a call might go out to their residence that same day. In the meantime, another baler or a member of management who knew how to operate the machine would act as substitute. If an employee, like a mover, were absent there was not the same degree of urgency.
48However, because the wages were relatively low, employees would often leave RRI for other work. Therefore, as Mr. Yeboah-Koree testified, if an employee was off for a period of time it was not automatically assumed that something was amiss. It may be that he or she had found a better job, which was understood and accepted by management. As a result, he says that when an employee gave an excuse for not coming in, it was not vigorously challenged, nor were they asked too intrusive questions regarding the cause for their absence.
The Relationship between Mr. Deroche and Mr. Yeboah-Koree
49Mr. Deroche had to take a very early bus to ensure his arrival at RRI in time for his shift, and he would often be the first employee in. On a particularly blustery winter day he suffered the elements until Mr. Yeboah-Koree arrived to open the doors. Mr. Deroche’s early arrivals impressed Mr. Yeboah-Koree and resulted in him personally adopting an earlier arrival time.
50As both men were there at the start of the workday, often alone, they had the chance to converse and share an early morning beverage. Over time, Mr. Yeboah-Koree would give Mr. Deroche money buy them the beverages, which they would drink together. He often allowed Mr. Deroche to keep the change.
51At internal sales of merchandise, which involved offering various types of clothing to RRI staff, Mr. Deroche would be allowed to purchase on credit. Sometimes Mr. Yeboah-Koree would gift Mr. Deroche items of clothing at no charge.
52When it came time for the betrothal of Mr. Deroche and his then girlfriend, Mr. Yeboah-Koree loaned him money for the purchase of the engagement ring. A grateful Mr. Deroche brought his fiancée to RRI to meet Mr. Yeboah-Koree in person.
53The witnesses described their relationship in a variety of ways. They said that Mr. Yeboah-Koree treated Mr. Deroche like a nephew, or that he was treated better than other employees, or that all employees at RRI, including the Complainant, were treated very well, but equally.
54What I find from all the evidence on this issue is that the relationship between the Complainant and Mr. Yeboah-Koree was an extremely good one. It lent itself to early morning discussions and indulgences that were provided to Mr. Deroche that likely were not enjoyed by other employees in the same position at RRI. This also created a rapport and level of comfort between the two.
How Injuries Were Treated at RRI
55I accept the evidence of Mr. Yeboah-Koree, as supported by a number of witnesses for the Respondents, that there was a cafeteria and a quiet room where employees who suffered discomfort could rest. I also accept that there was a first aid station at the workplace, whether or not employees were aware of its existence is another matter. I also accept that the individual who suffered seizures, and remained an employee, was appropriately comforted and addressed.
56Ms. Seudial testified that although she had no training in the area, she was responsible for first aid at RRI and oversaw the contents of the on-site first aid cabinet located in her office. Her experience with first aid at RRI, however, was limited to providing band-aids for paper cuts or dispensing the occasional headache tablet. She testified that if an employee had attended at the office with a hurt back and was badly hurt she would call for an ambulance. If no ambulance was needed, she would make a note of it, and tell the person not to go back to work and to see a doctor.
57A great deal of time was spent at the hearing with respect to an injury that Ms. Addo suffered while working at RRI. The circumstances surrounding the workplace injury was elicited first in chief by Mr. Yeboah-Koree, who was insistent that I hear it. As her evidence unfolded regarding the injuries she suffered and how RRI addressed a potential claim under the WSIA, it bordered on similar fact evidence. This is because, as it turned out, Ms. Addo suffered a workplace injury which was never reported by RRI, nor was a claim for benefits made. The reasons why the injury was not reported and a claim was not made were somewhat murky, in my view. However, I allowed this evidence in, but did not treat it as similar fact evidence. There were some common elements with Mr. Deroche’s claim, but not enough, in my opinion, to provide the foundation for allowing it as similar fact evidence. I viewed it instead as an effort by the Respondents to assist me in better understanding how it dealt with injuries at the workplace. As the evidence was elicited, and subjected to cross-examination, it also assisted me in making determinations on Ms. Addo’s credibility generally.
58Ms. Addo’s injury took place while Mr. Yeboah-Koree was away and Akwasi took her to the hospital. It would appear that Ms. Addo was sent home with a course of treatment, which included rest. RRI did not report the injury, nor was a report prepared by her attending physician under the WSIA with respect to a workplace injury.
59Although instructed to rest at home for a short period of time, Ms. Addo returned to work at RRI the following day. By then, Mr. Yeboh-Koree had returned from his business trip and was in the office. Upon learning of the events of the prior day and perhaps noticing that Ms. Addo was in some discomfort, he insisted that he accompany her to a clinic. During the car ride the evidence of both Ms. Addo and Mr. Yeboah-Koree was that little was discussed and that there was no discussion whether a claim could, should or would be made under the WSIA.
60While her evidence on the events of her attendance with Mr. Yeboah-Koree at the doctor’s office was not entirely clear, she appeared to assert that the documentation regarding a claim under the WSIA was not given on the first attendance with Akwasi, but addressed by the doctor on the second attendance while Mr. Yeboah-Koree was present or, alternatively, when he was in the waiting room. Mr. Yeboah-Koree’s position is that any discussion regarding a claim under the WSIA would have taken place on the first day when Akwasi brought her to the office, not on the second attendance. He testified that Akwasi told him that Ms. Addo did not want to file a claim. Although initially not so strident in his position, Mr. Yeboah-Koree also testified that he was in fact urging her to make a claim. Akwasi, who could have assisted in illuminating what occurred and when, was not called as a witness.
61Ms. Addo testified that she was insistent with her doctor that a claim not be made. She explained that this was because an unidentified friend of her husband told her that making a claim adds undue complication and is not worth the effort. Up to this point in her testimony, although there were some minor difficulties in understanding the questions requiring some to be repeated, and she exaggerated her ability to see and monitor the employees she supervised at all times, when pressed for the name of the individual, her evidence became tentative and her credibility, in my opinion, suffered.
62That being said, although the issue is collateral, I am not satisfied that Mr. Yeboah-Koree actively dissuaded her from making a claim under the WSIA, although a conversation about the complexities of the claim process may have taken place between her and Akwasi, either when the issue was raised by the doctor on the first attendance, or in the car on the way over. As it turned out Ms. Addo did take some time off, but received her full wages for the period, and suffered no wage loss.
The Injury
April 8, 1999
63Mr. Deroche testified that on April 8, 1999 he felt pain in his back while manipulating a compressed bale of clothing at the workplace. He testified that the bale was three feet wide and his best estimate was that it weighed 100 pounds. He testified that the injury occurred at approximately 3:15 p.m., the end of his shift. According to his own evidence and the versions set out in the documentation filed at the hearing, he described how his injury occurred in a number of different ways.
64For example, during his examination-in-chief he testified that the injury occurred when he was lifting a bale by himself. Under cross-examination by Mr. Yeboah-Koree he said, “After I finished baling, the bale was resting on the ground so we need space so I was lifting them up to pack and stacking them and that’s what happened.” He explained that he was not stacking the bales on a skid but rather he was stacking the bales from “one level to pull up to another level to make space.” He testified that he was working alone at the time.
65In his Complaint there is no description of how the alleged injury actually occurred, but in the pleadings of the Commission filed under the Tribunal’s Rules of Practice, paragraph 4 states that Mr. Deroche “suffered a work-related back injury near the end of his workday while lifting a 100 pound object.” In the Worker’s Report of Injury/Disease (Form 6) dated April 26, 1999 and signed May 5, 1999, it states “[I] was lifting the bale when I felt a pain in my lower back”. In the first level hearing decision at the WSIB the event is recounted as an injury sustained when Mr. Deroche lifted a bale of clothes. In the appeal of that first level decision, in which the Respondents did not participate, the injury is reported as having been sustained when Mr. Deroche lifted a bale.
66Mr. Deroche testified that after the initial pain he sat down for 15 minutes to rest. He then got up and walked toward the office to report his injury directly to Mr. Yeboah-Koree. He testified that on his way to the office he did not tell anyone that he was hurt, but he strenuously asserted that people in the warehouse knew he was injured because when he returned from the office he told them. However, with the exception of Ms. Acheampong, whom he identified in the documentation filed at the hearing as someone he told, he could not remember the names of the others. Neither Ms. Acheampong nor any other witness was called by the Commission or the Complainant to corroborate Mr. Deroche’s evidence. The decision not to call Ms. Acheampong was likely the result of her statement in the WSIA proceedings that Mr. Deroche never reported his injury to her. Mr. Harvey did testify that Mr. Deroche told him over the phone that he hurt his back at work and said he couldn’t come. It would appear, however, that this conversation took place after a confrontation that I find occurred on May 5, 1999, between Mr. Deroche and Mr. Yeboah-Koree when he came to collect his Record of Employment, discussed below.
67When Mr. Deroche reached the office he says Ms. Seudial told him that Mr. Yeboah-Koree was not in. He testified in his examination-in-chief, that he then told Ms. Seudial “he got his back hurt”. He testified that Ms. Seudial told him that Mr. Yeboah-Koree would be back later, so he returned to work. He says that Ms. Seudial did not take a statement with respect to the injury. After work he says he went out through the office, but Mr. Yeboah-Koree still wasn’t there.
68Mr. Yeboah-Koree testified that if Mr. Deroche told Ms. Seudial, she didn’t tell him. For her part, Ms. Seudial testified that Mr. Yeboah-Koree was not in on that day, but denies that Mr. Deroche ever told her that he was injured.
69Although he gave no indication previously, at the close of his examination-in-chief Mr. Yeboah-Koree advised that in fact he was present at his office at RRI on April 8, 1999, and was not aware Mr. Deroche was looking for him. He said that although he never mentioned this before in any of the multitude of proceedings involving Mr. Deroche, or in any of the documentation filed in this proceeding, his memory was reconstructed by working back from the dates set out in an Employer’s Report of Injury/Disease Form 7 dated May 10, 1999, discussed in more detail below. When pressed on the matter he replied that this was the only opportunity granted to say what he knew and that he didn’t need to put everything in writing. Otherwise, he said, there would be no need for him to be at the hearing.
70The Respondents’ witnesses were of the view that Mr. Deroche did not suffer any workplace injury. Ms. Addo testified that she was his supervisor, he did not tell her of the injury and she would have seen it if it had occurred.
The Next Day
71Mr. Deroche testified that because the pain worsened during the evening of April 8, 1999, the following day he telephoned Mr. Yeboah-Koree in the early morning to tell him what had happened. He testified that he told Mr. Yeboah-Koree that he had hurt his back lifting a bale and went to Mr. Yeboah-Koree’s office to see him, but Ms. Seudial told him he wasn’t there. He further advised Mr. Yeboah-Koree that he was going that very morning to the doctor and after attending at the doctor’s he would go to RRI to see Mr. Yeboah-Koree in person.
72He testified that he then attended at the offices of Dr. Bonnie Yue-Tang. In describing to her how he sustained his injury, he said that the day before he was lifting about 100 pounds and he hurt his lower back. He says that she asked him to describe how he lifted the bale, and he showed her. Dr. Yue-Tang was not called as a witness to provide her version of how Mr. Deroche described his injury. A standard form Medical Certificate from Dr. Yue-Tang dated April 9, 1999, which Dr. Yue-Tang gave to Mr. Deroche along with a prescription for pain-killers, contains no detail how the injury occurred but simply states:
This is to certify that James Deroche is not able to go to work for about four to five days and no heavy lifting for about two weeks.
73A report entitled Workers’ Compensation Board Physician’s First Report prepared by Dr. Yue-Tang and dated April 13, 1999, diagnoses a low back strain and indicates under the section entitled Patient’s History of Injury “heavy lifting at work”.
74It took the evidence of Rosemund Yeboah-Koree and Mr. Yeboah-Koree to shine light upon how Mr. Deroche’s injury actually occurred. Their testimony was that Mr. Deroche described his injury to Mr. Yeboah-Koree as occurring when he was performing his “moving” functions and he turned to push a bale in his way. This made more sense than an allegation that an injury occurred when a bale was lifted to any height, as I doubt highly that Mr. Deroche would have been capable on his own of lifting a 100 to 130 pound bale, “over his head”.
75I would have thought that if there were witnesses who would be able to support the assertion of Mr. Deroche that employees of RRI had been notified of any back injury on the day it occurred, the Commission and/or the Complainant would have called them to give evidence. There could be no doubt that the Commission was aware that Mr. Deroche had identified a woman named Elizabeth (Ms. Acheampong) as someone he had told about an injury. There was no evidence that they or the Complainant’s counsel were unable to contact her. I therefore conclude that they did not wish to call her as a witness because, in keeping with what she apparently told the adjudicator at the WSIB, she would not have testified that Mr. Deroche reported any injury to her.
76At all times Mr. Deroche insisted that an injury occurred at the workplace and maintained this position throughout a multiplicity of proceedings. It was clear in the evidence that the workplace is a busy one, and that although she may have felt that she was all-seeing, it was not possible for Ms. Addo to monitor her workers, and specifically Mr. Deroche, all the time. As a result, she may not have seen Mr. Deroche injure himself. The way in which the injury occurred is plausible, in light of the bales being located around the warehouse.
77To put the matter to rest, based on the evidence led at the hearing and considering the issue in great depth, even if the evidence of Dr. Yue-Tang, if called, would not have assisted the Complainant, and no other worker at RRI was aware of the injury, I find that there is sufficient other evidence to conclude on a balance of probabilities Mr. Deroche did injure his back at work while moving aside a bale in his way, while he was performing “moving” functions at RRI, as he reported to Mr. Yeboah-Koree.
78I also find as a fact that Mr. Deroche did attend at the office to report that he had hurt his back directly to Mr. Yeboah-Koree, notwithstanding the assertions of the Respondents that there was a strict protocol for reporting. This is because, as I found earlier, I am not satisfied that it was explained in any detail to Mr. Deroche, and even if it were, Mr. Deroche would likely have felt that his relationship with Mr. Yeboah-Koree entitled him to speak to Mr. Yeboah-Koree directly about his discomfort.
79I find as a fact that when Mr. Deroche attended at the office, Mr. Yeboah-Koree was not there. Whether this was because he was away for a long or short period is of no significance; he was not physically present at that specific time.
80There is then the matter of what Mr. Deroche said to Ms. Seudial when he learned that Mr. Yeboah-Koree wasn’t in. The Commission and the Complainant argue that Mr. Deroche’s version of his conversation is to be preferred over that of Ms. Seudial, because she is not a credible witness. There were two main avenues of attack on her credibility. The first that because she lied to her husband about going to work when she was going to attend at this hearing meant that she would be convenient with the truth here; and second, that she is indebted to Mr. Yeboah-Koree for giving her a job and being a reference on her resume and would take liberties with the truth for that reason.
81I saw this witness as she testified. I was impressed with her candour, forthrightness and truthfulness. She attempted to answer all the questions that were posed to the best of her ability, and made admissions that were against her interest. If she could not remember she said so and in my opinion, did not embellish or exaggerate. Although Mr. Yeboah-Koree is listed as a reference for her on her resume, and she expressed gratitude for his being her first employer, holding him in high regard, she stated emphatically that she was “not here to be on anybody’s side”. I believe her.
82Furthermore, in my view, her rationale for telling her husband, who was strongly opposed to her attending the hearing, that she was going to work, was practical. He had expressed his displeasure over her involvement in the matter and made it very difficult for her to attend. Ultimately it took an order from me requiring her attendance for her to attend, but yet she still felt she could not disclose her true intentions to her husband. It was apparent to me at the hearing that she sincerely wanted to assist the fact finding process. To do so she felt she had to mislead her husband. While I do not know the scope of their relationship, she felt she had no choice. Taking steps to participate in a hearing over what she perceived to be a great obstacle, in my view, in the circumstances before me, enhances her credibility, not diminishes it.
83As a result, I prefer the evidence of Ms. Seudial over that of Mr. Deroche on this point and I therefore find that Mr. Deroche never reported his injury to Ms. Seudial on the day it occurred. While I accept that he attended at the office to report it to Mr. Yeboah-Koree, in all the circumstances, as it would appear that Mr. Deroche himself was not aware of the full extent of his injuries at the time, it is more likely than not that seeing he was not there as it was the end of his shift, Mr. Deroche simply collected his things and left.
The Return to Work – The Conflicting Versions of the Events
84Mr. Deroche testified that after attending at Dr. Yue-Tang’s office he went to RRI that same day. He says he showed the doctor’s note and prescription to Mr. Yeboah-Koree who looked at the documents and returned them, giving him money to reimburse him for the cost of the medication. Mr. Deroche says that at the meeting Mr. Yeboah-Koree knew Mr. Deroche was not available for work because of the back injury.
85Mr. Yeboah-Koree was adamant in denying that he was ever told by Mr. Deroche that he had sustained a workplace injury. He also testified that he was the one who initiated a telephone conversation, not Mr. Deroche. Mr. Yeboah-Koree testified that at some point when Mr. Deroche was not at work, he asked Mr. Harvey if Mr. Deroche was away for any reason. Mr. Yeboah-Koree testified that that Mr. Harvey replied “none,” but “he suggested that he probably was not well.” He says that as a result of his conversation with Mr. Harvey, Mr. Yeboah-Koree called Mr. Deroche and tried to find out why he had not seen him, and if anything was wrong with him. Mr. Yeboah-Koree testified that in the telephone conversation Mr. Deroche simply said that he was “not feeling well.” Mr. Yeboah-Koree testified he then asked if he had seen a doctor to which Mr. Deroche replied in the affirmative, and whether any medicine had been prescribed, which also was answered in the affirmative. Mr. Yeboah-Koree then told Mr. Deroche that anytime he came to work or to the office he should bring in the receipt for a refund. He says that Mr. Deroche told him he would see him within the next couple of days.
86But, Mr. Yeboah-Koree testified, Mr. Deroche did not attend at RRI the day after his back injury nor did he attend the following workday, Monday April 12, 1999. Mr. Yeboah-Koree testified that “he believes” it was after April 12, 1999, either April 13 or 14, 1999, that Mr. Deroche attended at the office with a receipt for Tylenol for the sum of $14.50, for which he reimbursed Mr. Deroche. While confirming the reimbursement for the cost of medication, Mr. Yeboah-Koree adamantly denied that Mr. Deroche reported his injury to him, or showed him the Medical Certificate that Mr. Deroche had obtained from Dr. Yue-Tang. He said that if he had been shown the Medical Certificate he would not have returned it, but rather as the document was in his view of “an official nature”, he would have placed it in Mr. Deroche’s employee file. Although the correspondence dated April 26, 1999 emanated from the Workers Compensation Board, shortly after this alleged meeting took place, Mr. Yeboah-Koree testified that due to RRI ceasing to operate, he had difficulty locating employee files. Ultimately, none was found for Mr. Deroche.
87In support of his position that the events transpired on the dates he alleges, Mr. Yeboah-Koree referred in his testimony to Mr. Deroche’s pay cheque dated April 16, 1999, showing a wage reduction, which he says was for the period of time when Mr. Deroche was away from work on the first occasion. Mr. Yeboah-Koree states that this supports his assertion that he did not see Mr. Deroche from April 9, 1999, until he called him to come in on or about April 14, 1999.
88Mr. Yeboah-Koree further testified that on the day of Mr. Deroche’s attendance at RRI he repaid $300.00 of the $600.00 that Mr. Yeboah-Koree arranged to be loaned to him for his girlfriend’s engagement ring. Also, he says that while Mr. Deroche was there he asked for a pay raise, a request that had been made on earlier occasions. Mr. Yeboah-Koree says that he replied that he could not provide a raise, but aware of Mr. Deroche’s financial “problems”, he advised Mr. Deroche that he had a friend with a car dealership and that he may be able to get him work there. He testified that Mr. Deroche said he was interested, so Mr. Yeboah-Koree gave him his friend’s telephone number. After Mr. Deroche left, Mr. Yeboah-Koree testified that he contacted his friend, who then inquired whether Mr. Deroche had a valid driver’s licence, a prerequisite for the job. Aware he did not, Mr. Yeboah-Koree so advised his friend.
89Mr. Yeboah-Koree testified that there was a subsequent follow-up call on an unspecified date when he reported to Mr. Deroche what had transpired and explained what the job at the car dealership entailed. Mr. Deroche promised to work hard to obtain his licence. The job at the car dealership did not materialize.
90Mr. Yeboah-Koree testified that he did not see Mr. Deroche again until the Monday of the following week, being April 19, 1999, when Mr. Deroche came into work. Mr. Yeboah-Koree testified that he asked Mr. Deroche “if he was alright” and says that Mr. Deroche replied in the affirmative.
91Mr. Deroche testified that he returned to work at RRI because, although he was not feeling well, he was not paid when he was off and he needed the money. In cross-examination, Mr. Deroche alluded to a conversation between himself and Mr. Yeboah-Koree, when Mr. Yeboah-Koree noted his return to work. He said that Mr. Yeboah-Koree asked if he was feeling “okay to work.” He replied, “not really”, but that he was going to try. When he was asked in direct examination whether he asked Mr. Yeboah-Koree for any job changes he testified that he asked Mr. Yeboah-Koree if he could do some light duties, but he says Mr. Yeboah-Koree did not respond.
92Mr. Deroche testified that upon his return he took it upon himself to do something that was “easy” for him, such as driving the forklift vehicle. In cross-examination, however, he testified that his light duties involved driving the forklift and sorting, by “going through a pile of clothes and separating the good from the bad.” He testified that he could not perform the moving job because that involved lifting. He also said that when a female employee whose name he does not recall found out that he had been injured, she brought him a back brace. He described this individual as being the lady that was struck by a forklift vehicle, and who was home for a week or two “a lady from Somalia, something like that”. The back brace was worn externally. It had a shoulder strap to place one’s hands through and fasten it around one’s lower back. Mr. Deroche does not think Mr. Yeboah-Koree asked him about the brace. He does recall having a conversation with Mr. Yeboah-Koree while wearing the device, at the time when he says Mr. Yeboah-Koree asked him how he was doing. He testified that he replied that he was still in pain but “this helping me” and “things like that”. Mr. Deroche worked until April 24, 1999, when he determined that he was unable to perform his job functions.
93Mr. Yeboah-Koree denied that a conversation regarding light duties ever took place and that it was not possible for Mr. Deroche to perform sorting as he described, as the task is a very specialized and intricate one, which he believes is exclusively for women. He testified that it is possible that Mr. Deroche wore a back brace while working at RRI but that when he saw him, he was not wearing one. Ms. Addo, the only RRI employee to my knowledge who was struck by a forklift vehicle denies having such a conversation or providing a back brace to Mr. Deroche. If this individual was someone other than Ms. Addo, her identity was never determined, nor was she called as a witness. None of the witnesses for the Respondents testified that they saw Mr. Deroche wearing a back brace. In addition to Mr. Yeboah-Koree, Ms. Seudial and Ms. Addo deny ever seeing Mr. Deroche wear such a device.
94In order to put this matter to rest, with respect to the issue of whether Mr. Deroche wore a back brace at RRI, I have considered the conflicting versions of the evidence on this point and find that Mr. Deroche did wear an external back brace for the week that he returned to work at RRI. As he said that it was given to him after an unidentified individual learned he was hurt, it is more likely than not that he started to wear it some time after the day he first returned to work. It is possible therefore that some employees, such as Ms. Seudial who worked in the office and not the warehouse, never noticed him wearing it. It is also possible that Mr. Yeboah-Koree noted the brace in passing but it was not significant enough to him make a mental record of it. Ms. Addo was busy with other employees and may simply not have noticed it.
95Mr. Deroche testified that the meeting where the job offer at the car dealership was discussed occurred after April 24, 1999, not before. He says that at this meeting he told Mr. Yeboah-Koree that he was still in pain and couldn’t lift and that he had gone to his doctor who had told him to take more time off. Mr. Deroche says that Mr. Yeboah-Koree then decided to put him on disability and unemployment so that, “when he was fit and ready he could return to work.” He says that in order to do this Mr. Yeboah-Koree told him to attend at the offices of Human Resources and Development Canada (“HRDC”) to obtain a form for unemployment insurance.
96When Mr. Deroche attended at the HRDC office and explained why he was there, he says a female employee advised him that a Record of Employment was required for him to obtain unemployment benefits. In cross-examination, Mr. Deroche testified that he did not know that he could apply for sickness benefits without a Record of Employment. Mr. Deroche testified that when he returned to RRI to advise Mr. Yeboah-Koree what had transpired, Mr. Yeboah-Koree told him he would to take care of it and to return in the next day or two. Mr. Deroche testified that he thought he was still employed and that it was just temporary until he was able to work.
Commencing the Compensation Claim
97Mr. Deroche testified that Dr. Yue-Tang sent the first form to the WSIB, being the Workers’ Compensation Board Physician’s First Report dated April 13, 1999, on her own initiative.
98The Physician’s First Report has an assigned claim number and requests that the form be completed within 48 hours if the patient’s injury is believed to be work related. Although his evidence on how the document came to be sent to the WSIB was not clear, and it would have been helpful for Dr. Yue-Tang to be called as a witness to assist in clarifying the process and the timing, I believe that a discussion likely ensued between the doctor and Mr. Deroche with respect to completing the form at this first visit and Mr. Deroche either suggested or agreed that it should be sent.
99Mr. Deroche testified that he started the claim for compensation for a workplace injury with the WSIB after he realized that Mr. Yeboah-Koree was not providing the Record of Employment. Yet, in response to a direct question from Mr. Yeboah-Koree, after directing his attention to the April 13, 1999 date on the Physician’s First Report, Mr. Deroche also said that this date was the first time he initiated the process under the WSIA. In cross-examination, Mr. Yeboah-Koree agreed that Mr. Deroche filed a claim for benefits before April 26, 1999.
100The only document that contains a statement that by signing it Mr. Deroche is claiming benefits under the WSIA for a work-related injury, is a Worker’s Report of Injury/Disease (Form 6), dated April 26, 1999 and signed May 5, 1999.
101It would appear that the first formal notice that RRI received from the WSIB about a potential claim was correspondence dated April 26, 1999, which advised that a claim had been registered for Mr. Deroche. As no one from the WSIB was called to assist me, I can only assume that this letter was generated at the same time as the Worker’s Report of Injury/Disease (Form 6), perhaps in response to the receipt of the Workers’ Compensation Board Physician’s First Report dated April 13, 1999 from Dr. Yue-Tang. Mail delivery being what it is, it is possible that the correspondence to RRI dated April 26, 1999 was received after that date and I can not conclude, based on the evidence, that it was received before the altercation when Mr. Deroche came to collect his Record of Employment, discussed below.
102One would have thought that based on the emphasis that was placed upon the timing of events and the import of the various documents that were sent, the investigator from the WSIB would have been called to clarify the timing of the incidents. In particular, the date of the call during which Mr. Yeboah-Koree was “berated”, as will be discussed later, and what event triggers the commencement of a claim under the WSIA. That was not the case, even though the Commission stated at one point during the hearing that the witness would be called, and my advising during the testimony of Mr. Yeboah-Koree that if it was going to be argued that a workplace injury did not affect RRI’s premium costs, evidence would have to be led from a representative of the WSIB. Otherwise, no weight could be placed on simple assertions made one way or the other.
The Quest for the Record of Employment
103Mr. Deroche testified that in accordance with the instructions of the female employee at the unemployment office he attended at RRI to obtain his Record of Employment but was told by Mr. Yeboah-Koree that he didn’t have the time to do it. He says that on April 30, 1999 he tried again, but he was badly treated.
104He says that without any provocation from him, Mr. Yeboah-Koree walked toward him from the warehouse and was furious, screaming and speaking harshly. He said he was scared. He says that he could not remember Rosemund Yeboah-Koree being there at the time, but that a female office visitor was present.
105He testified that Mr. Yeboah-Koree told him that he had just received a call stating that Mr. Deroche had claimed compensation. Mr. Yeboah-Koree stated, “Oh, they’ll fine me - what did you do? I told you I’d give you the Record of Employment so you could go on disability and come back, and now you go and file this claim.” He says that Mr. Yeboah-Koree was saying things like, “Do you know the trouble I could be in?”, “stuff like that”.
106Mr. Deroche testified that in contrast to the behaviour of Mr. Yeboah-Koree, he remained calm and non-violent. In response to Mr. Yeboah-Koree’s comments he testified he replied, “Well I’m home for a week already and then I’m home again so what do you expect me to do. Every time I come you tell me tomorrow, next day and not today, busy, come tomorrow and stuff like that and I didn’t feel I had a choice.” Mr. Deroche says that in providing this explanation he was trying to calm Mr. Yeboah-Koree down. He says that at no time during the conversation did he say he quit, thinking he still had a job.
107Ultimately, he says, Mr. Yeboah-Koree pushed him out the entrance door. But before he did he said, “You’re fired”.
108After he was pushed out the door, Mr. Deroche says he went across the parking lot and spoke to an individual who worked at the garage. He says this individual expressed surprise. He used a phone at a restaurant to call the police. He testified that he told the police that when he went to get his Record of Employment, “his boss got mad, crazy, and pushed him out the door”. He waited around for the police, he says, but they never attended.
109While he was waiting for the police to arrive, the morning shift ended and workers filed out from RRI. He testified that he told Mr. Harvey, and although he could not be sure, some other employees who remained unidentified, that he had called the police. He says that he also told Mr. Harvey that he had come to work to collect his Record of Employment and that after Mr. Yeboah-Koree found out that Worker’s Compensation had written to him, he became angry and upset and pushed him out. Although asked specifically in cross-examination if anything else was said at the time and given ample opportunity to respond any way he wished, Mr. Deroche did not say that he told Mr. Harvey that he had previously told Mr. Yeboah-Koree that he was quitting or that, in addition to being pushed, he had also been fired.
110Mr. Deroche further testified that he spoke to Mr. Harvey after that day and they talked about what had happened to him, his back injury and the confrontation between him and Mr. Yeboah-Koree. Unfortunately, the date of that conversation was never clarified.
111Mr. Yeboah-Koree confirmed in his testimony that a confrontation between he and Mr. Deroche did take place on a day Mr. Deroche came to collect a Record of Employment. He asserts, however, that Mr. Deroche was the instigator and the aggressor. He also disputed the timing of events suggested by Mr. Deroche and testified that they occurred on May 5, 1999.
112Mr. Yeboah-Koree testified that he had not seen Mr. Deroche from the last day he worked until April 30, 1999. Ms. Seudial testified that after she gave Mr. Deroche his pay cheque on April 30, 1999 he advised her that he was not returning and requested his 4% vacation pay. So, Ms. Seudial says she went to speak to Mr. Yeboah-Koree.
113As payment was due from Mr. Deroche for some clothing he had purchased at an employee sale day, Mr. Yeboah-Koree says he instructed Ms. Seudial to ask for Mr. Deroche’s pay cheque back so that the accounts could be settled. Ms. Seudial did as instructed. Mr. Yeboah-Koree testified that she then returned to advise him that Mr. Deroche was not giving back the cheque and that the 4% that RRI owes him, “squares” what Mr. Deroche owes RRI.
114Mr. Yeboah-Koree testified that the following Monday, being May 3, 1999, Mr. Deroche re-attended at RRI to collect his Record of Employment. Mr. Yeboah-Koree testified that they talked and that although Ms. Seudial had told him that Mr. Deroche had quit, in his view that was not an official notification, which he expressed to Mr. Deroche. He advised Mr. Deroche that as he has now come to request his Record of Employment from him, he has made his departure formal to Mr. Yeboah-Koree. Mr. Yeboah-Koree said that he would prepare the Record of Employment and would have it available in a couple of days. He asked Mr. Deroche to return on May 5, 1999 to collect it.
115As evidenced by a letter dated May 5, 1999 from Mr. Deroche to RRI, marked as exhibit 15 at the hearing, it would appear that on May 3, 1999, Mr. Deroche consulted with a representative of the Employment Standards Program of the Ministry of Labour and was advised of his right to file a claim under the Employment Standards Act for amounts owing under that statute. After item number 3 in the letter, which relates to a claim for termination pay, appears a handwritten insertion “4%” and in the area to the right where an amount is to be inserted there is found a question mark. In the letter there is also a claim for holiday pay.
116Mr. Yeboah-Koree testified that on May 5, 1999, he noted that his stock of Record of Employment forms had to be replenished. Before he left RRI to attend at the HRDC office to replenish the forms, he received a telephone call from a representative of the WSIB. Mr. Yeboah-Koree testified that the person who called was “very harsh”. They wanted to know why he had not submitted a certain form with respect to an “alleged injury by an employee”. Mr. Yeboah-Koree advised the representative that he was not aware of an injury and knew nothing about what they were saying. Mr. Yeboah-Koree says, “The person kept berating me”, but that later “he came around and accepted his position that he had not deliberately ignored the submission of the form” and that he would have done it had he known of the workplace injury. Mr. Yeboah-Koree says he then left to collect the forms.
117Meanwhile, back at RRI, a female visitor, who remained nameless and unidentified, had arrived and was waiting to see Mr. Yeboah-Koree. Mr. Deroche entered.
118In her evidence, which I found to be rife with exaggeration and at times, especially with respect to the discussion of her “repressive memory”, quite incredible, Rosemund Yeboah-Koree stated that she encountered Mr. Deroche in the waiting room. She says that he was in an agitated state pacing back and forth, upset that he had attended to collect his record of employment yet again, and Mr. Yeboah-Koree was not there. As a guest was present, she says she took it upon herself to try to calm him down. She says that she asked him why he had not been in attendance at RRI and he replied that was because he had quit. It would appear, however, that based on her evidence her efforts to sooth Mr. Deroche were unsuccessful.
119That being said, even if Rosemund Yeboah-Koree was actually present (both Mr. Deroche and Ms. Seudial did not positively identify her as a participant), I am not satisfied on the evidence alone of this witness that Mr. Deroche advised her that he had quit. Although she testified to it, I am of the opinion that her recollection of the events may have been affected by her self-described “repressive memory”, and reconstructed after the fact. I therefore assign no weight to it.
120Mr. Yeboah-Koree testified that upon encountering Mr. Deroche when he returned to RRI, he immediately asked him why he filed a claim without first notifying him. Mr. Deroche then asked Mr. Yeboah-Koree what he was talking about. Mr. Yeboah-Koree explained, “You go outside and make a complaint without letting us know. It makes us look stupid you know that”. Mr. Yeboah-Koree says that Mr. Deroche retorted that everybody else knows about this. He asked Mr. Deroche who is “everybody else”. Mr. Deroche identified Ms. Acheampong, a co-worker, and Mr. Harvey. Mr. Yeboah-Koree testified that it was also possible that Mr. Deroche also identified Ganghadai Paul, but that he could not be sure. Mr. Yeboah-Koree then entered the warehouse to find out for himself if this was true.
121Mr. Yeboah-Koree testified that when asked, Mr. Harvey said he was not aware of an injury being suffered. He testified he also asked Ms. Addo and Ms. Acheampong but did not suggest that Mr. Deroche suffered an injury, only asking if they were aware an injury had been suffered. Ms. Addo and Ms. Acheampong knew nothing about it. In response to the inquiry, Mr. Peprah asked if anything was wrong. Mr. Yeboah-Koree replied “nothing” and returned to the office to speak to Mr. Deroche.
122Mr. Yeboah-Koree testified he advised Mr. Deroche that he had spoken to the employees whose names were mentioned but the alleged incident “appears to be a mystery to them”. Mr. Deroche insisted that he had told them. Mr. Yeboah-Koree says that he then asked if he wished the employees to be brought out so that Mr. Deroche could hear it himself. He testified that Mr. Deroche said he did not care; he had made his claim. Mr. Yeboah-Koree then asked where and how he sustained the injury. He replied that a bale was in his way in a lane in which he was pulling a two-wheeled dolly. He bent down to push it aside and that is when he sustained the injury. Mr. Yeboah-Koree asked if that was the case, why then was the injury hidden from him. Mr. Yeboah-Koree says Mr. Deroche retorted, “For me, I have made my claim”.
123Mr. Yeboah-Koree testified that he then returned to his office. He stated that he was on the telephone for a minute or two and heard that Mr. Deroche was still in the office yelling. He says he hung up the phone and returned to where Mr. Deroche was standing. He testified that he stated to Mr. Deroche that it was “okay if he made a claim, that that was his right”, but that he didn’t have his Record of Employment. He asked him to return to collect it on May 7, 1999.
124Mr. Yeboah-Koree testified that Mr. Deroche said that he was not leaving without the Record of Employment. Mr. Yeboah-Koree testified that Mr. Deroche said that he had quit, Mr. Yeboah-Koree didn’t want to give him his Record of Employment and that Mr. Yeboah-Koree was lying to him. As Mr. Deroche was “talking at the top of his voice”, Mr. Yeboah-Koree says he placed his hand on his shoulder and led Mr. Deroche out the office door, locking it behind him. Mr. Yeboah-Koree testified that as this was transpiring Mr. Deroche said, “You have laid your hands on me, I will make a big case for you”. He added, “I thought you were a nice man, now you will see and I’m going to call the cops”.
125Then, Mr. Yeboah-Koree says, with a “sprinter’s speed”, Mr. Deroche ran to a phone booth within the same industrial complex about 250 feet away.
126Around this time in the afternoon, Mr. Yeboah-Koree says he was supposed to go to the bank. However, since Mr. Deroche said that he had called the police, he testified that he decided to delay his departure. After waiting for no more than thirty minutes, as the closing time of the bank was drawing near, Mr. Yeboah-Koree left for the bank. Before he left he testified that he instructed Ms. Seudial to take down contact information if the police arrived, so that he could speak to them directly.
127Mr. Yeboah-Koree testified that while he was at the bank he called the office. Ms. Seudial answered but the phone cut off mid-conversation. Mr. Yeboah-Koree says he assumed that was because the police were present and in the midst of conducting their investigation. He supposed that they had asked her not to speak to anybody while they were doing so.
128Mr. Yeboah-Koree testified that he then attended at the HRDC office to collect the forms he needed to obtain blank Records of Employment. Upon his return to RRI, he noted that Mr. Deroche remained in front of the main entrance and was still in an agitated state. He says that upon entering RRI and speaking to Ms. Seudial he learned that the police never arrived and that the phone had simply accidentally flipped out of Ms. Seudial’s hand, cutting off the line. There was no further evidence elicited as to what else occurred that day. I can only assume that after a while, Mr. Deroche left.
129Neither Ms. Acheampong, Mr. Peprah, Ganghadai Paul nor the unidentified visitor appeared as witnesses for the Respondents, to confirm the investigative efforts of Mr. Yeboah-Koree, to testify as the scope of his inquiries, the time this investigation took or to otherwise provide their evidence on what transpired that day. In particular, the unidentified female visitor would have been most helpful in sorting out what occurred and what she may have overheard being said.
130Considering the evidence on the efforts made by the Respondents to determine if Mr. Deroche suffered a workplace injury, I am satisfied that the Respondents’ investigation could best be described as a “cursory” one and the inquiry took only a very short period of time.
131It would appear that Exhibit 15 and the Worker’s Report of Injury/Disease (Form 6), were signed by Mr. Deroche on May 5, 1999.
The Record of Employment is Given
132On the following day, Mr. Yeboah-Koree says he re-attended at the HRDC offices and collected the blank Records of Employment. He brought them to Ms. Seudial who testified that she prepared one for Mr. Deroche and signed it on behalf of Mr. Yeboah-Koree. Mr. Deroche came to collect it on May 7, 1999. Mr. Yeboah-Koree was not in that day. Apparently, as I heard no evidence to the contrary, this occurred without incident, nor was there any evidence of a discussion between Mr. Deroche and Ms. Seudial when he attended that day.
133Mr. Deroche testified that when Ms. Seudial gave him the Record of Employment he glanced at it briefly. On the way home when he gave it a closer look he discovered that the code that was marked on it indicated that he had quit. He testified that was not true, that he had never quit.
Evidence of Mitigation
134Mr. Deroche testified that his return to work after his injury at RRI was delayed by a number of factors. He believes that on his last visit to his doctor he was told that he would be able to return to work without restrictions on July 22, 1999. He says that his doctor also advised him that he was to avoid heavy lifting for two months.
135Although he has some high school education, for the most part his job experience is as a labourer. He testified that because he was unable to work due to his injury he did not start looking for work until July 22, 1999. He stated that he was looking for light work because he needed to give his back a rest. He searched for jobs in the same area, being Etobicoke and Scarborough, Ontario, but he says it wouldn’t have mattered to him where he found a job. It could even have been in Brampton, Ontario and he would have relocated if he had to.
136Mr. Deroche testified that in order to find employment he went to the HRDC offices to check the computer for jobs online. He also looked in the newspaper. He says he “maybe” had an interview on two of them, but had no success. He testified he called other places and looked in a regular newspaper as well as a newspaper specializing in jobs. He said he would look at it every time there was a new issue, every week or so. He looked as often as he could, every couple of days, he says. If a job was posted for a while and if he had no success he would wait and check again. When the time lapsed for a posting, he would check again to see if a new job was posted.
137He testified that he felt he could have done his former job on July 22, 1999 and that one individual called for a job but he couldn’t take it. This, he says, was because he was diagnosed with cancer in or about March 2000. As set out in the Commission’s final submissions, although he was ultimately offered a job on March 15, 2000, he could not accept it as a result of this diagnosis.
138He explained that he got his present job through a friend who referred him to an agency. He had not applied at an agency before that because when he worked at another job he noted that people who were sent to work there by an agency were not treated well. He testified that his physical condition is “okay” and that although he didn’t think so, it could be a possibility for him to perform his old job at RRI.
139After Mr. Deroche initially received WSIB benefits, there was a denial of coverage and the benefits ceased, but they were re-instated after an appeal of the denial was successful. He received benefits from the WSIB for the period from April 16, 1999 until July 22, 1999. There was no award for benefits during the time he was partially disabled (one week after the injury). He also claimed sickness benefits after he received his Record of Employment. The disqualification period was removed, Mr. Deroche says, because the “evidence showed them I was fired”.
The Effect on the Complainant
140Mr. Deroche testified that at the time of the events he was hurt and surprised. He could not believe the manner in which Mr. Yeboah-Koree had conducted himself. He stated that he had been loyal to Mr. Yeboah-Koree and recounted his early morning arrival and the sharing of beverages. So, he says that he was angry and “really broken hearted” about what happened. He says that as a result of his termination, he couldn’t pay the rent or his other bills. When he had a job at RRI he felt confident in being independent but, he says, he had to move back “in shame” to his mother’s house, because he had no other choice. He felt this way for a while, he says. Now at work he finds he is cautious of his employers, that he doesn’t trust them anymore. He says that he tries to look out “mostly for himself most of the time”.
The Position of the Commission and the Complainant
141It was the position of the Commission and the Complainant that as a result of claiming for compensation under the WSIA for a workplace injury, or in the alternative, because of a handicap (the result of his workplace injury) as defined in the Code, the Complainant suffered discrimination and was terminated from his employment at RRI. In addition to a claim for special damages in the sum of $17,190.40, representing wage loss at $505.60 a week from July 22, 1999 to March 15, 2000 (incorrectly expressed as May 15, 2000 in the Commission’s final written submissions), the Complainant and the Commission requested general damages in the sum of $10,000.00 and damages for mental anguish in the sum of $5,000.00. Pre and post-judgment interest were claimed on these amounts. The Commission also requested the following public interest remedies:
a) An order requiring that Mr. Yeboah-Koree attend a training program facilitated by an expert on human rights issues on anti-discrimination principles, including the duty to accommodate.
b) An order requiring that the Respondents provide a letter of assurance to the Chief Commissioner of the Commission.
c) Such further and other relief as the Commission may advise or as in the opinion of the Tribunal will provide restitution to the complainant and achieve compliance with the Code, with respect to both the Complaint and future practices.
The Position of the Respondents
142It is the position of the Respondents that Mr. Deroche suffered no injury at the workplace and was not fired, but quit his employment at RRI voluntarily. The Respondents also challenge the Complainant’s efforts at mitigating his damages. As a result, the Respondents’ say they bear no liability for any of the damages claimed.
The Law
General Principles
143Currently, subsection 5(1) of the Code provides that every person has a right to equal treatment with respect to the employment without discrimination because of disability (formerly “because of handicap”). Section 9 of the Code provides that no person shall infringe or do, directly or indirectly, anything that infringes this right.
144To establish a breach of the Code, discrimination must be a factor in the conduct, but it need not be the only factor.
145In Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 2002 CanLII 46516 (ON HRT), 44 C.H.R.R. D/203 (Ont. Bd. Inq.) (“Payne”) former Chair Garfield determined that there is a human rights duty not to condone or further a discriminatory act.
Section 10(1) of the Code
146At April 1, 1999 subsection 10(1) of the Code defined “because of handicap” as follows:
“because of handicap" means for the reason that the person has or has had, or is believed to have or have had,
(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, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device,
(b) a condition of mental retardation or impairment,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
147In my opinion, as the opening phrase in subsection 10(1) of the Code as it stood in 1999 contains the words “is believed to have or have had”, and considering the principles discussed by former Chair Garfield in Ketola v. Value Propane Inc. (No.1) (2002) 2002 CanLII 46510 (ON HRT), 44 C.H.R.R. D/20 (Ont. Bd. Inq.), a “belief” or “perception” of the existence of these factors would also fall within the definition of discrimination.
148At the outset of the hearing, I was told by Counsel for the Commission that the only issue that I need consider to determine this case is whether or not Mr. Deroche claimed and received benefits under the WSIA and was terminated from his employment because he had exercised those statutory rights. It was suggested that it was not necessary in that regard to address whether an injury had actually occurred for the Code to apply. As I was not at that early stage convinced of the merits of proceeding on that basis, I deferred determining that legal point until after the evidence was heard.
149In Re Ontario (Ministry of Health) and O.P.S.E.U. (Martin) (1993) 1993 CanLII 16786 (ON GSB), 31 L.A.C. (4th) 129 (Ont. Crown Employees Grievance Settlement Board) a three member panel of the Grievance Settlement Board had the occasion to consider whether penalizing somebody in a job competition for taking days off for injuries due to a compensable work injury under the Workers Compensation Act was a breach of the Code. They held that because the word “or” is present in the definitions under the heading “because of handicap” (now “disability”) in the Code they are to be read disjunctively. To fall within the scope of that definition a person need only come within any one of the clauses listed under (a) to (e), they wrote. In that way, the panel held, it was not necessary that a person have a “handicap” (now “disability”), as strictly defined under clauses (a) to (d) of the Code, to qualify under clause (e).
150I agree, but in my opinion this does not mean that a Complainant is relieved from the requirement of establishing that a disability or the “belief” or “perception” that a disability exists or existed for the Code to apply. In my opinion clause (e) effectively raises those disabilities and injuries of a temporary nature covered by the WSIA for which benefits were claimed or received, to the status of a disability (formerly handicap) under the Code.
151As a result, in order to satisfy the definition under clause 10(e) of the Code, the Complainant and/or the Commission must establish the following:
a. There is an injury or disability (even one of a temporary or short duration that may not normally qualify under the Code, but qualifies as a compensable injury or disability under the WSIA);
b. For which benefits were claimed or received;
c. Under the insurance plan established under the WSIA.
152Subsection 22(1) of the WSIA, found under the heading “Claim for Benefits”, provides that a worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident. Although the April 26, 1999 letter to RRI indicates in the first sentence that a claim was registered for Mr. Deroche, the only document that was entered into evidence in this case that contains a statement that by signing it benefits are being claimed under the WSIA for a work-related injury, is the Worker’s Report of Injury/Disease (Form 6), dated April 26, 1999 and signed May 5, 1999.
The Legal Effect of Findings by Other Statutory Bodies
153At the hearing emphasis was placed on the rulings made by various statutory bodies about whether or not Mr. Deroche had sustained a workplace injury and whether he voluntarily left his employ or was fired. In Bui, cited above, I dealt in detail with the legal concepts of Estoppel and one of its constituent elements, Res Judicata as they apply to proceedings under the Code.
154While I consider the fact of, and explanations for, Mr. Yeboah-Koree and RRI not attending at the various hearings in other venues after Mr. Deroche left the company, to be a series of incredible coincidences, I am not bound by the determinations made in those proceedings. This is because, although the definitions of disability may be shared, as I held in Bui, what we are addressing here is a breach of the Code, not of the WSIA or other statutes. It is only the Human Rights Tribunal of Ontario that, in accordance with its obligations under section 39 of the Code, finally determines the merits of the subject matter of a complaint.
Did a breach of the code occur?
155I have found above that Mr. Deroche suffered a workplace injury at RRI. When Mr. Yeboah-Koree knew or ought to have known of this injury and when benefits were claimed, or believed to have been claimed, under the WSIA is of consequence.
156Both Mr. Yeboah-Koree and Mr. Deroche agree that at a meeting they had, Mr. Deroche advised Mr. Yeboah-Koree that he was prescribed pain medication and Mr. Yeboah-Koree compensated him for it. On the evidence of both Mr. Yeboah-Koree and Mr. Deroche, this meeting took place some time before the altercation regarding the Record of Employment.
157They disagree as to the specific date of the meeting, the extent of conversation about the reason for the pain medication and whether the receipt for the medication was retained by Mr. Yeboah-Koree.
158I have thought about this issue for some time and conclude that a business person as careful as Mr. Yeboah-Koree says he is, even with their relationship, would only have provided compensation to Mr. Deroche for medication for a work related reason. Considering all the evidence with respect to this meeting, therefore, I find that it is more probable than not that Mr. Deroche did advise Mr. Yeboah-Koree that he was in pain related to an injury that occurred at the workplace, although perhaps not explaining it in sufficient detail for Mr. Yeboah-Koree to make detailed note of it, and that medication was required for his treatment. I am satisfied that Mr. Yeboah-Koree was given sufficient information in a reasonably understandable way (see in this regard Henry v. Kuntz (No. 2)(2004), 2004 HRTO 7, 50 C.H.R.R. D/70 (HRTO)) to put him on notice and that it was at this point that Mr. Yeboah-Koree knew or ought to have known that Mr. Deroche had suffered a workplace injury and that it was possible that a claim for benefits under the WSIA could be made.
159At that stage however, the Respondents were not aware that steps had been taken to report the workplace injury to the WSIB or that the processes of the WSIB had been engaged. There was no evidence that Mr. Deroche had advised Mr. Yeboah-Koree at the time of this meeting that Dr. Yue-Tang had forwarded the Physician’s First Report to the WSIB, or that Mr. Deroche had initiated a claim for benefits under the WSIA. At the date of this meeting then, while a claim was a possibility, to the Respondents it was by no means a certainty.
160I find that a second meeting then took place after Mr. Deroche’s unsuccessful attempt to return to work at RRI. I find that it was during this meeting that the two men discussed Mr. Deroche working at an automotive dealership and that Mr. Yeboah-Koree suggested that Mr. Deroche attend at the offices of the HRDC to obtain sickness benefits. Mr. Deroche was making no money while off, had no immediate job prospects and obviously had personal expenses. While Ms. Addo had been paid her full wages while she was off Mr. Deroche was not. This then would have been the time that options were discussed, because Mr. Deroche was no doubt aware, and Mr. Yeboah-Koree knew or ought to have known, that Mr. Deroche could no longer perform the job functions because of his workplace injury.
161Mr. Deroche testified that when he attended at the offices of HRDC, he told an unidentified female employee (who was also not called as a witness) that his boss had sent him to pick up forms to make a claim for disability. He testified that she told him that a Record of Employment was required before he could make a claim to that office. Based on the evidence and the circumstances of this case, I believe this to be true. Mr. Deroche, whether by his own initiative or by that of his doctor, had already engaged the WSIB processes and I do not believe that he would have attended at the HRDC on his own initiative or was even aware, prior to Mr. Yeboah-Koree’s raising it, that this course may have been an option.
162Mr. Yeboah-Koree testified that his discussing Mr. Deroche working at a car dealership was in response to Mr. Deroche’s many requests for a raise. Mr. Deroche’s position was that this was an attempt at an accommodation of his injuries. Whatever it was, it occurs to me that involving HRDC or having Mr. Deroche find alternate employment might have lessened Mr. Deroche’s ardour to pursue another venue for compensation; the WSIB. I do not believe that Mr. Yeboah-Koree, who no doubt would wish to minimize WSIB involvement in RRI as evidenced by his reaction to the phone call from their offices, would be so naïve as not to have considered that this course would avoid the trouble of a WSIB claim. It also seems to fit with the series of events and the manner in which he approached matters that Mr. Deroche considered obtaining a Record of Employment as part and parcel of a direction from Mr. Yeboah-Koree to attend at HRDC to obtain benefits. Not an indication that he was unilaterally seeking to terminate his employ at RRI. I find that Mr. Deroche would not have unilaterally quit his employment, as he had no other job to go to.
163In keeping with this direction, Mr. Deroche dutifully attended at RRI and advised Ms. Seudial that he required a Record of Employment. Once Mr. Deroche had attended on April 30, 1999, to collect his final pay and whatever else he was owed, the die was cast. In her evidence Ms. Seudial never said that Mr. Deroche used the words “I quit”, only telling her at the time that he was not returning. She assumed that this meant that Mr. Deroche was quitting, but unfortunately that assumption was in error. Although I am satisfied that Mr. Deroche did ask for his 4%, he never meant to quit, he was just following through with what he had been told to do.
164Unfortunately, Ms. Seudial received the request for the 4%, assumed that it meant that Mr. Deroche quit, and conveyed that assumption to Mr. Yeboah-Koree. Mr. Yeboah-Koree did not question Mr. Deroche about it simply because it suited Mr. Yeboah-Koree’s purposes.
165The events on the day that Mr. Yeboah-Koree received a telephone call from WSIB questioning why no report of injury was filed by RRI with respect to Mr. Deroche’s workplace injury, only strengthened Mr. Yeboah-Koree’s resolve. Mr. Deroche’s claim for benefits was now a reality and there was nothing that Mr. Yeboah-Koree could do to avoid it.
166In support of its position that the Respondents were aware of Mr. Deroche’s claim for benefits under the WSIA before a telephone call from the WSIB, which Mr. Yeboah-Koree testified was received on May 5, 1999, the Commission focussed on what Mr. Yeboah-Koree described as a typographical error in the Employer’s Report of Injury/Disease Form 7 dated May 10, 1999, which appears, on its face, to have been received in the mailroom of the WSIB on that same date. The theory was that, although Mr. Yeboah-Koree insisted that the May 15, 1999 date set out in paragraph 7 was a typographical error, it represented an unreliable recollection of the dates that the events occurred and if a mistake was made on that date, it would likely have meant other errors in dates occurred.
167I do not accept this theory. As the Form 7 is dated May 10, 1999, the date listed in paragraph 7 is an obvious error. I am also satisfied that, based on the evidence, the Record of Employment was collected by Mr. Deroche on the day it is dated, being May 7, 1999. As a result, I accept Mr. Yeboah-Koree’s evidence that May 5, 1999 was the date of an altercation that arose from Mr. Deroche attending at RRI to attempt to collect his Record of Employment. Further, in the absence of evidence from a witness from WSIB to the contrary, I find that it was earlier on that day that Mr. Yeboah-Koree had a conversation with a representative of the WSIB about not notifying it of Mr. Deroche’s workplace injury.
168With respect to the events that transpired during the attendance on May 5, 1999, based on the evidence I heard, I find that that the interaction between Mr. Deroche and Mr. Yeboah-Koree that day was heated and emotions ran high. Mr. Deroche was likely upset at attending yet again to collect his Record of Employment, something that Mr. Yeboah-Koree had set in motion, and it was not available. Mr. Yeboah-Koree was likely embarrassed by the phone conversation that he had earlier with the representative from WSIB challenging his integrity, and by the behaviour of Mr. Deroche in front of an office visitor.
169Mr. Deroche testified that Mr. Yeboah-Koree terminated him as he was being led out the door during that altercation. Mr. Deroche did not assert that a termination occurred prior to that time.
170Tellingly, according to the evidence of Mr. Harvey, when Mr. Deroche reported to Mr. Harvey, within moments, what had transpired, while complaining that no Record of Employment had been provided to him, Mr. Deroche made no mention of having been fired, or for that matter that he had quit. While I am troubled by the failure of the Respondents to call the unidentified woman visitor as a witness, who, although there was no evidence that she was within earshot of the final exchanges, no doubt could have shed light on what occurred that day, and even would go so far as concluding that her evidence would not have assisted the Respondents, if Mr. Deroche had been fired on that day as he asserts, or had spoken previously to Mr. Yeboah-Koree about quitting, he would have no doubt reported it to Mr. Harvey at the time. As he did not, I therefore conclude that Mr. Yeboah-Koree did not say that he was fired, nor at any time before or after did Mr. Deroche tell Mr. Yeboah-Koree that he quit. This was not an option for Mr. Deroche; he had expenses and no other job to turn to.
171Even if Mr. Deroche stated that he would “make a big case” against Mr. Yeboah-Koree, I put no stock in Mr. Yeboah-Koree’s assertion that this meant that Mr. Deroche would commence a groundless proceeding as a means of revenge. This is because the genesis of the WSIB proceeding had taken place shortly after Mr. Deroche’s injury and long before his being escorted out of the premises of RRI.
172I find that after the altercation on May 5, 1999 and upset by the conduct of Mr. Deroche on that day, Mr. Yeboah-Koree now wished to put any relationship between them, employment or otherwise, completely to an end. Although this was never intended by Mr. Deroche or understood or anticipated by him to be a result of his request for a Record of Employment, Mr. Yeboah-Koree allowed a Record of Employment to be issued indicating that Mr. Deroche had quit, thereby terminating Mr. Deroche’s employment at RRI.
173I find that the treatment that Mr. Deroche received in directing him to collect benefits at HRDC and allowing a Record of Employment to issue indicating that Mr. Deroche had quit, thereby terminating his employment relationship at RRI were done in the former, in whole or in part, to avoid the engaging the processes of the WSIB and in the latter, in whole or in part, because Mr. Yeboah-Koree was aware Mr. Deroche had engaged the processes of the WSIB.
174I find as a fact that the conduct of the Respondents was therefore due, either in whole or in part, to Mr. Deroche having or believed to have an injury or disability for which benefits were claimed or received under the insurance plan established under the WSIA. Mr. Yeboah-Koree never took any steps thereafter to remediate this discriminatory result but rather, like the Respondents in Payne, condoned the course.
175If Mr. Yeboah-Koree had simply treated Mr. Deroche as an employee with a compensable injury under the WSIA, and reported or accommodated the injury, instead of doing everything other than that, it is more likely that not that none of this would have occurred. Mr. Deroche would have taken advantage of the statutory scheme, without consequence.
176As a result, based on the evidence that I heard in this matter, my review of the extensive submissions in this matter, the inferences I have drawn, and my determinations on credibility and the law, I am satisfied on a balance of probabilities that Mr. Deroche was discriminated against because of his disability (formerly handicap) as defined at subsection 10(1)(e) of the Code.
Remedy
177As RRI is no longer operational and it is unclear at this stage what, if any, responsibility Mr. Yeboah-Koree now has for employees, I am not satisfied that a training program facilitated by an expert on human rights issues on anti-discrimination principles, including the duty to accommodate, or a letter of assurance to the Chief Commissioner of the Commission, would be practical or indeed useful in all the circumstances.
178Considering the factors germane to quantifying an award of general damages and damages for mental anguish as discussed in the authorities set out at paragraphs 46 to 48 of Kalbfleisch v. Carillo (2002), 2002 CanLII 46513 (ON HRT), 44 C.H.R.R. D/163 (Ont. Bd. Inq.) and Payne, in all the circumstances, while I am satisfied that the Complainant is entitled to an award of general damages in the sum of $10,000.00, I am not satisfied that there has been established the type and degree of mental pain and suffering necessary to satisfy the second branch of section 41(1)(b). Accordingly, I am not satisfied that the facts of this case support an award for Mental Anguish under the Code.
179With respect to his mitigation efforts the Complainant acknowledged that he obtained his current job through an agency, but did not use the services of an agency during his period of unemployment because of an impression that employees of agencies were not well treated. Although the Complainant was looking for an unskilled labour job, he was unemployed for almost an eight month period. With all due respect to the Complainant, I would have though that investigating employment options at an agency was something that should have been done as early as possible, and would have been a reasonable step to mitigate his special damages. Therefore, while I am prepared to compensate the Complainant for his wage loss, I find that in all the circumstances, the period from July 23, 1999 to November 17, 1999 is an appropriate period for a wage loss award.
180When directed to his Record of Employment Mr. Deroche testified that he received $505.60 per week, which had been listed as the total insurable earnings. However, that amount is disputed by the Respondents. Their position is that Mr. Deroche received $7.75/hr and worked a 40 hour week. As set out in the Worker’s Report of Injury/Disease Form 6 dated April 26, 1999 and signed by Mr. Deroche May 5, 1999 it is indicated that he received an hourly wage of $7.75 for a 40 hour work week. As set out in a letter dated April 12, 2000 from the WSIB to Mr. Yeboah-Koree, these were the amounts that were used to calculate Mr. Deroche’s loss of earnings after the WSIB decision dated April 5, 2000.
181I therefore find that Mr. Deroche based his testimony in error on a cursory review of the Record of Employment and in fact he received a $7.75/hr wage while working a 40 hour week at RRI.
182Accordingly, I am satisfied that the Complainant is entitled to an award of special damages for the period allowed in the sum of $5,146.00.
183Prejudgment and postjudgment interest on the monetary awards shall be calculated based on the rates set under the Courts of Justice Act, R.S.O. 1990, ch.C.43, as amended (the “Courts of Justice Act”). Prejudgment interest shall run from July 21, 1999, to the date of this decision at the rate of 6.0 percent per annum on the general damages award and from November 17, 1999, to the date of this decision at the rate of 6.0 percent per annum on the special damages award. Postjudgment interest on the monetary awards is to commence sixty days from the date of this Order.
184I find that both Respondents are jointly and severally liable for the monetary awards.
ORDER
185Upon finding that the Respondents violated the Complainant’s rights under subsection 5(1) of the Code, contrary to section 9 of the Code, the Tribunal orders the following:
The Respondents shall pay to the Complainant general damages in the amount of $10,000.00, along with prejudgment interest on this amount from July 21, 1999 to the date of this decision at the rate of 6.0 % per annum.
The Respondents shall pay special damages to the Complainant in the amount of $5,146.00, along with prejudgment interest on this amount from November 17, 1999, to the date of this Decision at the rate of 6.0 % per annum.
Postjudgment interest on the monetary awards, excluding interest, is granted at the rate as specified under the Courts of Justice Act, to commence sixty days from the date of this Order; and
- The Respondents are liable, jointly and severally, for the above awards.
Dated at Toronto, this 21st day of July, 2005.
“Signed by”
Steven J. Faughnan Adjudicator