HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Andria Davis

Complainant

-and-

1041433 Ontario Limited o/a Trust Flooring Group

and Ken McAulay

Respondents

DECISION

Adjudicator: Mary Ross Hendriks

Date: September 30, 2005

Citation: 2005 HRTO 37

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

E-mail hrto.registrar@jus.gov.on.ca

Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) No Appearance

Andria Davis, Complainant ) On her own behalf

1041433 Ontario Limited, ) Barbara Humphrey, counsel

Corporate Respondent )

Ken McAulay, Personal Respondent ) No Appearance

INTRODUCTION

1Ms Andria Davis (the “Complainant”) alleges that Ken McAulay (the “Personal Respondent”) and 1041455 Ontario Limited, operating as Trust Flooring Group (the “Corporate Respondent”) violated her rights under the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). In particular, she alleges that her right to equal treatment with respect to employment without discrimination based on handicap, now disability, has been violated, contrary to sections 5(1) and 9 of the Code.

2The Complainant alleges that the violations of her rights under the Code occurred after she was struck by a car in a hit-and-run accident in north Toronto, during her lunch break on June 21, 2001. She was employed by the Corporate Respondent as a Customer Sales Representative (“CSR”), since May 7, 2001. In her Complaint, she maintains that the Respondents failed to accommodate her sudden disability caused by the motor vehicle accident, despite it being witnessed by one of her co-workers and her production of a doctor’s note. Further, she states that the Respondents terminated her employment on July 7, 2001, by sending her a letter via registered mail, which she received on July 19, 2001, when she was unable to return to work when they wanted her to do so.

3The Ontario Human Rights Commission (the “Commission”) referred her Complaint for a hearing on the merits to the Tribunal, on August 8, 2003.

4The Personal Respondent, Mr. McAulay, has failed to take part in the Tribunal’s process. As set out in the Tribunal’s Interim Decision, Davis v. 1041433 Ontario Ltd. (2005), 51 C.H.R.R. D/433, 2005 HRTO 1, at paragraph 3, he has failed to provide his pleading, make disclosure, participate in the pre-hearing conference call held on March 19, 2004, or participate in the hearing on the merits. Because he does not have a telephone, the Tribunal went to the extraordinary measure of sending its correspondence of March 19, 2004, in which it confirmed the matters determined during the pre-hearing conference call, including the scheduled hearing dates, to Mr. McAulay by Canada Post’s “track a package.” Mr. McAulay himself signed for the delivery of this correspondence, yet failed to contact the Tribunal. The Tribunal is satisfied that he is on full notice of the proceedings herein, and has chosen not to participate.

5The Corporate Respondent admits that it breached the Code when it terminated her, claiming that it made an “honest error,” when it concluded that she had unjustifiably withdrawn her services. Throughout this process, the Corporate Respondent has maintained that Ms Davis failed to discharge her obligations as an employee seeking accommodation. The Corporate Respondent submits that the only justiciable issue before the Tribunal is the quantum of damages, and argues that Ms Davis was only its employee for a short period of time.

6During the hearing, the Corporate Respondent questioned her credibility. The Corporate Respondent relies on the evidence of its witness, Mr. Turk, and submits that her evidence with respect to the extent of her injuries and the amount of accommodation required is unproven because they are not supported by sufficient medical evidence. Their counsel has noted that the Corporate Respondent is at a disadvantage because of Mr. McAulay’s non-participation.

7The hearing on the merits, including closing oral submissions, took place in Toronto on June 27, 2005. Counsel for the Corporate Respondent provided the Tribunal with a Book of Authorities.

PRELIMINARY MATTERS

8Prior to the hearing on the merits, two motions were brought and heard at the same time. The Commission’s motion to withdraw from participation on the merits was granted, and the Complainant’s motion to amend the Complaint to add a new ground was dismissed, as set out in the Interim Decision herein, supra.

ISSUES

9The Tribunal considered the following issues:

(1) Was the Complainant’s right to equal treatment with respect to employment without discrimination based on disability infringed by the Respondents, by failing to accommodate her after her injury, contrary to sections 5(1) and 9 of the Code?

(2) Did the termination of her employment flow from this alleged breach of the Code?

DECISION

10The Tribunal finds that the Respondents violated Ms Davis’ right to be free from discrimination in employment based on disability, by failing to accommodate her and by terminating her employment, contrary to sections 5(1) and 9 of the Code. The Tribunal finds the Respondents jointly and severally liable to the Complainant.

LIST OF WITNESSES

11The Tribunal heard evidence from two witnesses, being the Complainant and Mr. Stewart Turk, President, on behalf of the Corporate Respondent.

SUMMARY OF EVIDENCE

Andria Davis

12Ms Davis testified that she was walking on the sidewalk on Steeles Avenue, in north Toronto, at about 12:30 p.m., on June 21, 2001, when she was struck by a van. She said that as a result, she suffered, “neck, back, upper and lower leg injuries, and a left distal fracture.” Ms Davis stated that the driver of the van stopped briefly and then left the scene of the accident.

13She said, “in the meantime, I started to vomit, bleeding at the same time, and was ready to pass out.” She asked the driver for his licence and insurance details, and he went back to his vehicle, but all he brought back was his business card (Exhibit 2), which he threw at her. She testified that he left the scene. Ms Davis said that the driver was charged by a police constable, whose business card she also produced to the Tribunal (Exhibit 2), with “failing to remain at the scene, failing to report the accident, failing to yield and driving under suspension.” Ms Davis did not enter the police report as evidence, nor did the officer testify.

14Ms Davis testified that a co-worker was nearby, named “Laura.” Laura witnessed the accident, and called Mr. McAulay to ask him for assistance. She said that everyone wondered why the police and ambulance were taking so long to arrive, and Laura wanted Mr. McAulay to take her to the hospital. Ms Davis said that she heard Laura use a profanity and said, “never mind, I’ll go get my car and take her to the hospital.”

15She said that when Laura drove towards the hospital, there had been an accident on the 407 ETR, and traffic had ground to a “complete halt.” Laura urged her to keep talking to her, and Ms Davis asked her if she knew any clinics in the area instead. Laura took her to that clinic, where a doctor saw Ms Davis and ran tests and x-rays. She said that this doctor recommended an orthopaedic surgeon at Humber River Regional Hospital and advised her to go to her family doctor.

16Ms Davis said that she spoke to her fiancé, and that Laura drove her back to the office to wait for her fiancé to pick her up. She said that it was “appalling, disturbing and scary,” that another co-worker, named “Holly,” allowed the driver from the motor vehicle accident to enter the Corporate Respondent’s office, go past the reception area, past the Vice-President’s office, and into the production room.

17Ms Davis said that she, “feared for her life,” because she felt that the driver, “could have been a danger to me,” and added that, “I told him to leave.” She said that he did eventually leave, and that her fiancé picked her up and took her home.

18Neither Laura nor Holly testified before the Tribunal.

19Ms Davis said that she went to visit her family doctor on “Friday, the 22nd” and that she also called the office the same day. She submitted copies of two photographs that she said demonstrated that she had a “broken arm and neck” (Exhibit 1). These photographs do reflect that her left arm is in a cast, but do not demonstrate any sort of neck brace being worn by her. During her cross-examination, she maintained that she spoke to Mr. McAulay between June 22nd and June 27th, 2001, on the telephone, to keep him advised of her condition. She confirmed that she did not give him a doctor’s letter until June 27, 2001.

20Ms Davis testified that when she was hired, she said that her employment agreement stipulated that she was to work from 8 a.m. to 5 p.m., Monday to Friday, but that on a “volunteer basis,” she would go in on Saturdays and help out. She provided the Tribunal with a copy of her letter of employment (Exhibit 7), dated May 8, 2001 and signed by Conquest Carpet’s Office Manager, which stated that she had been hired by the “Trust Flooring Group Family.” This letter said that her starting salary would be $34,000.00 per year, and that at the end her three-month probationary period, her salary would be increased to $36,000.00, plus “group benefits and insurance.” The letter of employment did not stipulate her working hours nor days worked. Copies of her pay-stubs from the summer of 2001 indicate that she worked 40 hours per week (Exhibits 10 and 11). If the accident had not occurred, she said that she would have gone in on the Saturday following the accident.

21She said she called in to the office on Friday, and traded messages with Mr. McAulay. When she finally reached him by telephone, he told her he was extremely busy, and said, “we have a problem.”

22Ms Davis asked what the problem was, and he allegedly told her that “Angie had to go on holidays,” and that “Sarah” and “Clayton” had both resigned. (As described in the evidence of Mr. Turk set out in paragraph 45 herein, Angie was another one of Ms Davis’ supervisors.) She said that Mr. McAulay told her that he “didn’t know what to do.” She testified that he put his hand over the phone, and then he asked her to come into the office to talk to him, and she said she could not, because she had an appointment with the orthopaedic surgeon at Humber River Regional Hospital. She heard him say, “a brief talk” and then said that she could hear Angie saying, “I don’t give a fuck if she’s dead or not, just get her in here.”

23When she went to her appointment with her family doctor on the 26th or 27th, she said that she “dropped by” when her fiancé took her to the office. During cross-examination, she said that she went for ultrasounds on June 26th, which took half a day, because they included an abdominal ultrasound. She said that she went for x-rays on the 27th, and that they took half a day as well. She said that she waited in the reception area for a long time, and that “Chris told Ken I was over there waiting.”

24She said that when Mr. McAulay finally came out, he took her into his office, asked Angie to get her files, and pulled up some information on the computer. She said that he paused for a long time and then began talking about reports and accounts “not being done.” Nevertheless, he asked her if she had anything, and she said she pulled out the letter from the orthopaedic surgeon that said she could not return to work until further notice. During cross-examination, she said that this letter was the only document provided to the Respondents in connection with her accident, and that this letter did not indicate whether her disability was total or partial and whether there were any restrictions placed on her.

25The completed form letter dated June 27, 2001, from Dr. Joseph Kwok, on letterhead from Humber River Regional Hospital (Exhibit 3), stated as follows:

To Whom It May Concern:

DAVIS, ANDRIA MAXINE was seen in the Fracture Clinic today and will be /unable to return to work /until FURTHER NOTICE.

Signed:

Dr. J. Kwok

[business address]

26Ms Davis testified that Dr. Kwok is an orthopaedic surgeon, a point contested by counsel for the Respondents during cross-examination, who insisted that his letterhead should reflect this designation.

27Ms Davis also produced a copy of the requisitions for x-rays (chest, spine and pelvis, elbow, forearm, wrist, scaphoid, hand and digits) and ultra-sounds (abdomen and pelvis) that she received from Dr. John Oryema (Exhibit 4). Dr. Oryema did not testify. Ms Davis testified that she described over the telephone and also produced these requisitions to Mr. McAulay on June 27, 2001 when they met, but the Respondents deny receiving them. Under the sub-heading, “clinical information,” the x-ray requisition stated in the doctor’s handwriting:

Injury neck, back, at ribcage, abd, (blunt injury) at forearm, elbow, wrist, MVA.

28In addition to Dr. Oryema’s handwritten note under “clinical information,” someone has written at the bottom of these requisitions, “June 22nd x-ray [and] June 26th ultra sound.” The handwriting on this notation does not appear to match that of Dr. Oryema, but there was no evidence before the Tribunal on this point.

29Ms Davis said that she gave Dr. Kwok’s letter to Mr. McAulay when they met at his insistence on June 27, 2001. She said that when he saw it, he became very distraught, and said, “forget about it then,” and began discussing her medical condition in front of another co-worker. She said she felt “disrespected and humiliated.” She told him that she was in “a lot of pain” and added, “I’m not even feeling well enough to be here.” Ms Davis testified that he replied, “alright, fine.” After this humiliation, she said she went to the back of the office and cried. She said that when she came out of the bathroom, someone asked her if she was okay, and she left the office in terrible pain.

30She said that she “caught the bus at Weston Road,” and her head and heart started palpitating. She suffered “massive chest pain” on the bus and “passed out.” She said that she was assisted by paramedics and by the TTC, and taken by ambulance back to Humber River Regional Hospital. She produced copies of two different receipts, dated August 22, 2001, for an ambulance taken on June 27, 2001, from Humber River Regional Hospital (Exhibits 5 and 6), that indicate the ambulance cost her $45.00. She said that the Emergency Room doctor told her that she was supposed to stay off her feet and be on bed rest, telling her that she would end up ruining herself.

31She testified that prior to this accident, “Raj” in accounting, and “Stewart,” the President, (the latter being a witness at this hearing), had each told her how much “good news” they had heard about her and recognized the long hours she put into the company. She said she never took a day off, and never missed anytime from work.

32Ms Davis said, “since then, till now, I’ve been emotionally, physically and spiritually traumatized to this day.” She feels hurt that Mr. McAulay never even sent her a get-well card. She said, “to this day, the feelings are very painful...”

33She said that neither the Corporate Respondent nor the Personal Respondent ever asked her for further medical reports before they sent her a letter (the “termination letter”) by registered mail (Exhibit 9) that she picked up from the post office. During cross-examination, she insisted that she had advised the Respondents verbally of her medical situation, despite the suggestion that she had not given her employer sufficient reasons to support her absence. During her evidence given in Reply, she maintained that Mr. McAulay had never asked her any questions about the accident, or her needs, that he had “no concerns” about her “medical conditions” and that he put “no stipulations” on when she should return, but that his attitude changed when other co-workers went on holiday or left the company and he was short-staffed.

34In the termination letter, they advised her that she had been terminated and included her Record of Employment (“ROE”), dated July 6, 2001 (Exhibit 8). In her testimony, she denied ever having a conversation with the Director of Employment prior to receiving the termination letter.

35The ROE indicated that her first day worked was May 8, 2001, that her last day worked was June 21, 2001, and that her final pay period ended on June 22, 2001. It further showed her “expected date of recall” as “not returning.” The reason for issuing the ROE was marked code “D.” Ms Davis testified that code “D stands for illness or injury,” and Ms Humphrey advised the Tribunal that she did not dispute that fact.

36The termination letter signed by Mr. McAulay, dated July 7, 2001, stated that she was involved in “a minor motor vehicle accident which after receiving treatment it was revealed you had broken your arm.” It claimed that she had phoned into the office a number of times, to leave messages for Mr. McAulay in which she delayed her return to work, due to doctors’ appointments. It stated that during her absence, someone else had performed her duties, and the Respondents “discovered duties being neglected,” including “200 messages on your voicemail, service requests not entered…” The termination letter confirmed that Mr. McAulay had received her doctor’s certificate that said she would be off work until further notice when they met with Angie on Wednesday, June 27, 2001. It went on to state that Ms Davis, “flatly denied any difficulties and insinuated that we were fabricating the entire story…” and concluded by stating:

Andria in light of the fact we believe these to be serious derelictions of your duties and your unwillingness to honestly discuss them and take some responsibility we have no alternative but to terminate your employment effective immediately.

37Ms Davis referred to her gross pay (Exhibit 10) and testified that she was never paid for her vacation pay.

38Ms Davis testified that she has a tape that somehow implicated the Commission, and asked the Tribunal to hear it. The Tribunal declined to do so, because it was satisfied that the Commission had taken all the procedural steps it was required to take before withdrawing from active participation in the hearing, for the reasons given in its Interim Decision, supra.

39Ms Davis testified as to her “Desired Remedy,” which she provided to the Tribunal (Exhibit 12). In it, she attempted to pursue a new claim for “short-term and long-term disability benefits.” The Tribunal advised her at the time that this was a new legal issue, never contained in any of the prior pleadings or the Complaint. During cross-examination, she admitted that the deduction of $65.39 from her pay (Exhibit 10) was for “group benefits.” The Tribunal ruled that it would not entertain the issue of disability benefits at this juncture in the hearing in any event.

40In her Desired Remedy, to which she testified, Ms Davis’ indicated that she seeks general damages of $15,000.00 for her inherent right to be free from discrimination, $10,000.00 for her mental anguish, special damages equivalent to “three days of salary in lieu of payment for sick days not received,” and pre and post-judgment interest.

Stewart Turk

41Mr. Turk is the President and owner of Conquest Carpet and Trust Flooring, which is 1041433 Ontario Ltd., and he testified on behalf of the Corporate Respondent.

42Prior to her accident, he had had some brief communication with Ms Davis.

43Mr. Turk testified that he was at work the day of her accident, but did not see her himself. It was his understanding that she had been in an accident and that Laura had taken her to the doctor to “make sure everything was okay.” When Andria returned to the office with her arm in a sling, “we had some dialogue.” He recalled saying to her, “Thank God it is nothing serious and you are fine.” He said her demeanour was “fairly upbeat.” He had no sense of Ms Davis having mobility issues, and thought that the discussion was “very casual.” He did not view her as being in any state of trauma or distress. He added, “It didn’t seem [she was] in any distress when we spoke. I didn’t walk away from our conversation thinking it was anything more than a close call.” During his cross-examination, he said that this conversation lasted, “a brief moment…one to two minutes.” He also said that if he felt that she had been seriously hurt, he would have driven her home himself.

44Mr. Turk testified that he is involved in martial arts, and is quite familiar with “having broken bones.” He said that he did not think she had any broken bones, because her arm was “immobilized by a soft sling.” During his cross-examination, he admitted that he could not recall if he had asked her if she had suffered any other physical damage, and that he is not a doctor.

45Mr. Turk said that he had been directly involved in the issue of Ms Davis’ return to work. He said that he had been speaking with Ms Davis’ supervisors, Angie, Mark and the Personal Respondent. None of these people work for the Corporate Respondent now, due to the outcome of a consolidation. He added that Mr. McAulay was dismissed, and that the others both resigned. None of them testified.

46He said that he learned she had not returned to work on either the “Saturday or Monday.” Mr. Turk had discussions with all three of them, because they could not contact her for the “first couple of days.”

47Mr. Turk said that his software business was in a “state of transition,” going through “a lot of consolidations,” and that “not knowing who was on the team was an issue.” He stressed that the “main thrust was the lack of communication.” Then he added that they “didn’t know or understand what the plan was, and the frustration was building.”

48Mr. Turk testified that based on the information they had, he had an honest belief that she should have returned to work one week following the accident. However, he did stress that he is “not trying to protect” Mr. McAulay, stating, “quite blatantly, quite a bit of what he did is not right…”

49Mr. Turk also testified that since this experience, he has received advice from Ms Humphrey and “grown and learned from this situation.” He said that he has held a full company meeting to educate all of the staff about the “rules and expectations” surrounding human rights issues, and that they have put in place new accommodation policies, which were attached to their pleading (Exhibits 13-15). These three new policies have been provided to all employees.

FINAL ORAL SUBMISSIONS

Ms Davis’ Final Submissions

50Ms Davis spoke on her own behalf, stating that the Respondents did not fulfill their duty to accommodate her, and in fact, did not ask her any questions or even try to identify her essential versus her non-essential tasks. She said that the Respondents never suggested any alternative work to her.

51She said it was “traumatizing” when she realized that they did not care if she was “dead,” and ordered her to the office “to talk.” She said that having to go to this meeting and being subjected to the treatment she received had “damaged” her. She said she ended up “back in the hospital” suffering “emotional damage,” as well as “physical damage.”

The Corporate Respondent’s Final Submissions

52Ms Humphrey advised the Tribunal that her client admits that it infringed Ms Davis’ right to be free from discrimination by failing to accommodate her disability, in accordance with section 5(1) of the Code. She said that the issue left for the Tribunal to decide is remediation.

53Ms Humphrey stated that there is no dispute with respect to special damages, and agreed to pay Ms Davis, “three days salary in lieu,” stating that they acknowledge this is owed to her. She added that since her gross pay is $653.85, and her net pay is $502.81, her daily net pay is about $100.50. Ms Davis agreed that her special damages should be three days pay.

54Ms Humphrey submitted that since they have proactively identified their human rights obligations by providing education to their staff and established several policies on accommodation issues, which have been provided to all employees, she stated that there is no need for any further public interest remedies to be ordered.

55Although in the Complainant’s “Desired Remedy” she has asked that the “Health and Safety Committee” assume a further role, Ms Humphrey disagrees that this ought to be their function, since that Committee is composed of employees, and the responsibility for overseeing accommodation belongs to management.

56Ms Humphrey submitted that the Tribunal ought to review certain aspects of the evidence in conjunction with assessing general damages. In particular, she argued that there is still no objective evidence to assess the nature of Ms Davis’ condition, whether she should have had any limitations placed on her or precautions taken, and the impact on her ability to provide services.

57Ms Humphrey argued that there was no evidence of total disability to support her continuing absence from the workplace.

58While Ms Davis said that she kept them informed by telephoning them, she did not provide any evidence of detailed discussions. Mr. Turk’s evidence was that he saw her with her arm in a sling and she did not appear in any distress, shortly after the accident. If she did provide them with Exhibits 3 and 4, she submitted that this was not useful information. She did not give them a report from her family doctor, for example. Thus, there was nothing before the Respondents to suggest that she would not attend at the workplace for the entire next week. She submits that they made a reasonable assumption based on a lack of information.

59Thus, Ms Humphrey suggested that Ms Davis did not fully discharge her obligations to the Respondents, either, and her failure to communicate impaired the Respondents’ ability to manage the situation appropriately. She cited the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate as setting out the appropriate standard for the accommodation dialogue.

60Ms Humphrey submitted that general damages are not awarded as a matter of course for infringing the Code, and that where the Tribunal has ordered higher awards for general damages, they were in cases of aggravated and repeated instances of sexual harassment. In contrast, she submitted that in terms of discrimination based on disability, there are only a few relevant cases rendered by the (then) Board of Inquiry (Human Rights) to consider, which she provided in her Brief of Authorities.

61Ms Humphrey urged the Tribunal to consider the standard factors in assessing general damages, being: seriousness; frequency; duration; humiliation; hurt feelings; and vulnerability of the Complainant.

62She asked the Tribunal to consider using its discretion not to award any general damages, because this was an isolated occurrence, with no frequency, no repetition, and no prior history. She added that the infringement was unintentional and that this employer has been candid about its mistake and has already taken steps to remedy it. She believes that this shows the Tribunal that the employer has acted in good faith. She noted that while intent is not required under the Code, she referred to Wight v. Ontario (No.2) (1998), 1998 CanLII 29885 (ON HRT), 33 C.H.R.R. D/191 (Ont. Bd. Inq.), as an authority for finding that it is unfair to find the employer liable for significant damages, where the Complainant’s lack of participation was conduct on her part that contributed to the situation. She also referred to the other cases in her Book of Authorities, in detail.

63Ms Humphrey argued that, in the alternative, should the Tribunal determine that it exercises its discretion to award general damages, considering the factual circumstances before it, in light of the factors such as seriousness, frequency, et al., she submitted that general damages should be no higher than $3,500.00, and recommended an amount in the $1,500.00 to $2,000.00 range, particularly since this employee had only been with the company a few weeks.

64Ms Humphrey also submitted that the Complainant has failed to meet the test required for an award for mental anguish, under the “wilfully” branch of the test, as per the Divisional Court’s ruling in York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360 at 376, because she submits that the conduct on the part of the Corporate Respondent was an honest error and not intentional, and that the infringement of her right was not the purpose of the conduct. See: Ketola v. Value Propane Inc. (No.2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd. Inq.), at paragraph 8.

65Ms Humphrey also highlighted the manner in which the (then) Board of Inquiry interpreted “recklessly” in Ketola, supra, at paragraph 9, which cited Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2198. She summarized those two cases as setting the standard for recklessness by showing, “disregard and indifference to the consequences.” In any event, she relied on the definition of “mental anguish” provided in Ketola, supra, at paragraph 10, which relied on the definition of it set out in Fuller v. Daoud (2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd. Inq.) at paragraph 66, to demonstrate that there must be a high degree of distress, more than simply embarrassment, in order to meet the test. Ms Humphrey maintains that Ms Davis does not have any medical evidence to support her claim of psychological distress, and the quality of her own evidence is too weak to support it on its own.

FINDINGS OF FACT AND LAW

66The Tribunal has given serious consideration to the viva voce evidence of Ms Davis and Mr. Turk, and the documentary evidence that has been submitted. The Tribunal appreciated the candour of the Corporate Respondent in admitting that the Code had been breached. The Tribunal finds that the Complainant has established a prima facie case of discrimination with respect to employment based on disability.

67In particular, her right to equal treatment with respect to employment without discrimination based on disability was infringed by Mr. McAulay, contrary to sections 5(1) and 9 of the Code, when he demanded over the telephone that she attend the office after she told him she had to go to more medical appointments. As set out in paragraph 36 herein, the termination letter of July 7, 2001 confirmed that Ms Davis had advised Mr. McAulay of her doctors’ appointments and her purported need to delay her return to work. During this telephone conversation, she heard another employee in the background yelling, “I don’t give a fuck if she’s dead or not, just get her in here,” because they were short-staffed.

68Her right to accommodation up to the point of undue hardship was also infringed by the Corporate Respondent contrary to sections 5(1) and 9, when it terminated her employment, without seeking further medical information from her prior to making the unilateral determination that she had abandoned her employment.

69The Tribunal finds that an award for general damages for the breach of her right to be free from discrimination is appropriate based on these findings of fact.

70The Tribunal finds that an award for mental anguish is appropriate, because the demand that she attend at the office and the later decision to terminate her employment were made “recklessly” and they caused her a relatively high degree of mental pain and distress. The Tribunal has held in Di Marco v. Fabcic, 2003 HRTO 4, at paragraph 54, “‘Recklessness’ is conduct which demonstrates a wanton disregard or indifference to the consequences of one’s actions.” Also see: Fuller, supra, at paragraph 66.

71The Tribunal finds that, as submitted by the Complainant and the Corporate Respondent, her special damages are for three days pay, since she would have been unable to return to work, even if the Corporate Respondent had not terminated her employment.

72The Tribunal sets out the reasons for these findings of fact and law.

The Credibility of the Parties

73The Tribunal has carefully considered the credibility of the parties, including the non-participation of the Personal Respondent.

74The Tribunal adopts the frequently applied test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (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...

75The Tribunal has reviewed the oral evidence provided by Ms Davis, and accepts that she was struck as a pedestrian on June 21, 2001, saw her family doctor on June 22, 2001, underwent a number of x-rays and ultrasounds shortly thereafter, and gave Mr. McAulay a note from Dr. Kwok on June 27, 2001, that indicated she would be unable to return to work “until further notice.”

76However, it troubles the Tribunal that Ms Davis has not provided any comprehensive medical reports. A photocopy of a photograph of her arm in a sling is not an adequate evidentiary substitute for a report from her family doctor, for example. The Tribunal finds that throughout her evidence, while the genesis of it is consistently truthful, she has a tendency to exaggerate. Nevertheless, she has a receipt for the ambulance ride that she took on June 27, 2001, and the Tribunal accepts her evidence that she collapsed after her meeting with Mr. McAulay and had to return to the hospital.

77The Tribunal also considered the credibility of Mr. Turk, and is satisfied that he is a straightforward witness. However, the Tribunal is also cognizant of the fact that he was and remains President of the organization and that he was busy with other issues while his business was in a “state of transition.” It appears from his own testimony that he relied on others to manage her, none of whom testified, since they have since left his organization. His evidence is that his staff had an expectation that Ms Davis would have returned to the workplace sooner, and the Tribunal accepts that he had an honest belief that she should have returned to work one week following the accident.

78While the Tribunal accepts that this is Mr. Turk’s honest belief, the staff person to whom he delegated responsibility for managing this situation with Ms Davis, Mr. McAulay, took out his frustration on being short-staffed on her. In particular, Mr. McAulay demanded that she attend a meeting only six days after her motor vehicle accident when he knew that she did not feel well enough to do so. During this meeting, he diminished her work, and became irritable when he read Dr. Kwok’s letter. Rather than requesting follow-up medical information from her family doctor in order to determine either what accommodation would have been appropriate, the Corporate Respondent simply terminated her. From Mr. Turk’s testimony, the Tribunal finds that his staff had advised him of her purported “lack of communication” with respect to her absence from work following the accident, although this issue is contradicted by the Corporate Respondent’s own termination letter. The Tribunal finds on the facts that Mr. Turk was tangentially involved in the decision to terminate her.

The Duty to Accommodate

79An employer’s general duty to accommodate to the point of undue hardship has been firmly established by the Supreme Court of Canada in a number of leading cases, inter alia, Ontario (Human Rights Comm.) and O’Malley v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; British Columbia (Public Service Employee Relations Comm.) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”); Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489; Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; and Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525.

80While the employer has a clear duty to accommodate and must take reasonable measures, the Supreme Court of Canada has also articulated the notion that a complainant has a duty to the process as well, calling it a “multi-party inquiry,” in Renaud, supra, at paragraphs 43-44, where it held that:

The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation…

81The Corporate Respondent has admitted that it fell short of fulfilling its duty to accommodate her disability, and submits that with the issue of liability resolved, the only issue remaining is the quantum of damages. However, it maintains that Ms Davis did not fully discharge her obligations either, by failing to communicate her medical condition and her needs.

82The Tribunal agrees that Ms Davis would have been obligated to cooperate with her employer if it had advised her that it required clear information to determine her medical condition. Since the Corporate Respondent did not do so, it lacked an objective basis for concluding that she had abandoned her employment. See: Metsala v. Falconbridge Ltd. [2001] O.H.R.B.I.D. No.3, at paragraph 42.

83Nevertheless, the Tribunal is cognizant of the weaknesses in Ms Davis’ evidence regarding her medical condition. She has not established from her testimony if or when she could have returned to work, or what accommodation would have been appropriate if she had been more of an active participant in the accommodation process.

LIABILITY

84Since counsel for the Corporate Respondent has admitted liability, and the Personal Respondent has failed to participate, the Tribunal finds that Ms Davis’ right to be free from discrimination has been violated pursuant to sections 5 and 9 of the Code. There is no need for the Tribunal to examine section 45(1) of the Code to determine liability.

REMEDY

85The Tribunal hereby sets out its remedial order in accordance with section 41 of the Code.

86To compensate Ms Davis for her losses arising out of the infringement of her right to be free from discrimination, the Tribunal makes the following order for general damages including mental anguish, and for special damages.

General Damages

87Ms Davis has had her right to equal treatment with respect to employment based on disability violated, contrary to sections 5(1) and 9 of the Code. The law is clear that persons with disabilities must be provided with accommodation up to the point of undue hardship, and cannot simply be terminated.

88Mr. McAulay’s demand that she attend a meeting at the office only six days after her motor vehicle accident when she maintained that she was still recovering from her injuries was unfair and a violation of her right to be free from discrimination under sections 5(1) and 9 of the Code, as well. If he had doubts about her sincerity and willingness to return to the office, he ought to have requested that her family doctor forward a medical report to him confirming her inability to attend work. Instead, during their meeting, he diminished her work and appeared hostile toward her letter from Dr. Kwok, which was on hospital letterhead. She became so distressed over this incident that she cried in the Corporate Respondent’s washroom and later collapsed on the public transit system and had to return to the hospital in an ambulance.

89The Tribunal has reviewed these two separate infringements, her loss of dignity, and weighed them against the relatively short frequency and duration of these incidents. It is difficult to appreciate fully what the overall impact to her psyche has been, because she failed to provide the Tribunal with any meaningful medical evidence on point. However, it is clear that she has suffered palpable mental anguish within the meaning of the Code.

90The Tribunal finds that Ms Davis’ general damages, including mental anguish, that flow from the infringements of the Code with respect to employment based on disability are $10,000.00 against the Respondents.

Special Damages

91The Tribunal notes that both the Complainant and the Corporate Respondent submitted that three days pay fairly represented her loss for special damages.

92The Tribunal finds that Ms Davis’ special damages are $301.50.

Public Interest

93The Tribunal is satisfied that the Corporate Respondent has been proactive and has taken the time and effort to rectify its human rights practices going forward. No public interest remedy is necessary under these circumstances.

Pre-Judgment and Post-Judgment Interest

94The Statement of Facts and Issues contained a request for pre-judgment and post-judgment interest on any awards made, in accordance with the Courts of Justice Act, R.S.O. 1990, c.C. 43.

95The Tribunal grants pre-judgment interest on all the awards, commencing from the date of the filing of the Complaint. The Tribunal also orders post-judgment interest on all damages, commencing within thirty days of this Decision.

ORDER

96The Respondents, 1041433 Ontario Limited, operating as Trust Flooring Group, and Ken McAulay, are jointly and severally liable to pay Andria Davis the following amounts within thirty days of this Order:

(1) $10,000.00 as compensation for her humiliation and loss of dignity resulting from the infringements of her right to be free from discrimination in employment based on her disability, and as compensation for her mental anguish, caused by these infringements of her rights under the Code;

(2) $301.50 as compensation for her special damages; and

(3) pre-judgment interest on the awards, commencing from the date of the filing of the Complaint, and post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act, supra, commencing thirty days from the date of this Order.

97The Tribunal shall remain seized of this matter for a period of twelve months from the date of this Order, in order to deal with any implementation issues that may arise.