ADGA Group Consultants Inc. v. Lane
HR-0854-04
2007-10-16
2007 HRTO 34
CHRR Doc. 07-586
Paul Lane Complainant
and
Ontario Human Rights Commission Commission
v.
ADGA Group Consultants Inc. Respondent
Date of Decision: October 16, 2007
Before: Human Rights Tribunal of Ontario, David J. Mullan
File No.: HR-0854-04
Appealed by: (2008), CHRR Doc. 08-524 (Ont. Div.Ct.)
Appearances by:
Raj Dhir, Counsel for the Commission
Paul Lane, on his own behalf
Stephen Bird, Counsel for the Respondent
DISABILITY — employment terminated on the basis of bipolar depression — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — individual assessment — Meiorin/Grismer test for reasonable accommodation — DISCRIMINATION — definition of discrimination — bona fide justification, dishonesty and health concerns as reasons for discrimination — comparator group — Meiorin/Grismer test
EVIDENCE — expert evidence — hearsay evidence — PRODUCTION OF DOCUMENTS — medical file — PROCEDURE — motion for non-suit — BURDEN OF PROOF — elements of a prima facie case — DAMAGES — damages assessed for wilful or reckless discrimination — compensation for wages and injury to dignity and self-respect — REMEDIES — education program with respect to requirements of human rights legislation — human rights training — anti-discrimination policy
Summary: The Human Rights Tribunal of Ontario ruled that Paul Lane was discriminated against because of a disability when he was fired shortly after he disclosed to his employer that he has bipolar disorder.
Paul Lane is 50 years old. He is a quality assurance analyst with a diploma in Electronic Engineering Technology and work experience in both public and private sector organizations.
In 1998, he was diagnosed with bipolar disorder, and since then he has had some manic episodes that required hospitalization and recovery time. He is aware of the symptoms, such as fast-talking or being overly familiar with others, which appear if he is moving towards a manic or depressive phase of the disease. If these symptoms are monitored, and he is treated early, it is possible to prevent Mr. Lane from experiencing a full-blown episode.
He was hired by ADGA Group Consultants Inc. ("ADGA") on October 22, 2001, to work as a senior test analyst leading a team that develops testing procedures for software for artillery used by the Canadian Armed Forces in training and in the field. He had probationary status for the first six months of his employment.
When he was hired by ADGA, Mr. Lane did not disclose his bipolar disorder because he was afraid he would not be hired. However, without being specific about his condition, two days after he began work he informed his immediate superior, Ms. Corbett, that if she observed any inappropriate speech or behaviour on his part, she should not hesitate to intervene. Two days later, he had another meeting with Ms. Corbett, in which he told her everything, explained bipolar disorder, and offered to provide her with further information. Four days later, on October 30, 2001, Mr. Corbett was fired on the grounds that he could not perform the responsibilities of his job. There was no discussion with Mr. Lane about the nature of his condition and his specific needs, nor any suggestion that the question of his continued employment be put on hold, while his employers gathered further information.
After his termination, Mr. Lane experienced a severe depression, requiring hospitalization. He was unable to find work; his family's financial position deteriorated and they were eventually forced to sell their house. Subsequently, his marriage broke up, although he and his wife remained on good terms.
The employer claimed that there was no discrimination. Mr. Lane's medical condition was immaterial. He was not terminated from his employment because he had bipolar disorder but because his superiors determined that Mr. Lane would not be able to handle the stresses of the position and might be absent from work during critical periods. The employer also claimed that Mr. Lane should be compared to other probationary employees, who could be fired if the company had any doubts about their reliability or regular presence at work.
The Tribunal, however, rejected these claims. It found that determining whether discrimination occurred requires determining whether reasonable accommodation of Mr. Lane's disability was provided, or could have been provided. The fact that Mr. Lane was a probationary employee was not relevant. If the neutral rule in operation was that employees be able to work without unexpected absences, that rule would have a negative impact on persons with bipolar disorder. Mr. Lane would not have been able to comply with this rule, unless ADGA accommodated his special needs.
In this case, the Tribunal found that there was a "rush to judgment". There was no investigation of Mr. Lane's condition or what he might need. ADGA failed to fulfill the procedural dimensions of the obligation to accommodate because they did not conduct an appropriate assessment of Mr. Lane's condition or of ADGA's ability to accommodate him. The Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation.
The Tribunal found, however, that an employer is not precluded from adducing ex post facto justifications for a failure to accommodate based on what a proper assessment at the time would have revealed. Nonetheless, when the failure to conduct an appropriate assessment has its own adverse consequences, there exists discrimination for which the complainant has an independent right to a remedy.
In this case, Mr. Lane very rapidly went into a state of full-blown mania. According to the doctors and experts who testified, this was a predictable consequence of his losing his job. Not only did Mr. Lane lose his job, but he did so after identifying his condition and asking for accommodation should it prove necessary. ADGA dismissed him without any proper form of evaluation, and it did not provide any satisfactory ex post facto evidence to show that it could not have accommodated Mr. Lane. The Tribunal found that Mr. Lane's termination was discriminatory, and it had serious consequences for his health.
The Tribunal ordered ADGA to pay Mr. Lane $35,000 for violation of his right to be free from discrimination; $10,000 for reckless infliction of mental anguish; and $34,278.75 for the loss of salary that resulted from the violation of his rights.
CASES CITED
Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd.Inq.): 149
Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 115
British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257: 119, 127, 150
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129: 120, 150
Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 149
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28: 122
Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65: 122
Lévis (City) v. Tétrault, [2006] 1 S.C.R. 420, 2006 SCC 12: 141
Marzano v. Nathar Ltd. (1992), 1992 CanLII 14229 (ON HRT), 18 C.H.R.R. D/248 (Ont. Bd.Inq.): 149
Modi v. Paradise Fine Foods Ltd. (No. 2) (2005), CHRR Doc. 05-390, 2005 HRTO 24: 23
Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, 2004 SCC 83: 122
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 114
Ottawa (City) v. C.U.P.E., Local 503, 2007 CanLII 5524 (ON SCDC), [2007] O.J. No. 735 (QL) (Div.Ct.): 128
Ottawa (City) v. Canada (Human Rights Comm.) (2004), 52 C.H.R.R. D/348, 2004 FC 1778: 122
Ottawa (City) v. Canada (Human Rights Comm.) (No. 2) (2005), 54 C.H.R.R. D/462, 2005 FCA 311: 122, 130
Québec (Comm. des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal (Ville), 2000 SCC 27, [2000] 1 S.C.R. 665, 37 C.H.R.R. D/271, 2000 SCC 27: 116, 118
R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24: 14
R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55: 141
R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9: 13
Smith v. Mardana (No. 1) (2005), 2005 CanLII 2811 (ON SCDC), 195 O.A.C. 323, 52 C.H.R.R. D/89 (Div.Ct.): 159
LEGISLATION CITED
Canada
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5: 7, 123, 134, 148, 165
s. 5(1): 1, 111
s. 11: 113, 124, 126
s. 11(2): 119, 134
s. 17: 112, 124, 126, 139
s. 17(2): 1, 3. 7, 119, 125, 134
s. 41: 154
s. 41(1)(b): 156, 159
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15(1): 31
AUTHORITIES CITED
Lepofsky, M. David, "The Duty to Accommodate: A Purposive Approach" (1992) 1 Can. Lab. L.J. 1: 149
INTRODUCTION
1Paul Lane, a quality assurance analyst, complained that ADGA Group Consultants Inc. ("ADGA"), a company involved in various aspects of information technology design and engineering, primarily under contract with the Government of Canada, discriminated against him on the ground of disability (namely, bipolar disorder) and thereby violated ss. 5(1) and 17(2) of the Human Rights Code, R.S.O. 1990, c. H.19 ("Code").
2The complaint arose out of Mr. Lane's dismissal by ADGA on October 30, 2001, eight days after he had commenced work with the company. This occurred in the wake of Mr. Lane informing his supervisor that he suffered from bipolar disorder and warning her that his behaviour in the workplace should be monitored.
3Mr. Lane alleged that the company dismissed him because of his bipolar disorder and would be unable to establish that it could not accommodate his condition without undue hardship. Indeed, Mr. Lane contended that those at ADGA responsible for his dismissal did not even consider whether it would have been possible for the company to accommodate him "without undue hardship": s. 17(2) of the Code.
4For its part, ADGA maintained that it did not discriminate against Mr. Lane on the basis of his disability. Rather, it dismissed him because Mr. Lane was not capable of performing the essential functions of the job for which he had been hired, a proposition that it claimed Mr. Lane had agreed with at the time of his dismissal. ADGA also relied upon Mr. Lane's false responses to questions that would have alerted the company to his condition prior to the decision to hire him.
5The Ontario Human Rights Commission ("Commission") in its initial pleadings sought reinstatement (with an appropriate adjustment to Mr. Lane's responsibilities to accommodate his disability), damages for loss of pay and benefits (including interest) from the date of his dismissal, damages for mental distress as well as punitive and aggravated damages, and such other remedies as the Tribunal deemed appropriate. At the hearing, the Commission did not pursue the claim for reinstatement. Also, during the course of the proceedings, the Commission dropped any claim for loss of pay and benefits beyond August 2002. However, it particularized its claim for general damages initially at $35,000, and then, over the objections of counsel for the respondent, moved to increase that claim to $60,000 on the eve of closing submissions in January 2006. It also particularized the additional relief in the form of public interest remedies.
6Initially, Mr. Lane parted company with the Commission in limiting the claim for loss of pay and benefits to the period up to the end of August 2002. However, subsequently, he acquiesced in this position, as he did when the Commission readjusted that aspect of its claim to the beginning of August 2002.
DECISION
7ADGA violated Mr. Lane's right under s. 5 of the Code to equal treatment and freedom from discrimination on the basis of disability. The primary violation involved ADGA's summary dismissal of Mr. Lane on the basis of his disability. ADGA dismissed Mr. Lane without meeting the procedural obligations of assessment to which it was bound under s. 17(2) of the Code and without meeting the specific obligation not to dismiss someone without establishing that it could not accommodate the disability of that person without undue hardship. The consequence of this violation is that the respondent shall pay the complainant damages (general, mental anguish and special) totalling $79,278.75, plus pre- and post-judgment interest as detailed in the order below. The respondent is also responsible for adhering to the terms of a range of public interest remedies that are also a component of that order.
PROCEEDINGS
8The hearing took place in Ottawa over fourteen days: June 20, 21, 27, 28, and 29, July 12, 13 and 14, August 18 (by teleconference), October 5, and December 12 and 13, 2005, and January 5 and 6, 2006.
9The following witnesses testified for the Commission:
Paul Lane, the complainant
Diana Lane, his spouse
Philip Upshall, as an expert
Dr. Julio Arboleda-Florez, as an expert
Dr. Ronald Hall, Mr. Lane's physician.
10The following witnesses testified for the respondent:
André Sincennes, Executive Vice-President, ADGA
Miranda Corbett, formerly software test manager, ADGA
Marcel Germain, program manager, ADGA.
INTERLOCUTORY MATTERS
11During the course of the hearing, I made a number of oral rulings on various evidential and procedural matters. The most important of these involved:
- The respondent's challenge to the qualifications and relevance of the testimony of the two expert witnesses tendered by the Commission
- A dispute among the parties on the admissibility and relevance of medical evidence on Mr. Lane's health after the end of August 2002
- The respondent's motion to strike out the complaint following the conclusion of the case for the Commission and Mr. Lane and the related issue whether the respondent should be put to the election between making this submission and calling any evidence
- The Commission's challenge to the Commission's proposal to call as a witness, André Sincennes, Executive Vice-President, ADGA.
My rulings on each of those matters follow.
Expert Testimony of Phillip Upshall
12The Commission indicated that it would be calling as an expert witness, Philip Upshall, himself a victim of bipolar disorder, a registered lobbyist for various organizations promoting the interests of those with mental illness, a member of various task forces dealing with mental illness issues, and the president of the Mood Disorders Society of Canada, an advocacy group for those suffering from depression, bipolar disorder and associated illnesses. Mr. Upshall was a lawyer by training but had no qualifications as a medical practitioner. The Commission proposed to qualify him as an expert in providing vital background and contextual information about bipolar disorder. This included not just the impact that the disorder can have on its victims but forms of treatment and management, and the extent to which accommodation is possible, as well as information as to the results of research on attitudes to mental disorder in the workplace, including the incidence of stigmatization and stereotyping.
13Mr. Upshall gave evidence of his background and experience and Mr. Bird cross-examined him and then formally opposed Mr. Upshall testifying as an expert. For these purposes, it was common ground between Mr. Bird and Mr. Dhir that the appropriate test for the admissibility of expert testimony was that set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at § 17 ("Mohan"). There, Sopinka J., delivering the judgment of the Court, stated:
Admission of expert evidence depends on the application of the following criteria:
(a) relevance;
(b) necessity in assisting the trier of fact;
(c) the absence of any exclusionary rule; and
(d) a properly qualified expert.
14In terms of the various elaborations of those components, I accepted the following in ruling that Mr. Upshall could testify on the matters for which the Commission sought to qualify him:
- The evidence was not only relevant in the usual sense of being related to matters that would be in issue at the hearing but also in the sense that its probative value would outweigh any prejudicial tendency to have excessive influence on the trier of fact.
- It was being used to provide information that "was likely to be outside the experience and knowledge" (R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24 at 42) of this Tribunal, particularly given the novelty of a complaint like this in Ontario and rarity across the country.
- While not a physician, Mr. Upshall was someone who was "shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify" (Mohan, supra, at § 27).
Expert Testimony of Julio Arboleda-Florez
15The Commission also proposed to call Dr. Julio Arboleda-Florez as an expert witness. Dr. Arboleda-Florez was an emeritus professor and the head of the Department of Psychiatry at Queen's University. He presented a massive curriculum vitae of an outstanding career in the field of psychiatry as a teacher, researcher, practitioner and consultant. The Commission proposed calling him primarily for his expertise on the diagnosis, treatment and management of bipolar disorder and issues of stigmatization of those with the disorder.
16The same process was followed in the case of Dr. Arboleda-Florez as for Mr. Upshall with Mr. Bird formally arguing that the Commission had not qualified Dr. Arboleda-Florez as an expert. For much the same reasons provided above in relation to Mr. Upshall, I ruled that the Commission could call Dr. Arboleda-Florez as an expert. However, in terms of the matters on which the Commission proposed to have him testify, I ruled that the Commission had not established Dr. Arboleda-Florez as an expert on the way in which various kinds of employers could in a practical sense accommodate those with bipolar disorder. There was no basis in the testimony of or documentation provided by Dr. Arboleda-Florez for the assertion that he was an expert on such matters.
Admissibility of Mr. Lane's Medical Records beyond August 2002
17As noted already, at the commencement of the hearing, the Commission restricted its claim for loss of pay and benefits to the period between October 30, 2001, and the end of August 2002. Mr. Lane, on the other hand, initially maintained the position that he was entitled to that head of compensation at least up until the time of the hearing. Within that context, the parties made submissions on the admissibility of Mr. Lane's medical records beyond the end of August 2002.
18The respondent took the position that the more recent medical evidence was relevant to a full understanding of Mr. Lane's condition as of the date of his dismissal as well as any consideration of the long-term consequences of the actions of ADGA. Mr. Bird also asserted that it was necessary that the Tribunal hear this evidence to enable it to put in proper context any evidence that the actions of ADGA were the product of stigmatization. As well, the evidence was relevant to any assessment of Mr. Lane's claim for pay and benefits up to the date of the hearing.
19The Commission took the position that the medical records after August 2002 were of no or marginal relevance to the issues that the Tribunal had to consider and that, in striking a balance between Mr. Lane's privacy interest in his medical records and possible prejudice to the respondent's ability to respond to the case against it, the Tribunal should rule in favour of protecting Mr. Lane's privacy. The Commission also asserted that there would be no prejudice to the respondent's ability to respond to the case against it if the Tribunal ruled against the admissibility of the post-August 2002 medical records.
20Mr. Lane also resisted the respondent's arguments claiming that it was unnecessary to put him through whatever ordeal might transpire were his post-August 2002 medical history to be canvassed at the hearing. In this context, in response to my concerns about the connection between those records and his claim for pay and benefits up to the present, Mr. Lane decided that he would go along with the Commission in restricting the claim for pay and benefits to the end of August 2002. Any extra money that the more expansive claim might achieve was, for Mr. Lane, not worth the emotional cost and invasion of his privacy that public exposure of the post-August 2002 medical records would bring.
21Against that background, I ruled that the post-August 2002 medical records were not admissible. Mr. Lane's interest in preserving the privacy of his medical records outweighed the marginal (at best) probative value and relevance of those records. In particular, to the extent that the respondent asserted that the production of those records could assist in the Tribunal's determination whether ADGA had in October 2001 correctly assessed the risk of Mr. Lane's continued employment, I ruled that the issue of liability had to be decided by reference to the condition of Mr. Lane at the time that he was dismissed. Given the extent to which not only the impact of his dismissal but also other subsequent events could have had an impact on Mr. Lane's current state of health, the post-August 2002 records would be of little or no utility in assessing Mr. Lane's condition and capacities at the relevant date: October 30, 2001.
Motion to Strike Out Complaint
22At the conclusion of the Commission and Mr. Lane's case, Mr. Bird, counsel for the respondent, moved that the Tribunal should dismiss the complaint on the basis that the Commission and Mr. Lane had not made out a prima facie case of discrimination contrary to the Code. The Commission and Mr. Lane indicated that they would not only oppose that motion but also submitted that the Tribunal should condition the respondent's making of this motion on a giving up of the right to call evidence should it be unsuccessful.
Whether the Respondent Should Be Required to Elect
23I rejected the Commission's contention that the respondent should be required to forego the calling of evidence as the price of making the motion to strike out the complaint. This was an issue that I addressed previously in Ontario Human Rights Commission v. Paradise Fine Foods Ltd., 2005 HRTO 24 [CHRR Doc. 05-390]. There, I noted the conflict of authority at the Tribunal on the question whether the Tribunal should generally, sometimes, or never require a respondent to make that election. In that case, my conclusion was that this was a matter of discretion for the Tribunal and, in the particular circumstances of that case, I ruled that the respondents did not have to make the election and allowed the hearing of the motion to proceed. Among the reasons that I identified for allowing the motion to proceed was a determination that the potential savings to all parties and the Tribunal should the motion be successful outweighed the time and cost involved in hearing that motion.
24Similar considerations intruded here. At that point, it looked likely that a further three days of hearing would be required were the respondent called upon to respond. (In fact, it ended up being five and potentially would have been longer without the benefit of some of the legal argument that was made on the hearing of the motion to dismiss the proceedings.) It was also the case that this was not one of those situations where the motion depended on a general evaluation of the totality of the evidence (including potentially the credibility of witnesses), thereby potentially depriving the Commission and Mr. Lane of whatever support the complaint might derive from the testimony of the respondent's witnesses. The main thrust of the motion to strike was much more narrowly focussed than that. It was based on more technical evidential concerns: specifically, the failure of the Commission to lead evidence as to Mr. Lane's disability and also as to each of the various legal elements necessary for a finding of discrimination under the Code. This called for an assessment of the relevant legal principles and with reference to those legal principles, an assessment of whether or not there was some evidence before the Tribunal on each key legal component of a successful finding of discrimination. None of the respondent's submissions on the motion focussed on credibility. The focus was on the legal completeness of the case.
The Motion to Dismiss
25The general operating principle is that those moving to dismiss a complaint because of a failure to establish a prima facie case face a heavy burden. In making a decision on such a motion, the Tribunal should not ask itself whether the complaint would necessarily succeed if the evidence adduced by the Commission went uncontested or the case were to end at that point. Rather, the only appropriate question is whether there is at least some evidence on each of the key components of the complaint that there has been a violation of the Code.
26The respondent's first submission was that the Commission had failed to establish that Mr. Lane had a disability in terms of the Code. This assertion was made on the basis that the Commission never called the specialist who allegedly made the initial diagnosis that Mr. Lane was suffering from bipolar disorder or any other person qualified to make that diagnosis. The Commission simply relied on the testimony of Mr. Lane's treating physician, who was not himself a specialist.
27I rejected that submission. There was reliable evidence that Mr. Lane suffered from bipolar disorder. Dr. Hall had considerable experience in treating patients with various mental problems, including various forms of bipolar disorder. Based on the medical evidence before me, I find that the symptoms of bipolar disorder are clear, scarcely subject to misdiagnosis at least after extended exposure to the patient, and not in any sense beyond the capacity of a family physician. Further, Dr. Arboleda-Florez, an expert in psychiatry, had no hesitation in identifying that Mr. Lane had bipolar disorder when confronted with his medical history.
28Mr. Bird then made the submission that the Commission had not led evidence on each of the legal components of discrimination on the basis of disability under the Code. In particular, he asserted that the Commission had not led any evidence of ADGA's differential treatment as between Mr. Lane and an appropriate comparator group, as required by the accepted legal test for discrimination under the Code. For these purposes, Mr. Bird asserted that the appropriate comparator group was other probationary employees at ADGA and the Commission had failed to produce evidence of differential treatment as between Mr. Lane and other probationary employees.
29In this context, Mr. Bird relied on a wide range of authorities on discrimination under the Code and also the equality rights protection in s. 15 of the Canadian Charter of Rights and Freedoms (the "Charter"). As I will be dealing with that caselaw in the context of my decision on the merits of the claim, I will not analyze it in detail at this point. Suffice it to say that it was my ruling that, even accepting Mr. Bird's submission as to what was an appropriate comparator group, it was not necessary for the Commission to have led evidence as part of its case as to how Mr. Lane was treated differentially when compared with that comparator. To the extent that this represented the litmus test for liability, it was to be evaluated on the basis of all the evidence. At this stage, all that was necessary was for the Commission to have led some evidence of a nexus between Mr. Lane's disability and the circumstances of his dismissal. The Commission satisfied that requirement by leading evidence of that nexus in the timing of ADGA's dismissal of Mr. Lane and the fact that it came so soon after he had revealed the fact that he suffered from bipolar disorder and might need accommodation.
Testimony of André Sincennes
30Mr. Dhir, for the Commission, and Mr. Lane both objected to counsel for the respondent's indication that he would be calling as his first witness, André Sincennes, the Executive Vice-President of ADGA. The reasons for this objection were primarily on the grounds of relevance and the anticipation that Mr. Sincennes would simply be testifying on the basis of hearsay.
31Mr. Bird, for the respondent, argued that I should hear Mr. Sincennes's evidence because, as Executive Vice-President, he could provide information that was essential to the Tribunal's understanding of the operations of ADGA, particularly as the nature of those operations w[as] critical to any issue of accommodation to the point of undue hardship. He also indicated that, while Mr. Sincennes had never met Mr. Lane, he would testify to some involvement in the dismissal of Mr. Lane on October 30, 2001, and, in particular, with respect to the respondent's inquiries as to whether there was alternative work available for Mr. Lane with the company. In so far as that testimony would involve hearsay evidence as to the efforts made by Ms. Burgess, the company's Director of Human Resources, to find an alternative position for Mr. Lane, Mr. Bird submitted that s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, permitted the Tribunal to admit hearsay evidence. He also noted that, given the failure to locate Ms. Burgess, this (and the testimony of Marcel Germain) was the best evidence available as to whether the company had made efforts to locate alternative employment for Mr. Lane and the extent of those efforts.
32I rejected the arguments of the Commission and Mr. Lane for the reasons advanced by Mr. Bird. As Executive Vice-President, Mr. Sincennes could almost certainly provide information about the company's overall operations as valuable background to an understanding of the dimensions of the work that Mr. Lane was to have performed and the respondent's contention that it would have suffered undue hardship if it had attempted to accommodate Mr. Lane. Insofar as Mr. Sincennes was going to testify as to his own involvement in the dismissal of Mr. Lane, his testimony was obviously relevant. That testimony could also clearly include his recollection of his interaction with Ms. Burgess on October 30, 2001. To the extent that there was a danger that the Tribunal would accept hearsay as to what Ms. Burgess herself did that day, I noted that the Tribunal is entitled to accept hearsay and the case for doing so may be strongest when the person concerned is not available to testify. In those circumstances, the Tribunal is able to minimize the risk of relying on hearsay evidence by a careful evaluation of its appropriate weight in the context of the overall evidence and testimony on the issue in question.
FACTS
The Complainant's General Background
33Paul Lane, the complainant, was born on October 6, 1957. In 1982, he secured a College diploma from Algonquin College in Electronics Engineering Technology. This and other computer technology and programming courses qualified him as a quality assurance and systems analyst. From 1998 to June 2001, he worked in that capacity in Ottawa, his long-time home, with a variety of both public and private sector organizations, both as a consultant and an employee. In 1993, he had married for a second time. Diana and Paul Lane have a daughter, and Mr. Lane has a son by a previous marriage.
34In 1998, at a time when he was between jobs and being treated for depression with Prozac, Mr. Lane became manic and was hospitalized for three weeks. While in hospital, he was diagnosed as having Bipolar I Disorder.1 Apparently, Prozac can trigger manic episodes in those with that disorder. Thereafter, Mr. Lane was on other medication and monitored regularly by a physician. For the two years following his time in hospital, the monitoring doctor was the one who had provided the diagnosis of bipolar disorder. Thereafter, he became a patient of Dr. Ron Hall who remained his doctor at the time of and throughout the hearing of the complaint.
35In November 1998, when he was again fit to resume work, Mr. Lane obtained a position as a quality assurance specialist with Siemens Telecom Innovation Centre ("Siemens"). At the time that Siemens hired him, Paul Lane did not tell his employer that he suffered from bipolar disorder. Apparently, Mr. Lane believed that he could manage the disorder in such a way that any manifestation of it would not be apparent to those with whom he worked. That confidence proved misguided and, in 1999, he had another manic episode that necessitated hospitalization for two and a half weeks followed by a three-week recovery period at home.
36At that point, Mr. Lane was prepared to resume his position at Siemens, though recognizing that the issue of his bipolar disorder and its potential impact on his work had to be discussed with his superiors. Instead, in September 1999, a meeting took place at which Siemens had a lawyer present. The upshot of that meeting was that Mr. Lane's employment was terminated. Thereafter, he made a complaint to the Commission that he had been discriminated against on the basis of disability. That complaint was settled at mediation and the matter was never referred to the then Board of Inquiry for a hearing.
37In October 1999, Mr. Lane commenced work with Linmor Technologies ("Linmor") as a quality assurance specialist. He remained there until June 2001 when he was laid off as part of workforce downsizing common to much of the information technology sector in Ottawa at that time. As at Siemens, Mr. Lane initially did not alert Linmor to his bipolar disorder. However, he did so eventually and informed his manager as to the symptoms that the manager should watch out for in order to nip in the bud any potential descent by Mr. Lane into either a manic or depressive episode.
38During his time at Linmor, his superiors noticed that Mr. Lane had begun exhibiting some of the behavioural patterns that he had identified when he informed the company that he was suffering from bipolar disorder. They contacted Ms. Lane and, as a consequence of that intervention, Mr. Lane sought medial help. In fact, Mr. Lane was in the midst of a pre-manic episode for which Dr. Hall prescribed anti-psychotic drugs and he was off work for about three weeks. He returned to work following this and, in April 2001, received a favourable performance review. This review noted among positive indicators that Mr. Lane "[c]ould be considered for a team leadership role".
Employment with ADGA
39Following his layoff, Mr. Lane searched for other work and in August 2001 became aware that ADGA Group Consultants Inc. ("ADGA") was looking for a senior test analyst, a position for which Mr. Lane felt that he was suited. ADGA Group Consultants Inc. is a member of the ADGA group of companies. It has been in business for around 40 years. It is engaged in various aspects of information technology design and engineering. The Government of Canada is its principal client and, within the Government of Canada, the Department of National Defence ("DND") accounts for approximately 65 percent of its business. Most of its contracts are performed on clients' sites. More particularly, the position that caught Mr. Lane's attention was an ongoing project for the DND involving software for artillery used by the Canadian Armed Forces in training and in the field. The work required working as a part of, and providing leadership and mentorship to, a team that developed and updated test cases for that software in order to ensure its reliability. The workplace was the Government of Canada Confederation Building on Rideau Street in Ottawa.
40Mr. Lane contacted ADGA indicating his interest in the position and was invited to an interview on September 22, 2001. Present at the interview were Miranda Corbett, software test manager, and Rob Hartley, also a test leader at ADGA. It was made clear during the course of the interview that the job could be stressful at times. Mr. Lane indicated that he was used to working under pressure and multi-tasking, and that stress was an occupational hazard in the information technology sector.
41Neither at the interview, nor at any other point before ADGA hired him, did Mr. Lane indicate that he had bipolar disorder. Also, on the employment application form that he signed on September 25, 2001, he stated that he had been on sick leave only five days during the previous twelve months. He did not mention his condition and misrepresented the number of sick days for fear that he would not secure the position if he were forthcoming with the company. He also believed that it was not permissible to ask a prospective employee questions about days of sick leave.
42On the employment application form, Mr. Lane also indicated that he had "NATO Secret" security clearance. (This dated from 1997—98 when Mr. Lane had worked for the DND and NATO, through CANAC/Microtel.) It was a condition of the position that the successful candidate have a security clearance. ADGA also needed approval from the DND to employ its preferred applicant.
43Mr. Lane heard back from ADGA on October 5, 2001. Marcel Germain, a project manager to whom Ms. Corbett reported, told him by phone that the company would be offering him the position. Thereafter, a formal contract was prepared and presented to Mr. Lane under cover of a letter from Liz Burgess, the company's director of human resources, and dated October 16, 2001. Mr. Lane signed that contract, and commenced work at ADGA the following Monday, October 22, 2001. The contract contained the following provision:
- Mr. Paul Lane represents that he has the required skills, ability and experience to perform the duties and undertake the responsibilities required by such employment. It is on this basis, which Mr. Paul Lane acknowledges it cannot be demonstrated until a period of employment has elapsed that ADGA has entered into this agreement. Accordingly, Mr. Paul Lane agrees that the 90 continuous days of his employment shall be probationary and that his employment may be terminated at any time during such probationary period with no notice, and either with or without cause, in ADGA's sole discretion.
44During his first day of work at ADGA, Mr. Lane completed an application form for the various group benefits provided by the company's carrier, Manulife Financial. As a result of negotiations between ADGA and Mr. Lane, that application form indicated that coverage would commence immediately with the normal waiting period waived. As well, he filled in the ADGA Group Employment Equity Survey and indicated that he had none of the various forms of impairment or disability listed on the form, a list that included "Mental disability".
45When Mr. Lane commenced work on October 22, 2001, it was expected that he would spend about two weeks familiarizing himself with the requirements of the position. Ms. Corbett set out her expectations in a form headed "Full Change Activity Report". Basically, the list of tasks involved reading and assimilating an extensive amount of computerized material and consulting relevant personnel on any questions that arose out of that documentation. In short, it was contemplated that much of his first two weeks at ADGA would be spent in front of a computer screen. He would not be involved in any work on actual projects.
46Two days after he commenced work, on Wednesday, October 24, 2001, Mr. Lane had a fifteen-minute conversation with his immediate superior, Ms. Corbett, during which he informed her, without specifically identifying that he had a bipolar disorder, that she should not hesitate to intervene if she observed any inappropriate behaviour (including speech) on his part. Mr. Lane testified that he put this in the context of emotional abuse that he had experienced in previous positions and told her that it was better if such matters were confronted immediately and not left to fester with people talking behind his back about perceived problems. Mr. Lane testified that he was reluctant to be more specific at that point because of his uncertainty as to how the company would react to the information that he had bipolar disorder.
47However, two days later, on Friday, October 26, 2001, Mr. Lane had another meeting with Ms. Corbett. He testified that he told her everything, explained bipolar disorder, and offered to provide her with further material. In so doing, he alerted her to his workplace history with the information that abuse by fellow workers had been a trigger in the past. He also testified that he told Ms. Corbett to contact his wife or his doctor in the event of any untoward behaviour on his part or other indicators that he might be moving towards a manic episode. He also mentioned that he might need to take time off work to avert a situation deteriorating from a pre-manic stage to full blown mania.
48Mr. Lane said that he believed he had provided Ms. Corbett with a strategy to deal with manifestations of his disorder and that this should have been enough. He did not expect her to do anything else. Rather, he instructed her to treat the information as confidential. According to Mr. Lane, Ms. Corbett was not very forthcoming during this conversation and he left the meeting with an uncomfortable feeling that he had made a mistake sharing the information about his condition with Ms. Corbett.
49Ms. Corbett's testimony as to what took place at these two meetings was for the most part consistent with Mr. Lane's account. With respect to the matter of time off work, she stated that Mr. Lane mentioned three days as the norm for situations where the signs were recognized in a timely fashion and up to three months as the time it would take for him to come back from a full-blown manic episode. Mr. Lane conceded that he could have said that. Ms. Corbett also testified that she had particular concerns with Mr. Lane stating that stress was a trigger. Given the requirements of the job and the fact that ability to cope with stressful situations had been specified as a job requirement at Mr. Lane's job interview, she saw this as a potential problem. Mr. Lane testified that, insofar as he referred to stress in the course of that conversation, he was referring not to the stress of the work itself but the stress generated by co-workers being mean to him. Ms. Corbett conceded that she had agreed to keep the information confidential and that she undertook to get back to Mr. Lane on Tuesday, October 30, 2001, as she was taking a day's leave on the Monday.
50At this juncture, Ms. Corbett claims she phoned the Human Rights Commission to discuss the situation, including whether she was under an obligation of confidentiality and whether there was a basis for dismissing Mr. Lane. According to her testimony, the unidentified Commission intake officer told her that she needed to obtain Mr. Lane's consent if she wished to take the matter to her superiors. However, the officer also told Ms. Corbett that there were grounds to dismiss Mr. Lane if he had stated in his job interview that he could handle the stress of the position. The Commission contested this evidence, denying that a Commission intake officer would have provided this kind of information over the telephone. It was said to be contrary to explicit operational directives. However, I accept Ms. Corbett's testimony that contact was made and she was provided with information of the kind that she indicated.
51Over the course of the weekend, Ms. Corbett also went to the Mayo Clinic website. That website confirmed what Mr. Lane had told her about bipolar disorder and, in particular, that stress was one of the three main triggers of manic attacks in those with bipolar disorder.
52Up until this point, Ms. Corbett had not observed any behaviour on Mr. Lane's part of the kind that he identified in describing the possible manifestations of bipolar disorder. She did, however, recollect having some concerns with what she discerned as a lack of enthusiasm for what he was doing. This arose from Mr. Lane telling her that he found it tedious familiarizing himself on a computer screen with a mass of background documentation. For his part, Mr. Lane explained his comment by reference to going through the documentation on screen rather than in hard copy. However, during that first week, Ms. Corbett did not speak with any other personnel at ADGA about Mr. Lane.
53In contrast, Mr. Germain testified that he had a conversation with another test leader, Bruce Harris, during that first week about their mutual observation of Mr. Lane spending time away from his computer-based worksite and socializing with other employees outside his area. In this context, he asked Mr. Harris to keep an eye on Mr. Lane. Mr. Harris (who did not testify) also allegedly told Mr. Germain that he had had a report from the commissionaire supervising the security check at the entrance to the building that Mr. Lane had been kneeling on the floor to use his security pass to secure entrance. No one ever confronted Mr. Lane with that report and, at the hearing, he denied it, stating that he merely bent down when passing through the security check so that it could scan the security pass that he was wearing around his neck. On Monday, October 29, 2001, a salutation at the end of an email that Mr. Lane had sent Mr. Germain with the résumé of a potential applicant for a position also took Mr. Germain aback. It concluded: "Thanks a Million! Luv and Kisses. PauL".
54On the morning of Tuesday, October 30, 2001, Mr. Lane and Ms. Corbett met again briefly at around 10:00 a.m. Ms. Corbett indicated to Mr. Lane that Marcel Germain needed to be put in the picture particularly if Mr. Lane might need time off work because of his condition. To this end, a meeting was arranged for 1:00 p.m.
55For his part, Mr. Lane informed Ms. Corbett of what he described as a death threat that had been uttered as he was re-entering the building that morning after going outside to smoke a cigarette. He met someone carrying a briefcase with a decal featuring a bird and the words "The Old Crows". When Mr. Lane asked the man to explain the decal, the man allegedly said that if he did so, he would then have to kill Mr. Lane. According to Ms. Corbett, Mr. Lane also linked this incident with a conversation that he had earlier that morning with Mr. Hartley, in which Mr. Hartley had allegedly told Mr. Lane that there had been an explosion in the building that had shaken the whole floor. Ms. Corbett testified that at this point she became concerned that Mr. Lane was exhibiting some of the very symptoms that he had told her about on Friday, and, in particular, paranoia.
56Mr. Lane testified that by the time of the morning meeting, he himself was aware that he was in a pre-manic phase at a level that he believed was 6 on a 10-point scale, escalating to 7 in the wake of the perceived death threat. As a consequence, he said that he was unable to concentrate on his work during the morning with the now scheduled meeting with Mr. Germain three hours away. On the other hand, he testified that he was not aware that he was exhibiting manic symptoms in the form of fast-talking and being overly familiar or social in the workplace. However, at the same time, Ms. Corbett was receiving reports from other employees that Mr. Lane was not doing any work and she too observed that pattern of behaviour.
57Prior to the 1:00 p.m. meeting with Mr. Germain, Ms. Corbett both spoke to Mr. Germain and sent him a link to the Mayo Clinic website. (Mr. Germain did not utilize the link. Indeed, he did not recollect reading Ms. Corbett's email.) Their conversation focussed on whether Mr. Lane's condition and behaviour to that point at ADGA were compatible with the responsibilities of his position and the security dimensions of the work as reflected in the contractual requirements imposed by the DND. For her part, Ms. Corbett expressed concerns as to whether Mr. Lane could handle the stress of the position and whether this might trigger an episode. The conversation ended with Mr. Germain expressing the view that he was convinced that Mr. Lane could not do the job and, as they were within the first 90 days of the contract, there was no impediment to dismissing him.
58The two of them then met with Mr. Lane at 1:00 p.m. There were few differences in the accounts that the three gave of that meeting. Mr. Germain recounted the concerns that Ms. Corbett had raised and told Mr. Lane that the company could simply not afford to have him away for long periods. He then asked Mr. Lane why he had not revealed during the initial job interview that he had bipolar disorder. Mr. Lane expressed his belief that he would not have obtained the position. Mr. Lane testified that Mr. Germain responded to this by stating: "That's right". However, neither Mr. Germain nor Ms. Corbett recollected that. Mr. Germain then told Mr. Lane that he was dismissing him with immediate effect and that Mr. Lane should take his time, gather his possessions, and leave.
59The conversation among the three was civilized and none of the participants became angry or accusatory. Indeed, Mr. Lane described Mr. Germain as being nice. Ms. Corbett testified that it appeared that Mr. Lane was quite accepting of the company's position. However, Mr. Lane explained his lack of reaction and protest as the product of shock at what he described as the company's bigotry and intolerance. Mr. Lane also testified that there was no discussion of alternative employment, or any offer of another position. Ms. Corbett recollected it differently. According to her, Mr. Lane asked about the possibility of redeployment elsewhere in the company and Mr. Germain told him that there was nothing suitable available at that time and that there would be similar concerns with any other positions at ADGA for which Mr. Lane was otherwise qualified.
60What is clear, however, based on all the evidence, is that there was no specific discussion at the meeting about the nature of Mr. Lane's condition and his specific needs related to his condition. Nor was there any suggestion by either Mr. Germain or Ms. Corbett that the matter of his continuation at the company should be put on hold until either or both of them gathered more information about bipolar disorder in general and Mr. Lane's condition in particular and took legal advice on any possible obligation towards someone in Mr. Lane's situation.
61There was one potentially significant point of difference among the testimony of the three who attended that meeting. Mr. Germain testified categorically, and was not shaken under vigorous cross-examination, that Mr. Lane stated explicitly during the course of the meeting that he could not perform the work for which he had been hired. Mr. Lane denied that he had made such a statement and Ms. Corbett did not mention it in the course of her testimony nor does it appear in an email that she sent to Ms. Burgess in the ADGA Human Resources department in the wake of Mr. Lane's dismissal, an email in which she puts on the record her recollection of the events surrounding Mr. Lane's hiring, performance and dismissal. My conclusion on the evidence is that Mr. Lane did not say that he could not do the job. Rather, Mr. Germain has almost certainly extrapolated from his own conclusion prior to the meeting that Mr. Lane was not able to perform the requirements of the position, and also from Mr. Lane's passivity at the meeting, that Mr. Lane actually admitted that he could not do the job.
62Following the meeting, Ms. Corbett tried to find Mr. Lane to talk to him but he had left the building by then. She did not contact Ms. Lane to alert her to Mr. Lane's dismissal and her concerns that Mr. Lane had been exhibiting some of the signs of the onset of a manic episode.
Post-Dismissal Events
63Shortly thereafter, Mr. Lane left the building and went home. Diana Lane testified that later that afternoon, she arrived at the house to find her husband in a limp state. They had a conversation about his dismissal and also discussed whether he should contact Dr. Hall or go to the hospital immediately. As a consequence, Ms. Lane contacted Dr. Hall and informed him of Mr. Lane's condition and arranged for Mr. Lane to see Dr. Hall the following day. Thereafter, Mr. Lane progressed further along the path to a full-blown manic episode. He testified that his speech patterns were rapid; he became somewhat delusional and that he was unable to sleep well.
64According to Mr. Lane, the next morning, October 31, 2001, two CF18 fighters flew over their house, something that had never happened before. He said that the effect of this, in the wake of all the events of the previous day, triggered a reaction and that shortly thereafter he consulted Dr. Hall in a state that Mr. Lane described as 10 on the 10-point scale of mania. He also testified that he had never "gone up" so quickly before. Dr. Hall arranged for Mr. Lane to be admitted to hospital.
65On this occasion, Mr. Lane was in hospital for 12 days. There then followed a very unfortunate period in Mr. Lane's life, a period that extended to the commencement of the hearing of his complaint. He experienced severe depression that was alleviated in some measure by medication. However, he felt unable to seek other work until at least February 2002, and then was unable to find other work. This led to further periods of depression and one instance of enforced hospitalization. The family's financial position deteriorated and eventually they were forced to sell their house. Subsequently, his marriage broke up around the time of his next period of hospitalization in August 2002. However, he and his wife remained on good terms and, both leading up to and through the hearing, Ms. Lane provided Mr. Lane with emotional and other support. Until very late in the hearing, Mr. Lane had not found another full-time position suited to his qualifications.
Bipolar Disorder
The Nature of Bipolar Disorder
66Aside from the complainant and his wife, three persons testified at the hearing as to various aspects of bipolar disorder, two of whom were qualified as experts for various purposes: Philip Upshall, National Executive Director of the Canadian Alliance on Mental Illness and Health (an advocacy group) and himself bipolar; Dr. Julio Arboledo-Florez, Head of the Department of Psychiatry, Faculty of Medicine, Queen's University); and Dr. Ron Hall, the complainant's treating physician. Dr. O'Brien, who was responsible for the initial diagnosis of the complainant as suffering from bipolar disorder, did not testify.
67Bipolar disorder (or manic depressive illness as it was formerly known) is a mental illness or disorder that has, at its polar opposites, severe depression at one end and extreme manifestations of manic behaviour at the other. Serious episodes at either end of the spectrum will almost inevitably necessitate hospitalization and lengthy periods off work. It is, however, an illness that can often be managed by medication, by early intervention when there are signs of increasing depression or manic behaviour, and, more generally, by the presence of educated, caring and supportive environments at both home and work. In particular, if the signs of an episode are detected early enough, a rapid rebalancing of medication may result in the person affected losing only one to three days off work.
68The trigger for any particular episode may not always be obvious. However, there are known and frequent triggers. The use of certain medications may provoke an episode in some but, at the same time, failure to take medication prescribed for the disorder can also trigger an episode. Negative stress is also a frequent stimulus for a manic episode, including actual or perceived hostility on the part of fellow workers or managers. Nonetheless, those with the disorder do not necessarily react badly to workplace stress of a positive kind. In at least some with bipolar disorder, the pressure to produce high quality work under tight deadlines can be stimulating and bring out their best and most creative work.
69Mr. Upshall testified that there are, however, a number of conditions that contribute to the difficulties that those with bipolar disorder may experience in the workplace. Primary among them is a lack of awareness of the nature of the disorder, the conditions that contribute to the onset of episodes, and the warning signs of the need for early intervention. This is often reflected in the absence of any recognition of the disorder in human resources manuals and training programs, let alone dissemination of information on how to recognize the telltale signs and how to react to them. Some see this as part of a more general pattern of stigmatization of those with mental illness and differential treatment in the workplace between those with mental as opposed to physical illnesses. This situation also has a tendency to create a vicious circle in the form of a great reluctance on the part of those with bipolar disorder to reveal their condition to prospective employers and, if they are then hired, to inform employers so that risk minimization steps can be taken to enable that person to regularly function fully and effectively in the workplace and to be accommodated when episodes occur.
70What is also clear, particularly from the testimony of Dr. Arboledo-Florez, is that this is a disorder or illness for which generalizations must be applied with care. The impact of the disorder on individuals varies considerably. Obviously, this will affect ability to function in the workplace, the type of treatment needed both on an ongoing basis and for particular episodes, the period between the manifestation of warning signs and the onset of a full-blown episode, the nature and extent of accommodation required to sustain a particular sufferer in the workplace, and the time that a particular person may need to take off work to avert a major episode or to recover from a full-blown episode. It may also be the case that those who have suffered multiple manic episodes may suffer permanent or chronic mental acuity impairment.
The Complainant's Experience as a Person with Bipolar Disorder
71As already indicated, Paul Lane first manifested his bipolar disorder in 1998 when he was between jobs, though Mr. Lane testified that he was aware earlier than this that he was having problems of the kind associated with the disorder. At the time of this initial episode, he was being treated with Prozac for depression, itself a problematic drug for those with bipolar disorder. The immediate trigger, however, seems to have been a crisis in his relationship with one of his children. He was hospitalized for three weeks and, during this hospital stay, Dr. O'Brien of the Queensway-Carleton Hospital, a physician with a specialty in psychiatry, diagnosed Mr. Lane as having Bipolar 1 Disorder and prescribed medication accordingly.
72Later that year, Mr. Lane, having recovered from the first episode, obtained employment at Siemens. Here, in 1999, he suffered his second full-blown manic episode and, once again, he was hospitalized, this time for two-and-a-half weeks. He then recuperated at home for a further three weeks before attempting to return to work. Mr. Lane attributed this second episode to certain managers at Siemens becoming aware of his condition and endeavouring to make it escalate. There was no testimony corroborating that explanation.
73Subsequently, in January 2001, acting on the suggestion of Dr. O'Brien, who had been monitoring Mr. Lane since the initial episode, Mr. Lane secured Dr. Hall as his family doctor. Dr. Hall had considerable experience with those suffering from various forms of mental illness, including bipolar disorder, and Dr. O'Brien evidently felt that regular monitoring by a qualified family doctor with that experience would be apt for Mr. Lane's needs.
74At this point, Mr. Lane was working at Linmor and, shortly thereafter in March 2001, he suffered his next episode. However, thanks to early intervention, he was caught at the hypomanic phase and never reached full-blown mania. Nonetheless, he was off work for two to three weeks. According to Dr. Hall, there was no obvious trigger to this occurrence though Mr. Lane suggested that part of the explanation could have been an incident in which he felt that a manager at Linmor was tailing his car.
75Following his layoff by Linmor, Dr. Hall treated Mr. Lane for depression, seemingly precipitated by the layoff and the unavailability of other suitable employment. However, that condition appeared to have dissipated by the time that ADGA hired Mr. Lane. Dr. Hall did not observe at that time that Mr. Lane was on the verge of a manic episode, nor did Ms. Lane. Mr. Lane described in his evidence the positive impact of the ADGA decision to hire him. As for the onset of mania at ADGA, Mr. Lane testified that it was triggered by a lack of trust in the actions and motivations of certain managers at ADGA and, in particular, by two unexplained incidents that took place on the morning that his employment was terminated — the perceived death threat by the person carrying the briefcase and the apparent suggestion by Mr. Hartley (who did not testify) that a bomb had gone off in the building.
76As already mentioned, Mr. Lane was hospitalized for twelve days at this point. Thereafter, it was not until February 2002 that Dr. Hall felt that Mr. Lane was ready to return to work and then only part-time and preferably on a consulting or contract basis rather than as an employee. In the meantime, between November 2001 and February 2002, Mr. Lane had been in a depressed state. Even after February 2002, Mr. Lane experienced varying levels of depression, seemingly triggered by the events at ADGA, his inability to find other employment, the loss of his house, and pressures on his marriage. In August 2002, Mr. Lane, after a period of four weeks during which he did not see Dr. Hall, experienced another episode of full-blown mania. This time, police intervention was necessary to secure Mr. Lane's committal to hospital. From this point on, Dr. Hall had doubts as to whether Mr. Lane would ever recover sufficiently to work full-time again.
77Between these various episodes, Mr. Lane generally had regular appointments with his doctor, initially Dr. O'Brien and, then from January 2001, Dr. Hall. The frequency of these visits varied from weekly to every couple of months. This depended both on the treating physician's assessment of the situation and Mr. Lane's own evaluation of his condition, an evaluation in which Ms. Lane assisted him considerably. By 2001, Ms. Lane had considerable experience in recognizing symptoms of impending episodes and drawing them to Mr. Lane's attention with advice that he should make an appointment to see Dr. Hall or go to the hospital if Dr. Hall was not available. Mr. Lane was receptive to that advice from his spouse.
78During this time and also during Mr. Lane's periods of hospitalization, the treating doctors made adjustments to his medications in an endeavour to strike the correct balance and prevent further episodes. On occasion, Mr. Lane would, however, go off his medication either because of the side effects or because he felt he no longer needed it. The second of these reasons was enough to send off alarm bells for Dr. Hall, who recognized that this display of self-confidence could be a sign of an impending manic episode. Subsequently, in 2002, Dr. Hall was also concerned to learn that Mr. Lane was self-medicating with marijuana, particularly because of his concerns that this too could act as a trigger to an episode.
Accommodation of the Complainant
Procedural Dimensions
79When confronted by the information that Paul Lane had a bipolar disorder, as already recounted, Ms. Corbett made inquiries of the Human Rights Commission and attempted to be become better informed by consulting the Mayo Clinic website. On the basis of the information that she secured from these sources and her conversations with and observations of Mr. Lane, Ms. Corbett formed the opinion that there were problems with Mr. Lane's continued employment with ADGA. In particular, she was concerned about his ability to handle stress, the reliability of his work, security considerations, and the potential logistical problems if he had to take extended periods off work.
80On Tuesday, October 30, 2001, some time after 10:00 a.m., Ms. Corbett conveyed the information she had received to her superior, Mr. Germain, including the link to the Mayo Clinic website. She also met with Mr. Germain to discuss the matter prior to the meeting with Mr. Lane at 1:00 p.m. At the meeting between Ms. Corbett and Mr. Germain, Mr. Germain formed the opinion, on the basis of the information that Ms. Corbett had provided him as well as his own observations and reports from Mr. Harris, that Mr. Lane was unable to meet the requirements of the position to which he had been appointed. He therefore determined to dismiss Mr. Lane when they met at 1:00 p.m., and took full responsibility for that decision.
81Mr. Germain was frank with respect to his actions and thought processes at that time. He did not access the link to the Mayo Clinic website to which Ms. Corbett had referred him nor did he in any other way attempt to find out more about bipolar disorder or the capacities of those with that disorder. He based his determination to dismiss Mr. Lane solely on his personal assessment of whether Mr. Lane was capable of performing the essential duties of his position. While he recalled Ms. Corbett mentioning that Mr. Lane was bipolar, he testified that this had no impact at all on his decision. His analysis was that Mr. Lane would not be able to handle the stresses of the position and that the prospect of lengthy absences from work (or, even short absences, during critical periods) was not tolerable. Moreover, as far as he was concerned, Ms. Corbett's information about Mr. Lane's bipolar condition was irrelevant. She was no more an expert on this than he was and it had nothing to do with the steps that he had to take. He could not recollect that Mr. Lane initiated any discussion at the 1:00 p.m. meeting about possible steps that could be taken to accommodate his continued employment. In contrast, both Mr. Lane and Ms. Corbett testified that Mr. Lane asked whether ADGA had any other positions available to which, as recounted already, Mr. Germain replied in the negative.
82However, Mr. Germain did testify that between the time at which he met with Ms. Corbett and the 1:00 p.m. termination meeting, he would have contacted Ms. Burgess, the Director of Human Resources, and asked her to conduct a job search to ascertain whether there were any other positions at ADGA that he could offer to Mr. Lane. Ms. Burgess was not available to testify but, according to the relevant interview notes, Ms. Burgess told the Commission that she had no recollection of Mr. Germain (or anyone else, for that matter) making such a request. To the extent that Mr. Germain tended to express this aspect of his testimony both in chief and under cross-examination in terms of this being something that he would have done rather than specific recollection, I do not accept that such a conversation ever took place. This conclusion is reinforced by the short time that elapsed between the meeting between Ms. Corbett and Mr. Germain and the termination meeting at 1:00 p.m., and also by Ms. Corbett's email message to Ms. Burgess recording her recollection of what had taken place at that meeting. According to Ms. Corbett, Mr. Germain said, in response to Mr. Lane, that he would have similar concerns with Mr. Lane with respect to most of the other jobs at ADGA for which Mr. Lane would be otherwise qualified, not that he had initiated an unsuccessful job search that morning.
83André Sincennes, the Executive Vice-President of ADGA also gave evidence, principally about ADGA and its work and hiring requirements and procedures. However, he also testified that he was involved in the decision to terminate Mr. Lane to the extent that the matter was brought to his attention on the morning of October 30, 2001, because of the unusual circumstances. He had overall responsibility for reviewing employment issues that might give rise to legal issues. At the point that he became involved, the matter was already in the hands of Human Resources and Ms. Burgess in particular. He too testified that he asked Ms. Burgess to conduct a search to see whether there were any other positions available for Mr. Lane at ADGA and that Ms. Burgess had got back to him and told him that there were no positions available. On receiving this information, he was satisfied and took no further role that day in the matter. Indeed, he testified that he was not aware that there was a meeting planned for 1:00 p.m. at which Mr. Germain would dismiss Mr. Lane. At no point prior to that meeting did he have any contact with Mr. Germain about the matter, a fact that was corroborated by Mr. Germain. As noted already, Mr. Germain took personal responsibility for the decision and did not contact anyone before acting, including Mr. Sincennes, the client (DND), Ms. Lane or Mr. Lane's physician.
84Under cross-examination, Mr. Sincennes admitted that, despite his managerial responsibilities for the Human Resources branch of ADGA and for employment issues having legal dimensions, he did not know whether ADGA had any policies with respect to the accommodation of disabilities or whether members of the Human Resources branch and managers had any training on workplace disability matters. (The same was true of Mr. Germain.) As was also the case with Mr. Germain, Mr. Sincennes's position was that the continued employment of Mr. Lane had nothing to do with his bipolar condition. His sole concern was about Mr. Lane's ability to perform the tasks for which he had been hired. As a consequence, he testified that the issue of bipolarity did not factor into whatever discussions he had with or instructions that he gave to Ms. Burgess.
ADGA's Needs
85ADGA hired Mr. Lane as a senior test analyst as part of its contract with the DND's Land Software Engineering Centre ("LSEC"). This was a contract that ADGA had had with DND for some 15 years, and ADGA contemplated that most of those hired as part of that contract (including senior test analysts) would become long-term or permanent employees after a period of probation.
86Central to the work that Mr. Lane was to perform was the indirect fire control computer software ("IFCCS"), a core component of the indirect fire control computer ("IFCC"). This software incorporated NATO developed software and it provided artillery gun data automatically without manual reporting firing table procedures. Under its contract with DND, ADGA had developed a software test plan ("STP") for testing the various applications of the IFCCS, thereby providing "support and general maintenance to the IFCCS fielded releases".
87Essentially, what was expected of the group of testers that Mr. Lane would lead was that they would build test cases that could be used to ensure that the IFCCS would function properly and safely when required. The work was "requirements-based" in the sense that it responded to needs identified by DND and it involved a combination of developing new test cases from scratch, enhancing existing test cases, as well as modifying test cases to eliminate flaws. The work was regarded as both "Mission and Safety Critical" as it was central to the functioning of the Armed Forces' artillery both in training and testing and in combat or operations, the latter about to become a reality with the decision to deploy Canadian troops on a war footing in Afghanistan later in the year in which ADGA hired Mr. Lane.
88The formal list of tasks expected of a senior test analyst involved a range of software testing skills. The job description also spoke of the ability to work "under medium supervision" and various management, supervisorial and mentoring abilities, including:
instruct and manage, as required, LSEC personnel involved in software testing;
estimate time and resources for others to carry out tasks;
be capable of detecting potential problems in advance and report them with recommendations for remedial action; and
liaison with the management team for requirements management and impact analysis.
89In practical terms, this translated itself into Mr. Lane being responsible for a group of six to ten testers, some of whom were short on experience. Indeed, the position to which Mr. Lane was hired had arisen in part because of the unsuitability of his predecessor, a newly-minted college graduate who was uncomfortable with the role and, in particular, its supervisory and mentoring responsibilities.
90The work for which Mr. Lane would be responsible would frequently have to be performed under very tight deadlines and this was particularly the case at the time that Mr. Lane was hired. The IFCCS was about to be redeployed for use in various training programs in Canada (including those at CFB Gagetown) and it was also about to be used in the field in the upcoming Afghanistan mission. Central to this was a process called qualification testing by which ADGA established and certified that the various applications were ready to be utilized by the Armed Forces. This last stage usually took place over a three-week period and, if there were problems, would require everyone on the testing team to work long hours under pressured conditions.
91There were a number of reasons that Ms. Corbett, Mr. Hartley and, ultimately, Mr. Germain believed that Mr. Lane was suitable for the advertised position. He was an experienced quality analyst who in his job at Linmor had had supervisorial responsibilities. He had the necessary technical background and, in particular, experience with ISO 9000 processes, the framework system employed on the project, as well as a background in military applications and, seemingly, an appropriate security clearance. He also interviewed well, and gave the impression of both being very enthusiastic about working at ADGA and having the necessary communication skills to be the leader of a team and to assist that team in growing.
92When it came to the decision to dismiss, both Ms. Corbett and Mr. Germain identified a range of considerations that led them to the conclusion that Mr. Lane could not perform the requirements of the position. Ms. Corbett expressed particular concern on the score of stress and her interpretation of Mr. Lane's statements as indicating that significant levels of stress on the job could lead to an episode, a statement that she felt was confirmed by what she found on the Mayo Clinic website. This and Mr. Lane's behaviour (including her sense that he was exhibiting signs of paranoia) also led her to have concerns about his reliability and ability to focus consistently at a level required by a project that was classified as "Mission and Safety Critical". If his work and supervision were unreliable, this could have repercussions down down the road for those operating the IFCSS particularly in a combat situation. She also wondered whether he might compromise the security of the project by breaching confidentiality. Finally, and perhaps most importantly, she worried about the possibility of lengthy absences from the project. If that occurred, there would be no alternative but to take someone off another project. She testified that the project had no built-in capacity to otherwise compensate for long-term absences and, given the nature of the position and the time it took to get up to speed, a short-term replacement was not a feasible option.
93Ms. Corbett made these judgments against what she had observed of Mr. Lane's behaviour, what he had told her about his bipolar condition, and the limited amount of information that she had gleaned from the Mayo Clinic website. Mr. Germain reached similar conclusions on the basis of Ms. Corbett's account of her conversations with Mr. Lane, Mr. Harris's report on Mr. Lane, and his own limited observations of Mr. Lane both in the workplace and in the form of the salutation in the email message he had sent Mr. Germain. While Ms. Corbett made some attempt to locate her concerns within the context of what she knew about bipolar disorder, Mr. Germain dismissed that from his assessment entirely. Given what had been observed already and the prospect that there would be long-term absences from work, his bottom line question to himself was whether Mr. Lane was able to do the job. Mr. Germain saw Mr. Lane as a seemingly unstable person occupying a position where stability and reliability were essential and which, because of its "Mission and Safety Critical" classification, had significant security dimensions both in terms of the confidential and national security aspects of the contract itself and the functioning of the IFCCS in the field.
94At the time of the meeting at which Mr. Lane was dismissed, there was no discussion whether there were ways in which the risk of a serious episode and lengthy absences from work could be minimized. This was not on Mr. Germain's horizon, and Ms. Corbett, by this point, was not thinking of the matter in those terms even though that had been one of the major topics of her conversations with Mr. Lane, particularly on the Friday. At the hearing, however, this issue was addressed in their testimony. Ms. Corbett accepted that the project could generally cope with key personnel being absent on sick leave for up to three days. However, although the company allowed for ten days of paid sick leave per year, an absence of ten consecutive days could create problems particularly if it occurred during a critical time, such as qualification testing. Mr. Germain testified to much the same effect. Maternity leave could be planned for and accommodated because there was lead-time. That was not so in the case of a sudden onset of a manic episode.
95He also dismissed out of hand the notion that the risk of absenteeism could be minimized if either he or Ms. Corbett undertook responsibility for monitoring Mr. Lane in the workplace (as he had suggested) and intervening if Mr. Lane showed any signs consistent with the possible onset of an episode. He testified that neither he nor Ms. Corbett had time for that and, indeed, it was not to be expected that there would be daily interaction between Ms. Corbett (let alone himself) and Mr. Lane in the workplace. The demands of Ms. Corbett's position meant that days might pass between encounters with some of her staff. Mr. Lane's proposed regime of monitoring was simply not workable and, according to Mr. Germain, it would simply have been impossible to put in place any mechanism for monitoring a senior test analyst in Mr. Lane's position.
What ADGA Could Have Learned
96If ADGA had taken legal advice before it dismissed Mr. Lane, it would have learned that there were at least risks in dismissing summarily someone with bipolar disorder. A lawyer would have told it of the possibility that this could amount to discrimination on the basis of disability contrary to the Code, and, if the disability was the basis for the dismissal, that there was a duty to accommodate the employee in both a procedural and substantive sense to the point of undue hardship.
97Consultation with those having a medical expertise in or special familiarity with bipolar disorder (such as the expert witnesses who testified at the hearing and on whose evidence the following account is based) would have cautioned ADGA not to assess the employee's situation from the perspective of false stereotypes as to the capacities of those with mental illness in general and bipolar disorder in particular. Among those stereotypes are that those with bipolar condition are in almost every instance unreliable, prone to inappropriate behaviour to the point of violence, and incapable of working to the normal demands of most jobs. ADGA would also have been warned about the stigmatization in the workplace to which those in Mr. Lane's position are sometimes subjected. It would have realized that Mr. Lane's initial failure to disclose at his job interview that he suffered from bipolar disorder was not at all uncommon and, in many instances, based on a well-grounded fear that, if the applicant was forthcoming, those responsible for hiring decisions would engage in inappropriate stereotyping and immediately disqualify the applicant as a candidate.
98More specifically, ADGA would have learned that, while stress can trigger bipolar episodes, those suffering from the disorder are often capable of dealing with stress and with the pressure generated by tight deadlines in the workplace. Inquiries would have confirmed what Mr. Lane testified that he told Ms. Corbett — that, in some with bipolar disorder, the kind of stress that acts as a trigger is "negative stress" in the form of fractured and difficult working relationships with fellow workers and supervisors. In contrast, "positive" stress in the form of challenging work that engages the employee's attention and creative capacities can sometimes bring out the best in a person with bipolar disorder. However, it would also have ascertained that, for some affected individuals, working long hours under pressure, particularly if accompanied by inadequate sleep, could act as a trigger. For those, any accommodation might require more flexible working hours, a reduction in workload, exploration of the possibility of working at a different site including from home, and allowances for medical appointments.
99ADGA would also have verified that, for some suffering from bipolar disorder, full-blown manic episodes could be staved off if fellow workers and supervisors were sensitized to the situation and able to spot standardized indicators of the onset of a pre-manic or hypomanic phase. Such early intervention in the workplace followed by a few days off work and medical intervention could prevent the lengthy period of hospitalization and recovery resulting from the worker "going up" to full-blown mania. This too would have confirmed at a general level what Mr. Lane had told Ms. Corbett when he revealed his condition to her on the Wednesday and Friday of the first week of his employment at ADGA.
100ADGA could also have ascertained that there were dangers associated with the dismissal of someone with bipolar disorder. This would be particularly so when the employee was in a pre-manic phase and likely to attribute his bipolar condition to the decision to terminate whether accurate or not. Loss of a job and the resulting impact on self-esteem could very well lead to the rapid onset of a full-blown manic episode, deep depression, or a mixture of both. It would also have ascertained that each full-blown episode increases the chances of recurrence (and more frequent recurrence at that), and possibly a permanent inability to work.
101In terms of the particular situation of Mr. Lane as a victim of bipolar disorder, ADGA had the information that Mr. Lane had provided to Ms. Corbett on the Wednesday and the Friday. It also had the observations of Mr. Lane's behaviour in the workplace provided by Mr. Germain, Ms. Corbett and Mr. Harris, as well as the information that the latter particularly had gleaned from other employees and the commissionaire. Further probing of Mr. Lane, his spouse and, with Mr. Lane's consent, his physician, Dr. Hall, would have filled in many of the details of his medical history in general and the impact of the disorder in particular.
102This information would have included the number and severity of each manic episode, the extent to which Mr. Lane had suffered from depression, how both had affected Mr. Lane in the workplace, and the time off work that each had necessitated. ADGA would have found out more details as to the circumstances of the early intervention at Linmor and the impact this had had on the onset of mania and the time Mr. Lane had taken off work. It would have heard of the impact of other early interventions on the part of Ms. Lane when Mr. Lane was exhibiting pre-manic indicators. The company would have found out about the extent of Mr. Lane's self-awareness of and insights into his illness and his willingness to respond to interventions and to medical advice and treatment. There would also have been information about the extent to which both his depression and mania were manageable through medication.
103Dr. Hall would also have been able to inform ADGA that Mr. Lane was schizotipal. This is a personality trait and it meant that Mr. Lane was somewhat of a loner who would not be comfortable with many people around. This would not have a necessary impact on his ability to be a team leader or supervisor in the workplace. However, in terms of external indicators of pre- or hypomania, it did mean that Mr. Lane would present later, i.e., his condition and the indicators would not be apparent as soon as they would be in those with bipolar disorder who had a more flamboyant personality.
Aftermath of Dismissal
The Complainant's Health and General Condition
104Following his release from hospital on November 11, 2001, Mr. Lane was still in recovery mode. That recovery was not assisted when in December 2001, he went off his medication and Ms. Lane and their child temporarily left the family home. During this time, Mr. Lane was exhibiting continuing manic symptoms to Dr. Hall. However, by the end of December, the estrangement between the Lanes was over and Dr. Hall testified that Mr. Lane's judgment was improving and that his paranoia had disappeared. From this point on, Mr. Lane was in varying states of depression.
105During this period, Mr. Lane was clearly angry at times and generally frustrated and bored. He attributed his anger to his dismissal by ADGA and Dr. Hall confirmed this. By about March 2002, however, Dr. Hall testified that Mr. Lane's primary concern had become the financial consequences of his inability to secure work and the impact this was having on his personal life. At this point, Dr. Hall made adjustments to Mr. Lane's medication to counter the effects of increased depression. These adjustments did have the desired effect at least for a time. Later in July, Mr. Lane told Dr. Hall that he had been using marijuana to counter depression and that it was having positive effects. However, this caused Dr. Hall considerable concern because of the adverse consequences use of cannabis can have for those with bipolar disorder.
106By March 2002, the Lanes had decided that they had to sell their house and this took some time. This, along with Mr. Lane's condition, caused increasing friction in his marital relationship. Indeed, as noted, there had already been a period of temporary estrangement. Ultimately, when Mr. Lane was compulsorily hospitalized on August 5, 2002, following the intervention of the police, Ms. Lane determined to leave him. This she did with their daughter while Mr. Lane was in hospital with a full-blown manic episode.
The Complainant's Employment
107During the period between his dismissal on October 30, 2001, and the beginning of August 2002, Mr. Lane did not work. Even though Dr. Hall testified that Mr. Lane was not really fit to return to full-time employment until February 2002, Mr. Lane started making efforts to obtain employment in December 2001. This job search continued with varying levels of intensity through the period leading up to his next full-blown manic episode in August 2002. The search was confined to Ottawa and its environs (e.g., Gatineau-Hull and Orleans) and Mr. Lane was looking for work of the kind that he would have been performing at ADGA — quality assurance testing at a senior tester level with some leadership and mentoring component.
108Mr. Lane was not able to produce a complete log of his various initiatives or copies of the letters that he sent to various potential employe[r]s. His best estimate was this documentation was lost during the course of the move when the Lanes sold their house. However, he testified that he initially looked for jobs on the internet and the Wednesday and Saturday Ottawa Citizen and later inquired through friends and word of mouth generally. He compiled a generic application letter that he tailored when applying for a particular position. He also sent his résumé to prospective employers who were not hiring but might in the future so that his credentials would be in their database.
109Through most of this period, Mr. Lane continued to experience varying levels of depression but not, according to Dr. Hall, at such a level as to disable him from either seeking or undertaking employment. However, on June 17, 2002, Dr. Hall signed a form to support Mr. Lane's application for Canada Pension Plan benefits as a person permanently unable to work as of May 1, 2002. By the time he completed this form, Dr. Hall was worried about Mr. Lane's increased depression resulting primarily from his financial position and inability to secure replacement employment. That led him to wonder whether Mr. Lane would ever be able to resume full-time employment. As a consequence, he was prepared to do what was possible to ensure that Mr. Lane secured a total disability pension (if that proved necessary) in a timely fashion. That involved backdating the point at which Dr. Hall believed that Mr. Lane might never be able to work full-time again and indicating that from that point on Mr. Lane was totally disabled. In truth, Dr. Hall testified that he did not become totally convinced of this until Mr. Lane's next manic episode in August, though he was 90 percent certain of that on June 17, 2002. Questionable though Dr. Hall's conduct may have been in completing the form in the way that he did, I accepted his testimony on this point.
110At the hearing, Mr. Lane abandoned his claim for loss of wages beyond the beginning of August 2002 when he suffered his next full-blown manic episode.
ANALYSIS
Relevant Legal Principles
111Section 5(1) of the Code provides:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of. . . disability.
112Section 17 goes on to provide:
Disability
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a disability.
Accommodation
(2) The Commission, the Tribunal or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
113Section 11 of the Code is also relevant to the issues in this case and provides:
Constructive Discrimination
11(1) A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
Idem
(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
114The Supreme Court of Canada has established the general legal parameters within which the Tribunal is to interpret these legislative provisions. As far as a general interpretive approach to the Code is concerned, the Supreme Court over 20 years ago in Ontario (Human Rights Commission) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at § 12 [7 C.H.R.R. D/3102 at § 24766] ( per McIntyre J.) stated:
. . . It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment. . . and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary — and it is for the courts to seek out its purpose and give it effect.
115Within this interpretive framework, the Court (in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at 174—75 [10 C.H.R.R. D/5719 at § 41759] ( per McIntyre J.)) has defined discrimination as:
. . . [A] distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
116For present purposes, a disability or handicap (Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665 [37 C.H.R.R. D/271] at § 79 (" Mercier") ( per L'Heureux-Dubé J.))
. . . may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors.
117At least one other Human Rights Tribunal has applied this definition to include bipolar disorder: see Gordy v. Oak Bay Marina Ltd., 2004 BCHRT 225 [reported 51 C.H.R.R. D/68].
118Mercier, supra, at § 84, details the onus that normally rests on the Commission in advancing a complaint of discrimination:
. . . [T]he applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference, in this case the dismissal. . . (2) that the distinction, exclusion or preference is based on a ground enumerated in s. [5], in this case [disability], and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal access to human rights and freedoms.
119Thereafter, the onus switches to the defendant. In the context of an employment policy that was prima facie discriminatory, the Supreme Court, in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 [35 C.H.R.R. D/257] at § 54 (" Meiorin") ( per McLachlin J. (as she then was) has described this onus in the following terms:
. . . An employer may justify the impugned standard by establishing on a balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate the individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
This has to be read in the light of the language of s. 11(2) and s. 17(2) of the Code which establish what the Tribunal should consider in evaluating whether accommodation would impose "undue hardship":
. . . the cost, outside sources of funding, if any, and health and safety requirements, if any.
120The duty to accommodate has both a procedural and substantive content. This is made clear not only in Meiorin, supra, at § 65, but also in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [36 C.H.R.R. D/129] at § 22 and 42—45 (" Grismer") ( per McLachlin J.). In the procedural domain, this calls for individualized assessment of the person affected.
121In this instance, both the complainant and the respondent accepted these as the operating principles. However, as on the earlier motion to dismiss the proceedings, there was one critical difference between the position taken by the Commission and that of the respondent. Mr. Dhir for the Commission contended that, in order to establish a prima facie case of discrimination under the Code and to thereby transfer to the respondent the onus of demonstrating that it could not accommodate the complainant short of undue hardship, all the Commission had to show was that the complainant's disability was a factor in the dismissal decision.
122Not so, according to Mr. Bird. Under Supreme Court of Canada authority (Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657; Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; and Desormeaux v. Ottawa (City), 2004 FC 1778 [reported 52 C.H.R.R. D/348]; rev'd on other grounds 2005 FCA 311 [reported 54 C.H.R.R. D/462]; leave to appeal to the S.C.C. denied, March 23, 2006, 2005 SCCA No. 534 (" Desormeaux"), it was imperative that the Commission identify a comparator group by reference to which the issue whether there had been discrimination in the sense of differential treatment on Code grounds could be evaluated. This, according to Mr. Bird, the Commission had failed to do.
123In any event, Mr. Bird went on to argue that the appropriate comparator group in this case was other probationary employees at ADGA. If the Tribunal accepted that proposition, according to Mr. Bird, it was clear that ADGA would have dismissed any probationary employee working on a project of the kind for which ADGA had hired Mr. Lane if the company had any doubts as to that person's reliability, ability to work under pressure, and, most importantly, where there was a risk that the employee would require significant periods of leave at unpredictable times. According to Mr. Bird, the company would have dismissed any employee in that situation on the basis of inability to perform the essential functions of the position for which ADGA had hired that person, whether or not that incapacity was the result of disability or some other cause. As a consequence, Mr. Bird submitted that the Commission had failed to establish a critical element of the threshold to its case — that, in terms of s. 5, ADGA had treated Mr. Lane differentially from the appropriate comparator group of all other probationary employees.
124With the exception of Desormeaux, supra, all of the caselaw on which Mr. Bird relied for the proposition that it was necessary for the Commission to establish differential treatment by reference to an appropriate comparator involved cases in which the challenge was to a government program by reference to s. 15, the equality protection provision of the Canadian Charter of Rights and Freedoms. As a consequence, it is necessary to consider how this caselaw applies in the case of allegations of discrimination on the basis of disability under the statutory regime that ss. 5, 11 and 17 of the Code establish.
125Insofar as Mr. Bird's submission is that the reason for ADGA dismissing Mr. Lane was his inability to perform the essential requirements of the position and that ADGA would have dismissed any probationary employee on that basis irrespective of disability, I hold that the submission does not hold up. The issue whether an employee is capable of performing the essential duties or requirements of the position is dealt with in s. 17 of the Code. Under s. 17(2), it is provided that the Tribunal shall not make such a finding unless the employer establishes that it could not accommodate the employee "without undue hardship". As a result, it would violate the structure of the legislation for the Tribunal to find that a disabled employee was incapable of performing the essential duties or requirements of his or her position and therefore was not the subject of differential treatment in comparison with all other probationary employees. Section 17 requires that inquiry to be made in the context whether the employer could have accommodated the employee without undue hardship.
126The submissions of Mr. Bird suggest another approach to the comparator issue. ADGA argues that the reason for dismissing Mr. Lane was his inability to perform the essential requirements of the position and that any probationary employee would have been dismissed on that basis irrespective of disability. In essence, ADGA is relying on its apparently neutral workplace standard requiring all employees to be able to work under pressure without unexpected absences. But, on the facts of this case, it appears that this standard had a negative impact on Mr. Lane because, as a person living with a bipolar disorder, he would not have been able to comply with the requirement unless ADGA accommodated his special needs. Viewed in this way through the lens of s.11, the ADGA policy has a negative impact on Mr. Lane, as a probationary employee with a disability, as compared to its impact on non-disabled probationary employees. More specifically, approaching the comparator issue through a constructive discrimination analysis under s.11 of the Code simply takes the analysis to the same point as under s.17, that is, to the duty to accommodate. In other words, whether I approach this case under s.11, as is indirectly suggested by Mr. Bird's submission, or under s.17, as is suggested by the Commission, the result is the same. ADGA is under a positive duty to accommodate, to the point of undue hardship, the needs of Mr. Lane as a person living with bipolar disorder.
127Even beyond this, the extent to which it is necessary to establish a comparator group for the purposes of establishing discrimination remains unclear outside the setting of challenges to government programs under s. 15 of the Canadian Charter of Rights and Freedoms. Thus, for example in Meiorin, supra, a human rights tribunal and not a Charter case, there is no discussion of the appropriate comparator group for the purposes of determining whether there was discrimination against a female firefighter by the application of a standard that applied equally to men and women.
128More recently, in Ottawa (City) v. Ottawa-Carleton Public Employees' Union, Local 503, 2007 CanLII 5524 (ON SCDC), [2007] O.J. No. 735 (QL) (Div.Ct.), the Court was very ambivalent about the role of comparators in a case involving termination of a disabled person for excessive absences from work. Here, the argument (at § 62) was again made that:
. . . the Board of Arbitration can only make a finding of discrimination if there is evidence that the complainant was treated differently than other employees in a particular comparator group, because of her disability. Without a proper evaluation of the treatment of a grievor in relation to other employees in a similar situation, there can be no finding of discrimination, "prima facie" or otherwise.
129While the Divisional Court did not reject that argument explicitly, the Court recorded (at § 63) that counsel for the [sic] was arguing that consideration of a comparator group in this case was quite unnecessary. The Court then went on to hold (at § 64 and 67):
Once a disability that had generated absences was established under the Code, the reliance on those absences by the employer. . . made the prima facie case of discrimination plain and obvious.
Furthermore, numerous cases have found that absences associated with disabilities should not be permitted to negatively affect a grievor, unless they are of sufficient number so as to support a claim by the employer of undue hardship.
130In between these two extracts, the Court (at § 65) referred to the judgment of the Federal Court of Appeal in Desormeaux, supra, at § 16, and emphasized the following sentence:
. . . Whichever comparator group was chosen, the conclusion that there was differentiation established in the treatment of the complainant would not be affected.
131In this light, the judgment of Heneghan J. of the Federal Court in Desormeaux, supra, a human rights code case, must be treated with some degree of caution particularly given that the Federal Court of Appeal reversed her decision on the merits and was quite ambivalent on the issue of comparators.
132However, in the alternative, if the correct interpretation is that it is legally necessary for the Tribunal to select a comparator, as argued by ADGA, for the purposes of determining whether Mr. Lane was treated differentially, I would identify the comparator as all probationary employees who could possibly need to take unpredictable periods of sick leave and even STD and LTD. How ADGA would treat such employees is peculiarly within the knowledge of ADGA. Certainly, the primary onus of establishing differential treatment as a component of discrimination rests with the Commission. Nonetheless, I accept that, with respect to questions such as this, once the Commission has established that disability was a factor in the decision to dismiss, it is incumbent on the respondent to lead evidence to the effect that this is the way in which it would have dealt with any probationary employee about which it had doubts on the score of reliability.
133In this case, while Mr. Sincennes testified that the company had dismissed four or five probationary employees during the previous 12 months, he did not identify the reasons for these terminations. Indeed, it may be that, as a matter of precedent within the ADGA workplace, this is a totally theoretical question and that the dismissal of Mr. Lane was a one-off or unique occurrence in terms of the chosen comparator group. Furthermore, ADGA certainly did not produce any workplace policy to this effect. This too raises questions of the relevance of the identification of a comparator group in Code cases based on specific, individualized situations as opposed to s. 15 Charter challenges to particular government policies.
134In any event, I find that the Commission has met any onus that falls upon it under s. 5 to establish differential treatment resulting in discrimination and that, thereafter, the burden rests with the respondent, either under s. 17(2) or s. 11(2), to establish that it could not accommodate Mr. Lane's disability short of undue hardship. In my judgment, this analysis is consistent with not only the general thrust of the Code but also a liberal interpretation of a quasi-constitutional statute that has as its primary goal the protection of human rights in this province and vindication of the rights of its citizens not to be subject to discrimination on the basis of the Code's enumerated grounds. The legitimate interests of employers can be evaluated in the context of s. 17(2) and its recognition that the duty to accommodate stops at the point of undue hardship.
Application of the Law to the Facts
135As on the motion to dismiss the complaint, counsel for ADGA maintained that the Commission had failed to establish that Mr. Lane had Bipolar I Disorder. I rejected that argument in the context of the motion to strike out the proceedings and do so again on the merits of the complaint. For the reasons identified earlier, the testimony of Drs. Hall and Arboleda-Florez was sufficient to establish on a balance of probabilities that Mr. Lane suffered from Bipolar I Disorder. In any event, what was abundantly clear from the testimony was that Mr. Lane suffered from a mental disability, that he identified it as such to Ms. Corbett, and she at least consciously acted on the assumption that he had a species of bipolar disorder. She also conveyed that information to Mr. Germain.
136While Mr. Germain testified that Mr. Lane's medical condition was completely immaterial to his decision to dismiss Mr. Lane, the evidence establishes that he was acting on advice from Ms. Corbett as to Mr. Lane's symptoms and prognosis as well as his own observations and other reports of behaviour that are objective indicators of someone who likely has a bipolar disorder. As a consequence of this and assumptions about the future actions and reliability of someone exhibiting these symptoms, Mr. Germain made the decision to dismiss Mr. Lane. He was therefore dismissed because of his disability and perceptions as to the impact of that disability on workplace performance.
137In this context, I reject the argument that ADGA had the right to dismiss Mr. Lane once it discovered that he had lied about his bipolar condition in the course of the hiring process or, at the very least, had failed to reveal a factor that was critical to any determination that he was qualified to perform the job for which he was being considered. The expert evidence of Philip Upshall established why it was that those with bipolar disorder are extremely reluctant to reveal their disorder to prospective employers. In the particular case, this was manifest in the testimony of both Mr. Lane and Ms. Lane as they revealed the anguish that Mr. Lane had gone through in deciding if and when to reveal his condition to his employer both at ADGA and earlier at Siemens and Linmor. The perception, supported by the testimony of Mr. Upshall, was that to reveal this information at a job interview would trigger in most employers a stereotypical reaction to someone with a mental illness leading to a decision not to hire. In those circumstances, I am not prepared to find that ADGA could rely on Mr. Lane's lying as an independent basis for dismissal and thereby avoid having to account for its treatment of him as someone exhibiting the symptoms of bipolar disorder in the workplace.
138Similarly, I reject the contention that in effect Mr. Lane dismissed himself by telling Ms. Corbett at one of their meetings that he could not take the pressure of the job and admitting to Mr. Germain at the termination interview that he was not qualified for the position. Mr. Lane's account of the interview with Ms. Corbett was that the discussion of the problems of pressure took place in the context of pressures created by the behaviour towards him of other employees and management. Given that he had just accepted the position a few days earlier knowing that it was a job that could be highly pressured, I do not find it plausible that Mr. Lane would so soon thereafter, and without any experience of the kind of pressure that the job could generate, state that he could not handle the pressure of the position. At the very least, such a statement should have given Ms. Corbett reason to probe further as to what precisely Mr. Lane meant. Similarly, I do not accept that Mr. Lane told Mr. Germain that he was not able to perform the essential duties of the position. In my assessment, Mr. Germain too readily interpreted Mr. Lane's passivity at the termination meeting as an admission of inability to perform the essential aspects of the job. However, I find that Mr. Lane simply did not say this.
139In fact, the evidence established that, subject to some reservations as to his experience as a team leader, Mr. Lane was fully capable of performing the essential duties of the position to which he was hired, at least when he was not heading towards or at one of the two ends of the spectrum of bipolar disorder: deep depression or full-blown mania. Given that ADGA dismissed Mr. Lane on the basis of his bipolar disorder or its perceptions as to its workplace impact, in terms of the structure of s.17 of the Code, the question then becomes whether ADGA has established that Mr. Lane's "needs. . . cannot be accommodated without undue hardship". As noted already, under the Ontario Code, the relevant factors in that determination are "cost, outside sources of funding, if any, and health and safety requirement, if any".
140For the purposes of any consideration of "undue hardship", the initial focus is on the procedures that the employer had in place and the steps that it in fact took to assess whether it could accommodate the employee. First of all, it was clear from the evidence that ADGA did not have in place any workplace policies creating processes for and standards of assessment for persons with disabilities. It is also clear from the testimony of those members of management who were involved or purportedly involved in the decision to terminate, that they had no training in dealing with workplace accommodation issues, including issues arising out of an employee's mental illness.
141Mr. Lane, in revealing to Ms. Corbett that he had bipolar disorder, specifically asked for and suggested ways of accommodation. Ms. Corbett also intuitively knew that the company should not act without some understanding of bipolar disorder. She consulted the Human Rights Commission informally.2 Over the weekend, she went to the Mayo Clinic website to find out more. She also tried to get Mr. Germain to consider that information. However, Mr. Germain testified that, as far as he was concerned, issues of this kind were beyond his expertise and he did not need to pay attention to them except perhaps insofar as someone else with expertise identified them as a relevant factor (and Ms. Corbett was not that person). While Mr. Sincennes did not state this so bluntly, it was apparent that he too shared Mr. Germain's sentiments. The problem was that, though each of them testified to having contact with Ms. Burgess, the Director of Human Resources on the morning in question, there was no indication in their testimony that they either asked for, or that Ms. Burgess volunteered, information about workplace disability issues, including policies and processes for accommodating disabilities. The one person in the organization that might have been able to help was apparently mute, either because she too was not aware, or because she was reluctant to volunteer the information.
142Such a state of affairs was scarcely calculated to produce an informed and otherwise appropriate assessment whether ADGA could accommodate Mr. Lane's bipolar disorder without "undue hardship". Indeed, this is abundantly borne out by what happened. The discussion between Mr. Germain and Ms. Corbett about Mr. Lane's situation took place some time between 10:00 and 11:00 a.m. Three hours later, at 1:00 p.m., Mr. Germain dismissed Mr. Lane. In the meantime, both Mr. Sincennes and Mr. Germain claimed that they requested Ms. Burgess to perform a job search to see whether there was any other work at ADGA for someone with Mr. Lane's qualifications. For reasons expressed earlier, I do not accept Mr. Germain's testimony that he made that request of Ms. Burgess, and Mr. Sincennes testified that he played no other role in the decision to terminate Mr. Lane, to the extent that he was not even in communication with Mr. Germain that day about the matter. However, even assuming that Ms. Burgess did report back that there was no other work available at that time for Mr. Lane, this was certainly not enough to meet the company's procedural or assessment obligations imposed by the duty to accommodate.
143It is, of course, obvious that ADGA, and Ms. Corbett and Mr. Germain in particular, had reason to be concerned about Mr. Lane's behaviour in the workplace during the short time he had been with the company. Lack of attention to work, excessive socializing with co-workers, an overly familiar email message to Mr. Germain, and manifestations of paranoia are all reasons for both concern and intervention in the workplace. This is particularly true in the case of a work environment that has significant security dimensions and where a premium is placed upon reliability in terms of both attention to the task at hand and the quality of the ultimate product. Both Ms. Corbett and Mr. Germain were also justified in having worries about the impact on this aspect of ADGA's work of Mr. Lane possibly needing lengthy periods of sick leave.
144However, to acknowledge the reality and legitimacy of these concerns does not amount to acceptance of the proposition that ADGA could not accommodate Mr. Lane without undue hardship. It was necessary to evaluate the concerns on the basis of an appropriate assessment of Mr. Lane's situation and not just the information that Ms. Corbett and Mr. Germain had at that point. The procedural dimensions of the duty to accommodate required those responsible to engage in a fuller exploration of the nature of bipolar disorder, Mr. Lane's own situation as a victim of bipolar disorder, and to form a better informed prognosis of the likely impact of his condition in the workplace. Given their ignorance of the legal dimensions of the issue, consultation with a lawyer was also indicated and, given the security concerns, so too was contact with appropriate personnel in DND. They needed to consider the extent to which careful managing of Mr. Lane's condition as well as the possible role of ADGA as employer in this process of management could avoid problems. For these purposes, simply asserting (I suspect on an after-the-event basis) that Mr. Lane's suggestion that Ms. Corbett could monitor him was inconsistent with the demands on Ms. Corbett's time scarcely amounts to an appropriate evaluation of the prospects of effective workplace monitoring.
145Instead, what happened? There was a rush to judgment. Indeed, Mr. Germain had already taken the decision by the end of his meeting with Ms. Corbett at approximately 11:00 a.m. that morning. Thereafter, any reconsideration would have depended on Mr. Lane taking the initiative at the 1:00 p.m. meeting and he was in no condition to do that nor should it be expected that it was now his responsibility. He had fulfilled his obligations by identifying the nature of his illness and asking (with suggestions) for accommodation. From that point on, the onus rested with ADGA.
146It is, of course, commonplace and an appropriate matter for official notice, that conventional wisdom often dictates the immediate removal of an unwanted employee from the workplace. Decisive action will serve the interests of the employer and to a lesser extent the employee, more than dallying. This is particularly the case in workplaces where there are security dimensions, as at ADGA. Nonetheless, that cannot be used as an excuse for failure to meet the procedural dimensions of the duty to accommodate. In this instance, I find that there was no impediment to those responsible taking steps to ensure Mr. Lane went home immediately with a view to seeking medical intervention and no impediment to postponing any decision on his future with ADGA until such time as those responsible could fully evaluate whether ADGA could accommodate Mr. Lane without "undue hardship". Instead, Mr. Lane was dismissed immediately and told to leave the premises. Indeed, no one bothered to inform his wife of that fact, despite all the indications that had earlier convinced Ms. Corbett, on the basis of what Mr Lane had told her and what she had learned on the Mayo Clinic website, that Mr. Lane was in a manic or pre-manic state.
147My finding therefore is that ADGA failed to fulfill the procedural dimensions of its obligation to make significant efforts to accommodate Mr. Lane. Those responsible at ADGA did not conduct an appropriate assessment of the situation to enable them to reach an informed conclusion that they could not accommodate Mr. Lane's disability without "undue hardship".
148This does, however, raise the question whether a failure to fulfill the procedural dimensions of the duty to accommodate leads automatically to the conclusion that ADGA therefore discriminated against Mr. Lane on the basis of disability as proscribed by s. 5 of the Code. Is it open to ADGA to provide (as it attempted to do at the hearing) after-the-event justifications for its decision and thereby establish that, if it had conducted a proper assessment at the time, it would have legitimately have reached the conclusion that it could not have accommodated Mr. Lane short of undue hardship?
149In Ontario, Human Rights Boards of Inquiry have split on this issue. Some have held that failure to meet the procedural obligations imposed by the duty to accommodate gives rise to an independent, free-standing violation of s. 5 that cannot be overcome by establishing that a full assessment would have provided justification for the actions of the respondent: see Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.) and Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd.Inq.). This is also the position proposed by David Lepofsky in "The Duty to Accommodate: A Purposive Approach" (1992) 1 Can. Lab. L,J. 1, at pp. 13—15. In contrast, the Boards of Inquiry in Marzano v. Nathar Ltd. (1992), 1992 CanLII 14229 (ON HRT), 18 C.H.R.R. D/248 (Ont. Bd.Inq.) and Jeppesen v. Ancaster (Town) (No. 2) (2001), 2001 CanLII 26209 (ON HRT), 39 C.H.R.R. D/177 (Ont. Bd.Inq.) held that the procedural aspects of the duty to accommodate did not give rise to stand-alone violations of the Code and that the respondent had the right to try to establish the correctness of its decision not to accommodate by reference to ex post facto evidence.
150While this dilemma is not resolved definitely in either Meiorin, supra, or the subsequent judgment of the Supreme Court in Grismer, supra, nonetheless, Grismer in particular does assert (at § 42—44) the importance of individual assessment as part of the duty to accommodate at least in the context of rejecting the legitimacy of a blanket policy. I accept this approach and hold that the failure to meet the procedural dimensions of the duty to accommodate is a form of discrimination. It denies the affected person the benefit of what the law requires: a recognition of the obligation not to discriminate and to act in such a way as to ensure that discrimination does not take place. That does not mean that an employer is necessarily precluded from adducing ex post facto justifications of a failure to accommodate based on what a proper assessment of the situation at the time would have revealed. However, when the failure to conduct an appropriate assessment has its own adverse consequences, there exists discrimination for which the complainant has an independent right to a remedy.
151In this instance, ADGA acted precipitately in dismissing Mr. Lane without conducting an appropriate assessment as part of its obligation to accommodate. This precipitate action had adverse consequences, whether or not it could be justified by a surrogate form of assessment after the event. Mr. Lane very rapidly went into a state of full-blown mania. Both Drs. Hall and Arboleda-Florez testified that this was a foreseeable consequence of a person with Bipolar I Disorder losing his job, particularly when that person is already in a pre-manic state. Indeed, in this instance, not only did Mr. Lane lose his job but also he did so after identifying his condition and asking for accommodation should it prove necessary. ADGA's response was to dismiss Mr. Lane almost immediately, rejecting out of hand and without any form of proper evaluation, any possibility of responding to Mr. Lane's situation and his requests without undue hardship. This was itself a species of discrimination and it had serious consequences for Mr. Lane's health.
152Even assuming that ADGA could rely on ex post facto justifications for its actions and to avoid liability, I find that it did not do so. Given the high standard of proof that rests upon an employer who seeks to establish undue hardship, ADGA was content to rely upon the understandably self-serving testimony of Mr. Sincennes and Mr. Germain as sufficient to establish an environment in which it would have been put to undue hardship to accommodate Mr. Lane. ADGA did not provide any independent or expert testimony as to the realities of a company in its position trying to accommodate a person with Bipolar I Disorder. In particular, given the testimony from Drs. Hall and Arboleda-Florez with respect to workplace strategies for managing the disorder and avoiding prolonged absences, it was simply inadequate to assert that Ms. Corbett was too busy for a monitoring role, and inadequate to ask the Tribunal to infer from that that no other form of monitoring with a view to early intervention was feasible. In short, the ex post facto justification for the failure to accommodate and the existence of undue hardship did not satisfy the onus of proof that the caselaw placed on the respondent.
REMEDY
General and Mental Distress Damages
153At the commencement of the hearing, Mr. Dhir intimated that he was seeking $35,000 damages for violation of Mr. Lane's intrinsic right to be free from discrimination. Prior to closing submissions in January 2006, he informed the Tribunal and the respondent that he was amending his claim to increase that amount to $60,000. Counsel for the respondent objected vehemently to this course of action, not so much on the basis of such amendments being impermissible as by reference to considerations of natural justice and litigation fairness. I had considerable sympathy for his position but do not feel impelled to rule on that question as my finding is that Mr. Lane is not entitled to general damages above $35,000.
154The authorities list a range of considerations that the Tribunal should take into account in fixing general damages for the value of the inherent right to be free from discrimination. It is clearly not a mathematical exercise. The following statement by the then Chair of the Tribunal, M.D. Garfield, in Ketola v. Value Propane Inc., [2002] O.H.R.B.I.D. No. 14 (QL) [44 C.H.R.R. D/37] at § 4, is valuable in both identifying the relevant criteria as well as explaining the relationship between an award under s. 41 for violation of the complainant's inherent right to be free from discrimination and damages for mental anguish:
In making such an award, the Board considers the following factors: the humiliation; the hurt feelings; the loss of dignity and self-respect of the complainant; the vulnerability of the complainant; and the seriousness, frequency, and duration of the offensive treatment. The emotional stress suffered by the complainant is only properly considered when making an award for the mental anguish component of the damages.
155Given the hopes that Mr. Lane had built up about the prospects of returning to work and his excitement about the kind of work and environment at ADGA, the summary way in which he was dealt with amounted to a huge affront to his sense of self-worth. This was exacerbated by the fact that the principal decision-maker and his advisors had little or no awareness of the difficulties faced by those with disabilities or of their own legal responsibilities under the Code. Mr. Lane was also particularly vulnerable given his previous work history at Siemens and Linmor and the fact that he was recovering from a quite recent hypomanic episode. His encounters with Ms. Corbett should also have given her at least some indication of the extent of his vulnerability. While this was a case of essentially one incident, the termination, it was not only precipitate and unaccompanied by any assessment of Mr. Lane's condition but also callous to the extent of its consequences in the sense that nothing was done on the day to ensure that Mr. Lane in his pre-manic condition reached his home safely and sought medical attention. The only real excuse for the conduct of Mr. Germain and Ms. Corbett is perhaps the fact that it all happened so suddenly and in a context where they felt aggrieved by Mr. Lane's lack of frankness about his condition at his job interview. However, I am not inclined to discount the award of general damages significantly for that. This was a serious violation of Mr. Lane's right to be free from discrimination by an otherwise sophisticated employer that had every reason to know better.
156The dismissive attitude that the principals at ADGA exhibited towards Mr. Lane (as reflected once again in the precipitate way in which they dealt with him and lack of regard for his condition in the immediate aftermath of his termination) also justify a finding of recklessness, as is necessary to support an award of damages for mental anguish under s. 41(1)(b) of the Code.
157In the circumstances, I assess the complainant's general damages at the amount claimed initially by the Commission: $35,000; and, given the profound effect that the actions of ADGA had on his mental state, I would add the full amount permitted by s. 41(1)(b) of the Code for mental anguish: $10,000.
Special Damages
158As a consequence of his dismissal, Mr. Lane was hospitalized almost immediately, and continued to suffer the effects of that at least up until the point at which he and the Commission asserted a claim for lost wages. At various points during the period between December 2001 and the beginning of August 2002, Mr. Lane attempted to secure alternative employment. He was unsuccessful and, while the respondent tried to impugn the extent of these efforts at mitigation, the respondent did not meet the onus of establishing a lack of reasonable efforts to mitigate. As detailed in the factual findings, Mr. Lane in fact developed a range of strategies for finding employment in what was apparently a very difficult market for those working in IT.
159The respondent submitted that any claim for lost wages should be calculated by reference to the common law concept of reasonable notice period and the special position within that concept of probationary employees. I have rejected that submission for the reasons advanced by Mr. Dhir. As the Divisional Court recognized in Smith v. Ontario Human Rights Commission (2005), 2005 CanLII 2811 (ON SCDC), 195 O.A.C. 323 [52 C.H.R.R. D/89], the measure of compensation for lost wages under s. 41(1)(b) of the Code depends on an evaluation of where the complainant would have been had the discriminatory acts not occurred. In this calculus, the concept of lost wages during a period of reasonable notice has no role to play.
160To the extent that the primary finding of discrimination in this case is that ADGA failed to properly assess Mr. Lane's situation but instead dismissed him summarily, the basis for any claim for lost wages has to be the impact of that decision on Mr. Lane's ability to earn a living. In fact, for the next 39 weeks, Mr. Lane did not earn a living and the only question is whether ADGA should be responsible for the sum of $40,511.25 (this being the uncontested amount that Mr. Lane claims that he would have earned at ADGA during this period).
161According to Dr. Hall, Mr. Lane had recovered sufficiently by February 2002 to be able to go back to work if he had a job to go to. Indeed, Mr. Lane had been trying to secure replacement employment as early as December 2001. Dr. Hall further testified that, over time, Mr. Lane's negative reactions to the actions of ADGA diminished and his depressive state became more attributable to his financial and marital worries. In July, he also revealed to Dr. Hall that he had been self-medicating by the use of marijuana. By this point, as evidenced by his completion of the form certifying to the Canada Pension Plan that Mr. Lane was permanently disabled, Dr. Hall had growing concerns that Mr. Lane's disability had progressed to the point that he would never be able to return to work. Do these factors provide a basis for discounting Mr. Lane's claim for loss of salary on the basis that the impact of ADGA's actions was gradually spent?
162On balance, it is my judgment that in the search for what is a reasonable assessment of the consequences of ADGA's actions, it is appropriate to segment the period between October 2001 and the beginning of August 2002 and restrict the claim for loss of wages to the period between termination and the middle of June 2002. Some of the problems that Mr. Lane experienced up until the beginning of August with both his health and obtaining other work were at least collaterally the result of ADGA's actions. Nonetheless, other factors had intruded for which ADGA should not bear full responsibility. While it is not a precise mathematical computation of the impact of those other factors, I hold that the special damages for loss of wages should be limited to 33 of the 39 weeks of the eventual claim under this head, or $34,278.75.
Interest
163There is no reason to deny the complainant pre-judgment and post-judgment interest on the damages for lost wages and mental distress as well as the award of aggravated and punitive damages. All will run from the date of the complaint in accordance with the details of the order that follows.
Public Interest Remedies
164This was an instance where the respondent's lack of awareness of its responsibilities under the Code as an employer was particularly egregious. There were no workplace policies in place on dealing with persons with disabilities. Moreover, senior management were singularly oblivious to those obligations. In addition, there are serious doubts in my mind as to whether these were matters that were part of the operational imperatives of the Human Resources Department, at that time under the direction of Ms. Burgess. As a consequence, the Commission was justified in seeking a broad range of public interest remedies for the purposes of ensuring inculcation in the values of the Code and aimed at avoiding the discrimination that formed the basis of this complaint. Those public interest remedies are set out in my order, which follows.
ORDER
165Having found that ADGA violated Mr. Lane's rights to equal treatment and to be free from discrimination on the basis of disability by reference to s. 5 of the Code, the Tribunal orders:
(1) The respondent shall pay damages to the complainant for violation of his inherent right to be free from discrimination in the sum of $35,000.
(2) The respondent shall pay damages to the complainant for the reckless infliction of mental anguish in the sum of $10,000.
(3) The respondent shall pay the complainant special damages of $34,278.75 for the loss of salary that resulted from the violation of his rights.
(4) The respondent shall pay the complainant pre-judgment interest on all the above sums from the date on which the complainant filed his complaint with the Commission, the interest to be calculated by reference to the rates set for each of the relevant quarters.
(5) The respondent shall pay the complainant post-judgment interest on any accumulated principal and pre-judgment interest from the date that is 30 days after the date of this order, at the rate set for the quarter in which the accumulated principal and interest remains outstanding.
(6) The respondent shall retain at its own expense a qualified consultant (approved by the Commission) to provide training to all employees, supervisors, and managers on the obligation of employers under the Code and, in particular, the accommodation of persons with disabilities with a special focus on mental health issues.
(7) The respondent shall within three months of this order establish a comprehensive written anti-discrimination policy that conforms with the requirements of the Code, and that addresses discrimination on the ground of disability.
(8) The respondent shall post the policy ordered under (7) in plain and obvious locations at all places where the respondent does business and will include the policy in the orientation materials that it provides to new employees.
(9) The respondent shall also provide copies of the policy ordered under (7) as part of any request for proposal.
(10) The Tribunal will remain seized of this matter for 12 months from the date (whichever is later) of this order or any further order it makes to deal with issues that may arise over the implementation of this and any subsequent order.
NOTES
Footnotes
- "Bipolar I Disorder is characterized by one or more Manic or Mixed Episodes, usually accompanied by Major Depressive Episodes": Diagnostic and Statistical Manual of Mental Disorders (4th ed. — Text Revision) at 345. In contrast, "Bipolar II Disorder is characterized by one or more Major Depressive Episodes accompanied by at least one Hypomanic Episode". Counsel for ADGA put in issue this classification arguing that there was no evidence from a qualified specialist on this matter. He argued that Dr. Hall, a family doctor, was not qualified to make this diagnosis and that Dr. O'Brien who had initially diagnosed Mr. Lane as bipolar had not testified. I reject that argument. Dr. Hall has considerable experience and proceeded to treat Mr. Lane on this basis. Dr. Arboleda-Florez, who testified as an expert in psychiatry, stated that it was obvious from the medical records that he had reviewed, and, indeed, the evidence as a whole speaks for itself on this point.
- Mr. Bird made the argument that this interchange gave rise to the defence of officially-induced error or something akin to it. This contention was based on Ms. Corbett's testimony to the effect that the Commission intake officer told her that ADGA could dismiss Mr. Lane summarily as a probationary employee who had lied about the relevant aspect of his health during the hiring process. I rejected this argument. Even assuming that the defence of officially induced error is available in proceedings before administrative tribunals in general and human rights tribunals in particular, this argument fails on at least two components of the Supreme Court of Canada test for the defence of officially induced error in the case of criminal and regulatory offences (Lévis (City) v. Tétrault, 2006 SCC 12, [2006] 1 S.C.R. 420 at § 26, relying on the test proposed by Lamer C.J. in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55 at § 28—35). First, the advice obtained did not come from an appropriate official. An informal telephone conversation with an intake officer at a general level does not suffice. Even more significantly, the decision to terminate Mr. Lane was not based on any advice that the intake officer conveyed to Ms. Corbett. Mr. Germain took the decision and, at no point did he attempt to justify his actions by reference to the advice. Indeed, it is not even clear that he knew about it at the point of termination.