Ontario Human Rights Commission and Anne Jackson v. M. Butler Insurance Brokers Ltd. and Gary Butler, 2007 HRTO 5

Human Rights Tribunal of Ontario

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Anne Jackson

Complainant

-and-

M. Butler Insurance Brokers Ltd. and Gary Butler

Respondents

DECISION

Adjudicator: Mary Ross Hendriks

Date: January 31, 2007

Citation: 2007 HRTO 5

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Kikee Malik, Counsel ) Allyssa Case, Counsel

Anne Jackson ) Complainant ) On her own behalf

M. Butler Insurance Brokers Ltd. and ) Gary Butler, on behalf Gary Butler ) of M. Butler Insurance Brokers Ltd. ) and on his own behalf

INTRODUCTION

1The Complaint before the Human Rights Tribunal of Ontario (the “Tribunal”), dated June 6, 2003, involves a woman with a form of ovarian cancer who claims that her right to equal treatment with respect to employment without discrimination on the basis of disability has been violated, contrary to sections 5(1) and 9 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The Complaint was referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) on February 11, 2005 for a hearing.

2The hearing on the merits took place in Toronto on January 24, 2006, February 1 and 3, 2006, April 18, 20 and 21, 2006.

3All parties were given the choice of making their closing submissions orally or in writing, and they unanimously chose to file them in writing. The deadlines for these written closing submissions were as follows: June 9, 2006 for the Commission and Complainant; June 23, 2006 for the Respondents; and a Reply, if any, no later than June 30, 2006.

PRELIMINARY MATTERS

4There were a number of preliminary matters in this hearing.

5First, Ms. Kilty was permitted to testify on a speaker telephone, because of the practicalities of her being located in Niagara Falls, in accordance with section 9(1.2) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 (the “SPPA”). Since the hearing is open to the public, she was permitted to have Ina Bynkoski, her supervisor, sit in the boardroom of their Service Canada/Human Resources Development Canada office in Niagara Falls with her during her testimony. However, she was specifically directed not to discuss her evidence with her colleague or anyone else during the hearing, and she said that she understood and agreed. She identified her Affidavit as her own (Exhibit 25), and she was permitted to use it as an aide mémoire during her testimony.

6Second, Dr. Laurie Elit’s curriculum vitae’s was reviewed in conjunction with the request by Commission counsel that she be qualified as an expert witness (Exhibit 5, Tab 2). She is a Fellow of the Royal College of Surgeons in Canada, and a Member or Fellow of several well-respected medical organizations in the field of Obstetrics, Gynecology, and Gynecologic Oncology. Dr. Elit is also an Associate Professor in that same field at McMaster University, and has won academic awards for her Surgical Teaching. She has published 67 peer-reviewed articles in this field, mainly dealing with ovarian or cervical cancer detection and treatment. Dr. Elit’s evidence was relevant and necessary, and she was properly qualified as an expert.

ISSUE

7The Tribunal considered if the Complainant’s right to equal treatment with respect to employment without discrimination based on the ground of disability was infringed by the Respondents, contrary to sections 5(1) and 9 of the Code?

DECISION

8The Tribunal finds that M. Butler Insurance Brokers Ltd. and Gary Butler violated Ms. Jackson’s right to equal treatment with respect to employment without discrimination based on the ground of disability contrary to the Code. The Tribunal finds the Respondents jointly and severally liable to Ms. Jackson.

LIST OF WITNESSES

9The Tribunal heard evidence from nine witnesses, being the Complainant, her doctors, Drs. Hill and Elit, who testified on her behalf, Janet Kilty, who works for EI, the Personal Respondent, and the witnesses for the Respondents, as follows:

(1) Anne Jackson, Complainant

(2) Dr. Joanna Hill, witness

(3) Dr. Lorraine Elit, witness

(4) Janet Kilty, witness

(5) Eva Duncan, witness

(6) Gary R. Butler, Personal Respondent

(7) Holly Aimesbury, witness

(8) Joel McRae, witness

(9) Marguerite Fisher, witness

(10) John M. Butler, witness

SUMMARY OF EVIDENCE

10The Tribunal received viva voce evidence from 10 witnesses, and 42 documents were entered as exhibits. Only the key evidence has been summarized below.

The Parties

11The Complainant, Ms. Anne Jackson, is a 41-year old woman, who resides in Niagara Falls. She has a high school diploma, and certificates in Accounting and Dental Office Administration from a local college. Ms. Jackson is a single mother, who has the sole responsibility for supporting herself and her young daughter. She began at the Corporate Respondent on August 30, 2001 as a receptionist. She was terminated on December 2, 2002.

12Mr. Gary Butler is the Personal Respondent. He is 61 years old. He began working in the general insurance business in 1967, and received his insurance agent’s licence in 1968. He and his father began M. Butler Insurance Brokers Ltd. (“Butler Insurance”) in 1972. He has been the President of Butler Insurance, since his father passed away in 1998.

13Butler Insurance is the Corporate Respondent. Mr. Butler testified that it is a small to mid-sized insurance brokerage firm, which manages approximately 4100 client files and 6800 insurance policies. At the relevant time, the Corporate Respondent had the following individuals filling key positions on staff:

• Gary Butler, President, on staff since 1972
• John Butler, sales, son of Gary Butler, on staff since 1995
• Joel McCrae, sales, on staff since 1974, whom Gary Butler describes as the “unofficial office manager”
• John Wilson, sales, life and out-of-town insurance
• Mahri Carr, RIBO-licensed Customer Service Representative (“CSR”)
• Holly Aimesbury, RIBO-licensed CSR
• Margerite Fisher, on staff since 1982, part-time since 2002
• Eva Duncan, data entry clerk
• Anne Jackson, Receptionist

The Nature of Ms. Jackson’s Employment at Butler Insurance

14Ms. Jackson approached her own insurance broker, Joel McCrae, as a result of seeing a different job opening at Butler Insurance on a job bank website. She was hired by Gary Butler as the receptionist, and began full-time permanent employment on August 30, 2001. She replaced Mr. Butler’s daughter, Wendy Butler, who was returning to school.

15Ms. Jackson testified, and Exhibits 19 – Pay stub and 40 – Payroll Record, confirm, that she worked full-time, earning $10.00 per hour. Her gross weekly pay was $355.00 and her net pay was $281.99. Her hours of work at Butler Insurance were 9 a.m. to 5 p.m. from Monday to Friday, plus every third Saturday morning.

16In addition to answering the phones and dealing with couriers, Ms. Jackson accepted payments from clients, by either cash or cheque, and recorded this information electronically. She also made up bank deposit slips.

17Ms. Jackson testified that she enjoyed her position and it suited her childcare needs. She testified that she wanted to obtain her RIBO licence, as well, as had several of her co-workers. As she put it, “I was hoping it would be a permanent full-time job because my daughter was in school full-time and I also wanted to be working full-time.”

Her Performance, Dress and Demeanour

18During the hearing, there was a serious dispute between Ms. Jackson and the Respondents about her performance, dress and demeanour with clients.

19Ms. Jackson testified that she was never given a performance review. In her view, she said that she felt satisfied with her own performance as their receptionist. She wanted to pursue the RIBO licence, as had Ms. Aimesbury, Ms. Carr and Ms. Duncan, in part, so that she could “hand out the cheques” on Saturdays. She described her own performance as follows:

I felt that I was doing my job to the best of my ability. I was always trying to learn more. I was interested in the RIBO position. I didn’t have the licence. It hindered me on Saturdays, because I didn’t have the qualification.

20Eva Duncan testified that she worked at Butler Insurance from July 2001 until November 1, 2002, when she resigned. She was a CSR, primarily performing a data entry function, and she also obtained her RIBO licence while working there.

21Ms. Duncan covered the reception desk if Ms. Jackson was absent. Their desks were close together, and they became friendly.

22Ms. Duncan said that Ms. Jackson “dressed well” and did not have any performance issues during the fifteen months they worked together. She said that the couriers liked Ms. Jackson, she never saw a scene with any of the insured clients, that her telephone manner was “friendly and efficient,” and she described her demeanour as “straightforward” and “very accommodating.”

23In contrast, Mr. Butler testified that Ms. Jackson had been abrupt with customers, that there had been some complaints, and that he had advised her to “lighten up.” He also asked her to be “more friendly”. Ms. Jackson denied being told to lighten up by Mr. Butler. Over the Commission’s objection, Mr. McRae testified that he had received complaints about her “handling of clients, mannerism and attitude”, which he raised with Mr. Butler, but stated he did not raise directly with Ms. Jackson. He also testified that her attire was “just not appropriate” without explaining what he meant by that comment. He never told her that her attire was inappropriate, nor could he recall if he even mentioned it to Mr. Butler. Mr. McRae said there is no dress code in the office. John Butler also confirmed that there had been some complaints from clients. Ms. Aimesbury also testified that there had been “several clients” who said that Ms. Jackson was “curt and rude”, but she could not recall their names. She had no recollection of Ms. Jackson’s appearance. Ms. Carr said that she had received complaints from customers about Ms. Jackson’s attitude, but did not pass them on to management.

24Ms. Fisher and Ms. Aimesbury both testified that Ms. Jackson was frequently absent from work. Ms. Aimesbury said, “Anne was away a lot,” adding, “she was sick, her daughter was sick, her car was broken.” Ms. Aimesbury then added, “absenteeism was a big problem, yes.” However, Ms. Fisher noted that Ms. Jackson “wasn’t feeling well and was going to see a doctor,” and that she was going to have “surgery due to a cystic ovary, that’s as far as I knew.”

25As Gary Butler summed it up in the Respondents’ final written submission:

Gary Butler gave evidence that it was his intention to dismiss Ms. Jackson and replace her with his daughter Wendy Butler as soon as Wendy was available during her summer break from college hopefully around the end of April, 2002.

Joel McRae and John Butler both testified of problems with Ms. Jackson’s attitude being relayed to them by their clients…

26While the Tribunal accepts that this was his intention to re-hire his daughter as his receptionist, there is no evidence that Ms. Jackson received any negative performance reviews, that the request to be “more friendly” was ever reduced to any kind of memo, or that she had any objective reason to believe that her permanent position was in jeopardy. She thought she had been hired permanently when his daughter left to go back to school, and objectively, she had been. If management had any serious concerns about her performance, they failed to convey them. Mr. Butler, however, asserts that he was too busy contending with a tight deadline on an outstanding RIBO discipline matter that involved correcting his books and records (Exhibit 29) to deal with finding her replacement, and so he tolerated her. He put it the following way in his testimony:

Half a job is better than no job. Until we had time, I had the time to find one - that was it. That’s why it took so long to replace her, and have an adequate one in place...

Ms. Jackson’s Medical Condition

27Ms. Jackson testified that she went to see her family physician, Dr. Hill, in March 2002, complaining of abnormalities in her menstrual cycle and a general feeling of malady. Dr. Hill referred her to Dr. Yegeppan in Niagara Falls, who examined her, and suggested a follow-up in three months after discovering an ovarian cyst. Ms. Jackson returned to Dr. Hill in the meantime, stating, “I was sick and tired of being sick and tired all the time. I wanted this problem solved and this cyst drained.”

28Ms. Jackson testified at the outset, she had told Ms. Carr, Ms. Duncan and Ms. Aimesbury of her symptoms, but not Gary Butler, Joel McRae or John Butler. She said it was “basic girl talk in the office.”

29Ms. Jackson testified that Dr. Yegeppan said that she would remove the cyst, or the cyst and the ovary, since the “small shadow looked suspicious.” She was advised that if the cyst were removed, her recovery would take one week, but that if the cyst and ovary were removed, her recovery would take two to three weeks. (See: Exhibit 2, Tab 4, Dr. Yegeppan’s Consultation Report, dated May 21, 2002, and the viva voce evidence of Ms. Jackson).

Ms. Jackson’s First Surgery – June 25, 2002

30Ms. Jackson testified that prior to her surgery, she did not know if Dr. Yegeppan would be removing only the cyst, or the cyst and the ovary. Her surgery was booked for June 25, 2002.

31Her surgery was performed by Dr. Yegeppan, at the Greater Niagara General Hospital, on June 25, 2002, as scheduled. At this time, the cyst, the left ovary and the left fallopian tube were removed. (See: Exhibit 2, Tab 6, Operative Record, and the viva voce evidence of Ms. Jackson and Dr. Hill.)

32She went back to see Dr. Yegeppan in July 2002, because the results of the pathology reports and consultation note were in, and she was diagnosed with papillary serous tumour. Ms. Jackson and Commission Counsel both assert that this is a form of ovarian cancer.

33Dr. Hill’s testimony corresponded to that of Ms. Jackson’s that the diagnosis was cancer. Dr. Hill described it as “micro-invasive.” Her test results were reviewed by two oncology experts, one of whom was Dr. Elit. Ms. Jackson’s ovarian cancer was treated with surgery, since papillary serous tumours are noted for their potential to spread, according to Dr. Elit.

Ms. Jackson’s Follow-Up with a Gynaecological Oncologist

34Ms. Jackson was referred to Dr. Elit, a gynaecological oncologist at the Juravinski Cancer Clinic in Hamilton. Ms. Jackson first saw Dr. Elit on August 8, 2002. Dr. Elit testified that the basis of this referral to the Cancer Clinic was the surgery of June 2002, since cancer was found in her ovary. Dr. Elit said that the purpose of sending her to the Cancer Clinic was to obtain an opinion on how to manage her care. Dr. Elit said that she dictated a note right after seeing Ms. Jackson on August 8, 2002 (see Exhibit 2, tab 14), and testified that she wanted to look at the tumour with a Henderson pathologist.

35Dr. Elit recommended that Ms. Jackson have an abdominal ultrasound and blood work done, which took place on August 23, 2002. Dr. Elit was monitoring her as a patient. The ultrasound revealed a one-centimetre cyst on her right ovary.

36During cross-examination, Ms. Jackson said that she called into work sick with a strep throat on Monday, September 16, 2002, and again mid-week, saying that she went to see Dr. Hill, and that she advised Butler Insurance that she would not be in the rest of the week. Ms. Jackson was very alarmed when she discovered the second cyst, and went to see Dr. Hill on September 19, 2002. She confirmed that this visit to Dr. Hill resulted in the note excusing her from work for six weeks, as set out below.

37Dr. Hill also recommended that she take Zoloft, which she had taken in the past when her marriage ended and when her sister died suddenly. She said, “I couldn’t take it anymore. I needed some help. I was really scared.” Dr. Hill doubled her prescription, and gave her a referral to a social worker.

Ms. Jackson’s Note from her Family Physician

38Ms. Jackson obtained a note from Dr. Hill, dated September 19, 2002 (Exhibit 2 tab 12), which states:

Anne Jackson is under medical care and is unable to work [illegible] she requires a medical leave for at least 6 weeks.

39Ms. Jackson said that she “handed it in to front reception” at Butler Insurance, and immediately went to the EI Office, all on September 19, 2002. Mr. Butler denies that the receipt of this note informed him that she was under medical care. He testified that he did not see this medical note, which he said had been put in the pay-book. He said it was apparently given to Joel McRae, who put it in the pay-book. He denies knowing that she was seeing a physician, although he did state that he knew she was “off for some procedure” in June 2002. Mr. Butler testified that Butler Insurance did not have a formal written policy on what amounted to leaves of absence for medical reasons.

40Mr. McRae identified this particular note and confirmed that he put it in the pay-book himself. However, he maintains that they received the doctor’s note after they had completed the ROE, and so he did not know when she would be returning, and only knew that she would be away for six weeks “after the fact”. He said that he found the medical note on his desk on the same day that the ROE was picked up, but he did not know what time it was left. He said, “it was left for me, it was never handed to me directly.” Contrary to Mr. Butler’s testimony that he did not see it, Mr. McRae testified that he showed this medical note to Mr. Butler, and then put it in the pay-book. It is clear that Mr. McRae did not attach much significance to this note, stating:

I felt the note was redundant, after the fact. I just put it in the pay-book. I didn’t recall the 6 weeks. I didn’t think it was much, as a note to begin with. I simply put it in the pay-book…It’s the first doctor’s note I’ve seen in thirty years. I’ve never had another employee that required a doctor’s note.

41However, Mr. Butler also testified that while he could not recall Ms. Jackson specifically asking for August 8 and 23, 2002 off for medical appointments, he said that it was quite likely she did, because “we had it marked in the pay-book so someone knew she was gone.” If it was marked in the pay-book, generally that meant the employee was not paid. However, Ms. Jackson’s pay records (Exhibit 40) indicate that she was paid on August 22nd and that no deduction was made for her absence on August 8th. In her testimony, she said that she took one of these two weeks as paid vacation, and the other as an unpaid leave.

42After she dropped off Dr. Hill’s handwritten note, dated September 19, 2002 (Exhibit 2, Tab 12, set out in full in paragraph 38), Ms. Jackson said that she went to Employment Insurance, because she needed sick benefits, since Butler Insurance does not have any short-term disability insurance. The Payroll Sheet (Exhibit 40) confirms her testimony that she took one of these two weeks as paid vacation, and the other as unpaid leave.

43Ms. Jackson and Dr. Elit met on September 30, 2002, to discuss her options. She was given the option to either monitor it every three months because of her age, or to have surgery. She elected to have surgery. Ms. Jackson testified that as a single mother, she was afraid for her daughter’s future. She said, “I wanted to see my daughter grow up. It was up to me, and I would do everything in my power to do that.”

44Ms. Jackson had further surgery on October 11, 2002, in which Dr. Elit removed her uterus, right ovary and right fallopian tube. (See: Exhibit 5, Tab 5 – Operative Report, and the viva voce evidence of Dr. Elit and Ms. Jackson).

45The pathology report from the right ovary also demonstrated that Ms. Jackson had papillary serous carcinoma in it, as well. (See: Exhibit 5, Tab 7, Dr. Elit’s Progress Note, dated November 15, 2002, and the viva voce evidence of Ms. Jackson and Dr. Elit.)

46Ms. Jackson saw Dr. Elit on November 15, 2002, for a post-operative assessment. She returned for follow-up appointments every six months during 2003 and 2004, and sees Dr. Elit annually since September 2004. These follow-up appointments are to ensure that the cancer has not returned. Dr. Elit testified that Ms. Jackson has a “slow-growing tumour”, or what she termed “stage 1B borderline tumour”, since the cancer has been found in both ovaries. (See: Exhibit 5, Tabs 8, 9, 10, 11 and 12, and the viva voce evidence of Dr. Elit).

Did Ms. Jackson Advise the Respondents of Her Diagnosis?

47Ms. Jackson testified that she informed Mr. Butler of her need for this first surgery, the two types of surgery, and the expected recovery period. However, Mr. Butler insists that she advised him it was only “minor surgery.” Throughout his testimony, Mr. Butler denied knowledge of her medical condition. In the Respondents’ final submissions, they state:

Gary Butler was not aware of Ms. Jackson having any form of disability or any problem of a serious nature, nor did Ms. Jackson ever request accommodation for any disability.

There was never any mention of having any form of cancer made directly to Gary Butler, and Gary Butler did not even hear of Ms. Jackson having cancer or any other serious illness or disability from any one else or in any office or other conversations.

48However, in Mr. Butler’s witness statement (Exhibit 33), he said that he knew that the reason she was off work was “something about a cyst”. During his testimony at the hearing, he insisted that, “she didn’t tell me that, my staff did afterwards.” He said that he “heard it in the office from some of the girls,” and described it as a “rumour.” In his evidence before the Tribunal, he said that Ms. Jackson had told him she needed time off in June for a surgical procedure, he confirmed that she “took three weeks off”, but when he was asked if he knew that the procedure had something to do with a cyst, he replied, “yup.”

49Up until this point, Ms. Jackson testified that she had not told Gary Butler she had cancer, although she said that she had told her female co-workers. Ms. Duncan testified that she knew of Ms. Jackson’s cancer after her first surgery, and so did Ms. Aimesbury, Ms. Carr and Ms. Fisher. Ms. Aimesbury testified that she knew Ms. Jackson was having surgery to remove an ovarian cyst, but said that Ms. Jackson did not tell her that she had cancer. However, Ms. Aimesbury said that “at some point it became knowledge, but I don’t know where I heard it from,” that she had cancer.

50Mr. Butler admits that he knew she was having a procedure and missed one week of work in June 2002, and that he had heard in the office that she had a cyst. He also gave evidence that Ms. Jackson told him that she might have to have a second procedure. He testified, “she said she may have to have the same thing done again.” He agreed with the assertion of Commission Counsel that if she did need the second procedure done, she might need more time off. He also admitted that he knew she had undergone the second surgery in October 2002, because Ms. Jackson told him.

51When Mr. McRae was asked if he had ever heard that Ms. Jackson had cancer, he said, “not specifically.” Moreover, Mr. McRae said that various issues are discussed during their internal weekly sales meetings, but that they never discussed Ms. Jackson having cancer.

52Gary Butler identified his own handwritten note (Exhibit 31) of the conversation he had in October 2002 with Ms. Jackson, which he wrote when she came into his office. It is dated either October 15th or 16th, since Mr. Butler believes he looked at his calendar to correct the date on the note. He did not take any notes of his conversations with her in June 2002 regarding her first surgery, nor of the December 2, 2002 incident. His handwritten note dated October 15/16, 2002, which he read out for the Tribunal, states as follows:

Anne

Operation – October 11/2002 4/wks

Will know after Oct 16/2002

Nov 15/2002

Postop

This Friday gets results

Done in Hamilton

at Henderson

Dr. Elltori

53Mr. Butler and Commission counsel had a dispute about whether he wrote two separate notes detailing two different conversations with Ms. Jackson, or if one note was merely the transcription of the first note that pertained to only one conversation with her, as he maintains. This is relevant because Mr. Butler maintains that Ms. Jackson only came by Butler Insurance once in October, and not twice, as she claims.

54In any event, when asked why the note refers to “November 15” and “four weeks from October 11th,” he responded that “she was to get some kind of results that week, some post-op thing, sometime in the future.” He says that regarding this conversation of October 2002, it began when she popped her head in his doorway and asked if she still had a job, to which he diplomatically replied that there was a “misunderstanding”. Mr. Butler testified that he asked her during this conversation if she was now able to work, and when she told him the story of the procedure, and said that she would not know until later on, he then said, “if you still think you want a job with us, you’ll have to come back to talk to me.” He added that since he had not been expecting her, he felt a bit off-guard, and “I didn’t know exactly what I was supposed to be saying.”

55When shown his own note and asked what was done on October 11th, he replied that “I didn’t know, she didn’t tell me, and I didn’t ask.” When asked what “Henderson” refers to, he said, “I think it is a hospital.”

56Ms. Jackson testified that she first told Gary Butler that she had cancer at “the beginning of August” when she made her appointment to see the cancer specialist, and told him that she would be needing time off from work to go to Hamilton. She testified as follows:

I remember telling Mr. Butler that I’d just been diagnosed with cancer and would have to go to the Hamilton Cancer Centre and that those appointments would require me taking some time off for appointments. He said, ‘that’s okay, just do what you have to do.

57Mr. Butler denies that she advised him of her ovarian cancer. He testified that he did not become aware of Ms. Jackson’s cancer diagnosis until the “end of 2004,” which he added was “three years after the fact.”

58In support of his contention that he did not know Ms. Jackson had cancer, he was permitted to enter Ms. Carr’s witness statement (Exhibit 41) even though he did not call her as a witness, but was reminded that while section 15 of the SPPA allows the Tribunal to permit hearsay evidence, it does not have the same weight as direct evidence. The relevant portion of Ms. Carr’s witness statement provides as follows:

In September of 2002, she stopped coming into work, do you know why?

She had been off sick and we didn’t know if she was coming back.

Do you know how long she was meant to be off work?

No, I don’t know what her intentions were, she had gone for medical care and discovered it [sic] more serious.

Did you know what was wrong with her?

I think she mentioned cancer, but it was not something that we really discussed, but I believe that she had some sort of operation – ovary removed then cancer was mentioned. I really don’t know, but it was some sort of cancer.

Who took over her job while she was gone?

I can’t remember, temp. man power? or Gary’s daughter. I was on vacation for some of it, I don’t remember if we got temps or if we juggled other people in the office.

Did the other people in your office know why she was off?

I don’t really know. I don’t know if she discussed what was really wrong.

59This evidence indicates that Ms. Carr, at least, knew that Ms. Jackson had some form of cancer related to her ovary, and that this cancer was discovered subsequent to the removal of Ms. Jackson’s ovary. However, because it is hearsay evidence, it is being afforded very little weight.

The Record of Employment Needed to Receive Disability Payments

60Mr. McRae testified that Ms. Jackson requested the Record of Employment (“ROE”) (Exhibit 6), “in order to collect benefits because she was going to be off.” She was already off work when she requested it. He said that she attended the office and requested the “separation certificate”. This evidence corresponds to Ms. Jackson’s evidence about why she requested this ROE. She testified that when she went to the Employment Insurance office, they advised her that she needed an ROE, and so she immediately called Mr. McRae. When asked if she gave a reason for her request, Mr. McRae noted:

She would be off and required it to collect the benefits for an unknown period of time, actually.

61Mr. McRae testified that he completed Box 14 on the ROE (Exhibit 6) as “not returning,” because “it was not known to me if she was or was not returning.” When asked by Mr. Butler if he had ever told him that Ms. Jackson had quit, he replied, “She didn’t indicate if she’d be back or not. My understanding at that point was that it was an unknown.” Similarly, John Butler also thought when the ROE had been provided that “she wouldn’t be returning, ” although he knew that she was having surgery to remove a cyst or ovary. Mr. McRae also confirmed that he marked Box 16 as code “D”, for illness or injury, and had Mr. Butler sign it and return it to him. The ROE is dated September 23, 2002, and Ms. Jackson’s evidence is that she picked it up that day. Mr. McRae said he left it in an envelope at the front desk to be picked up.

62Mr. McRae said that Mr. Butler spoke to him about the ROE after someone called, with respect to the hours worked and the expected date of recall.

63The Tribunal accepts Mr. McRae’s evidence that whether or not she was returning was “unknown” to him when he completed the first ROE. However, none of the Respondents or their witnesses testified that they took any steps to clarify with Ms. Jackson when or if she would be returning subsequent to her surgery, even though they admit that they knew she was having surgery performed on an ovary, Gary Butler’s handwritten note from mid-October indicated that she would “get the results this Friday” from “Henderson” in “Hamilton” and even misspelled the name of her surgeon. There was no evidence that she resigned, and in fact, there was clear evidence that her doctor’s note was put in the office’s pay-book.

What Unfolded Next at the HRDC Office

64Ms. Jackson met with Ms. Jan Kilty, a client services officer with Service Canada/Human Resources Development Canada (“HRDC”), in order to process her claim for disability benefits, which was also filed on September 23, 2002. At that time, Ms. Jackson told Ms. Kilty that she did not understand why the ROE said “not returning,” and asked Ms. Kilty, “does this mean I don’t have a job to go back to?” She testified that Ms. Kilty replied that she would needed to call “the employer about something else that was wrong with the form, and that she would check with the employer what was meant by that.” Ms. Jackson had not asked Butler Insurance for a clarification of the ROE.

65Ms. Kilty referred to her affidavit dated January 19, 2006 (Exhibit 25), which was based on her review of Ms. Jackson’s application for employment insurance disability benefits, her ROE, and the Supplementary Record of Claim, dated September 26, 2002.

66Ms. Kilty testified that she had some concerns with the ROE, specifically Ms. Jackson’s hours of work, which had been left blank, and whether or not Ms. Jackson was returning, and called Gary Butler on September 26, 2002 to discuss them. As part of the procedures required by her employer, Ms. Kilty testified that she makes contemporaneous notes of all such telephone or other communications on the Supplementary Record of Claim Form.

67After she discussed her concerns with Mr. Butler, she recorded that he had advised her to change Box 14 of the ROE to “unknown” from “not returning,” and that Ms. Jackson’s Total Insurable Hours in Box 15A were to be recorded as “1820.” Her evidence was clear that it is her practice not to make any changes to the Supplementary Record of Claim without the employer’s authorization. After she made these corrections, she testified that she advised Mr. Butler to “correct his copy.” She was also clear that if Mr. Butler had disputed this change instead of agreeing to it, she would have noted that on her form.

68In contrast, Mr. Butler contended in his evidence that he did not know why the ROE said “not returning,” and that he had told Ms. Kilty that his payroll person had advised him that her leave was a “permanent sick leave.” He also expressed surprise that he was not sent a copy of the Supplementary Record of Claim, but Ms. Kilty said that they are not distributed.

69During her cross-examination, Ms. Kilty also explained that it is important for HRDC to know whether or not an employee is returning, because it has “repercussions in the calculation of the claim” and “could determine if any monies are owing on separation.”

Ms. Jackson Visits Butler Insurance – October 2002

70Ms. Jackson testified that she visited Butler Insurance on October 3, 2002, and advised Gary Butler of her second surgery, scheduled for October 11, 2002, and to ask him to sign some credit disability forms, to postpone payment on her credit cards. She said that none of the staff nor Mr. Butler expressed any surprise to see her after she had received the separation certificate. She said that when she spoke to her female co-workers, she showed them her scars from her first surgery.

71Ms. Jackson sobbed when she described her visit to Butler Insurance on October 3, 2002, as follows:

I went into the office because I needed these disability forms filled out and I needed to let them know what was going on with my sick leave. I talked to Eva first, then to Mahri and Holly…they said he’d be in at 10:30 a.m. or 10:45 a.m., so I waited at the front. Mr. Butler came in, he said “hi.” I asked him to look over some forms for me, because I needed them for my credit cards to pay the minimum payments while I was off on sick leave…

I told him because a cyst was found on the other side, I didn’t want to take a chance, because I already had cancer on the one side. I was crying and he said, “don’t worry about it, it will be okay.”

72Ms. Jackson said that she also advised him during this conversation that she was having the second surgery on October 11, 2002, and that he did not ask for any medical documentation to prove it. She said that she had filled in the loss information and signed them on October 2, 2002, and that Gary Butler filled in the employment statement and signed them as President, on October 3, 2002, with a return date of “unknown” (Exhibits 3 and 8). She also testified that she completed her portion of the attending physician statement (Exhibit 4) and that Dr. Hill signed the disability report on October 8, 2002. On her Credit Disability Form (Exhibit 8), Ms. Jackson indicated “Cancer, Sick Leave” as the reason for her request, and “sick leave” as the reason stated on her TD Visa Balance Protection Insurance Claim form (Exhibit 3).

73However, Mr. Butler testified that he did not meet with Ms. Jackson when she brought these forms to Butler Insurance, and that his staff brought these forms to him. Although her Credit Disability Form was to be completed by her “Employer”, he contends that he completed them for her because she was no longer working, and that both forms (Exhibits 3 and 8) were blank when he signed them. He also testified that he only saw Ms. Jackson on October 16, 2002, after her surgery, stating, “I didn’t meet with Ms. Jackson on October 3rd, I never saw her, I only saw her that October meeting after that operation.”

74Moreover, Mr. Butler identified his witness statement given to the Commission (Exhibit 33, page 5), and the two questions put to him about these credit forms. His answer at that time was as follows:

It looks like my signature, but I don’t remember signing this stuff. I don’t recall ever signing these before. I don’t remember seeing those, and I don’t know why I would sign on October 3 because she was already off. This date is not possible – Anne was only in the office to see me once and that was after her operation which was the 11th – my notes say Oct 16th.

75In Mr. Butler’s typed amendment to his witness statement (Exhibit 33, last page), dated September 17, 2004, which bears his signature, he wrote as follows:

NOTE 3: RE CREDIT DISABILITY ETC FORMS, ONE OF THESE FORMS REFERS TO A LIFE INSURANCE COMPANY AND MY LIFE GUYS TELL ME ITS PROBABLY A PREMIUM WAIVER FORM THAT WAIVES THE COST OF A LIFE POLICY WHEN THE PAYEE IS SICK AND NOT WORKING, THIS IS NOT A DISABILITY THING THE WAY YOU ARE TRYING TO APPLY IT, ALSO THE DATE WAS SIGNED WAS OCT. 3 WHICH IS IMPOSSIBLE AS MS JACKSON WAS ONLY IN THE OFFICE TO SEE ME ONCE AND THAT WAS AFTER THE SECOND PROCEDURE WHICH WAS DONE ON THE 11TH, AS WELL THE DATE I BELIEVE WAS ALL NUMERIC AND I NEVER RECORD DATES THAT WAY, I ALWAYS WRITE OUT THE MONTH, EG OCTOBER.

76Ms. Jackson insisted that during this visit, Mr. Butler never told her that he did not have a job for her to return to, nor did he indicate that he thought she had quit, nor did he indicate that he thought that she would not be returning. She also said that Mr. Butler never asked her to call before returning, nor did he tell her that he had hired another receptionist.

The Experiences of Other Employees

77The Respondents called two of their witnesses to describe their own personal experiences working at Butler Insurance.

78Ms. Aimesbury testified that she has worked for Butler Insurance for 17 years. During the course of her employment, she was on an extended maternity leave for 6 months, and that she had arrived late every morning for two months while undergoing IVF treatment at McMaster Hospital. She said she was also off for several weeks when her son had serious asthma attacks and had to be hospitalized. She maintained that Butler Insurance was “very supportive” throughout these various times in her life.

79Similarly, Ms. Fisher is an older woman. She testified that she had breast cancer in 2004, and that she returned to work at Butler Insurance following her radiation treatment. She describes herself as a cancer survivor. She has continued to work on a very part-time basis since her diagnosis, which based on her testimony and the testimony of Gary Butler, the Tribunal accepts is her choice. This testimony also corresponds to that of Ms. Jackson, who said that Ms. Fisher generally worked on Tuesdays to file claims.

Ms. Jackson’s Second Surgery: October 11, 2002

80Ms. Jackson testified that she underwent surgery in Hamilton on October 11, 2002, and that she remained in the hospital for three days. She stayed with her father immediately following her release, because she was not well enough to take care of herself or her daughter. She returned home on October 14th, but did not resume her normal routine, including driving, for some time after surgery. She said that she resumed most of her ordinary activities around the time of her daughter’s birthday, which was on October 23, 2002.

81Ms. Jackson testified that she had asked Dr. Elit for a letter confirming that she had undergone this second surgery and could not return to work for six weeks. She said that she wanted to have something to give Butler Insurance which indicated when she could return to work, and also, she wanted to extend her sick benefits under EI for a couple of weeks.

82Dr. Elit’s letter, dated October 17, 2002, on letterhead inscribed “Hamilton Regional Cancer Centre, Division of Gynecologic Oncology” (Exhibit 5, Tab 13), states as follows:

To Whom It May Concern:

Anne Jackson underwent surgery on October 11, 2002. She will be unable to return to work for six weeks.

Sincerely,

Laurie Elit, MD, FRCS(C)

Gyn Oncology

Ms. Jackson’s Alleged Visit in Late October 2002

83Ms. Jackson testified that around the time of her daughter’s birthday and definitely prior to Halloween, she took this note to Butler Insurance. She said that she took her nephew with her and spoke to Joel McRae, to find out if her nephew could obtain some insurance for an apartment. She said that she also spoke to Ms. Duncan, Ms. Aimesbury and Ms. Carr, and showed them her scars.

84During this visit, she said that she saw Gary Butler and asked him if he had a couple of moments. She then advised him that Dr. Elit said that she could return to work within six weeks, and put Dr. Elit’s note on his desk. She said that she turned to look at the calendar on his office wall, and began counting the weeks on the wall calendar from October 17th, since that was the date of Dr. Elit’s letter. She told him that six weeks “takes me until the end of November,” and offered to return on December 2nd. She said, “I looked back at him and said is that okay, and he said okay.”

85Ms. Jackson said that she believes that she “mentioned” to Mr. Butler that she needed to see Dr. Elit on November 15, 2002, so that she could go over the results of the surgery and test the areas on which surgery had been performed. Ms. Jackson did see Dr. Elit on November 15, 2002, and was advised that she had a borderline papillary serous carcinoma in her right ovary as well. (See: viva voce testimony of Ms. Jackson and Dr. Elit).

86In contrast, Mr. Butler testified that Ms. Jackson came to the office on October 16, 2002, and appeared happy and smiling. He states that she asked him, “do I still have a job?” Mr. Butler said that he thought she was joking, and asked, what do you mean? He also said that he asked her, “are you able to work now,” but she replied, no. She allegedly told him that she had undergone an operation on October 11th and would be obtaining some results on Friday, and that she would not know when she could return to work until after her post-operative appointment, but that it would be at least six weeks, which would make it sometime after December 1st. Mr. Butler testified that he told her that, “I didn’t really know that you were planning on coming back. We’re working on the replacement and if you get down to the point you are able to return to work again, and want us to consider you again at that time, we’ll arrange for an appointment.”

87Mr. Butler relied on his own handwritten note (Exhibit 31), written on a M. Butler Insurance Brokers Ltd. notepad, which is dated October 16th, to demonstrate that this was the date of her visit.

88Ms. Duncan testified that during the “very last week of October” on the Monday or Tuesday, Ms. Jackson “came back to tell Gary that everything would be okay to come back and that the approximate date would be the first week of December.” Ms. Duncan is certain that it was the very last week of October, because she quit on November 1st, and is certain that she saw Ms. Jackson just prior to quitting.

89Ms. Duncan said that she was at the main photocopier right outside Gary Butler’s office when Ms. Jackson was speaking to him. Ms. Duncan testified as follows regarding this visit and the conversation between Ms. Jackson and Mr. Butler:

Anne came in, she looked better, yeah, she’s going to make it. Her spirits were up. She was informing Mr. Butler that if everything was a go, she’d be back the beginning of December. Her doctor was going to sign something…

I heard every word she said, I was standing right there copying. I heard every word while she was standing there saying this to Gary…

The doctor thinks everything is okay now for her to return. She mentioned one final time to go to the doctor before that and that she could return to work for the beginning of December.

I’m 100 percent clear that she said she’d be ready to come back.

Gary Butler grunted, ‘mmm’ and he said, ‘okay then.”

I didn’t know that I’d quit that week and I was happy to have a friendly face. I was happy that she’d be coming back.

She had a little conversation with Holly and Mahri as well. I still thought that Anne had a job, she’d carry on and come back to be our receptionist.

90Ms. Duncan also recalled Ms. Jackson coming into Butler Insurance to “get the forms signed” but said that was “a lot sooner…I thought it was pre one of the two surgeries.” Ms. Duncan said that Ms. Jackson “went into his office with the forms in hand.”

91After Ms. Duncan quit Butler Insurance, she ran into Ms. Jackson and Ms. Jackson asked her if she could use her as a reference. She said that the next time she saw Ms. Jackson was a few months ago.

92During her cross-examination, Ms. Duncan described how she had to fill in for Ms. Jackson and do her own job when Ms. Jackson was away. She said that Butler Insurance arranged for a replacement from Kelly Services, but the replacement worker did not arrive immediately. Ms. Duncan said, “I struggled the second time around before anyone came in.“ This same temporary worker from Kelly remained when Ms. Duncan went on her vacation in October 2002.

Ms. Jackson’s Replacements

93There is no dispute that Ms. Duncan filled in for Ms. Jackson during her two absences commencing on June 25, 2002 and September 19, 2002. Ms. Duncan was the data-entry clerk who filled in for Ms. Jackson at reception when Ms. Jackson was away.

94It is also undisputed evidence that a temporary replacement was hired from Kelly Services to perform Ms. Duncan’s data-entry position and to work at reception, to cover Ms. Duncan’s scheduled vacation. Her name was Chantal. (See: Exhibits 35 and 37, payroll records for Chantal and Ms. Duncan).

95After Ms. Duncan quit on November 1, 2002, Gary Butler testified that he “instantly hired the person we’d interviewed,” Susan, on November 11, 2002, as a “full-time receptionist” for Butler Insurance. (See: Exhibit 36, Payroll Record of Susan).

Ms. Jackson’s Return to Work: December 2002

96Ms. Jackson testified that she returned to work at Butler Insurance on December 2, 2002. She said that she entered the premises through the back door, and saw some of the other staff at the back of the office. She said that John Butler was in the office, but did not say anything to her, he simply went into his office and closed the door. She testified that she was at the reception desk answering the telephone from 9 a.m. until 10:30 a.m., at which time, Gary Butler arrived. Mr. Butler asked Ms. Jackson to see him when she finished what she was doing.

97Ms. Jackson said that she went into Mr. Butler’s office and he asked “what I was doing there.” She replied that she had advised him that she would be back at work on December 2nd when they met at the end of October. She said that Mr. Butler told her that they had enough staff. Ms. Jackson said that she thought he meant for the week, so she allegedly asked him if he would rather she came back next week. He replied that she had created “havoc” in the office and that she no longer had a job. Ms. Jackson maintains that he said the following to her:

…you’ve created enough havoc in this office, we don’t require your services any longer. You position has been filled.

98She said that she was shocked, “I didn’t know what to say,” and went to her car, and started to cry. She testified that, “I would never have gone back into the job if I didn’t think I had one there.”

99Mr. Butler adamantly denies that he ever told her that she had created havoc in the office, and claimed that this was a new allegation on her part raised for the first time at this hearing.

100However, Ms. Jackson’s witness statement, dated August 16, 2004 (exhibit 27), refers to what happened on December 2, 2002, and states:

I went into work for 9:00 and I went into the office and I was talking to everyone, Joel came in and then John Butler came in, I sat at the desk that I normally sat in, John wouldn’t talk to me, he was on the phone, the entire time I was there, Gary came in about 10:30 and asked that when I finished what I was doing if I could come into his office. I went into his office at which time he said that he no longer needed my services, I said why and he said that I didn’t know when you were coming back and I hired someone, I said, I told you at the end of October and he said, well we filled your position. He also said that I caused havoc by coming to work, almost like I upset the girl by coming back. I just looked at him, and said, do you want me to come back next week, and he said, no we don’t need you back at all, we filled your position. No sense arguing, so I left. [emphasis added]

101Mr. Butler’s version of events was starkly different to Ms. Jackson’s version. He maintained throughout the hearing that “up until and never during that discussion or anything previously” was he ever advised that Ms. Jackson had cancer. His evidence of her return is set out below in full:

The next time I saw Ms. Jackson was on the morning of December 5th, when she showed up at our office and apparently came in and took over the front desk. I wasn’t there, I was out on a call I received. I received a message from Mr. McRae that Anne was in the office. I arrived at about 10:30 a.m. I asked her to come back to my office and I had the discussion we mentioned before. I asked her why she was in the office and at the desk. She said, ‘I told you I was coming back,’ and I said, ‘no, you didn’t.’ She said, ‘do you want me to come back later?’ I said, ‘no, we’ve hired a new receptionist and have no positions open at the office.’ She said, ‘okay, then I need you to prepare a new note for me to have my benefits reinstated.’ I said, ‘I’ll do that,’ which I did.

I would reiterate that I had absolutely no idea that Anne thought she was returning to work that day. I’d heard nothing from her since our meeting in October. No conversations, no calls from her.

She had no keys to get in the door. She had no key to pick up the mail, which was part of her job.

…It was a complete shock. Once again, there was no commentary from Anne about asking us to hold her job open, that she felt entitled to keep the job - - illnesses, sicknesses that required her to be given special consideration.

I’m of the impression that we do not owe Ms. Jackson any consideration under the Human Rights Act [sic]. She has to request accommodation. I had no knowledge of any reason why she would be entitled to keep working.

102Similarly, Ms. Aimesbury testified that Ms. Jackson had not mentioned having cancer, and was only aware of surgery to remove a cyst when Ms. Jackson went to the office for a visit. She said that her return in December was a complete surprise. When asked why Ms. Jackson left in September, Ms. Aimesbury said:

To the best of my knowledge, she was never there. I thought she’d left previous to that. One day she was there, then never seen or heard from Anne, she was in – she was back. She came in, she just showed up at the office one morning.

103Ms. Aimesbury testified that she did not speak to the Commission’s investigator. When asked if the investigator had been advised by her husband that she did not wish to speak to her, Ms. Aimesbury simply said, “I don’t know if my husband spoke to her, I did not.” I find that this response was evasive.

104Ms. Aimesbury confirmed that she sat beside Ms. Carr and that they have the same position at Butler Insurance. When asked if they talk, she replied, “everyone talks.” She said that she was aware that Ms. Carr participated in the investigation, and that Ms. Carr had told her that she had done so herself. Ms. Carr did not testify. She was asked about Ms. Carr’s witness statement (Exhibit 41), at page 2, which indicated that Ms. Carr knew she had been diagnosed with cancer after her ovary had been removed.

105Ms. Aimesbury reiterated her evidence that she knew that Ms. Jackson had underwent surgery to remove a cyst, and then said that she “heard something later.” She said, “I did not know for a fact that it is what it was.” She added, “Anne first thought it was a cyst. I really didn’t care. I had my own problems you know.”

106Ms. Aimesbury recalled how Sue was uncomfortable when Ms. Jackson returned in December. Ms. Aimesbury said that “I don’t know whether she was fired, quit or left. I knew she wasn’t coming back because they had hired someone.” When asked if anyone had told her if Ms. Jackson had been fired or quit, she replied, “no, we just didn’t see her again.” When Sue was hired, Ms. Aimesbury asked Sue if she had been hired permanently, and she said yes. Sue did not testify. Ms. Aimesbury did not feel it was “her position to ask” what had caused Ms. Jackson’s departure, and no one offered any explanation, or as she put it, “I was never directly told anything.”

107When asked by Ms. Jackson if she had seen her scar and commented about how small it was for a hysterectomy, she replied, “I don’t recall. I’ve never had a hysterectomy and I don’t know how big the scar would be.”

108John Butler testified. He has worked at Butler Insurance for six or seven years, and is now a Vice-President. He recalled Ms. Jackson being off work, he believes in the spring of 2002, to have a cyst or ovary removed. He said he was never directly advised by her why she was away, nor of the results. He had trouble recalling the details of Ms. Jackson’s absences and apologized to the Tribunal. While an employee could provide him with such details, he did confirm that Mr. McRae was responsible for payroll.

109He did recall that “at some point in time, she came in to see Mr. McRae and asked for a separation certificate. I know she gave him a doctor’s note,” and then added, “a doctor’s note showed up.” He said that Mr. McRae showed him the doctor’s note that was delivered, which said that Ms. Jackson would be off work for a period of time, which he guessed was six to eight weeks. He said, “when the separation slip was provided, my understanding was that she wouldn’t be returning.”

110John Butler described her return to work in December 2002 this way:

She did return to work, I can’t verify the date. It was kind of bizarre.

111When asked during cross-examination why her return was bizarre, he said, “because we didn’t expect her to return.”

112When John Butler saw her at the reception desk, he called his father and asked him if he knew why she was there. He said no but he would be in shortly to address it. John Butler did not speak to Ms. Jackson at that time.

Ms. Jackson’s Employment Was Terminated on December 2, 2002

113Ms. Jackson testified that she went to the EI office immediately, and was advised that she needed something from Butler Insurance stating that she no longer had a position. She believes that she called Butler Insurance from the EI office and spoke to Gary Butler.

114Gary Butler signed a letter to Ms. Jackson, dated December 2, 2002 (Exhibit 9), which states:

We confirm that we do not have an employment position available for you at this time and that we had to hire someone full time to replace you at your former position in our office.

115When asked if his letter of December 2, 2002 was a dismissal letter, he replied:

I don’t think it is a dismissal letter, but advice that we don’t have a job for her. At least that was the intent.

116Mr. Butler stated that he understood that employees who quit their positions do not receive severance. Nevertheless, he denied that he fired Ms. Jackson, and said that he was forced to give her severance by various regulatory authorities. When asked if Ms. Jackson was given severance pay, he said “eventually.” When he was asked if she received it because she had been terminated and Butler Insurance was obligated to pay it, he said:

The people at Manpower, deemed their little person had changed the form to an unknown date of return. They assessed me on the basis that she had re-assessed work and that we owed her two weeks pay. She gets it from the Unemployment people who assessed me.

117When asked if he paid the Ministry of Labour termination pay on her account, he answered that “I paid after they froze my bank account.” He added that he paid MOL “under duress – I didn’t agree with it.”

118Mr. Butler identified the letter he received from MOL, dated August 7, 2003 (Exhibit 38), in which he was directed by an Employment Standards Officer to pay Ms. Jackson the amount of $843.60, representing unpaid wages, termination pay and vacation pay, in accordance with the Employment Standards Act, 2000, as well as an administrative fee of $100.00.

119Mr. Butler maintained that when they completed the ROE, it was a “permanent sick leave” and that she was never returning to Butler Insurance.

FINDINGS OF FACT AND LAW

120After a detailed review of the viva voce evidence of all witnesses, and the documentary evidence presented at the hearing, I am satisfied that Ms. Jackson and the Commission have established a prima facie case of workplace discrimination on the basis of disability, contrary to sections 5(1) and 9 of the Code. The Respondents have not met their duty to accommodate Ms. Jackson, for the reasons set out in detail below.

121The Respondents are jointly and severally liable for the acts of Gary Butler, since he is the President and owner of the Corporate Respondent, and was its directing mind related to these incidents of discrimination.

The Credibility of the Parties and Witnesses

122I have considered the credibility of the parties themselves and their respective witnesses, and weighed the evidence heard in light of the test set in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

123I have carefully considered the viva voce evidence of Ms. Jackson, and I am satisfied that she has been straightforward and consistent throughout this hearing. It was clear from her testimony that she needed to work to support herself and her daughter, and that she relied heavily on her paycheque to do so. I am satisfied that she had supplied Butler Insurance with two medical notes, one of which ended up in the Corporate Respondent’s pay-book, to confirm what she had told Gary Butler about her medical condition, in order to preserve her job. Her evidence of the discriminatory treatment that she received more than meets the balance of probabilities test.

124Gary Butler’s viva voce evidence was often inconsistent with his own earlier testimony, and was also inconsistent with the testimony of the witnesses he called.

125For instance, he insisted that he did not know Ms. Jackson had ovarian cancer, and tried to dispute this diagnosis without any medical evidence. After insisting that he had received no meaningful information from Ms. Jackson, he admitted during cross-examination that he knew she had a cyst removed, and that Ms. Jackson had in fact communicated with him when he testified that, “she said she may have to have the same thing done again.” This contradicted his deliberately vague earlier testimony that she had been “off for some procedure.” He also admitted that Ms. Jackson had told him that she underwent a second surgery in October 2002. His efforts to persuade me that Ms. Jackson never advised him that she had cancer, that he did not find out that she had cancer for several years, and that she never requested accommodation have failed.

126Gary Butler also insisted that Mr. McRae had been told that Ms. Jackson was not returning when she requested the ROE to obtain disability benefits, but that testimony conflicted with that of Mr. McRae, who was credible when he said that he was uncertain whether or not she was returning. Gary Butler’s testimony about the ROE is also inconsistent with the fact that he signed her credit disability forms as President on October 3, 2002, with a return date of “unknown.”

127The second doctor’s letter that she gave Gary Butler, dated October 17, 2002, stated that she underwent surgery on October 11, 2002 and would be unable to return to work for six weeks. This letter was on the letterhead of Hamilton’s Regional Cancer Centre’s Division of Gynecologic Oncology, signed by a physician, Dr. Elit, who self-identifies as a “Gyn Oncology” below her signature. Even if Ms. Jackson had not yet used the word “cancer” in her discussions with Mr. Butler, an assertion of his that did not ring true, this second letter makes his assertion wholly implausible.

128His own handwritten note of Ms. Jackson’s visit, which he dated October 15 or 16, indicated that she was being treated at that same hospital, “Done in Hamilton at Henderson”, with a reference to “Dr. Elltori,” which I find was a misspelling of Dr. Elit’s name, and that she was awaiting her results post-surgery: “This Friday gets results”.

129Given the serious and unexplained inconsistencies in his testimony, I prefer her evidence to his. I find that Gary Butler knew that Ms. Jackson had been diagnosed with ovarian cancer and that he replaced her from her permanent position as the office receptionist with a different permanent employee while she was undergoing cancer treatment, despite the medical notes she had left at Butler Insurance and despite her verbal communications to him about the nature of her disability and the ongoing treatment she was receiving. If the Respondents felt any confusion, neither Gary Butler nor any of his management team called her to make any inquiries or requested any supplementary medical information.

130Moreover, his insistence that he was preoccupied with the RIBO matter, which I accept, does not change the fact that he admitted that he hired a permanent replacement for Ms. Jackson while she was away from work recovering from surgery. He could have just as easily only retained temporary replacements for Ms. Jackson, and held her position, which was the only form of accommodation that she required or requested. He certainly hired a temporary replacement to cover Ms. Duncan’s vacation. It was only when Ms. Duncan quit, after covering her own job and Ms. Jackson’s position, that Mr. Butler “instantly hired” Susan on November 11, 2002 as a “full-time receptionist.”

131Mr. Butler’s credibility was further strained by his own admission that he intended to replace Ms. Jackson with his daughter Wendy Butler as soon as Ms. Butler was finished school. Ms. Jackson had been hired permanently, and she had not received any negative performance reviews. If there had been complaints from clients, which is possible, none of them were reduced to written warnings to Ms. Jackson. The real issue was her absenteeism. It was clear that Ms. Jackson was an expendable employee to Gary Butler, whom he referred to as a “half job” in his testimony. This testimony flies in the face of the testimony of Mr. McRae that might have otherwise led me to believe that there had been some honest breakdown in communication about whether or not Ms. Jackson was returning. I hasten to add that there is no evidence that Mr. McRae knew that this was Mr. Butler’s intention when he testified.

132Given these findings of credibility about Ms. Jackson and Gary Butler, it is not necessary for me to make any finding about the credibility of the other witnesses, with the exception of Ms. Kilty.

133I fully accept Ms. Kilty as an independent witness for the Commission, and I rely on her testimony about the corrections made to the ROE and her discussions with Gary Butler about Ms. Jackson’s application for disability benefits and her anticipated date of return to work.

The Relevant Statutory Provisions

134The following provisions under the Code must be engaged in order to establish a prima facie case of discrimination. Part I – Freedom from Discrimination of the Code provides the following scheme:

5.(1) Employment – Every person has a right to equal treatment with respect to employment without discrimination because of …disability.

9. Infringement prohibited – No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

What Constitutes a Disability within the Meaning of the Code

I. Is Cancer a Disability?

135Gary Butler disputed that Ms. Jackson had cancer, since her papillary serous tumours had been diagnosed originally as “borderline” in the first ovary, and then as “stage 1B borderline tumour” after her second surgery. During the hearing, he questioned the need for the extensiveness of her second surgery.

136Part II – Interpretation and Application of the Code defines “disability” under the definitions provided under section 10.(1), as follows:

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…[emphasis added]

137In 2001, the Ontario Legislature passed new legislation to enhance the rights of persons with disabilities, and as part of that legislative reform, the Legislature updated the existing wording of the Code and replaced the term “because of handicap” with “disability” under section 10(1) of the Code. This particular amendment appears to have at least somewhat broadened and modernized the prior definition. It is clear on the face of its wording that there was no intention to narrow how the definition should be construed.

138I find that cancer constitutes a physical disability within the meaning of the definition of disability set out in section 10(1)(a) of the Code. Moreover, I rely upon an earlier Ontario decision of the Divisional Court in which cancer was similarly found to be a handicap in making this finding, see: Ontario (Human Rights Comm.) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 28 C.H.R.R. D/256 (Ont. Ct.(Gen. Div.)). I also rely upon two British Columbia decisions which have found cancer to be a physical disability, see: Flamand v. Chow (1989), 1989 CanLII 9039 (BC HRT), 10 C.H.R.R. D/6139 (B.C.C.H.R.), which found Hodgkin’s disease to be a form of cancer and thus a physical disability; and Hill v. Luykx (1998), CHRR Doc.98-052 (B.C.H.R.T.), which found ovarian cancer to be a physical disability.

II. Did Ms. Jackson Have Cancer?

139I accept the expert evidence provided by Dr. Elit, who is a gynaecological oncologist and who treated Ms. Jackson, that Ms. Jackson did indeed have a form of ovarian cancer, papillary serous carcinoma, and that it is known for its risk of metastasis. Indeed, the pathology evidence proves that papillary serous carcinoma has been found in both of Ms. Jackson’s ovaries. Based on the expert testimony of Dr. Elit, I give no credence whatsoever to Gary Butler’s bald assertions that because her cancer was clinically described as “borderline” as opposed to advanced, that she did not have cancer, or that her surgical treatment was excessive.

The Duty To Accommodate

140In order for the duty to accommodate to arise, complainants ought to have made their needs known to their employers. Thus, I cite with approval paragraph 87 of Williams v. Chintz & Co. Decorative Furnishings Inc. (2003), 2003 BCHRT 30, 46 C.H.R.R. D/486 as follows:

There is an obligation on complainants to inform their employers of their need for accommodation: Central Okanagan School Dist. No. 23 v. Renaud (1992), 1992 CanLII 81 (SCC), 16 C.H.R.R. D/425 at para. 44 (S.C.C.). Despite this obligation, there have been human rights cases where it has been found that the complainant was suffering from a disability even though the employer was not so informed: Mager v. Louisiana-Pacific Canada Ltd. (1998), 1998 BCHRT 36, 33 C.H.R.R. D/457 at para. 47-56 (B.C.H.R.T.); Sylvester v. B.C. Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14 at para.35-42 [reported 43 C.H.R.R. D/55].

141In this case, I accept that Ms. Jackson directly advised Gary Butler of her need for surgery first, and then of the subsequent discovery of cancer. I find that she clearly stated to him, and provided him with medical notes to confirm, the amount of time she needed for her recovery from both surgeries. Moreover, her note from Dr. Elit, dated October 17, 2002, on letterhead inscribed “Hamilton Regional Cancer Centre, Division of Gynecologic Oncology,” stating that she had undergone surgery on October 11, 2002 and required six weeks to recover, objectively should have reinforced what he had already been told.

142Once Ms. Jackson had communicated her medical condition and her need for recovery time away from the office, then it was incumbent on the Respondents to accommodate her to the point of undue hardship, in accordance with section 17(2) of the Code. See: Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3(“Meiorin”); Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489; Central Okanagan School Dist. No.23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; and Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525.

Her Absenteeism

143The Respondents attempted to characterize Ms. Jackson’s termination as necessary. They argued that she had not fulfilled her end of the bargain by not showing up for work. Implicitly, they were relying upon section 17(1) of the Code, which provides as follows:

Disability – 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 disability.

144However, the facts of this case do not support this contention. I find that Ms. Jackson was capable and willing to fulfill her end of the employment relationship, once she recovered from surgery. The suggestion made by several witnesses for the Respondent that her return was unexpected fails to meet the balance of probabilities test.

145I find that the Respondents had no objective basis for concluding that she had abandoned her employment, which is certainly one way of characterizing their submissions. See: Davis v. 1041433 Ontario Ltd. (No.2) (2005), 2005 HRTO 37, 54 C.H.R.R. D/448 at paragraph 82 and Metsala v. Falconbridge Ltd., 2001 CanLII 26213 (ON HRT), 39 C.H.R.R. D/153 at paragraph 42.

146Certainly, after she was dismissed, following her recuperation, Ms. Jackson mitigated her loss and found other employment.

147In the alternative, if the Respondents thought that the basis of their termination of Ms. Jackson was the doctrine of non-culpable absenteeism, then, this too must fail based on the facts of this case. In order for an employer to establish innocent absenteeism, two factors must be established: (a) undue absenteeism in the employee’s past record; and (b) that the employee is incapable of regular attendance in the future. See: MacRae v. International Forest Products Ltd. (No.2) (2005), 2005 BCHRT 462, 54 C.H.R.R. D/223 (B.C.H.R.T.) at paragraph 100, citing Re U.A.W., Local 458 and Massey-Ferguson Industries Ltd. (1972), 1972 CanLII 1998 (ON LA), 24 L.A.C. 344 at 348. Even if these two factors had been established, which they were not, the Respondents still had to fulfil their duty to accommodate before being entitled to terminate a disabled employee, see: MacRae, supra, at paragraph 103, and McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital general de Montréal, 2007 SCC 4 at paragraphs 33, 36 and 62.

148In making this finding, I point out several facts in this case that compel my rejection of non-culpable absenteeism as a rationale for her termination:

• Her absences were not “undue” in any objective sense, six weeks as stated in her medical notes, is not a prolonged absence for convalescence after surgery
• Her absences were medically documented as necessary and she gave these medical notes to her employer
• She was capable of regular attendance after she recovered from surgery
• Assuming, without deciding, that Gary Butler was originally under the mistaken impression that Ms. Jackson was not returning, then HRDC had already corrected her return date on her ROE to “unknown”, and Mr. Butler had been advised of and agreed to this correction by Ms. Kilty
• Gary Butler had also contemporaneously signed Ms. Jackson’s credit card disability forms as her employer with an “unknown” date of return
• Gary Butler admitted during his testimony that he intended to re-hire his daughter for Ms. Jackson’s position, which demonstrates a lack of good faith on his part

LIABILITY

149The failure to accommodate Ms. Jackson was the result of Gary Butler’s decision to hire a permanent replacement for her while she was recuperating from her second cancer surgery, despite her discussion with him about her return date, and Dr. Elit’s letter of October 17, 2002 stating that she needed six weeks to recover.

150Section 45(1) of the Code contemplates such occurrences:

Acts of officers, etc. – For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 44(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

151Gary Butler is the President of Butler Insurance, and he is its sole directing mind. He is the person who ultimately made all the management decisions at Butler Insurance, and it was his responsibility to comply with the Code. Thus, I find that Butler Insurance is also liable for Gary Butler’s unlawful treatment of Ms. Jackson. See: Reed v. Cattolica Investments Ltd. (1996), 1996 CanLII 20104 (ON HRT), 30 C.H.R.R. D/331 (Ont. Bd. Inq.) at paragraphs 75-77.

REMEDY

152The remedial order is set out below in accordance with section 41 of the Code.

153To compensate Ms. Jackson for her losses arising out of the infringement of her right to be free from discrimination, I hereby make the following order for general damages, including mental anguish, and for special damages.

General Damages

154Ms. Jackson‘s right to equal treatment with respect to employment based on disability has been breached, contrary to sections 5(1) and 9 of the Code. Both the statute and the case law are unequivocal that persons with disabilities are entitled to accommodation up to the point of undue hardship and cannot be summarily dismissed.

155Ms. Jackson’s permanent replacement was hired while she was recovering from cancer surgery. Gary Butler told her that she created “havoc” in his office when she returned to work after her six-week recovery period, and she was terminated. She was emotionally devastated by this betrayal.

156Gary Butler has tried various attempts at subterfuge throughout this matter, without success. His actions were both wilful and reckless, and exacerbated Ms. Jackson’s emotional distress and financial concerns. Ms. Jackson found herself terminated on December 2, 2002, on the morning she first returned to work after major surgery. She was forced to seek a reprieve from her landlady, by way of her letter dated December 10, 2002, because she could not pay her rent (Exhibit 10). She was distraught that she could not buy a Christmas present for her five-year old daughter, and had to rely on the charity of others. Her “good neighbours” bought her a turkey and they and other friends provided her and her daughter with some gifts. Ms. Jackson also received some Christmas gifts and gift certificates for food from Project Share, to whom she had contributed in the past. As she recounted how she had been treated, she broke down when she said it was all “very overwhelming.”

157In the Commission’s pleading, Counsel requested general damages in the amount of $10,000, and damages for mental anguish in the amount of $10,000.

158According to Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 at paragraph 43 (Ont. Sup.Ct.), part of an individual’s rights is the “right to be free from discrimination and the experience of victimization.” Given the loss of dignity and personhood that she endured, the serious and humiliating nature of the infringements, and her marked vulnerability, I find that her general damages, including mental anguish, are $20,000 against the Respondents, jointly and severally.

Special Damages

159Since Ms. Jackson was terminated rather than accommodated, she also has the right to receive special damages for her loss of income, in accordance with subsection 41(1)(b) of the Code.

160The Commission has requested that the Tribunal award special damages for lost income for the period from December 2, 2002 until June 21, 2004, a period of 79 weeks, minus her wages earned during this period, as mitigation. The Commission chose June 21, 2004 as the end-period for its claim of special damages since it was the date Ms. Jackson obtained full-time employment elsewhere, after having accepted a few contract positions and having received Employment Insurance and social assistance benefits to mitigate her loss.

161I accept that Ms. Jackson made a serious effort to obtain new employment after her termination on December 2, 2002, including mailing out her resume and contacting temporary employment agencies (see: her viva voce evidence and Exhibit 11, which contain her letters of application).

162She was on Employment Insurance from her termination until April 17, 2003, when she started a new position at the law office of Brian Sinclair, Q.C., in Niagara Falls. Sadly, this position suddenly ended two months later, because of Mr. Sinclair’s untimely death (see: Exhibit 12, her reference letter from the Office Administrator of that office; Exhibit 21, her Tax Return for 2003; and her viva voce evidence).

163Human rights law is to be given a fair, large and liberal interpretation as will best ensure that its objects are attained, see: Canadian National Railway Co. v. Canada (Human Rights Commission) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114. In other words, the Code is remedial legislation, which is neither predicated upon an intention to discriminate nor does it contemplate punishment as an outcome.

164According to Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 at paragraphs 11-12, human rights jurisprudence is not bound by the principles developed in other contexts. There is no question that Ms. Jackson suffered economically because of her termination. Nevertheless, she secured other employment of a comparable nature, albeit a long-term contract position, and this brought the Respondents’ liability to an end. There is an insufficient nexus between the untimely death of her next employer and the Respondents’ discriminatory treatment of her to reinstate their liability for special damages. See: Naraine v. Ford Motor Co. of Canada (No.5) (1996), 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267 (Ont. Bd. Inq.); affirmed on other grounds 1999 CanLII 18727 (ON SCDC), 124 O.A.C. 39 (Ont. Div. Ct.); reversed (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465 (Ont.C.A.); leave to appeal refused [2002] 3 S.C.R. x (S.C.C.).

165I find that the period of unemployment for which the Respondents are liable is 11 weeks, and that her gross pay at Butler Insurance had been $350.00 per week. Thus, her compensation for her loss of income is $3850.00, minus the $843.60 she received under the Employment Standards Act, 2000.

Pre- and Post-Judgment Interest

166The Commission has sought pre-judgment interest, in accordance with section 127 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. Since Ms. Jackson’s Complaint is dated June 6, 2003, pre-judgment interest is awarded at 3 percent per annum, from June 9, 2003, to allow time for service.

167The Commission has also sought post-judgment interest, in accordance with the Courts of Justice Act, supra. It is hereby awarded from thirty days after the date of this Order, at 6 percent per annum.

Public Interest Remedies

168In its pleading, the Commission requested that all owners, directors and management employees of Butler Insurance be ordered to attend a training program facilitated by an expert on human rights issues and anti-discrimination principles including discrimination because of disability and the duty to accommodate.

169In accordance with subsection 41(1)(a) of the Code, within three months of this decision, I hereby direct that the Respondents, including all owners, directors and management employees, attend such a training program as requested by the Commission, and provide verification of same to Commission counsel.

ORDER

170The Respondents, Gary Butler and M. Butler Insurance Brokers Ltd., are jointly and severally liable to pay Anne Jackson the following amounts within thirty days of this Order:

(1) $20,000 as compensation for her loss of dignity and mental anguish from the infringements of her rights under sections (5)1 and 9 of the Code;

(2) $3006.40 as compensation for her loss of earnings; and

(3) pre-judgment interest on the awards, commencing on June 6, 2003, fixed at 3 percent per annum; and post-judgment interest on all of the above under the Courts of Justice Act, supra, fixed at 6 percent per annum, commencing thirty days from the date of this Order.

171Moreover, within three months of the date of this Order, the Respondents are hereby ordered to have Gary Butler, any other directors, and all of its management employees undergo a training program facilitated by an expert on human rights issues and anti-discrimination principles including discrimination because of disability and the duty to accommodate, so as to achieve compliance with the Code in respect of their current and future conduct and practices, and provide verification of same to Commission Counsel.

172I will remain seized of this matter for a period of twelve months from the date of this Order, so that I may deal with any implementation issues that arise.