Grzesiak v. 1263699 Ontario Limited (formerly DOT Benefits Corp.), 2008 HRTO 206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Grzesiak

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

1263699 Ontario Limited (formerly DOT Benefits Corp.) and Martin Shaw

Respondents

DECISION

Adjudicator: David J. Mullan

Date: October 29, 2008

Citation: 2008 HRTO 206

Indexed as: Grzesiak v. 1263699 Ontario Limited (formerly DOT Benefits Corp.)

Human Rights Tribunal of Ontario

655 Bay Street, 14th Floor

Toronto ON M7A 2A3

Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar-transition@ontario.ca

Website www.hrto.ca

APPEARANCES

Michael Grzesiak, Complainant ) On his own behalf

Ontario Human Rights Commission ) Kikee Malik, Counsel

1263699 Ontario Limited (formerly )

DOT Benefits Corp.) and ) Benjamin Salsberg, Counsel

Martin Shaw, Respondents )

INTRODUCTION

1Michael Grzesiak, the complainant, was employed by the corporate respondent, 1263699 Ontario Limited (formerly DOT Benefits Corp.) ("DOT Benefits"). DOT Benefits brokered a full range of insurance products including employment group insurance. Martin Shaw, the personal respondent, was the President of DOT Benefits. From 1999 onwards, Mr. Grzesiak, who by that time was Vice President of Sales and Marketing, suffered recurrences of heart problems necessitating both treatment and medication. In early 2001, Mr. Grzesiak went on short-term disability ("STD") because of side effects caused by medication that he was taking for his heart condition. He never returned to DOT Benefits.

2In May 2001, as a result of a meeting on May 22 between Mr. Grzesiak and Mr. Shaw, Mr. Grzesiak's employment at DOT Benefits effectively came to an end. Mr. Grzesiak alleged that Mr. Shaw dismissed him. Mr. Shaw claimed that Mr. Grzesiak had resigned either at that time or the following month by reason of the contents of a solicitor's letter that was sent to Mr. Shaw. Acting on his version of the situation, in November 2001, Mr. Grzesiak filed a complaint with the Human Rights Commission (the "Commission"). He complained that his employer and Mr. Shaw, by dismissing him, discriminated on the ground of disability (his heart condition and reaction to medication used to treat that condition). He alleges that this amounted to a violation of sections 5(1), 9 and 17(2) of the Human Rights Code, R.S.O. 1990, c. H.19 (as amended) (the "Code").

3As well as being an officer of DOT Benefits, Mr. Grzesiak and his wife, Marlene, were common shareholders in a numbered company, 1244584 Ontario Ltd. that effectively owned DOT Benefits. In his complaint, Mr. Grzesiak alleged that DOT Benefits and Mr. Shaw refused to provide them with information to which they were entitled about their financial interests in that company. He also contended that they deprived him and his wife of dividends on their shares to which they were entitled. He asserted that this constituted a further violation of the Code: contrary to section 8, taking reprisals against him for making a claim of discrimination and subsequently filing a complaint of discrimination.

4For their part, the respondents, in addition to claiming that Mr. Grzesiak resigned, asserted in the alternative that they did not dismiss Mr. Grzesiak on the basis of disability and that, in any event, to have accommodated him by continuing his employment would have led to undue hardship in terms of section 17(2) of the Code.

5The Commission sought various remedies, including general damages for both violation of the complainant's right to be free from discrimination and mental anguish caused by the respondents' allegedly wilful and reckless infringement of Mr. Grzesiak's rights under the Code, as well as special damages for loss of wages and benefits, lost interest on RRSPs that Mr. Grzesiak cashed in to invest in the business, additional mortgage interest charges resulting from a refinancing of the family home, and withheld dividend income. The Commission also sought pre- and post-judgment interest on any amount awarded under these headings as well as public interest remedies and, more particularly, an order that the corporate respondent hire a human rights specialist to develop and implement an anti-discrimination policy with special emphasis on disability and the duty to accommodate.

decision

6The respondents violated Mr. Grzesiak's right under section 5 of the Code to equal treatment and freedom from discrimination on the basis of disability. This occurred when the personal respondent, Mr. Shaw failed to accommodate Mr. Grzesiak's disability in respect of his employment with the corporate respondent, DOT Benefits. While the duty to accommodate Mr. Grzesiak did not extend to the preservation of his current job and responsibilities with the corporate respondent, it did oblige the corporate respondent, acting through Mr. Shaw, to preserve Mr. Grzesiak's entitlement to at least modified employment with the company once he had recovered from his disability. Mr. Shaw then compounded this violation of Mr. Grzesiak's rights under section 5, by taking reprisals against him for asserting his rights under the Code. This constituted an infringement of section 8

7As a consequence, the respondents are jointly and severally liable to pay the complainant general and mental anguish damages of $30,000. The corporate respondent is also liable for special damages (representing lost wages) of $124,000. These awards are subject to pre-judgment and post-judgment interest as detailed in the Tribunal's Order. As well, DOT Benefits should develop an anti-discrimination policy with particular attention to disability and accommodation, also as detailed in the Order.

PReliminary and other rulings

Issues Surrounding Shareholding

8Among other motions, the respondents applied for an order striking the Commission's claim for dividends on the complainant's common shares, claiming that the Tribunal had no jurisdiction to order that form of relief. For its part, the Commission applied to amend its original pleadings to include further grounds for relief based on the treatment of Mr. Grzesiak as a shareholder in the respondents' business. Following a hearing on December 8, 2006, I dismissed the respondents' motion to strike and allowed the Commission's amendment to its pleadings subject to the condition that any issue as to the treatment of the complainant as a shareholder was to be dealt with in the context of the Commission's allegations of reprisal contrary to section 8 of the Code.

9Thereafter, the respondents filed an amended pleading in which they alleged that the complainant had entered into a contract for the sale of his shares in the numbered company that controlled DOT Benefits and had wrongfully refused to complete that contract. On January 16 at the commencement of the hearing, the Commission moved for an order striking that allegation from the amended pleading. I rejected the Commission's motion ruling that the allegation was potentially relevant to the issue of reprisal in that it might provide a justification for any refusal by the respondents to provide information and a failure on their part to pay Mr. Grzesiak any dividends to which he was entitled. I also ruled that, in any event, evidence as to this alleged contract might well be necessary as part of the overall context of the matters in dispute. Thereafter, the respondents' amended pleading was admitted on consent.

Transcripts

10On January 16, counsel for the respondents moved that I make an order that the proceedings be recorded on the basis that the determination of the complaint hinged on issues of credibility. Not to have access to an official transcript in those circumstances would prejudice the determination of any application to the Divisional Court for judicial review of the Tribunal's final decision. I rejected this application. The relevant Practice Direction stated that the "Tribunal does not record or transcribe its proceedings". To make an order requiring the recording of the hearing because issues of credibility were involved would in fact seriously undermine the Practice Direction given the extent to which issues of credibility arose in the course of hearings on complaints under the Code. I did, however, rule that, in accordance with the discretion conferred on me by the Practice Direction, counsel for the respondent was entitled to employ at his own expense a court reporter to make a transcript of the proceedings. Thereafter, a qualified court reporter attended and recorded some, but not all, of the hearing.

11However, on January 17, counsel for the Commission sought to reopen my ruling that the respondents could use a court reporter to make a transcript of the proceedings. Ms. Malik applied to make that ruling conditional on the respondents providing the Commission and Mr. Grzesiak with access to any transcript. She relied on two previous Tribunal rulings, one of which was Heintz v. Christian Horizons and Girling, (unreported interim decision of the HRTO). This motion elicited a response from counsel to the respondents that he was perfectly prepared to share any transcript with counsel for the Commission and the Tribunal. He also asserted that by using a certified court reporter, he was creating an official transcript of the proceedings. I expressed scepticism about that claim, but ultimately did not rule on either the Commission's motion for access to the transcript, Ms. Malik being prepared to accept Mr. Salsberg's undertaking as an adequate response, or the issue of whether any transcript of the proceeding prepared by a certified court reporter under Mr. Salsberg's directions constituted an official transcript. It was agreed that any ruling on that second issue could be postponed until the point at which it became necessary. I did, however, intimate to Mr. Salsberg that I would not be accepting his offer of a copy of any transcript that was produced during the hearing.

Notes Composed by Mr. Grzesiak

12On January 17, following a voir dire, I ruled that Mr. Grzesiak could not use notes that he had compiled a week or so after his May 22 meeting with Mr. Shaw. These notes recorded Mr. Grzesiak's recollection of discussions about his shareholding in the business that had allegedly taken place at an earlier meeting with Mr. Shaw on March 23. On cross-examination, Mr. Grzesiak conceded that the content of the notes recording his recollection of the March 23 meeting may have been affected by the fact that he was operating under the assumption that Mr. Shaw had dismissed him on May 22. In all the circumstances, the probative value of any evidence resulting from reference to the notes would not outweigh the dangers associated with allowing recourse to a non-contemporaneous record made in the aftermath of a subsequent meeting that the Complainant regarded as extremely prejudicial to his employment.

FACTS

General Background

13Michael Grzesiak, who was born on December 18, 1949, graduated in business administration from Mohawk College in 1976. Upon graduation, he joined Great West Life Insurance Company ("GWL") and remained there until 1992, attaining the position of Manager of Group Insurance. During his time at GWL, he came to know the personal respondent, Martin Shaw. Mr. Shaw had a physical education degree from McGill University and also had been working in the insurance industry since his graduation in 1974. From late 1989, GWL was selling insurance products (through Mr. Grzesiak) to KRG Insurance Brokers ("KRG"), a company that Mr. Shaw had just joined as Vice President, Life Insurance, Group Department.

14In January 1993, on learning that Mr. Grzesiak had resigned from GWL to pursue other opportunities, Mr. Shaw, then KRG's Chief Operating Officer, offered Mr. Grzesiak a position that he accepted. At KRG, Mr. Grzesiak worked principally on large group insurance plans acting as a broker or intermediary between clients and the suppliers of group insurance products. In that capacity, he reported directly to Mr. Shaw. Thereafter, Mr. Grzesiak remained with Mr. Shaw when, in late 1997, KRG sold its life and group insurance business to a short-lived consortium of Mr. Shaw and two others, PAN Financial Services ("PAN"), and then again in late 1998, when the joint venture folded with Mr. Shaw retaining PAN's group life insurance business through DOT Benefits, for which the holding company was 1244584 Ontario Inc.

15At the time that PAN broke up, Mr. Shaw needed capital for his new venture and accepted Mr. Grzesiak's offer of financial assistance. This took the form of the purchase of 150,000 $1 common shares in 1244584 Ontario Inc., 124,000 in the name of Mr. Grzesiak and 26,000 in the name of his wife, Marlene. The Grzesiaks financed this purchase by transferring some of their RRSP investments. Mr. Grzesiak testified that he believed that DOT Benefits and the numbered holding company were the same entity, and that some of DOT Benefits' corporate lawyers would also be investing in the company. The purchase was not accompanied by any buy-sell agreement for redemption of the shares.

16From late 1998 until his employment with DOT Benefits ended, Mr. Grzesiak, as Vice President of Sales and Marketing, continued to handle clients with large group insurance requirements in Canada and more particularly in the United States. From February 1999, he became General Manager of DOT Benefits with responsibility for senior management human resources issues. By 2001, his employment income was $114,468.12. He received a vehicle allowance of $500 per month. As well, in 2000, DOT Benefits made monthly payments on the Grzesiaks' vehicles ($629 (Mr. Grzesiak) and $586 (Ms. Grzesiak)) and also paid their annual car insurance ($1161 and $1600 respectively). As well, it paid Ms. Grzesiak's personal company, MWP Services, $1033 a month, even though she was not rendering any services to DOT Benefits. All of this amounted to approximately $151,000 in 2000, the last full year that Mr. Grzesiak worked for DOT Benefits.

17Mr. Grzesiak worked long hours (including weekends) and travelled a great deal. During this period, business prospered and, at least until late 1999, Mr. Shaw and Mr. Grzesiak had a strong and collegial working relationship. Mr. Shaw was primarily involved in the life insurance and individual policy side of the business but they were in daily contact discussing problems and solutions and keeping each other abreast of the affairs of the business.

18However, Mr. Grzesiak had a medical history. From childhood, he had had a heart murmur and, eventually in 1988 while he was working at GWL, he was diagnosed as having a leaky heart valve. This necessitated surgery and Mr. Grzesiak was off work for two months. In 1997, after experiencing light-headedness while doing heavy lifting at home, Mr. Grzesiak again sought medical help. On this occasion, the diagnosis was atrial fibrillation or an irregular heartbeat. His cardiologist recommended cardioversion treatment, which Mr. Grzesiak undertook. It involved a week off work from PAN. From that point on, Mr. Grzesiak took medication, though initially without any adverse reactions.

19In October 1999, Mr. Grzesiak again experienced atrial fibrillation while on a business trip to Dallas. The upshot of this was a change in medication on the basis that the previous medication was not controlling Mr. Grzesiak's arrhythmia. In December 1999, when Mr. Grzesiak's arrhythmia was still not under control, his cardiologist increased the dosage of the two prescribed medications: amiodarone and atenelol. These are drugs with known side effects such as loss of concentration, decreased cognitive skills, and malaise and fatigue. Right from the outset, Mr. Grzesiak started feeling the effects of the drugs and, by the middle of 2000, they were becoming more pronounced. He could no longer effectively multi-task or prioritize his work, he was becoming increasingly forgetful, and began to feel that his work was out of control. Indeed, Mr. Grzesiak's performance was suffering in various ways and most particularly in terms of organization and output, and Mr. Grzesiak's co-workers and Mr. Shaw noticed it.

20Though Mr. Grzesiak was aware at least from the middle of 2000 that something was amiss, he did not do anything about it initially but continued to take the prescribed medication. However, he eventually determined that his condition was probably the result of the medication and, on January 3, 2001, went back to his family physician, who, among other things, referred him back to Dr. David McConachie, the cardiologist who initially had prescribed the course of medication.

Events Relating to Complainant's Leave and Eventual Separation from his Employment

21Independently of this, but only a few days later, Mr. Shaw approached Mr. Grzesiak and suggested that he might take some time off work as a way of facilitating a return to his previous levels of productivity. Mr. Grzesiak was reluctant to accept this suggestion and wanted to work through his problems. However, on January 16, he agreed to take time off. His leave commenced on January 19, after discussions about a salary top-up and combination of other benefits while he was on short-term disability ("STD").

22Once on leave, Mr. Grzesiak met with various physicians with a view to determining what was wrong with him and what needed to be done. On February 6, 2001, he had his appointment with Dr. McConachie. As a result of this consultation, the doctor took Mr. Grzesiak off amiodarone, and arranged for him to see Dr. Harris, an electro-cardiologist, to discuss, among other options, the insertion of a pacemaker as a possible alternative to continuing with medication. This appointment was scheduled for May 23.

23During this time, Mr. Grzesiak was in frequent contact with his employer. He submitted the documentation in support of his STD application and it was agreed that DOT Benefits would top up his STD to the level of his existing salary and continue his various other benefits as long as he was on STD. On both the employee's and treating physician's forms filed in support of the STD application, the reason for STD was described as a reaction to medication with the physician's form also describing his heart condition and the symptoms from which he was suffering.

24Following this, Mr. Grzesiak also spoke to Mr. Shaw on the telephone on a few occasions. Mr. Shaw states that, it was during one of these conversations that he learned that Mr. Grzesiak's problems were the result of an adverse reaction to medication. While Mr. Grzesiak indicated that he hoped to be back to work in two months at the latest, Mr. Shaw was sceptical about this. Mr. Grzesiak also suggested that he might be able to do some work from home while he was on STD. Mr. Shaw did not take up this offer. However, DOT Benefits' employees did in fact contact him from time to time to seek assistance with various files, and, in particular, those with pending renewals.

25On March 23, 2001, at Mr. Grzesiak's request, he met with Mr. Shaw. By this time, Connie Santos had actually been promoted to Vice President Operations on a permanent basis and had taken over most of Mr. Grzesiak's administrative responsibilities. (Mr. Grzesiak had become aware of this late in January.) The two men's account of this meeting varied. However, they did agree on some matters. Mr. Shaw told Mr. Grzesiak that he was not sure why Mr. Grzesiak wanted a meeting. He also asked whether Mr. Grzesiak still showered and shaved every day. Mr. Shaw officially told Mr. Grzesiak of Ms. Santos's promotion and that Mr. Grzesiak's position no longer existed as such. There was then some discussion of Mr. Grzesiak's capacities, when he might be well enough to return to work, and what role he might continue to have in the company. On the subject of his return to work, Mr. Grzesiak was still suggesting he might be well enough in a couple of months. According to Mr. Grzesiak, Mr. Shaw then raised the subject of a severance package. Mr. Shaw did not recollect any mention of a severance package though does recall saying that he was prepared to help Mr. Grzesiak financially as part of a transition to another role at DOT Benefits. He also testified that, at that stage, he, in fact, was operating on the assumption that Mr. Grzesiak would in fact never return to the company in his former capacity.

26Four days later, Mr. Grzesiak, worried about his financial stake in DOT Benefits and, in particular, the absence of any documentation on his shareholding, contacted Eli Gutstadt, corporate counsel to both DOT Benefits and the numbered holding company. Shortly thereafter, Mr. Shaw telephoned Mr. Grzesiak and told him that there was no need to involve lawyers and that he would instruct Mr. Gutstadt to send the relevant documentation to him.

27Thereafter, in April-May 2001, through Ms. Katz, another Vice President at DOT Benefits, Mr. Grzesiak prepared and submitted an application for long-term disability benefits ("LTD"). The medical documentation in support of that claim indicated that Mr. Grzesiak had been suffering from the side effects of medication prescribed for his heart condition, that there was a good prognosis for his recovery, and that significant improvement was expected in three to four months.

28The filing of this application for LTD led Mr. Shaw to contact Mr. Grzesiak to inquire what it meant. Mr. Grzesiak explained that he wanted to ensure income continuity should he not be able to return to work when his eligibility for STD elapsed on May 24. There was then some discussion of Mr. Grzesiak's salary top-up should he go on LTD. Following this conversation, Ms. Katz wrote to Mr. Grzesiak and asked him to make an appointment to see Mr, Shaw about "what was to transpire" once he was on LTD. By this, Ms. Katz meant and Mr. Grzesiak understood that there would be a discussion about the continuation of his salary top-up and other benefits, including DOT Benefit's payments on the Grzesiaks' cars. That meeting was arranged for May 22, one day before Mr. Grzesiak was scheduled to see the electro-cardiologist to discuss the possibility of the insertion of a pacemaker.

29The accounts of the May 22 meeting vary dramatically. Mr. Grzesiak was adamant that Mr. Shaw informed him that, because of all the uncertainties about when he would return to work and whether he would ever be able to function at his previous level, he was terminating him and had instructed Mr. Gutstadt to put together a severance package. According to Mr. Shaw, he did not say that he was dismissing Mr. Grzesiak. Rather, the conversation involved Mr. Grzesiak's future and different role in the company and the discontinuation of the salary top-up and other benefits once Mr. Grzesiak went on LTD. Ms. Katz attended some of the meeting and testified that, while she was there, redeployment and the logistics of Mr. Grzesiak going on LTD were the topics discussed. When Ms. Katz left the meeting, the two men continued to talk about the salary top-up, the continuation of other benefits, as well as possible arrangements for the purchase of the Grzesiaks' shares. Mr. Shaw insisted that the company was not in a position to continue the arrangements that had been in place during the period of STD. It was in that context that Mr. Grzesiak said the conversation turned to a severance package and the termination of his relationship with DOT Benefits. Mr. Shaw was adamant that he did not dismiss Mr. Grzesiak at that time though he did admit to seeing Mr. Grzesiak's application for LTD as an indication that he would not be returning to DOT Benefits.

30Thereafter, however, Mr. Grzesiak acted as though he had been terminated. He told his wife that day that he been terminated. He contacted his sister to secure the name of a lawyer. He met with his pastor, Val Dodd, to discuss his termination. When he did not receive a severance package by the end of May, he contacted Mr. Shaw on June 4, 2001 and again on June 7, 2001 inquiring about the severance package. Even by Mr. Shaw's own account of those calls, he did not provide straight responses to Mr. Grzesiak's assertions that he had been terminated. In other words, seemingly aware of Mr. Grzesiak's impression that he had been dismissed, he chose to leave the situation ambiguous. Moreover, on June 4, Ms. Katz prepared a Record of Employment for Human Resources Development Canada, a document used in determination of eligibility for employment insurance and other benefits. On this form, she recorded the reason for cessation of employment as "illness or injury" rather than "quit", and indicated that the date of recall was unknown.

31Earlier, by letter dated May 29, Mr. Gutstadt had provided the Grzesiaks with particulars about both corporations and the Grzesiaks' holdings in the numbered company. This revealed that the numbered company was the sole shareholder of DOT Benefits. Mr. Shaw and his wife, Betty were the Directors and Officers of both companies. 150,000 series 1 common shares in the numbered company were held in trust for the Grzesiaks and the remaining 1,250,605 common shares were held by another numbered company. That same numbered company held 164,999 series 2 common shares. KRG Management held 252,000 class A preference shares. There were 164,999 series 1 class B preference shares held in trust for various individuals including members of the law firm that represented DOT Benefits' and the numbered company's corporate interests. Finally, the other numbered company owned 1,501,658 series 2 class B preference shares. Amendments to the numbered company's Articles of Association set out the rights of the holders of the various classes of shares. In Acknowledgments to the Letters of Indemnity executed by the Grzesiaks, they acknowledged that they had been advised to seek independent legal advice prior to executing the Letters of Indemnity and had declined that opportunity. Among other things, the Letters of Indemnity indicated that the shares were held on trust for the Grzesiaks within RRSP accounts.

32On June 14, counsel instructed by Mr. Grzesiak sent a letter to Mr. Shaw alleging termination in violation of the Code. Mr. Shaw was annoyed at this. He testified that he interpreted it as an attempt to force him into paying Mr. Grzesiak more money because he was not able to exist on his LTD payments. He also stated that he was upset by the accusation that he had violated the Code. As a consequence, he decided not to speak to Mr. Grzesiak again. However, he did instruct his counsel to send Mr. Grzesiak's lawyer a letter dated July 5, 2001 asserting the he did not terminate Mr. Grzesiak, but rather that Mr. Grzesiak had resigned.

33In the meantime, Mr. Grzesiak met with the electro-cardiologist on May 23, 2001, and decided to have a pacemaker inserted and an AV node application procedure performed. These procedures happened on July 5 and August 15, 2001 respectively. After that, he started to work on rehabilitation through a consultant provided by the LTD carrier. By December, these rehabilitation efforts had borne fruit to the extent that Mr. Grzesiak commenced preparations to go into business on his own. One of his initiatives involved enclosing his business card in Christmas cards to some employees of DOT Benefits' clients.

34During this period, Mr. Grzesiak contacted the Commission and completed an intake questionnaire. He then filed a complaint of discrimination on November 26, 2001 and it was served on the respondents in early December.

35As well, he and Ms. Grzesiak sent letters to Mr. Shaw on October 11 and November 7, 2001 requesting further information about his shareholding, including financial statements for both DOT Benefits and its holding company for 1999-2001. The Grzesiaks' lawyer then sent a similar demand on December 12. Mr. Shaw did not reply to any of these. In testimony, he stated that he had no desire to assist Mr. Grzesiak any further, particularly after Mr. Grzesiak had arranged for the July 5 solicitor's letter and accused Mr. Shaw of discrimination.

36On January 14, 2002, the respondents filed a reply to Mr. Grzesiak's human rights complaint. In this response, they asserted that Mr. Grzesiak's June 14 claim that he had been terminated on May 22 amounted to constructive or actual resignation. Nonetheless, they asserted that Mr. Grzesiak could have resumed his employment once he was again able to discharge his responsibilities, or, if that was not feasible, that they had been prepared to consider other possibilities. Indeed, the reply indicated that the respondents were still willing to do that.

37Thereafter, Mr. Grzesiak, through his counsel, kept the respondents apprised of the state of his rehabilitation and LTD entitlements. As well, Mr. Grzesiak also wrote directly to Mr. Shaw in April 2002 asking when he could return to his position at DOT Benefits. This precipitated a telephone call from Mr. Shaw suggesting a meeting. That meeting was held on July 11, 2002. There was a frank exchange about a number of matters including DOT Benefits' concerns that Mr. Grzesiak was soliciting its clients improperly. Among the issues raised was whether there might be some place for Mr. Grzesiak in the company's operations going forward possibly as a consultant who would be brought in on large files. At the conclusion of the meeting, Mr. Shaw said that he would get back to Mr. Grzesiak.

38On July 17, 2002, Mr. Shaw wrote to Mr. Grzesiak advising him that "we" need more time to deal with the issues discussed at their meeting and also additional information prior "to considering your return to work." In this context, he requested a medical certificate from Mr. Grzesiak's doctor advising that he was now fit to return to work without any restrictions. In this context, Mr. Grzesiak supplied a medical certificate by letter dated July 24 indicating that he was ready to return to work and resume his normal duties immediately. Nothing happened as a result of this or a further letter of inquiry from Mr. Grzesiak dated August 20 until Mr. Shaw wrote again on September 18 advising Mr. Grzesiak that his position as Vice President, Sales and Marketing no longer existed, claiming that he had resigned his position in 2001, and stating that in any event there was no comparable position available at that time. The letter also claimed that Mr. Grzesiak had solicited business from DOT Benefits' customers while he was on LTD.

39The next contact came in late 2002, when Ms. Grzesiak, increasingly concerned about the money that she and her husband had invested in the business, took it upon herself, with her husband's knowledge, to contact Mr. Shaw to discuss the possibility of a purchase of their shares. This meeting took place on December 4 and was followed by another meeting on December 18 attended by those two, Mr. Grzesiak and Eli Gutstadt. At that meeting, there was an agreement in principle reached for the repurchase of the Grzesiak's shares in the holding company. Further meetings and negotiations took place until October 2003. At that juncture, the Grzesiaks withdrew from the process unhappy with what they regarded as unacceptable delays in finalizing a settlement, a settlement that, incidentally, would have included a resolution of the employment-related issues.

40Following that, the only relevant direct communications between the Grzesiaks and Mr. Shaw were further requests in October and November 2004 for documents relating to Mr. Grzesiak's shares in the business. In December 2004, Mr. Grzesiak received various, though not complete, financial documentation respecting his shares. After consulting an accountant, Mr. Grzesiak made a request for further information in February 2005 but there was no response to that request.

Accommodating Mr. Grzesiak's Absence

41Mr. Grzesiak remained on LTD until August 18, 2002. However, it is clear that the underlying conditions that caused him to go on first STD and then LTD had been resolved well before that and, in particular, in the wake of the insertion of a pacemaker and his undergoing the AV node application procedure in July-August 2001. By the beginning of 2002, as part of the rehabilitation programme, he was on his way to starting business on his own account. More importantly, in March 2002, the electro-cardiologist was reporting to the LTD carrier that there were no longer any restrictions on his return to work. Dr. McConachie's notes of a consultation with Mr. Grzesiak on March 14, 2002 reported that he was coming on.

42On March 13, Mr. Grzesiak's lawyer wrote to Mr. Salsberg informing him that Mr. Grzesiak would be available to resume his position on May 13 and asking him to advise Mr. Shaw. When there was no response, Mr. Balter, the lawyer, again wrote to Mr. Salsberg on April 8. This produced an apologetic letter from Mr. Salsberg and a statement that he would now let Mr. Shaw know. Also, on April 30, Mr. Grzesiak himself wrote to Mr. Shaw asking when he could return to his position. All of this indicated that Mr. Shaw could have returned to his position at DOT Benefits at least by the end of March or beginning of April 2002, or approximately fifteen months after he had gone on STD, and that he had made it clear to DOT Benefits and Mr. Shaw that he was available for work as of May 13. This is not affected by the fact that he remained on LTD until August 18 of that year. The LTD carrier was prepared to extend the period of LTD beyond the point at which he had recovered from his original problems to accommodate his undergoing shoulder surgery.

43Of course, it was not necessarily predictable in May 2001 that Mr. Grzesiak would be able to return to regular work as soon as the end of March 2002. On May 22, the prognosis was still uncertain even if the underlying causes (an allergic reaction to medication) were known. However, as of May 23, 2001, and Mr. Grzesiak's consultation with Dr. Harris, the cardiologist, it would have been known that there were prospects that Mr. Grzesiak's problems and need for heart medication could be eliminated by the insertion of a pacemaker and undergoing the AV node application procedure. As well, Dr. McConachie testified that it would take an average of six months for amiodarone to be totally eliminated from Mr. Grzesiak's system from February 2001 and the point at which he had ceased to take it. Knowledge of these facts would have provided a better basis for an assessment of whether Mr. Grzesiak would recover and how long that might take.

44Mr. Grzesiak performed a unique and a critical role in DOT Benefits' group insurance business. He was the manager of that division (one of three) of DOT Benefits, a division that at the time employed five people working full time and one part time. However, none of the existing employees had the experience necessary to handle the large accounts that Mr. Grzesiak carried and for which he acted as the senior benefits analyst. While this was work that Mr. Shaw could have done, he did not have Mr. Grzesiak's knowledge and experience on this side of the business. I also accept that, while he was able to carry part of Mr. Grzesiak's load for a short time and roughly corresponding to the seventeen weeks Mr. Grzesiak was on STD, for Mr. Shaw to have continued to do this any longer would have been to the overall detriment of the business in that it was taking him away from what he did best: selling product. In any event, it had increased Mr. Shaw's stress level and the time that he had to spend on the business to an extent that Mr. Shaw felt was intolerable in the long run.

45As a consequence, once he learned that Mr. Grzesiak was applying for LTD, Mr. Shaw determined that this represented a further period of uncertainty that he could not endure in a business sense. Starting in May 2001, he then started to make other arrangements to cope with Mr. Grzesiak's absence from the workplace over and above the earlier promotion of Ms. Santos. Ms. Santos was not trained to handle the principal components of Mr. Grzesiak's work nor was Ms. Sally Finnson, the Junior Accounts Manager in the group insurance division who assisted Mr. Grzesiak but was very much his junior in terms of experience. As a consequence, Mr. Shaw went into the market place and over the next few months hired replacements for Mr. Grzesiak: a Senior Accounts Manager, a Senior Benefits Analyst, and, though this might have been required anyway given the growth in the business, a Customer Service Manager. Among them, these three, along with Ms. Santos, eventually were covering all the roles for which Mr. Grzesiak was responsible when he went on STD, even if not totally to Mr. Shaw's satisfaction.

46What does, however, stand out in the decision to both recruit and reconfigure job responsibilities in the group insurance division is that this decision was taken without any explicit discussions with Mr. Grzesiak about the state of his health and current prognosis for recovery and ability to return to the workplace. Mr. Shaw was well aware by May of the nature of Mr. Grzesiak's health problems – continuing heart difficulties and an allergic reaction to medication. He also stated that, either at the March 23 meeting with Mr. Grzesiak or from some other conversation in that period, he became aware that Mr. Grzesiak was looking into the possibility of a pacemaker as a solution to his problems. In those circumstances, it is difficult to see why Mr. Shaw, when faced with the problems caused by the absence of a critical member of his team and the almost certain difficulties involved in replacing him, would not have made every endeavour to inform himself fully as to the current state of Mr. Grzesiak's health and the possibility of an informed prediction of a possible date at which he could return to the workplace. Instead, he appears to have assumed the worst from the knowledge that Mr. Grzesiak was applying for LTD and his sense that Mr. Grzesiak had no intention of returning to the same position he occupied at DOT Benefits at the time he went on leave. As a consequence, the issue of Mr. Grzesiak's condition was not even an agenda item at the May 22 meeting, nor, did Mr. Grzesiak raise the issue, despite his appointment with the electro-cardiologist the following day.

Mr. Grzesiak's Post-Recovery History

47As part of the rehabilitation programme in which he was involved while on LTD, Mr. Grzesiak started making plans to go into the insurance business on his own account. This started slowly in that, in 2002, his income from that business was only $1467.60. Subsequently, however, he became more successful. In 2003, in his tax return, he reported self-employment income of $54,455.73. For 2004, it was $40,101.98 and for 2005, $68,733.81. He also estimated his 2006 income as around $60,000.

48The respondents did not contest these figures nor did they seriously raise any issue that Mr. Grzesiak had failed to take adequate steps to mitigate the consequences of the end of his employment at DOT Benefits. However, Mr. Shaw did testify that he believed that Mr. Grzesiak was merely creating a paper trail for legal purposes when he made himself available to return to work at DOT Benefits in April 2002, this being in part a reaction to DOT Benefits and Mr. Shaw's pleading in response to Mr. Grzesiak's human rights complaint that they remained open to have him return to his former position or in some other capacity. For this and other reasons, he did not take Mr. Grzesiak's offer seriously and ultimately rejected it in his letter of September 18, 2002.

49Among the reasons provided in that letter for refusing to take Mr. Grzesiak back was that Mr. Grzesiak had, during his time on LTD, attempted to solicit DOT Benefits clients and that this provided them with a legal basis to terminate in any event. In fact, towards the end of 2001, Mr. Grzesiak had business cards printed and he included one of them in a number of Christmas cards that he sent to employees of clients with whom he had dealt while still working at DOT Benefits. While this was perhaps an unwise way of letting these people know that he was still around, no other promotional material accompanied the cards, and Mr. Grzesiak was firm in his denial of the suggestion made during cross-examination that he had actually contacted clients of DOT Benefits by telephone soliciting business.

The Critical Factual Issues

50In determining whether the respondents violated the Code by discriminating against Mr. Grzesiak for employment purposes on the basis of disability and taking reprisals against him for making a complaint under the Code, there are a few potentially critical disputed facts that the Tribunal needs to address:

1. When and to what extent were the respondents either actually or constructively aware of Mr. Grzesiak's disability?

2. Did Mr. Grzesiak resign his position or did Mr. Shaw dismiss him, and, if the latter, on what basis did that dismissal take place?

3. Why did the respondents fail to provide Mr. Grzesiak with information as to his shareholding in 1244584 Ontario Ltd. following the filing of his human rights complaint?

1. Awareness of Mr. Grzesiak's Disability

51The testimony of Mr. Grzesiak and Mr. Shaw differed considerably on the degree to which Mr. Grzesiak had made Mr. Shaw aware of the fact that his heart medication was affecting his health and performance in the workplace. Without pointing to any specific conversations, Mr. Grzesiak testified that this was a situation of which he had made Mr. Shaw and others at DOT Benefits aware at least towards the end of 2000. Mr. Shaw testified that there was no such conversation. While he was fully aware that Mr. Grzesiak had a heart condition, Mr. Grzesiak prior to the end of 2000 had not apprised him of the fact that his performance in the workplace was suffering as a consequence of an adverse reaction to medication. Rather, in his mind, Mr. Shaw traced the defective performance back to the death of both Mr. Grzesiak's parents in 1999.

52On the preponderance of the evidence, I prefer Mr. Shaw's account of the state of his knowledge during the latter part of 2000. While Mr. Grzesiak saw his cardiologist, Dr. McConachie in October of that year and believed that he might have raised the issue of his medication at that time, neither Dr. McConachie's testimony nor his notes supports this. The issue of reaction to medication was not raised with Dr. McConachie until the consultation of February 6, 2001. Otherwise, Mr. Grzesiak did not seek medical attention during the latter part of 2001 and, indeed, testified that his awareness that medication might be causing his problems came from his research on the Internet. Neither man testified that the causes of Mr. Grzesiak's problems were discussed during the two meetings in early January 2001 that led to Mr. Grzesiak agreeing to go on leave. It also became clear in the course of their respective testimony not only that Mr. Grzesiak was someone who was reticent about sharing details with his employer about his state of health and problems but also that Mr. Shaw was not really interested in those details. Mr. Shaw's interest took the form of a more generalized concern about Mr. Grzesiak's diminished performance, irrespective of its cause, and what steps were necessary to bring about a return to previous levels of productivity.

53What is clear, however, is that some time in January or early February 2001, Mr. Shaw did become aware that Mr. Grzesiak's problems were associated with an allergic reaction to medication. Indeed, in his testimony, he admitted as much. It is also the case that DOT Benefits, at the very least through the agency of Ms. Katz, was apprised of this information through the documentation that Mr. Grzesiak and his physician, Dr. Pyle, provided in support of his STD application. There was also no suggestion in the testimony of the two principal protagonists that, at the time of their meetings in March and May 2001, the situation had been alleviated to the extent of allowing Mr. Grzesiak to return to full-time work. Moreover, it is also clear that Mr. Shaw was prepared to simply accept this as the prevailing situation at the time of these meetings. Otherwise, he would have asked for a medical certificate, something he never did until July 17, 2002 in reaction to Mr. Grzesiak stating that he was now able to return to the workplace full-time. DOT Benefits, once again through Ms. Katz at least, knew that Mr. Grzesiak remained disabled from the information provided in the context of Mr. Grzesiak's LTD application. There is therefore no basis for any claim that DOT Benefits and the personal respondent were unaware of or inadequately informed about the disability afflicting Mr. Grzesiak during the relevant period.

2. Resignation or Dismissal?

54Mr. Shaw testified that Mr. Grzesiak had made it clear, perhaps as early as their encounter on January 8, 2001, that he no longer wanted to remain in his current position with DOT Benefits. By the end of the meeting of May 22, 2001, this had become a conviction on his part that Mr. Grzesiak would not be returning to DOT Benefits in any capacity and that, at the very least, Mr. Grzesiak had resigned from his "position" at DOT Benefits, if not from the company itself. Mr. Grzesiak denied that he had ever done anything to create those impressions.

55It is certainly credible that, in the course of conversations between Mr. Grzesiak and Mr. Shaw against the backdrop of Mr. Grzesiak being unable to cope with his full range of responsibilities at DOT Benefits, there would be discussion about ways to deal with the pressures that he was experiencing, including a reduction in responsibilities and a reassignment of some of his less critical work. Indeed, whatever hurt Mr. Grzesiak felt, the promotion of Ms. Santos and the permanent reassignment of some of Mr. Grzesiak's management or human resources responsibilities to her bears a perfectly benign interpretation: that Mr. Shaw was taking steps to make Mr. Grzesiak's position at DOT Benefits less pressured and more manageable.

56However, it is my finding that Mr. Shaw had no real basis for assuming that Mr. Grzesiak did not intend to return to his principal responsibilities at DOT Benefits: running the portfolio of large group clients and particularly those in the United States. Given the continuing uncertainties, even through May 22, about the state of Mr. Grzesiak's health, it is far more likely that, while job reassignment was discussed, those discussions were on a contingency basis and did not reflect any expressed intention on Mr. Grzesiak's part to give up on his principal work with the company, let alone resign totally.

57Both men agreed that it took a lot of persuasion on Mr. Shaw's part to convince Mr. Grzesiak to go on leave and there was no suggestion in that context that Mr. Grzesiak was asking for major relief from his existing responsibilities as an alternative. Mr. Grzesiak also asked Mr. Shaw to let him work part-time from home while he was on STD, an offer that Mr. Shaw in effect declined. Yet, nonetheless, Mr. Grzesiak continued to assist colleagues on files during this period. This scarcely bespeaks an intention to undertake a radical configuration of his responsibilities at DOT Benefits and is totally inconsistent with an intention to sever his connections with the company.

58From the perspective of whether Mr. Shaw was from January 2001 setting the scene for a possible dismissal of Mr. Grzesiak, the evidence at least until the meeting of May 22 does not support this. As already indicated, the promotion and reassignment of some of Mr. Grzesiak's responsibilities to Ms. Santos do not give rise to such an inference. The only other indicator might have been Mr. Grzesiak's testimony that the possibility of a severance package was discussed at his meeting with Mr. Shaw on March 23. However, his testimony on that point vacillated and, more than likely, he was conflating this meeting with that of May 22. At most, what was raised at this meeting, as recollected by Mr. Shaw, was the issue of the financial implications of any possible transition on Mr. Grzesiak's part to a different role at DOT Benefits.

59Given this, what actually took place at the meeting between the two men on May 22 is potentially of great relevance. Underlying the entire conduct of this meeting were differing assumptions as between Mr. Grzesiak and Mr. Shaw as to the purpose of the meeting. Mr. Grzesiak believed that the meeting was to settle upon arrangements for salary top-up and the continuation of other benefits when he made the transition from STD to LTD. Mr. Shaw saw the meeting as one in which they would discuss the kind of role that Mr. Grzesiak would play in the company if and when he returned from LTD, and to discuss the administrative arrangements for discontinuing Mr. Grzesiak's benefits now that the STD period was coming to an end. Ms. Katz, who attended part of the meeting, confirmed that she was also of the same mind as Mr. Shaw as to the purpose of the meeting. Indeed, she also testified that, while she was present, these were the subjects that were discussed, an impression that she confirmed from contemporaneous notes.

60These differing impressions as to the purpose of the meeting coloured how each man interpreted what took place at the meeting. Mr. Grzesiak had little concrete basis on which to assume that DOT Benefits would continue to top up his salary and continue his other benefits while he was on LTD. Their one previous discussion of this possibility had left the matter dangling. Nonetheless, his testimony and that of his wife convinced me that this was in fact what he expected as a matter of course, and that he was deeply shocked when Mr. Shaw was dogmatic that he would not be doing this. I can certainly accept how this news, coupled with the fact that Mr. Shaw was now speaking concretely about a different role for Mr. Grzesiak, if and when he returned to the company, could have led Mr. Grzesiak to believe that he was being terminated from his position at DOT Benefits. In Mr. Grzesiak's mind, it was almost certainly reinforced by Mr. Shaw's reference to instructing Mr. Gutstadt to put together a package for Mr. Grzesiak's consideration, a statement that he interpreted as meaning a severance package.

61For his part, Mr. Shaw was clearly of the view that, notwithstanding Mr. Grzesiak's financial stake in DOT Benefits, the company's voluntary support of Mr. Grzesiak's overall pre-leave income and benefits did not extend to any LTD period. He also regarded the transition from STD to LTD as marking a point at which the needs of the business had to be considered. In particular, for Mr. Shaw, the continuing uncertainty as to the state of Mr. Grzesiak's health and the point at which he might be able to resume normal duties meant that he had to start looking actively for more than short-term adjustments to Mr. Grzesiak's absence. That he realised that these constituted decisions that Mr. Grzesiak would not appreciate was apparent from a remark that both men agreed that Mr. Shaw made: "However, I deal with these problems, I am going to look like the bad guy." When Mr. Grzesiak predictably did not react favourably to the realities that Mr. Shaw presented, it is therefore not surprising that Mr. Shaw would treat this as involving a crisis point in their continuing relationship even if not strictly a resignation.

62After listening to the testimony of both men and their response to cross-examination, it is clear that, viewed objectively, Mr. Shaw was not dismissing Mr. Grzesiak nor did Mr. Grzesiak resign. This conclusion is supported by the testimony of Ms. Katz albeit that she was only there for the middle stages of the meeting. Her characterization of the meeting was to the effect that the parties were in discussion over the two issues on the agenda. In no way did she see the meeting as one in which the outcome would necessarily be either a dismissal or a resignation if the two men did not come to terms. Rather, it was her impression that no final decisions were taken, a conclusion based presumably on what she heard at the meeting and what transpired later.

63This assessment of the events remains plausible even if the discussion between the two men moved on after Ms. Katz's departure (as contended by Mr. Grzesiak) to the question of the Grzesiak's stake in DOT Benefits and Mr. Shaw's willingness to arrange for them to be bought out. Such a conversation does not necessarily speak to the final rupture of the employment relationship whether by way of resignation or dismissal. It is just as consistent with Mr. Grzesiak trying to find some substitute for his lost income and benefits during the period of LTD.

64What is, however, particularly unfortunate about the events of May 22 is that, even at this stage, Mr. Grzesiak and Mr. Shaw were unwilling to talk frankly about the realities of Mr. Grzesiak's condition and the likely prognosis for recovery. At a critical meeting such as this, common sense would have suggested that Mr. Shaw should have pressed Mr. Grzesiak on what exactly the doctors were saying and whether there was any way of making some sort of estimate as to the possible date of his availability to resume normal duties. If he had asked those questions, it presumably would have elicited a response from Mr. Grzesiak to the effect that the very next day he was at long last seeing the electro-cardiologist and more concrete information might come out of that. However, Mr. Grzesiak cannot be absolved of blame for this lack of communication. Given the way in which the meeting unfolded, the least that he could have done was to have told Mr. Shaw that he was seeing the electro-cardiologist the next day and suggested that the outcome of that consultation might resolve some of the uncertainties.

65Notwithstanding all the communication failures, the evidence did establish that Mr. Grzesiak clearly believed not only that he had been dismissed but also that he would be receiving a severance package prepared on the advice of Mr. Gutstadt. In contrast, Mr. Shaw was somewhat more ambivalent as to whether Mr. Grzesiak had resigned. On balance, his testimony was to the effect that he believed that the upshot of the meeting was that Mr. Grzesiak had given up on his current position at DOT Benefits but without actually resigning from all forms of employment relationship with the company. Some confirmation for this is to be found in the form that Ms. Katz and prepared and submitted to Human Resources Development Canada for Employment Insurance benefit purposes. On this form dated June 4, 2001, which Mr. Shaw testified he authorized, Ms. Katz indicated that Mr. Grzesiak's separation from DOT Benefits was for reasons of health or injury. She did not use the Code for "quit". (I also accept her testimony when she says that by ticking the box indicating separation by reason of health or injury, she was not doing so on the basis that Mr. Grzesiak had been dismissed. The entire purpose for submitting the form was to ascertain whether Mr. Grzesiak could receive Employment Insurance ("EI") while on LTD.) It is also significant that, at another point in his testimony (and this was reasserted later in the pleadings in these proceedings), Mr. Shaw stated that he regarded the terms of the subsequent June 14 lawyer's letter as the moment at which Mr. Grzesiak had constructively resigned.

66In summary, my conclusion is that, irrespective of what Mr. Grzesiak believed, Mr. Shaw did not dismiss him on May 22, nor did Mr. Grzesiak resign, notwithstanding Mr. Shaw's suggestions that he had done so.

67However, what happened between Mr. Shaw and Mr. Grzesiak in the aftermath of that meeting is significant. In telephone conversations on both June 4 and 7 in which Mr. Grzesiak contacted Mr. Shaw to inquire what had happened with the severance package that Mr. Gutstadt was preparing, Mr. Shaw was clearly put on notice that Mr. Grzesiak believed that he had been dismissed on May 22. Indeed, Mr. Shaw admitted as much when he acknowledged that he did not give Mr. Grzesiak a straight answer when Mr. Grzesiak pressed him on whether he had really been dismissed. In each instance, Mr. Shaw did not carry out his commitment to get back to Mr. Grzesiak the following day on the state of their relationship and the severance package. Also, though his testimony was inconsistent with respect to his recollection of the two telephone conversations, Mr. Shaw, under cross-examination, admitted in relation to the second of these telephone conversations that he was becoming impatient with Mr. Grzesiak and did not want to talk about it any longer. As far as he was concerned, Mr. Grzesiak was about to go on LTD and his employment status could be dealt with once he was better.

68Needless to say, this did not alleviate Mr. Grzesiak's concerns and he took legal advice. That led to the lawyer's letter of June 14, alleging dismissal contrary to the provisions of the Code, and the July 5 response from the lawyers to both DOT Benefits and Mr. Shaw asserting that Mr. Grzesiak had "expressly resigned his position indicating to Mr. Shaw that he was no longer able to fulfil his duties and obligations associated therewith." By reason of this exchange of communications, the positions of the parties had solidified and an impasse had been reached.

3. Failure to Provide Information with Respect to Shareholding in Holding Company

69In the aftermath of his meeting with Mr. Shaw on March 23, 2001, Mr. Grzesiak had asked Mr. Gutstadt for documentation as to his shareholding in the business. On May 29, either solely in response to that request or to a follow-up request from Mr. Shaw in the wake of his May 22 meeting with Mr. Grzesiak, Mr. Gutstadt provided those details to Mr. Grzesiak. According to Mr. Grzesiak, the discussions on May 22 had also involved a possible repurchase of those shares. This issue was also raised in Mr. Grzesiak's lawyer's June 14 letter to Mr. Shaw. In his response, the lawyer to DOT Benefits and Mr. Shaw asserted that his clients were under no obligation to repurchase the Grzesiaks' shares. Subsequently, the Grzesiaks made two requests for additional information to which, as shareholders they were entitled. Then, following the filing and service of the human rights complaint, on December 12, 2001, their lawyer wrote to Mr. Shaw repeating this demand for information.

70These requests were met with silence. In testimony, Mr. Shaw was candid. Given the allegations that Mr. Grzesiak had made against him in the solicitor's letter of June 14, he was not intending to assist Mr. Grzesiak in any way. He was upset that Mr. Grzesiak was accusing him of Code violations and what he regarded as a dishonest attempt to extort money from him because of his refusal to top up Mr. Grzesiak's LTD payments and continue his other employment benefits.

71Following that, the Grzesiaks made no further requests for that information until the negotiations for a settlement of all aspects of the dispute between the parties broke down in October 2003. Then, a year or so later, they made two further demands and these were partially met in December 2004. When it appeared from the financial statements that had been provided at that time that in at least one year (2002) common shareholders had received a dividend in which the Grzesiaks had not participated, Mr. Grzesiak wrote again to Mr. Shaw on February 23, 2005 requesting clarification. There was no response. Thereafter, it was not until the hearing that the respondents provided an explanation to the effect that the holding company had not paid common shareholders a dividend in 2002 or any other year. Mr. Shaw justified his failure to respond on the basis that Mr. Grzesiak would have acquired the information about the dividends in the course of the settlement negotiations during 2002-2003, and that, by that stage, the matter was really in the hands of the Commission and that such matters should be channelled through that process.

72These events gave rise to allegations that Mr. Shaw took reprisals against Mr. Grzesiak for making a claim of and commencing a human rights complaint against him. The more serious of these was to the effect that he caused the holding company of DOT Benefits to withhold payment of dividends from the Grzesiaks at least in 2002 when all other common shareholders received a dividend.

73Without going into this in detail, the respondents' evidence convinced me that in fact the holding company did not pay dividends to any common shareholders in 2002 or in any other relevant year. Certainly, from the documentation provided in December 2004, it appeared as though the holding company had paid a dividend to common shareholders in 2002. Mr. Huffman, a Chartered Accountant that the Grzesiaks consulted told them that that was likely the case on his reading of the information that the company had provided in December 2004, and this opinion legitimately prompted the Grzesiaks to seek further information on February 25, 2005. Mr. Huffman testified to the same effect at the hearing. However, both Mr. Gutstadt, corporate counsel to both DOT Benefits and the numbered holding company and the keeper of the minutes of the meetings of both companies, and David Burstein, the companies' accountant provided convincing evidence to the effect that the financial statements for 2002 were in error to the extent that, on their face, they indicated that the company had paid dividends to common shareholders in 2002. In fact, it did not happen. Accordingly, the allegation of reprisal by withholding access to dividends was not sustained on the facts.

74I do not accept Mr. Shaw's contention that the Grzesiaks would have been informed during the 2002-03 negotiations that the company did not pay dividends on common shares in 2002. There was no other evidence to support this speculative contention. However, I do accept his other explanation for failing to respond to the letter of February 25, 2005. He could be excused for believing that the Commission, having carriage of the human rights complaint, was the appropriate avenue for making this kind of request.

75In contrast, there is no such excuse for the failure to respond to the Grzesiaks' demands in late 2001 for information to which as shareholders they were entitled. Mr. Shaw admitted that he was upset by the allegation of a Code violation, and that this attitude persisted beyond the point at which he was served with Mr. Grzesiak's complaint. This conduct amounted to a form of reprisal. This was tempered only by the fact that the Grzesiaks did not persist in their demands beyond that point and then entered into protracted negotiations with the respondents from late 2002 onwards.

ANALYSIS

Relevant Legislative Provisions and Legal Principles

76Section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of…disability.

It is reinforced by section 9:

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

77Section 17 goes on to provide:

Disability

(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.

78Section 11 of the Code is also relevant to the issues in this case and provides:

Constructive Discrimination

(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.

(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.

79With respect to the allegations of reprisal for making a complaint under the Code, section 8 is the relevant provision:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

80The 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 twenty years ago in Ontario (Human Rights Commission) v. Simpson Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at para. 12 (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.

81Within this interpretive framework, the Court (in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 174-75 (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.

82For present purposes, a disability or handicap

…may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors [Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665 ("Mercier"), at para. 79 (per L'Heureux-Dubé J.)].

83Mercier, supra at para. 84, details the onus that normally rests on the Commission in establishing a prima facie case 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.

84Thereafter, 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. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 ("Meiorin"), at para. 54 (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 fulfilment 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.

For present purposes, it is necessary to adapt this test where what is at stake is not the content and application of a policy but an employer's actions in dealing on an individual basis with a specific employee suffering from a disability.

85In Hydro-Québec v. Syndicat des employé-e.s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) ("Hydro-Québec"), 2008 SCC 43, at paras. 16 and 18, a case involving the dismissal of an employee because of frequent and extended periods of illness, Deschamps J., delivering the judgment of a unanimous Supreme Court of Canada, has very recently expressed the test for such individualized decisions in the following terms:

The test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.

And

Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.

Also critical is the language of section 11(2) and section 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.

86The duty to accommodate has both a procedural and substantive content. This is made clear not only in Meiorin, supra at para. 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, at paras. 22 and 42-45 (per McLachlin J.). In the procedural domain, this calls for individualised assessment of the person affected in the context of the employer's workplace imperatives.

Application to the Facts

Discrimination and Failure to Accommodate

87For the reasons identified earlier, it is my finding that the complainant did not resign his position at DOT Benefits at the meeting with Mr. Shaw on May 22, 2001. I also find that the June 14 letter from his lawyer to Mr. Shaw did not constitute a "constructive resignation" as contended in the alternative. It was written on the express assumption that Mr. Shaw had actually dismissed Mr. Grzesiak on May 22. While that assumption was, on my ruling, erroneous, it was nonetheless an understandable assumption given subsequent events.

88Mr. Shaw may not have actually dismissed Mr. Grzesiak from his position at DOT Benefits on May 22, 2001 and he may have still been willing at that point to consider Mr. Grzesiak's reintegration in some capacity into the business if and when he recovered sufficiently from his disability. However, thereafter, he acted in such a way as to create the impression that, at the very least, he was removing Mr. Grzesiak from his current position with DOT Benefits, and that any future employment with the company was contingent on how the company was placed when Mr. Grzesiak provided evidence that he was fit and able to resume some form of employment with DOT Benefits. Not only did Mr. Shaw from that point on, if not earlier, go about finding ostensibly permanent replacements for the work that Mr. Grzesiak had been performing but also he deliberately did not provide Mr. Grzesiak with any reassurance or clarification of his status when Mr. Grzesiak contacted him after May 22, 2001 clearly believing that he had been dismissed from his position.

89Mr. Grzesiak's disability was obviously a factor in that conduct or "treatment". Mr. Shaw's course of conduct was prompted in large measure by the fact that Mr. Grzesiak was applying for LTD and what he interpreted as grave uncertainties as to if and when Mr. Grzesiak's disability would permit him to return to the workplace and perform the core responsibilities of his position with DOT Benefits. In terms of Mercier, supra, this was enough to establish a prima facie case of discrimination based on disability.

90Mr. Shaw's uncertainties about Mr. Grzesiak's situation were informed by the mere fact of his application for LTD, the lack of any clear information volunteered by Mr. Grzesiak as to when he was likely to be well enough to resume his position, and discussions that had taken place between them about a rather different role for Mr. Grzesiak if and when he was able to return to DOT Benefits. They were not informed by any specific inquiries as to the current state of his medical condition, including the views of his doctors, the treatment that he was currently receiving, and any other possible treatment that was under active consideration.

91While there is an onus on persons suffering from a disability to be actively involved in any process of trying to work out whether accommodation without undue hardship is feasible, nonetheless, Mr. Grzesiak met whatever initial burden he had to indicate that he was seeking accommodation. His participation in discussions with Mr. Shaw about a changing role for him in the company as a way of dealing with his problems constituted one such initiative and should not have been regarded by Mr. Shaw as indicative of an interest on the part of Mr. Grzesiak in pursuing other opportunities possibly not involving DOT Benefits. Mr. Grzesiak's desire to remain with DOT Benefits and to be accommodated were also apparent in his request to be allowed to work from home during the period of his STD. This then placed the onus on the employer.

92The requirement that that onus imposes is outlined in the following summary of the case authorities in Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 51 C.H.R.R. D/68, 2004 BCHRT 225, at para. 84:

The duty to accommodate is a positive obligation. An employer has a duty to obtain all the relevant information about the employer's disability, at least when it is readily available. This includes information about the employee's current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term "undue hardship" requires respondents in human rights cases to consider seriously how complainants can be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any steps could be taken does not satisfy the duty.

93Mr. Shaw did not fulfil this obligation. He took no positive steps to obtain all the relevant information about Mr. Grzesiak's disability and the course of his treatment. Even accepting that Mr. Shaw was faced with the practical necessity after seventeen weeks of finding qualified people who could do Mr. Grzesiak's work, there was no consideration whether, nonetheless, it would be feasible to reintegrate him into the company's group insurance division once he had recovered sufficiently to return to work. Indeed, as is made clear in the authorities, that aspect of the duty extends to considering the availability of other or alternative work and job modification: see e.g. Hydro-Québec, supra, at para. 17, and Conte v. Rogers Cablevision Ltd., [1999] C.H.R.D. No. 4 (Q.L.) (C.H.R.T. – Sinclair), at paras. 77 and 81. In terms of the Supreme Court of Canada's judgment in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at p. 992, Mr. Shaw took no steps "to initiate the process." In short, Mr. Shaw did not meet the procedural component of the duty to accommodate.

94If Mr. Shaw had made appropriate inquiries, he would have received information that would have encouraged him to be more optimistic about the prospects for Mr. Grzesiak's recovery from his disability and return to his former capacities. More particularly, he would have learned about Mr. Grzesiak's decision to have a pacemaker inserted and how that might alleviate his heart condition and relieve him from having to take potentially harmful medication. He would also have learned that Mr. Grzesiak would shortly have reached the point when the amiodarone would have been expelled from his system.

95Nonetheless, this information and any clearer prognosis it produced for Mr. Grzesiak's possible return to the workplace would not have solved DOT Benefits' immediate problems. The stopgap measures that Mr. Shaw had put in place to deal with the business impact of Mr. Grzesiak's absence were just that. Under those stopgap measures, Mr. Shaw was himself handling a lot of Mr. Grzesiak's work and this was having an impact on not only his own well-being but also his own responsibilities within DOT Benefits. The others in the group insurance division at DOT Benefits did not have sufficient experience to assume the most important aspects of Mr. Shaw's portfolio of files. Something clearly had to be done even if proper inquiries by Mr. Shaw had given him every reason to expect Mr. Grzesiak to return to work somewhere between March and May 2002. In terms of the test articulated in Hydro-Québec, supra, at para. 18, this was a situation where, as a result of Mr. Grzesiak's absence, the "proper operation of the business is hampered excessively."

96Counsel for the Commission not only submitted that it should have been possible for Mr. Shaw to continue to carry the most important components of Mr. Grzesiak's role for at least another few months (a submission that I reject) but that, in addition or, as an alternative, part-time replacements could have been brought in. While the respondents did not adduce any evidence of having explored the part-time market, it seems clear that that was not a viable option in a very difficult situation. Mr. Grzesiak's combination of skills and experience were sufficiently unusual and irreplaceable that Mr. Shaw was practically forced to make the business decision to divide up those responsibilities and go into the job market on that basis. The fact that even this step did not lead to a totally satisfactory situation speaks to the problems of filling Mr. Grzesiak's shoes.

97As a matter of law, can this substantive justification for dividing up Mr. Grzesiak's responsibilities and going into the market to find two permanent employees to undertake some of those responsibilities excuse the failure to fulfil the procedural component of the duty to accommodate? That is a question that does not need to be resolved in the context of this complaint. Irrespective of the fact that the duty to accommodate Mr. Grzesiak in a substantive sense did not extend to preserving his entitlement to occupy his current position for a further period of almost twelve months, that did not exhaust the respondents' substantive responsibilities in a situation such as this.

98As outlined above, the duty to accommodate involves the obligation to consider the possibility of appropriate alternative employment or redefined responsibilities. Given Mr. Grzesiak's rare combination of skills and experience, it seems obvious that it would not have amounted to excessive hardship for DOT Benefits to have at least left open the opportunity for Mr. Grzesiak to return to DOT Benefits within a reasonable period of time albeit that that might involve a different title and modified responsibilities. Indeed, the employment history of those who were hired to replace Mr. Grzesiak suggests that the practicalities were that, if the company had been so minded, it would have been in a position to return to him to many of his former responsibilities a comparatively short time after he had returned to health. The new Senior Accounts Manager lasted only a year and a half and the Senior Benefits Analyst not much longer. As of the time of the hearing, even Ms. Santos had not been an employee of the company for some two and a half to three years.

99In fact, in their initial response to this complaint, dated January 14, 2002, the respondents pleaded that they were indeed ready to have the complainant resume his employment or to consider some other position once he was again able to work again. While not too much store should be placed on pleadings filed by lawyers with the Commission in response to a complaint, the fact is that when Mr. Grzesiak reacted to that pleading by formally asking to resume his employment, it did lead to a meeting with Mr. Shaw. At that meeting, there was serious discussion of Mr. Grzesiak resuming a relationship with DOT Benefits at least as a consultant on large files.

100In summary, Mr. Grzesiak did not resign from DOT Benefits on May 22, 2001. DOT Benefits and Mr. Shaw still, therefore, had an obligation not to subject him to discriminatory treatment on the basis of his disability. In failing to correct Mr. Grzesiak's impression that he had been dismissed and in hiring other permanent employees to fulfil his responsibilities at DOT Benefits, Mr. Shaw engaged in discriminatory treatment contrary to sections 5(1) and 9 of the Code. That conduct was based at least in part on Mr. Grzesiak's disability. The respondents failed to establish that their actions were justified by reference to the concept of "undue hardship" as provided for in sections 17(2) and 11(2) of the Code. The duty to accommodate has two aspects, procedural and substantive. The respondents did not conduct a sufficient inquiry into the complainant's condition and prognosis for recovery to meet the procedural component of that duty. Substantively, it would have amounted to "undue hardship" if the duty to accommodate had operated to prevent them hiring replacement permanent employees to perform Mr. Grzesiak's core functions. However, to the extent that the duty to accommodate requires employers to consider the feasibility of alternative or reduced responsibilities, the respondents did not establish that they had met that responsibility. On the evidence before the Tribunal, including the respondents' own response to this complaint, it is clear that there could have been a place for someone as qualified and experienced as Mr. Grzesiak once he had recovered and was able work again.

Reprisals

101Section 8 of the Code forbids the taking of reprisals not just for taking steps to enforce one's rights under the Code but also for making claims and instituting proceedings under the Code. When Mr. Shaw decided not to respond to the letters of October 11, November 7 and December 12, 2001 seeking financial statements of DOT Benefits and its holding company, he was motivated at least in part by his annoyance at Mr. Grzesiak's claim and then complaint to the Commission that the respondents had violated the Code.

102This constituted a reprisal in terms on section 8 and it was a reprisal that Mr. Shaw should have known would have had an impact on Mr. Grzesiak. He was well aware that Mr. Grzesiak was by then anxious to clarify his status and that of his wife as investors in the business. He was also aware that Mr. Grzesiak wanted to come to an arrangement for the purchase of the common shares that he and his wife held in the numbered company, an ambition that had become more urgent as a result of having to depend at least, for the immediate future on his LTD income and whatever income his wife's business was generating. In those circumstances, the reprisals had a nasty edge to them.

REMEDY

Damages

103The Commission sought general damages under section 41 of the Code of $25,000 for violation of the complainant's inherent right to be free from discrimination, and $10,000 additional damages for the mental distress that the complainant suffered as a result of the respondents' wilful and reckless infringement of the complainant's rights under the Code. $10,000 was the maximum that section 41(1)(b) of the Code previously permitted by way of damages for mental distress. My analysis of damages is made in the context of these provisions. I note, however, the Tribunal's remedial powers have now been amended to permit the Tribunal to order monetary compensation for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect, (section 45.2). At the end of the day, the amendments to the Code, including the removal of the cap on damages for mental anguish, do not affect the amount of compensation I award.

104The following statement in Ketola v. Value Propane Inc., [2002] O.H.R.B.I.D. No. 14, at para. 4, is valuable in both identifying the relevant criteria as well as explaining the relationship between an award under section 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.

105Prior to his disability and the resulting severance of his relationship with DOT Benefits and Mr. Shaw, Mr. Grzesiak had been a critical part of the success of the business. Because of his financial stake in the company and the extent and importance of his responsibilities, he felt and acted as a part-owner of the business and gained considerable satisfaction from a position that involved a great deal of hard work and commitment but which brought tangible rewards. He had a very close and seemingly mutually trusting working relationship with Mr. Shaw though this did not extend in any significant way to social settings.

106Mr. Grzesiak was also a family man with five teenage children all living at home and beginning to approach college age. His work with DOT Benefits and the financial rewards that it brought gave him the financial stability that he needed to meet the needs of his family and the demands of a mortgage as well as maintain a comfortable life style. Not surprisingly, he and his wife also saw their financial stake in a growing and successful small to medium size business as an important component of their prospects for continued financial stability and perhaps future prosperity.

107Once Mr. Grzesiak started suffering from his disability, all of this came under threat. While Mr. Shaw's conduct in no way contributed to the onset of that disability, his failure to appreciate his responsibilities under the Code and, in particular, the procedural component of the duty to accommodate to the point of undue hardship spoke to a lack of respect for the position and feelings of his key employee. In particular, by acting in the way that he did, without making adequate inquiries as to the state of Mr. Grzesiak's underlying condition and the prognosis for eventual recovery, Mr. Shaw demonstrated a singular lack of interest in or sensitivity towards the well-being of his heretofore trusted employee. Understandably, this wilful and reckless conduct resulted in not only hurt feelings but also a loss of dignity on the part of Mr. Grzesiak. It was also exacerbated by the fact that, after the critical May 22 meeting, Mr. Shaw was coy with a man who obviously believed that he had been dismissed as a result of that meeting. At that point, Mr. Grzesiak was particularly vulnerable. Aware of Mr. Grzesiak's grave concerns about his future and his substantive stake in the company, Mr. Shaw chose to be ambiguous and non-committal rather than paying serious attention to the extent of his duty to accommodate Mr. Grzesiak in a substantive sense and how particularly Mr. Grzesiak's future with the company could be reconciled with the company's immediate needs to find others to perform his work.

108There are, however, mitigating factors. Mr. Shaw by this time was obviously under a great deal of stress as a result of Mr. Grzesiak's absence. He was frustrated by the uncertainty of the situation particularly once he became aware of Mr. Grzesiak's application for STD. Mr. Grzesiak was also a stubborn man not given to sharing full details of the progress of his disability with his employer. By the same token, however, Mr. Shaw did not ask for elaboration, even after he formed the opinion that a crisis point had been reached and that he had to take decisive action.

109After receiving the lawyer's letter of June 14, Mr. Shaw's attitude hardened. In one sense, this is also understandable. No reasonable person likes being accused of discrimination. Moreover, given the fears that Mr. Shaw expressed at the May 22 meeting as to how Mr. Grzesiak would interpret his refusal to top up Mr. Grzesiak's LTD payments and the continuation of his other benefits, it is also not surprising that he would interpret the letter as attributable to anger on Mr. Grzesiak's part at Mr. Shaw's actions in that regard. Nonetheless, Mr. Shaw really only had himself to blame for the letter. If, after the May 22 meeting, he had allayed Mr. Grzesiak's fears that he had been dismissed rather than being evasive and if he had started serious discussions as to how Mr. Grzesiak's situation could be accommodated, there would have been no lawyer's letter. In any event, it did not provide any justification for the subsequent vindictiveness on the part of Mr. Shaw in refusing to respond to three requests for financial information about the company in which the Grzesiaks held shares. This was pure reprisal for Mr. Grzesiak advancing a claim that Mr. Shaw had violated his rights under the Code and the filing of a formal complaint to that effect. It did not, however, involve the taking of active steps against Mr. Grzesiak, and was petty and small-minded rather than calculating.

110Given all of these circumstances, I also have no problem in accepting Mr. Grzesiak's testimony as to the mental anguish and the sense of betrayal that he experienced following May 22 and through this whole process.

111In the circumstances, a global award of $30,000 is justified. This reflects not only the violation of Mr. Grzesiak's right not to be subjected to discrimination and reprisal for asserting his rights under the Code, but also the mental anguish he suffered as result of both violations.

Wage and Benefits Loss

112In its pleadings, the Commission sought to recover the amount that Mr. Grzesiak had lost by way of income and benefits based on what he would have received had he continued to work for DOT Benefits for the period from August 19, 2002, when his LTD payments ended, but subject to a deduction for income earned in mitigation of his loss. At the hearing, this claim was further restricted to the period ending December 31, 2006. By the Commission's calculations, this amounted to well over $400,000. The claim was based on the proposition that, in human rights proceedings, damages for loss of income are not limited by the concept of reasonable notice but are meant to be a full replacement for all income and benefits lost until the date of the hearing. Putting it another way, damages for Code violations have as their objective restoring the complainant fully to the position that he would have been in had he still been employed by the corporate respondent: Piazza v. Airport Taxicab (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 (C.A.) and Impact Interiors Inc. v. Ontario (Human Rights Commission), [1990] O.J. No. 2908 (Q.L.) (C.A.).

113While that principle is still applicable, on the findings that I have made on the substance of this complaint, it does not lead to an award based on the difference between the salary and benefits that Mr. Grzesiak would have earned had he kept his position at DOT Benefits and what he was able to earn elsewhere. The duty to accommodate, as it operated here, did not extend to obliging DOT Benefits to preserve Mr. Grzesiak's entitlement to return to his former position once he was fit to work again. Rather, it was a more limited obligation; that of keeping a position open for him consonant with his own wishes for modified responsibilities and the company's needs.

114Of necessity, the losses caused by a failure to meet that kind of obligation are not easily or precisely calculable. In a sense, damages awarded on this basis have some of the characteristics of damages for the loss of a chance. My best estimate is that, had DOT Benefits met their obligations under the Code and held open a modified position with fewer responsibilities, Mr. Grzesiak had a real prospect of continuing to earn, at least in the period covered by the claim under this head of damages, $80,000 a year but without any continuation of benefits. This figure is based on Mr. Grzesiak's 2002 salary discounted in recognition of the legitimate hiring of other personnel to perform some of his responsibilities, the likelihood that, by his own choice, his workload would diminish, and other contingencies. Prorating that amount from August 19, 2002, the end of Mr. Grzesiak's LTD, that would have meant $30,000 for that year, and $80,000 a year for each of the next four years up to the end of 2006, a total of $350,000. During that period, based on the charts provided by the Commission and which were not contested, Mr. Grzesiak in fact earned $225,971. That therefore amounts to a loss of income of $124,000 (rounded out), assuming, as I have, that, during that period, Mr. Grzesiak would not have been engaged in any extra consulting work while working for DOT Benefits.

115In its pleadings, the Commission also sought other forms of damages: lost interest on RRSPs that Mr. Grzesiak cashed in to invest in the business, additional mortgage interest charges resulting from a refinancing of the family home, and withheld dividend income. With the possible exception of withheld dividend income, the Commission did not advance any of these claims during the hearing. With respect to withheld dividend income, even assuming that the Tribunal has jurisdiction to make such an award, the Commission and Mr. Grzesiak failed to prove that he was wrongfully deprived of declared dividends on his shares in 1244584 Ontario Ltd.

116The complainant is also entitled to an order for pre-judgment interest. In the case of the general damages, this should run from the approximate date on which it became apparent that Mr. Shaw and, through him, DOT Benefits were breaching their duty to accommodate Mr. Grzesiak's disability, May 31. For the damages for wage loss, this should run from the mid-point of the time frame for those damages, the end of October 2004. The rates are specified in the order that follows. As well, there will be an order covering post-judgment interest.

Public Interest Remedies

117Even though this was a relatively small workplace, Mr. Shaw had an obligation to be aware of his responsibilities under the Code. He obviously was not. Moreover, DOT Benefits did not have an anti-discrimination policy. As requested by the Commission and detailed in the order that follows, the company should therefore develop such a policy (paying particular regard to issues of disability and accommodation).

ORDER

118Having found that DOT Benefits and Mr. Shaw violated Mr. Grzesiak's rights to equal treatment and to be free from discrimination on the basis of disability under section 5 of the Code, as well as his right under section 8 not to be subjected to any form of reprisal for asserting his rights under the Code, the Tribunal orders:

(1) The respondents are jointly and severally liable to pay damages of $30,000 to the complainant for violation of his inherent right to be from discrimination and injury to his dignity, feelings and self-respect.

(2) The corporate respondent is liable to pay the complainant special damages totalling $124,000 for loss of salary.

(3) The respondents shall pay the complainant pre-judgment interest (in accordance with their liability) on all the above sums at the rate set for each of the relevant quarters. For damages arising out of the infringement and compensation for injury to dignity, feelings and self-respect, the interest shall run from May 31, 2001. For the damages for lost salary, the entitlement runs from October 31, 2004.

(4) The respondents shall pay the complainant postjudgment interest (in accordance with their liability) on any accumulated principal and interest from the date that is thirty days after the date of this Order, at the rate set for the quarter in which the accumulated principal and interest remains outstanding.

(5) The corporate respondent shall retain at its own expense a qualified consultant (approved by the Commission) to assist in the development of an anti-discrimination policy with particular emphasis on the duty to accommodate employees with a disability.

Dated at Toronto, this 29th day of October, 2008.

"Signed by"

David J. Mullan

Member

CORRECTION

The name of the corporate respondent "DOT Benefits Corp." is corrected to "1263699 Ontario Limited", with the clarifying notation "(formerly DOT Benefits Corp.)" per the Tribunal's decision of January 2, 2013, 2013 HRTO 1.