Wall v. Lippé Group, 2008 HRTO 50

Wall v. Lippé Group

HR-0899-04

2008-07-30

2008 HRTO 50

Ontario Human Rights Tribunal

CHRR Doc. 08-481

Bonnie Wall

Complainant

and

Ontario Human Rights Commission

Commission

v.

The Lippé Group, operating as Hubert Lippé Enterprises Ltd. and Jeff Anderson

Respondents

Date of Decision: July 30, 2008

Before: Human Rights Tribunal of Ontario, David J. Mullan

File No.: HR-0899-04

Appearances by:

Bonnie Wall, on her own behalf

Kikee Malik, Counsel for the Commission

Roy Filion, Counsel for the Respondents

DISABILITY — employment terminated on the basis of depression and post-traumatic stress disorder — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — Meiorin/Grismer test for reasonable accommodation — BURDEN OF PROOF — elements of a prima facie case

DISCRIMINATION — definition of discrimination — Meiorin/Grismer test — absenteeism and bona fide justification as reasonable cause for discrimination — HUMAN RIGHTS — nature and purpose of human rights legislation — INTERPRETATION OF STATUTES — purposive approach

DAMAGES — damages assessed for injury to dignity and self-respect and wilful or reckless discrimination — compensation for injury to dignity and self-respect and wages — REMEDIES — human rights training

Summary: The Human Rights Tribunal of Ontario ruled that the Lippé Group and Jeff Anderson discriminated against Bonnie Wall because of a disability by terminating her employment.

Ms. Wall worked for the Lippé Group from 1996 to 2002 as a bilingual secretary and customer service representative. The Lippé Group is an umbrella for three companies. A significant part of the business is supplying spare parts for bicycles to retailers, such as Canadian Tire. At least a third of the business was done with retailers in Quebec.

The Lippé Group has a warehouse and showroom in Mississauga where Bonnie Wall worked. During Ms. Wall's employment, there were only two other employees in the Mississauga plant. Jeff Anderson, who was her supervisor, was there most of the time, but also attended trade shows and traveled to meet customers. There was also a warehouseman, A.B. The Lippés, Hubert and France, had office space in Mississauga, though neither was present on a full-time basis. Ms. Wall got along well with the Lippés, Mr. Anderson, and A.B., and she was a valued employee.

A.B. was living in a common-law relationship with D. On July 22, 2002, D. called looking for A.B. and informed Ms. Wall that she had found a series of photographs and a sexually explicit script on A.B.'s domestic laptop computer. The photographs were of her daughter sleeping in the nude, her daughter's lingerie, and Ms. Wall's lower body apparently taken from beneath the desk in the warehouse. The script detailed how A.B. wanted to have sexual relations with both Ms. Wall and his stepdaughter. D. told Ms. Wall that she had confronted A.B. over the weekend and that he had admitted to using the photographs as an aid to masturbation while he was at work in the warehouse. According to D., A.B. had then left the house, and she contacted the police to obtain a restraining order against him.

Ms. Wall was stunned by this information and not sure whether to believe it. She was upset and went home. A.B. subsequently confirmed to Ms. Wall that the allegations were true.

Ms. Wall went to her doctor who diagnosed her as having acute situational reaction, accompanied by anxiety and depression. The plant was shut down for holidays for one week from around July 29 to August 6. When she was supposed to return to work, Ms. Wall informed Mr. Anderson that she would not be at work for the next week. She saw her doctor again and her husband delivered a note indicating that she would be away from work until the end of August due to "medical illness".

By the beginning of September, Ms. Wall had been referred to a psychiatrist and the prognosis was that she could not return to work for three to six months.

Jeff Anderson and the Lippés did not ask for further information about the "medical illness". They terminated her employment. In their view, her job was pivotal and the company needed a bilingual secretary and customer representative who could be present at work.

The Tribunal found that Mr. Anderson and the Lippés were aware, albeit imprecisely, that at the time of Ms. Wall's dismissal, she was suffering emotional consequences as a result of the events in the workplace with A.B. Although there was some dispute about when Mr. Anderson and the Lippés knew the full extent of A.B.'s conduct, by August 12 or 13, they did. They also knew that Ms. Wall was not only upset but had sought medical attention. As of September 3, they knew that her condition was such that she was expected to need three to six months off. In these circumstances, disability was a factor in the termination.

The Tribunal ruled that this situation triggered the duty to accommodate. If Mr. Anderson needed more information about her condition, he could have inquired, but he did not. He concluded that obtaining further information was irrelevant, because he was interested simply in getting her back to work.

The Tribunal rejected the respondents' claim that accommodating Ms. Wall by finding a temporary replacement would have been an undue hardship. The respondents made no effort to find a replacement, or to consider possibilities.

The Tribunal concluded that Ms. Wall was discriminated against. The Tribunal awarded her $15,000 for the violation of her right to be free from discrimination, $12,169.12 for wage loss, and pre- and post-judgment interest on the award.

CASES CITED

Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd.Inq.): 80

Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 66

British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257: 69

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129: 71

Chamberlin v. 599273 Ontario Ltd. (1989), 1989 CanLII 9081 (ON HRT), 11 C.H.R.R. D/110 (Ont. Bd.Inq.): 72

Community Unemployed Help Centre and C.U.P.E., Local 2348 (Re) (1997), 1997 CanLII 24976 (MB LA), 67 L.A.C. (4th) 33: 85

Davis v. 1041433 Ontario Ltd. (No. 2) (2005), 54 C.H.R.R. D/448, 2005 HRTO 37: 80

Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) (2008), 63 C.H.R.R. D/301, 2008 SCC 43: 70, 85

Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37, [2002] O.H.R.B.I.D. No. 14 (QL): 91

Metsala v. Falconbridge Ltd. (2001), 2001 CanLII 26213 (ON HRT), 39 C.H.R.R. D/153 (Ont. Bd.Inq.): 72

Morris v. British Columbia Railway Co. (2003), 46 C.H.R.R. D/162, 2003 BCHRT 14: 73

NAV Canada and International Brotherhood of Electrical Workers (Re) (2001), 2001 CanLII 62114 (CA LA), 101 L.A.C. (4th) 158: 85

Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 51 C.H.R.R. D/68, 2004 BCHRT 225: 82

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 65

Québec (Comm. des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal (Ville), 2000 SCC 27, [2000] 1 S.C.R. 665, 37 C.H.R.R. D/271, 2000 SCC 27: 67

Régionale de Chambly, Comm. scolaire v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525, 22 C.H.R.R. D/1: 85

Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse (2002), 43 C.H.R.R. D/55, 2002 BCHRT 14: 80

Washington Mills Electro Minerals Corp. v. U.S.W.A., Local 4151 (Re) (2003), 2003 CanLII 89624 (ON LA), 117 L.A.C. (4th) 313: 85

York Region Dist. School Board v. C.U.P.E., Local 1196, [2004] O.L.A.A. No. 326 (QL): 85

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 5: 7, 107

s. 5(1): 1, 62

s. 9: 1, 62

s. 11: 64

s. 11(2): 70

s. 17: 63

s. 17(1): 75

s. 17(2): 1, 70, 74

s. 41: 90

s. 41(1)(b): 90

s. 45.2: 90

INTRODUCTION

1Bonnie Wall worked for The Lippé Group ("Lippé") as a bilingual secretary and customer service representative. She complained that her employer and Jeff Anderson, Lippé's General Manager, by dismissing her, discriminated against her on the ground of disability (post-traumatic stress disorder and depression). She alleges that this amounted to a violation of ss. 5(1), 9 and 17(2) of the Human Rights Code, R.S.O. 1990, c. H.19 (as amended) ("Code").

2The complaint arose out of the corporate respondent's dismissal of Ms. Wall by letter dated September 3, 2002. Ms. Wall had been off work on sick leave since August 6, 2002, following an incident in the workplace.

3Ms. Wall alleged that the corporate respondent and its General Manager dismissed her without conducting appropriate inquiries into the nature of her condition and thereby discriminated against her contrary to the Code by failing to consider whether they could accommodate Ms. Wall's disability without undue hardship.

4For their part, the respondents maintained that they were never made fully aware of the nature of Ms. Wall's condition, and that, in any event, given the uncertainty as to the additional time that she would require off work and the critical nature of her position for the operation of the corporate respondent's business, they were justified in their action. Any duty of reasonable accommodation did not extend to providing Ms. Wall with an additional period of leave beyond September 3, 2002.

5In its pleadings, the Commission sought several remedies including lost wages and benefits until approximately February 3, 2004, general damages of $10,000 for violation of Ms. Wall's right to equal treatment in employment without discrimination on the basis of disability, plus a further $10,000 damages for mental distress caused by the respondents' wilful and reckless infringement of her rights under the Code, and pre- and post-judgment interest. The Commission also sought public interest remedies in the form of an order requiring the directors and management employees of the corporate respondent to attend a training program on anti-discrimination principles. (At the hearing of the complaint, the Commission modified its claim for special damages to encompass the 12-month period from March 2003 to March 2004.)

6The respondents took the position that, in the event of a finding of violation of Ms. Wall's rights under the Code, the Commission was not justified in its initial claim for loss of wages until February 3, 2004, given that Ms. Wall had received compensation for some of that period by way of salary in lieu of notice and statutory benefits and, in any event, was not able to work during most or all of that period. They also pleaded that the amounts sought by way of general damages were excessive.

DECISION

7The respondents violated Ms. Wall's right under s. 5 of the Code to equal treatment and freedom from discrimination on the basis of disability. This occurred when the corporate respondent dismissed Ms. Wall. This was a decision in which the personal respondent participated. Ms. Wall's disability was a major factor in this decision. In doing so, the respondents failed in their duty to accommodate her disability to the point of undue hardship. As a consequence, the respondents are jointly and severally liable to pay the complainant damages of $15,000. The corporate respondent is also liable for special damages (representing lost wages and bonus) of $12,169.12. These awards are subject to pre-judgment and post-judgment interest as detailed in the Tribunal's order. As well, the principals and management employees of the corporate respondent must undertake a human rights training program, also as detailed in the order.

PROCEEDINGS

8The hearing took place in Toronto over seven days (including closing submissions): January 9, 12 and 13, April 6, May 3 and 4, and October 4, 2006.

9The following witnesses testified for the Commission:

Bonnie Wall, the complainant;

Dr. Kenneth Handelman;

Dr. Lorne Langer; and

Dr. Aneeta Goomar (by teleconference)

10The following witnesses testified for the respondents:

Jeff Anderson, respondent; and

France Lippé, a principal of the Lippé Group.

FACTS

General Background

Complainant

11Bonnie Wall was born in Chandler, Quebec, on June 24, 1963. She is fluently bilingual. After obtaining her high school diploma, she undertook a two-year secretarial course at Gaspé College in Quebec. She moved to Ontario in 1982. Between then and 1996, she worked in a series of secretarial and administrative positions in and around Toronto. During that period, there were no significant gaps in her employment history.

12In 1996, she had been working for Consumers Distributing for approximately ten years. There, she performed not only secretarial functions but also worked as a customer service representative. It was at Consumers Distributing that she first met the personal respondent, Jeff Anderson. He was a Senior Merchandising Manager. By 1996, Mr. Anderson had left Consumers Distributing and was working for Lippé as General Manager. When Consumers Distributing failed in 1996, Mr. Anderson contacted Ms. Wall to see whether she was interested in working for the corporate respondent as a secretary and bilingual customer service representative. Ms. Wall was and, following an interview with Hubert Lippé, one of the principals of Lippé, she was hired and commenced work on September 16, 1996. She replaced Mr. Lippé's daughter who had moved to another part of Toronto.

13At Lippé, Ms. Wall had a range of responsibilities starting with opening up both the office and the warehouse each day, answering the telephone and taking orders in French and English from customers, as well as customary secretarial work for the principals and General Manager, the personal respondent, Jeff Anderson. From time to time, she would also help out in the warehouse, eventually assuming more general responsibilities for the warehouse and its operations. For almost six years, this employment relationship subsisted in a way that was completely satisfactory to all parties. Ms. Wall was a valued employee. This was reflected in annual salary increases and bonuses.

14While her work attendance record was good, she did suffer from migraine attacks. She was also being treated for mood swings involving periods of depression. That, and family demands, had led to periodic short-term absences.

Respondents

15The corporate respondent is an umbrella entity for a series of three private companies. A significant part of its business is the supply of spare parts for bicycles to major Canadian retailers such as Canadian Tire, Zellers, Toys 'R' Us, and Louis Garneau. For this part of its business, it has a building in Mississauga consisting of three showrooms and a warehouse. During Ms. Wall's employment, there were only two other employees at the Mississauga plant: Mr. Anderson and a warehouse person. However, the two principals, Hubert Lippé and France Lippé (husband and wife) also maintained office space there, though neither was present on a full-time basis. Mr Lippé was frequently "on the road" meeting with clients and customers and Ms. Lippé spent about two days a week at the facility on the financial management of the corporate respondent.

16Mr. Anderson, at the time of the events giving rise to this complaint, had worked for the corporate respondent for approximately 16 years. While he spent most of his time at the Mississauga facility fulfilling normal managerial responsibilities, he too was away from the office, particularly during the fall, attending trade shows and servicing clients and customers.

17The warehouse person was responsible for ordering parts, and packaging and shipping, as well as assembling sample bicycles for display in the showrooms and modifying bicycles to meet clients' specifications. For six years prior to the events giving rise to this complaint, that warehouse person had been AB. He possessed computer skills and had developed an in-house database and a computerized parts-numbering system.

18Approximately one-third of the corporate respondent's business involved clients in Quebec or who otherwise operated in French. As a consequence, the corporate respondent's principals and General Manager wanted a customer service representative who was fluent in French. Ms. Wall fulfilled that requirement and was able to respond to customer communications in both official languages both over the telephone and in writing. (The Lippés were also fluently bilingual. Mr. Anderson and AB were not, though both apparently knew enough French to handle telephone orders from French-speaking customers.) Ms. Wall had three weeks' vacation a year, one taken during an annual one-week shutdown of the plant (with the exception in recent years of the warehouse) and the other two weeks when her husband was able to take time off. During those two weeks, Mr. Lippé and Mr. Anderson would assume her responsibilities.

Events Leading Up to Dismissal of the Complainant

19Over the six years they had been working together, Ms. Wall and AB had developed a good working relationship that extended to Ms. Wall acting as a confidante of AB as to his domestic situation. AB was living common law with a woman named D (and her daughter, L). AB shared his domestic problems with Ms. Wall.

20In 2002, the corporate respondent's annual one-week shutdown was scheduled for the week of July 29. On the Monday of the week prior to that, AB was absent from work. That day, July 22, according to Ms. Wall's testimony, which I accept, D called Ms. Wall looking for AB. The next day, she called again still looking for her common-law spouse. In the course of this conversation, she informed Ms. Wall that she had found a series of photographs and a sexually explicit script on AB's domestic laptop computer. The photographs were of her daughter sleeping in the nude, her daughter's lingerie, and Ms. Wall's lower body apparently taken from beneath the desk in the corporate respondent's warehouse. The script detailed how AB wanted to have sexual relations with both Ms. Wall and his stepdaughter. D told Ms. Wall that she had confronted AB over the weekend and that he had admitted to using the photographs as an aid to masturbation while he was at work in the warehouse. According to D, AB had then left the house, and she contacted the police to obtain a restraining order against him. The police had told her to contact them if AB returned. Ms. Wall was stunned by this information and not sure whether to believe it. It also reduced her to tears.

21Shortly thereafter, Ms. Wall went to Mr. Anderson and told him about D's phone call. By this time, Mr. Anderson had a voice mail message from AB to the effect that he would be away for a few days because of personal problems. Ms. Wall testified that she informed Mr. Anderson at this first meeting of everything that D had told her. Mr. Anderson could only recollect hearing about the photographs at that time. In any event, because of their opinions about D, both were disinclined to believe her story. The same apparently was true of Mr. Lippé to whom Mr. Anderson reported the story. This scepticism also pervaded a meeting that took place among the three of them after lunch, and it seems clear that no plan for confronting AB emerged from that meeting. Ms. Wall also testified that her husband too was sceptical when she told him that evening about D's call.

22Mr. Anderson at this stage was, however, worried about whether AB would be at work to staff the warehouse during the impending week-long shutdown. With a view to resolving this matter, he was successful in tracking AB down and, in fact, AB returned to work on Thursday, July 25. That day, Ms. Wall met with him before Mr. Anderson arrived at work. In the course of that confrontation, according to Ms. Wall, AB admitted all the allegations and referred her to an email to much the same effect that Ms. Wall had not opened prior to the meeting. He then told her that if Ms. Wall wanted him to leave his job, he would go to Mr. Anderson and resign. At this point, Ms. Wall became visibly upset, a state of affairs confirmed by Mr. Anderson who could witness but not hear the conversation between AB and Ms. Wall.

23That conversation went on for some time with Ms. Wall engaging with AB in an endeavour, according to her, to understand what had led him to this course of conduct. Thereafter, she met with Mr. Anderson who confirmed that she was still upset.

24On other significant details of this meeting, there was disagreement between Mr. Anderson and Ms. Wall. According to Ms. Wall, she informed Mr. Anderson at this point that AB had admitted everything and showed him a copy of the email that AB had sent to her. According to Mr. Anderson, Ms. Wall reported that AB, while admitting that he had taken photographs of L, had denied taking any photographs of Ms. Wall. As for the email, he testified that he did not see it until the Commission provided disclosure in the current proceedings. Mr. Anderson also testified that he did not believe Ms. Wall's account of her conversation with AB and attempted to persuade her to tell him that AB had also admitted taking photographs of her. He did this because he believed that Ms. Wall was trying to protect AB. In any event, on the suggestion of Mr. Anderson, Ms. Wall went home immediately after that and returned for only a short time the next day, at Mr. Anderson's request, to change her voice mail message and attend to the payroll. Thereafter, Ms. Wall was on a week's vacation coinciding with the annual shutdown and, in fact, never returned to work for the corporate respondent before she was dismissed.

25Irrespective of which account of the meeting between Ms. Wall and Mr. Anderson corresponds more closely to what actually occurred, the most significant aspect of that meeting is what took place once it was over and, more particularly, how Mr. Anderson then conducted himself. Whether Ms. Wall admitted it or not, by his own testimony, Mr. Anderson now believed that AB had taken inappropriate photographs of both L and Ms. Wall. He also recognized that Ms. Wall was clearly distressed about the matter. This was something that he could not let rest. He therefore contacted AB with a view to discussing his conduct with him. He claimed that he confronted AB with the one allegation that he had taken inappropriate photographs of Ms. Wall but nothing else. He also testified that AB denied that allegation and that, at that point, there was nothing else that he could do, believing that the allegations against AB with respect to L were none of his business.

26If any face-to-face meeting with AB took place, I do not accept Mr. Anderson's testimony as to its content. That account is inconsistent with the following email that AB sent to Mr. Anderson that morning and timed at 10:06 a.m.:

hi jeff sorry can't talk face to face right now over the last month I have made some really stupid choices on Sunday night choices came back to haunt me I have lost my family and my home and I have had criminal charges placed against me. I have to go to court on 27/aug/02 at 12:00 noon I hope this is ok for now I will explain more later thanks

27Not only does this create the very strong impression that there had been no substantive encounter between Mr. Anderson and AB but, at the very least, it must have confirmed for Mr. Anderson that there was much more to be investigated in the allegations that D had made against AB, that there was a real basis for the upset that Ms. Wall was visibly displaying, and that responsible management meant that he could not let matters rest there. Nonetheless, Mr. Anderson testified that he did nothing further either that day or on the Friday. The following week, he was on vacation and AB worked in the warehouse alone.

28In fact, aside from the attempt to discuss the matter on July 25, Mr. Anderson never did confront AB with the allegations that had been made against him until he terminated him on August 13. In the meantime, he claimed that Ms. Wall had admitted for the first time, in the course of a telephone conversation with him on August 6, that AB had confessed at the meeting with her on July 25 to taking the offensive photographs of her, and not just L. Mr. Anderson went on to state that he conveyed this information to the Lippés that same day and made the decision that AB could not remain. (Ms. Lippé corroborated that testimony to the extent that she testified that it was either this day or the next that she learned of AB's confession to Ms. Wall that he had taken photographs of her legs.) As well, on August 7, a day on which AB was not at work, he searched AB's workplace computer to see whether it contained any inappropriate material or support for the allegations. He found nothing. He also testified that, until Ms. Lippé reported to him on either August 12 or 13 on a telephone conversation with Ms. Wall, he had no knowledge of the allegations (and admissions) with respect to the pornographic script and workplace masturbation. As a consequence, he actually terminated AB on August 13, and informed Ms. Wall.

29In the meantime, Ms. Wall had not returned to work. According to her testimony, which I accept, she had been very upset about the events at her workplace while away on vacation during the shutdown week of July 29. On Tuesday, August 6 (the Monday being a civic holiday), she felt unable to return to work having battled her anxiety to the extent of actually driving to work but feeling that she could not go any further in the knowledge that AB was still in the workplace. At that point, she called Mr. Anderson to let him know that she would not be coming in that day and would be consulting her doctor. According to Mr. Anderson, it was either during the course of that call or later in the day that Ms. Wall told him for the first time that AB had admitted on July 25 to photographing Ms. Wall's legs.

30On the afternoon of August 6, Ms. Wall saw Dr. Aneeta Goomar, who was temporarily replacing her regular physician, Dr. Langer. According to Dr. Goomar's notes and Ms. Wall's testimony, Ms. Wall conveyed the gist of what had occurred at work (including information about inappropriate photographs of Ms. Wall) and reported symptoms of anxiety, heart palpitations, nausea and vomiting. Dr. Goomar also testified (and this was confirmed by her notes) that Ms. Wall was tearful and despondent during the consultation. Her initial diagnosis was an acute situational reaction accompanied by symptoms of anxiety and depression. She recommended supportive psychotherapy and prescribed a continuation of a drug that Ms. Wall had been taking to counter mood swings as well as another medication to counter anxiety. She also scheduled another appointment for 48 hours hence on Thursday, August 8.

31Following her appointment with Dr. Goomar, Ms. Wall contacted Mr. Anderson to let him know that she would not be at work the rest of the week and would be seeing the doctor again on Thursday. She testified that on both this telephone call and at least one subsequent one on Wednesday August 7, Mr. Anderson was upset at her for missing work and insistent that they needed her. This was particularly so on the August 7 call, as on that day, AB was also absent. On that occasion, Mr. Anderson testified that he told Ms. Wall that he would let AB go if she agreed to come to work. While Ms. Wall's diary of events that she began to compile some time around August 6 did not speak to that explicitly, she did record that one of the reasons that Mr. Anderson was anxious for her to be at work was to train the new warehouse person. Mr. Anderson explained his insistence that Ms. Wall return to work not only by reference to the difficulties that the absence of both the other employees was causing but also on the basis that he could not understand why Ms. Wall was reacting so severely to the events involving AB. According to Mr. Anderson, the Lippés shared this opinion.

32Ms. Wall attended Dr. Goomar again on August 8 and provided further details of AB's conduct. According to Dr. Goomar's testimony and notes, Ms. Wall was continuing to exhibit the same symptoms. Her clinical notes also raised some concerns about why Ms. Wall was reacting so severely to AB's conduct. At the conclusion of that appointment, Dr. Goomar gave Ms. Wall a note that she needed to be off work until the end of August because of "medical illness".

33Ms. Wall telephoned Mr. Anderson that day and informed him that she would be off work for the rest of the month. By this time, Mr. Anderson had contacted Employment Standards about the corporate respondent's legal responsibilities towards Ms. Wall. This provides support for Ms. Wall's testimony that, during the course of that conversation, Mr. Anderson not only talked about her lack of legal entitlement to wages for the current week but also, more significantly, raised for the first time the spectre of dismissal if she did not return to work on Monday. Further corroboration for this came from Mr. Anderson himself. When Ms. Wall's husband came to the workplace the next day, August 9, to deliver the doctor's note, Mr. Anderson admitted that he not only urged Mr. Wall to persuade his wife to return to work but also told him that, if she did not come back, she would face termination. Neither then nor at any future point did Mr. Anderson seek elaboration on the nature of Ms. Wall's "medical illness" nor did he otherwise seek information about what was wrong with Ms. Wall. He stated that it was not his place to do that.

34Despite his talk of dismissal, Mr. Anderson did not take any steps to terminate Ms. Wall when she did not turn up for work on Monday, August 12. However, that evening, Ms. Lippé telephoned Ms. Wall at home and they had a lengthy and at times emotional discussion. What is clear from the testimony of both women is that this was the first occasion on which Ms. Lippé became aware of the full details of AB's conduct and, specifically, the workplace masturbation and the pornographic script. According to Ms. Lippé, and I accept her testimony, all that she knew up until that point, through her husband (who got his information from Mr. Anderson), was that AB had admitted taking photographs of L in the nude and of her lingerie as well as photographs of Ms. Wall's legs. Indeed, Ms. Wall herself testified that it was her impression that Ms. Lippé was hearing these things for the first time.

35However, Ms. Wall's account of the conversation differed in one significant aspect from that provided by Ms. Lippé. Ms. Lippé testified that she asked Ms. Wall why she had initially denied that AB had admitted taking photographs of her legs and why she had just now told her of the full extent of AB's conduct. According to Ms. Lippé, Ms. Wall responded that she had been scared that, if she had revealed the full extent of AB's conduct and admissions to Mr. Anderson on July 25, he would have dismissed AB immediately and she would have had to forego her week off and work in the warehouse through the shutdown week. Ms. Wall denied this and stated that, while she accepted that Ms. Lippé did not know the full details at that point, it was because neither Mr. Anderson nor Mr. Lippé had told her. On this point, I do not accept Ms. Lippé's evidence. If Ms. Wall was that anxious to protect her week off, she would not have risked even informing Mr. Anderson that AB's [sic] had admitted taking photographs of his stepdaughter in the nude as well as of her lingerie. In most managers, given knowledge of D's prior allegations, this would have prompted an immediate confrontation with AB and an aggressive investigation into all D's allegations. There was no way that Ms. Wall could be certain that Mr. Anderson would let matters rest there. In fact, given Mr. Anderson's own account of how upset Ms. Wall was after her July 29 encounter with AB, I simply do not accept that she was calculating in the manner recounted by Ms. Lippé.

36Ms. Lippé reacted to her conversation with Ms. Wall in two ways. First, she reassured Ms. Wall that she could stay away from work on salary until September 3. She also contacted Mr. Anderson and her husband and demanded that they dismiss AB immediately. Mr. Anderson responded that the papers were already prepared. The next day, Mr. Anderson dismissed AB. He then contacted Ms. Wall to inform her. Mr. Anderson reported that Ms. Wall's reaction was to the effect that she could not care less. Ms. Wall confirmed that that was her initial reaction. It was also clear that, as far as Mr. Anderson was concerned, September 3 marked the extent of at least his capacity for tolerating Ms. Wall's absence. Ms. Wall took that from her conversation with Mr. Anderson on August 13 and conveyed that information to her doctor on August 14. It is also consistent with Mr. Anderson's earlier discussion with both Ms. Wall and her husband about the possibility of termination of Ms. Wall if she did not return to the workplace and his contact with Employment Standards to ascertain the corporate respondent's legal rights with respect to both Ms. Wall and AB, as well as the way in which Mr. Anderson acted when Ms. Wall did not return to work on September 3.

37Irrespective of what the Lippés and Mr. Anderson knew prior to August 13, it is also clear that, as of that date, they were all aware of the full extent of AB's conduct. Also, Ms. Lippé at least had considerable awareness of the impact that that conduct and AB's admissions to her had had on Ms. Wall and her need for time off work, though the three were all confident that she would return to work on September 3 and Ms. Wall had given no indication to the contrary. However, given the terseness of the medical note, none of the three had any definite knowledge of the precise nature of Ms. Wall's condition. Indeed, in the light of subsequent diagnoses, Dr. Goomar herself was not aware of the full extent of Ms. Wall's condition.

38Between August 13 and September 3, apart from one short reassuring call from Ms. Lippé on August 14, there was no direct contact between Ms. Wall and Mr. Anderson and the Lippés. After meeting again with Dr. Goomar on August 14, Ms. Wall went away to spend a week with her mother, a fact of which her employer was aware. Upon her return, she testified that her anxiety attacks became more and more frequent as September 3 approached. As a consequence, she again consulted Dr. Goomar on August 22. Dr. Goomar confirmed Ms. Wall's account of her symptoms and accepted that she was not ready to return to work. At that stage, according to Ms. Wall, Dr. Goomar suggested that she might need from three to six months off work. This was recorded on a WSIB form that Dr. Goomar completed for Ms. Wall that day though the form also noted that a "complete recovery" was expected. On that form, Dr. Goomar recorded Ms. Wall's condition as one of acute situational reaction with depression and anxiety and went on to describe her symptoms as anxiety and panic triggered by a specific incident in the workplace. Ms. Wall understood that, because of the absence of Dr. Goomar's office manager, the form would not be sent to the WSIB until Tuesday of the following week: August 29.

39Ms. Wall took no steps to inform her employer after her August 22 appointment with Dr. Goomar that she would not be returning to work on September 3. She testified that she had some lingering hope that she might still be able to do so. That did not happen, and she telephoned Mr. Anderson on the morning of September 3 to inform him that she would not be returning to work that day and that she might be off from three to six months. In the course of that conversation, she described her continuing symptoms. Mr. Anderson made it clear that the Lippés would not go for that and that she was facing termination.

40Ms. Wall asserted that, during the course of their conversation, she told Mr. Anderson that Dr. Goomar had completed a WSIB form indicating that she needed from three to six months off work and that she would send it to him by fax. She further claimed that she did so using a neighbour's fax machine. However, Mr. Anderson denied receiving any such fax. Indeed, he testified that he did not know of Ms. Wall's WSIB application until some time in October when the WSIB contacted him concerning Ms. Wall's claim. Irrespective of whose account is correct, it was common ground between Ms. Wall and Mr. Anderson that Mr. Anderson did not specifically request a further medical certificate. This was despite the fact that he acknowledged that Ms. Wall had told him that her doctor had said she needed to take from three to six months off work. As far as Mr. Anderson was concerned, irrespective of its content, any medical certificate would be irrelevant; the corporate respondent needed a bilingual customer service representative for at the very least two or three hours a day, and could not subsist without one for a further three to six months. Ms. Wall indicated that in her current condition, she was not able to work even on a part-time basis.

41Following his telephone conversation with Ms. Wall, Mr. Anderson informed the Lippés. Acting on his recommendation, they authorized him to send a letter terminating Ms. Wall. Mr. Lippé did not testify. However, Ms. Lippé stated that Mr. Lippé took the decision on Mr. Anderson's recommendation and that she concurred. At that stage, neither she nor Mr. Lippé saw any need to ask for a further medical certificate. It was their joint judgment that the firm could not sustain Ms. Wall being away for a further three to six months. Mr. Anderson prepared and sent the termination letter the same day. Ms. Wall received notification of it on September 6 and collected it from the Post Office on September 9. In that letter, Mr. Anderson stated that her inability to return to work any sooner than three to six months hence was

. . . not acceptable to us and in effect constitutes "Neglect of Duty," a refusal to return to work., as per the Ontario Ministry Of Labour Employment Standards.

Mr. Anderson said the language used came out of a consultation with Employment Standards. The letter also offered her three weeks' pay as a severance package. This was stated to be in addition to the voluntary payments that the corporate respondent had made during the time she was absent during the month of August.

42On September 19, Ms. Wall returned to the workplace for the first time since July 25 to collect her possessions. While there, she encountered the Lippés and Mr. Anderson, and bade her farewells. Between September 3 and September 19, she had been in touch with Mr. Anderson by phone on a couple of occasions about her severance package and, in particular, the extent of her Employment Standards entitlement. This resolution of this issue did not in fact occur until September 2003, when Ms. Wall received a cheque for two of the three extra weeks' wages for which she was claiming entitlement.

The Complainant's Subsequent Medical and Employment History

43On September 12, 2002, Ms. Wall saw Dr. Goomar for the last time. Dr. Goomar testified that Ms. Wall appeared to be doing better. However, she did prescribe an additional medication to counter migraines that Ms. Wall reported suffering in the wake of her dismissal. Thereafter, on September 20, 2002, Dr. Goomar filled in another WSIB form in support of Ms. Wall's application for Workers' Compensation. In this form, in contrast to the earlier version dated August 27, Dr. Goomar predicted a full recovery in four to six weeks, not three to six months. Dr. Goomar was unclear why she had sent the form in again but ventured that it was because WSIB had misplaced the original form or never received it. Ms. Wall's notes support that. She recorded receiving a communication from WSIB on September 9 to the effect that the doctor had still not provided the required papers, though it is clear that, when it came to making the decision denying Ms. Wall's eligibility for Workers' Compensation, WSIB were in possession of the original form. In any event, Dr. Goomar testified that she changed her estimate because of her diagnosis that Ms. Wall's condition had improved since her previous appointment on August 22.

44Ms. Wall next saw a physician on October 2, 2002. Dr. Langer, her regular doctor, had returned to his practice. On the basis of his consultation with Ms. Wall, he confirmed Dr. Goomar's initial analysis. Ms. Wall was suffering from situational adjustment disorder, a condition with a constellation of symptoms brought on by a specific event as opposed to a spontaneous major depressive illness. While unable to conclude whether Ms. Wall had improved since her last appointment with Dr. Goomar, Dr. Langer was sufficiently concerned by her condition to adjust her medication and to push her to consider supportive psychotherapy, something that Dr. Goomar had also recommended.

45Four weeks later, Ms. Wall saw Dr. Langer again. At this point, she appeared to be doing much better. In fact, Dr. Langer reduced her medication. However, he was concerned that Ms. Wall still felt unable to face the world and, in particular, to seek employment. He felt that the longer she put this off, the more difficult it would become. As a consequence and with her consent, he referred her to a psychiatrist, Dr. Kenneth Handelman. Dr. Handelman could not see Ms. Wall until January 10, 2003. In the meantime, Dr. Langer saw Ms. Wall again on December 13. At that appointment, Ms. Wall reported that she felt as though she was improving despite still tiring and becoming confused very easily and having vivid dreams though otherwise sleeping well. While diagnosing her as still suffering from situational adjustment disorder, Dr. Langer concurred in Ms. Wall's self-assessment. She presented herself as improving.

46In the period January 10, 2003, to November 20, 2003, Dr. Handelman saw Ms. Wall on five occasions. His initial diagnosis was that Ms. Wall was suffering from a moderately severe case of post traumatic stress disorder, a form of major depressive disorder resulting from a single episode. However, the prognosis was favourable. Ms. Wall appeared tractable and her most pressing concern was to eliminate the anxiety from which she was suffering and get back to work. Dr. Handelman's treatment of her and prescription of medication evolved as a result of that initial diagnosis and his observations of her condition at the appointments that followed. He also encouraged Ms. Wall to undertake a course of psychotherapy and, despite initial reluctance, she did so eventually.

47Despite the fact that Ms. Wall had previously been treated for symptoms of depression or mood swings in the two years leading up to the workplace incident, Dr. Handelman attributed her current condition to that incident that Ms. Wall had described to him exacerbated by the fact that her Employment Insurance benefits were in jeopardy. In all the circumstances, it was his best estimate that the recovery period would be from three to six months but there could be complications along the way. Subsequently, Dr. Langer testified that, from August 2000, Ms. Wall had been on medication for mood swings involving periods of depression and displays of anger, the product of bad menstrual periods, that he had gradually decreased the dosage as her symptoms diminished, and that the last record of any prescription was on December 20, 2001, though Ms. Wall was apparently still taking medication on an irregular basis through the first half of 2002.

48As of his second appointment with Ms. Wall on February 18, 2003, Dr. Handelman noticed improvement that he attributed to the high dosage of the anti-depression medication that he had prescribed. Nonetheless, her symptoms were still sufficiently severe that it was too early to contemplate a return to the work force or even commence a job search. By March 27, he believed that a job search was now possible and even re-entry into the workplace by way of gradual reintegration in the form of part-time employment. When asked how he reconciled this with the notation in his clinical notes about a job search starting in September, Dr. Handelman surmised that it could have been explained by the fact that Ms. Wall plann[ed] to undergo a hysterectomy later in the year. Thereafter, on April 28, he was still of the opinion that Ms. Wall was capable of conducting a job search and a gradual return to full-time employment though he noted that there had been some regression with a reappearance of workplace-related anxiety. He prescribed an increase in one of the drugs Ms. Wall was taking.

49Dr. Handelman did not see Ms. Wall again until November 20. He was unsure of the reason for this but speculated that it may have been because of the hysterectomy. According to Ms. Wall, she did not make any appointment to see Dr. Handelman during those seven months because she was doing well and coping with any problems that arose. In any event, Dr. Handelman noted that, while there were still some signs of post traumatic stress disorder, Ms. Wall was reporting that her anxiety had disappeared a month previously. He therefore took her off her medications, and was of the opinion, despite the continuing mild symptoms, that she was fit for work again. As Ms. Wall was now more accepting of the idea, he also arranged for her to undergo psychotherapy with a Lindsey Hann. Thereafter, Ms. Wall took part in four sessions with Ms. Hann.

50One of the issues that counsel for the respondents explored with Dr. Handelman on cross-examination was whether Ms. Wall would ever have been able to return to the corporate respondent's workplace. Because this was not an option following her dismissal, Dr. Handelman's interactions with Ms. Wall had never really delved into this possibility. However, with different treatment and a supportive workplace, Dr. Handelman was guardedly of the opinion that, in time, Ms. Wall would have been able to return to her position with the corporate respondents. He reiterated this on re-examination by Commission counsel. He also made it clear that, while the removal of AB from the workplace was the appropriate thing to do, Ms. Wall by that time was simply not capable of returning to the workplace even in AB's absence. The workplace itself and what had taken place there as well as her reaction to those who were there at the time made that impossible at that point.

51During the time that Ms. Wall was seeing both Dr. Handelman and Ms. Hann, she continued to consult with Dr. Langer. As well as reviewing Dr. Handelman's initial diagnosis with her on January 14, Dr. Langer provided her with a note on February 3, 2003, to the effect that she was capable of returning to work as of January 22, 2003. (He had no recollection of the purpose for which Ms. Wall was seeking this note.) Then, on June 12, he prescribed headache prevention medication to counter her continuing migraine attacks. He also saw her prior to her hysterectomy in September and following that on October 16 and 22 as a result of post-operative complications. Finally, in terms of appointments relevant to this matter, on November 13, Ms. Wall asked him for a note for the purposes of her human rights complaint to the effect that she had been incapable of working for the previous year. However, Dr. Langer had no record or recollection of actually providing any such note. At that appointment, he also arranged for a referral to a neurologist because of continuing problems with migraine attacks.

52For her part, Ms. Wall testified that her symptoms worsened after September 3, the date of her termination. Not only had the termination itself upset her but also she felt that she had lost a second family in AB and the Lippés, and was worried about the financial repercussions of not having a job to which to return. In her mind, there was no way in which she could have returned to work within four to six weeks of her appointment with Dr. Goomar in October 2002 as set out in the WSIB form that Dr. Goomar filled out at that time but did not discuss with Ms. Wall. (She did not see it until January.) Thereafter, it was not until February or March of 2003 that she experienced any marked improvement. However, as of April, she felt sufficiently well that she did not continue with her monthly appointment with Dr. Handelman and testified that she attended on him in November principally to secure a note in support of her human rights complaint. By that time, she said, she had in fact been off all her medication since September in part because of concerns about possible dangers of continuing it when she was about to undergo a hysterectomy.

53Nonetheless, at that time, she did accept Dr. Handelman's recommendation that she undertake a course of psychotherapy and attended Ms. Hann for four sessions between January 20 and March 23, 2004. At that point, Ms. Wall discontinued the psychotherapy. She felt fine and, as of March 1, she had secured full-time employment as a bilingual customer service representative with another company.

54According to Ms. Wall, her search for full-time employment started in February or March 2003 and went on for a year, punctuated initially by the fact that she was still having bad days and for a time in September and October because of the hysterectomy. (The September discontinuation also coincided with the end of Ms. Wall's Employment Insurance entitlements.) In the meantime, her only employment was a few assignments providing daycare for children. Her job search involved daily scrutiny of newspapers and sites on the internet as well as dropping off her résumé at various companies and school boards in the area around Brampton. She produced a spreadsheet supporting that claim and explained [the] gap between September 2003 and January 2004 as related to her hysterectomy and a failure to actually keep records for some time after that. She also testified that she could have returned to the corporate respondent any time after February 2003.

55Dr. Handelman testified that, with appropriate treatment and a supportive work environment, Ms. Wall could have returned to work for the corporate respondent. Ms. Wall herself testified that, at least until she was dismissed, that was what she wanted to do. When asked to explain a notation in Dr. Langer's clinical notes to the effect that, on October 2, 2002, she had stated that she knew a week after she had found out about being photographed that she would never go back to the corporate respondent, Ms. Wall responded that that remark was made in the context of the way in which Mr. Anderson was reacting to her need for time off to get over the impact of the incident.

56She also explained a September 19 entry in her own log of the events stating:

I feel much better knowing that I do not need to go back to that place.

According to Ms. Wall, that entry, written after she went to collect her possessions, was based on her feelings about being terminated for "neglect of duty" and not being given a further period of sick leave. She also explained her failure on September 19 to try to persuade the Lippés to reverse their decision as based not on her determination not to return but rather on her sense that the decision was irreversible. Indeed, she also testified that she came away from that encounter pleased that she had felt able to confront the demons of the workplace and the warehouse in particular. She pointed out that she had not only entered the workplace unaccompanied and met with both the Lippés and Mr. Anderson, the latter in the warehouse, but also returned to retrieve an item of clothing that she had neglected to collect on her first visit.

The Respondents' Response to the Situation Created by AB's Misconduct and the Complainant's Condition

57There is no doubt that Mr. Anderson regarded the presence of a full-time warehouse person and a bilingual customer service representative as critical to the operations of the corporate respondent. This is reflected in his testimony about his interactions with AB when AB was absent from work during the first part of the week of July 22. He took aggressive steps to track him down and when he did, notwithstanding an obvious personnel issue with AB's behaviour, did not confront him with that but insisted on the importance of AB staffing the warehouse during the shutdown week. Similarly, when Ms. Wall did not return to work on August 6 after the shutdown week, he tried to exercise pressure on her immediately by mentioning the prospect of dismissal. Indeed, that very day, he contacted Employment Standards as to employers' rights and obligations in a situation such as this. He then raised the possibility of dismissal with Ms. Wall's husband when he came to the plant to deliver Dr. Goomar's medical note on August 9. It also took Ms. Lippé's intervention to protect Ms. Wall's position after August 12, even though, from that point on, Mr. Anderson conceded that he was fully aware of the extent of AB's misconduct. Nonetheless, left to himself, he would have dismissed Ms. Wall any time after August 7.

58Mr. Anderson was even more insistent when Ms. Wall informed him on September 3 that she would need from three to six months off. Rather than making any inquiries as to the details of her medical condition that had led to this, he admitted to being "very upset" and asking whether it was possible for her to at least come in for two to three hours a day. When Ms. Wall responded by saying that she could not and suggesting that the corporate respondent hire a temporary replacement until she was well enough to return, Mr. Anderson said that was not feasible. He told her that the Lippés would not go for such an extended period of absence and that she faced termination. So it proved. Ms. Lippé testified that the corporate respondent could not cope with Ms. Wall being absent for a further three to six months and that there was no point in asking for a further medical certificate at that point. They had no choice but to dismiss her. While the extended Lippé family often helped out in crises, Ms. Wall's job was not something that members of the family could perform or provide cover for over a lengthy period.

59In Ms. Wall's absence and with AB's termination on August 13, Mr. Anderson, with assistance from the Lippés and their son-in-law, ran all aspects of the business. The son-in-law, Mike Collins, was bilingual, happened to be available, and had worked there part-time in the past. In fact, by August 27, the corporate respondent had found a replacement for AB and Mr. Collins helped train him. Mr. Collins also filled in for Ms. Wall until she was dismissed and thereafter until a new bilingual customer service representative was found some two weeks after the dismissal of Ms. Wall. Ms. Wall's replacement did not have her qualities and abilities, having only his High School diploma and a French immersion certificate. He stayed only until July 2003 when he left to pursue another career path but not before training his successor.

60Mr. Anderson explained his and the corporate respondent's desperation by reference to the frequent absences from the workplace of Mr. Lippé and also himself. More particularly, Mr. Lippé and he were scheduled to be absent during most of September and October and Mr. Lippé was also away generally in November, December, January and April, and, frequently in April accompanied by Mr. Anderson. He also testified that bilingual customer service representatives were extremely hard to find and that he knew that he could not expect to find someone who would be willing to fill in for Ms. Wall on a three- to six-month temporary basis. He knew this from past experience though admitted that he had not had to test the market for the past six years.

61On cross-examination by counsel for the Commission, Mr. Anderson explained why he had made no effort to test the market for a temporary replacement for Ms. Wall. It was his view and that of the Lippés that temporary employees were not a good idea particularly given the responsibilities that the customer service representative had for opening and closing the plant when Mr. Anderson and the Lippés were absent. They would not have sufficient trust in any temporary employee to hand over the keys to the plant for that purpose. Moreover, given the extent of their absences often at the same time, there was no way that one of the Lippés or Mr. Anderson would be available on all occasions to attend to the opening and closing of the plant.

ANALYSIS

Relevant Legislative Provisions and Legal Principles

62Section 5(1) of the Code states:

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

It is reinforced by s. 9:

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

63Section 17 goes on to provide:

Disability

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a disability.

Accommodation

17(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.

64Section 11 of the Code is also relevant to the issues in this case and provides:

Constructive Discrimination

11(1) A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

Idem

11(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.

65The Supreme Court of Canada has established the general legal parameters within which the Tribunal is to interpret these legislative provisions. As far as a general interpretive approach to the Code is concerned, the Supreme Court over 20 years ago in Ontario (Human Rights Commission) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at § 12 [7 C.H.R.R. D/3102 at § 24766] (per McIntyre J.) stated:

. . . It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment. . . and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary — and it is for the courts to seek out its purpose and give it effect.

66Within this interpretive framework, the Court (in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at 174—75 [10 C.H.R.R. D/5719 at § 41759] (per McIntyre J.)) has defined discrimination as:

. . . [A] distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

67For present purposes, a disability or handicap (Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665 [37 C.H.R.R. D/271] at § 79 (per L'Heureux-Dubé J.) ("Mercier"))

. . . may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors

68Mercier, supra, at § 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.

69Thereafter, the onus switches to the defendant. In the context of an employment policy that was prima facie discriminatory, the Supreme Court, in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 [35 C.H.R.R. D/257] at § 54 (per McLachlin J. (as she then was)) ("Meiorin") has described this onus in the following terms:

. . . An employer may justify the impugned standard by establishing on a balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate the individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer

For present purposes, this has to be read in the context of a single event (as opposed to an existing policy).

70In Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 [reported 63 C.H.R.R. D/301] at § 16 and 18 ("Hydro-Québec"), 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 the reasonably foreseeable future. . . the employer will have [discharged its burden of proof and established undue hardship].

Also critical is the language of s. 11(2) and s. 17(2) of the Code, which establish what the Tribunal should consider in evaluating whether accommodation would impose "undue hardship":

. . . the cost, outside sources of funding, if any, and health and safety requirements, if any.

71The duty to accommodate has both a procedural and substantive content. This is made clear not only in Meiorin, supra, at § 65, but also in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [36 C.H.R.R. D/129] at § 22 and 42—45 (per McLachlin J.). In the procedural domain, this calls for individualized assessment of the person affected in the context of the employer's workplace imperatives.

Application to the Facts

72The respondents did not put in issue whether Ms. Wall was suffering from a "disability" as defined in the Code to include a "mental disorder". In any event, I accept Dr. Handelman's diagnosis that Ms. Wall was suffering from post traumatic stress disorder and that this constituted a "disability" for the purposes of the Code. (See e.g. Chamberlin v. 599273 Ontario Ltd. (1989), 1989 CanLII 9081 (ON HRT), 11 C.H.R.R. D/110 (Ont. Bd.Inq.); Metsala v. Falconbridge Ltd. (2001), 2001 CanLII 26213 (ON HRT), 39 C.H.R.R. D/153 (Ont. Bd.Inq.).)

73In closing submissions, counsel for the respondents did assert, though without elaboration, that this disability was not a factor in the dismissal of Ms. Wall. I have no doubt that Mr. Anderson and both the Lippés were aware, albeit imprecisely, at the time that Ms. Wall was dismissed, that she was suffering emotional consequences as a result of the relevant events in the workplace and were operating on the clear assumption that she needed an uncertain period of leave to enable recovery to the extent that she could return to the workplace. In those circumstances, it is a "reasonable inference" that Ms. Wall's disability was "a factor" in the respondents' termination decision: Morris v. British Columbia Railway Co., 2003 BCHRT 14 [reported 46 C.H.R.R. D/162] at § 183—85.

74As a result, the Commission crossed the threshold of establishing a prima facie case of discrimination and the onus switched to the respondents to establish a non-discriminatory reason for Ms. Wall's dismissal or that Ms. Wall's absence could not, in terms of s. 17(2) of the Code,

17(2) . . . 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.

75In neither its evidence nor its pleadings or final submissions did the respondents attempt to advance a non-discriminatory justification (aside from business needs, a consideration inextricably bound up in the extent of their duty to accommodate) for their treatment of Ms. Wall. As a consequence, the nub of this case is reached very quickly. Did the respondents meet the obligations of accommodation imposed by s. 17(2) and thereby establish that Ms. Wall was, in terms of s. 17(1)

17(1) . . . incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a disability.

76However, before I consider that, it is important that I deal with what was in issue in the preponderance of the evidence that the parties adduced: the timing of Ms. Wall's communication to Mr. Anderson and the Lippés of information about the conduct of AB, the timing and the extent of her communication to those three of her medical condition, and the issue whether she would ever have returned to the workplace after even an extended period of sick leave, with or without pay. What bearing do these factual issues, hinging largely on questions of credibility, have on the legal questions that the Tribunal has to determine?

77I suppose that all of this evidence may have been adduced simply to establish essential background and perhaps with a view to providing the Tribunal with a basis for forming a general impression as to the credibility of the complainant, Mr. Anderson and Ms. Lippé. That impression might then be useful in the determination of those critical factual questions that had a bearing on whether the respondents had fulfilled their duty to accommodate to the point of undue hardship. However, that aside, it is my finding that these matters were of marginal relevance to the critical issues in the determination of this complaint.

78Whatever was the precise position prior to that date, it is common ground among the complainant, Mr. Anderson and Ms. Lippé that, as of August 12 or 13, Mr. Anderson and the principals of the corporate respondent were fully aware of all the details of AB's misconduct. Indeed, even by his own account, Mr. Anderson believed as of July 25 that AB's misconduct had involved a serious workplace incident, the surreptitious taking of photographs of Ms. Wall's legs by the placement of a camera beneath the chair on which she sat when working in the warehouse. As of August 6 or 7, Mr. Anderson and the principals of the corporate respondent knew that Ms. Wall was not only emotionally distraught as a result of whatever had taken place but also seeking medical assistance. As of August 8 or 9, they were all aware that her condition was such that her doctor had told her to take the rest of the month off. Finally, as of September 3, they all knew that her condition had not improved and were informed by Ms. Wall, acting on the advice of her doctor, that she would probably need from three to six months off work.

79It is only if those facts were not sufficient to trigger the duty to accommodate that it would be critical to determine the most contested factual issues at the hearing: whether Ms. Wall told Mr. Anderson on July 23 all the details of D's allegations against AB; whether Ms. Wall told Mr. Anderson on July 25 that [AB] had admitted to all of those allegations or only one or more of them; and whether Ms. Wall had sent and Mr. Anderson had received prior to September 3 the original WSIB form recording that Ms. Wall was suffering from "acute situational reaction with depression and anxiety" and that she needed from three to six months off work.

80It is my judgment that, on the basis of what was common ground among the three non-medical witnesses, Ms. Wall's situation triggered the duty to consider whether it was possible to accommodate her to the point of undue hardship. Mr. Anderson and the Lippés were aware that Ms. Wall was requesting accommodation in the form of three to six months' leave to deal with her medical condition. They did not contest that this assessment of the time needed to recover came from a doctor. What they might not have known on September 3, if the evidence of Mr. Anderson and Ms. Lippé is accepted, is Dr. Goomar's diagnosis of Ms. Wall's condition: "acute situational reaction with depression and anxiety". Nonetheless, at that point, even on their own testimony, they each had an awareness of her symptoms and the traumatic workplace events that had given rise to those symptoms. If this was not sufficient to put them on actual notice that Ms. Wall was suffering from a disability, at the very least, it placed on them the onus to inquire further and precluded any defence based on ignorance of Ms. Wall's condition: Davis v. 1041433 Ontario Ltd. (No. 2), 2005 HRTO 37 [reported 54 C.H.R.R. D/448] at § 67—68; Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd.Inq.) at § 25—27 and 32. As stated in other cases dealing with the test for establishing a prima facie case of discrimination, the question is whether the respondents knew or ought reasonably to have known that the complainant was suffering from a disability. For those purposes, there is no absolute requirement that a complainant communicate the nature of the disability to her or his employer: Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse (2002), 43 C.H.R.R. D/55, 2002 BCHRT 14 at § 35 (summarizing the authorities). In those terms, the respondents should reasonably have known that Ms. Wall was suffering from a disability.

81In fact, it is clear that Mr. Anderson and the Lippés were in no way inclined to seek further information about the precise nature of Ms. Wall's medical condition. Notwithstanding the obvious inadequacy of a medical certificate that stated that Ms. Wall needed to take time off work because of a "medical illness", neither Mr. Anderson nor the Lippés asked Ms. Wall to provide a certificate that spoke in greater detail to her condition. Why? Because their only real concern was the impact that Ms. Wall's absence for from three to six months would have on the corporate respondent's business irrespective of the reason for that absence.

82In Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 51 C.H.R.R. D/68, 2004 BCHRT 225 at § 84, the Tribunal summarized the relevant authorities on the scope of the procedural content of the duty to accommodate, as follows:

. . . 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.

83By reference to that test, which I accept as authoritative, Mr. Anderson and the Lippés failed to obtain all the relevant information about Ms. Wall's medical condition. However, there were critical facts of which they were aware from what Ms. Wall had told them: she was not likely to be available to return to full-time work for at least three to six months and that, at least, in the short term, she was incapable of part-time work or reduced responsibilities either generally or in their workplace. Not only had Ms. Wall told them that but that information reflected not only the judgment of Dr. Goomar but also the medical reality.

84Given that those were the known facts, it is appropriate to assess whether Mr. Anderson and the Lippés fulfilled their duty to accommodate Ms. Wall to the point of undue hardship within that setting, subject, of course, to the gloss that any assessment of their efforts has to be conducted with due regard to the Code's overall objective of providing protection against discrimination on the basis, inter alia, of disability.

85It is, however, also vital to recognize the employment context within which these events took place. In particular, it is necessary to take into account the fact that the corporate respondent functioned with a very small work force and that its ability to sustain long-term absences on the part of a key employee may be affected accordingly. This is made abundantly clear in a series of arbitral awards referred to by counsel for the respondents: Community Unemployed Help Centre and C.U.P.E., Local 2348 (1997), 1997 CanLII 24976 (MB LA), 67 L.A.C. (4th) 33; Washington Mills Electro Minerals Corp. v. U.S.W.A., Local 4151 (2003), 2003 CanLII 89624 (ON LA), 117 L.A.C. (4th) 313; York Region District School Board v. C.U.P.E., Local 1196, [2004] O.L.A.A. No. 326 (QL); and NAV Canada and International Brotherhood of Electrical Workers (2001), 2001 CanLII 62114 (CA LA), 101 L.A.C. (4th) 158. It is also reinforced in Hydro-Québec, at § 12, citing [Meiorin, citing] from the judgment of Cory J. in Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525 at 546 [22 C.H.R.R. D/1 at § 31]. The various factors that are relevant in the determination whether an employer has met the onus imposed by the duty to accommodate

. . . should be applied with common sense and flexibility in the context of the factual situation presented in each case.

86Through the testimony of Mr. Anderson and Ms. Lippé, the respondents advanced a number of justifications for not being able to sustain Ms. Wall's projected absence of three to six months and for not considering various alternatives as a way of accommodating that absence. Having regard to those justifications, two of the possible alternatives that the Commission suggested had not been properly explored by the respondents were in fact considered, if cursorily, and, in any event could not have been implemented without undue hardship.

1. Employment of a customer service representative who was not bilingual for the time that Ms. Wall was away was not a feasible option. A third of the corporate respondent's customers were from Quebec. While some of them were able to converse in English, I am not prepared to second-guess the corporate respondent's business judgment that a bilingual customer service representative was an essential part of its business and that any extended period without one would constitute undue hardship.

2. I also accept the corporate respondent's contention that a combination of Mr. Anderson, the Lippés and Lippé family members could not have covered adequately for Ms. Wall during any period of three to six months. It is clear that family members were not available to do that, that Mr. Anderson was otherwise too busy and away too often to perform this additional function for other than very short periods and even then not completely satisfactorily, and that Ms. Lippé lacked the skills other than an ability to speak French that were required of a customer service representative. In effect, this would have dislocated the corporate respondent's operations in a way that could have been very detrimental to its business. This too would have amounted to undue hardship.

87In contrast, I find that the respondents dismissed far too readily the possibility that they could find a full-time temporary replacement for Ms. Wall. Mr. Anderson testified that, in his experience, temporary replacements with bilingual capacity were not readily available. However, his sole basis for that conclusion was a single experience six years previously and intuition. In my judgment, that was a completely inadequate surrogate for the kinds of consideration that the duty to accommodate requires. The respondents should have certainly explored whether there was a market for a short-term, bilingual replacement for Ms. Wall. Indeed, even assuming a substantive justification can be advanced for a failure to meet the procedural obligations arising out of the duty to accommodate, the respondents did not adduce any evidence to support the impressionistic conclusions of Mr. Anderson about the state of that market.

88In fact, Mr. Anderson advanced a rather different kind of substantive justification for not going to the temporary replacement market. He testified that neither he nor the Lippés would trust a mere temporary replacement with the keys to the plant and the responsibility for opening and closing the plant each day. I regard this as a spurious justification. First, even if development of a certain level of trust was important in the assignment of this allegedly essential component of the position, there is no reason to believe that that degree of trust might not be found just as readily in a short-term replacement as in a new full-time employee. Indeed, it was clear that the respondents did not immediately trust Ms. Wall's full-time replacement with the keys to the plant. There was a period of "probation" during which other arrangements for opening and closing the plant were obviously in effect. Secondly, even assuming the validity of the contention that a temporary replacement could never be trusted with the keys, there were alternatives. Certainly, Mr. Anderson testified that this was not something that he or the Lippés could do on a regular basis. They were away from the plant far too frequently for that. However, aside from the fact that they somehow or other managed during the first few weeks that Ms. Wall's replacement did not have the keys, what seems never to have been considered was whether the new full-time warehouse person could have fulfilled this role. Indeed, it is a reasonable inference from the fact that AB was already in the warehouse and apparently alone the day that Ms. Wall confronted him about his conduct that AB had had keys to the premises.

89I therefore find that the corporate respondent acting in part through the agency of Mr. Anderson and in part through its principals, failed to properly consider whether it could have accommodated Ms. Wall's projected period of absence without undue hardship. It did not inquire at all into the availability of a temporary replacement. Further, to the extent, if at all, evidence to the effect that in fact such a replacement would have been unavailable would have provided the respondents with a defence to its procedural failings, there was no such evidence. Mr. Anderson's experience from six years previously and his general impressions did not suffice. In fact, until the corporate respondent dismissed AB, it had not had to go into the job market for any employee for the six intervening years.

REMEDY

Damages

90The Commission sought general damages under s. 41 of the Code of $10,000 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 s. 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 (s. 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.

91The following statement by the then Chair of the Tribunal, M.D. Garfield, in Ketola v. Value Propane Inc. (No. 2), [2002] O.H.R.B.I.D. No. 14 (QL) [2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37] at § 4, is valuable in both identifying the relevant criteria as well as explaining the relationship between an award under s. 41 for violation of the complainant's inherent right to be free from discrimination and damages for mental anguish:

In making such an award, the Board considers the following factors: the humiliation; the hurt feelings; the loss of dignity and self-respect of the complainant; the vulnerability of the complainant; and the seriousness, frequency, and duration of the offensive treatment. The emotional stress suffered by the complainant is only properly considered when making an award for the mental anguish component of the damages.

92There were some egregious aspects of the way in which the respondents and particularly Mr. Anderson treated Ms. Wall in the termination of her employment relationship, a termination that also constituted discrimination as proscribed by the Code.

93Despite the fact Ms. Wall was obviously very distraught at what had happened, Mr. Anderson reacted to all of her efforts to secure leave primarily from the perspective that she needed to return work almost immediately on either a full-time or at least part-time basis. This persisted even after he became aware that her physician was telling Ms. Wall that she needed time off work, and very quickly was reinforced with the threat of dismissal. Moreover, whatever version of the facts one believes as to Mr. Anderson's acquisition of knowledge about AB's conduct, it was also clear that his concerns about the smooth operation of the workplace predominated to the extent that he ignored his managerial responsibilities to confront AB and get to the truth. This was the case at least from July 25 when Mr. Anderson believed that AB had been involved in reprehensible workplace misconduct, the surreptitious taking of photographs of Ms. Wall's legs with a camera placed under the chair in which she worked in the warehouse. His disregard for Ms. Wall's condition also manifested itself in his seeming indifference to what was actually causing Ms. Wall's condition. He made no attempt to obtain more information about her condition in the face of an almost completely uninformative medical certificate, an attitude that continued to prevail until September 3 when Hubert Lippé dismissed Ms. Wall. Indeed, by that point, the Lippés were equally complicit in this failure to seek better information. Moreover, by as early as August 12, all three knew collectively about the full extent of AB's misconduct. It was more than taking surreptitious photographs.

94Mr. Anderson's (and ultimately the Lippés') indifference to her medical condition and failure to seriously investigate the possibility of a temporary replacement takes on added dimensions when viewed from the perspective of Ms. Wall's history with the corporate respondent. While she did not socialize outside the workplace with either AB or the Lippés, she clearly had a close personal attachment to the enterprise in which she was engaged and the people with whom she worked, a sentiment that she felt was reciprocated. Moreover, this feeling of community was not just a figment of Ms. Wall's imagination. Ms. Lippé's intervention on her behalf on August 12 was at least in part the result of her feelings for Ms. Wall as a valued employee in what until that point had been a cohesive and friendly workplace. In those circumstances, when the revelations about AB's conduct were followed almost immediately by the insensitivity of Mr. Anderson and his desire to be rid of her as employee, there was of necessity an adverse impact on her already fragile mental state. That was then exacerbated when it was followed on September 3 by the Lippés' support of Mr. Anderson's position that the corporate respondent had no choice but to terminate Ms. Wall.

95It is in that context that Ms. Wall's statements in her log and to Dr. Goomar about her relief at not having to return to the workplace have to be viewed. At that point, as a result of her disillusionment not only with AB but also with Mr. Anderson and the Lippés, it was not at all surprising that she was relieved not to have to return to the workplace. However, it scarcely lies in the mouth of the respondents to place too much store in this relief as offsetting her sense of pain at the actions of Mr. Anderson and the Lippés in undercutting her sense of community by treating her in a manner that I have determined is in violation of the Code.

96In fact, the only consideration that leads me to conclude that this was not wilful is that Mr. Anderson and, to a lesser extent, the Lippés were caught in most unusual circumstances when they acted in the way in which they did. Both non-managerial members of a three-person work force had become unavailable within a very short period of time, one permanently and one for up to six months and perhaps beyond. There was indeed a work-force crisis. However, while their conduct was not wilful, for the purposes of an additional award of damages for mental distress, I hold that it was reckless. The violation was committed without due regard for the additional consequences that it might cause to the mental state of an employee who was already suffering serious mental distress as a result of an incident in the respondents' workplace.

97In all of those circumstances, I hold that the respondents are jointly and severally liable to pay the complainant general damages of $10,000, the amount claimed, and $5,000 damages for mental distress reflecting the mental anguish that the complainant suffered as a consequence of the reckless violation of the Code by Mr. Anderson and the Lippés.

Wage Loss

98The Commission originally claimed damages for loss of wages including bonuses from September 3, 2002, until February 3, 2004. This was modified at the hearing of the complaint and reduced to the period from March 2003 to March 2004. The reason for this was to restrict the claim to the period during which the complainant would have been able to work again in the corporate respondent's workplace and was unable to find other work.

99One of the arguments that the respondents advanced was that any claim for loss of wages was undercut by the fact that Ms. Wall had determined that, because of the workplace incident, she could or would never return to the corporate respondent's plant. As a consequence, they asserted that there was no basis for an award of damages for loss of wages. In fact, the evidence does not support that. Right up to September 3, 2002, the termination date, Ms. Wall was hoping (though in an increasingly pessimistic frame of mind) to retain the right to return to her position once she had recovered even though she knew that from that point she would not be receiving sick pay. Accordingly, any statements that she made after that have to be read against the background of what took place on September 3 — the termination and, in effect, refusal of the earlier requests for accommodation. In any event, though his treatment of Ms. Wall was not directed to this end, Dr. Handelman testified that it was his belief that, in any event, Ms. Wall would have been able to return to the corporate respondent's workplace, a prediction that appeared to take into account not just AB's conduct but also the conduct of Mr. Anderson and the Lippés.

100In theory, therefore, Ms. Wall was entitled to loss of wages for the period between the time at which she would have been able to return to the corporate respondents' workplace and the point at which she obtained another position. There are two qualifications to this. First, that period is subject to increase to the extent that the respondent's violation of the Code delayed her recovery. Secondly, the period is subject to decrease to the extent that the respondents established that Ms. Wall had not acted reasonably in mitigation of her loss.

101The evidence in relation to these matters is somewhat of a tangled web. However, I am unable to accept that Ms. Wall was capable of a return to work in March 2003. Certainly, she testified that she was and indeed was compiling a record of approaches made to various potential employers from that point on. Nonetheless, even on April 28, Dr. Handelman was noting that there had been some regression in Ms. Wall's condition from February, including a reappearance of workplace-related anxiety. He was therefore guarded in his observation of her capacity to return to work full-time. She was capable of commencing a job search with a view to a gradual return to full-time employment. More tellingly, his clinical notes were to the effect that Ms. Wall was intending to commence a job search in September. Indeed, while he did not see Ms. Wall again until November, he is still reporting symptoms at that point and encouraging Ms. Wall to undergo psychotherapy, which she accepted for the first time. Nonetheless, at that point, he pronounces Ms. Wall fully fit to return to full-time work though in the context of Ms. Wall reporting that her anxiety had disappeared a month previously.

102This evidence leads me to the conclusion that Ms. Wall was not in fact anywhere near ready to return full-time to the workplace in early March 2003, her efforts at a job search notwithstanding. In my judgment, those efforts were far more related to the requirements of Employment Insurance than to any realistic estimate of her capacity and willingness to return to work. Moreover, Ms. Wall was scheduled to undergo a hysterectomy, which was delayed from April to September and then followed by complications. She was also able to produce very little concrete evidence of any kind of job search between the end of June 2003 and the beginning of January 2004.

103Accordingly, it is my finding on this that there was not a coalescence of two critical factors until the end of 2003: a capacity to return to work full-time and an active pursuit of full-time employment. I therefore hold Ms. Wall is entitled to three months' wages as special damages to reflect the period between when she was finally able to return to full-time employment and actually obtaining that employment. Though the evidence on this point was scant, I would, however, add a further period of two months' salary to this in reflection of the extent to which the delay in her return to work was affected by the conduct of the respondents leading up to and at the time of Ms. Wall's termination.

104The Commission's claim for this period assumed a normal annual increase in her salary in 2003, and the respondents did not contest this. I am therefore using that as the basis for an award of 16 weeks' salary at $729.32 per week. I am also assuming that Ms. Wall would have received her regular annual bonus of $500 in 2003. The award of special damages against the corporate respondent therefore totals $12,169.12. (As this represents loss of wages for a period after the discontinuation of Ms. Wall's Employment Insurance payments, there is no need to consider whether there should be any offset for that.)

Interest

105The complainant is also entitled to an order for pre-judgment interest. In the case of the general damages, this should run from the date on which she was dismissed, September 3, 2002. For the damages for wage loss, this should run from the mid-point of the time frame for those damages, the end of December 2003. The rates are specified in the order that follows. As well, there will be an order covering post-judgment interest.

Public Interest Remedies

106Even though this was a small workplace with only two non-management employees, Mr. Anderson and the Lippés had an obligation to be aware of their responsibilities under the Code. They obviously were not and they made no effort to rectify that deficiency by consulting either a lawyer or the Commission before terminating Ms. Wall. Rather, their principal legal preoccupation was their employment standards responsibility. All three should attend a training program aimed at educating them on their obligation not to discriminate on the basis of disability as requested by the Commission and detailed in the order that follows.

ORDER

107Having found that Mr. Anderson and Lippé violated Ms. Wall's rights to equal treatment and to be free from discrimination on the basis of disability under s. 5 of the Code, the Tribunal orders:

(1) the respondents are jointly and severally liable to pay damages of $15,000 to the complainant for violation of her inherent right to be free from discrimination and injury to her dignity, feelings and self-respect;

(2) the corporate respondent is liable to pay the complainant special damages totalling $12,169.12 for loss of salary (including an annual bonus);

(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 September 3, 2002. For the damages for lost wages, the entitlement runs from December 31, 2003;

(4) the respondents shall pay the complainant post-judgment interest (in accordance with their liability) on any accumulated principal and interest from the date that is 30 days after the date of this order, at the rate set for the quarter in which the accumulated principal and interest remains outstanding; and

(5) the corporate respondent shall retain at its own expense a qualified consultant (approved by the Commission) to provide training to its directors and management employees on the obligations of employers under the Code and, in particular, the duty to accommodate employees with a disability.