HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Frank Quattroci Applicant
-and-
Boz Electric Supply Ltd. Respondent
DECISION
Adjudicator: Ken Bhattacharjee Date: July 21, 2009 Citation: 2009 HRTO 1082 Indexed as: Quattroci v. Boz Electric Supply
appearances BY
Frank Quattroci, Applicant ) On his own behalf Boz Electric Supply Ltd., Respondent ) John Vaccher, Representative
INTRODUCTION
1The applicant, Frank Quattroci, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 7, 2008, which alleges that the respondent, Boz Electric Supply Ltd., discriminated against him with respect to employment because of his disability. Specifically, he alleges that the respondent terminated his employment because he had an elbow injury.
2The respondent filed a Response to the Application on August 19, 2008, which denies the allegation of discrimination. The Response states that the respondent company terminated the applicant’s employment for a non-discriminatory reason. Specifically, the respondent alleges that the applicant repeatedly used the company credit card for personal purchases.
BACKGROUND
3The respondent is a wholesale distributor of lighting fixtures and electrical equipment. The applicant started working as a delivery driver for the respondent on November 5, 2007. On May 30, 2008, the respondent terminated the applicant’s employment.
4The hearing of the merits of the Application took place on April 29, 2009. I heard the evidence of three witnesses: (1) the applicant, (2) John Vaccher, the general manager of the respondent company, and (3) Rob Battista, a supervisor at the respondent company.
5Mr. Battista was not called as a witness by either of the parties. He appeared at the hearing with the respondent, but was there in response to my Case Assessment Direction dated April 23, 2009, which, pursuant to Rule 1.7(o) of the Tribunal’s Rules of Procedure, advised the parties that the appearance of Mr. Battista as a witness at the hearing may assist the Tribunal in providing for a fair, just and expeditious resolution of the case. I asked Mr. Battista questions and allowed the applicant to cross-examine him. The respondent declined the opportunity to question him.
EVIDENCE
Applicant’s Evidence
6The applicant testified that on May 27, 2008, he fell while loading his truck, and injured his right elbow. He stated that he reported the injury to John Vaccher, who told him, in the presence of Rob Battista, not to report his injury to the Workplace Safety and Insurance Board (“WSIB”). He stated that Mr. Vaccher also promised to financially compensate him. He stated that he continued working for the rest of the day with Mr. Battista, who helped him unload deliveries.
7The applicant stated that he went to a hospital on the evening of May 27, 2008, and told the medical staff that he had an accident at home. He stated that the medical staff put his arm in a cast, and told him not to work for six to eight weeks. At the hearing, he tendered the Employer’s Report of Injury/Disease to WSIB dated June 5, 2008 as proof that the respondent knew that he attended the hospital, and a Health Professional’s Progress Report to WSIB dated June 11, 2008, which diagnosed him as having a fracture.
8The applicant stated that he was unable to report to work on May 28, 2008 because of his injury, and called in to report his absence. He stated that on May 29 he returned to work at noon, took his truck for an oil change, and picked up two loads. He stated that he continued to work on May 30 with the assistance of Mr. Battista. He stated that he also met with Mr. Vaccher in the morning to discuss his use of the company credit card for personal purchases. He stated that he admitted using the card for personal purchases, and agreed to sign a letter, backdated to May 26, which authorized the respondent to deduct the amount of the purchases from his pay cheque. The letter also warned him that his employment would be terminated if he used the credit card for personal purchases again.
9The applicant stated that later in the day on May 30 Mr. Vaccher informed him that his employment was terminated on the basis that he was untrustworthy because of improper use of the company credit card and he was unreliable because he failed to call the office to report his absence on May 28.
10The applicant denied that he had failed to comply with the warning letter, or that he had failed to report his absence. At the hearing, he tendered a long distance telephone record that indicated that he made a two-minute call to the respondent company at 12:31 PM on May 28.
11The applicant stated that the respondent submitted the Employer’s Report of Injury/Disease to WSIB on June 5, 2008, which was after the three-day WSIB deadline for submitting a report following an accident. He stated that on June 6, 2008 he submitted the Worker’s Report of Injury/Disease to WSIB. He stated that, after a significant delay, he eventually received WSIB benefits.
12In cross-examination, the applicant denied the respondent’s allegation that during his meeting with Mr. Vaccher on May 26, 2008, he admitted that he had another job doing courier deliveries in the evening, and had used the company credit card to pay for gas for his car. He also maintained that he signed the warning letter on May 30, not May 26, which is the date on the letter. He stated that he did not see the incorrect date on the letter when he signed it.
13In cross-examination, the applicant also admitted that his oral testimony with respect to the date of the termination of his employment was different from his pleadings. In his oral testimony, he stated that Mr. Vaccher terminated his employment on May 30, 2008. By contrast, in his pleadings he provided details about a series of events that allegedly occurred between May 30 and June 6, and stated that Mr. Vaccher terminated his employment on June 6.
14Specifically, the applicant stated in his Application and Reply that on Friday, May 30, 2008 Mr. Vaccher told him that he could no longer drive the truck, and that when he came to work on Monday, June 2, he would be assigned to work in the warehouse. He stated that he reported to work on June 2, but Mr. Vaccher sent him home when he realized that there was no suitable work for him in the warehouse. He stated that on June 4, Mr. Battista called him at home and told him that Mr. Vaccher wanted to meet and talk with him about providing him with financial aid. He stated that he reported to work on June 5 and met with Mr. Vaccher, who told him that he had changed his mind and would be reporting the applicant’s injury to WSIB. He stated that when he reported to work on June 6 to pick up his pay cheque, Mr. Vaccher terminated his employment.
15The applicant testified that the contradiction between his oral testimony and his pleadings was the fault of his lawyer. He stated that his lawyer had all the paperwork and sent him an e-mail with the inaccurate statements. However, he also admitted that his wife, not his lawyer, had filled out the Application. He also admitted he had signed the Application, but stated that he only skimmed over its contents, and did not know at that time whether or not he would be receiving benefits from WSIB.
16In cross-examination, the applicant also admitted that his oral testimony with respect to the amount of termination pay that the respondent provided to him on May 30, 2008 was different from his pleadings. In his oral testimony, he admitted that the respondent gave him three cheques on May 30. By contrast, in his pleadings he denied that the respondent gave him two of the three cheques.
17Specifically, the applicant stated in his Reply that he only received one pay cheque dated May 30, 2008, which represented his regular pay for the previous week. He denied that he had received two other cheques, which bore his endorsement signature and were attached to the Response to the Application in the form of cancelled cheques. He stated that the endorsement signature on the two cheques was different than his actual signature, the cheques were deposited into a Royal Bank account which was not his, and he would have been incapable of depositing them because his bank required that he and his wife co-sign the endorsement of all cheques, but the two cheques in question only had one signature on them.
18At the hearing, the respondent tendered a further cancelled cheque dated March 20, 2008, which, like the two May 30 cheques, only bore the applicant’s endorsement signature and was deposited into the same Royal Bank account. In cross-examination, the applicant admitted that he had, in fact, received, signed and cashed all three cheques dated May 30, 2008. He denied that he had ever said that it was not his signature on two of the cheques. Again, he stated that the contradiction between his oral testimony and his pleadings was the fault of his lawyer, but also admitted that his wife, not his lawyer, had filled out the Reply and that he had signed it. He also stated that he only skimmed over the contents of his Reply, and did not know at that time whether or not he would be receiving benefits from WSIB.
Respondent’s Evidence
19John Vaccher, the general manager of the respondent company, testified that in the months leading up to the termination of the applicant’s employment, the applicant used the company credit card for personal purchases on several occasions. He stated that the amounts of the purchases were deducted from the applicant’s pay cheques, and he was warned not to use the card improperly again. At the hearing, Mr. Vaccher tendered credit card purchase reports, receipts and payroll records, which, according to him, show that the applicant used the card for personal purchases, and that the amounts were deducted from his pay cheques.
20Mr. Vaccher stated that on May 26, 2008, he received a purchase report that indicated that the applicant had spent an inordinately high amount on gas over the previous month using the company credit card. He stated that he met with the applicant at the end of day, and the applicant admitted that the amount was high because he had used the card for personal purchases again. Specifically, he admitted that he had a part-time job doing courier deliveries and needed to pay for gas for his car.
21Mr. Vaccher stated that the applicant’s admission infuriated him, but because the applicant apologized and agreed to repay the amount and sign a warning letter, he decided to give him another chance. At the hearing, Mr. Vaccher tendered the letter, which is signed by the applicant and dated May 26, 2008. The letter states:
This is my authorization for Boz Electric Supply Ltd. to deduct the amount of $695.58 from any monies owing to me from my use of the company Petro Canada gas credit card for my personal use.
I understand that I was told on two previous occasions not to use the credit card for personal use, but I continued to do so. If it is found that I have used the credit card for my personal use since May 26, 2008, my employment at Boz Electric Supply will be terminated immediately.
I also gave Boz Electric Supply Ltd. my verbal consent to deduct the amounts of $194.29 from my March 21, 2008 pay and $140.00 from my May 9, 2008 pay to repay monies owing from using the credit card for my personal use.
22Mr. Vaccher acknowledged that the applicant injured his elbow at work on May 27, 2008, that the applicant informed him at the end of the day that he was going to have it checked out, and that the applicant continued working on May 29 and 30 with the assistance of Mr. Battista. He stated that he terminated the applicant’s employment on May 30 because he lost trust in the applicant because of his constant misuse of the company credit card. He stated that this was the sole reason for the termination, and denied that the applicant’s injury was a factor.
23In cross-examination, Mr. Vaccher denied that he told the applicant not to report his injury to WSIB, or that he promised to take care of him financially. He admitted that the applicant did not use the company credit card for personal use after May 26, 2008, and was therefore in compliance with terms of the warning letter, but stated that the applicant’s dishonest use of the card continued to bother him, so he changed his mind about giving him another chance and terminated his employment on May 30.
24In cross-examination, Mr. Vaccher also admitted that the respondent company submitted the Employer’s Report of Injury/Disease to WSIB on June 5, 2008, but denied that it was filed late. He stated that the respondent company filed the Report within seven days, which is the WSIB deadline when an employee is performing modified work.
Witness Evidence
25Rob Battista, a supervisor at the respondent company, testified that after the applicant’s accident on May 27, 2008 he had a discussion with him about whether it was better for him to be off work and receiving WSIB benefits, which would be less than his full pay, or to continue working with a helper at full pay. He stated that he and the applicant agreed that the latter was a better option.
26Mr. Battista stated that he was present during the discussion between the applicant and Mr. Vaccher on May 27, 2008, and denied that Mr. Vaccher told the applicant not to report his injury to WSIB, or that Mr. Vaccher promised to take care of him financially. He stated that Mr. Vaccher told the applicant to get his injury checked out, and only offered to take care of him in the sense that he was willing to provide him with a helper.
DECISION
Applicable Law and Issues
27The Application relates to subsection 5(1) of the Code, which prohibits discrimination in employment: “Every person has a right to equal treatment with respect to employment without discrimination because of… disability.” The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred.
28Accordingly, the issue that I am required to determine is whether the applicant has proven on a balance of probabilities that his disability was a factor in the termination of his employment by the respondent.
Findings of Fact
29For the reasons that follow, I have decided that the applicant has proven on a balance of probabilities that his disability was a factor in the termination of his employment by the respondent.
30I accept the respondent’s evidence that the applicant improperly used the company credit card for personal purchases several times during the course of his employment. The applicant signed a warning letter dated May 26, 2008, in which he admitted that he had been told not to use the card for personal purchases on several occasions. Furthermore, the respondent’s credit card purchase reports, receipts and payroll records show that on several occasions there were deductions from the applicant’s pay cheque that closely matched the amounts on the purchase reports and receipts.
31I also accept the respondent’s evidence that the applicant signed the letter on May 26, 2008, and not on May 30, as the applicant alleged. I did not find that the applicant’s explanation that he did not see the date on the letter when he signed it to be credible.
32However, I do not accept the respondent’s evidence that the applicant admitted that he used the company credit card to pay for gas for his car when he was doing courier deliveries for another employer. I had some difficulty determining who was telling the truth about this matter, but for the following reasons, I have decided that it is more likely than not that the applicant did not make such an admission. First, despite the egregious nature of the applicant’s alleged admission, it was not addressed in the May 26 letter. Second, during the hearing process, the respondent never requested that the applicant produce his income tax records, bank statements or other relevant records that could prove that the applicant had another job. I draw an adverse inference from the respondent’s failure to do so.
33I accept the applicant’s evidence that he fell and fractured his elbow at work on May 27, 2008. The respondent did not challenge the applicant’s evidence with respect to these facts, and did not dispute the fact that the applicant applied for and received WSIB benefits. The definition of “disability” in subsection 10(1) of the Code, includes, but is not limited to, an injury for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, as amended (“WSIA”).
34I do not accept the applicant’s evidence that Mr. Vaccher explicitly told him not to report his injury to WSIB and promised to financially compensate him, but I accept that there was some discussion between the applicant, Mr. Battista and Mr. Vaccher about accommodating the applicant by assigning him a helper, which would allow him to continue working full-time and forego the need for him to receive WSIB benefits.
35Mr. Battista, who I found to be a credible witness, testified that he had a discussion with the applicant on May 27, 2008 in which they both agreed that it would be better for the applicant to continue working with a helper at full pay, rather than being off work and receiving WSIB benefits, which would be less than full pay. He also testified that in a further discussion with Mr. Vaccher, Mr. Vaccher did not tell the applicant not to report his injury to WSIB or promise to financially compensate him, but did agree to provide him with a helper.
36I have also noted that the respondent’s filing of the Employer’s Report of Injury/Disease to WSIB on June 5, 2008 did not appear to be in compliance with subsection 21(1) of the WSIA, which states:
An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages.” [Emphasis added]
In the case at hand, the applicant’s accident necessitated health care, but the respondent only filed its Report after the termination of the applicant’s employment and well after the three-day deadline. On the other hand, subsection 152(3) of the WSIA provides that an employer who fails to comply with section 21 is guilty of an offence, but the applicant did not present any evidence that the respondent was found guilty of such an offence.
37I accept the applicant’s evidence that the respondent knew that he attended a hospital on May 27, 2008 to seek medical attention. Mr. Vaccher acknowledged that the applicant informed him at the end of the day that he was going to have his elbow injury checked out. Mr. Battista also testified that Mr. Vaccher told the applicant to get his injury checked out. Furthermore, the respondent’s Employer’s Report of Injury/Disease to WSIB stated that on May 27 the applicant received health care treatment for his injury at the emergency department of a hospital.
38I also accept the applicant’s evidence that he called the office and reported his absence shortly after noon on May 28, 2008. The applicant’s long distance telephone records indicate that he made a two-minute call to the respondent company at 12:31 PM on May 28. Furthermore, the respondent’s Employer’s Report of Injury/Disease to WSIB stated that the respondent learned on May 28 that the applicant had attended the hospital on the previous day.
39I also accept the applicant’s evidence that he returned to work at noon on May 29, 2008 and worked for the rest of the day, and that he continued work on May 30 with the assistance of Mr. Battista. The respondent did not challenge the applicant’s evidence with respect to these facts.
40Finally, I accept the respondent’s evidence that it terminated the applicant’s employment on May 30, 2008. Although the applicant alleged in his pleadings that termination occurred on June 6, he admitted at the hearing that it took place on May 30.
41I summarize the factual findings as follows:
- During the course of his employment, the applicant improperly used the company credit card for personal purchases on several occasions.
- On May 26, 2008, upon the request of Mr. Vaccher, the applicant signed a letter, which acknowledged his improper use of the card, and that if he used the card for personal purchases again, the respondent would terminate his employment.
- On May 27, 2008, the applicant fell at work and fractured his elbow. There was a discussion between the applicant and Mr. Battista in which they agreed that it would be better for the applicant to continue working with a helper at full pay, rather than being off work and receiving WSIB benefits, which would be less than full pay. In a subsequent discussion with Mr. Vaccher, Mr. Vaccher agreed to provide the applicant with a helper.
- Later in the day on May 27, 2008, the applicant attended a hospital to seek medical attention. Mr. Vaccher knew that he had sought medical attention.
- On May 28, 2008, the applicant was unable to attend work because of his injury. He called the office and reported his absence at 12:31 PM.
- On May 29, 2008, the applicant reported to work at noon, and performed work.
- On May 30, 2008, the applicant reported to work, and performed work with a helper. Later in the day, the respondent terminated the applicant’s employment.
- Between May 26 and May 30, 2008, the applicant did not use the company credit card for personal purchases again. He was therefore in compliance with the terms and conditions of the May 26 warning letter.
- On June 5, 2008, the respondent filed its Employer’s Report of Injury/Disease to WSIB.
- On June 6, 2008, the applicant filed his Worker’s Report of Injury/Disease to WSIB.
Violation of the Code
42I find that the applicant’s disability was a factor in the termination of his employment by the respondent, and the respondent therefore violated the applicant’s right to be free from discrimination with respect to employment pursuant to subsection 5(1) of the Code.
43It is well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination. It is not necessary that discrimination be the sole or even the predominant reason for the termination: see, for example, Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at para. 60; Dominion Management v. Velenosi, 1997 CanLII 14482 (ON C.A.) at para. 1; and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.) at para. 11.
44I accept that Mr. Vaccher was angry and frustrated by the applicant’s improper use of the company credit card for personal purchases on several occasions, but I do not accept his evidence that it was the sole reason for the termination of the applicant’s employment. Between May 26, 2008, when the applicant signed the warning letter, and May 30, when the respondent terminated his employment, the applicant did not use the card for a personal purchase again, and was therefore in compliance with the terms and conditions of the letter. The only facts that changed between May 26 and May 30 were the applicant’s injury and his need for accommodation in order to continue working. In short, the applicant’s injury was the proverbial straw that broke the camel’s back and led to the termination of his employment.
45I am not prepared to find, as the applicant suggested, that the respondent’s apparent late reporting of his accident to WSIB was an attempt to evade its obligations under the WSIA. The Human Rights Tribunal of Ontario does not have expertise with respect to workplace safety and insurance matters, and my finding of discrimination in this case does not turn on this issue.
REMEDY
Applicable Law and Issues
46The Tribunal’s remedial powers are set out in subsection 45.2 of the Code, which provides:
(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
47The respondent suggested that the applicant engaged in an abuse of the Tribunal’s process by lying in his pleadings about the date of the termination of his employment and how much termination pay the respondent provided to him. As such, I will also be considering section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, which provides:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
48Accordingly, the issues that I am required to determine are (a) whether the applicant is entitled to monetary compensation or restitution, (b) whether the applicant engaged in an abuse of the Tribunal’s process, and if so, how that should impact on any order for compensation or restitution, and (c) whether the Tribunal should order the respondent to do anything further to promote compliance with the Code.
Monetary Compensation/Restitution and Abuse of Process
49The applicant submitted that he is seeking a financial remedy of $100,000 for loss of dignity, humiliation and embarrassment, and the stress on his family. He stated that he is not seeking any monetary compensation for lost income.
50The respondent, on the other hand, submitted that the applicant should not be awarded any compensation because he is dishonest and has received full loss of income and prescriptions benefits from WSIB.
51The applicant is seeking an award of monetary compensation for injury to dignity, feelings and self-respect. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate: see ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Sup. Ct.) at para. 152.
52The Divisional Court has also recognized that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages: see ADGA Group Consultants Inc., at para. 153.
53I accept the applicant’s evidence that he experienced an injury to dignity, feelings and self-respect because of the respondent’s infringement of his right to be free from discrimination with respect to employment. On the other hand, I am also mindful of the fact that the applicant’s misuse of the company credit card prior to his injury was a factor in the respondent’s decision to terminate his employment. In all the circumstances, I find that an award of $5,000 is appropriate for the loss arising out of the infringement.
54However, I also agree with the respondent that the applicant engaged in an abuse of the Tribunal’s process by making false statements in his pleadings about the date of the termination of his employment and how much termination pay the respondent provided to him. The applicant’s statements in his Application and Reply with respect to these two issues were dramatically different than his oral testimony at the hearing.
55Specifically, in his Application and Reply, the applicant provided details about a series of events that allegedly occurred between May 30 and June 6, 2008, including reporting to work on June 2 and being sent home, having discussions and meetings with Mr. Battista and Mr. Vaccher about financial compensation, and being told by Mr. Vaccher on June 6 that his employment was terminated. The applicant then admitted at the hearing that none of those events occurred. Similarly, in his Reply, he denied that the respondent gave him two cheques and claimed, among other things, that it was not his signature on the cashed cheques and his wife had to co-sign the endorsement of all cheques, but then admitted at the hearing that he had, in fact, signed and cashed both cheques.
56The applicant’s attempt to blame his lawyer for the contradictions lacks credibility, particularly given his admission that his wife prepared both documents and he signed them. Furthermore, in my view, the applicant’s explanation that he did not know at that time whether or not he would be receiving benefits from WSIB is essentially an admission that he lied in his pleadings in order to maximize any potential claim for lost income.
57In Giguere v. Popeye Restaurant, 2008 HRTO 2, the Tribunal refused to award damages to the complainant because she engaged in a scheme to subvert and abuse the Tribunal’s process by offering money to a witness to attend the hearing and give false evidence in order to bolster her case. The Tribunal stated at para. 81:
A complainant who engages in this type of behaviour also demeans the human rights process and the Code itself. Human rights statutes are quasi-constitutional legislation, and the rights protected under the Code are rights of critical importance in our society. A human rights complaint, which seeks to enforce those critically important rights, is a serious matter. It is a serious matter for the complainant who believes that her rights have been infringed. It is a serious matter for a respondent who has been accused of discrimination. And it is a serious matter for society, because the violation of human rights is a public wrong in addition to an individual wrong. A human rights complaint should not be used as a kind of "get rich” scheme, or a process where a party can employ any strategy to “win”.
58The Tribunal also stated at para. 89:
(…) I want to make clear that my decision not to award any personal remedies to Ms. Giguere should not be taken to suggest that in any case where the Tribunal makes negative credibility findings against a complainant on a contested fact, there would be a reduction in the damages. This is (one hopes) a unique case. It is common for witnesses to give conflicting evidence, and the Tribunal is regularly called upon to make findings of credibility. Simply because the Tribunal disbelieves a complainant, on a particular point, does not mean that a complaint will be dismissed or that a complainant will be awarded no personal remedies. It will be the rare case where simply finding against a complainant on an issue of credibility will amount to an abuse of process.
59The applicant’s misconduct in the case at hand is not as serious as in Giguere, where the complainant attempted to bribe a witness, but it is more serious than merely a negative credibility finding. I have found that the applicant engaged in an abuse of the Tribunal’s process by lying in his pleadings in order to maximize any potential claim for lost income. In all the circumstances, I believe that it is appropriate to award the applicant $3,500 and to order the respondent to allocate the remaining $1,500 as a donation to a charitable organization that provides services to persons with disabilities.
Other Remedies
60I am not satisfied that the respondent fully understands its obligations under the Code with respect to employees who have a disability. I have also noted that the Response to the Application indicates that the respondent does not have a policy on discrimination and harassment.
61I therefore find it appropriate to order that the respondent retain a consultant with expertise in human rights to assist in drafting and implementing a policy on discrimination and harassment, which will include, but not be limited to, a component on disability.
ORDER
62Accordingly, the Tribunal orders as follows:
Within 30 days of the date of this Decision, the respondent shall pay the applicant $3,500 as monetary compensation for injury to dignity, feelings and self-respect. In accordance with section 127 the Courts of Justice Act, R.S.O. 1990, c. C.43, prejudgment interest of 4.3% shall be paid on this amount from May 30, 2008, which is the date of the termination of the applicant’s employment, to the date of this Decision. Postjudgment interest of 2.0% shall be paid on this amount from the date of this Decision to the date of payment to the applicant.
Within 30 days of the date of this Decision, the respondent shall make a donation of $1,500 to a charitable organization that provides services to persons with disabilities.
Within 90 days of the date of this Decision, the respondent shall retain a consultant with expertise in human rights to assist in drafting and implementing a policy on discrimination and harassment, which will include, but not be limited to, a component on disability.
Dated at Toronto, this 21st day of July, 2009.
“Signed by”
Ken Bhattacharjee Vice-chair