Anderson v. Envirotech Office Systems, 2009 HRTO 1199

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Densel Anderson

Applicant

-and-

Envirotech Office Systems, Joanne Lytwyn,

Harry Anderson and Cedric Dryden

Respondents

case Resolution Conference DECISION

Adjudicator: Jennifer Scott

Date: August 5, 2009

Citation: 2009 HRTO 1199

Indexed as: Anderson v. Envirotech Office Systems

AppearanceS BY

Densel Anderson, Applicant ) Glen Morrison,

) Representative

Envirotech Office Systems, Joanne Lytwyn, ) Thomas J. Gorsky,

Harry Anderson and Cedric Dryden, ) Representative

Respondents ) )

Background and Procedure

1This is an Application filed October 28, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on May 15, 2008 and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference (“CRC”) was conducted on July 13 and 14, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are nearly a year old by the time they reach the Tribunal. The following witnesses gave evidence: Densel Anderson, the applicant; and Joanne Lytwyn, Cedric Dryden, Harry Anderson, Franklin Brown, Lynn Still, Felix David and Hubert Hussain for the respondents.

Nature of the Dispute

3The applicant, Densel Anderson, claims discrimination in employment on the basis of disability pursuant to sections 5 and 9 of the Code against Envirotech Office Systems (“Envirotech” or the “Employer”), Joanne Lytwyn, Harry Anderson and Cedric Dryden. The applicant alleges that he experienced health-related problems when working with chemicals in the workplace. He describes his disability as “chemical sensitivities”. He asserts that Envirotech failed to accommodate his disability and terminated his employment when he complained about the chemical fumes in his work environment.

Decision

4The Application is dismissed. What follows are my reasons.

Background

5Envirotech carries on the business of refurbishing office furniture. The applicant commenced employment with Envirotech on November 29, 2007 as a general labourer. In this capacity, the applicant worked in different shops: the chair shop, the panel shop and the wood shop. The issues in this case revolve around the applicant’s work in the chair shop. Chairs were refurbished in the chair shop using various chemicals and glue.

6Envirotech has a Health & Safety Committee with a management and an employee representative. At the time of his employment, the employee representative was Harry Anderson. The applicant testified that in February 2008, he expressed concerns about safety issues within the company to the Health & Safety Committee. He did not raise any issues regarding his own health and safety. The Employer denies that the applicant raised any health and safety concerns in February 2008.

7The applicant worked mostly in the chair shop in April 2008. He testified that on April 1, 2008, he began to experience health difficulties. He spoke to his supervisor, Cedric Dryden, and told him that the fumes from the spray booth and from the fabric cutting in the chair shop, combined with the WD40, was affecting his breathing. The applicant claims that he asked to be relocated from the chair shop. Mr. Dryden denies that the applicant spoke to him in early April 2008 about fumes in the chair shop.

8The attendance records of the Employer indicate that the applicant was absent from work on April 4, 7 and 8, 2008. The applicant denies that he was absent on April 7 and 8, 2008. There is no reason for me to question the accuracy of the Employer’s written attendance records. I therefore find that the applicant was absent on April 4, 7 and 8, 2008. The applicant returned to work on April 9, 2008.

9The applicant became unwell at work on April 14, 2008. He had the following symptoms: difficulty breathing, coughing, headache and chest pain. Mr. Dryden told him to go home. Mr. Dryden testified that the applicant complained that the ventilation in the chair shop was poor. He stated that the applicant did not draw a connection between the poor air quality in the chair shop and the health problems he was experiencing.

10The applicant went to the Etobicoke General Hospital on April 14, 2008 where he was diagnosed with bronchitis. He went to his family doctor, Dr. Pinto, on April 15, 2008. The applicant testified that he told his family doctor about the environmental problems in his workplace: the fumes, the poor ventilation and the symptoms he was experiencing. The applicant testified that his doctor understood that there were problems with the air quality in the workplace that was impacting his health.

11Dr. Pinto provided a note to the applicant, dated April 17, 2008. In the note, the doctor stated the following:

This is to certify that Densil [sic] has been ill with bronchitis and unable to attend work since 14 April 08. He should be able to resume regular duties by 21 April 08.

12The applicant provided Dr. Pinto’s note to Lynn Still, the production supervisor, on April 17, 2008. There was nothing in the note linking the applicant’s bronchitis to his work environment. The note stated the applicant could return to regular duties by April 21, 2008. The applicant testified that he agreed with his doctor’s opinion that he could return to his regular duties on April 21, 2008.

13The applicant produced the clinical notes of Dr. Pinto. These notes were admitted into evidence. The applicant did not call Dr. Pinto to give evidence at the hearing. As a result, the only medical evidence before the Tribunal is Dr. Pinto’s clinical notes and her note dated April 17, 2008.

14Dr. Pinto’s notes confirm the diagnosis of bronchitis. The notes describe the applicant’s chest pain and cough. The notes indicate that the applicant had a slight temperature of 99.4 degrees Fahrenheit. There is one notation in the notes which reads “prolonged exp.”, but there is no specific reference to fumes in the workplace. Because Dr. Pinto did not testify, there was no opportunity to clarify this notation.

15The Employer’s witnesses gave consistent evidence that they believed the applicant was in England from April 4 to 8, 2008 because of the death of his aunt. They testified that the applicant returned from England with a cold that turned into bronchitis.

16The applicant disputes that he went to England. He testified that his aunt in England died on April 4, 2008, but stated he did not travel to England for her funeral.

17It is not relevant to the issues before me whether the applicant travelled to England. The undisputed fact is the applicant was diagnosed with bronchitis on April 14 and 15, 2008 and the Employer knew of this diagnosis. The issue I have to determine is whether the Employer knew or should have known that the bronchitis was linked to the workplace fumes.

18On April 23, 2008, the applicant complained to Mr. Dryden that the glue spray in the chair shop was causing him nasal congestion. On that same day, Mr. Dryden informed Mr. Anderson, the Health & Safety Representative, about this complaint. The president of the company, Joanne Lytwyn, was subsequently informed of the applicant’s complaint.

19The applicant’s employment with Envirotech was terminated on May 1, 2008. The applicant was not given any reason for his termination. At the hearing before the Tribunal, Envirotech submitted that he was terminated for poor work performance.

20The applicant saw Dr. Pinto again on May 9, 2008, eight days after his employment was terminated. Dr. Pinto’s clinical notes indicate that the applicant told her that he was terminated on May 1 from his job assembling and upholstering furniture. The notes go on to state that the applicant complained about the fumes of solvents, sprays and glue and that he believes this might have triggered a termination. The notes state that the applicant consulted a lawyer and complained to the government safety division. There is nothing in the notes linking the chemical fumes in the workplace to the applicant’s health.

Alleged Discrimination

21The applicant alleges that Envirotech discriminated against him by (a) failing to accommodate his request to be relocated from the chair shop; and (b) terminating his employment, in part, because of his complaints about the fumes in the chair shop.

Disability

22The first issue that must be determined is whether the applicant had a disability under the Code. If there is no evidence that the applicant had a disability or perceived disability at the time of his employment with Envirotech, there is no protection under the Code and his Application must be dismissed.

23Disability is defined under section 10 of the Code and includes:

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

24Not all illnesses have been found to constitute a disability under the Code. In Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19, the Board of Inquiry found that the flu, a temporary illness which is experienced by everyone from time to time, is not a disability. The Board found that to include commonplace illnesses under the ground of disability would have the effect of trivializing the Code’s protections.

25Even where the courts have applied a broad and contextual definition to the notion of disability, everyday illnesses have been excluded. On this point, the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27 (Can LII) stated:

As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap”….

26The applicant asserts that his disability is an environmental sensitivity when exposed to chemicals in the workplace. The applicant claims that his bronchitis and nasal congestion were the result of exposure to fumes in the chair shop in April 2008.

27The respondents assert that the applicant had bronchitis, a transitory condition that was not caused by his work environment. The respondents submit the applicant does not have a disability as defined under the Code.

28The applicant has not adduced any medical evidence to support his claim that he suffered from chemical sensitivities. The only medical information provided by the applicant is from Dr. Pinto who diagnosed him with bronchitis. Dr. Pinto did not link the applicant’s bronchitis to exposure to chemicals, nor did she restrict his exposure to chemicals. In fact, Dr. Pinto gave the opinion that after a four-day absence from work, the applicant could return to his regular duties.

29The Tribunal finds that the applicant has failed to establish that he suffers from chemical sensitivities. While it may not be necessary in every case for an applicant to provide medical evidence to substantiate a disability, it is necessary in this case where the medical evidence submitted to the Tribunal contradicts the applicant’s assertion of a disability.

30In the absence of medical evidence establishing the applicant experienced chemical sensitivities, the Tribunal finds that the applicant had bronchitis in mid April 2008.

31There is no evidence before me that the applicant’s bronchitis in April 2008 was chronic or became a chronic condition. The kind of bronchitis experienced by the applicant is commonly experienced by many and had no impact on his ability to participate fully in our society. I therefore find that the applicant’s bronchitis was not a disability under the Code.

Perceived Disability

32The next question to determine is whether Envirotech perceived the applicant’s ability to work was limited by his sensitivity to the fumes in the chair shop and whether this constitutes a perceived disability under the Code.

33The applicant believes that the complaints he made about the fumes on April 14 and 23 should have caused the Employer to connect his bronchitis and nasal congestion to exposure to chemicals in the workplace. The difficulty with the applicant’s assertion is that the medical documentation he provided to the employer on April 17, 2008 did not make that connection and in fact, communicated the exact opposite conclusion. Dr. Pinto told the Employer the applicant could return to his regular duties on April 21, 2008, after a short absence from the workplace.

34The applicant testified that he told Dr. Pinto about the fumes in his work environment. He testified that he told her about the chemicals involved and that there was poor ventilation. The applicant confirmed in his evidence that Dr. Pinto understood his concerns relating to the exposure to fumes and the impact he believed it was having on his health.

35It appears that Dr. Pinto did not believe the fumes caused the applicant’s bronchitis. Had she made that connection, I am satisfied she would have included it in her note and would have restricted the applicant’s exposure to the workplace fumes to prevent further illness.

36Dr. Pinto did make a notation about workplace fumes at the next medical appointment on May 9, 2008. However, she did not make a connection between the fumes and the applicant’s health. Dr. Pinto stated in her notes that the applicant’s employment may have been terminated for complaining about the fumes. Again, if Dr. Pinto had a different medical opinion than that expressed in her notes, she should have been called by the applicant.

37I find that the applicant has failed to establish that the Employer perceived that he suffered from chemical sensitivities which had a significant impact on his health. The evidence before the Tribunal demonstrates that the Employer believed the applicant had bronchitis. As stated above, bronchitis, in the circumstances of this case, is not a disability under the Code.

Conclusion

38The applicant has failed to establish that he has a disability, real or perceived, under the Code. As a result of this finding, the applicant has no remedy under the Code for the termination of his employment.

Order

39This Application is dismissed.