Tom LaFortune v. Washington Mills Electro Minerals Corporation, 2009 HRTO 1352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom LaFortune

Applicant

-and-

Washington Mills Electro Minerals Corporation

Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Jennifer Scott

Date: August 28, 2009

Citation: 2009 HRTO 1352

Indexed as: LaFortune v. Washington Mills Electro Minerals

APPEARANCES BY

Tom LaFortune, Applicant ) On His Own Behalf

Washington Mills Electro Minerals Corporation, ) Respondent ) Jennifer M. Fantini, ) Counsel )

1In my Case Resolution Conference (CRC) Decision, 2009 HRTO 504, I found that the respondent Washington Mills Electro Minerals Corporation (“Washington Mills”) had violated the Ontario Human Rights Code (the “Code”) when it decided not to rehire the applicant in March 2005, in part, because of his disability.

2Because the CRC in this matter was bifurcated to deal first with the issue of liability, a second hearing was held on July 28, 2009 to hear evidence and submissions on the question of remedy. This Decision addresses the question of remedy.

Wage Loss

3The applicant is entitled to damages for lost wages arising out of the infringement of the Code. I have found that Washington Mills discriminated against the applicant when it decided not to rehire him in March 2005. The applicant’s claim for lost wages, therefore, commences in March 2005. These losses are subject to his obligation to mitigate.

4In this case, the applicant has completely mitigated his wage loss. He was laid off from his employment with Washington Mills on November 7, 2004. On November 14, 2004, the applicant obtained new employment with Stel Pipe, at the same or higher rate of pay as that received from Washington Mills. The applicant remains employed with Stel Pipe today, although he has been on indefinite lay-off since January 2009.

5The right to lost wages is not indefinite. It is for a reasonably foreseeable amount of time that allows the applicant to be put back into the position he would have been in had the discrimination not occurred. In this case, the applicant obtained new employment one week after his lay-off and four months before the date of the discriminatory decision not to rehire. He remained in his new employment for the next four years.

6It is not reasonable to hold Washington Mills responsible for the applicant’s lost wages from January 2009 onwards. These losses were incurred almost four years after the date of the decision not to rehire the applicant are too remote or indirect to be recoverable from Washington Mills.

Compensation for the Loss Arising from Infringement of the Code

7The applicant testified that he worked hard at Washington Mills and developed his disability (carpal tunnel syndrome) while working there. He stated that his trust in people has been shaken and that his physical ability is always in question. He can no longer ride his motorcycle as long as he used to and he is concerned about his future employment if his physical strength continues to erode. He believes Washington Mills took away his financial stability and this continues to upset him today.

8The following factors are generally considered in determining the quantum of damages (Sanford v. Koop, 2005 HRTO 53 at para. 35):

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self respect
• A complainant’s loss of dignity
• A complainant’s loss of self esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

9It was apparent from the applicant’s evidence that the issue that was most concerning to him was the fact that he had developed carpal tunnel syndrome while working for Washington Mills. He is worried about the impact of this on his physical strength and how it will affect his future employment opportunities.

10While there is no question that the applicant’s physical condition is upsetting to him, the fact that he developed carpal tunnel syndrome does not constitute discrimination under the Code. The discrimination that Washington Mills is responsible for is the failure to rehire the applicant.

11I find that the applicant is entitled to an award of damages for the frustration and insult he suffered in being denied the opportunity to return to work in March 2005 because of his disability. In all of the circumstances, I find that an award of $5,000.00 is appropriate.

ORDER

12Washington Mills is ordered to pay the applicant the following amounts within 30 days of this decision:

(a) the sum of $5,000.00 as monetary compensation for breach of the Code;

(b) post-judgment interest at the applicable rate under the Courts of Justice Act.