Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Prudence Simpson-Bowlyn Applicant

-and-

Commissionaires (Great Lakes) Respondent

DECISION

Adjudicator: Ena Chadha Date: August 31, 2009 Citation: 2009 HRTO 1362 Indexed as: Simpson v. Commissionaires (Great Lakes)

APPEARANCES

Prudence Simpson-Bowlyn, Applicant Mary Mackinnon, Counsel

Commissionaires (Great Lakes), Respondent Philip Day, Representative

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on August 19, 2008, alleging discrimination and harassment in employment on the ground of disability.

2The applicant is employed by the respondent, Commissionaires (Great Lakes), as a curb side assistant at Toronto Pearson International Airport (the “Airport”). In August 2007, the applicant sustained serious neck and back injuries while riding a bus. The applicant alleges that the respondent refused to acknowledge her condition as a disability and failed to accommodate her disability by declining to provide her with alternate or modified duties. The applicant further alleges that the respondent subjected her to harassment during various communications and interactions surrounding her condition. The respondent filed a Response on October 20, 2008, denying the allegations of disability discrimination and harassment. The respondent alleges that appropriate inquiries were made in an effort to accommodate the applicant’s condition; however, no suitable work was available that satisfied the applicant’s physical restrictions.

3The hearing into this matter was held on June 18, 2009 and final arguments were heard via teleconference on July 10, 2009. In addition to her own testimony, the applicant called the evidence of five witnesses: Dr. Daniel Toledano, her physician; Brenda Shillington, a regional health and safety representative of the union; Joseph Schamerhorn, a co-worker and union representative; and two friends, Nadesha Warren and Eugenie Eccleston. The respondent called the evidence of two witnesses: William Neeson, the respondent’s site manager at the Airport; and Dave Gordon, the respondent’s director of operations of central region.

ISSUES

4The issues to be determined by the Tribunal in this case are:

1.) Did the applicant have a “disability” within the meaning of the Code?

2.) If so, did the respondent accommodate the applicant’s disability- related needs up to the point of undue hardship?

3.) Was the applicant subjected to harassment because of her disability?

4.) If either issue 2 or 3 are determined in favour of the applicant, what is the appropriate remedy?

5For the reasons that follow, I find that the respondent discriminated against the applicant on the basis of disability by not properly considering the applicant’s need for disability-related accommodation and further failing to provide any suitable modified work as requested by the applicant’s physician.

SUMMARY OF EVIDENCE AND FINDINGS

6There is little dispute about the basic factual chronology of this Application. However, there is disagreement about the tenor and content of certain communications and interactions and the legal implications flowing from the various events. I have summarized the chronology of the events below. Where the parties diverged in perspective, I indicate so and set out my reasons for my factual conclusions.

Background

7The respondent is a provider of security services and has a contract with the Airport to manage the dispatching of various methods of commercial ground transportation for the public at the Airport. As a curb side assistant, the applicant’s duties involved standing on the sidewalk platform outside of the Terminal 3 building of the Airport and assisting the public to secure taxi and other transportation. The applicant was required to oversee a designated transportation zone, signal taxis and limousines into the area, maintain line-ups for the passengers and vehicles, direct crowd control and generally assist the public in the area. Curb side assistants work 10 hour shifts either day or night and are required to cover for each other during breaks.

8The applicant’s duties required her to be able to regularly stand and walk in all types of weather and occasionally bend, lift, pull and push, as well as to communicate and coordinate with other workers and the public. All witnesses agreed that the applicant was a dedicated and good worker, who frequently substituted for absent employees on short notice. The applicant was twice previously injured at work - once struck by a car on the arm and once assaulted by a customer. On both occasions, the respondent accommodated the applicant for approximately two to three months in an alternate position at the “Pre-arranged” post, which involved dispatching pre-booked transportation. The Pre-arranged post consisted of two employees who usually rotated duties between being seated and registering vehicles and standing and assisting passengers into vehicles. Pre-arranged and curb side workers are paid the same hourly wage.

Injury

9On August 9, 2007, the applicant was travelling home from work on a bus. The bus stopped suddenly and the applicant was thrown against the bus door sustaining significant injuries to her neck, back and cervical spine. On August 10, 2007, the applicant was seen by her physician, Dr. Toledano, and she reported the injury to her employer on that same day. The applicant returned to work on her next shift and continued to work until early October 2007. There is no dispute that during these weeks the applicant was experiencing increasing pain and mobility impairment and, as a result, the applicant’s supervisor permitted the applicant to trade shifts with co-workers so that the applicant worked the Pre-arranged post instead of her curb side position.

10In October 7, 2007, after receiving the results of the applicant’s MRI, which revealed multiple large disc extrusions along the spine, Dr. Toledano directed the applicant to take two weeks off from work in order to assess whether this would help alleviate her increasing pain. Specifically, the MRI disclosed that the large multiple disc extrusions were causing compression of the applicant’s spinal cord and sending abnormal cord signals. Dr. Toledano advised the applicant to stay off her feet and referred her to neurology and rheumatology specialists for further evaluation. Dr. Toledano prescribed pain medication for the chronic pain the applicant was experiencing. The applicant testified that she forwarded a copy of the MRI report to the respondent around this time.

11During the applicant’s absence, she was notified by the respondent that her physician was required to complete a Sick Leave and Return to Work Functional Abilities Form (“FAF”). On October 15, 2007, Dr. Toledano filled out the two page FAF, which the applicant forwarded to her workplace on the same day. The FAF indicates that the applicant was able to return to full-time work with modified duties as of October 19, 2007, subject to the following conditions: walking no more than 100 metres, standing no more than 15 minutes, no repetitive bending, limited shoulder action, avoiding exposure to cold and humidity, avoiding driving and undertaking only light duties. In the FAF, Dr. Toledano also noted that the applicant was undergoing further evaluation and that the above-listed limitations and restrictions would apply for 42-60 days. Dr. Toledano indicated that the applicant would likely be able to return to regular duties within two to four months.

Return to Work

12The parties disagree about the events relating to the applicant’s request for modified duties upon her return to work. The applicant alleges that on the morning of October 19, 2007, she telephoned work to confirm her return to work arrangements and spoke to the dispatcher. The dispatcher notified the applicant that she was scheduled back to her regular curb side shift. The applicant advised the dispatcher that, in accordance with her FAF, she required modified duties. The dispatcher placed the applicant on hold and upon returning to the call, the dispatcher advised the applicant that the “boss” instructed that she could return to the Pre-arranged post for that day only and that she would be required to return to her regular duties for the remainder of the weekend shifts. The applicant understood the “boss” to be Mr. Neeson, the site manager.

13The applicant worked the Pre-arranged post on October 19, 2007. The applicant alleges that she was required to return to her regular curb side duties for the October 20 and 21 shifts. The applicant resumed her curb side duties on October 20; however, she experienced significant pain and difficulties. She relied on an umbrella as a cane to assist her standing and walking. The applicant testified that Mr. Schamerhorn, her co-worker, retrieved a chair from the Airport building for her to sit on during her curb side shift and that Mr. Schamerhorn covered the breaks for the applicant.

14In contrast, Mr. Neeson testified that he agreed to authorize the applicant’s return to work at the Pre-arranged post for October 19 so that the applicant could try to see whether or not she could perform the duties. Mr. Neeson denies that he instructed the applicant that she could only work at the Pre-arranged post for her first day back at work. Mr. Neeson alleges that on the second day the applicant advised him that she could not continue in the Pre-arranged post because she was experiencing extreme pain. Mr. Neeson claims that, when the applicant voluntarily declined the Pre-arranged post, he directed her to speak to the respondent’s head office.

15The applicant testified that on October 21, 2009, the union president directed her to report to the airport nurse and to request modified duties because he had observed her sitting in the cold on the curb side platform crying in pain. The applicant attended at the nurse’s office and subsequently filled out an Incident Report form addressed to Mr. Neeson. In the Incident Report, the applicant requests that the employer supply her with a letter for her doctor confirming that the employer was unable to provide accommodation in the form of modified duties.

16The applicant received a letter from Mr. Neeson regarding the issue of accommodation dated October 22, 2007. The letter confirms that, while the respondent was aware from the FAF that the applicant had limited walking or standing abilities, nevertheless the applicant’s employment duties “require normal walking & standing abilities”. The letter concludes “unfortunately [the Commissionaires] have no duties available at this time to accommodate her requirements.” The applicant did not return to work after October 21, 2007.

17On November 6, 2007, Dr. Toledano responded to the employer by way of a letter confirming that, since there was no suitable modified work for the applicant, she would be unable to return to work and would require further medical consultation and re-evaluation in six weeks. The applicant forwarded Dr. Toledano’s November 6 letter to her employer on the same date.

18Also in early November, the applicant’s union began to take steps to advocate on her behalf. Ms. Shillington, the union’s regional health and safety representative, telephoned the respondent’s Human Resources Manager, Phillip Day. Ms. Shillington alleges that during this call Mr. Day observed that the applicant’s injury was not work related and opined that the definition of disability did not cover the applicant. According to Ms. Shillington, it appeared that Mr. Day was not fully aware of the applicant’s situation and did not have a copy of the applicant’s FAF. After the call, Ms. Shillington promptly faxed the applicant’s medical documentation to Mr. Day. Ms. Shillington wrote to Mr. Day on November 8, 2007 reiterating the union’s concern that the employer had an obligation under the Code to accommodate a disabled worker and requested that the employer and union engage in discussions to facilitate the applicant’s return to modified work. The letter states that “[i]n particular, the duty post of Pre-Arranged Transportation looks quite promising.”

19Mr. Day responded in writing on November 9, 2007 stating that it was the company’s position that it did not have medical evidence to indicate that the applicant is disabled. Mr. Day noted that, although the applicant’s doctor identified some physical restrictions, there was no indication that the applicant was disabled as defined under the Code. In the letter, Mr. Day emphasized that the respondent was well aware of its Code obligations and had always accommodated workers who are “clearly disabled, whether fully or temporarily”. Mr. Day further stated that he had recently received Dr. Toledano’s November 6letter indicating that the applicant was unable to return to work and would be re-evaluated in six weeks. Mr. Day concluded the letter by stating that the respondent determined that return to the applicant’s normal position was “not a safe option for her” and “since it is neither a workplace injury or a bona fide disability, we believe we have met our obligations.”

20The applicant received copies of this correspondence from the union and was extremely distressed by the respondent’s suggestion that she was not “clearly disabled” and may not have “a bona fide disability”. The union and applicant filed a grievance against the respondent on November 30, 2007. The outcome of the grievance was never clarified in the hearing, although there was some suggestion that the grievance was ultimately withdrawn.

December 28 Meeting

21In addition to the divergent perspectives regarding whether or not the applicant voluntarily gave up the Pre-arranged post on October 20, the applicant and respondent also offer differing versions of the December 28, 2007 meeting. Although not fully explained in the evidence, it appears this meeting was convened as part of the grievance process. Present at the meeting were: the applicant; Mr. Schamerhorn, serving as an union representative; Mr. Day; Mr. Gordon; Mr. Neeson; and another respondent representative.

22The applicant alleges that at the outset of the meeting she questioned Mr. Day as to why he did not believe she had a genuine disability. The applicant alleges that Mr. Day replied that her doctor never used the term “disability” in his reports. Mr. Day further advised that there were no positions available to meet her needs, except for the Automated Vehicle Delivery post, which was already staffed. The applicant alleges that Mr. Day stated that he was “not prepared to move that guy” for her. The applicant testified that she was deeply offended by Mr. Day’s comment because she was a dedicated employee with greater seniority than the other worker. The applicant indicates that at this point she broke down crying. The applicant alleges that Mr. Day spoke to her in a demeaning fashion and that she was left with the impression that the respondent viewed her condition as her own fault and implied that she was seeking special treatment. The applicant suggests that she and Mr. Schamerhorn left the meeting because it was evident that the respondent was not willing to propose any resolution to her need for accommodation.

23In contrast, the respondent indicates that the purpose of the meeting was to explore accommodation options and to determine what work the applicant could perform. The respondent alleges that all possibilities of accommodation were discussed and, based on the information the applicant shared about her health status, it was apparent that there were no positions at the Airport that satisfied the applicant’s restrictions. The respondent points out that during the meeting the applicant was in obvious pain and discomfort and was using a cane. The respondent asserts that the applicant stated to all present that she was unable to sit, stand or walk for more than a few minutes at a time and broke down crying because of the pain. The respondent indicates that the applicant could not maintain any one sitting or standing position for more than 15 minutes throughout the meeting. The respondent denies that anyone in the meeting spoke to the applicant in a hostile or intimidating tone. The respondent suggests the meeting ended with everyone understanding that the applicant’s physical restrictions could not be accommodated at the Airport.

Current Status

24The applicant has remained off work since October 2007 and has had minimal contact with the respondent. Following the December 28, 2007 meeting, the applicant submitted three doctor’s notes to the respondent attesting to her absence due to medical reasons covering the following periods of time: June-November 2008, November-December 2008 and December-July 2009. The applicant alleges that subsequent to the December 28, 2007 meeting the respondent made little or no effort to communicate with her and, as a result, she filed this human rights Application in August 2008. The applicant alleges that the respondent contacted her on one occasion about a receptionist job and this occurred only after receipt of the Application. The applicant testified that she informed the respondent that she would consider the position if she was medically cleared to perform the duties; however the respondent never followed up regarding the receptionist position.

25The applicant testified that she has been under the continuous care of medical professionals since October 2007 and has undergone a variety of tests, including two additional MRIs which culminated in neck surgery in March 2009. The applicant testified to her belief that, with modified duties, she could have been accommodated at various positions within the Airport until the time of her March 2009 surgery, including at the Pre-Arranged or Automated Vehicle Delivery posts or escorting immigrants. The applicant suggested that she also could have been accommodated at the respondent’s numerous other work sites. Dr. Toledano testified that the applicant’s condition has stabilized since her neck surgery, although she remains under the same physical restrictions which necessitated the original request for modified duties.

26The respondent submits that the applicant did not communicate about returning to work after the December 28, 2007 meeting and that it only received a doctor’s note excusing her absence several months after the meeting. Mr. Gordon testified that following the meeting he, as director of operations for central region, and the human resources department discussed whether any accommodation options existed for the applicant at the respondent’s other work sites. Mr. Gordon testified that no suitable options were available because the nature of the respondent’s work did not conform with the applicant’s medical restrictions. Mr. Gordon explained that the respondent has over one hundred contracts and all of the contracts are for security services and, as such, most involve walking patrols or some combination of standing, walking and sitting. With respect to the applicant’s suggestion that she could work at the Automated Vehicle Delivery post, Mr. Gordon testified that the applicant was unqualified for that position because it involved several days of hands-on training and extensive monitoring for almost two months. Mr. Gordon further testified that the applicant was offered a receptionist position at the respondent’s head office; however, the applicant rejected that offer.

27The applicant explained that since October 21, 2007 she has received 80% of her income from the bus accident insurer; however, she continues to experience a 20% salary loss and is out of pocket $46.95 every six weeks because she has to pay her own medical benefits premium.

ANALYSIS

Did the Applicant have a “disability” within the meaning of the Code?

28In order to succeed, the applicant must establish, on a balance of probabilities, that she was subjected to adverse treatment, and that that treatment was related, in whole or in part, to her disability. “Disability” is defined in section 10.1 of the Code, in part, as follows:

"disability" means,

(a) 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, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (emphasis added)

29The oral and documentary evidence establishes that from August to October 2007 the applicant was experiencing significant pain and limited mobility as a result of a serious injury to her neck, back and cervical spine. In October 2007, medical diagnosis confirmed that the injury had manifested as spinal cord compression, which was causing abnormal cord signals and radiating pain. The applicant was prescribed pain medication and therapy and she was required to undergo evaluations by specialists. As a result of the increasing pain and mobility impairment, the applicant’s physician placed her on medical restrictions involving light duties and limited standing and walking, for approximately two to four months. The applicant’s condition did not improve and ultimately she required neck surgery in March 2009.

30The evidence clearly establishes that the applicant had a “degree of physical disability” or “infirmity… caused by bodily injury” when she sustained neck and back injuries in the bus accident. As such, I find that the applicant had a “disability” within the meaning of the Code.

Did the respondent accommodate the applicant’s disability short of undue hardship?

31The respondent does not dispute that on October 15, 2007, the applicant submitted medical verification of her disability-related needs by way of a functional abilities report as required by the respondent. The FAF document expressly states the purpose of the form is in order for the employee to be “considered for a MODIFIED WORK PROGRAM while under a physician’s care.” The applicant’s FAF confirmed that she had limited physical abilities, mobility restrictions, and that she continued to need medical treatment and further evaluation. Upon her return to work on October 19, 2007, the applicant asked to be assigned back to the Pre-arranged post, where her supervisor had informally accommodated her from the time of the accident. The applicant was provided with accommodation for her first shift back (October 19). However, there is a stark dispute between Mr. Neeson and the applicant as to whether the respondent denied accommodation for the ensuing shifts or whether the applicant voluntarily declined to work at the Pre-arranged post.

32On the preponderance of the evidence, I prefer the applicant’s account of the events following her return to work on October 19. The evidence of all the witnesses established that the applicant was suffering from significant pain at this time. Given the pain she was experiencing, it does not make sense that the applicant would voluntarily decline the Pre-arranged post on October 20 and 21 to only instead resume her regular curb side duties. The curb side duties involved more walking and standing and exposed her to the outdoor elements, all of which was contraindicated by the medical restrictions. If the applicant was unable to perform the Pre-arranged duties, as Mr. Neeson alleges, I find she would likely have discontinued work altogether or would have requested the Automated Vehicle Delivery post, which the evidence established was a purely seated position. I find that the respondent refused to accommodate the applicant in the Pre-arranged post after her return to work and required her to work at her regular curb side duties despite contrary medical restrictions.

33The oral and documentary evidence suggests that the respondent refused to accommodate the applicant because the respondent initially took issue with the fact that the applicant’s doctor did not specifically identify or label the applicant’s disability in the FAF. The respondent’s November 9, 2007 letter states: “...we do not have medical evidence to indicate that Commissionaire Simpson-Bowlyn is disabled.” The letter goes on to assert that the applicant had “neither a workplace injury or bona fide disability” and consequently, the respondent was not obliged to accommodate an employee who was not “clearly disabled”.

34I do not accept that the doctor’s omission of the label “disabled” or lack of identification of the type of disability vitiates the validity of the accommodation notification or undermines the bona fides of the applicant’s request. Nor do I accept hat the duty to accommodate is only triggered when the precise terminology of disability is used. The Supreme Court of Canada has explained that disability should be understood as a multi-dimensional concept, including biomedical, social and functional components: 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. The Court recognized that disability discrimination can be caused by negatives myths and stereotypes, as well as society’s failure to accommodate functional differences. The Court cautioned against viewing disability from a solely biomedical perspective.

35For the purposes of a request for employment accommodation, generally the focus should be on the functional limitations of the employee’s condition (capacities and symptoms) and how those functional aspects interact with the workplace duties and environment. Consequently, an employer need not be informed of the specific cause of the employee’s condition or the exact diagnosis in order to be put on notice that an employee has disability-related needs requiring accommodation: see Wall v. The Lippé Group, 2008 HRTO 50; Mellon v. Canada (Human Resources Development), [2006] C.H.R.D. No. 2. In order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation. This is not to detract from the well-established principle that accommodation is a collaborative process and the applicant should endeavour to provide as much information as possible to facilitate the search for accommodation.

36The test is whether the respondent knew or ought reasonably to have known that the applicant had a disability requiring accommodation: see Wall, supra, and the authorities cited therein. Although the evidence does not confirm whether or not the respondent was apprised of the precise MRI diagnosis, it is certain that the respondent knew that the applicant was suffering from chronic pain and back and neck injury sustained in an accident and that she was undergoing medical care. The respondent was notified through its own FAF documentation that the applicant was experiencing functional limitations which impaired her ability to perform her regular duties and was seeking modified duties in order to return to work. I find that in the circumstances the employer had adequate notification of the request for accommodation and sufficient information regarding the applicant’s disability-related needs. The respondent was under an obligation, pursuant to sections 5 and 17 of the Code to accommodate the applicant up to the point of undue hardship.

37The scope of the duty to accommodate an applicant with a disability is set out in section 17 of the Code, which provides:

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 disability.

(2) No tribunal or court shall 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

38Section 17 of the Code requires a respondent employer to take steps short of undue hardship to accommodate an applicant’s disability as it relates to performing essential employment duties. Therefore, as a result of section 17, a respondent cannot claim the defence of undue hardship unless it can demonstrate through objective evidence that it has undertaken measures up to the point of undue hardship to accommodate an applicant’s disability.

39The duty to accommodate has both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) at paras. 62-68. The Supreme Court has emphasized that the procedural component requires an individualized investigation of accommodation measures and assessment of the employee’s needs:

Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose should be considered in appropriate cases. (Meiorin, para. 64)

40The substantive aspect of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. A recent decision of this Tribunal has explained that “the duty to accommodate involves the obligation to consider the possibility of appropriate alternative employment or redefined responsibilities”, Grzesiak v. DOT Benefits, 2008 HRTO 206 at para 98. It is the employer who bears the onus of demonstrating what considerations, assessments and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin, supra.

41The respondent submits that the December 28, 2007 meeting was convened for the purposes of canvassing accommodation and claims the meeting is evidence of its efforts to accommodate the applicant. However, the evidence does not support the respondent’s contention. I accept Mr. Schamerhorn’s evidence as an accurate and neutral recollection of the meeting. Mr. Schamerhorn presented his evidence in a straightforward and objective manner, and even though it did not bolster the applicant’s allegations of harassment, he testified that the December meeting was “business like”. Mr. Schamerhorn testified that, when the applicant asked at the meeting to be given modified work less physical than the curb side post, the respondent merely indicated that there was nothing available at the Airport. Mr. Schamerhorn recalled that there was minimal discussion around the Automated Vehicle Delivery job and Mr. Day’s position was simply that he would not displace the existing worker. According to Mr. Schamerhorn no other positions or modified work were discussed. Mr. Schamerhorn left the meeting with the general impression that the respondent’s position was that there was nothing it could do for the applicant.

42Furthermore, there was no evidence that after the receipt of the FAF the respondent took any steps to evaluate what aspects of either the curb side or Pre-arranged posts the applicant could or could not perform, nor did the respondent consider redefining responsibilities or any alternate work. The evidence before the Tribunal is that the respondent made no attempt to put in place any accommodation plan for the applicant. The respondent did not appear to demonstrate any willingness to even consider training the applicant for the Automated Vehicle Delivery position. While accommodation is a collaborative process, it is the respondent who bears the responsibility to investigate and propose a solution to address an applicant’s disability-related needs and, in this case, the respondent has entirely failed to do so. As such, I find the respondent did not take adequate steps to investigate accommodation options.

43The respondent argued that it was willing to accommodate the applicant into a receptionist position if she had agreed to that position. However, the respondent adduced no evidence regarding the nature of the receptionist job, what steps it took to inform the applicant about the job, nor any evidence that it sought medical confirmation that she was able to return to work into that position with or without some form of accommodation. Given the lack of evidence, I cannot find that the offer of the receptionist position was a genuine attempt to return the applicant to work and therefore this offer does not relieve the respondent of its accommodation obligations under the Code.

44The November 9, 2007 correspondence indicates that at one point the respondent claimed the applicant’s own safety was a basis for refusing to return the applicant to work; however no evidence or submissions were tendered regarding this issue. There was no evidence with respect to any safety risks and/or excess costs that could not be managed by the respondent. The respondent asserted that providing the applicant with a position at another contract site would constitute undue hardship. However, other than this bald statement, the respondent led no evidence of undue hardship. I do not need to consider whether or not third-party contracts constitute a defence to the duty to accommodate given my findings that the respondent should have investigated options to accommodate the applicant within the Airport.

45In conclusion, I find the respondent failed to satisfy the onus of demonstrating that it fulfilled either the procedural or substantive branch of the duty to accommodate short of undue hardship. I also find that, given the applicant was able to perform the Pre-arranged duties prior to her two week leave of absence, she likely would have been able to continue at the Pre-arranged post upon her return to work and that the respondent failed to give any meaningful consideration of accommodating her in this position. Therefore, the respondent has not made out a defence or established a legal justification for violating the applicant’s rights under the Code.

Was the Applicant subjected to harassment because of disability?

46The applicant argues that she was subjected to harassment because the respondent made humiliating comments about her condition and failed to recognize her disability. The applicant relies on the November 9, 2007 correspondence wherein Mr. Day suggests that the applicant was not “clearly disabled”.

47While Mr. Day’s statements were misguided and insensitive and had a distressing effect on the applicant, I do not find that the comments constitute harassment. The comments were made in the context of a director of human resources replying to correspondence from the union, wherein the union implies that the employer is failing to fulfill its duty to accommodate. In response, Mr. Day expressed an opinion about what he considered to be deficient medical evidence regarding the employee’s condition and defended his organization’s reputation as law abiding. His comments did not connote a vexatious or stigmatizing message about the applicant or the nature of her disability.

48Although the applicant perceived the comments to be demeaning, it does not appear that the comments were known, or ought reasonably to have been known, to be unwelcome, that being the requisite element of harassment as contemplated by the Code, see Gosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont.BOI). As such, I cannot find that Mr. Day knew or ought reasonably to have known that his correspondence to the union would have a discriminatory impact on the applicant. I conclude that the Mr. Day’s correspondence, although somewhat insensitive and harsh, does not itself constitute harassment within the meaning of the Code.

49The applicant initially also argued that the tone of the December 28, 2007 meeting and remarks made towards her at the meeting was a form of harassment. However, in final submissions, the applicant acknowledged that the evidence before the Tribunal failed to satisfy the objective element of the harassment test.

50In conclusion, I do not find that the respondent’s correspondence and comments with respect to the applicant’s condition constituted harassment within the meaning of the Code.

REMEDY

51After considering all the circumstances, I find the Application is substantiated and that the respondent contravened sections 5 and 9 of the Code when it denied the applicant the Pre-arranged post or otherwise failed to accommodate her disability-related needs. Having found the Application to be justified, I must now determine the appropriate remedies to award pursuant to the remedial provisions of the Code.

52The Tribunal’s remedial powers are set out in section 41 of the Code as follows:

45.2 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:

1. 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.

2. 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.

3. 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.

53The applicant seeks an Order for: (i) compensation for loss of income and medical benefits expenses; (ii) damages for injury to dignity, feelings and self-respect; (iii) directions that the respondent engage in a meaningful investigation of accommodation options when the applicant returns to work, (iv) directions that the respondent provided expert training regarding disability and the duty to accommodate; and (v) interest on the award for income loss and medical expenses. The applicant also asks the Tribunal to remain seized to monitor the applicant’s return to work and the respondent’s training.

Income Loss and Medical Expenses

54The applicant submits that, had she been accommodated, she would have been able to continue to work from October 2007 until her neck surgery in March 2009. The applicant acknowledges that the bus carrier’s insurer has paid 80% of her gross salary since she went off work on October 22, 2007. The applicant alleges that she has therefore sustained a 20% loss of income for 17 months, as well as incurred the expense of paying her own health benefits premium over that period of time.

55The respondent disputes that the applicant would have been able to work until March 2009 in light of the severity of her condition, the pain symptoms and the necessity of surgery. The respondent further argues that bus carrier’s insurer appears to be paying the applicant a higher salary than what was her regular weekly wage in 2007.

56The applicant explains that that insurer’s calculations of her salary are based on the amount indicated on her last pay cheque prior to October 22, 2007, which she submits likely reflects some overtime given the fact that the applicant routinely filled in for other workers.

57I am satisfied that the evidence supports an order for compensation for loss of income and reimbursement for health benefits; however, I do not accept the timeline proposed by the applicant. The oral and documentary evidence before me supports the conclusion that the applicant was unable to work after June 2008. Specifically, based on the applicant’s own testimony regarding her health in the summer of 2008, as well as Dr. Toledano’s evidence and the medical certificates he wrote for the employer, it appears that the applicant’s health substantially deteriorated in the summer of 2008.

58The applicant testified that, because her symptoms worsened in July 2008, she was required to undergo two further MRIs in July and August and the need for surgery was anticipated at this time. The first medical certificate supplied by the applicant to the respondent after the December 2007 meeting was dated June 27, 2008. This note indicates that the applicant was unable to work due to medical reasons and her expected return to work with modified duties was November 3, 2008. The applicant subsequently tendered two more consecutive medical notes certifying her absence until July 2009.

59As such, I find that the applicant was no longer able to work after June 27, 2008 because of her deteriorating condition and the fact that she was undergoing medical evaluation in contemplation of surgery. Based on this conclusion, I find that the respondent is liable to compensate the applicant for the 20% loss of income and the cost of the health benefits premium from October 22, 2007 until June 27, 2008. I accept the applicant’s explanation for the difference in salary as asserted by the respondent and find that the 20% difference shall be calculated based on the last period of full earnings in September-October 2007.

Dignity, Feelings and Self-Respect Damages

60Pursuant to section 45.2(1) of the Code, the Tribunal has the discretion to award an applicant damages for injury to her dignity, feelings and self-respect. The applicant seeks an award in the amount of $10,000.

61The evidence was over-whelming with respect to how the applicant was impacted by the loss of her job. All witnesses agreed that the applicant was a hard worker, who took pride in her job and enjoyed her work and her social circle of co-workers. Dr. Toledano testified that the applicant was emphatic that she had to do “something constructive” as soon as possible and from his observation her “loss of a sense of productivity” had a negative effect on her health. He indicated that the applicant felt useless, was getting depressed and this aggravated her chronic pain condition. Both of the applicant’s friends testified that the applicant was very disappointed and hurt by the respondent’s refusal to provide her with modified work. Mr. Schamerhorn testified that the applicant was terribly upset and tearful after the December 2007 meeting. He indicated they both left the meeting with a sense of futility due to the respondent’s intransigence that there was no work for the applicant. The applicant herself testified to feelings of humiliation, anger, frustration and disappointment as a result of the respondent’s refusal to recognize her disability and failure to provide accommodation.

62A human rights damages award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination. The Divisional Court in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (2008) 295 D.L.R. (4th) 425 (Ont. Sup. Ct.), recently confirmed that, in order to compensate for the “experience of victimization”, an award of general damages is predicated upon a number of considerations including the overall impact of the discrimination on the complainant, the particular vulnerability of the complainant and the frequency and duration of the infringement.

63Applying these principles to the facts of this case, I find the applicant’s request for an award of $10,000 is appropriate. The applicant clearly suffered significant distress as a result of the respondent’s actions and the stress over her precarious work status heightened the anxiety that surrounded her health condition. The respondent’s failure to accommodate the applicant was a severe blow to the applicant’s self-esteem and undermined her sense of being as a valued and dedicated employee.

Interest

64I find that the applicant is also entitled to an order for pre-judgement interest with respect to the award for lost wages and medical expenses to be calculated from the date of the Application. As well, I order post-judgement interest on all amounts.

Directions to promote future Code compliance

65It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”, see Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 91.

66The facts of this case clearly indicate that there was uncertainty and confusion within the respondent organization as to what constitutes disability under the Code, how much information an employee and her physician must provide regarding the disability diagnosis and the degree to which an employer is obliged to accommodate a non-workplace injury.

67In these circumstances and in order to promote future compliance with the Code, it appears it would be helpful for the respondent to secure a better understanding of disability issues, human rights law, and its obligations with respect to the duty to accommodate. As such, I order that, within three months of this Decision, the respondent retain the services of a consultant with human rights expertise in order to review and provide recommendations with respect to the respondent’s disability and accommodation policies and procedures and provide training to the respondent’s human resources officers and supervisory management regarding disability and the duty to accommodate.

68The applicant requests that the Tribunal monitor the respondent to ensure compliance with the training Order and to ensure that respondent cooperates with the union and makes meaningful efforts to return the applicant to work. It is unnecessary for this Tribunal to remain seized to monitor the training Order and the applicant’s return to work. While the applicant anticipates that she will be returning to work in October 2009, the actual return date has not yet been finalized. It would not be efficient for the Tribunal to remain seized for an indefinite period of time. Also, I find that such an order would be excessive and is unwarranted. I believe that this decision, along with the Order that the respondent secure the services of a human rights consultant and receive disability and accommodation training, is sufficient guidance to the respondent in this regard.

ORDER

69In conclusion, the Tribunal orders:

(a) The respondent shall pay the applicant for her wage loss being the difference in between her salary and the amounts received from the accident insurer from October 22, 2007 to June 27, 2008. The difference should be calculated based on the applicant’s gross salary for the last full earnings period paid in September-October 2007. The respondent shall deduct any applicable employment-related withholdings on that amount as required by law;

(b) The respondent shall reimburse the applicant for any expenses she incurred for payment of her medical benefits premiums from October 22, 2007 to June 27, 2008;

(c) The respondent shall pay $10,000 in damages for injury to the applicant’s dignity, feelings and self-respect;

(d) Within three months of the date of this Decision, the respondent shall retain at its own expense a qualified human rights consultant to review its accommodation policies and procedures; to make recommendations with respect to the policies and procedures; and to provide training to the respondent’s human resources officers and supervisory management with respect to disability issues, human rights law and the duty to accommodate; and

(e) Pre-judgment interest is payable on the award for wage loss and medical expenses from the date of the Application to the date of this decision in accordance with the Courts of Justice Act. Post-judgment interest is payable on all amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.