Chen v. Ingenierie Electro-Optique Exfo, 2009 HRTO 1641

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Han Chen

Applicant

-and-

Ingenierie Electro-Optique Exfo Inc., Dave Prosser, Deanna Del Col and Ameer Khan

Respondents

case Resolution Conference DECISION

Adjudicator: Judith Hinchman

Date: October 9, 2009

Citation: 2009 HRTO 1641

Indexed as: Chen v. Ingenierie Electro-Optique Exfo

AppearanceS BY

Han Chen, Applicant ) Self represented

Ingenierie Electro-Optique Exfo Inc., ) Caroline Labrecque, Dave Prosser, Deanna Del Col and Ameer Khan, ) Counsel

Respondents )

INTRODUCTION

1This is an Application dated August 29, 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 in April 2007 and abandoned upon filing this Application with the Tribunal.

2The applicant alleges the respondents discriminated against him in his employment on the basis of disability. In particular, he alleges that the respondents failed to accommodate his disability and terminated his employment because of his disability.

BACKGROUND

3In July 2004, the applicant began his employment as a Shipper/Receiver with the corporate respondent, Ingenierie Electro-Optical Engineering Inc. (“EXFO”) at its Concord, Ontario plant. He reported to personal respondent, Ameer Khan, a project manager.

4The applicant experienced back pain beginning in May 2005. Specifically, he noticed that it was difficult to bend down and pick up things from ground level. He performed stretching exercises and self-massage from time to time while at work.

5In September 2006, the applicant took a vacation to China. Upon his return to work in October, he told Mr. Khan that he had seen a doctor in China and had received a medical report concerning his back that was written in Chinese. He understood that the report indicated that he suffered from sciatica.

6On March 13, 2007, the applicant’s physician, Dr. Michelle Sit wrote the following note:

Mr. Chen suffers from R sciatica. He should avoid prolonged standing for more than 20 mins. Also lifting limited to 15 lbs.

7On the afternoon of March 14, 2007, the applicant told Mr. Khan about his physician’s advice. At Mr. Khan’s request, he emailed a copy of the note to Mr. Khan the next day, March 15. He also included in that email the following understanding of his situation:

For my job, I can still do it in this slow season, but as it’s getting busier, I believe it will be beyond me. Especially when it comes to multi-pieces shipment, I need someone else to do it for me. The weight limit is one facet impacting my spine. The other thing really increase the pain is frequent bending and standing, no matter what the weight it is.

8At approximately 1:00 p.m. on the afternoon of March 15, Mr. Khan replied to the applicant that he would arrange a meeting between the two of them and Mr. Prosser, to discuss the current job duties and responsibilities. Later that afternoon, the applicant met with Mr. Khan and Mr. Prosser. Mr. Prosser sent the applicant home for rest and told him to report back to work on March 20, 2007.

9Mr. Prosser recorded in the applicant’s personnel file that this was the first time he had heard of the situation and that he understood from Mr. Khan that the applicant indicated he was no longer able to do his job and had asked for lighter duties.

10Mr. Khan testified that the next day, during the morning of the March 16, Mr. Prosser chaired a meeting of plant managers lasting about 30 to 40 minutes that first covered general business after which he canvassed the assembled group as to whether or not anyone had room for an additional employee. He further testified that at that meeting there was no discussion of the applicant staying in the current job with modifications.

11The personal respondent, Deanna Del Col was the Concord plant Manager of Human Resources. On March 16, 2007 at 11:01 a.m., Mr. Prosser sent her the following email:

Attached is Han’s written and signed statement of sickness and a copy of his Doctors note. I met with Han on Thursday and sent him home until Tuesday when we will meet with him to discuss the situation. He said he needs a job but I told [him] the company needs to see what can be done and right now he should go home and rest for a couple of days of sick time.

I met with Bonnie to confirm what I suspected and that she is having a hard time keeping her team busy and cannot use Han. Ameer feels the same way. Thus I am afraid the only thing we can do is let him go. I do not think there is any other admin task around the company but feel free to ask.

12Later that same day by email sent at 3:01 p.m., Ms. Del Col replied in part:

Please note that I have obtained approval as per my recommendation, to proceed with the laying off of Han Chen. Effective date will be Tuesday March 20, 2007.

Due to the medical information presented by Han and his accompanying letter to us advising that he is unable to perform all his duties and responsibilities to the companies required expectations, we have no other choice but to lay him off. As per our discussion, we have no other departments in need of his services.

In terms of process – we will meet with Han as soon as he comes in on Tuesday (please advise time indicated) and present him with his termination letter. ….

Although this is an unfortunate situation for Han, it’s the only thing we can do.

13Upon the applicant’s return on March 20, he met with Mr. Prosser, Ms. Del Col, and Mr. Khan. The respondents gave him a letter stating that he was laid off as of that day.

Issues

14The issues in this matter are:

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

2. Did the respondents satisfy their duty to accommodate the applicant’s disability?

3. Did the respondents terminate the applicant on the basis of his disability?

4. If discrimination occurred, what is the appropriate remedy?

ANALYSIS AND FINDINGS

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

15Subsection 5(1) of the Code provides the right to equal treatment with respect to employment without discrimination because of “disability”. “Disability” is defined in section 10.1 of the Code, in part, to include “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect, or illness.”

16The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), [2000] 1. S.C.R. 665, 2000 SCC 27. For example, if an employer believes that an employee’s condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.

17The applicant’s job description includes reviewing documents, labelling packages, completing paperwork, and packing and loading as well as moving some shipments when requested by a courier.

18The evidence indicates that in a visit to Dr. Sit on June 14, 2005, the applicant complained of a one-month back pain and stiffness history. At that time, Dr. Sit recommended exercise, stretches, physiotherapy, and massage but did not diagnose him with sciatica or prescribe any work-related limitation.

19In August 2005, Dr. Sit prescribed a lumbar support brace for work as well as daily pain medication. Although the respondents submit that they were not aware of his physician’s concerns until March 2007, they did not dispute or controvert the evidence of Dr. Sit’s views regarding the applicant’s condition in August 2005.

20I accept the applicant’s evidence regarding his physician’s opinion and find that as of August 2005, the applicant required a lumbar support brace to complete his duties at work. By March 2007, Dr. Sit’s medical diagnosis confirmed that the applicant had sciatica and she prescribed workplace limitations in addition to wearing a back brace. A rheumatologist, Dr. M.T. Wong, saw the applicant on April 14, 2007. An MRI report dated May 9, 2007 documents degenerative disc changes.

21The evidence clearly establishes that the applicant had a “degree of physical disability” or “infirmity… caused by bodily injury” by March 2007 and possibly as early as June 2005, although it is not possible to pinpoint the exact date when the applicant’s sciatica began. As such, I find that the applicant had a “disability” within the meaning of the Code.

Did the respondents satisfy their duty to accommodate the applicant’s disability?

22When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. The Lippé Group, 2008 HRTO 50 and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68. It is well-established in human rights law that the duty to accommodate encompasses two components: 1. procedural (that being the process whereby the accommodation was considered) and 2. substantive (the accommodation that was achieved or the reasons for lack of accommodation), see: 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.

Lumbar support brace

23The applicant’s physician prescribed a lumbar support brace in August 2005. The parties disagree about the circumstances surrounding whether or not the applicant could receive a lumbar support brace from EXFO. The applicant claims that he asked Mr. Khan for this accommodation and was turned down.

24Mr. Khan states that in either late 2006 or early 2007, after hearing the applicant talk about his back pain, it was he who raised the possibility and told the applicant the company would provide this upon receiving documentation from a doctor. Mr. Khan testified that he asked at least twice for the applicant to provide a note. By way of written submissions Mr. Prosser’s evidence is that although he could not recall the date, he did recall Mr. Khan asking about the company’s policy on provision of the brace. Mr. Prosser responded that with a doctor’s note an employee could enquire with the Human Resources department to see if it would be covered by the company’s health plan, and that if it were not he would nonetheless approve the purchase, if backed up by a doctor’s note.

25Regardless of who raised the question first, there is no disagreement that the applicant did not present a doctor’s note or any such request from his doctor to the respondents. The applicant’s explanation is that he was never asked for a note and that if he had been asked for a note he would have provided it. He stated that after he explored the possibility with Mr. Khan, he was led to believe that it would not be possible and so dropped any further inquiry.

26Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

27Other factors the Tribunal has applied as relevant factors in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties; see Shah v. George Brown College, 2009 HRTO 920. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive to that party’s case. Shah, supra.

28Mr. Khan was a credible witness on this point. He was able to describe more clearly the conversations that he and the applicant had about a back brace and his recollection is consistent with his earlier written submissions. In his Complaint, the applicant did not say that he had asked for the device stating only that after he complained of back pain, Mr. Khan stated he would look into it, which is consistent with Mr. Khan’s recollection. In written submissions later, the applicant had a different recollection. Finally, the applicant did not disagree that he did not press for this possible accommodation beyond any initial discussion nor did he produce the doctor’s note. With respect to inquiries into whether or not the applicant had a disability-related need for a lumbar support brace and whether or not the corporate respondent would supply one, in the circumstances I find that Mr. Khan’s testimony corroborated by Mr. Prosser’s written submissions is more persuasive and more reasonable.

29The duty to accommodate is a shared responsibility. The applicant had a responsibility to provide sufficient medical information regarding his disability-related need for a lumbar support brace and he did not. On a balance of probabilities, I find that it is more likely than not that the respondents did not fail in their duty to make appropriate inquiries towards accommodating the applicant’s disability with a lumbar back brace.

Workplace Hazardous Materials Information System training (“WHMIS” training)

30The applicant and his witness Sheng Xu, a fellow co-worker, claim that WHMIS training was never provided to them. The applicant alleges that this is an example of a lack of accommodation for his disability. The respondents claim that the training was offered as an on-line course. The applicant has not indicated, however, how the provision or lack of this type of training is relevant to accommodating his back disability and the connection is not evident to me. I therefore dismiss this allegation.

Accommodation for work load before March 2007

31After returning from China in the fall of 2006, the applicant claims that he once again told Mr. Khan about his back pain and described a medical diagnosis received in China, telling Mr. Khan that the medical report was written in Chinese. He stated that Mr. Khan “didn’t pay much attention and didn’t require any translation.”

32The applicant testified that he did not ask for modification of his job at this point because he felt the needs were apparent. For example, he stated that Mr. Khan saw him doing self-massage and stretching every so often. The applicant in his submissions also states that when he discussed his painful and stiff back with Mr. Khan, he “wished to indirectly ‘complain’ about the work load,” in the hope that Mr. Khan would hire an additional worker to help him out.

33Mr. Khan agrees that he observed the applicant stretching and doing self massage, but asserts that when he asked about this the applicant told him it was due to an old back injury, that he was okay at that point, that the pain would come and go, that he did not bring to Mr. Khan’s attention any serious issue related to his back pain or injury, and that the applicant maintained an excellent punctuality and attendance. Mr. Khan’s recollection is that he asked for the report but that the applicant told him that because it was written in Chinese he would either have it translated or would see a doctor in Canada to obtain another medical report. He claims that he asked for the report more than once. I found Mr. Khan a credible witness on this point.

34Both parties agree that the applicant informed Mr. Khan that he would either get a transcript of the report or would see a physician in Canada for a new report. The evidence is clear that there were no reports forthcoming until March of 2007.

35On a balance of probabilities the evidence suggests that when the applicant raised the possibility of a back issue with Mr. Khan, Mr. Khan made inquiries to determine what the applicant’s needs were and if accommodation would be necessary. Although the applicant maintains that he was diagnosed with sciatica in China in the fall of 2006, he submitted no medical evidence interpreting his situation in the fall of 2006. It was not until March 2007 that the applicant provided information sufficient to identify disability-related needs. I find that up until March 2007, the respondents did not fail in their duty to inquire about the applicant’s disability-related needs.

Search for accommodation after March 13, 2007 doctor’s note

36As of March 14, it is not disputed that Mr. Khan understood that the applicant had been diagnosed with sciatica and had been prescribed work-place limitations by his doctor. As of March 15,Mr. Prosser, and as of March 16, Ms. Del Col, each knew about the diagnosis and disability-related needs. Clearly at that point the duty to accommodate arose.

37The respondents argue that they attempted to “facilitate his return to work,” by sending him home immediately for two and a half days of full sick pay benefits and in the meantime trying “everything that was possible in order to relocate [him] to another position.” The respondents continue:

Unfortunately, EXFO had no other positions available for Mr. Chen and had no other option but to lay him off. In addition, EXFO was unable to relocate [him] because the production department was experiencing difficulties, difficulties that later resulted in the closing of the production department. In all fourteen (14) people lost their jobs. Mr. Chen was treated with as much fairness as any other employee would have received. Furthermore, it was Mr. Chen that was not cooperative in EXFO’s attempt to accommodate him. Specifically, Mr. Chen made it clear that he would not accept another position in the company other than in the traffic department.

38The applicant disagrees that he would have been uncooperative and that he would not have been flexible in his work arrangement, including continuing his current job with modifications. But in any event, these arguments address the second component of their duty to accommodate, that is the substantive component addressing the reasons for lack of accommodation. Before that step the respondents were required to address the procedural component to the duty to accommodate whereby suitable accommodation is explored and considered.

39When a respondent knows, or reasonably ought to know, that the applicant has disability-related needs, the respondent has a duty to inquire into the situation and explore with the applicant options that may be available to accommodate the applicant’s disability up to the point of undue hardship, before making any decision that may adversely affect the applicant’s status. Robdrup v. J. Werner Property Management, 2009 HRTO 1372. Insufficient time and effort spent on this procedural obligation followed by a “rush to judgment” that results in employment termination has been recognized as a failure to accommodate, and thus is a form of disability discrimination. See Lane v. ADGA Group Consultants Inc., 2007 HRTO 34; (upheld on judicial review 2008 CanLII 39605, ON. S.C. D.C., leave to appeal ref’d.) .

40There was an extremely brief period between when the respondents learned of the disability diagnosis with related work limitations and the decision to terminate the applicant: from the afternoon of March 14 to the afternoon of Friday, March 16. Following a brief meeting between Mr. Khan and the applicant on the afternoon of March 14, from the emails between Mr. Prosser and Ms. Del Col it is evident that:

• After 1:00 on Thursday March 15th, Mr. Prosser and Mr. Khan met with the applicant – this was Mr. Prosser’s first meeting on this subject having just learned of the situation.
• That afternoon, the applicant was sent home.
• On Friday at 11 a.m. Mr. Prosser sent Deanna Del Col an email stating that he had met with Bonnie and Ameer and determined that there were no other jobs for the applicant, and suggested that a lay off was logical but that she could ask around.
• By 3:00 Ms. Del Col had written back saying that she had “obtained” approval per her earlier recommendation for the applicant’s lay off. And specifying that they would do that the following week when the applicant came back from his two and one half day sick leave.

41Mr. Prosser stated that at the Friday morning meeting, he canvassed the possibility of whether there were other jobs at the plant that the applicant could be placed in. He questioned Mr. Khan with respect to quality control and shipping, Luisa Delcol with respect to invoicing and traffic, and Bonnie Kupny with respect to production assembly. At the case resolution conference (the “CRC”), Mr. Khan described the Friday morning meeting as lasting between 30 minutes to 40 minutes covering both general business and also the question regarding the applicant. Mr. Khan also testified that at this meeting there was no discussion of the applicant staying in the current job with modifications. And within the day, the decision to terminate the applicant’s employment was made.

42The respondents did not spend much time with the applicant discussing the situation or his disability-related requirements. With respect to the parties’ meetings concerning the applicant, Mr. Khan and the applicant had a brief meeting after the applicant told Mr. Khan about his doctor’s note. The applicant claims, and there is no evidence to the contrary, that was followed by a brief March 15 meeting with Mr. Prosser. Thereafter, the respondents never discussed with him their efforts to relocate him, whether or not another position would be appropriate for him, or whether modified duties could address his disability-related needs. The respondents did not perform a physical abilities evaluation to determine the applicant’s abilities because “he produced a doctor’s note and told us he needed a change in his job. There was no reason to challenge the doctor’s note.” Although the respondents assert that they understood from the applicant that he would be inflexible in accepting other work, they never contacted him to discuss the situation or consult with him following the initial presentation of his note to them to determine if in fact he would cooperate in a search for accommodation.

43The applicant came in on March 20and met with the respondents. He testified that this meeting lasted about ten minutes. There was no discussion of his limitations or the medical note. He was simply told that he was laid off commensurate with the decision, made the previous Friday, to terminate his employment.

44The respondents were obliged to obtain more information about the applicant’s disability and to investigate possible accommodation before deciding to terminate his employment. The respondents did not satisfy their procedural duty to determine what accommodations might be possible for the applicant because the parties did not spend sufficient time together looking at what accommodations might be available. I find that this was not due to the applicant’s noncooperation, rather it was because the respondents instead made a hasty decision to terminate his employment.

45I find that the respondents infringed the applicant’s right to be free from discrimination in employment when they failed to adequately inquire about the applicant’s disability-related needs and instead quickly made the decision to terminate his employment.

Did the respondents terminate the applicant on the basis of his disability?

46The evidence from the respondents was clear that the medical information provided by the applicant, in addition to his written statement that he was unable to perform his duties, were a significant factor in the decision to terminate him. The respondents also stressed that it was a slow business period, that the products produced at the Concord facility were not performing in the market, and that there were many more layoffs and the eventual closure of the Concord production operations to follow.

47It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

48Although the respondents could properly have considered termination of the applicant’s employment based on factors such as business slowdown unrelated to his disability-related needs, I find that the applicant’s disability was a factor in their decision to initiate termination and consequently the applicant’s right to be free from discrimination was infringed, contrary to the Code.

Remedy

49Section 45.2(1) of the Code provides the Tribunal with the authority to direct a party who has violated the Code 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.

Monetary Compensation

50The applicant is entitled to monetary compensation for the injury to his dignity, feelings, and self-respect arising from the breach of his right to be free from discrimination due to his disability. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The effect on the victim, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code; see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

51The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license 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.).

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., supra at para. 154.

53In this case, the respondents discriminated against the applicant both when they failed to make sufficient inquiries regarding his disability-related needs and when they terminated him in part because of his disability. I accept the applicant’s evidence that as a result he experienced an injury to dignity, feelings, and self-respect.

54After presenting his doctor’s diagnosis on March 14, 2007, other than a brief meeting with Mr. Khan and a second brief meeting with Mr. Prosser, the applicant’s employment was terminated without the opportunity to discuss his situation further. There was no meaningful dialogue and he was hastily let go. At the CRC, the applicant testified that he felt disrespected and that the meeting when he was summarily terminated felt cruel. At the CRC, the applicant also needed a few minutes to compose himself after relating this testimony.

55Mr. Khan recorded that when the applicant was told that he was fired, he broke down in tears for about a minute. Mr. Khan’s observation support the applicant’s submissions that he felt disrespected and hurt. And objectively, the hasty decision to terminate because of the applicant’s disability with no opportunity for input and discussion show a complete lack of disrespect for the applicant and his disability.

56An order for compensation for injury to dignity, feeling, and self respect is a discretionary award. I conclude that, in the circumstances of this case, an award of $5,000 to compensate the applicant for loss of dignity and the injury to his feelings arising from his right to be free from discrimination due to his disability is appropriate.

Wage Loss

57The Tribunal will award damages to restore the applicant to the position he would have been in had the violation of the Code not occurred. Accordingly, the applicant is entitled to receive his lost wages subject to a duty to mitigate those losses.

58The respondents submitted undisputed evidence that the business was slowing down, lay-offs had been planned since October 2006, and that in fact the Concord plant was shut down on July 13, 2007 with all employees who were not transferred to another site dismissed on that date. These layoffs began after the applicant was terminated and were completed on July 13, 2007. In written submissions, the respondents state that if the applicant had not been “laid off on March 20, 2007, he would have been laid off on July 13, 2007.” The applicant accepts that he could not have expected to be employed beyond July 13, 2007 and does not claim lost wages beyond that date.

59I find that if the applicant had not been terminated on March 20, 2007, he would have been able to continue to work until July 13, 2007, a period of 17 weeks. It is not disputed that the applicant was paid two weeks severance pay. Therefore, it is appropriate to award lost wages for a period of 15 weeks less all applicable deductions.

ORDER

60The corporate respondent, EXFO is ordered to pay to the applicant:

a) $5,000 as monetary compensation for the loss arising out of the infringement of the Code;

b) damages for lost wages for a period of 15 weeks less applicable deductions; and

b) pre-judgment interest (calculated from the date of the Complaint to the Commission) and post-judgment interest (calculated from 30 days from the date of this Decision) in accordance with sections 128 and 129 of the Courts of Justice Act, R.S.O. 1990 c. C.43, as amended, on both amounts.