Judd v. 718710 ON Inc., 2009 HRTO 1735

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Derek Judd

Applicant

-and-

718710 ON Inc./ Stangl’s Enviro Lawn Care and Michael Stangl

Respondents

case Resolution Conference DECISION

Adjudicator: David Muir

Date: October 21, 2009

Citation: 2009 HRTO 1735

Indexed as: Judd v. 718710 ON

AppearanceS BY

Derek Judd, Applicant ) Angela L. Browne, ) Representative

718710 ON Inc./ Stangl’s Enviro Lawn Care ) Michael Stangl, and Michael Stangle, Respondents ) on his own behalf and as ) representative of the ) corporate respondent

1This is an Application dated December 29, 2008 and brought under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A Case Resolution Conference (the “hearing”) was held as held on September 22, 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. I heard from the applicant, the individual respondent as well as N.S. and E.R., an employee and former employee respectively of the respondent corporation.

3The applicant alleges that his right to be free of discrimination in employment on the basis of disability has been infringed by the respondents. In particular, the applicant alleges that he was terminated because of a disability or perceived disability. He alleges that although a number of comments were made about his disabilities while employed by the respondents, his work was not criticized in any respect. The applicant also alleges reprisal based on disclosure of settlement discussions held at the Ontario Human Rights Commission prior to the complaint underlying this Application being transferred to the Tribunal.

4The respondents state that the applicant’s disabilities had nothing to do with the decision to terminate his employment. The respondents state the applicant was dismissed because of his attitude to the work and constant complaining.

DECISION

5Based on the evidence presented by the parties, I have found that the applicant’s disability or perceived disability was a factor in the respondents’ decision to terminate the applicant’s employment. I dismiss the reprisal allegation. I come to these conclusions for the following reasons.

REASONS

6The applicant was born with a number of congenital disabilities. He has only six fingers; one leg and one arm is shorter than the other. He is also missing one ACL joint and has one malformed ankle which has been fused. There is no evidence these disabilities affected the applicant’s ability to safely perform the work required of him by the respondents.

7The applicant was employed by the respondents from March 29 to April 24, 2007. The respondent corporation is in the landscaping business.

8First, a note about the credibility of the witnesses called. Although all of the witnesses attempted to relate events as they recalled them, as between the two key witnesses, I prefer the evidence of the applicant over that of the individual respondent. The applicant was forthright, articulate and able to recall events and conversation with significant detail. On the few occasions when he found that he could not remember something precisely, he was frank about that as well. His evidence had the ring of truth and was consistent in all respects with the ordinary course of events.

9On the other hand, the individual respondent was very much less able to recall detail. Indeed, he could not remember very much about the critical events over the applicant’s short period of employment and on important events at the heart of this case, conceded that he had a less than complete recall of what had occurred. He also contradicted himself in respect of some important material points. For example, he stated in his response to the Commission in October 2007 that he was not informed of the applicant’s disabilities upon his being hired and only learned of them later. At the hearing he testified that Mike Gratton, the person who interviewed and hired the applicant, told him before the hiring decision was made that the applicant had a number of disabilities. For these reasons, where there is conflict in the evidence, I prefer the evidence of the applicant.

10The other difficulty with the respondents’ evidence was that it was almost entirely hearsay. The individual respondent had limited contact with the applicant and conceded that he never raised the alleged performance or attitude issues with him although he had the opportunity to do so. Rather, he states the he expected a Mr. Glover, a management employee with whom the applicant worked on a daily basis, to inform the applicant of the employer’s concerns. A statement from Mr. Glover was tendered in evidence but it does not address this allegation directly and is flatly contradicted by the applicant who denies Mr. Glover ever raised any performance or attitude issues with him. To the contrary, the applicant testified he repeatedly sought feedback from Mr. Glover because he liked the job and did not want to “screw it up”. In response, Mr. Glover always said that he enjoyed working with the applicant and was completely happy with his performance.

11There is no direct evidence of the alleged discrimination. This is not unusual. However I am satisfied the applicant’s disability or perceived disability was a factor in the decision to terminate his employment based on the following facts:

a. The individual respondent confirmed in his evidence that the possibility of workplace injury and resultant WSIB claims by the applicant were a concern for him.

b. The individual respondent stated in his evidence that he knew that the applicant had never requested an accommodation for his disability because he was offered a job. The implication being that if he had, the respondents might not have hired him.

c. The applicant testified that on the day before he was fired, the individual respondent took him aside and said: “With the way that you are, can you do the job?” The applicant replied that there was no problem, he could do the work. The individual respondent does not recall this conversation but could not deny that it took place. I find that it did take place.

d. Although he had every opportunity to do so, the individual respondent did not raise any performance or attitude issues with the applicant at that or at any other time, rather he made the enquiry above.

e. The applicant’s un-contradicted evidence that he got nothing but positive feedback from Mr. Glover. He testified that he asked Mr. Glover on several occasions how he was doing. On one occasion after the other new hires had their own trucks and the applicant had not received his, he asked Mr. Glover what the reason was and was told that they were waiting on another truck and he would get his own when it arrived. The applicant asked Mr. Glover to confirm that this was the only reason and that there were no other issues. Mr. Glover responded “no”, that the applicant was a good employee and doing just fine. The applicant subsequently got his own truck, just before his termination.

12The allegation there were any issues in respect of the applicant’s performance is inconsistent with all of the other evidence. As indicated above, just before he was terminated, the applicant was given his own truck and sent out on his own. As well, the day before he was terminated, he was told he would be sent to Cambridge for training and certification in pesticide use.

13The respondents assert the applicant was the source of numerous complaints by his co-workers about his constant complaining and its effect on employee morale. There was no direct evidence provided to substantiate the allegation although several of the identified individuals were potentially available to the respondents as witnesses. Mr. Glover, who was asked to terminate the applicant and who may have been able to cast some light on these issues, was not called as a respondents’ witness. The applicant denied this allegation and stated before me he loved the job and loved working for the respondents.

14N.S. works in the respondents’ office. She would see the applicant and his co-workers on a daily basis when they returned at the end of each day. She testified that she heard no complaining until the final days of the applicant’s short tenure. The applicant and his two closest work colleagues worked on the Stangls’ property for two or three days just before the applicant’s employment was terminated. N.S.’s evidence was that all three complained about this work because it was not what they had expected to be doing. N.S. stated that the atmosphere was different on those two or three days and it was her opinion the applicant was the cause of the negative atmosphere.

15I find that the respondents’ reasons for the decision to terminate the applicant’s employment are without substance and an after the fact justification to obscure the real reason for the decision which was the personal respondent’s concern, when confronted for the first time with the applicant’s disabilities in a concrete fashion while he was working on his property, that the applicant might not be able to safely perform the work required. This is a legitimate concern for any employer and it might not have been unreasonable for the individual respondent to have engaged the applicant in a discussion about what, if any, limitations his physical disabilities presented and what accommodations might be required. Instead, he asked him a rather awkward and inappropriate question and, despite the applicant’s emphatic statement that he was able to do the work, decided to terminate the applicant’s employment based on the applicant’s disability or perceived disability.

16The allegation with respect to reprisal is that an employee of the respondent revealed details of mediation conducted by the Ontario Human Rights Commission in this case. Although reprehensible if it happened, the revealing of confidential information from a mediation in the circumstances here is not a reprisal within the meaning of section 8 of the Code.

Remedies

17Section 45.2 of the Code sets out the Tribunal’s remedial powers:

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.

18The applicant seeks lost wages for the period from the date of his termination by the respondents to when he found a new job in July 2007. He states that the amount of wage loss is $4,000. He also claims $85 being the cost of work clothes that he was required to wear and pay for.

19I am satisfied considering all of the circumstances the applicant adequately mitigated his damages. He got on with his life and, within two months, had secured a new job. He is entitled to be compensated for his entire wage loss, less statutory deductions, and the cost of uniforms. The applicant is also entitled to an order for pre-judgment interest in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, (the “CJA”). Pre-judgment interest will run from June 1, 2007 roughly the mid-point in the period of wage loss. Post-judgment interest on the award is payable, pursuant to section 129 of the CJA.

20The applicant also seeks an award of monetary compensation for the loss arising out of the infringement of his Code rights. He testified that his termination by the respondents affected him in a significant way. For the first time in his life, it had been made clear to him that his disabilities mattered to some people. He testified that he became morose and for a period of time would not answer the telephone or leave his house and wore long sleeves and long pants to cover up his arms and legs so that people would not see them.

21In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the court held that tribunals should consider the following factors when awarding general damages: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment. In addition to the subjective effects of discrimination on an applicant, it has also been held that it is appropriate to consider the surrounding circumstances and incorporate an objective component to the quantification of monetary compensation: see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

22The applicant is clearly a well adjusted individual. He is also a husband and father and takes his obligations to his family seriously. I find that the effects of the discrimination he experienced were real and substantial. I also find that despite the hurt he experienced, he did not allow it to consume him and got on with his life in pretty short order. I also note that the respondents’ decision, while based on discriminatory assumptions, was not driven by any maliciousness. I would be remiss in not noting the remarkable level of goodwill evident between the parties at the hearing.

23In addition to the factors discussed above, I have also considered the fact that a firing can be the most drastic of events for an employee and is very often referred to in the cases as the “capital punishment” of employment. In cases where a Code violation is found to be a factor in a decision to terminate the employment of a person, a significant award of damages will often be justified. Balancing that to some degree in this case is the relative brevity of the applicant’s employment with the respondents. The applicant submitted that $10,000 was an appropriate amount in compensation for the effects of the violation of his rights under the Code. This is a significant sum but I find in all of the circumstances that it is justified.

24No other remedies were sought and I am satisfied the respondents have learned a great deal through this process and that it is not necessary to make orders to ensure future compliance with the Code.

ORDER

25The Tribunal makes the following Orders:

1. The respondents are jointly and severally liable to pay $10,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his, self-esteem dignity, feelings and self-respect.

2. The respondents are jointly and severally liable to pay the applicant, subject to deductions required by law, $4,000 for loss of wages.

3. The respondents are jointly and severally liable to pay the applicant $85 for other out of pocket expenses.

4. The respondents shall pay the applicant pre-judgment interest on the amounts set out in subparagraph 2 and 3, from June 1, 2007.

5. The respondents shall pay the applicant post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Decision.