Kazmir v. 1056217 Ontario, 2009 HRTO 1974

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie Kazmir

Applicant

• and-

1056217 Ontario Inc. o/a Markham Enterprises, Maintenance Plus and Glenn Markham

Respondents

case Resolution Conference DECISION

Adjudicator: Keith Brennenstuhl

Date: November 20, 2009

Citation: 2009 HRTO 1974

Indexed as: Kazmir v. 1056217 Ontario

AppearanceS

Laurie Kazmir, Applicant ) Maria Kotsopoulos, Counsel

1056217 Ontario Inc. )

o/a Markham Enterprises, Maintenance Plus ) No one appearing

and Glenn Markham, Respondents )

1This is an Application filed November 24, 2008, under section 53(3) of the Human Rights Code, R.S.O, c. H. 19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on July 4, 2005, and abandoned upon the filing of this Application with the Tribunal. The applicant claims that she has suffered discrimination in the area of employment on the basis of disability.

2The Case Resolution Conference (“CRC”) was held on September 17, 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.

3No one appeared for the respondents. The Tribunal’s Notice outlining the date, time and place for the CRC was issued to the respondents at the address provided in their Response to this Application. The Tribunal has communicated with the respondents at this address and the respondents have communicated with the Tribunal from this address throughout the course of this matter. I am satisfied that the respondents had notice of the CRC.

BACKGROUND

4The applicant worked for the respondent organization, a recruitment firm, for a period of approximately 13 years prior to the termination of her employment in late January 2005. The personal respondent, Mr. Markham, was the owner and CEO of the respondent organization. At the time of her termination the applicant was General Manager, reporting directly to Mr. Markham.

5In or about June 2004 the applicant developed an illness which persisted throughout the remainder of 2004 and into 2005. Medical attention was sought for the illness throughout 2004 and into 2005 but it remained undiagnosed.

6The applicant testified that she would suffer from feelings of extreme exhaustion, fatigue and disorientation which manifested itself physically in dizziness and blackouts. In June 2004 she had an episode when she was rendered unconscious and, after being discovered by her husband, was rushed to the hospital. Mr. Markham attended the hospital that day with the applicant and her husband after being notified of the applicant’s illness by Mr. Kazmir. The applicant also referred to one episode she experienced at work. She was found by an employee in the women’s restroom.

7After June 2004 the applicant had numerous medical appointments and sought treatment from her personal physician as well as a neurologist, an internal medicine specialist and she participated in sleep clinics. She absented herself from work on these occasions.

8According to the applicant, in December 2004, Mr. Markham demanded that she take a leave of absence from work to deal with her illness. In early January 2005, the applicant received a new prescription medication which successfully treated her seizures and in mid-January she returned to work on a full-time basis.

9The applicant indicates that on Friday, January 28, 2005, she met with Mr. Markham, who expressed his view that it was not fair for her to continue in her position when her condition was unknown. According to the applicant, when she arrived at work on the following Monday, she discovered that her computer had been disabled. She also found a letter on her desk from Mr. Markham which directed her to continue her leave of absence until such time as a cause for her illness was determined. On reading the letter the applicant left the office and has never returned.

DECISION

10The Application is allowed.

ANALYSIS

11I find that the unchallenged evidence of the applicant, together with the allegations set out in the Application as further expounded upon at the CRC, establish that there was a violation of the Code.

12Mr. Markham’s letter made it quite clear that the applicant was not to return to work for reasons pertaining to her disability. Mr. Markham wrote:

A mysterious and menacing problem has invaded our midst in the form of an illness and for some unknown reason has chosen your body to invade. The largest derelictions of duties was not dealing directly and swiftly with the rather simple effects the illness had when they initially appeared months ago.

Although everyone of us is thrilled that you found the drug, that it improves your daily function ability, it brings everyone back to a feeling of uncertainty, how long are you back for, what role are you playing, when will the negative aspects of the illness reappear or will they ever. This uncertainty is not a fair condition to ask others to work in.

In conclusion he made it clear that the applicant was not to return to work until she was “free of this horrible thing that invaded your body and infected all our lives.”

13With no contrary evidence before me I must conclude that the applicant was effectively terminated from her employment as a result of her disability and that this constituted a breach of section 5(1) of the Code.

14The evidence indicates that the applicant was never paid for the two-week period she worked in January 2005 prior to her termination. She seeks compensation for this lost income. In addition she seeks compensation for lost wages for the period commencing with her termination on January 31, 2005 and ending March 31, 2006.

15In the five years prior to the termination of her employment, the applicant earned average annual compensation of $110,531.91. She asks that the calculation of any compensation for lost wages be based on this amount.

16I am not satisfied that the applicant would have earned $110,531.91 for the year 2005 or the year 2006 had she remained with the respondent organization. Her T4 statement for 2004 indicates that she earned $71,879.40. She testified that there was a sharp decline in business in 2004 associated with the decline in the automotive business and that had an impact on her earnings. She indicated, however, that she had expertise in making placements and providing services to the engineering industry which she was not able to explore but would have explored going forward.

17In my view, given the downturn in the auto industry, it is unlikely that the applicant would have earned as much in 2005 or 2006 as she had in prior years. While the applicant may have been able to enhance her income by providing services to the engineering industry, that is mere speculation and, save for her own testimony, there is no evidence to support the assertion. In my view, the appropriate annual figure to be used in calculating lost income is $71,879.40 – the salary she earned in 2004.

18Accordingly, I find that an award of $2,764.59 as compensation for the two weeks’ wages and $47,919.60 as compensation for lost income for the period January 31, 2005 to the end of September 2005 is, in all the circumstances, appropriate.

19The applicant testified that there was a dearth of employment opportunities following her termination. She attempted to locate jobs through an employment agency and through applications with no immediate success. The applicant also testified that, when she was able to find a job, her compensation was significantly less than her earnings at the respondent organization. The applicant earned $30,000.00 per annum starting October 2005. She lost that position in March 2006 as a result of the closure of the Chatham office.

20The applicant seeks compensation for lost income, less mitigation earnings, from the beginning of October 2005 to the end of March 2006, representing the period of time she was employed. I find that, but for the discriminatory termination, the applicant would have remained employed by the corporate respondent during this time. In these circumstances I find that she is entitled to the difference in her earnings for that period of time and award $20,939.70 for that lost income.

21The applicant is also entitled to pre-judgment interest on the compensation for her lost income in accordance with the Courts of Justice Act R.S.O. 1990, c. C. 43, as amended. (“CJA”). Pre-judgment interest will run from August 1, 2005, approximately the mid-point in the period of wage loss.

22The applicant seeks compensation for infringement of the Code and injury to dignity, feelings and self-respect. In her testimony she expressed the difficulties she experienced following the termination of her employment, specifically referring to the fact that the experience shattered her confidence. She indicated that she held a position of managerial importance, which she enjoyed, and that its absence in her life left her devastated. Mr. Kazmir testified that the experience had an emotional impact on the applicant as well. He stressed that the applicant was not the same person after her termination and noted that he continued to see the lingering impacts of the mistreatment to the date of his testimony. I find it appropriate to award the applicant the sum of $10,000.00 as compensation for infringement of the Code and injury to dignity, feelings and self-respect.

23Post-judgment interest on the entire award is payable pursuant to the CJA.

ORDER

24The following Orders are made:

(a) The respondents are jointly and severally liable to pay to the applicant the sum of $71,623.89 representing lost wages, less applicable statutory deductions;

(b) The respondents are jointly and severally liable to pay to the applicant the sum of $10,000.00 as compensation for infringement of the Code and injury to her dignity, feelings and self-respect;

(c) The respondents are jointly and severally liable to pay to the applicant pre-judgment interest in accordance with the CJA on the amount set out in subparagraph (a) from August 1, 2005; and

(d) The respondents are jointly and severally liable to pay the applicant post-judgment interest on the amounts set out in subparagraphs (a) and (b) in accordance with the CJA commencing 30 days after the date of this Decision.