HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean McLean

Applicant

-and-

DY 4 Systems Inc. c.o.b. Curtiss Wright Controls

Respondent

DECISION

Adjudicator: Judith Keene

Date: May 18, 2010

Citation: 2010 HRTO 1107

Indexed as: McLean v. DY 4 Systems ______________________________________________________________________

Appearances by

Jean McLean, Applicant ) John Paul Zubec, Counsel

DY 4 Systems Inc., Respondent ) Andrew McCreary, Counsel

1In this Application, filed on March 4, 2009, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges discrimination with respect to employment on the basis of disability. Pursuant to requests made prior to the hearing, and with the agreement of the respondent, the Application was amended to add the grounds of marital status and receipt of public assistance, to add an allegation of breach of section 12 of the Code, which prohibits discrimination “because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination”, and to amend the request for remedy.

2The applicant had been employed at the respondent’s factory for approximately seven years when her employment was terminated on December 3, 2008. Although the termination of the applicant's employment was not a dismissal “for cause”, the respondent's position is that the applicant was dismissed because she came in to work thinking that she had tuberculosis, with a reckless disregard for the health and safety of others, and because she made a remark that appeared to indicate a prejudiced attitude toward a co-worker (VN) who is Vietnamese in origin. The applicant alleges that she was dismissed for reasons that included a connection with disability.

3Evidence at the hearing was given by the applicant, by her physician, Dr. Jane Batten, and by Sheila Smith, Greg McGrath, Mark Tremblay, Gerry Bellehumeur, Jordan Freed and Jennifer Cox for the respondent. Pursuant to agreement by counsel for both parties, the witness statement of an employee identified only as “John Doe” was also submitted in evidence.

4The parties agree about many of the facts. Where there are disputes about the facts, I identify them below and provide reasons for my findings on the facts. The main dispute in this case is whether actions or omissions by the respondent contravene the Code.

5I have concluded that the applicant has established a breach of the Code. My summary of the facts and analysis of the law are set out below.

FACTUAL BACKGROUND

6The applicant, aged 62 at the time of the events at issue, is a single woman with a high school education. Her work experience has largely been in the high-tech manufacturing industry. During the relevant time, she worked on the production floor of the respondent's factory and had done so since 2001 (the first three years through an agency). The parties agreed that she had done well at her job and that performance was not an issue in the termination of her employment. The applicant testified that she planned to continue working until at least age 65.

The applicant’s beliefs about her health status

7The applicant has been diabetic for 10 years, and has a number of health problems, including kidney failure, high blood pressure and high blood cholesterol. In 2008, she also had vision problems (diabetic retinopathy) which required laser surgery to both eyes. She testified that she had missed “quite a bit” of work in 2008. By December of 2008, she had exhausted her sick leave allowance and used up all her vacation days dealing with her medical problems, and, in fact, arranged to work extra hours to make up for hours missed beyond her sick time and vacation allotments.

8Dr. Jane Batten, who has been the applicant's physician for 10 years, described the applicant’s health in 2008 as poor. The applicant's chronic conditions were not well-controlled and over the course of the year became more acute. The applicant was also having problems with several medications that she had been prescribed. On May 30, 2008, Dr. Batten referred the applicant to a nephrology clinic to address her worsening kidney failure. The applicant had reported vomiting before and after eating as frequently as once a week over the summer. By December of 2008, Dr. Batten suspected that the applicant had developed gastroparesis.

9At some point in 2008, Dr. Batten referred the applicant for a CT scan, because of a concern that the applicant’s weight fluctuations and gastrointestinal symptoms might have been due to cancer. The CT scan of September 29, 2008, showed no significant abnormality other than a small calcified granuloma in the applicant's lung. Dr. Batten confirmed the information included in her letter of April 3, 2009, submitted in evidence, which noted that a granuloma is formed by the body walling off an infectious agent which can become active at a later time when the person's immune system is weakened. Dr. Batten noted that tuberculosis (TB) is a common infectious agent that can cause granulomas and that “the risk of TB infection developing into TB disease is great for anyone with a weakened immune system…conditions/situations that weaken the immune system include…diabetes mellitus”.

10Dr. Batten testified that she had no recollection of discussing the granuloma with the applicant at an appointment on November 12, 2008 and her notes do not indicate that she did so. She testified that the applicant’s symptoms did not indicate that she might be suffering from active TB. However, she also noted that she may have referred to the granuloma, and to an association of granulomas with TB, at the November 12 appointment, in discussing the results of the CT scan. She also indicated that she would undertake further investigation concerning the granuloma. Dr. Batten gave the applicant her annual flu shot at the end of the November 12 appointment.

11The applicant testified as to why, at the end of November 2008, she believed she had TB. She said that she had been “nauseated and sick all the time”. She had been sent for “a scan”, and her doctor had told her she had “granular TB” at an appointment on November 12. On November 24, the applicant became very ill and went to the emergency department of the Ottawa Hospital. She was hospitalised briefly and missed four days of work.

12The applicant testified that she had spoken to a pharmacist, who gave her a document about TB. She did not remember the date that she had spoken to the pharmacist, but the document, which was produced in evidence by the respondent, was dated 27 November 2008.

13The document, which was apparently produced by the Lung Association, provides a brief description of both active and inactive TB, and states that the TB germ “enters your body as you breathe” and “can spread to other parts of your body including your central nervous system your bones in your joints… When a person with active TB breathes out, for example by coughing, sneezing or talking, the TB germs go from their lungs into the air. Other people become infected by breathing in the air that is carrying the TB germ”. The document states that “TB is considered one of the deadliest infectious diseases, especially in developing countries”. Under the heading “Who is at risk of getting TB?”, the document states that “certain people are more at risk of catching TB”, and lists, among others, “people who have lived or worked in countries where TB is common”.

14Dr. Batten obtained a report concerning the applicant's hospitalisation and confirmed that on November 24, the applicant went to the emergency room where she was diagnosed with hyperkalaemia (a high potassium level, which Dr. Batten noted is a medical emergency that can lead to cardiac arrest) and treated for that and for dehydration. She was discharged sometime after 7 PM, with instructions to return to the emergency room if there was no improvement.

15On December 1 Dr. Batten received a fax from the administrative assistant to Dr. Lavoie, the applicant’s kidney specialist at the Ottawa Hospital. The e-mail referred to two telephone conversations, in which the applicant indicated she believed she had been diagnosed with TB and sought Dr. Batten’s assistance in correcting or clarifying the situation. Dr. Batten stated that this was the first notification she had that the applicant may have thought she had active TB. She arranged for the applicant to be called in to discuss this at her office on December 1, 2008.

16When asked at the hearing who she thought was going to be treating her TB, the applicant replied “Dr. Lavoie or one of the doctors”. She confirmed that she had called Dr. Lavoie’s office about the TB, and reiterated that “Dr. Batten knew about the TB because of the CT scan”.

17Dr. Batten indicated that at December 1 appointment, the applicant was “upset” with her and believed that she had told her that she had active tuberculosis, and that she would not be receiving treatment until eight weeks after her flu shot. Dr. Batten assured the applicant that she did not have active TB, gave her a requisition for a chest x-ray and advised her to get a test to verify whether she had been exposed to TB (and therefore might have inactive TB). Dr. Batten and the applicant discussed the gastrointestinal symptoms that resulted in the applicant's hospitalisation on November 24. Dr. Batten referred the applicant to a gastroenterologist. Dr. Batten also wrote the applicant a note explaining that her absence from work between November 24 and December 1 was due to her medical problems, and added “this worker does not have active TB”.

18When the applicant described her December 1 appointment with Dr. Batten, she said that she told Dr. Batten that she had TB, that she was very upset and she “wanted some answers…Dr. Batten said she didn't tell me I had TB, but I said yes she did and she said that I would have to go for tests, but I didn't have active TB”. Dr. Batten’s notes and testimony for the December 1 appointment indicate that the vomiting was continuing, and confirm that the applicant was very anxious about TB and upset that she could have no treatment until eight weeks after her flu shot. Dr. Batten's notes also contain an entry, in relation to the applicant's fear of TB: “Feels related to working with immigrants”. In cross-examination, the applicant was directed to this entry, and she indicated that she had not used those specific words. Later, when asked how that issue came up, she stated that “I thought I'd got it from [VN], who was always at my bench and coughing and her husband and kid were ill”. She indicated that Dr. Batten had told her that TB was “common in Asia”.

19Dr. Batten stated that the applicant's December test for tuberculosis was negative, and that this was confirmed with the applicant at an appointment on December 17. She testified that she believed the applicant understood at this point that she did not have TB.

The incident in the workplace

20On Friday, November 28, 2008, shortly after her hospitalization, the applicant reported to work at 6:30 AM, the start of her usual shift. She “looked to see if Greg McGrath was there-- he wasn't-- then heard him and asked to see him”. She stated that ordinarily she would have gone to Dan Burkhardt, who was her current supervisor, “but he didn't come in until later”. On cross-examination, the applicant consistently maintained that she went straight to Mr. McGrath's office upon arrival at work, and approached him as soon as she found him.

21The applicant testified that she and Mr. McGrath went into his office and closed the door, “just him and me”. She said “I'm in big trouble”, handed him the paper from the Lung Association, and told him that she had contacted TB from the workplace “got it from [VN] probably”.

22When asked by her counsel who VN is, the applicant identified her as “my co-worker and my best friend”. When asked why she believed that she got TB from VN, the applicant replied “she was sick and she said her husband had taken her kid to Asia and the kid was very sick. Her kid had to go to the doctor when they got back to Ottawa.” When asked if she might have mentioned that “a lot of Asians” have TB, the applicant agreed that she did. The applicant consistently testified that she also told Mr. McGrath that she wanted to make a Workers’ Compensation claim.

23In examination-in-chief, the applicant’s counsel reminded her that the respondents had alleged in their Response that the words she had used were “I have TB and I'm told that a lot of Asians have it. I'm sure I got it from [VN]. She’s been coughing for two weeks and her kid is sick.”. He asked if that was what she said, and she readily agreed that it was.

24In cross-examination, the applicant repeated that she had been told that a lot of Asians have TB, reiterating that Dr. Batten had told her that it was “commonly known in Asian people”, and that VN had been coughing a great deal in her presence, and that they had joked about the possibility that the applicant would get sick too.

25In cross-examination, the applicant readily agreed that she had been given training in the respondent’s anti-harassment policy, and that she found it reasonable. She also agreed with the suggestion that, as a quality inspector, interpersonal relations with other employees were important, and that, given that there were a number of employees of Asian origin, being able to work with Asian employees was also important.

26Mr. McGrath told the applicant that it would be “best to go home and wait until you get a doctor's note that you can come back”. He did not respond to the request to make a Workers’ Compensation claim.

27In his testimony, Mr. McGrath, who had been the applicant's supervisor until September 2008, confirmed that he knew the applicant had health problems, and that she had recently had “a bad stretch of stuff going on”, including absences for medical problems, a fall in which the applicant had hurt her shoulder, and a recent “two-month stretch of bad luck” that included the roof of her house caving in, and problems with her children. He acknowledged that the applicant's health-related absences “could cause disruption” in the work, but he assessed the applicant as a “good worker”, a “solid performer”.

28Mr. McGrath confirmed that the applicant had asked to speak to him early on the morning of November 28. He knew that she had been away from work because of illness for several days. Mr. McGrath stated that the applicant seemed upset. He confirmed that they went to his office and closed the door. The applicant was “shaking and teary”. She said “I'm in big trouble--I finally found out what's wrong. This place gave it to me. [VN] has been coughing and her son was sick and has been two weeks.” He stated that the applicant had a pamphlet in her hand and she said, “a lot of Asians are known to have this”. She also said that she thought she might have got TB from VN. He identified the “pamphlet” as the one produced by the Lung Association. The applicant gave him the pamphlet and a doctor's note from the Emergency Department of the Ottawa Hospital.

29Mr. McGrath reviewed the pamphlet with the applicant and noted that it discussed the infectious nature of TB. He found it strange that she was at work, but the applicant's “medical certificate“ indicated that it was all right to be at work. He took the pamphlet and the note and went to see his boss, Mark Tremblay. He testified that Mr. Tremblay reviewed the pamphlet, and “Mark said he'd handle it from here, that he would alert HR and said to tell [the applicant] to leave the building and get a doctor's note”.

30Although the applicant recalled, in testimony, that on the 27^th she thought she might have active TB, (she also frequently referred to “granular TB”) she could not recall whether she had told Mr. McGrath that she had active TB. She said that she may have said that she had active TB to Ms Smith when she spoke to her later.

31Mr. McGrath testified that the workplace was very busy at the time the applicant spoke to him about TB. 2008 had been a banner year for the respondent with the business growing and the respondent taking on new employees. He also indicated that the end of a month is a very busy time for the respondent. Overtime is common, because of the nature of the business; it is a “lean operation”. In her testimony the respondent's Director of Human Resources confirmed that the respondent had added a third shift in 2007/2008, and was operating “24/7”.

32The applicant was asked in cross-examination why she had not notified anyone at the company concerning her TB until Friday, November 28. She replied that she had “been throwing up”, referring to her hospital admission and illness between November 24 and 28. The applicant was also asked whether she believed that TB was infectious, and she agreed that it could be spread by coughing or sneezing. She also testified that she was not coughing (although she may have had “a bit of a cough”) or sneezing, had no fever, and that her only recent medical problem had been a stomach problem. When asked why she did not call in sick, she replied that the note from her doctor said that she could only be off until Thursday.

33In response to the respondent's evidence that she had refused to allow the Human Resources Department to “verify the issue with her doctor”, the applicant said that Mr. McGrath did raise this and that she did refuse. She did so because, on a previous occasion when she was absent from work someone from Human Resources had phoned her doctor “to see if I really had an appointment that day and wanted to know why”. (This incident was reflected in Dr. Batten’s note of April 14, 2008). However, she affirmed that she was willing to provide any information the respondent needed concerning the possible TB, and this was confirmed by the evidence of Mr. McGrath. In fact, after the applicant went home, she called Ms Smith at Human Resources and told her that she had made an appointment with Dr. Batten for Monday, as Dr. Batten was not available that day. The applicant stated that she also told Ms. Smith that she had active TB.

34The applicant stated that no one from her workplace raised any question on November 28 about her judgement in regard to coming into work, nor did they raise the respondent’s harassment policy. In his testimony, Mr. McGrath confirmed that he did not raise these issues. He said that he was worried about the applicant personally and thought that she should be in hospital, not at work.

35Sheila Smith, the respondent's Director of Human Resources, testified from her own recollection, with the assistance of a number of e-mails from her to the Directors of the respondent in her own note of her discussions with Public Health Nurse on November 28, 2008.

36Ms Smith stated that she had had no dealings with the applicant prior to the events giving rise to this Application. On November 28, she came in and was approached to join the Directors right away. She had a meeting with Gerry Bellehumeur, Mark Tremblay and Jordan Freed. She testified that they told her that Jean McLean had come in upset, that she was in “very big trouble”, had TB, felt that she had caught the disease from working at the company, and thought that she had specifically caught it from VN, “because Asians have this disease”. She was also told that Ms McLean wanted to make a Workers’ Compensation claim. The Directors had the TB pamphlet and the medical certificate.

37Ms Smith testified that she said something to the effect of “let's not panic”. She stated that the Directors were a little panicked because the respondent was in the middle of a busy time with lots of overtime, and they were “afraid that they would have to quarantine the factory floor, test all employees, do a cleanup operation, and so on”. Ms Smith opined that it was right to send Ms McLean home if she had active TB and told the Directors that she'd contact Public Health to refresh her memory about what needed to be done, and “start working on it”.

38She said that her immediate reaction was “how could the medical system have let us down?” by allowing someone to come into work with active TB. Ms Smith had had previous experience of a worker having inactive TB. In that instance, the first indication she had received that an employee had inactive TB was a visit from Public Health. The employee in that case did not disclose that he had inactive TB and had never done so. The evidence of the respondent, which was accepted by the applicant, was that the employee with inactive TB had suffered no adverse employment consequences, is still employed by the respondent and has been promoted.

39Ms Smith spoke to the applicant on the telephone and was assured that she would be cooperating in getting further information from her doctor. She also spoke with a public health nurse. Ms Smith reported to the Directors that the Public Health Nurse “did not feel that we needed to send employees home today” as there was no evidence that she has TB and is contagious. She stated that with the information she had, “things were not adding up to suggest that [the applicant] had active TB”.

40Ms Smith did not speak to VN while investigating the situation or at all. “I guess I could not see any benefit to upsetting [VN] about this accusation”. Ms Smith also testified that the respondent had never had any complaints under the anti-harassment policy, that the respondent had a “culture of respect-- no issues in that area”. She also stated that the respondent accommodated disability in employees, and that human resources would be called in when absenteeism was excessive-- “we need to find out what is going on with the individual's life”. Ms Smith was not involved with the decision to terminate the applicant's employment-- she delegated further dealings in respect of the applicant to Jennifer Cox.

41Mark Tremblay, the respondent's director of manufacturing, confirmed Mr. McGrath’s account of how he was notified. He also confirmed the Directors’ concern about a possible disruption in the work schedule during a very busy period and the consequent possible loss of over $1 million a day. He expressed “shock” at “the idea that someone's ethnic background or race should have a bearing on disease”. He testified that he had no idea that the applicant had diabetes, but he was aware that she had been on short-term disability, and that she had been “sick for the past year”, although “not in any detail“. Mr. Tremblay stated that he had no part in the decision to terminate the applicant's employment.

The respondent’s actions after November 28

42The totality of the evidence of the respondents’ Directors indicates that by December 1, 2008, they had been reassured that the applicant did not have active TB. This was confirmed on the morning of December 2 when the applicant brought in the note from Dr. Batten. Gerry Bellehumeur, the respondent's Director of Operations, testified that on December 2, once the health and safety concerns were out of the way, he took the decision to dismiss the applicant. He testified that he did so not because of concern about employing someone with inactive TB, but because of the applicant's “attitude and her remarks about [VN]”.

43Mr. Bellehumeur testified that he was not aware that the applicant was diabetic, and did not perceive her to be disabled. However, he also admitted that he had read an e-mail from Ms Smith, dated Friday, November 28, that included information from the applicant that “she has been very sick since last year”. Mr. Bellehumeur had no conversation or communication with the applicant directly.

44Jordan Freed, the respondent's Director of Quality and Product Transition, had been in charge of the group that included the applicant for approximately three months when the decision was made to terminate the applicant’s employment. He testified that Mr. Bellehumeur told him and Ms Cox on Tuesday, December 2, that he wished to dismiss the applicant. He stated that he agreed with this decision, because of “an apparently false report of TB and discriminatory remarks”. He also stated that he had no idea that the applicant was diabetic, but also admitted having read the e-mail from Ms Smith with the information about the applicant's year-long illness. He did not speak to the applicant before employment was terminated. He also did not speak to VN about any bias or discriminatory attitude that might have been displayed by the applicant.

45On December 3, 2008, on arrival at work, the applicant was approached by Jennifer Cox from Human Resources, who asked her to come to Dan Burkhardt's office. “Dan Burkhardt came in and sat down and talked first. I'm not aware of a word he said, then Jennifer Cox gave me the package” (referring to a letter of termination). “I didn't think I was being fired until I looked at the letter”.

46The applicant confirmed that neither Mr. Burkhardt nor Ms Clark raised questions about her judgement in coming into work, the anti-harassment policy, her health or a Workers’ Compensation claim. She stated that no reason was given orally for her dismissal, nor was any reason given in the letter of termination. All of this information is confirmed by the evidence of the respondent.

ANALYSIS

Did the applicant have a disability, as defined by the Code?

47Adverse treatment in employment for reasons that relate to disability is prohibited by section 5 of the Code. In addition, when an employer has reason to believe that an employee is having difficulty with the requirements of his or her employment by reason of a disability, section 11 of the Code imposes both a procedural and a substantive duty to accommodate on the employer in respect of those requirements.

48The Code defines disability in section 10:

In Part I and in this Part,…“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,…

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

(emphasis added)

49Plainly, the definition of disability is very broad. As with all statutory provisions that advance the purpose of human rights legislation, “disability” has also been defined broadly in the jurisprudence. As noted in Chen v. Ingenierie Electro-Optique Exfo, 2009 HRTO 1641:

The 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 et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665, 2000 SCC 27 [reported 37 C.H.R.R. D/271]. 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 [C.H.R.R. Doc. 05-738]. emphasis added)

50The respondent disputes that inactive TB constitutes a disability for the purposes of the Code. It cited Tribunal decisions such as Anderson v. Envirotech Office Systems, 2009 HRTO 1199, in which “everyday illnesses” have been excluded from the definition.

51The evidence before me, which was not disputed by the respondents, indicated that the TB bacillus, once contracted, remains with the individual, in a latent state or otherwise. Although a person may be asymptomatic when the bacillus is inactive, TB can become active at any time. It is not a minor or transitory illness, and it therefore meets the definition of disability for the purposes of the Code. Obviously in this case, the applicant was mistaken in thinking that she had contracted any form of tuberculosis. However, a perceived disability can also meet the definition of disability for the purposes of the Code. See Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), supra.

Was the respondent aware of the applicant’s disability?

52The respondent’s submissions focussed on whether inactive TB is a disability. In fact, there was more than one health problem at issue in this Application. The medical evidence produced by the applicant, which was not contested by the respondents, established that she has diabetes and other serious health problems that clearly correspond to the Code definition of disability. In addition, there is no dispute that the applicant thought, albeit incorrectly, that she had contracted some form of tuberculosis. However, the respondent maintains that the applicant was never perceived to have a disability.

53The respondent cited Human Rights Commission v. Health Care Corp. of St. John's (2003), 46 C.H.R.R. D/63, 2003 NLCA 13, (“Evans”) to support its argument against inactive TB being considered a disability, and its finding that an employer could not breach the Newfoundland and Labrador Human Rights Code because it did not perceive the applicant as disabled. In Evans, the Newfoundland and Labrador Court of Appeal upheld the finding by a Board of Inquiry that an employer had not breached the human rights legislation of that jurisdiction by making a promotion decision based in part on an employee’s “excessive” use of sick time. The Newfoundland and Labrador Court of Appeal accepted the Newfoundland Human Rights Commission's argument that the Newfoundland and Labrador Human Rights Code protected the claimant from being penalized for being disabled in the past. However, the Court found that there was not a sufficient degree of permanence and impairment in the pattern of illness and injury, on the facts of the case, to prove disability.

54Although the Evans decision is not binding on this Tribunal, I have considered it carefully, and I consider it distinguishable on its facts. The focus of the Newfoundland and Labrador Court of Appeal’s decision in Evans was on the facts around both the decision of the employer and the claimant’s sick leave record. The employer had been concerned both about the number of separate days taken and “the relationship between the days off for sick leave and regularly scheduled days off. Further, the evidence would indicate that in some years there was one incident which might have required a lengthier period of time off work, but this was coupled with several shorter periods of leave, consistent with transient illnesses” (at para. 12). The claimant in Evans denied she had a disability. Over her 20-year record, she had been absent from work because of two lung surgeries, a hysterectomy, depression, a broken foot, whiplash from a motor vehicle accident, breast surgery, a shoulder injury and stress, as well as because of minor ailments. However, the Court of Appeal notes (at para. 12) a period of ten months’ unpaid leave for the whiplash injury that was not reflected in the sick leave. The Board of Inquiry that originally heard the complaint focussed on “her sick leave record alone” as the only evidence of disability, and characterized the question as "whether excessive use of sick leave over twenty years without a common cause but for general health reasons constitutes a mental or physical disability” (para. 19).

55In this case, the applicant is certainly asserting that she has disabilities for the purpose of the Code. The employer had information that inactive TB might be at issue when it made its decision. Further, the employer had information that should have prompted it to inquire whether the applicant’s behaviour on November 28 was related to her disabilities.

56A number of decisions of this Tribunal, as well as other tribunals applying human rights legislation, have considered when a respondent can be said to have enough knowledge of an applicant’s disability to trigger responsibilities under human rights legislation. Most of these decisions have arisen in the context of identifying when the employer has a duty to accommodate. Most authority indicates that the claimant will not be held to a high standard of clarity in communication. This approach is in keeping with the principles enunciated by the Supreme Court of Canada in respect of the need to interpret human rights legislation generously and purposively. Liability has been found when an employer had no knowledge of the disability. See, for example, Re Ottawa Civic Hospital, (1995) 1995 CanLII 18382 (ON LA), 48 LAC (4th) 388, [1995] O.L.A.A. No. 60 (QL), at p. 398, in which an arbitrator concluded that there can be a breach of the Code if an employer fires an employee in ignorance of the disability that caused problems, and refuses to reinstate a disabled employee once the disability becomes known to the employer. Also see Willems-Wilson v. Allbright Drycleaners, (1998) 1997 CanLII 24821 (BC HRT), 32 C.H.R.R. D/71 (B.C. Trib.). There are several cases in which the employee gave little or no information about the disability, beyond an indication that a disability existed. See Bielecky v. Young, Macnamara (1992), 1992 CanLII 14291 (ON HRT), 20 C.H.R.R. D/215, 12 L.W. 1237-003 (QL) (Ont. Bd.Inq.); Belliveau v. Steel Co. of Canada (1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250 (Ont. Bd.Inq.); Koeppel v. Canada (1997), 32 C.H.R.R. D/107, 1997 CanLII 1443 (Can. Trib.); and Conte v. Rogers Cablesystems Ltd. (1999), 36 C.H.R.R. D/403, 1999 CanLII 1022 (Can. Trib.)

57In Wall v. Lippé Group, 2008 HRTO 50, the respondent employer had knowledge of an event which had occurred in the workplace which was traumatic to the applicant, knew that she was upset and had sought medical attention, and knew that she had requested three months’ leave on the advice of her doctor. The Tribunal concluded that the respondents had a duty to inquire further in these circumstances:

If this was not sufficient to put them on actual notice that Ms. Wall was suffering from a disability, at the very least, it placed on them the onus to inquire further and precluded any defence based on ignorance of Ms. Wall’s condition: Davis v. 1041433 Ontario Ltd. (No. 2), 2005 HRTO 37, at paras. 67-68; Allan v. Singh (1993), C.H.R.R. D/337 (Ont. Bd. Inq.) at paras. 25-27 and 32. As stated in other cases dealing with the test for establishing a prima facie case of discrimination, the question is whether the respondents knew or ought reasonably to have known that the complainant was suffering from a disability. For those purposes, there is no absolute requirement that a complainant communicate the nature of the disability to her or his employer: Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse (2002), 2002 BCHRT 14, 43 C.H.R.R. D/55; 2002 BCHRT 14, at para. 35 (summarizing the authorities). In those terms, the respondents should reasonably have known that Ms. Wall was suffering from a disability (at para. 80).

58Here, the respondent states that it was unaware of the applicant’s disability. In a situation in which the respondent is a corporation and knowledge of the situation is an issue, it is appropriate to look at the knowledge of decision-makers within the corporation.

59All the involved Directors and Ms Cox of the Human Resources Department were on notice as of November 28 that the applicant had stated that she had been “sick for the past year”. In addition, Mr. McGrath knew that the applicant had multiple health-related problems. The Human Resources Department clearly had information on record that the applicant had used all of her available sick days, as well as having worked make-up hours because she had used more than her sick day allotment; she justified her absences with doctor’s notes as required. Indeed, Human Resources admitted that the applicant's doctor had been contacted directly earlier in the year, apparently in an attempt to verify whether she did in fact have an appointment with her doctor. This indicates that the applicant’s absences from work were under some scrutiny by the respondent. In these circumstances, it was clearly open to the respondent to ask the applicant for the information concerning her health status.

60Clearly, decision-makers at all levels of the respondent corporation were also aware that the applicant might have inactive TB at the time the decision was made to fire the applicant. It was not until well after the applicant had been fired that anyone could be sure that she did not have TB at all. Further, the respondent’s witnesses were aware that the applicant intended to pursue a Workers’ Compensation claim, which indicates that the applicant, at least, thought that her ability to continue regular attendance at work and handle her normal workload was in doubt for health-related reasons.

61I conclude that the respondent cannot rely on its own failure to inquire into the applicant’s situation in these circumstances.

Was disability a reason for the termination?

62It 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] 1 S.C.R. 1252, 1989 CanLII 97 (S.C.C.).

63The position of the respondent is that it dismissed the applicant solely for her “poor judgement” in coming in to work when she might have had a condition that might be dangerous to the health and safety of others in the workplace, and a remark that the respondent considered racist, and as implicating its anti-harassment policy. There are a number of facts that are inconsistent with this position, and it is necessary to make a finding on whether that position is credible.

64In dealing with credibility issues in this Application, I do not place great weight upon variations between statements made in the parties’ written materials and what witnesses said in testimony. Counsel for both the applicant and the respondent understandably pointed out any such discrepancies, but I noted none that could not be explained by failure to thoroughly review materials drafted by counsel or the usual issues arising from individuals’ varying ability to recall events and/or to express themselves.

65In assessing credibility and coming to a decision on a civil burden of proof I am guided by the decision of the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, there is no rule as to when inconsistencies in the evidence of a witness will cause a trier of fact to conclude that the witness’s evidence is not credible or reliable. The trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence in the case, and assess the impact of any inconsistencies on questions of credibility and reliability pertaining to the core issue in the case.

66Having observed her testimony and reviewed her statements, I find the applicant to be a credible witness. Ms McLean appeared to be a woman of few words, a candid and plain speaker, but not particularly articulate or precise in her language. She did not seem to appreciate or notice shades of meaning. In cross-examination, she readily agreed with suggestions from both counsel as to what she might have said, suggestions that differed from what she had earlier testified that she said, although she also repeated her earlier version without appearing to notice that the form of words used might be slightly different in meaning.

67I also take note that Ms. McLean’s physical and emotional state on November 28 might have affected both the way she expressed herself on that day, and her ability to recall later precisely what she had said. On November 12, 2008, having had serious health problems related to diabetes for most of the year and suffering from unexplained gastrointestinal problems, the applicant formed the incorrect impression from a discussion with her doctor that she might have a form of tuberculosis that she referred to as “granular TB”. She also appears to have received information (possibly from her doctor) that TB is common in Asia.

68On November 24, she experienced a lengthy bout of vomiting and diarrhea resulting in dehydration and a dangerous potassium imbalance. The dehydration and potassium imbalance were treated, but the unexplained vomiting continued. The applicant thought that her symptoms were related to TB.

69On November 27, she contacted the office of her nephrologist, and was told that if she had TB she “needed to contact Infectious Disease, and they would provide medication”, which presumably reinforced her fears. That same day, the applicant received information from a pharmacist about TB, including the information that TB is spread by coughing and sneezing and that people who have lived or worked in countries where TB is common are more at risk of catching TB. She concluded that she must have contracted TB from an ill co-worker who had been coughing and sneezing in her presence and whose spouse and sick child had recently returned from Asia.

70I conclude from this evidence that by the time the applicant returned to work and approached Mr. McGrath on November 28, her disabilities had left her physically exhausted, confused and badly frightened about her physical symptoms. She was also, albeit mistakenly, afraid that she might have a dangerous disease. Her request for Workers’ Compensation was clearly prompted by fear--the financial implications of a further lengthy illness when her employment sick leave was exhausted were clearly very worrying to her.

71As representatives of the respondent, Mr. Bellehumeur and Mr. Freed decided to fire the applicant. The applicant was “overdrawn” on her sick leave and vacation allotment. She was fired just after having given information that she might have a serious illness. The respondent was in a very busy period; there was “lots of overtime” and it was hiring more staff. The applicant’s previous absences had been noted as disruptive to the workplace. In these circumstances, the applicant claims that the reason for her termination was that the respondent did not want to have to accommodate the possibility that the applicant would need more time away from work.

72The respondent’s witnesses admitted that, in firing the applicant, no one ever mentioned to the applicant any issue concerning her judgement, health and safety issues, or her seemingly racist remark. When questioned about this by counsel for the applicant, the respondent’s witnesses stated that, while they have on occasion “dismissed for cause”, this is not their usual practice. However, even in a “not for cause” termination, there was nothing to stop the respondents from discussing the events that allegedly concerned them.

73It is possible that the respondent's failure to mention to the applicant the reasons for her termination was simply a reflection of the respondent’s usual manner of doing things. However, in the circumstances, the respondent’s silence on this point also raises the possibility that the reasons later given by the respondent for the dismissal were not the actual reasons, but were suggested after the fact to justify a discriminatory termination.

74Secondly, although professing to be concerned about the applicant’s “judgement”, Mr. Bellehumeur and Mr. Freed took no steps to verify whether the applicant had actually believed, when she came in to work on November 28, that she had active TB. On the strength of the respondent’s evidence, that issue was unclear. However, the respondent's enquiry was confined to whether the applicant in fact had active TB; Mr. Bellehumeur and Mr. Freed asked no further questions about what she had believed on the 28^th before firing the applicant. They could easily have questioned Mr. McGrath, whom they knew was the only person who had talked to the applicant, but they did not do so.

75At the time of the events on which this Application is based, the respondent did not have a policy about what employees should do when they contracted an infectious disease. The absence of such a policy is certainly not unusual, but a clear policy containing an expectation that employees not come in when they suspect they are suffering from an infectious disease might have been some support for the rapidity of the decision to terminate employment in the circumstances of this Application.

76I accept the respondent’s evidence that another employee had, in the past, contracted inactive TB, that the only indication of this employee’s health status was provided not by the employee but by Public Health, and that the employee with inactive TB suffered no adverse employment consequences, is still employed by the respondent and has been promoted. However, that evidence goes directly only to the respondent’s position that it would not impose adverse employment decisions on an employee simply because s/he had inactive TB. There is no evidence that the other employee might require time off to deal with disability, nor any evidence that this employee had already become “overdrawn” on his sick leave/vacation allotment.

77The respondent referred to its anti-harassment policy in explaining its response to the alleged racist remark by the applicant. However, it is clear on a reading of that policy that Mr. Bellehumeur and Mr. Freed could not reasonably have concluded that the applicant had breached the policy on the information they had been given. This information was third-hand, which raises obvious questions of accuracy, and was a recounting of a somewhat ambiguous remark by the applicant to a supervisor, made in a private meeting behind a closed door, in an attempt to explain why she thought she had been exposed to TB at work and was therefore making a Workers’ Compensation claim.

78When an employer hears about what appears to be a racist remark from an employee, it is perfectly appropriate to be concerned that such remarks might poison the workplace, and to consider discipline accordingly. However, the logical thing to do if such is the employer's concern is to investigate the circumstances surrounding the remark to be as sure as possible about what was said, and to investigate (for example by questioning other employees) whether any other racist conduct has occurred. The respondent’s evidence was that there was no effort to determine exactly what was said, and no effort to speak to any other employees, including VN. The absence of such follow-up raises doubt about whether the respondent was concerned as alleged.

79I conclude that at least one reason for the rapid decision taken by Mr. Bellehumeur and Mr. Freed was concern that the applicant would need still more time away from work, at a very busy period, to deal with disability-related medical needs. The termination of employment for this reason breached s. 5 of the Code.

REMEDY

80Section 45.2(1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

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.

81Section 45.2(1)1 authorizes awards of monetary compensation for infringement of the Code. This includes reimbursement of out-of-pocket expenses and other objectively quantifiable losses arising from the breach of the Code. Examples include lost salary, benefits and financial opportunities.

Lost salary and benefits

82The applicant has requested monetary compensation for lost salary and benefits. The applicant and the respondent differ concerning what I should regard as an appropriate annual salary on which to base a loss-of-earnings award for the applicant, since her earnings were influenced by overtime payments. The applicant's counsel suggested that it was appropriate to accept an average figure based on the two years previous to the applicant's termination that amounted to $4,076 per month, based upon 2007 and 2008. Respondent's counsel suggested that because of the additional hiring undertaken by the respondent, overtime has gone down significantly and the applicant could not realistically expect as much overtime as she had worked previously. I accept the suggestion of counsel for the respondent that $42,000 per year ($3,500 per month), the applicant’s salary for 2008, is a reasonable estimate of the salary that the applicant could have expected had she continued in employment.

83In addition, the applicant enjoyed certain benefits during employment. These included a monthly contribution to her RRSP of $111, and coverage for health-related expenses. The applicant initially claimed some $800 a month in medical expenses. At the hearing she produced receipts for expenses such as medication that amounted to approximately $259 a month over a seven-month period. Keeping in mind the applicant's disabilities as accepted in evidence and the fact that medical expenses can vary, I conclude that it would be appropriate to assess the value of her loss of benefits coverage for medical expenses at $300 per month.

84An applicant is under a duty to make reasonable efforts to mitigate his or her damages. The effort must be more than minimal, but is to be judged in the circumstances of each case: Shepherd v. Pines Motel (June 8, 1993) No. 524 (Ont. Bd. Inq.). The applicant went directly to an employment placement agency the day she was dismissed, and dropped off a copy of her résumé. She applied for and obtained Employment Insurance. She underwent counselling and skills testing with the agency. She contacted the agency every other day until April of 2009. In addition to following up referrals from the agency, she sent out some applications on her own. She received only two job offers. One was for two days’ employment at less than minimum wage, which she declined. The other was a 10-day contract. The applicant asked if that employer could accommodate a half-day appointment with her kidney specialist that had been scheduled three months earlier, and was advised that this would not be possible. She did not accept that offer.

85In April 2009, the applicant went to another agency approved by Service Canada, and was advised to take a course that would give her other qualifications. She took preparatory courses, and passed the entrance exam. She started full-time study in August 2009, and stopped looking for work after that date. She did not complete the course. She had some illness and suffered the deaths of four family members in succession, found herself falling behind, and dropped out of the course at the end of October 2009. Since then she has registered with two other employment agencies and continues to seek work.

86The applicant has been unable to find employment since the date of her termination. I am satisfied on her evidence that she has made efforts to obtain employment and has attempted to improve her employability. The onus of proof regarding any failure to mitigate rests on the respondents. See Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd. Inq.) at para. 131; Ayangma v. Eastern School Board and Ano, 2008 PESCAD 10 at para. 74ff. Although the applicant did not accept the respondent's offer of placement services, she did avail herself of other placement services. The respondent’s cross-examination did not raise anything clearly related to gaining employment that the applicant neglected to do. In the circumstances, I find that there is no basis to reduce the period of time for which compensation will be ordered.

87I find that the appropriate order for salary and benefits loss from the day the applicant was dismissed to the last day of the hearing (December 3, 2008, to January 19, 2010) is 13.5 months’ salary calculated at $3,500 per month, subject to statutory deductions and less the severance payments already made ($5,280). In addition, the respondent is liable for benefits--the RRSP contributions it would have made, at $111 per month, and coverage for medical expenses at $300 per month to replace lost extended medical insurance coverage.

Prospective award for lost salary and benefits

88Applicant’s counsel requested an order for compensation based on prospective earnings, in addition to lost earnings to the date of the hearing. The applicant's position is that she would have retired on her 65^th birthday on April 26, 2011. The respondent did not allege any facts that would suggest that the applicant would have retired earlier than this date, which is 29 months from the date employment was terminated, and some 11 months from the date of this Decision.

89The respondent did not contest the Tribunal’s jurisdiction to make such an order, but argued that a prospective order would not be reasonable, given that the applicant had not sought reinstatement.

90Section 45.2(1)1. speaks of compensation “to the party whose right was infringed for loss arising out of the infringement”. In Heintz v. Christian Horizons, 2008 HRTO 22 (overturned in part: Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105, but not on this part), the Tribunal noted that

(…) the Code provides the Tribunal with considerable discretion in fashioning a remedy and the Courts have upheld remedial orders that are both expansive and novel. (See for example Canadian National Railway v. Canada (Human Rights Commission), 1987 CanLII 109 (S.C.C.), [1987] 1 S.C.R. 1114 “Action Travail des Femmes”) But in all cases, the remedy must flow from the violation that has been found and must be designed to further the remedial purposes of the Code… When assessing wage loss, the principle of “reasonable notice” used in wrongful dismissal actions does not apply, though where reinstatement is not requested or ordered, Tribunals must assess what is reasonable in the circumstances. The Tribunal must determine what the complainant would have earned if the discrimination had not occurred. (Smith v. Ontario Human Rights Commission, 2005 CanLII 2811 (ON SCDC), [2005] O.J. No. 377, para. 28; Gohm, supra, paras. 127-131)

91In McKee v. Hayes-Dana Inc. (1992), 1992 CanLII 14231 (ON HRT), 17 C.H.R.R. D/79 (Ont. Bd.Inq.), a case in which a respondent had breached the Code in terminating employment, the Tribunal ordered a respondent to compensate a claimant for lost wages and benefits from age 57 to the date of his 65^th birthday. This is certainly not a type of order that is frequently made, but in this case, there are circumstances that support it.

92In my view, the Tribunal must have regard to the circumstances of the specific party, as discernable from the evidence before it, in making any compensatory award. In employment cases, the question of whether the party has asked for reinstatement is relevant, but, in the absence of a specific provision in the Code, I do not think it can be determinative. The Tribunal must take into account all of the facts established by the evidence. Here, there are circumstances that in my view might warrant a prospective wages and benefits award, or an order even in the absence of a request for reinstatement.

93The respondent admits that, but for the incidents at issue in this Application, they had no performance concerns that would have warranted terminating the applicant’s employment. The applicant enjoyed her work and had no plans to leave.

94There is no question in this case of any request for an indeterminate prospective award; in fact, the contemplated period is fairly brief. The applicant has admitted that she would have retired when she turned 65.

95The applicant was 62 years old when her employment was terminated. She has a high school education; it appears that her skills were developed entirely on the job—she has no “paper qualifications”. She has significant disabilities. It is foreseeable that a person in these circumstances might have great difficulty finding alternative employment. The applicant’s experience in her attempts to mitigate have borne this out. I conclude that she is not likely to find permanent employment prior to her 65^th birthday.

96If the applicant finds employment on a short-term or permanent basis, corresponding deductions can be made in the relevant 15-month timeframe between the date of the hearing and the date the applicant would have retired in any event (between January 20, 2010 and April 26, 2011).

97The respondent suggested that I apply a “contingency factor” of 20%, citing Morris v. British Columbia Railway Co. (2003), 46 C.H.R.R. D/162, 2003 BCHRT 14. However, in that case, there was at least some evidence of “on-going corporate restructuring and down-sizing”. By contrast, all the evidence here was that the respondent was in the fortunate position of doing extremely well and hiring more staff. Further, in this case the respondent had no concerns with the applicant’s performance on the job; while she may not have received as much in bonus payments, she may have received some such payments or a raise in pay, which possibility will not be reflected in this order.

98There remains the issue of whether an Order that would compensate the applicant from the last day of hearing until the applicant turns 65 on April 26, 2011, is appropriate. The issue of whether I have the jurisdiction to order reinstatement where it has not specifically been requested has not been addressed at all. Nor have I had full representations from counsel in respect of an order that would require the respondent to pay the applicant on an ongoing basis from the last day of hearing until April 26, 2011, with a reporting arrangement that would allow for deduction for any income earned from alternative employment engaged in by the applicant during this period.

99I will remain seized of this narrow issue so that counsel may have the opportunity to make full representations.

Compensation for injury to dignity, feelings and self-respect

100Section 45.2(1)1 also encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code. The section specifically includes “compensation for injury to dignity, feelings and self-respect”.

101Quantifying intangible loss and distress is a difficult exercise. A number of Supreme Court of Canada decisions review the competing approaches in other areas of civil law that deal with this type of compensatory order. See for example, Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629; and Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701. There have been relatively few decisions under the new provision, s. 45.2(1)1, and undoubtedly, the Tribunal’s approach to the new provision will continue to develop.

102The impact of the discriminatory action on the individual applicant’s subjective experience clearly has considerable weight in arriving at a compensatory order, although the impact may be difficult to assess, both because of individual differences and because of ways of self-expression, some of which may be linked to personal characteristics protected under the Code. However, the Code directs that the Tribunal attempt to assess the applicant’s subjective experience.

103The concepts of “dignity” and “self-respect”, while certainly including factors that are subjective in nature, import considerations that are broader than the individual’s reaction to how he or she was treated. Dignity and self-respect can be diminished by how one is perceived and treated by others, as well as how one feels about that treatment. It is true, for example, that an individual who has a disability that affects communication may be unable to convey outrage at an affront to his or her dignity, and an individual who is consistently oppressed may grow to regard such treatment as “normal”. That cannot prevent this Tribunal from recognising an affront to dignity, nor absolve it from attempting to quantify a compensatory award according to its obligations under section 45.2(1) and the policies expressed in the Preamble to the Code.

104It is also appropriate to apply a degree of objectivity in recognising and evaluating the importance of a violation of the Code. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. The Tribunal has recognised that it should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a "license fee" to discriminate, See Sanford v. Koop, 2005 HRTO 53. In this regard, the Supreme Court has taken steps to avoid the erosion of the quantum of compensatory awards for intangible loss by ensuring that the original “cap” on such awards should be indexed to inflation; see for example the award confirmed by the Court of Appeal in McIntyre v. Grigg, 2006 CanLII 37326, 83 O.R. (3d) 161 (ON C.A.).

105In this case, I accept on the basis of her evidence that the applicant suffered considerable shock and upset on being fired, for no stated reason, from a job she enjoyed and relied upon. The fact that this was done at a time when she was suffering illness related to her disability added stress.

106Counsel for the respondent urged me to consider reducing the general damages award in consideration of “clear misconduct” on the part of the applicant. This has been done in appropriate cases, but for the reasons given above, this is not one of them. I award the applicant $20,000 in compensation for the intangible harm caused by the infringement of her rights under the Code.

Interest

107Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the "date the cause of action arose". Based on the evidence, this cause of action arose when the decision was made to terminate the applicant’s employment, on December 3, 2008. However, because of severance pay equivalent to 1.5 months’ salary, there was no actual diminution in the applicant’s earnings until January 19, 2009.

108The Ontario Court of Appeal has held that prejudgment interest on damages for lost salary should not be awarded prior to the date such payments were due. See Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No. 13 at para. 27 (C.A.). With respect to the applicant’s damages for her loss of wages, I award pre-judgment interest on the full amount from June 19, 2009, the mid-point between January 19, 2009 and the date of the hearing.

ORDER

109The Tribunal makes the following order:

(a) Within 30 days of this Decision, the respondent shall pay to the applicant a sum comprising 13.5 months’ salary and benefits, with salary calculated at $3,500 per month and benefits at $411 per month, subject to statutory deductions and less the severance payments already made ($5,280).

(b) Within 30 days of this Decision, the respondent shall pay $20,000 to the applicant as an award in the nature of general damages, for violation of her inherent right to be free from discrimination, and for injury to her dignity.

(c) The respondent shall pay the applicant prejudgment interest on the sum in paragraph a) from June 19, 2009 to the date of this Decision, calculated at a rate of 0.5% per annum in accordance with section 128 of the Courts of Justice Act.

(d) The respondent shall pay the applicant post-judgment interest on any accumulated principal and interest arising from the sums in paragraphs a) and b) above, calculated at 2.0% per annum in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision.

110I will remain seized of this matter in respect of the following issue:

A) Does this Tribunal have the jurisdiction to order reinstatement where it has not specifically been requested? If so, would an order for reinstatement be appropriate in this case?

B) In the circumstances of this case, would an order that would require the respondent to pay the applicant on an ongoing basis from the last day of hearing until April 26, 2011, with a reporting arrangement that would allow for deduction for any income earned from alternative employment engaged in by the applicant during this period, be appropriate?

Counsel must make any representations they wish to make by June 16, 2010.