HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Smith-Rogers

Applicant

-and-

M.A.T. Enterprises Inc. and Mark Torchia

Respondents

Case resolution conference decision

Adjudicator: Mark Handelman

Date: August 23, 2010

Citation: 2010 HRTO 1732

Indexed as: Smith-Rogers v. M.A.T. Enterprises

AppearanceS BY

Cathy Smith-Rogers, )

Applicant ) Self-represented

M.A.T. Enterprises Inc. and Mark Torchia )

Respondents ) Gordon Conley, Counsel

BACKGROUND

1This is an Application filed December 3, 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 and abandoned upon filing this Application with the Tribunal.

NATURE OF THE DISPUTE

2The applicant was employed by the corporate respondent as "co-manager" of one of the restaurants for which it held a franchise, a Wendy's in Timmins. The individual respondent was at least a part owner of the corporation and its directing mind.

3The applicant's employment was terminated by letter delivered to her home while she was off work due to liver disease. She contends that the reason for her termination was that illness, which constitutes a "disability" within the meaning of the Code.

DECISION

[4] The applicant satisfied me on a balance of probabilities that her medical condition played some role in the respondents' decision to terminate her employment. I award her $5,500.00 as monetary compensation for the loss of her right not to be discriminated against based upon disability. I also award an amount equal to the loss of the applicant's long term disability benefits for six months, less statutory deductions from that amount.

FACTUAL BACKGROUND

5The applicant began working for the corporate respondent in May 1993. She resigned in July 2001 but in May 2002 the individual respondent telephoned her and asked her to return to work, which she did.

6The corporate respondent is part of a skein of companies controlled by the individual respondent, all in the restaurant business, holding franchises for various popular restaurants from Barrie almost to Ottawa. The applicant worked in the Timmins Wendy's restaurant, located next to the building housing the respondents' business offices.

7According to the applicant, the reason she resigned in 2001 was that the individual respondent was verbally abusive to his employees, sometimes in front of other people. She says this continued after her return to work in May 2002 until the time of the termination of her employment.

8During the summer of 2004, the applicant was diagnosed as having liver disease and faced the prospect of requiring a transplant. She advised the individual respondent of this in September 2004 and by her own admission he was very supportive.

9On October 15, 2004, the applicant inquired of Ms Betty Chin, the corporate respondent's human resources and (at the time) payroll manager, about disability benefits. Ms Chin gave evidence. She said she did not tell the individual respondent about the inquiry because such things are confidential. She also testified that the applicant was covered by Wendy's Canada-wide disability program so it would not be relevant to the corporate respondent's cost of disability insurance that one of its employees took advantage of disability benefits.

10On October 18, 2004, the applicant received a letter from the respondents terminating her employment. The letter was signed by the individual respondent and dated October 18, addressed to the applicant at her home. The individual respondent wrote in it that the decision was "based on your past employment performance." The applicant subsequently received a cheque from the corporate respondent representing, as set out in the October 18 letter, "two weeks termination pay as per the Ministry of Labour guidelines..."

11The respondents maintained throughout that the applicant's termination was for cause. Two specific incidents were cited as the primary reasons though there were other historical complaints about the applicant not doing her job properly.

12The first incident the respondents cited was an inspection of the restaurant the applicant managed by Allan Mendelsohn who was the Franchise Area Director for Wendy's Restaurants of Canada Inc. He inspected the applicant's restaurant on June 11, 2004 and, on June 15, 2004, wrote a detailed letter outlining deficiencies, some significant, and a schedule for remedying them.

13There was no suggestion in evidence that the deficiencies Mr. Mendelsohn identified were not remedied on time. He apparently conducted inspections of franchisee outlets every three to four months but none of his other letters was entered into evidence.

14The second incident occurred sometime in the two week period before the applicant's employment was terminated. She had worked her shift, which was quite busy, and then she went home. The restaurant got even busier and staff began to panic. They tried to reach the applicant by telephone but could not. They telephoned Ms. Kathy Corriveau, who gave evidence on behalf of the respondents and who continues to be employed by the corporate respondent. She went to the restaurant to help out.

15The individual respondent had background complaints about the applicant's performance. He testified that she left her job early from time to time in 2003 to campaign for municipal office, though the applicant denied that. He also complained that she spent too much time in the restaurant's office and not enough time serving customers. He said that the applicant spent too much time talking with other staff in 2003 about her pending trip to Europe.

16At the time of the applicant's employment with the respondents, they did not keep detailed records of "infractions" by employees, or write letters to them detailing their deficiencies. By consensus of all the witnesses, the individual respondent's management style regarding employee deficiencies tended to verbal diatribes and threats of termination.

17When her employment was terminated in October 2004, the applicant was not well enough to work. She obtained sick benefits from the Federal Government for some months then regular unemployment insurance benefits. Human Resources and Skills Development Canada continued those benefits to assist her in upgrading her skills when the applicant returned to school in September 2005.

18In her Application to this Tribunal, the applicant claimed as remedies a "Letter of Recommendation" damages for lost wages, loss of benefits and loss of life insurance coverage, and compensation for "pain and suffering".

ANALYSIS

19The applicant contends that her termination was the result of a disability, in particular that she needed time off work because of a serious medical condition. The respondents contend that the applicant's termination was for cause.

20Part of the respondents' defence was that they had no reason to terminate the applicant because of her disability since payments by the Wendy's disability insurer would have no impact upon the cost of disability insurance to the corporate respondent. Another aspect was that Ms. Chin did not advise the individual respondent of the applicant's inquiry about disability benefits after the applicant's October 15 inquiry regarding same, so he could not have known about it.

21Even so, the individual respondent did know of the applicant's medical condition as she advised him of it in September, about a month before her employment was terminated, and in his evidence he acknowledged that. While I accepted Ms. Chin's evidence that she did not tell the individual respondent of the applicant's October 15 inquiry about disability benefits, I find as a fact that he was aware she planned to take time off work starting October 18 because of her liver condition.

22The individual respondent is a successful restaurateur. As he testified, it is a "hands on" business. The restaurant in which the applicant worked was adjacent to his offices and by his own admission he had ongoing concerns about the applicant's performance. As well, in terminating a co-manager who reported to him, he would have had to arrange for other staff to cover her shifts.

23The timing of the applicant's termination so closely coincides with the onset of her medical condition that I draw an adverse inference from it in the absence of any explanation justifying it on other grounds.

24I accept the applicant's contention that her medical condition, which is a disability within the meaning of the Code, played a role in the respondents' decision to terminate her employment.

25The applicant has not proven any actual financial loss as a result of the termination of her employment: she did not have this information available at the hearing. She testified that she received disability payments for at least three months from the federal government and I had no evidence as to how those compared to what was available through the Wendy's disability insurance program. However, in my view, she is entitled to be compensated for that loss for a period following the termination of her employment. I fix that period at six months.

26There was no evidence as to the value of benefits lost or the value of life insurance coverage. There was no evidence at all about the value of these benefits, if any, and I decline to make an award for them.

27Section 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.

28Based on the evidence, I have concluded the applicant's disability was a factor in the decision to terminate her employment. I have no doubt that the respondents' termination letter caused injury to the applicant's dignity and feelings and was a violation of the Code. In assessing the appropriate amount of monetary compensation (general damages) owed for the infringement and injury to dignity, feelings and self-respect, I take into account the breach of the Code, the applicant's evidence of the impact it had on her and the particularly bad timing of her termination.

ORDER

[29] I make the following orders:

(a) The respondents shall pay the applicant the sum of $5,500.00 as compensation for the violation of her right to be free from discrimination under the Code. Post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 is ordered if the respondents do not make the payment within 30 days of the date of this Decision.