HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Binkley
Applicant
-and-
Blue Mountain Resorts Limited, Frank Shepperd, Ken Gray and Bryan McDonald
Respondents
DECISION
Adjudicator: Jim Dimovski
Indexed as: Binkley v. Blue Mountain Resorts
AppearanceS BY
Mark Binkley, Applicant ) Kyle Binkley, ) Representative
Blue Mountain Resorts Limited, Frank Shepperd, ) Amanda J. Hunter, Ken Gray and Bryan McDonald, ) Counsel Respondents )
ii
1This Application was filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on July 20, 2006, and abandoned upon filing this Application with the Tribunal.
2The applicant alleges that he was subjected to harassment in the course of his employment and terminated on the basis of disability. He alleges Blue Mountain Resorts Limited (the “corporate respondent”) was aware of his depression and attention-deficit disorder. He further alleges the personal respondent, Frank Shepperd, “constantly harassed” him by playing “favourites” with other employees and not giving him enough time to do his job. In June 2006 his physician advised him to take time off work to address his work-related stress. However, following a discussion with the personal respondent, Bryan McDonald, his Engineering Department Manager, he continued working. On July 11, 2006 his employment was terminated.
3The respondents deny the allegations and that the applicant advised them of his disability or requested accommodation for a disability. The respondents assert the applicant’s perception of harassment and his termination resulted from his poor performance, work ethic and insubordination.
4On January 11, 2010, a hearing was held in Owen Sound. At the hearing, I heard testimony from the applicant, the personal respondents, and the respondents’ witnesses: Tony Mackela and Krista Willette. The parties agreed that the respondents could rely on will-say statements as their evidence-in-chief.
5At the hearing, the applicant requested that a will-say statement of a witness he intended to call, but who did not appear, be entered into evidence. The will-say statement had not been provided in a timely manner and, after noting that the will-say statement reiterated the assertions contained in the Application, I denied the applicant’s request to rely on the will-say statement. I am satisfied the prejudice to the respondents, in having no opportunity to cross-examine on the statement, outweighed the limited benefit to the applicant.
BACKGROUND
6Except as otherwise noted, the following facts are not in dispute.
7The corporate respondent is a high volume, village-centered, four-season destination resort. The applicant began working for the corporate respondent on a seasonal basis as a ski lift operator. After the 2003/04 ski season, the applicant was hired as a full-time employee. Shortly thereafter, despite his lack of experience in the field, he applied for and obtained a position in the Engineering Department at the Blue Mountain Inn (the “Inn”), a section of the corporate respondent’s resort complex.
8At the Inn, the applicant’s duties included basic plumbing, electrical and carpentry work and, pool and hot tub cleaning and maintenance. He reported to the personal respondent, Mr. McDonald, the Manager of the Engineering Department.
9Mr. McDonald, who resigned from his position in April 2007, stated he transferred the applicant to Blue Mountain Village (the “Village”), another section of the resort, under the supervision of Mr. Shepperd, because of the applicant’s poor performance. Mr. McDonald stated that the Village complex was comprised of newer buildings so the maintenance was more repetitive and therefore easier to learn. Additionally, Mr. McDonald thought the applicant would benefit from Mr. Shepperd’s supervision.
10The applicant stated he was not made aware of any performance issues while he worked at the Inn. He testified that he was taught the basics, was allowed to shadow co-workers for a few months and given ample time to complete jobs.
11The work at the Village included attending to all electrical, plumbing, motors, pumps, pool and hot tub maintenance, painting and repairs, as well as other things. The work is initiated by managers who sent the Engineering Department work orders for repairs or tasks. Once repairs and/or tasks are completed, the applicant’s department tracks its work by issuing a bill to the various departments for the work completed. A work order was typically billed in half-hour or hour increments; not all the work performed required that allotted time was billed out to the resort’s departments.
12The applicant stated his first few months under Mr. Shepperd’s supervision were “easy going”; he was given an opportunity to feel comfortable, allowed to shadow co-workers and learn on the job. He was told not to worry about billing. He also noted that, due to his inexperience, he had problems with certain assignments, such as the ongoing maintenance of the air conditioning units. The problems with Mr. Shepperd occurred when he was expected to perform tasks on his own.
13Mr. Shepperd, who retired in 2007, indicated that the applicant’s performance had not been good from the start. The applicant would choose work orders involving simple tasks that would take less than an hour to complete. If completed in less than an hour, rather than take a new work order, the applicant would “waste” time at the resort.
14It was the applicant’s belief that he was only required to complete 12 work orders, representing 12 hours of work, per shift. The respondents instituted a policy in which work orders were assigned. The purpose was to provide each employee a mixture of difficult and simple work orders. Despite the policy, Mr. Shepperd claimed that the applicant would complete the easy and short work orders and not complete the more difficult or longer ones. He also did not ask for assistance.
15The applicant stated Mr. Shepperd harassed him by being “over-controlling” and monitoring him intensely by asking him about his whereabouts and the work he had completed. On occasions, Mr. Shepperd insinuated that the applicant had been taking unauthorized breaks to smoke.
16The applicant’s first formal performance appraisal occurred on June 28, 2005. The two-page document titled “Year Round Employee Performance Evaluation – Maintenance” was signed by the applicant. It noted the applicant required improvement with his job knowledge, efficiency, productivity and quality. Also, it noted that the applicant should ask questions or seek help from his supervisor and teammates if he could not solve a problem or complete the task. As a result of the applicant’s June 2005 evaluation, Mr. Shepperd assigned him to Tony Mackela and other experienced engineers, who could assist the applicant in completing more difficult work orders.
17By the next evaluation on August 9, 2005, Mr. Shepperd noted that the applicant’s performance had not improved. Mr. Shepperd asked whether the applicant’s difficulties with problem solving were associated with a learning disability. As noted in the document titled “Year Round Employee Performance Evaluation – Maintenance” dated August 9, 2005, Mr. Shepperd remarked the applicant might have a “[p]ossible learning disability”. In the course of the conversation, Mr. Shepperd stated that the applicant’s response was that he had Attention-Deficit Disorder (“ADD”) as a child but denied any current condition/problems.
18The applicant’s recollection of his August 2005 conversation with Mr. Shepperd is different. The applicant testified that he had told Mr. Shepperd he had Attention-Deficit Hyperactive Disorder (“ADHD”). In response, the personal respondent stated that it was “okay” and that “we all learned at a different pace”. The next day, the applicant claimed that the personal respondent gave him a paper regarding ADHD. The applicant stated he put it away so that no other employees would see it. Mr. Shepperd denied giving the applicant any such document and affirmed that the applicant did not relate his performance to a disability.
19Contrary to his Application, the applicant admitted that at no time did he disclose his depression stating that it was “nobody’s business”. He also denied mentioning his bi-polar symptoms to the respondents.
20As a result of his August 2005 evaluation, the respondents issued the applicant a letter of Corrective Action dated August 16, 2005. As part of its corrective process, the respondents sought and received a list from the applicant concerning the areas in which he required further training and guidance. The respondents noted he had 6 weeks to show improvement. The letter of Corrective Action was signed by the applicant and Mr. Shepperd.
21Mr. Shepperd testified, as corroborated by the November 2005 evaluation and the applicant’s testimony, that the applicant’s performance did improve. By the spring of 2006, however, Mr. Shepperd noted it began to deteriorate again. The applicant began picking and choosing the easy work orders. He also took longer than usual to complete work he had previously shown himself capable of performing after the letter of corrective action was signed.
22The applicant testified that he was tiring of the confrontation with Mr. Shepperd about his job performance and the stress that it caused. He admitted he never directly confronted Mr. Shepperd and had only discussed these issues with Mr. McDonald.
23Mr. McDonald testified that in June 2006, the applicant approached him and told him he was considering taking a stress leave. The applicant stated he had issues with his father and needed to find a new place to live. He also stated he was having difficulty with his supervisor. Mr. McDonald told the applicant if he obtained a medical note supporting his need for time off work, the corporate respondent would support his leave of absence. The applicant affirmed that he mentioned the problems with his father to Mr. McDonald but that he related his stress as work-related. The applicant did not submit any medical documentation for time off. The applicant asserts that Mr. McDonald assured him that he would take care of his work situation sometime in June or July 2006.
24The applicant also alleged that sometime in July 2006, Mr. Shepperd called him “retarded” in front of a fellow employee. He alleges he left the office and cried.
25The day before the applicant’s employment was terminated, Mr. Shepperd stated that he found the applicant at the shop office eating sunflower seeds, letting the shells fall, scattering them on the floor. Mr. Shepperd voiced his displeasure about the mess; in response, he states the applicant left. The applicant subsequently refused to talk to Mr. Shepperd without someone from Human Resources present.
26Mr. Shepperd states that later that day he saw the applicant near a resort coffee shop. Since there was no business-related reason for him to be in the area, which was not disputed by the applicant, the personal respondent approached the applicant to ask him what he was doing. Mr. Shepperd states that the applicant ignored his question, and while walking away stated that he was “going crazy”.
27Mr. Mackela, the applicant’s lead hand, and the person who assisted the applicant after the letter of corrective action was issued, was with Mr. Shepperd and recalled the applicant stating: “going crazy. Want to come?”
28The applicant affirmed the gist of the comments attributed to him however, he clarified that he stated: “going crazy old man, want to come?” The applicant stated his comments and actions were in response to a combination of his heavy work load, due to his department being short-staffed and the effects of Mr. Shepperd’s constant harassment. It was at this moment, the applicant testified, that he decided to stand up for himself.
29After walking away from Mr. Shepperd, the applicant went to Human Resources to seek a resolution to his work situation. In her testimony, Krista Willette, an employee for the corporate respondent’s Human Resource Department, recalled the applicant complaining that Mr. Shepperd was not a team player, did not treat him properly and had been condescending toward him. The applicant mentioned the problems with his father made matters worse. The applicant was sent home after Ms. Willette assured him that she would investigate the matter.
30After investigating the applicant’s complaints, Ms. Willette was informed of his performance issues, and the events which had occurred near the coffee shop before the applicant spoke to her. Since she felt there were significant issues of insubordination, and a break-down of the applicant’s relationship with his supervisor, she supported the Engineer management team’s wishes to immediately terminate his employment.
31The applicant confirmed that he did not tell Ms. Willette of the incident near the coffee shop. He also confirms not mentioning his disability to her. The applicant claimed that he told her he worked in a “hostile environment”. He asserts Ms. Willette did not ask for examples.
32On July 11, 2006, Ms. Willette informed the applicant his employment was terminated. She stated that at no time during her conversations with the applicant did he mention that he had ADD or any other disability that affected his ability to work.
33In his testimony, the applicant admitted that at no time did he ask for any form of accommodation. Instead, he believed that, once he disclosed his disability to Mr. Shepperd, as part of management Mr. Shepperd should have informed the appropriate people and the respondents should have taken the appropriate measures to accommodate him. The applicant stated that the appropriate accommodation would have consisted of more “freedom” to do his job without worrying about being asked to account for his day making, him feel irresponsible. He also stated he needed more time to train and shadow people.
DECISION
34After reviewing all the evidence and reviewing the parties’ submissions, on balance, I am not satisfied that the applicant was subjected to discrimination on the basis of disability in the course of his employment. Further, I am not satisfied that the termination of his employment was, even in part, due to a Code-protected ground.
ANALYSIS
The Disability
35The applicant testified that he had Attention-Deficit Hyperactivity Disorder (“ADHD”), which had required medication. In his Application he alleged, he had Attention-Deficit Disorder (“ADD”). The applicant produced a medical report from Dr. Morel dated January 18, 2007 which confirms the diagnosis of ADD but does not indicate whether the applicant required medication nor does it provide any other helpful information regarding his disability. Based on Dr. Morel’s report I am satisfied the applicant has ADD and that ADD is a disability within the meaning of the Code.
36During the hearing, the applicant mentioned he also experienced bi-polar symptoms during the relevant time. He confirmed that at no time were the respondents aware of this disability. There is no reference to this in either his complaint as originally drafted or the statement of facts and issues filed with this Application. In contrast with the information provided to support the diagnosis of ADD there is no evidentiary or medical documentation to support this allegation. In these circumstances, I am unable to conclude there is any reliable evidence to support the allegation the applicant was experiencing bi-polar symptoms at the relevant times.
37The applicant also submits he was experiencing depression at the time of the events in dispute. Contrary to his allegation in his Application, the applicant admitted in the hearing that he had not made the respondents aware of his depression during his employment. The applicant also maintained that his relationship with Mr. Shepperd caused him work-related stress. Mr. McDonald admitted that the applicant had told him he was stressed shortly before his termination. However, the respondents submit that the applicant’s claims of stress were related to his relationship with his father.
Credibility
38Since there are important differences in the version of events provided by the applicant and the other witnesses, particularly Mr. Shepperd’s testimony, I must decide which version of events is more credible. In assessing credibility, the Tribunal has applied the traditional test identified by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which includes considering a witness’s opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the Court stated:
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
39I have considered these factors and conclude that, where their evidence differs, I prefer the evidence of Mr. Shepperd over that of the applicant. My decision is influenced by the fact that there are several inconsistencies on important points in the applicant’s testimony. Some of the inconsistencies are discussed below.
40On one important issue, the applicant admitted that his Application was incorrect; that the respondents were at no time made aware of his depression. As reflected in his testimony and during his closing submissions, the applicant did not consider this contradiction important. Instead, he argued, the fact that he had depression and bi-polar symptoms, during the relevant time, was more important than whether he disclosed those disabilities to anybody at work. I find, however, the distinction on such an important point, which formed the basis of his Application, is a significant reason to question the accuracy of his testimony.
41There were other inconsistencies in the applicant’s testimony, that when viewed cumulatively, in the context his Application, are significant to the extent I am satisfied that his version of events is not likely accurate. For example, after the letter of corrective action was issued, the applicant stated that nothing was done to help him improve. On cross-examination, he admitted Mr. Mackela was assigned to assist him and that his performance improved after he was provided additional support from his Department.
42In his Application, the applicant wrote that from late 2005, to the date of his termination, he had issues with his supervisor which Bryan McDonald had been “fully aware” of. In his testimony, the applicant noted he had mentioned his concerns about his supervisor on “numerous” occasions to Mr. McDonald. On cross-examination, the applicant stated he mentioned his stress on two occasions but not his concerns with Mr. Shepperd to Mr. McDonald in June 2006. He also testified that he had not mentioned his concerns with Mr. Shepperd to Mr. McDonald, until a couple of days before his termination, for fear of discipline.
43Additionally, the applicant testified that he did not take a medical leave because Mr. McDonald stated he would address his concerns with Mr. Shepperd. However, the applicant’s testimony on cross-examination changed; as corroborated by Dr. Morel’s report, the applicant stated that he did not consider taking a leave of absence since working was better than staying at home.
44Another example: in his direct evidence he testified that his co-workers tried to protect him from Mr. Shepperd but on cross-examination, he could not describe how his co-workers helped him and at one point he stated he had not disclosed his problems with Mr. Shepperd to his co-workers. Also, contrary to his Application, the applicant stated that Mr. Shepperd began harassing him after he disclosed his disability.
45The applicant also made bald assertions that he could not support with examples. For instance, in his Application the applicant noted that Mr. Shepperd favoured other co-workers over him. At the hearing, he was unable to relate any specific examples. Accordingly, I am not satisfied that the applicant has established that Mr. Shepperd favoured co-workers over the applicant as a result of any Code-protected ground.
46I am satisfied that these inconsistencies, while not necessarily material to issue in dispute, when viewed together, including the applicant’s bald assertions, and my concerns about his testimony regarding the meeting in which he disclosed his disability to Mr. Shepperd, reflect a version of events that is inherently improbable. Accordingly, I did not find that the applicant is a particularly credible witness.
47In general, I preferred the evidence from the personal respondents’ and their witnesses, where it differed with the applicant’s, because it was logical, consistent and reasonable. It was also corroborated by the documentary evidence contemporaneous to the events in dispute.
48I find Mr. Shepperd credible. He has since retired and admitted his memory regarding the events in question was not entirely vivid. He did state that while he had asked the applicant whether he had a learning disability, the applicant did not state he had ADD or ADHD as an adult. The applicant clearly stated that he told Mr. Shepperd he had ADHD. I preferred Mr. Shepperd’s testimony because it is consistent with the applicant’s testimony about his reluctance to disclose his other medical information. Further, if the applicant had mentioned he had a disability I would have expected it to have been recorded in the evaluation he signed, which noted Mr. Shepperd’s query about a learning disability. Instead, Mr. Shepperd’s only remark is: “Possible learning disability”.
49In his testimony, the applicant stated Mr. Shepperd gave him a pamphlet on ADHD after his meeting with him regarding his August performance evaluation. He also alleged that on one occasion, Mr. Shepperd called him “retarded” in front of another co-worker.
50In addition to failing to outline the allegations that Mr. Shepperd had provided him with an ADHD pamphlet or called him “retarded” in his Application, the applicant admitted that at no time did he disclose these particular allegations to anyone during the course of his employment, particularly immediately prior to or at the time of his termination. When asked why he had not raised these particular allegations prior to the hearing, the applicant mentioned his concentration level did not permit it and also he did not know he could rely on the “retarded” comment as a “valid statement”. The applicant also noted at other times during the hearing that his failure to disclose was due to his fear of discipline and/or simply because he did not think he had to record this information. When pressed by his own representative, the applicant stated that he did not report the “retarded comment” made by Mr. Shepperd, even to Ms. Willette because he thought it would be “investigated”.
51Further, if the applicant had mentioned he had a disability I would have expected it to have been recorded in the evaluation he signed and which noted Mr. Shepperd’s query of learning disability. Instead, Mr. Shepperd’s only remark is: “Possible learning disability”.
52Additionally, I would have expected the applicant to have mentioned it to Mr. McDonald or even Ms. Willette when he decided to complain about Mr. Shepperd to Human Resources since he claims Mr. Shepperd harassed him because of it. Instead, the respondents’ witnesses and the applicant admitted he did not mention his disability at any time other than to Mr. Shepperd during their meeting to discuss his August 2005 performance evaluation.
53In any event, Mr. Shepperd did acknowledge that he questioned whether the applicant had a learning disability. In my view, Mr. Shepperd perceived the applicant had a disability.
Was the applicant’s disability or perceived disability a factor in Mr. Shepperd’s interaction with him and his eventual termination?
54The applicant has alleged that Mr. Shepperd harassed and chronically mistreated him. The appropriate question, however, is whether Mr. Shepperd harassed or mistreated the applicant on the basis of his disability or perceived disability.
55During the course of his testimony, the applicant asserted that Mr. Shepperd harassed or mistreated him without providing any significant detail. After using the term harassment several times in the course of his testimony, and since his Application was devoid of any particulars, the applicant was asked to outline the harassment and mistreatment. The applicant stated Mr. Shepperd harassed him by: constantly asking him his whereabouts and the work he performed; calling him “retarded”; and the incident at the coffee shop the day prior to his termination. Subsequently, he noted that Mr. Shepperd harassed him by not providing him a reasonable amount of time to complete work orders.
56In my view, the applicant’s own testimony does not support Mr. Shepperd harassed him as a result of a Code-protected ground.
57First, for the reasons already provided, I do not accept there is credible evidence to support finding that Mr. Shepperd called the applicant “retarded”.
58With respect to Mr. Shepperd’s questions about his whereabouts, the applicant states they made him feel irresponsible. In the context of the applicant’s working environment, I am not satisfied that such questions could be reasonably be known as unwelcome or constitute some form of differential treatment. Indeed, employees who worked under Mr. Shepperd’s supervision did not work in sight of him given the nature of their work and the vast size of the corporate respondents’ premise; instead, Mr. Shepperd’s workers were dispatched and trusted to complete as many work orders as they could. In my view, Mr. Shepperd’s questions were directly related to concerns about his work ethic or about what the applicant was doing while being paid as opposed to how he was doing it.
59Indeed, the applicant admitted that Mr. Shepperd’s concerns stemmed from the fact that he was not performing work rather than performing work poorly as a result of a learning disability. For example, I heard testimony from Mr. Mackela, which was not disputed by the applicant, that the applicant was sometimes found sitting on a deck during his working hours. In his testimony, the applicant also confirmed that, the day before his termination, he had no work in the vicinity of the coffee house. Moreover, the undated evaluation, written by him, implicitly affirmed the insinuation he claimed Mr. Shepperd made about his smoking while on shift when he wrote he would change his habits: “i.e. smoking”.
60Further, I am not satisfied that the applicant’s description of Mr. Shepperd’s harassment before the August 2005 meeting, or before he allegedly told him he had ADHD, was different in any way from his conduct after that meeting. In my view, this supports that Mr. Shepperd’s focus on him was the result of supervision as opposed to harassment due to disability.
61At one point, when pressed, the applicant stated he was harassed since he was not provided ample opportunity to complete work orders. However, this contradicted his own evidence which indicated that he completed the work orders he thought he was obliged to complete – and which amounted to 12 hours work per shift. It also contradicted the performance evaluation comments which noted that the applicant should complete jobs he had started before beginning new ones which supports that the respondents’ emphasis focussed on the applicant completing and not rushing jobs, as opposed to his contrary allegations.
62I also note that the nature of the employer’s corrective action and the performance evaluation raised concerns with the applicant’s ability to problem solve. The respondents argued, citing case law, that since the applicant failed to advise the respondents of his accommodation needs, the respondents had not failed to accommodate him. The applicant argued that once he advised the respondents of his disability it was their responsibility to determine what he required. I am not satisfied by either parties’ submissions in this regard.
63The duty to accommodate has both a procedural and substantive content. In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal determined the failure to meet the procedural dimensions of the duty to accommodate is a form of discrimination in itself. The failure to inquire and assess denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation.
64As noted above, although I am not satisfied that the worker likely disclosed his particular disability, ADD or ADHD, I am satisfied that Mr. Shepperd questioned or perceived the applicant had a learning disability. After assessing the applicant’s work performance Mr. Shepperd inquired as to whether the applicant had a learning disability. Unlike Lane, I am not satisfied that the applicant disclosed any particular disability sufficient for the respondents to make a particularized or comprehensive inquiry into the applicant’s disability like the one outlined in Lane. In my view, the nature of the respondents’ procedural duty is directly related to the nature of the information disclosed by the applicant or perceived by the respondents. In the context of this matter, the respondents had very general information of a perceived learning disability. In my view, the respondents discharged any procedural duty when it requested the applicant to provide them a list of areas he required additional training and guidance with.
65While I am concerned with the respondents’ attempts to assist the applicant under the threat of corrective action, in this matter, I am satisfied that Mr. Shepperd’s perception of disability occurred for a brief period, and was superimposed on questions about the applicant’s work ethic and attitude which pre-existed and outlasted any perception of disability. As noted by Mr. McDonald, the concern with the applicant was not that he could not perform his job but that he was not sufficiently committed to it. Sometime in 2006, Mr. Shepperd noted that the applicant’s attitude to, and thus, his performance had changed sufficiently, that no corrective action was contemplated until his work ethic began to deteriorate again.
66After listening to Mr. Shepperd’s testimony, any perception of disability likely evaporated after the letter of corrective action, since the respondents began to view the applicant’s poor performance entirely related to his lack of commitment to his job. Mr. Mackela testified that the applicant would state that his current job was temporary, since as an actor, he was awaiting to be discovered. In my view, I am satisfied that any perception of disability was brief since Mr. Shepperd’s complaints about the applicant were with regard to work ethic. For example, Mr. Shepperd noted that by the time he was terminated, the applicant began to make similar mistakes to those he made prior to the letter of corrective action, which he had been shown to avoid, and had proved he could avoid.
67I am also not satisfied that the applicant’s termination was in part due to his disability or perceived disability. Instead, I am persuaded that his termination was the result of his insubordination derived from his work ethic and attitude or commitment to his work responsibilities. Indeed, the applicant affirmed the events of July 10, 2006, regarding Mr. Shepperd’s admonishment at the shop for the sunflower seeds and his questions about what he was doing near the coffee shop and his responses.
68The applicant may very well have perceived that Mr. Shepperd was targeting him, but he did not persuade me that it was due to any disability or perceived disability as opposed to how he carried out his duties and obligations to his employer. Mr. Shepperd indicated the level of insubordination displayed by the applicant on July 10, 2006, effectively destroyed any hope of maintaining a working relationship with the applicant as a supervisor. Accordingly, I am not persuaded that Mr. Shepperd’s reaction was due to any perceived disability but to an employee’s inappropriate responses to a person who had authority over him.
69Finally, the applicant testified that after his stress built up he approached Mr. McDonald for assistance. He alleged that Mr. McDonald persuaded him to keep working. Mr. McDonald stated, consistent with the corporate respondents’ policy, that he told the applicant that if he obtained a physician’s note he could take a leave of absence. In light of my above findings, I place more weight on Mr. McDonald’s testimony since it was, in my view, corroborated by Dr. Morel’s report, which indicated that the applicant had visited her, with complaints of stress, in June 2006, or about the time Mr. McDonald had told him to obtain a physician’s note. Also, contrary to his testimony that he relied on Mr. McDonald to address the problem he had with Mr. Shepperd, Dr. Morel recorded that after discussing going off work, the applicant decided not to take time off but that he “wanted to deal with this [problem] himself”.
70Therefore, I am not satisfied that the respondents subjected the applicant to harassment due to his disability or that his termination was due to his disability. Further, based on the above analysis, even if explicitly plead in his Application, I am not satisfied that the respondents failed to accommodate the applicant’s disability.
71In all the circumstances, I dismiss the Application.
Dated at Toronto this 29th day of September, 2010.
“Signed by”
Jim Dimovski
Member