HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Black
Applicant
-and-
Etobicoke Ironworks Ltd.
Respondent
DECISION
Adjudicator: Sheri D. Price
Indexed as: Black v. Etobicoke Ironworks
Appearances
Timothy Black, Applicant ) Harry Kopyto, Representative
Etobicoke Ironworks Ltd., Respondent ) Paula Rusak, Counsel )
INTRODUCTION
1On January 10, 2008, the applicant was sent home after telling the respondent employer that he was continuing to experience back pain and that it was negatively affecting his work productivity.
2The applicant submits that by sending him home and refusing to allow him to continue working on and after January 10, 2008, the respondent employer discriminated against him on the basis of disability, contrary to the Ontario Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”). He submits that the respondent effectively terminated his employment on January 10, 2008. Alternatively, the applicant submits that the respondent’s refusal to let him work on and after January 10, 2008 amounted to discrimination on the basis of disability and a breach of the respondent’s duty to accommodate him to the point of undue hardship.
3The respondent employer submits that its decision to send the applicant home on January 10, 2008 and hold him out of service after that date was justified based on its genuine and reasonable belief at the time that the work the applicant was doing was possibly causing or exacerbating his back pain. The respondent submits that it decided to send the applicant home out of concern for the applicant’s health and safety, pending a third-party assessment of whether the applicant’s work was in fact suitable for him. The respondent denies that it terminated the applicant’s employment on January 10, 2008 or at any point. It submits that the applicant continues to be an employee to this day.
4After sending the applicant home on January 10, 2008, the respondent spoke with the applicant’s car insurance company with a view to having it assess the suitability of the applicant’s work. The respondent submits that it took more than four months to establish that the applicant’s insurance company would not assist the respondent in having the suitability of the applicant’s work assessed. Afterwards, the applicant applied for Long-Term Disability (“LTD”) benefits. The respondent takes the position that, once the applicant applied for such benefits, it was no longer obliged to attempt to return the applicant to work because the applicant was holding himself out as totally disabled from working.
5The third-party assessment of the applicant’s work was ultimately never done. The respondent never returned the applicant to work after January 10, 2008, nor did it communicate with the applicant about how its plan to have the applicant’s work assessed was progressing.
6For the reasons that follow, I find that the applicant was discriminated against by the respondent on the basis of disability in respect of employment and make orders to remedy the discrimination.
7Although the Application contained allegations of discrimination on the basis of race, these were not pursued at the hearing. There was no evidence called or submissions made in support of those allegations and to the extent those allegations form part of the Application, those allegations are dismissed.
8Similarly, the Application contained allegations that the applicant received less by way of profit-sharing than “able-bodied” workers and that this infringed his rights under the Code. The applicant gave no evidence in support of this allegation during his examination-in-chief. During cross-examination, he testified only that he received less by way of profit-sharing than “other workers”. This evidence is not sufficient to make out a case that the applicant received less by way of profit-sharing based on disability and this allegation is dismissed accordingly.
9At the hearing in this matter, the applicant testified on his own behalf and did not call any other witnesses. Mr. John Brazil, the President and Chief Operating Officer of the respondent, Mr. Glen Joseph, the Supervisor of Scaffolding and the applicant’s direct supervisor (“the applicant’s supervisor” or “the supervisor”), and Ms Giovanna De Rosa, an office administrator with involvement in return to work and WSIB matters, testified on behalf of the respondent.
BACKGROUND
10The applicant worked for the respondent as a welder.
2003 Injury
11In or around June 2003, the applicant was in a car accident in which he injured his lower back. He subsequently returned to modified work with the respondent within certain restrictions. The respondent takes the position that the applicant’s duties were modified from the date of his return to work in 2003 until he was sent home on January 10, 2008.
12The applicant’s car insurance company assisted in the applicant’s graduated return to work in 2003.
April 30, 2007 Re-injury
13On April 30, 2007, the applicant re-injured his back at work. He was diagnosed with “back strain”. He was off work until May 7, 2007 at which time he returned to work with certain restrictions as set out in a May 2007 Physician’s Treatment Report and Functional Abilities Form (“FAF”) provided to the respondent at the time. According to the May 2007 FAF, the applicant’s restrictions were to be in place for a number of weeks and complete recovery was expected.
14The applicant testified that before and after the April 30, 2007 injury, he had “good days and bad days”, but after the April 2007 re-injury of his back, his back hurt him more than before. The applicant acknowledged that his back pain negatively affected his productivity at work and that on a “bad day”, his productivity would have been around “60 or 70 percent”. The applicant testified that his back pain limited him sometimes in respect of the type of work he could do, such as lifting and moving heavy things he was welding, but not the pace of his work.
The meetings in advance of the applicant being sent home
15The applicant and the respondent’s witnesses testified about a number of meetings which were held between the applicant and management leading up to the January 10, 2008 decision to send the applicant home. Mr. Brazil testified that all of the meetings were called by the applicant’s supervisor to address his concerns about the applicant’s productivity. The supervisor’s account was somewhat different. He testified that he called the meetings in question out of concern for the applicant’s well-being and that his concern about the applicant’s productivity was secondary to his concern about the applicant’s health and safety.
16Mr. Brazil and the applicant’s supervisor testified that they had a casual discussion with the applicant at some point during the summer of 2007 during which the applicant’s productivity was discussed and during which the applicant told them that he was still having problems with his back.
17A more formal discussion took place in the fall of 2007. The evidence establishes that this meeting was prompted by the applicant being observed away from his work station, in his words, “walking off the pain”. Although the applicant’s and the respondent’s versions of what was said during this meeting are somewhat at odds, the differences in their accounts are for the most part immaterial. On all accounts, it is clear that the applicant’s back pain and his productivity were discussed at the meeting. Mr. Brazil testified that the applicant attributed a decrease in his productivity to the fact that his back was hurting. However, the applicant did not explain how pain was negatively affecting his productivity, nor did the respondent seek any information in that regard. Mr.Brazil testified, “He didn’t explain and we didn’t ask.”
18After the meeting, the respondent gave the applicant a November 9, 2007 letter in which it noted the respondent’s understanding that the applicant still experienced some discomfort from time to time, and requested an up-to-date FAF setting out the applicant’s work restrictions.
19The applicant provided the respondent with an FAF dated November 15, 2007 which indicated that applicant had recurrent back pain associated with a herniated disc. The FAF indicated that the applicant required modified duties and set out the applicant‘s specific work restrictions in terms of standing, sitting, lifting, etc..
20Mr. Brazil testified that the restrictions on the November 2007 FAF were basically the same as those which had been in place since the applicant’s return to work in May 2007. However, the November 2007 FAF indicated that the applicant’s expected full recovery date was “not known”, whereas the May 2007 FAF had indicated that the applicant was expected to make a full recovery with limitations in place for a matter of weeks.
January 10, 2008 meeting
21The applicant testified that there was a further meeting between him and management on January 10, 2008, his last day of work with the respondent. He testified he was called to the office where he met with his supervisor, Mr. Brazil, and Ms. De Rosa. He testified that during the meeting he explained that he was continuing to have back problems and that it was negatively affecting his productivity. The applicant testified that management told him that they needed “100 percent” from him and they were not getting it. The applicant testified that he explained that because of his back pain he could sometimes only give them “60 or 70 percent”. He testified that they replied that they could not keep him at work if he could not give 100 percent, and told the applicant to change his clothes and go home. The applicant testified that he told the respondent that he could do his job, and none of the other workers ever waited on him, but that was “not enough” for them. The applicant testified that the respondent also said that it would contact “the insurance company” to come in and look at the work the applicant was doing to see if it was appropriate for him.
22Mr. Brazil also testified that he, Ms. De Rosa, the applicant’s supervisor and the applicant met on January 10, 2008. He testified that, during the meeting, the applicant once again attributed his decreased productivity to his back pain. Mr. Brazil confirmed the applicant’s evidence that “he had days” where was doing 60 or 70 percent. He also acknowledged that during the meeting he probably referred to the need for employees “to give their best, to be 100 percent” but testified that he made his comment in the context of talking about “trying to find work where he could do better either through modified work or a different type of work.” He testified that he told the applicant at the January 10, 2008 meeting, “We are going to try to get the insurance company back to look at the work you are doing and to make work recommendations about what you should be doing considering [your] limitations.”
23The respondent acknowledged at the hearing that the applicant himself thought that he was doing fine at work and that he never suggested that he was incapable of doing his job. On the contrary, Mr. Brazil testified that he was the one who decided on January 10, 2008 not to permit the applicant to continue to work until the suitability of the available work could be assessed and modifications suggested. He testified that he made this decision because he was concerned that the work the applicant was doing was causing or exacerbating his back pain.
24Mr. Brazil testified that the applicant’s car insurance company had helped the respondent to bring the applicant back to work successfully after the applicant’s car accident in 2003. Mr. Brazil testified that he believed it was appropriate to ask the applicant’s car insurance company to come back again to assess the applicant’s work because the applicant told him during the January 10, 2008 meeting that he had not settled his motor vehicle accident claim with the insurer and that it was still open. Mr. Joseph and Ms. De Rosa confirmed this evidence. Mr. Brazil also testified that he asked the applicant to get another up-to-date FAF during the January 10, 2008 meeting.
25The respondent’s January 10, 2008 letter to the applicant is consistent with Mr Brazil’s evidence about the way things were left on January 10, 2008. It reads, in relevant part:
This is in reference to the lower back injury you sustained in a motor vehicle accident in June 2003.
On November 15, 2007, your doctor completed a Functional Abilities Form which indicated that you were to return to modified duties. After speaking with you today, you have indicated that your lower back is still hurting you. We are very concerned and therefore enclosing (sic) another Functional Abilities Form for you to take to your doctor so that we may have an up date on your condition. In the meantime we will be contacting your insurance company to advise them that you have not fully recovered from your accident in 2003. Once we receive the completed form, we will ask the insurance company to come in and re-evaluate the modified duty work that we have available for you, to ensure that it is suitable for your restrictions.
26As directed by his employer at the January 10, 2008 meeting, the applicant changed out of his uniform and left work. All three of the respondent’s witnesses testified that the applicant did not “protest” the respondent’s planned course of action during the January 10, 2008 meeting. Nor, however, was the applicant asked whether he agreed with the respondent’s plan or invited to discuss other options.
After the applicant was sent home
27The day after he was sent home, the applicant brought the respondent a further FAF, dated January 11, 2008.
28The January 2008 FAF sets out the applicant’s various physical restrictions associated with recurrent lower back pain. It also states that the applicant “…can work while on medication. Modified duties only.” In response to the question whether complete recovery is expected, the answer is “no”.
29Mr. Brazil reviewed the FAF. He testified that, according to the FAF, the job the applicant had been doing immediately prior to January 10, 2008 was within his physical restrictions. He also testified that it was significant to him that the January 2008 FAF indicated that the applicant was no longer expected to make a full recovery. He testified that, based on that, he “concluded that [the applicant’s] condition [was] getting worse and the possibility existed that maybe it was the work that we had for him that was the problem.” He concluded that he had been right to send the applicant home and carried on with his plan to hold the applicant out of service until the suitability of the available work was assessed. He did not consider returning the applicant to work in accordance with the January 2008 FAF.
30Mr. Brazil assigned Ms. De Rosa the task of contacting the applicant’s car insurance company with a view to having it assess the suitability of the applicant’s work, and she kept him apprised along the way of how things were progressing.
31On January 11, 2008, Ms De Rosa wrote to the consultant who, on behalf of the applicant’s car insurance company, had set up a graduated return to work program for the applicant following his 2003 car accident. The letter advised that the applicant “has continued to experience discomfort and pain in his back to this day” and also stated:
On both November 15th and January 11, 2008 he went to see his doctor and had a Functional Abilities form completed, a copy of each is enclosed. His doctor is recommending modified duty and has indicated that the estimated duration of his limitations is unknown.
As his employer, we wish to accommodate Timothy but we are not in a position to determine whether or not the modified work he is doing is suitable for him and we would like to have the insurance company involved in assessing his limitations and the modified work that is available. We are concerned about his situation and have sent Timothy home until this is addressed.
32By letter dated January 14, 2008, which was copied to the respondent, the consultant passed the respondent’s request on to the applicant’s car insurance company since the consultant herself was no longer retained.
33Ms. De Rosa testified that she spoke to the applicant’s car insurance company only twice, on February 15, 2008 and on May 21, 2008. However, Ms. De Rosa’s typed notes of the conversations with the insurance company representative also refer to a February 7, 2008 conversation in which the insurer advised the respondent that “he [the applicant] had an Income Benefits Clam. It may be past the point to do anything further. Timothy never disputed stoppage of benefits. She [the insurance company representative] can’t see very much coming from this situation. Needs to review file, will call me back.”
34On February 15, 2008, Ms. De Rosa had a further telephone conversation with the insurance company representative in which she was told that the applicant had “no more claim with insurance, it’s complete” and that “any potential to claim is over”. Ms. De Rosa testified that she understood this to mean that the applicant was unable to claim against the insurance company and that the insurance company was “reiterating that it is over.” Ms. De Rosa testified that the insurance company representative also told her during their February 15, 2008 conversation that she was sending the applicant a “treatment plan form” and that she would be checking with a legal advisor on the applicant’s claim.
35Ms. De Rosa made a couple of further attempts to contact the applicant’s insurer in March, to no avail.
36The applicant contacted Ms. De Rosa on May 12, 2008 to verify the claim number for the claim he had made against his car insurance company in 2003. The applicant wished to have such information because he was attempting to contact his car insurance company himself. Ms. De Rosa gave the applicant the claim number and also provided him with contact information for the insurance company representative she had been dealing with.
37Ms. De Rosa testified that she last spoke with the insurance company representative on May 21, 2008. According to Ms. De Rosa’s evidence, in that conversation, the insurance company representative confirmed that the applicant’s file was closed and he could not claim anything further as a result of his 2003 car accident.
38Ms. De Rosa testified that also on or about May 20, 2008, she sent out Long Term Disability (“LTD”) application forms to the applicant. Ms. De Rosa testified that it was standard practice for the respondent to send LTD applications to employees who had been off work for 119 days and that she followed this practice in the applicant's case “completely automatically”. Ms. De Rosa testified that the applicant sought her assistance in completing the employee portion of the LTD application some time in July 2008.
39All of the respondent witnesses testified that the respondent had work assessments conducted by independent companies for other employees in the past. However, according to Ms. De Rosa, this option was not considered or explored in the applicant’s case because, despite the May 21, 2008 telephone conversation with the insurance company representative, she expected that the applicant’s car insurance company “was still going to try to assist” the respondent. Even at the time of the hearing, she testified she was still “waiting for [the applicant’s insurer] to come back with some information on what course [the respondent] had to take or what course they were taking.”
40Ms. De Rosa’s evidence in this regard was contradicted by Mr. Brazil who acknowledged that the respondent found out in May 2008 that the applicant’s car insurer was not going to assist with a work assessment because the applicant had settled his insurance claim.
41Other than attempting to have a work assessment conducted by the applicant’s automobile insurance carrier, the respondent took no other steps to have the suitability of the applicant’s work assessed.
42Despite this lack of activity on the respondent’s part, Ms. De Rosa testified that even as of the hearing in this matter, the evaluation of the applicant’s work was still pending and that the applicant could not return to work until such evaluation was done.
43Mr. Brazil testified that no one from the respondent ever contacted the applicant about his return to work after January 10, 2008. Ms. De Rosa testified that she never spoke to the applicant about the respondent’s attempt to have his work assessed, nor could she recall anyone at the company expressing concern over the length of time the applicant was held out of service pending the completion of a work assessment, which was never arranged.
ANALYSIS AND DECISION
Did the applicant have a disability within the meaning of the Code
44The issue in this case is whether, by sending him home and holding him out of service on and after January 10, 2008, the respondent discriminated against the applicant on the basis of disability, contrary to the Code.
45The medical evidence presented in this case establishes that the applicant sustained an injury to his lower back in 2003, and a re-injury on April 30, 2007. He had ongoing physical restrictions as a result of that injury as set out in three FAF’s dated May 2007, November 2007, and January 2008. The applicant also testified that he had ongoing back pain following the April 30, 2007 re-injury to his back and that it had a negative impact on his ability to work. The respondent witnesses confirmed their knowledge of and concern for the applicant’s ongoing back pain and its impact on his ability to work, which was also noted in the respondent’s November 2007 and January 10, 2008 letters to the applicant, and in its January 11, 2008 letter to the car insurance company consultant.
46Accordingly, I find that the applicant had a degree of “physical disability” caused by the injury to his lower back (“bodily injury”) within the meaning of s. 10(1) of the Code.
Discrimination on the basis of disability
Termination of employment
47At the hearing of this matter, the applicant was very intent on characterizing the respondent’s decision to send him home on January 10, 2008 as a decision to terminate his employment. He argued that the respondent’s decision to send him home pending a work assessment was all a “ruse” and that the respondent’s intention all along was to rid itself of a disabled employee.
48The respondent just as vigorously disputes that it ever terminated the applicant’s employment and maintains that the applicant continues to be one of its employees to this date.
49Having considered all of the evidence, it is quite clear to me that the respondent did not terminate the applicant’s employment on January 10, 2008. Before sending the applicant home on January 10, 2008, the respondent gave him a letter stating that it wished to ensure that the work the respondent had available for the applicant was suitable for him. This is entirely inconsistent with a finding that the respondent terminated the applicant’s employment on January 10, 2008. Then, on January 11, 2008, the applicant brought the respondent updated information about his functional abilities. He would have had no reason to do that if he believed that his employment had been terminated the day before.
50After January 2008, there was ongoing contact between the applicant and the respondent about various issues related to the applicant’s employment including: a May 2008 request by the applicant that the respondent complete the “employer” portion of a credit-card related application; correspondence in May 2008 and a follow-up meeting in July 2008 regarding the applicant’s eligibility and application for LTD benefits from the employer’s insurer; and correspondence about the discontinuation of the applicant’s “employee” health and dental benefits in December 2008.
51In addition, in late July 2008, when Ms. De Rosa heard from the WSIB and the LTD insurer that the applicant had told them that his employment had been terminated by the respondent, she contacted the applicant and told him that that was not the case.
52All of the above-noted communications and interactions are at odds with the suggestion that the respondent terminated the applicant’s employment on January 10, 2008. Accordingly, I find that the respondent did not terminate the applicant’s employment and that the applicant continues to be an employee of the respondent to the present date.
53However, this finding does not end the matter. I must still determine whether, as the applicant alleges, the respondent’s actions in sending him home and holding him out of service from January 10, 2008 onwards was discriminatory and a breach of the respondent’s duty under the Code to accommodate the applicant’s disability-related needs to the point of undue hardship.
Scope of the Application
54At the hearing, the respondent raised an objection that the applicant was improperly attempting to expand the scope of the Application to include allegations that the respondent had breached its duty to accommodate the applicant. Ultimately, however, there was an opportunity to call evidence, cross-examine and make submissions on all of the potential issues, and the objection was not pursued. In any event, insofar as the Application contained allegations that the respondent did not try to meet the applicant’s disability-related needs and that he could have performed the essential duties of his job if it had, I am satisfied that the duty to accommodate issue was raised on the face of the Application and is properly before me. Moreover, whatever legal theory is advanced by the applicant – either that his employment was terminated or that the respondent breached its duty to accommodate him – the subject-matter of the Application is the same, namely whether the respondent infringed the applicant’s rights when it sent him home on January 10, 2008.
Duty to Accommodate
55In this case, and although there are somewhat different perspectives about what transpired, it is common ground between the parties that the respondent sent the applicant home on January 10, 2008 and held him out of service from that date onwards because of the applicant’s back pain.
56For his part, and although he also suggested during cross-examination that the respondent fired him because he complained about the (allegedly discriminatory) amount he had received in profit-sharing, the thrust of the applicant’s evidence was that the respondent sent him home because he could not give “100 percent” because of his back pain.
57The respondent acknowledged that its decision not to let the applicant continue doing his usual job was based on the applicant’s disability. Mr. Brazil testified that he concluded that because the applicant was experiencing back pain while working, that the applicant’s work was possibly exacerbating his back problem. He testified that he decided to send the applicant home out of his concern for the applicant’s health and safety and so that the respondent could revisit the work the applicant was doing with a view to getting him into work where he would be more comfortable. Mr. Brazil’s evidence was confirmed in the respondent’s January 10, 2008 letter to the applicant, its January 11, 2008 letter to the applicant’s automobile insurer, Ms. De Rosa’s typed notes of the January 10, 2008 meeting, and her July 2008 correspondence to the LTD insurer stating that the respondent sent the applicant home because of “concern about his back” and because it needed to determine whether the modified work he was doing was suitable or whether it would further aggravate his condition.
58On either the applicant’s or respondent’s evidence, the applicant’s disability was clearly the basis for the respondent’s decision not to permit the applicant to continue working after January 10, 2008, a decision which had an obvious negative impact on the applicant who was not permitted to work and earn income. Accordingly, I find that the respondent’s decision to hold the applicant out of service from January 10, 2008 onwards constituted disadvantageous treatment of the applicant on the basis of his disability.
59During final submissions, the respondent referred a number of times to the fact that it did not have to accept substandard productivity from the applicant, apparently seeking to justify its decision to send the applicant home on that basis. This submission was not supported by the respondent’s own evidence, however. As noted above, the respondent witnesses all testified that the applicant was sent home out of concern for his welfare and Mr. Brazil specifically rejected the suggestion that the respondent sent the applicant home in an attempt to protect the respondent’s interests, in the applicant’s productivity or otherwise. When asked during the hearing whether the decision to send the applicant home was justified because of low productivity, the respondent candidly admitted that “it never got there.” Mr. Brazil also testified that the applicant’s productivity on January 10, 2008 was not a priority for the respondent but merely an indication that there was a problem to be investigated.
60The respondent also invites me to find that the applicant was being appropriately accommodated by the respondent but was deliberately refusing to work to his full potential, and that the respondent’s decision to send him home on January 10, 2008 was justified on that basis. Again, this argument is not supported by the evidence. The respondent’s witnesses never suggested that the applicant had done anything culpable to warrant being sent home. Their evidence was entirely to the opposite effect. It falls to me to determine whether what the employer actually did infringed the applicant’s rights under the Code, not to consider other hypothetical scenarios. In any event, I would not be prepared to infer that the applicant was deliberately shirking his job responsibilities and using his back as an excuse simply because the WSIB found that the applicant had returned to his pre-accident state a week after the April 30, 2007 re-injury to his back, or because the LTD insurer “found” that the applicant was capable of performing his usual (modified) job with the respondent after January 10, 2008, as the respondent suggests.
61Nor does the applicant’s failure to expressly object to the respondent’s January 10, 2008 decision to send him home alter the fact that the decision to hold the applicant out of service was the respondent’s decision alone and thus was the respondent’s “treatment” of the applicant. The evidence of all of the respondent witnesses was that the decision to send the applicant home was Mr. Brazil’s. All three respondent witnesses also testified that having the applicant’s car insurance company assist with his return to work was the only option for bringing the applicant back to work. Mr. Joseph confirmed that the applicant was not given a choice at the January 2008 meeting which would have allowed him to continue working.
62Although, as the respondent argued, the applicant does have a duty to cooperate in the accommodation process, I am not persuaded that the applicant was uncooperative simply because he did not protest the respondent’s decision to send him home, particularly when it is clear that whatever he said would not have altered the respondent’s decision. Mr. Brazil testified, “At that point, it was not his decision.” He testified that the respondent had a responsibility not to let the applicant work, whether he wished to or not, if there was a concern that he might injure himself, which the respondent submits was the case here.
63The applicant has met his onus of proving that he was subjected to disadvantageous treatment on the basis of his disability and has therefore made out a prima facie case of discrimination under the Code. It is not open to me, as the respondent argued, to find that the applicant failed to make out a prima facie case because the Application was somehow frivolous or made in bad faith. See Hadley v. J.A.C.S. Cartage, 2010 HRTO 226 and Miller v. London Transit Commission, 2009 HRTO 2071.) However, my finding that the applicant has made out a prima facie case of discrimination does not end the inquiry.
64The respondent argues that it had a legitimate concern that the applicant’s work was causing or exacerbating the applicant’s back problem and that it was not safe to allow the applicant to continue to do his job after January 10, 2008, at least until it could be confirmed that the applicant’s job was in fact suitable for him. In effect, the respondent argues that the applicant was incapable of (safely) performing the essential duties of his job from January 10, 2008 onwards.
65If the respondent were to prevail on this point, it would successfully avoid a finding that it infringed the applicant’s rights under the Code. This is because s. 17(1) of the Code specifies that, if an individual with a disability is “incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a disability,” then disadvantageous treatment is not an infringement of that person’s rights. The Tribunal cannot find that the applicant was incapable of performing the essential duties, however, unless it is satisfied that the applicant’s needs could not be accommodated by the respondent without undue hardship (s. 17(2)).
66The duty to accommodate is about removing those obstacles to participation in the workforce which employees may face because of disability. Once an employer becomes or is made aware that an employee is facing obstacles to full participation in the workplace because of a disability, the employer has a positive obligation to accommodate the employee up to the point of undue hardship with a view to removing such obstacles and allowing the employee to participate in the workplace as fully as possible.
67The duty to accommodate has procedural and substantive components. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship.
68In this case, as soon as the respondent decided that permitting the applicant to return to his usual job duties posed an unacceptable risk to the applicant’s health and/or safety, its duty to accommodate the applicant under the Code was triggered. At that point, the respondent had a procedural duty to investigate whether the applicant could be accommodated and, if so, a substantive duty to accommodate him.
69In coming to this conclusion, I must reject the respondent’s argument that its duty to accommodate the applicant was never triggered because the applicant never identified any additional needs beyond those the respondent was already accommodating by giving the applicant a job within his restrictions. The applicant does not complain that there was anything wrong with the job he was doing prior to January 10, 2008 or that it was somehow inappropriate in light of his disability-related needs. On the contrary, his claim is based on the respondent’s refusal to permit him to continue doing precisely that job after January 10, 2008. Moreover, the applicant did provide the respondent with medical documentation setting out his disability-related needs after he was sent home, on January 11, 2008, but Mr. Brazil’s evidence established that the respondent did not accommodate those needs or even consider doing so.
70In any event, the respondent appears to have been aware of its duty to accommodate the applicant at the relevant time. Its January 11, 2008 letter to the applicant’s car insurer expressly refers to the respondent’s desire to “accommodate” the applicant by providing him with modified work within his restrictions. Despite this apparent awareness, the manner in which the respondent addressed the applicant’s need for accommodation fell far short of what was required under the Code.
71Once the respondent became concerned about the impact of the applicant’s back pain on his ability to do his usual job, it was required to take reasonable steps to determine whether its concern was well-founded; and to consider whether there was work which might safely be assigned to the applicant while the respondent investigated its concerns. I find that the respondent did not do this.
72In the first place, it is highly questionable whether it was ever reasonable for the respondent to focus on the applicant’s car insurance company as a likely source of the work assessment. The applicant’s car insurer assisted in setting up a graduated return to work for the applicant after he had a car accident in 2003. That, however, was not a reasonable basis upon which to assume that the insurer would be willing conduct a work assessment in 2008, more than four years later. Mr. Brazil attempted to blame the applicant for sending the respondent on a “wild goose chase” with his car insurer by telling the respondent on January 10, 2008 that his claim against the insurer was still open, even though it was not. In my view, however, the applicant’s statement that he had not settled his claim was not a legitimate basis for the respondent to assume that the car insurer would conduct the necessary job assessment.
73Even if it was reasonable for the respondent to start by making inquiries of the applicant’s automobile insurer, it should have been quickly apparent to the respondent that it ought to pursue other options. Mr. Brazil testified that it took the respondent until May 2008 (approximately four months) to find out that the applicant had in fact settled his claim against the car insurer. He testified that if he had known that the applicant had settled with his car insurance company, the respondent would not have pursued that avenue, and would have instead considered hiring its own ergonomist to assess the applicant’s work. However, it is clear on the evidence that the respondent found out in February 2008 that the applicant’s potential to claim against his car insurer was over. On February 7, 2008, the insurance company representative told the respondent that she could not see very much coming from the situation, and then, on February 15, 2008, that the applicant had “no more claim with insurance” and that “any potential to claim [was] over.” In light of this, I cannot accept Mr. Brazil’s evidence that the respondent did not find out until May 2008 that the applicant had settled with his car insurer and that prior to that time, it was “very encouraging.” In May, the insurer did nothing more than confirm what it had told the respondent earlier - the applicant could not claim anything further from the insurance company as a result of his 2003 car accident.
74Nor am I persuaded that the single-mindedness with which the respondent pursued the applicant’s car insurer as the sole potential source of a work assessment was warranted based on what the car insurer said and did. The applicant’s car insurer told the respondent that it would “review the file” (on February 7, 2008) and that it would speak to its own legal advisors and send the applicant a treatment plan form (on February 15, 2008). That, in my view, was not a reasonable basis upon which to think that the applicant’s car insurer would likely conduct a work assessment for the respondent. Ms. De Rosa testified that she did not even know what a “treatment plan form” was and none of the respondent witnesses provided a reasonable explanation for why they believed that a work assessment would be forthcoming from the applicant’s car insurer, particularly after February 15, 2008.
75Even if the applicant’s car insurer had somehow led the respondent to believe that it might assist in assessing the suitability of the applicant’s work, I would still find that the respondent breached its procedural duty to accommodate the applicant. The thrust of the respondent’s evidence and submissions was that it was entitled to pursue the applicant’s car insurer as the only potential source of a work assessment, for however long it took, until that avenue was definitely closed to it. However, that is not what the duty to accommodate required in the circumstances. On the contrary, the duty to accommodate the applicant obliged the respondent to take the necessary steps to have its concerns about the applicant’s ability to work addressed in a reasonably prompt manner. If the respondent wished to have its concerns addressed through some kind of work assessment, it ought to have had one done quickly. The respondent had obtained work assessments privately for other employees in the past. The respondent put forward no reason why it could not have had an assessment of the applicant’s work done by another company when its earliest attempts to have it done by the applicant’s car insurer did not materialize.
76Mr Brazil testified that the respondent did not continue to make efforts to have the applicant’s work assessed or to otherwise accommodate him after learning that the applicant had applied for LTD benefits and was therefore holding himself out as totally disabled from working. He testified that the respondent found out that the applicant had applied for LTD benefits when the applicant came in for help filling out his portion of the application and that this was prior to the May 21, 2008 telephone conversation with the applicant’s insurer. The evidence did not support this position, however. Ms. De Rosa was identified by Mr. Brazil as the witness with direct knowledge of this matter and she testified that she did not send out the LTD application form to the applicant until around May 20, 2008 and that the applicant did not come in for help filling out his portion of the LTD application until late July 2008. Based on that evidence, and even if I were to accept that the respondent had no ongoing duty to accommodate the applicant after it found out that he had applied for LTD benefits, there was still a two-month period after May 21, 2008 when the respondent took no steps to accommodate the applicant and has no explanation for its failure in this regard.
77In any event, the mere fact that the applicant filled out and submitted an LTD application form which the respondent itself had sent him, in the circumstances in which he found himself, was not sufficient, in my view, to extinguish the respondent’s continuing duty to the applicant. I am similarly not persuaded that the applicant’s attempt to obtain Loss of Earnings benefits from the WSIB in July 2008 meant that the respondent no longer had an ongoing duty to accommodate the applicant. The procedural aspect of the duty to accommodate required the respondent to communicate with the applicant regarding its ongoing efforts to return him to work. At the very least, the respondent ought to have communicated with the applicant about the impact of his LTD application (or WSIB claim) on the respondent’s efforts to return him to work. The respondent’s evidence was that there were no communications with the applicant in that regard.
78Finally, even if the respondent had a valid concern about the applicant’s ability to safely perform his regular duties, the duty to accommodate required the respondent to consider whether there were other options which might have allowed the applicant to continue to work before sending him home on January 10, 2008. The respondent’s evidence was that it did not consider any options other than holding the applicant out of service, without pay, for an indefinite period of time pending a work assessment. There is no evidence that the respondent explored any other possible accommodations with the applicant or even talked to the applicant about his needs. Mr. Brazil testified that the respondent had other work available which it might have been able to assign the applicant if it turned out, after a work assessment, that he could not perform his usual job duties because of his back problems. The respondent’s duty to accommodate the applicant required it to consider assigning such duties to the applicant before sending him home, not only after the work assessment had been completed. The respondent also ought to have considered whether the applicant could have continued doing much or part of his own job. In the circumstances, I find that the respondent breached its duty to accommodate the applicant by failing to consider whether it might have been able to assign the applicant other duties, while it went about ascertaining whether the applicant could safely perform his usual job.
CONCLUSION
79The respondent did not terminate the applicant’s employment based on his disability when it sent him home on January 10, 2008. However, in all of the circumstances, I find that the respondent breached its duty to accommodate the applicant’s disability-related needs to the point of undue hardship, and I therefore cannot find that the applicant was incapable of doing the essential duties of his job on or after January 10, 2008. The respondent violated the applicant’s right to equal treatment on the basis of disability when it sent him home and held him out of service indefinitely without taking reasonable steps to address its concern about the applicant’s ability to do his usual job, or considering whether there was work which might safely be assigned to the applicant while the respondent investigated its concerns.
REMEDY
80Having found that the respondent infringed the applicant’s right under the Code to be free from discrimination on the basis of disability, I turn to the question of remedy.
Statutory Provisions
81Section 45.2 of the Code establishes the Tribunal’s remedial authority in this case:
s.45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
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.
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.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) May direct a person to do anything with respect to future practices; and
(b) May be made even if no order under that paragraph was requested.
82The Tribunal has broad discretion to award remedies which it considers appropriate in the circumstances and which advance the remedial purposes of the Code. See Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 80.
Request to be returned to work
83By way of remedy, the applicant seeks an order that the respondent return him to the accommodated position he held with the respondent on January 10, 2008 or to another available position, and a further order that, upon his return to work, the applicant not be supervised by his former supervisor, Mr. Joseph.
84As the respondent has been at pains to point out, the applicant remains an employee with all of the rights of an employee, including the right to have his disability-related needs accommodated by the respondent, up to the point of undue hardship. At this stage, there is an outstanding question about what kind of work, if any, the applicant can perform, and, depending on his functional abilities, what kinds of accommodations might be required.
85Although the respondent asked that the applicant be required to submit to an independent medical examination, I see no basis upon which to order the applicant to do so at this time. In the normal course, an employee who seeks to be accommodated may provide his employer medical documentation from his own doctor certifying his fitness to return to work and outlining his functional abilities and physical limitations. I find it appropriate to require the applicant to provide up-to-date medical documentation to the respondent regarding his functional abilities if he wishes to return to work with the respondent. In this regard, I direct the respondent to provide the applicant with a Functional Abilities Form which he can have filled out by his doctor. However, this does not prevent the respondent from requesting additional medical documentation which it legitimately requires regarding the applicant’s ability to work. In the event that the applicant is willing to undergo an independent medical examination at the further request of the respondent, he may also certainly agree to that.
86The respondent is directed to contact the applicant within seven (7) days of the date of this Decision with a view to initiating the accommodation process, including seeking medical documentation which the respondent legitimately requires. Upon receipt of such information, the respondent is directed to promptly investigate and implement appropriate accommodation measures necessary to return the applicant to the workplace in an expeditious manner up to the point of undue hardship. I shall remain seized with respect to the implementation of this aspect of my remedial Orders.
87With respect to the applicant’s request that he not be supervised by Mr. Joseph upon his return to work, I decline to make such an order. The applicant himself argues that he can return to the workplace because there has been no irreparable damage to the employment relationship. In support of this proposition, he relies on Mr. Joseph’s testimony as evidence that there were no “intense personal clashes” between the parties. I have no basis upon which to conclude that the requested Order would be appropriate to ensure future compliance with the Code in such circumstances.
88The applicant also makes a very novel request that, in addition to returning him to work, the Tribunal somehow empower the “Occupational Health and Safety Committee” in his workplace to determine in future whether the applicant’s rights under the Code have been breached and to remedy any such breach. I agree with the respondent that there is no basis upon which I might even contemplate making such an Order. The Tribunal does not have jurisdiction to extend its own adjudicative and remedial powers under the Code to people in the applicant’s workplace.
Alternative to return to work
89The applicant requests that the Tribunal grant him the option not to return to work with the respondent, in which case, he asks the Tribunal to order the respondent to pay him a lump-sum amount equal to one year’s salary as monetary compensation to the applicant for the loss of his job. If he elects not to return to work, the applicant also asks that the Tribunal direct the respondent to provide him a positive letter of reference.
90I have found that the applicant’s employment was not terminated by the respondent and so I agree with the respondent’s submissions that the applicant’s remedial request in this regard is tantamount to a request that he be permitted to quit with a year’s pay. I decline to make this Order. As the applicant himself argues, there is no evidence that the relationship between the parties has been irreparably damaged such that it would be unreasonable to expect the applicant to return to work with the respondent. There is no evidentiary or other basis upon which to find that such an Order is warranted in order to make the applicant whole for the past infringement of his rights, or in order to ensure future compliance with the Code.
Monetary compensation
91As with other individual remedies, the purpose of ordering that monetary compensation be paid to an applicant is to attempt to restore the applicant to the position she/he would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination, and not to punish the perpetrator. When it comes time to determine a just and appropriate remedy, the focus is on the experience of the applicant and not on the party responsible for infringing his or her rights. See Hughes v. 1308581 Ontario, 2009 HRTO 341 at para. 87. With that in mind, I now turn to the applicant’s requests for monetary compensation.
Loss of wages, benefits, bonuses
92The applicant seeks monetary compensation for all of his lost wages from January 10, 2008 to present, less applicable statutory deductions and any other income received by him during the period, as well as compensation for lost benefits and any expenses incurred by him since January 10, 2008. The applicant also seeks compensation for any bonuses he missed since January 10, 2008, in an amount equal to the average given to other employees of the respondent, as well as the amount required to bridge the gap between the profit-sharing bonus the applicant received some time prior to January 10, 2008 and the average bonus paid out at that time.
93I have found that the applicant was improperly put out of work and held out of work by the respondent, who then did very little to try to accommodate the applicant and return him to work. The applicant is entitled to compensation for the wages he lost because of the respondent’s actions.
94Having carefully considered the matter, I find it appropriate to order the respondent to pay the applicant an amount equal to the wages he would have earned had he been working for the period from January 10, 2008 to July 25, 2008 less statutorily required deductions and/or remittances, and less any income earned by the applicant in other jobs in respect of the period from January 11, 2008 to July 25, 2008, unless he held such other employment while still actively employed by the respondent.
95Mr. Brazil acknowledged that, according to the January 11, 2008 FAF, the work the applicant was doing at the time he was sent home by the respondent was within the applicant’s restrictions. There was no medical evidence to the contrary. Contrary to the respondent’s submission, I do not find the applicant’s doctor’s statements that the applicant was a good candidate for retraining to be a sufficient basis upon which to conclude that the applicant was incapable of doing his usual job with the respondent. A May 12, 2008 report from the applicant’s doctor indicates that the applicant’s situation was more or less the same at that time. In that report, the applicant’s doctor states that the applicant “managed well” at his modified work with the respondent and acknowledges and tacitly approves of the applicant having done such work “even when he was in pain”. This letter lends further support to my conclusion that the applicant was capable of doing his regular job at the time he was sent home by the respondent and there is nothing in the letter to indicate that that situation had changed by May 2008.
96By letter dated July 25, 2008, however, the respondent’s LTD insurer advised the applicant that his application for LTD benefits had been declined on the basis that the applicant was not totally disabled. The applicant testified that “when the LTD insurer denied [his] claim for benefits”, he “very much” disagreed with its assessment that he was not totally disabled. The respondent argues that, based on the applicant’s own evidence, it would be inappropriate for me to award the applicant monetary compensation for lost wages for a period in which the applicant himself indicated he was totally disabled from working. I agree. Although the applicant’s evidence was that he “was working fine until [he] was fired,” referring to January 10, 2008, certainly by the time the LTD insurer denied his claim for benefits, that is, July 25, 2008, he testified that he was totally disabled from working. I do not see how the Tribunal can sustain the applicant’s claim for lost wages beyond the point when the applicant himself testified that he was totally disabled.
97Within 30 days of the date of this Decision, the respondent is directed to pay the applicant a lump sum equal to the wages he would have earned from January 11, 2008 to July 25, 2008 if he had continued working with the respondent, less statutorily required deductions and/or remittances, and less any income earned by the applicant in other jobs in respect of the period from January 11, 2008 to July 25, 2008, unless he held such other employment while still actively employed by the respondent. I shall remain seized with respect to the implementation of this aspect of my remedial Orders.
98I decline to grant the applicant’s request for bonuses. The applicant led insufficient evidence about the respondent’s practice around bonuses for me to be able to determine that, but for the respondent’s actions, the applicant would have received any bonuses during the period he was out of work, or more precisely, during the period from January 11, 2008 to July 25, 2008, which is the period in respect of which I have found the applicant is entitled to lost employment income. I also decline to order any remedy in respect of the bonus the applicant received from the respondent before January 10, 2008 because the applicant did not establish liability in respect of that allegation under the Code.
99Having found that the applicant is entitled to compensation for lost wages as if he had been working for the respondent up to July 25, 2008, it follows that the applicant ought to be put in the same position he would have been in had his health and dental benefit coverage with the respondent remained in place for one year from July 25, 2008 (instead of January 10, 2008). I therefore find it appropriate to order the respondent, within 60 days of the date of this Decision, to make the applicant whole in respect of any expenses incurred by him up to July 25, 2009, which would have been covered under the applicable employee benefit plan, if the applicant’s coverage under such plan had remained in place. The applicant is directed to provide the respondent with receipts or other documentation establishing that he incurred such expenses as soon as possible. I shall remain seized with respect to the implementation of this aspect of my remedial Orders.
Damages for injury to dignity, feelings and self-respect and for infringement of the right to be free from discrimination
100The applicant in this case seeks the sum of $10,000 as monetary compensation for loss of self-esteem, embarrassment, loss of dignity, and emotional distress arising from the manner in which he was treated by the respondent, contrary to his rights under the Code. This request for monetary compensation is made pursuant to s.45.2(1) of the Code.
101When discrimination is found to have occurred, an award of monetary compensation under s.45.2(1) of the Code recognizes that the applicant’s right to be free from discrimination has intrinsic value and compensates the applicant for the loss of that right as well as intangible losses due to injury to dignity, feelings and self-respect.
102In making an award of monetary compensation to remedy a breach of the Code, the Tribunal should consider the following factors: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness, frequency and duration of the offensive treatment. See Sanford v. Koop, 2005 HRTO 53; ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.); and Arunachalam v. Best Buy Canada, 2010 HRTO 1880.
103The loss of the right to be free from discrimination and the often corresponding injury to dignity, feelings and self-respect are intangible losses and difficult to quantify. See McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 at para. 52. Although it may be inherently difficult to arrive at an amount of monetary compensation which will compensate the complainant for the loss of his right to be free from discrimination and the injury to his dignity, feelings and self-respect, that is nonetheless my task.
104The applicant testified that he had five young sons to take care of at the time the respondent sent him home and held him out of service and that the financial effect of not being permitted to work was very hard on him. He testified that as a result of the respondent’s actions, he was unable to pay the bills and rent or to provide his children with the things they needed. The applicant testified that two of his children and their mother even ended up in a shelter because he did not have the finances to support them. The applicant testified he felt “so depressed” about that, especially because his children told him that they did not like it at the shelter. The applicant also testified that he was taken to court because of his inability to meet all of his child support obligations. The applicant also testified that his physical condition deteriorated after he was sent home by the respondent because he was not able to pay for therapy for his back without a job or any other source of income. The applicant also testified that he “loved to work” and that he felt “so bad” every time he thought about what happened.
105Having considered the matter carefully, I find $10,000 to be an appropriate amount to award the applicant as monetary compensation for the loss of his right to be free from discrimination and the injury to his dignity, feelings and self-respect. The respondent’s actions had serious consequences for the applicant. Aside from the financial hardship and the toll that took on him, I have no trouble accepting that that the respondent’s actions in sending him home on January 10, 2008 because of his disability caused the applicant a great deal of emotional upset and turmoil. It is also a fair conclusion from the applicant’s evidence that his inability to provide for his children injured not only his feelings, but also his dignity as a provider for his family.
106Another factor which I have considered in arriving at the above amount is the duration of the infringement of the applicant’s rights under the Code. The respondent violated the applicant’s rights not only when it sent him home on January 10, 2008, but on an ongoing basis after that date by failing to accommodate him to the point of undue hardship. The applicant sat out of work for many months while the respondent failed to take the necessary steps to accommodate him.
Interest
107The applicant also requests, and I find it appropriate to award, prejudgment and postjudgment interest on the amounts of monetary compensation I have ordered above, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, and in accordance with Tribunal practice.
Apology
108The applicant also seeks an Order from the Tribunal directing that Mr. Joseph, Mr. Brazil and the corporate respondent apologize to the applicant for infringing his rights under the Code.
109As the Tribunal stated in Abdallah v. Thames Valley District School Board, 2008 HRTO 230:
Historically, the jurisprudence of this Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns (See also Turnbull v. Famous Players, 2001 CanLII 26228 (ON H.R.T.), (2001) 40 C.H.R.R. 333 at para. 264, and the cases cited therein).
110Consistent with the Tribunal’s jurisprudence on this point, I am not persuaded that it would be appropriate or effective to order the respondent itself or any individuals to apologize to the applicant. Moreover, I agree with the respondent’s submission that the Tribunal likely does not even have jurisdiction to make orders against Mr. Brazil and Mr. Joseph personally, given that they are not parties to the proceeding.
Whether Decision is to be posted
111The applicant seeks an order that this Decision be posted in a prominent place in the workplace. The applicant did not explain why such an order would be warranted or how it would be an appropriate exercise of the Tribunal’s remedial jurisdiction. I have no reason to believe that posting this Decision in the workplace would either compensate the applicant for the past infringement of his rights or that such a measure is an appropriate manner by which to promote future compliance with the Code. I therefore decline to grant this remedial request.
Training
112The applicant also seeks an Order from the Tribunal that Mr. Brazil and Mr. Joseph be exposed to educational material familiarizing them with their obligations under the Code. At the time of the hearing, the respondent employed approximately 90 employees. It continues to be engaged in activities covered by the Code and has an obligation to be aware of and abide by its responsibilities under the Code. Mr. Joseph testified that he had not been exposed to any information regarding the rights of disabled employees.
113In my view, the respondent would benefit from training on its obligations under the Code. Accordingly, in accordance with the Tribunal’s remedial authority under s. 45.2 of the Code, I order that, within 60 days of the date of this Decision, the respondent retain an expert in human rights to provide the respondent’s managerial staff with training on its obligations under the Code with particular focus on the duty to accommodate employees with disabilities. I further direct the respondent to have its managerial staff complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of this Decision. The respondent should confirm to the applicant’s representative within 75 days of this Decision that it has complied with these Orders regarding training.
ORDER
114The Tribunal orders as follows:
Within seven (7) days of date of this Decision, the respondent is directed to contact the applicant (directly) with a view to initiating the accommodation process, including seeking medical documentation which the respondent legitimately requires in order to determine what accommodations the applicant might require. Upon receipt of such information, the respondent is directed to promptly investigate and implement appropriate accommodation measures necessary to return the applicant to the workplace in an expeditious manner, up to the point of undue hardship. I shall remain seized with respect to the implementation of this aspect of the Tribunal’s remedial Orders.
Within 30 days of the date of this Decision, the respondent will pay the applicant $10,000.00 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect as well as infringement of his inherent right to be free from discrimination on the basis of disability.
Within 30 days of the date of this Decision, the respondent will pay the applicant a lump sum equal to the income he would have earned had he continued to be actively employed by the respondent in respect of the period from January 10, 2008 to July 25, 2008, less statutory deductions and remittances required by law, and less any income earned by the applicant in other jobs in respect of the period from January 11, 2008 to July 25, 2008, unless he held such other employment while still actively employed by the respondent. I shall remain seized with respect to the implementation of this aspect of the Tribunal’s remedial Orders.
Within 60 days of the date of this Decision, the respondent will make the applicant whole in respect of any expenses incurred by him to July 25, 2009 which would have been covered under the applicable employee benefit plan, had the applicant’s coverage under such plan remained in place. I shall remain seized with respect to the implementation of this aspect of the Tribunal’s remedial Orders.
There shall be prejudgment interest on the above amounts at the applicable rate under the Courts of Justice Act, R.S.O. c. C.43, from January 10, 2008 to the date of this Decision;
Post-judgment interest is payable on any amount not paid within 30 or 60 days of the date of this Decision, as the case may be, in accordance with the Courts of Justice Act;
Within 60 days of the date of this Decision, the respondent shall, at its own expense, retain an expert in human rights to provide the respondent’s managerial staff with training on the respondent’s obligations as an employer under the Code with a particular focus on the duty to accommodate employees with disabilities up to the point of undue hardship.
Within 30 days of the date of this Decision, the respondent shall have its managerial staff complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101).
The respondent shall confirm to the applicant’s representative within 75 days of this Decision that it has complied with these Orders regarding training.
Dated at Toronto this 14th day of October, 2010.
”signed by”_____________
Sheri Price
Vice-chair