Michael Royal v. Optilinx Systems Inc., 2010 HRTO 2135

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Royal

Applicant

-and-

Optilinx Systems Inc.

Nick Conforti and Randy Vickers

Respondents

DECISION

Adjudicator: Dale Hewat

Date: October 26, 2010

Citation: 2010 HRTO 2135

Indexed as: Royal v. Optilinx Systems Inc.

Introduction

1This is an Application filed December 29, 2008 under section 53 (3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondents discriminated against him on the ground of disability with respect to employment when they terminated his employment on December 31, 2007 after he was injured at work and filed a claim with the Workplace Safety and Insurance Board (“WSIB”). The applicant alleges that the dismissal violated sections 5(1) and 9 of the Code.

2The respondent Optilinx is a business that provides fibre optics cable contracting to utility companies in the Greater Toronto Area. The respondents claim that the applicant was laid off from his job on December 12, 2007 due to lack of work, and therefore, he was not an employee of Optilinx beyond that date. The respondents acknowledge that the applicant did work a shift on December 19, 2007 when he claims to have suffered an injury on the job-site and that they processed all of the respective WSIB claim materials. While the respondents’ challenged the validity of the applicant’s WSIB claim, they argue that the lay-off occurred prior to the alleged injury and was made based on non-discriminatory reasons. The respondents also urge the Tribunal to consider evidence of the applicant’s poor work performance as an additional reason for the applicant’s lay-off.

3At the hearing, the applicant testified on his own behalf. Mr. Nick Conforti, President of Optilinx Inc, Randy Vickers, Construction Manager, and Dave Underhill, Foreman, testified on behalf of the respondents. Neither party was represented by legal counsel. Following the hearing, the Tribunal received documentation from both parties in support of their respective positions. Based on my review of all of the oral evidence and supporting documents, I was able to reach a decision on this matter solely based on the information produced and the oral testimony given by each of the parties during the hearing.

Decision

4The application is allowed. In this decision, I find that there was discrimination against Mr. Royal when he was dismissed because he filed a WSIB claim related to the workplace injury he suffered on December 19, 2007. This was a violation of the Code, and Mr. Conforti is also liable as the President and owner of Optilinx. I award Mr. Royal $10,000.00 in monetary compensation for injury to dignity, feelings and self-respect together with prejudgment and post judgment interest. I order that Mr. Conforti provide a notice to current Optilinx employees setting out their rights under the Code, and that Optilinx establishes a policy of providing such a notice to new employees. I have reserved my decision with respect to awarding compensation for wage loss because I have determined that more evidence is required from both parties with respect to the wage loss claim.

Credibility

5Much of the testimony surrounding the applicant’s position, terms of employment and lay-off is disputed. In deciding this Application, it was necessary to assess the credibility of each of the witnesses in order to determine which story makes the most reasonable sense in all of the circumstances. Assessing credibility is not simply an exercise of listening to oral testimony of witnesses and observing their demeanour to decide who appears to be the most truthful. Instead, assessing credibility involves the consideration of a variety of factors.

6In Shah v. George Brown College, 2009 HRTO 920, the Tribunal summarizes its approach to assessing credibility at paras 13 and 14 as follows:

One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor 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.

In addition to the factors and approach highlighted in Faryna, corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties, will be relevant considerations in assessing credibility. Also, in determining whether a party as met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference – that the party did not call a particular witness because the witness would not have been supportive to that party’s case.

7Furthermore, other factors the Tribunal has considered in assessing credibility include the internal consistency of a witness’s evidence, inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witness testified (see Cuglari v. Clubine and Brunet 2006 HRTO 7 Can LII).

8Below is a summary of each of the witnesses’ testimony followed by an analysis of their credibility considering the factors outlined in the Tribunal’s case law that I have cited.

The Applicant’s Evidence

9The applicant testified that in early September 2007, he applied for a permanent full-time position of “Mini-Excavator A/Z Driver” with Optilinx using the Service Canada Job Bank website. The applicant claimed that he was hired by Mr. Conforti on September 11, 2007, for a Hydrovac Truck Operator full-time permanent position. As confirmation of his employment status, the applicant produced a letter written by Mr. Conforti, dated September 21, 2007 which states that the applicant was employed by Optilinx as a “full-time” Hydrovac Truck Operator. The applicant also noted that in the original response dated, June 19, 2008, while not agreeing with Mr. Conforti’s statement that the applicant was hired in a temporary position or the notation of landscaping, that the Response none-the-less states that the applicant was hired as a “Vac Operator” including other landscaping duties.

10The applicant also disputes the respondents’ position, marked on his Record of Employment, that he was hired on a temporary seasonal basis to perform landscaping duties, grass seeding and raking and denies performing such duties. The applicant instead testified that during his interview in September 2007, he was told by Mr. Conforti and Mr. Vickers that Optilinx would keep him busy with work even if the Hydrovac Truck, which uses water, could not be used during the cold winter months. The applicant also stated that in early December 2007 Mr. Vickers talked to him about how the utility companies place an embargo on work for the last three weeks of December causing a slow-down in work, but that the applicant was assured that Optilinx would keep him busy. As proof that he was not laid off due to shortage of work, the applicant provided a copy of an advertisement for a Permanent Full-Time Hydrovac Truck Operator that was placed by Optilinx in the Service Canada Job Bank between January 17 and 31, 2008 soon after his employment ended.

11The applicant claims that the first time he was informed that he was laid off occurred on December 31, 2007 in a conversation he had with Mr. Conforti and that the decision to lay him off was directly related to Mr. Conforti’s discovery that the applicant had submitted a WSIB claim for the December 19^th workplace accident. According to the applicant’s evidence, on December 12, 2007 he was told by Randy Vickers not to come into work the next day but to call Dave Underhill each morning to see if work was available. The applicant recalls calling Optilinx on December 13 and 14^th 2007 to inquire about available work and was told none was available at the time. The applicant agrees that he needed to work in order to support his family and that he repeatedly asked Optilinx for more shifts in December 2007. The applicant was offered a night shift by Mr. Vickers that began in the evening of December 18, 2007 which ended the following morning on December 19, 2007. It was during this shift that the applicant fell into a hole and injured his leg. The applicant claims that he advised a co-worker named “Lou”, soon after the accident happened, that he had fallen into a pit and believed he injured his knee. Lou was not called as a witness in the hearing. The applicant claims Lou immediately advised the Foreman, Dave Underhill, about the applicant’s fall which resulted in the applicant being assigned to monitor traffic for the remainder of his shift. In support of this evidence, the applicant produced Lou’s WSIB investigation statement dated January 24, 2008 in which Lou recalled that he and the applicant performed the same duties that shift and that sometime between 1:30 and 2:00 a.m. on December 19, 2007, the applicant told him that he thought he injured his knee after jumping into a pit.

12After the applicant returned home on December 19^th he realized that his knee was badly injured and he made an appointment to see his doctor on December 21, 2007. The applicant recalled that Mr. Underhill also called him on December 19^th to ask if he could arrive at the yard the following morning for Christmas coffee, to pick up his pay check and offered the applicant about 4 hours of work for that day. The applicant told Mr. Underhill that he had injured his knee during the previous night’s shift and therefore and he didn’t think he could attend the workplace the next day.

13On December 20, 2007 the applicant’s co-worker “Lou” delivered a pay check to his home. According to the applicant he was concerned that his vacation pay, which was usually included in his pay check, had not been included in the payment so he called Optilinx and spoke with Mr. Vickers. The applicant claimed that he was told that Mr. Conforti was away on vacation and that he should raise the vacation pay issue with Mr. Conforti’s business partner, Steve Bronizewski, which he did. The applicant met Mr. Bronizewski on December 20^th at the yard and was given $500 cash and told that any work issues would be settled after the holidays. The applicant also advised Mr. Vickers that he would be seeing his doctor the following day. After his doctor’s appointment on December 21, 2007, the applicant called Mr. Vickers to let him know due to his injury he would need time off work and that he would be filing a WSIB claim.

14After Mr. Conforti returned from vacation, on December 31, 2007 he and the applicant spoke over the phone. There was no dispute that he and Mr. Conforti had a heated and lengthy discussion. According to the applicant when he advised Mr. Conforti about his WSIB claim, Mr. Conforti responded that the claim would not happen because he had planned to layoff the applicant before he left on vacation. Following this discussion, the applicant attended at the workplace on January 4, 2008 to speak to Mr. Conforti and was told that his balance of vacation pay and final hours of work would be calculated. The applicant further alleged that Mr. Conforti told him that he “would not keep someone who rocks the boat and files WSIB claims every time work slows down.” He also indicated that Mr. Conforti told him that Optilinx believed that the applicant was lying about the injury and would contest and delay the WSIB claim. The conversations between Mr. Conforti and the applicant were acrimonious and Mr. Conforti filed complaints with the Durham Police concerning the applicant’s alleged threatening behaviour.

15The applicant stated that he received a Record of Employment around January 18, 2008 which indicated lay-off due to lack of work and showed his last day of work as December 12, 2007. The Record of Employment also indicated that the applicant was a temporary worker fulfilling landscaping duties, which the applicant disputes.

The Respondents’ Evidence

16The respondents state that when the applicant was initially hired he did not have the requisite experience for any of the advertised positions but that they were prepared to give him work as a helper for the fibre optics work. There was no assurance given to the applicant about permanent work and, in fact, Mr. Conforti claimed that the applicant was told that his work would be seasonal with the possibility of lay-off. In terms of the September 21, 2007 letter which confirmed that the applicant was employed as a full-time Hydrovac Operator, Mr. Conforti, insisted that the letter was prepared as a reference on behalf of the applicant in order to assist him with personal banking matters.

17Mr. Conforti explained that work generally declines in December each year due to cold weather because they cannot run the hydrovac machine and because of lessened demand from utility companies. He recalled that approximately 6 people were subject to lay-off in December, 2007 due to shortage of work. The respondents also submitted wage records for the period between December 2007 and April 2008 as evidence of a reduced work force. Mr. Conforti also claimed that even though the Service Canada Job Bank advertisement in January 2008 for the Hydrovac position requested that the position be filled immediately, the start date for that position would have been in April 2008, once the weather became warmer. It should be noted, however, that in a statement made by Mr. Conforti during the WSIB investigation, he stated that the Job Bank advertisement listed in January 2008 was not a replacement for the applicant’s position with no mention about the start date for that position.

18At the hearing, Mr. Conforti stated that December 12, 2007 was the last day of the applicant’s employment. He also claimed that it was Mr. Underhill who initially told the applicant on December 12, 2007 that he was laid off. Mr. Conforti stated that he received phone-calls from the applicant on December 12^th and 13^th and that the applicant was upset about being laid-off. Because of Mr. Conforti’s concern about the applicant’s aggressive tone during the phone-calls, he cancelled the applicant’s company gas card on December 14, 2007.

19In Mr. Conforti’s statement given to the WSIB investigator on January 8, 2008, he indicated that the applicant was hired as a “Temporary Casual Machine Operator”. In terms of timelines of the lay-off, Mr. Conforti stated that he informed the applicant on December 13, 2007 that Optilinx had no work for him and that on December 15, 2007 he told Mr. Underhill to inform the applicant that he would be laid off after which Mr. Conforti cancelled the applicant’s gas card and went on vacation.

20In addition to Mr. Conforti’s testimony regarding the lay-off, the applicant filed 2 letters from Optilinx dated December 21, 2007 and February 26, 2008 that were sent to the WSIB. The December 21, 2007 letter, submitted anonymously, was written by Mr. Vickers. The letter states that “We at Optilinx feel that due to lack of hours Mike Royal was receiving he took full advantage of going out with the night crew and presumable injuring himself without giving any knowledge to anybody that was working that night”. The letter does not state that the applicant was laid off but instead refers to the fact that “the applicant did not pick up many hours for that pay period and that the incident presumably happened on December 19, 2007 which was the only shift he worked within a 2 week pay period”. In the February 26, 2008 correspondence, Mr. Conforti wrote, that Mr. Royal was hired on September 12, 2007 on a “temporary as needed basis”. He also indicated that on December 12, 2007 both he and Mr. Underhill, on separate occasions, informed the applicant that he was laid off and that on December 13 and 14, 2007, the applicant persisted constantly and came back to the office only to be informed by Mr. Underhill again that there was no work. That letter also indicates that Mr. Vickers, who was not involved in the situation, gave the applicant a shift on December 19, 2007 out of sympathy.

21Mr. Conforti left on vacation on December 15, 2007 and returned at the end of December. Upon his return, Mr. Conforti discovered that the applicant had been given work by Mr. Vickers on December 19 and that the applicant was making a WSIB claim. Mr. Conforti’s handwritten note, dated December 31, 2007, recalls that he received a threatening phone call from the applicant asking why he was not getting hours. The note also states that “December 12, 2007 was the last day, I was aware not much work” and that Mr. Conforti went on holidays on December 15, 2007. In addition the notes makes reference to the fact that he spoke with the applicant to tell him his three months were coming up and that Optilinx was not going to need him and that the applicant’s gas card was cancelled.

22The applicant’s Record of Employment was signed by Mr. Conforti and dated December 15, 2007 showing the applicant’s last day of work being December 12, 2007. Mr. Conforti did not recall the exact date the Record of Employment was sent to the applicant other than sometime in December 2007 after he left on holidays. Mr. Conforti also stated that his partner Steve Bronizewsk, despite knowing that the applicant was laid off, gave the applicant a cash payment related to outstanding vacation pay to smooth things over before his return.

23Mr. Underhill testified that he advised the applicant verbally on December 12, 2007 that he was laid off due to shortage of work and he recalled how the applicant “blew up” at him in the yard. Mr. Underhill also claimed that he advised the applicant that Mr. Conforti would be preparing the paperwork and that his last cheque would be issued at the end of the pay period being December 21, 2007.

24In terms of the workplace accident, Mr. Underhill testified that he could not recall when he found out about the applicant’s injury other than the fact that he became aware of the injury within a day of it occurring and that he did not know the extent of the injury until December 21, 2007. He agreed that the applicant was asked to hold a flag for traffic on the December 19, 2007 job site but did not state why the applicant was given that duty. Mr. Underhill agreed that he offered the applicant a 4 hour shift after December 19, 2007 but his recollection was an offer for a shift on December 21, 2007.

25Mr. Vickers testified that he offered the applicant work for December 19, 2007 and that he had not communicated with Mr. Underhill about that shift. Mr. Vickers confirmed that the Optilinx yard shut down on December 20, 2007 for the holidays. He also testified that he received a phone call from the applicant on December 20, 2007 concerning a vacation pay issue. Mr. Vickers recalled the applicant being angry and threatening to bring a WSIB claim against Mr. Conforti causing Mr. Vickers to suggest that the applicant speak to Mr. Bronizewk to find a resolution.

26Other than the lack of work, the respondents raised concerns over the applicant’s work performance including alleged damage to a truck, failing to drain the hydrovac machine, bringing his son to work without permission, customer complaints and poor attendance. In support of vehicle damage, the respondents produced repair bills that they claimed were directly incurred by the applicant. No written documents were produced as evidence that the applicant had been warned about work performance concerns. The applicant disputed these allegations and noted that no complaints were ever raised with him about customer complaints or poor attendance. He also noted that he received a good reception when he brought his son into work. The respondents’ also mentioned in their Response that they had video surveillance of the applicant’s poor workmanship but did not produce it.

Analysis and Decision

27Section 5 (1) of the Code prohibits discrimination in employment on the basis of disability, among other grounds:

Every person has a right to equal treatment with respect to employment without discrimination because of…disability.

Section 9 provides:

No person shall do, directly or indirectly, anything that infringes a right under this Code.

Section 10 (1) includes in the definition of disability:

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

Section 10 (3) deals with perceived disability:

The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

28The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. It is also well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination. It is not necessary that discrimination be the sole or even the predominant reason for the termination: see, for example, Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13, 2008 HRTO 13 at para. 60; Dominion Management v. Velenosi, 1997 CanLII 14482 (ON C.A.), 1997 CanLII 14482 (ON C.A.) at para. 1; and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.) at para. 11.

29Based on my review of all of the evidence I have concluded that the applicant was not laid-off from his employment with Optilinx on December 12, 2007 but was instead terminated on December 31, 2007 during his conversation with Mr. Conforti. I also do not accept the respondents’ submissions that the applicant was laid-off due to past poor work performance issues. While it may have been that there was a reduction of work in December 2007, I find that the applicant’s injury and filing of his WSIB claim was the main factor in the termination of his employment and therefore was in violation of the Code. Although there were legitimate concerns about the applicant’s threatening tone with Mr. Conforti and even Mr. Underhill on and subsequent to December 31, 2007, I have concluded that these concerns arose as soon as the applicant was told he was laid off on December 31, 2007.

30In assessing each of the witnesses’ testimony and all of the documents produced as evidence, I have considered a number of factors including the respondents’ inconsistencies in their own evidence about the when the lay-off occurred, the applicant’s actual position with Optilinx, their motive to challenge the applicant’s WSIB claim and the lack of corroborative evidence produced surrounding the December 19, 2007 accident.

Mr. Conforti’s Evidence

31Examining Mr. Conforti’s evidence, the dates of December 12, 13 and 14^th 2007 were all referred to in his testimony and documents at various times as the date when the applicant was advised that he was laid off. He also stated that he asked Mr. Underhill to inform the applicant about the lay-off on December 12, 2007 and then in his statement to the WSIB investigator on January 8, 2008, he stated that he asked Mr. Underhill to inform the applicant about the lay-off on December 15, 2007. Inconsistent with these dates, his hand-written note of December 31, 2007 indicates that December 12, 2007 was the last day he was aware that the applicant worked and that he spoke to the applicant about his three month probation and not needing him but there is no specific reference to a verbal notice of layoff by Mr. Underhill. The fact that Mr. Conforti claims that he signed the Record of Employment on December 15, 2007 and that it was issued to the applicant is also in contrast to him leaving on vacation that day and the fact that the Record of Employment was not included in the December 21, 2007 pay check that was delivered to the applicant.

32I also find that Mr. Conforti’s evidence was not credible about the position that the applicant held at Optilinx. While a finding of which actual position the Applicant held at Optilinx is not determinative of the applicant’s discrimination claim, the evidence about what he did at work and his expectations are relevant. How Mr. Conforti described the applicant’s position and the advertisement in January 2008 for a Hydrovac Truck Operator is relevant to my assessment of his credibility. Mr. Conforti’s oral and documentary evidence, in this regard, was contradictory. The September 20, 2007 letter provided to the applicant clearly stated that he was hired as a full-time Hydrovac Truck operator. At the hearing, Mr. Conforti claimed that he used the word “full-time” to demonstrate that the applicant was working 8 hour days and that he wrote the letter to help out the applicant with a bank reference. This explanation does not seem reasonable because Mr. Conforti could have referred to the applicant’s hours of work and full-time capacity without referencing the position of Hydrovac Truck Operator.

33In his correspondence to the WSIB in January and February 2008, Mr. Conforti described the applicant’s position differently, first as a “Temporary Casual Machine Operator” in January 2008 and then secondly, as “Temporary as Needed Basis” in the February 26, 2008 statement. These descriptions also differ from the applicant’s Record of Employment which makes no reference to the Hydrovac truck but instead describes his occupation as “landscaping” with some truck driving with no reference to the position being temporary or seasonal. In the Response to this Application, Mr. Conforti describes the applicant’s position differently again as a “temporary position as a Vac Operator and Landscaping, laying sod and raking earth”. In his oral evidence, Mr. Conforti, claimed that the applicant was told in his interview that he would be hired for a seasonal position and that Optilinx hired him as a helper for the fibre optics work but that the company would do its best to give him an opportunity to drive the Hydovac machine.

34The different versions of the applicant’s actual position at Optilinx are in direct contrast to the applicant’s evidence that he was hired for the Hydrovac Truck Operator position. The applicant stated that it wasn’t until he received the Record of Employment that he saw his occupation described as landscaping. Given the number of inconsistencies in Mr. Conforti’s evidence, the September 20, 2007 letter, and his motive to challenge the WSIB claim including how the applicant’s position would be classified for WSIB payments, I prefer the applicant’s claim that he was hired as a Hydrovac Truck Operator on a permanent full-time basis. I also find that the Services Canada Job Bank advertisement for the Hydrovac Truck Operator, permanent full-time advertised between January 17 – 31, 2008 was for that position and that the anticipated start date which specified “as soon as possible” is consistent with the applicant’s version of events. On balance, even though the respondents provide wage reduction evidence for the period between December 2007 and April 2008, it makes sense that after laying off the applicant, Optilinx was in need of a Hydrovac Truck Operator within the immediate future as required by the job advertisement. In addition Mr. Conforti told the Tribunal that the advertisement was actually for an April 2008 start date, whereas, he did not relay the same message to the WSIB.

35Despite the fact that there were heated discussions between the applicant and Mr. Conforti on December 31, 2007 and January 4, 2008 resulting in a police complaint, I believe that Mr. Conforti and Mr. Vickers were not happy that the applicant had filed a WSIB application for the incident on December 19, 2007 resulting in the decision to end this employment. As early as December 20, 2007 Mr. Vickers penned an anonymous letter to the WSIB alleging that the applicant was lying about the accident, with no mention that the applicant had been laid-off. Although the respondents were threatened by the applicant’s behaviour which provided another reason for them to end his employment, it was the injury and WSIB claim that preceded their arguments and I find the accident and the WSIB claim to be factors in the decision to lay-off. It was also clear from all of the respondents’ evidence that they believed that the applicant was lying about the injury because of lack of work and the lapse in issuing vacation pay on the December 21, 2007 pay check, which again provides a motive for Mr. Conforti’s remark to the applicant that he “would not keep someone who rocks the boat and files WSIB claims every time work slows down.”

36With regard to the poor work performance allegations, Mr. Conforti testified that he told the applicant that there wasn’t enough work for him and claimed he asked Mr. Underhill to relay the same information. Even if there were work performance issues, the evidence does not show that they were properly raised with the applicant nor were they given as the justification for a lay-off.

Mr. Underhill’s and Mr. Vicker’s Evidence

37Whereas Mr. Underhill was certain about when he told the applicant that he was laid off, his recollection differed from Mr. Conforti’s. Furthermore, Mr. Underhill’s credibility is questionable with respect to his evidence about when he was told about the December 19, 2007 workplace accident. The applicant testified that he was working with “Lou” and that he told him about the fall and possible injury and that Lou reported this incident to Mr. Underhill. The applicant’s evidence is consistent with Lou’s statement to the WSIB investigator. In terms of corroborating evidence, it is significant that Lou was not called as a witness because based on his WSIB statement, his version of events support the applicant’s. It therefore seems more probable than not, that Mr. Underhill was aware of an accident occurring and that he asked Lou to tell the applicant to perform the traffic flag duty for the remainder of the shift. Finally, inconsistent with Mr. Underhill’s evidence that he told the applicant he was laid off is the fact that he invited the applicant on December 19^th to come to the workplace for Christmas coffee and offered him a 4 hour shift for the following day.

38Given the small managerial group at Optilinx, it is questionable that Mr. Vickers did not know that the applicant was laid off, as Mr. Conforti alleged. What is more believable is that despite less available work in December 2007, the applicant had not, in fact been laid off, and Mr. Vickers and even Mr. Underhill tried to find the applicant work by offering hours on December 18 and 20, 2007. Mr. Vickers also did not dispute the applicant’s testimony about the embargo period and the assurance given by Mr. Vickers that they would try keep the applicant busy.

Remedy

39The applicant is seeking an apology and a total claim of $77,000.00 in monetary compensation for lost wages and compensation for injury to dignity, feelings and self-respect arising from the discrimination. In addition, the applicant is seeking various future compliance remedies including postings and education about Code protections, overtime laws and WSIB rules and procedures. Specifically, the applicant has requested a total of $40,000.00 as damages for the termination of his employment due to disability and the filing of the WSIB claim. In addition he seeks $20,000.00 for reprisal related to false information provided to the WSIB by Optilinx and Mr. Conforti and $7,500.00 in “special damages for mental anguish” suffered due to Optilinx willful and reckless behaviour with respect to their conduct with his WSIB Claim. In terms of a wage loss claim, the applicant has requested $8500.00 representing loss of earnings in 2008 and $1000.00 in damages for additional costs associated with his preparation of his Application before the Tribunal. I note that the specific heads of monetary compensation sought above are framed within context of the remedial provisions of the Code as it was prior to amendments which came into effect on June 30, 2008. Notwithstanding the specific language used, these are all forms of monetary compensation which I address under the current remedial provisions of the Code, as set out below.

40Under s.45.2(1) of the Code, the Tribunal has the jurisdiction to make one or more of the following orders upon finding discrimination by one party against another:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Monetary Compensation

Compensation for Injury to Dignity, Feelings and Self-Respect

41In a recent decision, Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal made the following observations at paras. 44, 45 and 52, which provide a helpful context for the approach taken to the Code’s remedial provisions for compensation for injury to dignity, feelings and self-respect:

The approach to awards for damages for the intrinsic harm of discrimination has evolved in Code jurisprudence. Prior to the significant amendments that took effect in June 2008, the Code established a limit of $10,000 on damages for “mental anguish” which required a finding of wilfulness or recklessness on the part of the respondent (see s. 41(b) of the Code as it read prior to June 30, 2008). Tribunal decisions, however, routinely awarded greater damages for intangible losses, awarding separate amounts for mental anguish as a result of findings of discrimination on different grounds and by different respondents. After the Divisional Court’s decision in Ontario (Human Rights Commission) v. Shelter Corporation, 2001 CanLII 28414 (ON SCDC), [2001] O.J. 297 confirmed that this was permitted under the Code, amounts were awarded for “general damages”, which were considered as separate from amounts awarded for mental anguish.

The amendments to the damages provisions in the Code remove the need for the Tribunal to divide damages awards into amounts for mental anguish and for other intangible losses. They require the Tribunal to make a general evaluation of the circumstances of the Code violation and its effects to determine the appropriate monetary compensation for injury to dignity, feelings and self-respect.

…

… The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination….

42Section 45.2(1)1 of the Code provides that the Tribunal may make 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. In awarding compensation under this section, the Tribunal has had regard to a number of factors including the complainant’s loss of self respect, dignity and the seriousness, frequency and duration of the discriminatory treatment.

[43] A degree of objectivity must be applied in assessing the amount of compensation; Seguin v. Great Blue Heron, 2009 HRTO 240. However, at the same time it must be recognized that the actual impact of the discrimination on the applicant is an important consideration in assessing compensation. In addition, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (2008) 295 D.L.R. (4^th) 425 (Ont. Sup. Ct.).

44An order for compensation for injury to dignity, feelings and self respect is a discretionary award that is distinct from damages for income loss. In Sanford v. Koop, 2005 HRTO 53, 2005 HRTO 53 at para. 35, the Tribunal summarized the following factors used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:

• Humiliation experienced by the complainant

• Hurt feelings experienced by the complainant

• A complainant’s loss of self-respect

• A complainant’s loss of dignity

• A complainant’s loss of self-esteem

• A complainant’s loss of confidence

• The experience of victimization

• Vulnerability of the complainant

• The seriousness, frequency and duration of the offensive treatment

45In the Tribunal’s decision in Szabo v. Polley 2007 HRTO 37, an award of $8,000 was made for injury to dignity, feelings and self-respect in a case involving a finding of discrimination on the basis of disability where the applicant was terminated after suffering from an allergic reaction due to chemical or environmental contaminants in the workplace and submitting a WSIB claim form. In that case she was dismissed from her employment and told the employer did not want her to “make claims with the WSIB every second day”. In assessing the seriousness of the Code violation in that case, the Tribunal stated at paras 25 through 27:

I address first the seriousness of the offensive treatment and the vulnerability of the Complainant, which in my view are the most significant factors in this case. The summary dismissal of an employee because she has experienced a health condition from work, leading to the completion of a WSIB form, is a serious abuse of the Code that would have an significant impact on any employee.

Ms. Szabo was a temporary employee working on a piecework basis doing industrial cleaning. The law recognizes that there is a “power imbalance” between the employer and employee in most individual employment relationships: Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (S.C.C.), [1997] 3 S.C.R. 701 at para. 92. This power imbalance is particularly pronounced in the type of employment in this case, where workers earn low wages doing relatively unskilled work. The clear message sent by the employer’s conduct in this case was to discourage Ms. Szabo, and other workers like her, from complaining, seeking treatment, or claiming benefits if they experienced adverse physical effects from their work. Her dismissal suggested that if a worker claimed WSIB benefits, or sought treatment and the physician advised her to take time off work or fill out a WSIB form, she could lose her job.

It is also clear that Ms. Szabo was hurt and felt mistreated by the decision. She deposed that she felt degraded, treated as disposable, and wondered how she could be treated so badly. These reactions are unsurprising, given that she was dismissed merely because she sought treatment for a medical condition that arose from her work.

46I agree with the Tribunal’s reasoning in Szabo. In the instant Application, the evidence established that the respondents were suspicious about the applicant’s injury and that they attempted to fight the WSIB claim by alleging that the applicant had been laid off from employment on December 12, 2007. What I determined, in fact, is that when Mr. Conforti found out about the WSIB claim, he told the applicant that he had planned to lay him off before he left and then again warned that he would not keep someone who filed WSIB claims when work declined or when wage issues arose. Based on this conclusion, the evidence supports the finding that the Record of Employment was back-dated and not issued until after December 31, 2007. The clear message given to the applicant was that a WSIB claim was not welcome. It was not disputed that the applicant had the financial responsibility for a large family and that he desperately needed to work. Mr. Royal felt mistreated by the respondents and believed, in addition to losing his job, that his WSIB claim was frustrated by misrepresentations about his position with Optilinx and delayed by the respondents. While not condoning Mr. Royal’s behaviour on December 31, 2007 or on January 4, 2008, it is understandable that he felt mistreated, frustrated and punished for reporting a workplace injury. Accordingly, in the circumstances of his case, an award of $10,000.00 to compensate the applicant for loss of dignity and the injury to his feelings arising from the breach of his right to be free from discrimination due to his disability.

Compensation for Wage Loss

47The applicant provided submissions that he continued to suffer from his December 19, 2007 workplace injury and was not able to find employment until April 2008. For reasons unrelated to his injury, that work lasted 6 weeks. Later that year, the applicant found work with a local trucking company. During 2008 the applicant also collected WSIB insurance payments due to his Optilinx workplace injury. The applicant has sought loss of earnings for 12 months less wages earned and payments from WSIB. Before I can decide on whether to award any compensation for wage loss, more evidence is required from both parties. The applicant should provide documentary evidence to establish his income at Optilinx and is required to provide documentary evidence of all income earned in 2008, including WSIB payments, as well as evidence of steps he took to look for other employment. The respondent will also be given an opportunity to respond to the applicant’s evidence in terms of the number of hours of work that likely would have been assigned to the applicant had he continued in employment with Optilinx during 2008. The applicant will also be given an opportunity to reply to the respondents’ wage loss evidence. I will reserve on issuing an award for compensation for wage loss until I have had an opportunity to review each of the parties’ submissions.

Costs of Preparation

48The applicant seeks costs associated with the preparation of his case. These costs were not particularized and moreover it is well established that the Tribunal has no jurisdiction to award costs: Dunn v. United Transportation Union, Local 104, 2008 HRTO 405. Accordingly, I make no award for costs associated with the applicant’s preparation of his case.

Restitution Other than through Monetary Compensation

49As set out in s.45.2(1)2., above, the Code provides the Tribunal with the power to make 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.

50As part of his remedial claim, the applicant seeks an apology.

51Historically, 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 summary of caselaw in Turnbull v. Famous Players, 2001 CanLII 26228 (ON H.R.T.), (2001) 40 C.H.R.R. 333 at para. 264, and more recently Abdallah v. Thames Valley District School Board, 2008 HRTO 230.

52I agree with the concerns identified in this line of jurisprudence and accordingly I decline to order an apology.

Remedies for Future Compliance

53Section 45.2(1)3. of the Code enables the Tribunal to direct a party to do anything that, in the Tribunal’s opinion, the party ought to do to promote compliance with the Code. In this case, to promote and ensure an employee’s right to file a WSIB claim without fear of lay-off or termination, it is appropriate to provide a notice to employees setting out rights under the Code. In addition, such notice should alert current and new employees to all grounds of discrimination and set out their rights to file a Code application. Accordingly, I order that Mr. Conforti provide a notice in the form below to all current employees, and establish a policy that all new employees are provided with a copy of the notice.

ORDER

54Accordingly, the Tribunal orders as follows:

(1) Within 30 days of the date of this Decision, the respondent Optilinx Systems Inc. shall pay Michael Royal monetary compensation in the amount of $10,000.00 for injury to dignity, feelings and self-respect. Prejudgment interest on this amount at the rate of 4.3 % shall run from December 31, 2007 until the date of this Decision. In the event that Optilinx Systems Inc is not able to pay this amount within the prescribed time, Mr. Conforti shall be personally responsible for paying the full amount in accordance with this Order. Postjudgment interest shall be payable commencing 30 days from the date of this Decision.

(2) Mr. Conforti shall forthwith provide the following notice to all employees of Optilinx as of the date of this Decision:

“As an employee of Optilinx, you have the right under the Ontario Human Rights Code to equal treatment without discrimination because of disability, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, and record of offences, marital status, or family status.

This includes the right not to be discriminated against because you have claimed or received benefits from the Workplace Safety and Insurance Board (WSIB)

If you believe these rights have been violated, you may file a complaint under the Human Rights Code.”

(3) Within 30 days of this Decision, Mr. Conforti shall establish a policy that new employees of Optilinx be provided with a copy of the notice referred to 2, above.

(4) Within 30 days of this Decision Mr. Royal is required to provide submissions, including his evidence, in writing, to the Tribunal with a copy to the respondents, with respect to his wage loss claim. The respondents are required to submit their written response to the applicant’s wage loss submissions, including any evidence in support of their submissions, to the Tribunal with a copy to the applicant within 30 days of receiving the applicant’s submissions. The applicant will have 10 days to file a written reply to the respondent’s submissions.