HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Garry Latanville
Applicant
-and-
Gilbert Steel Limited and Gary Gilbert
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Jim Dimovski
Indexed as: Latanville v. Gilbert Steel
AppearanceS BY
Garry Latanville, Applicant ) Cecil Norman, ) Representative
Gilbert Steel Limited and Gary Gilbert, ) Daniel R. McDonald, Respondents ) Counsel
1This Application was filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter were filed with the Ontario Human Rights Commission (the “Commission”) and abandoned upon filing application with the Tribunal. The applicant alleges the respondents contravened sections 5(1), 5(2) and 9(1) of the Code.
2In the 1970s the applicant began his employment for Gilbert Steel Limited (the “corporate respondent”) as a general labourer. In 2002 and 2004, the applicant alleges he was subjected to discrimination on the basis of his family status. The applicant also alleges that from approximately 2005, he was subjected to discrimination on the basis of disability, which he noted included: severe cellulitis, diabetes, stress, anxiety and depression. The applicant alleges that the personal respondent failed to accommodate him and created a hostile work environment by singling him out for differential treatment and harassment because of his “multiple disabilities” in order to force him to quit.
3On September 8, 2006, the applicant’s employment was terminated. He alleges that his termination was due to disability. At the time of his termination, the applicant was a salaried, non-unionized Shipping and Receiving Clerk earning approximately $47,000 per year, or $920 per week, based upon a 44-hour work week. The applicant was provided 12 months working notice and his termination was effective from September 8, 2007.
4The corporate respondent is a privately owned company and operates a reinforcing steel fabrication firm. At the relevant time, it employed approximately 135 people: one group of employees work in the corporate respondent’s plant; a second group worked off-site servicing various needs; and another group, within which the applicant belonged, consisted of approximately 25 has office staff employees. The personal respondent is the corporate respondent’s President. He has known the applicant for approximately 34 years.
5The respondents deny all the applicant’s allegations. Further, the respondents submit that the applicant’s termination was inevitable since he could not adequately adapt and perform his job duties after those duties had been modernized through computers and the applicant’s integrity and work ethic were not viewed as satisfactory.
6The Application was initially scheduled for hearing on March 11 and 12, 2009. The March 11, 2009 date was used to address preliminary matters. On March 12, 2009 I heard the applicant’s evidence. The parties agreed that a surveillance report produced by the respondents could be relied on without any need for the investigator to authenticate it.
7At the end of the applicant’s testimony, the respondents asked that the Application be dismissed on the basis that the applicant had failed to establish a prima facie case of discrimination. The respondents’ Request was dismissed, 2009 HRTO 525, as was their subsequent Request that I reconsider that Decision, 2009 HRTO 1168.
8I issued two Case Assessment Directions (CAD) dated August 28, 2009, and September 25, 2009. The first addressed the applicant’s failure to disclose and the second dealt with a further attempt to reconsider my earlier decision.
9This hearing reconvened on October 30, 2009. At that time I heard testimony from the personal respondent and the respondents’ witnesses: Tony Plobner and Michael Santos. The admissibility of a document dated May 18, 2004, produced by the respondents, which required employees to “[k]indly” provide a week’s notice for any non-work related appointments to their immediate supervisors became an issue.
Evidentiary Issue
10Disclosure and production disputes have arisen with unfortunate frequency during this hearing. Indeed, as noted above, the first day of hearing was set aside for preliminary matters and I have had to rule on other production disputes which arose between the March and October hearing dates.
11With regard to the May 18, 2004 document, notwithstanding his prior objections about the applicant’s failure to comply with the Tribunal’s disclosure rules, counsel for the respondents asked me to admit this document on the basis it was arguably relevant and had recently come to his attention. Mr. Norman objected to its introduction on the basis that the document was produced late and not in accordance with the Tribunal’s Rules. My response to Mr. Norman’s objection was not intended as a reflection on the applicant and I do regret any resulting misunderstanding.
12After reviewing the one-page, three paragraph document, I determined that it was arguably relevant and that there was no significant prejudice to the applicant in having it admitted at this stage in the proceeding. The applicant’s representative was offered but declined additional time to review the document in greater detail before continuing his cross-examination.
EVIDENCE
13Since there was considerable dispute between the parties, in order to provide sufficient background to this matter, I have set out both the allegations and response in detail.
THE ALLEGATIONS
14Examination-in-chief by the applicant’s representative was brief. I also asked the applicant a number of questions in order to better understand the nature of the allegations and the evidence relied on in support of them.
15With respect to his claim of discrimination based on family status the applicant alleged that his daughter has a disability which required him to be absent from work on numerous occasions to care for her. As a result of these absences, necessitated by his daughter’s medical conditions, the corporate respondent deducted sick leave from his vacation credits, refused to allow him time off from work because he exhausted his vacation credits, and cancelled its employee medical benefits. In order to ensure someone was with his daughter at all times and since his daughter required medication, the applicant alleges he bore the costs related to his employer’s failure to accommodate him. Those costs included: prescription drugs, occupational therapy and home teaching.
16With respect to the claim of discrimination based on disability the applicant has been diagnosed with severe cellulites, diabetes, “work-related stress”, anxiety and depression. The applicant alleges that the respondents, particularly the personal respondent, from approximately 2005, refused to accommodate his disabilities on “many occasions”. In his view, the personal respondent gave the applicant the impression that with his many “medical problems” it would have been better for him to quit.
17As examples of the failure to accommodate his disabilities the applicant noted that he was not allowed to take time off for doctor’s appointments and thus forced to schedule them after working hours in order to avoid a deduction in his wages. On or about May 2006, the personal respondent also ordered the applicant not to speak to other employees during working hours and not to take lunch or smoking breaks with other employees. Additionally, if not on shift, the applicant was forbidden to be on the premises. The applicant was also told that he could no longer park his vehicle and wait in it until his shift’s start time. Prior to this, due to the nature of his commute, he left home for work early and often found himself waiting in his employer’s parking lot for half an hour before starting his shift.
18From May 1 to 15, 2006, the applicant was off work due to a flare-up of his severe cellulitis. During this time the applicant alleged that he could not wear pants or shoes and that his foot was enlarged by “500%”. Upon his return to work he provided a medical note. In response, management requested that he provide pictures of his foot. He provided the picture. The respondents deducted the absence from his wages. The applicant also alleges that the personal respondent told him to quit so he “could have time to deal with all [his] medical conditions”.
19On or about August 2006, the applicant discovered that the respondents were looking for “just cause” to terminate him. Around that time, the applicant alleges that the personal respondent refused to allow him to leave his broken down van in his employer’s parking lot while he arranged for its repair. The applicant alleges the personal respondent had allowed other co-workers to leave their broken down vehicles in the parking lot.
20In a letter dated September 8, 2006, the personal respondent informed the applicant that “the needs of the company [was] increasingly different from [his] capacity to contribute” to it. The applicant was notified that his employment would cease on September 8, 2007. Upon reading this letter, the applicant claims he experienced vertigo, profuse sweating, nausea and his heart rate accelerated.
21In another incident, sometime late September 2006, the personal respondent joked, before the applicant and his co-workers, that the applicant was the cause for his car’s flat tire. Although he rescinded the statement as a joke, the applicant alleged the personal respondent’s comments were made to “harass, bother, threaten, humiliate and embarrass” him and amounted to a poisoned work environment. As a result of his environment, the applicant alleged that his diabetes, blood pressure and cholesterol levels worsened
The Response
22The respondents denied any knowledge of the applicant’s diabetes although Mr. Santos acknowledged the applicant had mentioned it to him in the last year of his employment but did not request any accommodation as a result of it. The respondents’ deny they were not made aware of the applicant’s cellulitis until after he returned on May 2006 and presented Dr. Corbett’s May 4, 2006 medical note.
23The respondents deny the applicant’s allegations they cancelled the applicant’s medical plan. They state that at the relevant time they had no medical plan for salaried employees. The personal respondent testified that the corporate respondent paid its salaried employees a higher wage than the industrial average in lieu of such benefits. As such, salaried employees were left to obtain their own personal coverage.
24The personal respondent stated that in the 1990s, the applicant was transferred to the Shipping Department, working as a clerk, because he could not work in his previous job in the Shop because the environment aggravated his skin condition. The applicant was subsequently promoted to Shipping and Receiving Department Manager when the previous manager left.
25In the 1990s, business was so bad that, in addition to lay-offs, the personal respondent stated he did not take a salary for four years. As a result, the corporate respondent searched for efficiencies; the shipping area was highlighted as a problem since steel was not getting out the “door” fast enough. In response, the corporate respondent attempted to modernize and equipped the applicant’s Department with computers and provided him training on the software that would be used. The modernizing process was slow and took years to implement. In addition to an inadequate management style, it became apparent that the applicant could not adapt to his employer’s attempts to modernize. As a result he was demoted approximately in 2000. The applicant alleged this amounted to constructive dismissal. The matter was resolved and the applicant remained a Shipping Clerk.
26The personal respondent noted that he gradually lost respect for the applicant over the years. In one instance, as part of management, he caused a grievance and then was recorded admitting he lied about relevant facts concerning the grievance. Also, after his demotion, the personal respondent stated that the applicant seemed to stop caring about his job; he bothered others while they worked and he was on break. After receiving complaints about this from employees he spoke with the applicant. Mr. Santos also confirmed that he would receive many complaints about the applicant wandering about and talking to other employees while they worked. He became a distraction and hence the rules limiting him to the premises only on working hours.
27In addition, the respondents alleged the applicant did not seem to perform his job with any urgency. For example, after cameras had been installed throughout the corporate respondents’ premises it became evident that the applicant did not bother to answer phone calls made to his Department.
28The respondents deny the applicant was treated differently or harassed due to any Code-protected ground. They deny he was instructed not to take smoking breaks or lunch breaks with other employees. Rather, he was instructed to refrain from disrupting the work of other employees who did not share his break times. The respondents’ employees are assigned various shifts that overlap and as such break times do not correspond. Mr. Santos noted that the prohibition against taking smoking breaks was made by him to the clerks. However, he stated that the direction was limited to ensure that the customer service desk would not be left unattended since two clerks worked the desk.
29In addition, when the applicant was observed coming in early and socializing with employees who had already begun their shift, the respondents instructed him to wait in the parking lot until a few minutes before his shift. The applicant was not prohibited from waiting in the parking lot. In the respondents’ submission, these instructions were based on business consideration regarding productivity.
30By 2005, both Mr. Santos and Mr. Plobner testified that the applicant had essentially become redundant since his Department had completely been modernized. After his employment was terminated the Shipping Clerk position was not filled. Mr. Santos, the Information Technology Consultant and Shipping Manager, supervised the applicant. Despite attempts to train him, Mr. Santos stated that the applicant was unable to adapt. For example, he was unable to perform basic duties such as manually inputting information into the computer system without error. Also, Mr. Santos noted that the applicant was often difficult to find; when he was supposed to be at his desk he could not be located.
31The corporate respondent’s policy was to permit employees to take time off from work in the form of taking vacation time with pay or unpaid leaves of absences where an employee wished to take time off beyond their vacation entitlements. While the corporate respondent did not have a formal “sick time” policy, and thus allotted any specific number of “sick days”, to employees, on a “discretionary basis”, employees were entitled to take time as a leave of absence without pay or as paid vacation time. The respondent submit that the applicant was treated in the same way as any other salaried employee was treated with regard to requests for time off work.
32Mr. Santos testified the corporate respondent did not make any deduction from the applicant’s wages during the relevant time. The 12 days absence in March 2004 was treated as 6 vacation days and 6 days paid as “sick/family time”. Mr. Santos denied the applicant was refused permission to attend medical appointments during work time. Mr. Santos noted, however, that it was appreciated if employees could provide as much advance notice as possible for such appointments.
33In April and May 2006, the applicant took approximately 21 days off work. This time was recorded by the corporate respondent as vacation time with no deduction from wages even though it was “widely known” during the period that the applicant’s house was undergoing renovations. The respondents deny they requested pictures of the applicant’s foot.
34The personal respondent denied any involvement in the day-to-day decisions regarding requests by employees for time off. He also denied encouraging the applicant to quit and making any comment about the applicant’s culpability for the flat tire his vehicle incurred in late September 2006. In his testimony, he noted that flat tires were a common occurrence since the corporate respondent’s premises was an industrial site.
35The personal respondent also denied that the applicant was subjected to differential treatment or harassed regarding the instruction to remove his broken down van. While the applicant was allowed to keep his van on the corporate respondent’s premises, he was told he would not have access to it over the weekend, when no business was conducted, because the premises were locked and patrolled by guard dogs. Others had been allowed to keep their vehicles on the premises but they picked up their vehicles during business hours. The applicant’s request to access his van on weekends would have required special arrangements which the respondents denied for business reasons.
36When pressed to explain his reasons for recording the applicant in May 2006, the personal respondent indicated that he was told that applicant was using sick time to fix his house. At the time the applicant went off work in May 2006, he did not provide any medical documentation or specify the reason for his time off work. The rumours that the applicant was not sick were troubling and thus the decision to record him while he was off work. Mr. Santos confirmed that these were reasons for investigating the applicant.
37The respondents stated that the applicant was terminated and provided 12 months working notice. They assert the basis for the termination was the applicant’s inability to cope with his working environment and his work attitude.
DECISION
38After reviewing all the evidence and reviewing the parties’ submissions, on balance, I am not satisfied that the applicant was subjected to discrimination on the basis of any protected ground in the course of his employment. Further, I am not satisfied that the termination of his employment was, even in part, due to a Code-protected ground.
ANALYSIS
THE DISABILITY
39Discrimination on the basis of disability is prohibited in employment. Section 10(1) defines disability, in part as:
any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
40Section10(3), provides that “the right to equal treatment without discrimination because of disability” is extended to a person who “has or has had a disability or is believed to have or to have had a disability”.
41The applicant has alleged in his Application and his testimony that he was discriminated on the basis of his multiple disabilities. In her report dated August 13, 2007, Dr. Barbara Corbett writes that the applicant has had Type 2 diabetes and hypertension since 2003. At the time, Dr. Corbett also wrote that the applicant’s conditions were “well controlled” with the only “sequalae” being “peripheral neuropathy” in both his feet which did not prevent the applicant’s ability to “stand or walk”. She also noted that in April 2006, the applicant took a two week vacation due to stress in coping with work, financial difficulties and “worries over a sick child”. Dr. Corbett’s note dated April 4, 2006, which was provided to the corporate respondent, did not specify the reason for the applicant’s absence from work but that the applicant required time off work “due to medical conditions”. In her note dated May 4, 2006 she indicate that the applicant was “unable to work” due to severe cellulitis in the left foot subsequent to standing on a tack.
42I am satisfied that the applicant has established he has diabetes and hypertension and these conditions are disabilities as defined by the Code. I am also satisfied that the applicant experienced stress and cellulitis during the relevant time and these also amount to disabilities within the meaning of the Code.
43The respondents produced video surveillance of the applicant from May 2006. The respondent’s counsel put particular importance on this video evidence and insisted that much of it required viewing during a significant portion of the first day of hearing. The respondents’ counsel highlighted, contrary to the applicant’s testimony and his allegations contained in his Application, that during his period off work he was not totally disabled but capable of walking, driving and shopping at local stores.
44In my view, the respondents’ questions attacked the credibility of the applicant’s testimony and whether he in fact had a disability and thus implicitly denying the authenticity of Dr. Corbett’s medical report dated May 4, 2006. In this context, however, video surveillance should be handled with care; although the video evidence revealed some inconsistencies in the applicant’s statements about his level of functioning on May 4, 2006, it did not negate the presence of his disability. Also, although Dr. Corbett’s May 4, 2006 report was dated after the applicant advised his employer he was incapable of working, generally, in my view, a person is permitted to rely on the advice of his physician.
45The parties acknowledged that the respondents did not receive Dr. Corbett’s May 4, 2006 report until after the applicant returned to work. Instead of requesting further information about the nature of the applicant’s disability, the respondents commissioned an investigator to follow and record him. If the video surveillance was used by the respondents to support a conclusion that the applicant’s disability was not authentic, in the absence of any action on their part to affirm the nature of the applicant’s disability, it could be viewed as persuasive evidence to challenge the reasons for the decision to terminate the applicant’s employment as well as support an inference in his favour regarding his conversations with the personal respondent. The fact that the video surveillance was produced by the respondents and not the applicant does not make it any less relevant in determining the reasons for the applicant’s termination.
46In this connection I note that the video surveillance was a sufficient basis to deny the respondents’ Request to dismiss the Application for failure to establish a prima facie case of discrimination. Instead, in my view, the video surveillance required a response from the respondents’ witnesses in order to properly address the allegations against the personal respondent and the reasons for the applicant’s termination.
47However, the video surveillance does undermine the applicant’s testimony about his limited movements during the period he was off. I accept it shows the applicant was able to walk a considerable distance, albeit with slight limp, well before he returned to work in mid-May. This is troubling since his job is significantly sedentary. Accordingly, I find the video surveillance relevant only as it applies to my assessment of the accuracy of the applicant’s testimony with respect to his disability and need for accommodation.
WAS THE APPLICANT SUBJECTED TO DISCRIMINATION DUE TO DISABILITY or FAMILY STATUS?
48The applicant admitted the respondent did not cancel any medical plan during the relevant time for his Application. He also admitted he not received a salary increase since 1993. When I compare his Revenue Canada statements for the relevant years to those for previous years I am unable to find any support for the allegation the respondents deducted wages as a result of time off. Instead, a review of these records shows the applicant’s income has remained static and does not support the applicant’s testimony that he suffered any wage loss during this time.
49It is clear that the applicant considered the respondents’ sick time policy, or in this case, the lack of one, unfair. Particularly, he submits that choosing between taking unpaid leave or using paid vacation credits for those periods away from work necessitated by disability or family illness is discriminatory.
50The lack of an employee medical plan or the choice the applicant had been given between taking unpaid leave or using his paid vacation credits is not in of itself discriminatory. The question of fairness aside, in my view, the relevant determination is whether the corporate respondent provided different choices to different groups of employees who took time away from work. If the distinction between different groups of employees who took time away from work was based on a prohibited ground, and not work, such treatment could be viewed as an infringement of the Code. In Ontario Nurses Assn v. Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON C.A.), [1999] O.J. No. 44, 42 O.R. (3d) 692, the Ontario Court of Appeal determined that it was not discriminatory for the employer to deny benefits to the grievors because they did not provide work for the benefits.
51Other cases have applied Soldiers Memorial Hospital. In OPSEU (Pound) and LCBO, GSB Decision No. 3278/92, February 8, 1996 (Biggs), the Vice-chair determined that the grievor was not discriminated against when she was denied vacation and attendance credits for the period of time that she was on WSIB leave. Similarly, in OPSEU (Donaghue) and Ministry of Transportation, GSB No. 0725, December 3, 2002 (R. Brown), the Vice-chair determined that the employer did not discriminate against the employee by failing to pay him income protection benefits and pension contributions because he was away from the workplace due to illness.
52There is no evidence to support finding the applicant was treated differently with regard to his absences from work due to the corporate respondent’s policy. Since the corporate respondent was a privately held, family run business, the respondents did admit that discretion was used in assessing whether an employee would ultimately lose income as a result of an extended leave of absence.
53In my view, the use or the basis for using such discretion could be problematic if exercised in a manner that discriminated on the basis of a Code-protected ground. However, in this case, the respondents established that, contrary to the applicant’s allegations, the discretion was exercised in a way which benefited the applicant. The respondents’ time sheets and memoranda, establish that the applicant was required to treat his absences as vacation time but that, once his vacation credits were exhausted, the respondents continued his income characterising that time as “family/sick leave”. The applicant was not required to take any time as an unpaid leave of absence. Accordingly, I find no basis to find that the applicant was treated differently with respect to how he took time off work in relation to any disability or due to family status.
54Since the applicant only related deduction of wage and vacation credits to his allegations of discrimination on the basis of family status, I dismiss allegations regarding family status.
Did the Respondents Fail to Accommodate the Applicant’s Disabilities?
55The applicant also alleged the respondents failed to accommodate his disabilities to the point of undue hardship. During his questioning by Mr. Norman, or when pressed by the respondents, the applicant could not enumerate any particular accommodation he required, which was supported by any medical evidence, or which had been denied by the respondents, as a result of his disabilities. Indeed, I did not find his testimony or the medical evidence he relied upon indicated that he required any accommodation except for time away from work in April and May 2006. On the contrary, beyond those periods in April and May 2006, Dr. Corbett’s report dated August 13, 2007, noted that the applicant’s diabetes had not “affect[ed] his ability to stand or walk” and that “[t]here is no medical reason why he cannot continue” at his job. Also, in my view, Dr. Corbett’s report does not support the applicant’s response, at the hearing, in which he admitted that he often had to walk around his employer’s plant due to his diabetes.
56The applicant did allege that the personal respondent failed to accommodate his disabilities when he forbade him from scheduling his medical appointments during working hours. The personal respondent denied any knowledge of the applicant’s diabetes and denied he was ever involved in the day-to-day administration of benefits. Despite the May 14, 2004 document which asked employees to provide advance notice of such appointments, Mr. Santos testified the applicant was not denied any opportunity to attend appointments, especially on an emergency basis.
57Other than his bald assertion, the applicant was unable to corroborate his version of events or to recount sufficient particulars of any such conversation or establish that any of his medical appointments occurred after work hours in accordance with the personal respondent’s alleged order. Further, in my view, the respondents’ request for notice of pre-scheduled appointments during working hours without more evidence of a differential application of such a policy does not contravene the Code. Indeed, the document specifically notes that such a request did not apply to emergency situations. As a result, I do not find this allegation is made out on a balance of probabilities.
58The applicant made serious and particularized allegations against the personal respondent. The personal respondent denied them. After reviewing the testimony and evidence, I preferred the respondents’ version of events for the following reasons.
59I placed no weight on the applicant’s testimony regarding his particular allegations involving the personal respondent. In my view, it would be difficult to accept them based on the credibility of his testimony alone, when, as noted above, his other allegations were either clearly contradicted or unsubstantiated.
60There are also other reasons to place little weight on his testimony. In my view, the context in which he alleges he worked was not supported by testimony or the documentary evidence. The applicant linked his time away from work due to illness with his harassment or differential treatment by the respondents. However, the applicant admitted that the respondents in the past had accommodated his skin condition by transferring him to the Shipping Department. Moreover, the basis of his allegations rest on the basis that he was taking significant amount of time off work. However, in my review of the documentary evidence, I am not satisfied that the applicant took particularly significant amounts of time off work beyond his allotted vacation time from 2005 when compared to his co-workers, to support it could have caused or contributed to the respondents’ animus towards him.
61Moreover, I would have expected such animus with regard to his time away beyond his allotted vacation time would have co-existed with deductions from his salary but there were no such deductions. Instead, the time the applicant took off work was deducted from his vacation credits and there is no indication that the respondents ever deducted from his income when his absences exceeded his vacation credits.
62Further, the applicant’s testimony about the basis for the personal respondent’s animus towards him for taking time off due to disability does not reflect the business realities for this particular corporate respondent. Indeed, as admitted by the applicant and corroborated by a review of the corporate respondents’ time sheets, the process for taking off work had been lax for years with very little required by employees to substantiate time off work. In my view, the May 2004 document reflects how lax the process was in that it requested employees notify management of time off work for pre-scheduled appointments and nothing else. On whole, the time sheets also support that very little about an employee’s absence, beyond recording the periods of absence, was required.
63It should be noted as well that the personal respondent testified that he did not know of any of the applicant’s medical conditions other than his celluitis, until the applicant filed his Application. In my view, this is consistent with the documentary evidence. As noted, Dr. Corbett’s August 2007 letter noted that the applicant did not require accommodation and there is no record to establish she had ever written a note/certificate that the applicant would have given to his employer outlining his needs due to his disabilities.
64As noted above, the employer’s records regarding sick time were rather lax and there is no indication from the respondents’ records that the employer required specific reasons for absences to the extent I am persuaded that the personal respondent would be made aware of them. Indeed, the lack of particular reference to any medical reasons for an employee’s absence supports the respondents’ version of events that particular knowledge for the applicant’s absence during the relevant periods was not likely known or followed to the extent that it caused the animus the applicant alleges.
65Also, I am not persuaded the applicant was treated differently due to disability because the personal respondent forbade him from removing his van from the corporate respondent’s premises on a weekend. The applicant admitted that the employer’s premise was closed on weekends and secured; he could not state with any certainty that other co-workers had been allowed to move their vehicles during periods in which the premises were closed to employees and secured.
66The applicant also admitted that flat tires were not a rare occurrence. As such, it was difficult to accept that such a joke was made with the meaning and context ascribed to it by his Application. Also, he noted other co-workers heard the joke but there is no evidence to support this.
67Further, I am not persuaded that the restrictions placed on the applicant were anything more than an attempt to have an employee adhere to his duties or at the least not impede others in theirs. The applicant did admit to wandering about the corporate premises. When pressed to explain his conduct, he attempted to relate it to the needs necessitated by his diabetes. However, the applicant was unable to establish how such conducted was necessitated by any disability and there was no such limitations supported by Dr. Corbett’s reports
68As noted above, the applicant relied on the credibility of his testimony to support his allegations. Since his allegations were either contradicted by him or by the documentary evidence, I am satisfied that his testimony deserved little weight. Another example for placing no significant weight on his perceptions or his testimony occurred during the review of his claim for damages. In his testimony, he stated after he was effectively terminated that he suffered a wage loss. This, however, was clearly contradicted, by the income information he provided to the Tribunal subsequent to the first hearing day. It does not appear he suffered any subsequent wage loss. As a result, I am not satisfied that a favourable inference regarding any of his allegations would be warranted.
69As such, I am not persuaded the applicant’s disabilities or the time he required off work due to them were a particular pressing issue for the personal respondent that he would have made the alleged statements attributed to him by the applicant.
Did the Respondents Terminate the Applicant Due to his Disabilities?
70In my view, when viewed objectively and in totality, I am persuaded that the applicant’s employment was terminated as result of concerns with his work abilities, ethic and concerns about his personal integrity. In this sense, the applicant’s impression that the respondents’ were searching for justification to terminate him seem valid. The question, however, was whether the decision to terminate him was due, even in part, to his disabilities.
71The applicant denied that he was involved in the renovations of his house during those periods he was off work sick in April and May 2006. As confirmed by a Hospital Outpatient Report dated April 30, 2006, the applicant’s severe celluitis was caused by his stepping on a tack. Even though he admitted his house was undergoing renovations, the applicant stated he simply oversaw the contractors work while he was off work. A past rumour from other employees had the applicant using his time off work due to disability to shop for a new vehicle.
72The respondents explained that the decision to hire an investigator to follow the applicant was based on concerns with the applicant’s integrity and whether he was misleading the employer regarding his absences from work. In my view, the video surveillance was likely commissioned in order to determine whether the applicant was on leave from his employment for legitimate reasons.
73Against the backdrop of his employer’s less than sophisticated process and practice regarding leave from work, and in consideration of the incidents noted above which lead to questions about the applicant’s trust worthiness and commitment to his work, I am satisfied that the respondents’ commissioned the video surveillance for the reason expressed by the respondents’ witnesses. In light of the discrepancies between the applicant’s allegations noted above, the respondents’ concerns about the applicant’s reason for taking off work was not unfounded.
74More importantly, I am not satisfied that there was any attempt after the video surveillance was commissioned to terminate the applicant for any wrongdoing related to his surveillance. While the respondents may have questioned the basis for which the applicant stated he was taking time off work, and may still question the discrepancy between what he stated he could do and what he was shown to do, I am not persuaded his disability or disabilities formed part of the basis for his termination since it was not pursued by them after the applicant presented Dr. Corbett’s May medical report. Instead, the applicant’s employment was terminated some months later and with no cause outlined and he was provided with 12 months working notice.
75Moreover, initially, the applicant denied he was not capable of working in the modernized environment created by his employer. When pressed, he admitted his difficulties and blamed lack of training for his deficiencies. However, there is some evidence that his relationship with his employer had deteriorated for some time, prior to full modernization, when he was demoted from a rather senior position back to a clerk. Also, the applicant affirmed the impression that he felt like they wanted him terminated.
76While the respondents may have wanted to terminate the applicant’s employment for some time, the appropriate question is whether they wanted to terminate him due, even in part, to any protected ground. When viewed in this perspective, and in consideration of the findings noted above, I am satisfied that the applicant’s termination was not due to any protected ground.
77In all the circumstances, since I am not satisfied that the applicant established he was subjected to any form of discrimination on the basis of a protected ground, I dismiss this Application.
Dated at Toronto this 10th day of November, 2010.
“Signed By”
Jim Dimovski
Member