Laila De Abreo v. Humber Institute of Technology & Advanced Learning, 2010 HRTO 2404

Human Rights Tribunal of Ontario

B E T W E E N:

Laila De Abreo Applicant

-and-

Humber Institute of Technology & Advanced Learning Respondent

DECISION

Adjudicator: Andrew M. Diamond Date: December 2, 2010 Citation: 2010 HRTO 2404 Indexed as: De Abreo v. Humber Institute of Technology

Appearances

Laila De Abreo, Applicant ) Craig R. Colraine and ) Debbie Jorgensen, Counsel

Humber Institute of Technology, Respondent ) Brenda J. Bowlby, Counsel

Introduction

1This is an Application filed under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of employment by the respondent based on a disability. The original complaint was made to the Ontario Human Rights Commission (the “Commission”) on October 30, 2007. That complaint was abandoned and this Application was brought to the Human Rights Tribunal of Ontario (the “Tribunal”) on June 1, 2009.

2This case is straightforward in that neither the fundamental facts nor the law are in dispute. In fact both parties cite the same leading cases as authority for their respective positions. However, the complexity of this case arises because the parties disagree about the application of the law to the facts.

3The Tribunal was aided by, and appreciates, the high level of advocacy demonstrated by counsel for both parties. It is a rare pleasure to have such highly skilled lawyers on each side. I also appreciate the thorough books of authority and written submissions provided by all.

Background

The Parties

4As mentioned above, the fundamental facts are not in dispute: the respondent Humber Institute of Technology & Advanced Learning, commonly referred to as Humber College (“Humber”), is as set out in its 2008-2009 Annual Report, “one of Canada’s leading educational institutions. Humber serves 20,000 full-time and 55,000 part-time registrants.” In 2009, Humber had total revenue of $268,135,701 and total expenses of $249,292,250, suggesting an operating surplus, or net revenue, of $18,843,451.

5According to the respondent’s written argument, and the respondent’s Annual Report, Humber has three principal sources of revenue: government grants, which in 2009 totaled $126,758,794; student fees or tuition totaling $72,165,053; and “ancillary operations,” which in 2009 generated $32,430,054. Included in the ancillary operations revenue are for-profit training programs, which are managed by Humber’s Corporate Education Centre.

6One of the responsibilities of the Corporate Education Centre is the development and provision of training programs for professional and trade associations including, for example, the Institute of Law Clerks, the Institute for Housing Management and the Payroll Association. The evidence of the respondent is that, while the Corporate Education Centre was part of Humber and not a distinct legal identity, its purpose was to generate a profit to contribute to the general operation of Humber, and could not be subsidized by either government grants or tuition from the general student body. In other words, it was required to be financially self-sufficient as well as a net profit centre for Humber as a whole.

7In September 2005, the respondent hired the applicant into the position of Educational Manager for its Corporate Education Centre. The job of Educational Manager carried many responsibilities, including and of critical importance (according to the respondent), the development of new business. The respondent’s evidence was that not only was the job multi-facetted, it was also cyclical in nature, in that one had to work through a 12-month cycle to gain exposure to all aspects of the job. It is also agreed that at the time of both the applicant leaving her job due to illness and the eventual termination of her employment, she had not yet undertaken all of the functions of the job.

Facts

8On February 23, 2006, the respondent failed to report to work after an emergency admission to hospital. The applicant was diagnosed with advanced cervical cancer. The applicant testified that in the early days after her diagnosis it was uncertain whether she would survive. Fortunately, the treatments, including radiation, were eventually successful, but they caused certain side effects, including abdominal pain and discomfort when the applicant sat for extended periods.

9The respondent made much of the fact in its evidence, cross-examination of the witness and written submissions that the applicant somehow acted inappropriately in taking several days to contact the respondent to explain her absence from work. The applicant’s response was that she was in the emergency room, had just been given a diagnosis which at the time might have been terminal and reporting for work was not at the top of her priority list. While Humber had the right to be informed in a timely way about her absence, in the circumstances I was surprised that this was still an issue that the respondent raised in its evidence and submissions.

10The applicant was away from work on medical leave for approximately 11 months. There was originally some confusion or disagreement about when the applicant was ready to return to work. The long term disability insurer concluded and advised the respondent that the applicant would be able to return to work in November 2006, but the applicant’s doctor was of the view that she was not ready to return until January 2007.

11The applicant provided the respondent with a medical report dated January 16, 2007, which indicated that the applicant was ready to start a gradual return to work, commencing with three to four hours per day, two to three days per week. This kind of gradual return to work is often referred to as a “work-hardening program” -- an opportunity for an employee who has been absent due to a disability to gradually return to the full-time schedule of their previous position. These work hardening programs are generally accepted as an accommodation to a returning disabled employee with the hope that they will be able to resume full-time work.

12The evidence is that the applicant met with her supervisor Ms Fletcher, the Director of the respondent’s Corporate Education Centre, and Mr. Teeter Leinveer, Humber’s Associate Director of Human Resources, to discuss her return to work. Mr. Leinveer began his career at Humber as a Senior Human Resources Consultant in July 1998, and became the Associate Director of Human Resources in 2007.

13The respondent does not dispute that the applicant was disabled. In designing its accommodation for the applicant’s return to work, the respondent was of the view that it was best if the applicant took responsibility for a single project, instead of performing small parts of each of the various elements of her job. The applicant was paid for the hours she worked and the respondent maintained the applicant’s employee benefits as if she were full-time employee, despite the fact she was not working sufficient hours to qualify for them.

14There was a suggestion by the applicant that requiring her to work on a single project, rather than reintegrating all aspects of the job, constituted insufficient accommodation; however, this was not pursued vigorously and I am of the view that appropriate accommodation was made at that time.

15The applicant’s evidence was that after meeting with Ms Fletcher and Mr. Leinveer, she was left with the impression they expected her to resume full-time work within two to three months of her return. Mr. Leinveer testified that while each case is different, in his experience work hardening usually lasts about three months, after which the employee is able to return to their previous full-time position. It must be noted that Mr. Leinveer’s testimony that he appreciates that each case is different and that there is no template or standard timetable for return to full-time work is inconsistent with the respondent’s letter of July 9, 2007, set out below, which clearly states that the respondent expected the applicant to return to a full workload within one to two months of the commencement of her work hardening program.

16It must also be noted that in November 2006, just prior to being advised by the disability insurer that they believed the applicant was ready to return to work, the respondent had considered hiring another person (who was already an employee of Humber) as an interim replacement. However, this was not pursued because the respondent believed that the applicant was about to return to work.

17The applicant eventually returned to work on a part-time basis on January 31, 2007, with the intention of increasing her hours as able and as advised by her doctors. The delay from November to January was the result of a dispute between the disability insurer and the applicant’s doctor as to when the applicant was ready to commence her work hardening.

18The applicant’s return to full-time work did not proceed at the pace anticipated by the respondent. The respondent’s evidence is that this protracted program to resume full-time hours resulted in stress and frustration on the part of Ms Fletcher. It was Ms Fletcher’s evidence that throughout the applicant’s absence and during her part-time return to work, Ms Fletcher, as the applicant’s supervisor, was attempting to do both her job and much of the applicant’s job, and that other employees of the Corporate Education Centre were also working harder to do both their jobs and take on some of the applicant’s responsibilities.

19In addition to the frustration, stress and increased workload, it is the respondent’s evidence that the absence of a full-time Educational Manager directly resulted in a decrease in the Corporate Education Centre’s revenue. The respondent by its own admission was becoming increasingly anxious to have a firm date by which the applicant would resume full-time work.

20The applicant’s evidence is that not only was she going into work on a part-time basis and working more hours than recommended by her doctor, she was also working from home and that her hours were increasing, albeit with some setbacks.

21The respondent disputes that the applicant’s hours were increasing and notes that the applicant only started logging the hours she worked at home from May 7 onwards despite the fact that she had always been doing some of her work from home. As a result, the respondent argues any apparent increase in hours after May 7, 2007 was not real as it was simply the result of the applicant beginning to record hours she had always been working from home. In other words, the respondent attributes any increase in hours not to an actual increase in the hours worked but simply to the applicant’s change in practice of logging the hours she also worked at home.

22I disagree with the respondent’s interpretation of the evidence of the hours worked. Even if one ignores the hours worked at home, so that one is comparing equivalent values, the hours worked in the office show a gradual increase in the hours the applicant was working. Excluding hours worked at home, the applicant worked an average of 7.9 hours per week in February 2007; 13.1 hours per week in March 2007; 15 hours per week in April 2007; 15.75 hours per week in May 2007; and 17.93 hours per week in June 2007, with a slight decrease to 16.62 hours per week in the two weeks worked in July 2007. However, as will be seen from what transpired from June 28 onward, as set out below, this reduction is absolutely understandable and, in fact, it is surprising the decrease wasn’t more substantial.

23In May of 2007, the respondent requested that the applicant have a “Health Care Provider’s Assessment of Work Abilities and Limitation” form completed by her doctor to determine her limitations and a date for returning to full-time work. This was the first time the respondent had requested a follow-up to the January medical report.

24The applicant’s doctor completed the form on May 31, 2007 and expressed the opinion that her work hours could be increased from the “slow integration two to three hours two to three days a week” set out in the January 16, 2007 report to “part-time (4 half days) to be increased.” It must be noted that the applicant’s work hours, set out above, are consistent with the recommendation; in fact, four half-days equals 15 hours a week, the applicant had already reached that level by April and was, as of June 5, working more hours than her doctor recommended.

25The applicant provided a copy of the doctor’s form to Mr. Leinveer with a cover note dated June 4, 2007, which read:

My doctor has completed the attached form. There is no definitive date for return to full-time work yet. Four half days are recommended. We can discuss on Friday.

26Despite the suggestion in the note that there was to be a meeting between the applicant and Mr. Leinveer on Friday, June 8, 2007, the applicant’s evidence is that the meeting did not occur until Thursday, June 28, 2007.

27Mr. Leinveer’s evidence was that by June 2007, Humber’s “management” was frustrated because they had no way to even begin finding a solution to the problem, as the “feedback they were getting was that the applicant was hopeful of returning to work full time but nothing was changing.” Mr. Leinveer was succinct when he testified that “we were clearly at the end of our rope,” and that prior to the June 28 meeting, Humber had made a decision that the respondent could not continue to hold the applicant’s job for her because there was no indication at that time when she could return to work full-time. This even though Mr. Leinveer testified that in his experience physicians are hesitant to provide a fixed estimate of return. Mr. Leinveer testified that he believed that the employment contract had been frustrated.

Meeting and Termination

28The applicant and Mr. Leinveer’s testimony as to what happened and what was said at the meeting of June 28, 2007 do not differ in substance. The applicant testified that at the June 28, 2007 meeting she was advised that she had not returned to work on a full-time basis as quickly as the respondent had anticipated. She says she was told that her job was a full-time position, and that she must return to full-time work, and that she had run out of time to do so. The applicant says that at the June 28 meeting she was presented with three options which she confirmed in a letter to Ms Fletcher and Mr. Leinveer on July 6, 2007. For the purposes of these reasons I think it is important to reproduce the text of the applicant’s July 6 letter in full:

I have had an opportunity to consider the three options which you have presented to me on Thursday, June 28, 2007. As I understand it, those options were as follows:

1. I would resign from Humber within three (3) weeks. Presumably, although this was not discussed, a severance package would be negotiated.

2. My employment would be terminated, and I would work on a part-time basis for one (1) year as a contract employee. CPP, EI and tax would be deducted. I would not be paid or receive any benefits.

3. The same as option 2, above, except that I would receive benefits, but would pay not only my portion but the College’s portion of the cost of those benefits.

I would really like to continue on as a regular employee of Humber. As you know, I have been under a medical disability and I am still receiving treatment for my condition. My doctor has recommended that my work be limited to 4 – half days, or approximately 16 hours, per week. However, I have attempted to exceed this time frame when able and I have been working more than the prescribed time since I returned.

I am confident that my condition will continue to improve and that at some point in the not too distant future, I will be able to work as a full time employee again. In the meantime, I would hope that Humber could continue to accommodate my disability. Given my situation, it is important to me that I continue to be eligible for benefits, particularly disability benefits

Can we discuss my situation?

(emphasis added)

29On July 9, 2007, Ms Fletcher sent a letter on behalf of the respondent to the applicant. This letter confirmed the respondent’s position at the June 28 meeting and acknowledged the applicant’s letter of July 6, and referred to another meeting between the parties scheduled for that day. Again, while the letter is lengthy, I think it is valuable to reproduce much of it here as it is a contemporaneous document produced by the respondent which sets out its view at the time. From the third paragraph, Ms Fletcher writes:

At the beginning of this year, when your doctor indicated that you would be able to start back to work on a part time basis gradually increasing to full time, we discussed a return to work protocol and, with the advice of your physician, developed a plan under which there would be a gradual increase in work over a period of a month or two, back to full time hours.

Unfortunately, you have not been able to increase your hours of work as anticipated by the plan. While you indicated in your letter that you have worked more hours than prescribed by your physician, this has been on an irregular basis and your most recent medical documentation from your physician at the end of May still prescribes 4 half days per week, with no indication as to when it might increase or when full time hours might be expect to be achieved. You have acknowledged this in your letter [of July 6, 2007].

The only possible accommodation of your inability to fulfill the role of Education Manager (which is a full time job) for the last fifteen months has been for others to take on significant parts of your job while continuing to perform their own duties. This has not only stretched them, but has resulted in limiting them in moving forward with accountabilities for which they are responsible. In addition, since January 2006, a number of important projects could not be addressed and your responsibility of generating new project proposals has not been fulfilled.

As a result, the department as a whole has really struggled to try to maintain any positive momentum, and has not had the opportunity to move forward as we could have with the benefit of a full-time working Education Manager. The senior management of the College [Humber] has given serious consideration to these circumstances and has decided that we can no longer continue without a full-time incumbent in the Education Manager position. It was created as a full-time job and needs one individual working on a full time basis to implement all aspects of the job. We have given every consideration to how we might continue to accommodate you in this position and we are unable to determine any feasible accommodation which would permit us to carry on indefinitely until you are able to return to work on a full time basis. You have indicated to us in your letter that you feel that you will be able to return to full time hours in the “not too distant future.” However your doctor gave no indication that this would be the case or even that you would be capable of increasing your 4 half days a week.

I note as well, that during this period, despite the fact that you have not been working full time, you have continued to receive benefits coverage with College paying the full amount as though you were working full time.

I asked you on Friday to provide any new information that we are unaware of. You did not provide any updated medical information from the medical report you provided a little more than a month ago. We can only assume, therefore, that your doctor has not changed her views on your capabilities. It is our view that at this juncture, it poses an undue hardship for the College to continue your position as a part time position when it truly is a full time job. It is also our view that our employment relationship has become frustrated insofar as, due to circumstances beyond anyone’s control, you are not able to fulfill the requirements of the job.

As I indicated to you at our first meeting, and again today, we are prepared to look at 3 options. We are offering these options without prejudice to our position that your employment has been frustrated and that we have accommodated you to the point of undue hardship:

1. Option 1: We would provide you with a lump sum payment equal to 3 month’s full time salary less deductions required by law. We would also be prepared, should you choose, to record your departure from the College as resignation and to provide you with a letter of reference. However, your Record of Employment would indicate that your employment has ended due to frustration.

2. Option 2: we would transfer you to a position for a period of one year doing project work on a reduced hours basis which would mean your salary reflect the reduced hours which you are working and you could continue to receive benefits provided that you would be responsible for paying an increased share of the cost of benefit premiums to reflect the fact that you are not working full time and therefore not earning the full amount of the employer’s contribution. At the end of the one year, your employment would end.

3. Option 3: We would terminate your existing employment relationship and hire you on a one year contract doing project work. Under this contract, you would no longer be eligible for pension or benefits but your take home pay would be higher as a result of not having to make up the employer’s contribution.

We are prepared to provide you with two more days to consider this offer. If you do not get back to us, we will be obliged to proceed with Option 1.

30I have several comments about the letter. First, it is designed to be a self-serving document expressing legal conclusions to support its actions; second, it contains assertions that are simply not true. To say that the applicant’s doctor gave no indication that she would be able to increase her hours beyond four half days a week is a complete misstatement of the report, which said that, as of early June, the applicant was to work four half days per week “TO BE INCREASED” (capitalized in the original). Having said that, the respondent’s letter clearly sets out the legal issues to be resolved by the Tribunal; namely, whether the applicant could be accommodated at all, and if so, could that accommodation be accomplished without undue hardship to the respondent.

31The applicant did not accept any of the options and on July 11, 2007, wrote to Mr. Leinveer and Ms Fletcher to express her incredulity that Humber would not continue to accommodate her as she gradually increased her hours on the job, and requested that Humber “consider any opportunity to work together to that end.”

32Mr. Leinveer indicated in his testimony that if the applicant had accepted either options 2 or 3, she could have applied for full-time postings within Humber, and if she was ready for full-time work when her old job was posted, she would have been entitled to it. Mr. Leinveer did admit on cross-examination that each of the options as offered to the applicant would have resulted in the termination of her employment. However, despite his evidence on this point, there was one last letter from the respondent to the applicant, dated July 19, 2007, which read in part:

I acknowledge receipt of your letter of July 11, 2007 in which you indicated that you are not prepared to accept any of the three options which we provided to you at our meeting (and confirmed in writing ) on Monday July 9th.

In the letter provided to you on Monday, we presented three options to you, one of which was that we would terminate your employment and provide you with a three month lump sum terminating payment…The other two options would permit you to continue in employment in a part time capacity. We explained to you that although the work offered was time limited in nature, work opportunities might arise during this period which would be appropriate and available to you as a continuing employee of the College and that we would consider, at the end of the project, whether there was any other work available for you. We do understand that what we offered in Options 2 and 3 would not continue your benefits in the manner which you are now receiving them. However, we wish to point out again that benefits are earned. We have continued to contribute to your benefits as if you were working full time -- something which is not required as an accommodation. This is something we are no longer prepared to do.

Finally, we are prepared to provide you with one final opportunity to accept either Options 2 or 3 in which case we would revoke the termination of your employment. However, if you wish to do so, you must advise us in writing within one week.

Laila, we hope that you will reconsider your position.

33No agreement was reached and the respondent terminated the applicant’s employment effective July 17, 2007.

Healing and Mitigation

34It is agreed by all that on the termination of her employment the applicant received a payment equal to three months’ full-time salary. It is the applicant’s uncontroverted evidence that she was ready to return to work full-time in or about November of 2007. The applicant’s salary was $60,000 (base) with various incentives that could have boosted her remuneration to a maximum of $95,000 per year. Mr. Leinveer also testified that the full-time compensation package also included pension and benefits contributions that added an additional 10% of the applicant’s base salary.

35The applicant produced evidence of her mitigation efforts in attempting to find other work which was not seriously challenged by the respondents, other than the assertion discussed below that she should have accepted one of the two part-time options as a mitigation effort.

Reposting

36The respondent’s evidence was that the Corporate Education Centre’s budget was so tight that they were not able to hire a replacement for the applicant until the payment of the applicant’s termination pay had been concluded; in other words, they were not able to pay twice for the same position. With the applicant receiving three months’ salary from mid-July, the respondent says it would not have been in a position to hire someone new until at least mid-October. Mr. Leinveer testified that coincidental in time with the applicant leaving Humber’s employment, a new President and Vice President responsible for the area took over and that nothing was done until all programs were examined and approved by him to ensure that the “business unit was viable.’’ As a result, the applicant’s position was not posted until November, 2007. It must be noted that this coincides with the applicant’s uncontroverted evidence that this was also the date at which she was ready to return to full-time employment.

37At the time they reposted the position, the respondent made no effort to inquire into the health and availability of the applicant, despite Mr. Leinveer’s testimony that had the applicant been on a part-time contract when the full-time job was posted, she would have been entitled to the position.

38Despite its apparent profitability, the Corporate Education Centre did not have a secure future. In fact, the Education Manager’s position was eliminated on August 1, 2009 with the termination of the employment of the applicant’s successor. The entire centre wound down in March of 2010. One of Ms Fletcher’s last duties was representing the respondent at this hearing, as her position was also eventually eliminated.

39The applicant argues that any damages for lost income should, at a minimum, flow from July 17, 2007 to August 1, 2009 (less the three months’ salary received), when the position of Education Manager was eliminated or, in the alternative, comprise the salary from July 17, 2007 to March 2010, when the Corporate Education Centre closed, on the assumption that once the position was eliminated some other position would have been made available.

Analysis

40The starting point for this analysis is slightly unusual in that it is agreed that the applicant’s employment was terminated as a result of her disability. This places the onus on the respondent to demonstrate that the applicant’s Code rights were not violated.

41The respondent makes three submissions. First, that the offers made to the applicant in options 2 or 3 were sufficient and appropriate accommodations and that in making those offers, the respondent satisfied its obligations under the Code. The respondent’s second and alternative submission is that if options 2 and 3 were insufficient accommodation, there was then no accommodation that would not have resulted in undue hardship to the respondent. The respondent’s third submission is that there was no accommodation that could have assisted the applicant in fulfilling the duties of her job and as a result there was no obligation to accommodate at all.

42I will review each of these submissions in turn.

Contract position is sufficient accommodation

43This submission starts from the generally accepted principle that an employer is not obliged to create a job or work for an employee with a disability. See Alberta Court of Queen’s Bench in Anderson v. Alberta, 2004 ABQB 766 at paragraph 33 and Alexander v. Zellers, 2009 HRTO 2167. The respondent argued that the part-time work with the possibility of either other part-time work when the contracted projects ended or other jobs as they became available and/or the applicant’s health improved, was sufficient and appropriate accommodation, taking into account the applicant’s restrictions and the work available at the time.

44The applicant makes two responses. First, she asserts that the respondent failed to look beyond the Corporate Education Centre (to Humber as a whole) to determine what accommodation opportunities existed within the entire organization. Second, that as the accommodation options provided to the applicant would likely end in the termination of the applicant’s employment within a year, this was not appropriate accommodation, and did not allow for the applicant’s return to full-time work as her health permitted.

45The first problem with the part-time work options is the way in which they were developed and communicated. From the evidence and correspondence, the applicant attended a meeting on June 28, 2007, in which she was advised of the three options. She was not, at the time, presented with written confirmation of the terms of the options. In fact, she had to write to the respondent herself in an attempt to clarify and confirm the respondent’s offer. Regardless of whether the applicant’s Code rights were violated, this was a lamentable omission on the respondent’s part as it left the applicant distraught at the looming demise of her job.

46Second, the letter provided on July 9, 2007, by the respondent, which finally did set out the options, makes no mention of the possibility of continued employment for the respondent if and when suitable work became available beyond the 12 months mentioned in options two and three. The possibility of future employment is only referenced in correspondence dated July 19, 2007, eight days after the effective termination date in the July 9 letter. As counsel for the applicant pointed out so clearly to Mr. Leinveer on cross-examination, this was information that might have been critical to the applicant’s response and yet it appeared as an afterthought.

47The respondent argues that the applicant is not entitled to perfect accommodation and that she must co-operate in the process. It further argues that by failing to accept either of the continued part-time employment options, she failed to co-operate in the process and cannot now complain that she was entitled to something better.

48As the Supreme Court of Canada said in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal 2007 SCC 4, [2007] 1 S.C.R. 161 (“McGill”) at paragraph 22:

The Court recognized that, when an employer makes a proposal that is reasonable, it is incumbent on the employee to facilitate its implementation. If the accommodation process fails because the employee does not co-operate, his or her complaint may be dismissed. As Sopinka J. wrote in Central Okanagan “[t]he complainant cannot expect a perfect solution”.

49The issue then for the Tribunal is whether the three options offered to the applicant were reasonable and met the respondent’s duty to accommodate the applicant. The respondent argued that it provided the work that was available; it was relatively certain that it had enough part-time work for the applicant for a year but had no guarantee of work beyond that; and that the respondent is not required to create a job for the applicant. Further, the respondent relied upon Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON C.A.):

The employer is not required to abandon the standard (assuming it to be a [bona fide occupational qualification]) and pay the disabled employees according to some different standard. Obviously, it may do so voluntarily, but this not what the Code requires.

50From this the respondent submits that it was not obliged to pay the applicant as anything other than a part-time employee while she was only able to work part time, which in this case would mean that she was not entitled to full-time benefits despite the fact that it had voluntarily provided them for the first five months she was working part-time. I accept this submission, and agree that, to the extent the accommodation options contemplated continued part-time employment, the respondent was only required to provide compensation to the applicant as a part-time employee.

51However, that is ancillary to the main question to be answered: In the circumstances of this employee and this employer was the offer of continuing part-time employment guaranteed for a 12-month period sufficient accommodation? The respondent argues that it was sufficient as it offered the work that the Corporate Education Centre had available and that the applicant was capable of performing; and it is not required to do anything more than that. They argue that they are not required to create a job for the applicant, nor did they need to look outside of the Corporate Education Centre for opportunities because there were sufficient opportunities in the Centre.

52The applicant submits that the respondent failed in its procedural duty as established by the Ontario Divisional Court in ADGA Group Consultants Inc v. Lane, 2008 CanLII 39605, to investigate other possible accommodations, in other parts of Humber, an employer with some 1,500 full-time employees, including some 250-300 administrative staff.

53In McGill, the Supreme Court of Canada dealt with a case where an employee who was a member of a bargaining unit had been unable to work for more than three years and her employment was terminated in accordance with the provisions of the collective agreement that stipulated that the employer could terminate the employment of a member of the bargaining unit if, even as a result of a disability, they had been unable to perform their job for more than three years. In upholding the provision of the collective agreement, the Court said at paragraphs 62 and 63 that:

62. ... It is common sense that the union and employer would make the trade-offs necessary to avoid an individualized, case-by-case approach to undefined periods of absence and, instead, try to delineate a universal, generous period of job protection for disabled employees beyond which the mutual rights and obligations end.

63. This does not target individuals, arbitrarily and unfairly because they are disabled; it balances an employer’s legitimate expectations that employees will perform the work they are paid to do with the legitimate expectations of employees with disabilities that those disabilities will not cause arbitrary disadvantage. …

54In the absence of an agreement between the parties, the question that the Tribunal must answer is whether in the circumstances of this employer and this employee, it was reasonable for the employer to expect the applicant to resume her responsibilities after having been in the job only five months and some 16 months after becoming ill; or whether the change in her status from a full-time employee to a contract part-time employee with possible termination after one year was a failure to accommodate to the point of undue hardship.

55Having reviewed the evidence and the case law cited to me, it may be that in circumstances where it is unlikely an employee can return to full-time work in the foreseeable future, offering available part-time work with a caution that there are only 12 months’ worth of work with no current guarantee of work beyond that (if that is, in fact, the case) may be sufficient accommodation. However, based on the facts of this case where the applicant’s hours were increasing, her doctor expected them to continue to increase, and the evidence was, as set out in her letter to the respondent on July 6, 2007, that she was “confident that her condition will continue to improve and that at some point in the not too distant future I will be able to work as a full-time employee again,” (emphasis added) do not constitute those circumstances.

56It is that which distinguishes this case; this is not the case of an employee unable or unwilling to return to full-time work in the foreseeable future, but one able to return to work in the not too distant future. Obviously, we now all have the benefit of hindsight, but with that hindsight we can see that the applicant’s prediction was correct, and the only evidence before the Tribunal was that she was able to return to work within three months of the effective date of the termination of her employment.

57As a result, I am not satisfied that the accommodation as offered was sufficient. I would also comment that the way it was offered was also unacceptable. It should not have been up to the applicant to attempt to confirm the options provided on June 28. Furthermore, if the respondent had been serious about the possibility of other or continuing employment for the applicant, that should have been clearly articulated in its first correspondence and not as what appears a legally convenient afterthought.

58Finally on this point, the Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionelles et de bureau d’Hydro-Québec, section locale 2000, 2008 SCC 43, [2008] 2 S.C.R. 561 (“Hydro-Québec”) at paragraph 14 stated:

… the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. (emphasis added)

59An accommodation that had as its natural conclusion the termination of the employee’s employment, regardless of her health, does not satisfy the Court’s stated objective ensuring that an employee who is able to work can work. That being the case, I must now determine whether providing anything more than what was offered would have resulted in undue hardship to the respondent.

Undue hardship

60The respondent’s second submission is that if the part-time options offered and discussed above were insufficient accommodation for the purposes of the Code, any form of accommodation that was more permanent could not have been provided without causing Humber undue hardship. In Hydro-Québec, the Supreme Court of Canada established two alternative tests for undue hardship by stating at paragraphs 16-18:

The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties … it must do so to accommodate the employee. …

[T]he test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory. (emphasis added)

61In this case, as set out above, I am not satisfied that the second alternative of the above test is satisfied, so I turn to the first to determine whether the applicant’s disability “excessively hampered the business of the respondent.” It is in this analysis that the differing position of the applicant and respondent as to the nature of the respondent’s business emerge. The respondent argues that I should look only at the Corporate Education Centre and the evidence of Ms Fletcher as to the impact on her, the other employees of the Corporate Education Centre and the financial results of the Centre in determining the impact of the applicant’s disability on the business.

62The applicant in turn argues that Humber is a business with revenues of $268,135,701 with 1,500 full-time employees, including some 250-300 administrative staff. The applicant argues that the respondent was able to, and even considered, hiring someone to assist in doing the job while the applicant was not able to work full time, but was only prepared to consider this when the applicant was on long-term disability benefits (so that the benefits provider and not the Center was paying her salary). However, once the applicant returned to work and the respondent recommenced paying her salary, the respondent argued it did not have the resources to hire this second person.

63I wish to make the following observation about resources. The root of the entire issue seems to be the respondent’s assertion that the Corporate Education Centre needed to be treated as an independent entity, even though legally it was not.

64The only evidence with respect to the impact of the applicant’s absence and then inability to work full time on the operation of the Corporate Education Centre is that of the respondent, and I accept that the impact was that employees of the Corporate Education Centre had to work harder to cover not only their own responsibilities but also key elements of the applicant’s. I also accept that the Centre was not performing to its budgeted business plan and that revenue and profits were down. I am also prepared to accept that the decrease in profits was, in all likelihood, attributable in part to the applicant’s inability to perform all of the requirements of her job. However, I would also point out that Humber’s Corporate Education Centre was eventually wound down for Humber’s own business reasons, making it impossible to calculate how much of an impact the applicant’s disability had on this as compared to the Centre’s unsustainable business model.

65The applicant makes two submissions. First, that despite the decrease in profits during the applicant’s absence/part-time reintegration, the Corporate Education Centre continued to be profitable. So, the applicant’s absence/part-time reintegration, while potentially effecting the Centre’s net revenue, did not push it into deficit, and to the extent that hardship is measured as economic unfeasibility, continuing to accommodate the applicant by letting her build back up to full-time hours did not constitute economic undue hardship. Second, if one considers all the resources available to the respondent Humber, let alone the Corporate Education Centre, there is evidence resources were available to deploy extra help while the applicant recovered. Even if the Centre was constrained by its budgetary requirements, no explanation was provided as to why a second part-time person could not have been temporarily hired to assist the applicant, as the Centre had a budget for a full-time employee but was paying the applicant part-time wages. However, all of this ignores the fact, which the applicant says I should not, that Humber had more than enough resources to staff the job appropriately on a short-term basis while the applicant gradually increased her hours.

66I agree with the submissions of the applicant that I must not restrict consideration of available resources to the Corporate Education Centre in determining whether further accommodation would have led to undue hardship. The respondent is Humber, not the Humber Corporate Education Centre. Humber had and has sufficient resources to arrange appropriate accommodation for the applicant without causing it undue hardship, but by its own admission did not believe it had an obligation to look beyond the Corporate Education Centre. In fact, even with the modified part-time proposals, it would appear the respondent shifted the onus to accommodate to the applicant.

67The law is clear the onus is on the respondent to satisfy the Tribunal that it could not accommodate the applicant’s modified work schedule for the near term to allow her to return to full-time work without undue hardship. Having heard all of the evidence on this point, I conclude that Humber has failed to satisfy that onus.

Inability to Accommodate

68The respondent’s submission with respect to the inability to accommodate starts with the Supreme Court of Canada’s decision in Hydro-Québec, where the court at paragraph 19 states that:

The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with employment relationship for the foreseeable future.

69Once again, what is foreseeable? The respondent argues that one must look at the entire period of the employment relationship: the applicant had only been employed some five months prior to becoming ill, and between sick leave and reduced work, the job had been empty for some 11 months, and the position was a full-time position and the work had to be done by others or not at all.

70However, the only evidence before me was that after five months of gradually increasing her hours both the applicant and her doctor were of the view, and told the respondent, that the applicant could increase her hours and that she should be back to work in the “not too distant future.” In short, I am of the view that based on all of the facts of this case, five months of the applicant working part-time was not enough time for the respondent to conclude that the applicant “would not be able to fulfill the basic obligation associated with the employment relationships for the foreseeable future.”

71The respondent’s evidence in this regard cuts against it. Its evidence was clear that a number of people were picking up bits and pieces of the applicant’s work, including the applicant herself doing specific projects, which would have otherwise comprised part of her job.

72At the time her employment was terminated, the respondent’s evidence was that the applicant had not finished her current project, and there was sufficient other part-time work for at least a year, even assuming the applicant was unable to increase her hours of work. It must be remembered that the above quote from Hydro-Québec must also be read with what the Supreme Court said at paragraph 14 of that same decision, namely that: “(t)he goal of accommodation is to ensure that an employee who is able to work can do so.” I do not believe that the respondent focused sufficiently on that goal when suggesting there was no accommodation that was available.

Conclusion

73Having concluded that the respondent did not appropriately accommodate the applicant’s disability and therefore violated the applicant’s Code rights, I now turn to an analysis of the appropriate award.

Award

74The applicant claims both compensation of her lost income and for the breach of her Code rights.

75Section 45.2(1) of the Code reads as follows:

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:

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.

Wage Loss

76In this case, the applicant’s claim comprises the value of the lost salary and benefits she would have earned but for the breach of her Code rights. In calculating lost income one has to determine what the value of the salary and benefits were and then determine the appropriate multiple for the number of months that were lost. Unlike the employment law jurisprudence, which suggests a cap on the length of the payment of salary in lieu of notice, the human rights jurisprudence has no such cap.

77Having said that, in this case the outside period is more easily determined as the job itself was eliminated by Humber on August 1, 2009, almost exactly 24 months to the day of the termination of her employment. The applicant suggests that the end date should be March of 2010 when the Corporate Education Center was closed. I disagree, as there is no evidence that the applicant’s successor obtained any other position with Humber upon the elimination of the position. As a result, I am prepared to accept August 1, 2009, or 24 months, as the appropriate lost income period.

78The second issue is determining the applicant’s salary. As mentioned above, the applicant was paid a base salary with a bonus structure dependent on meeting certain targets. Those targets were never met and the applicant agrees that the lost income component of any award should be based on a base salary of $61,800 per year or $5,150 per month. However, in her written submissions the applicant suggests that I should then increase this amount by 25% for lost benefits and pension. I note the evidence of Mr. Leinveer was that the value of benefits is 10% of the applicant’s salary or $515 per month for a total monthly compensation package of $5,665 per month.

79The difficulty in applying the monthly rate is twofold: First, all parties agree that the applicant received the equivalent of three months’ salary upon the termination of her employment. If one simply subtracted that from the 24 months, the award would be for 21 months. However, by the applicant’s own admission, she was not ready to work full-time until November, 2007. Therefore any salary she would have earned from July 17 to November 15, 2007, would have been at a reduced rate, albeit with an increasing number of hours worked in a week. If the applicant only worked half-time, the three months’ salary paid would have covered six months’ part-time work. If she worked two-thirds of her full-time position, the salary would have covered 4.5 months of work. At the date of termination, assuming a 37.5 hour week, the applicant was working half-time. However, those hours would have increased through to November when the evidence is she would have again been working full-time.

80As a result, I find the salary she was paid, which was the equivalent of three months of full-time salary, is sufficient to cover the entire four-month period from July until November, when she says she would have been working full-time again if permitted. Therefore, the balance due to the applicant is salary for 20 months from November 2007 until the elimination of the position in August of 2009 at a monthly rate of $5,665 for a total award for lost compensation of $113,300 less statutory deductions payable at source.

Mitigation

81As noted above, the applicant’s evidence concerning her efforts at mitigation was not seriously challenged by the respondent. I am satisfied with the applicant’s efforts in finding alternative employment outside of the respondent. However, the respondent argues that even if the offers of part-time employment for a year were insufficient accommodation, the applicant should have nevertheless accepted the positions in order to mitigate her damages. As a result any award for lost income should be reduced by the salary she would have earned under the part-time contract.

82This can be taken to its extreme: Mr. Leinveer testified that if the applicant was able to take on her full-time duties when the job was reposted, she would have been entitled to it without competing for it. Therefore, there are no special damages that flow for loss of income, since if she had taken the part-time contract, and had been able to work full-time in November, she would have been back on the job. Unfortunately, I do not believe that Mr. Leinveer ever told the applicant that she would be entitled to her job back if she was fit for it after having accepted the part-time contracts.

83However, to accept the part-time positions would have required the applicant to agree to the termination of her employment, and acquiescence to what she correctly perceived to be the respondent’s breach of her Code rights. Mitigation does not require capitulation to injustice. The fact that the respondent, after terminating the applicant, attempted to improve its position by offering the possibility of rehiring her full-time should she recover sufficiently, only further bolsters my conclusion that the original options were insufficient. That the respondent attempted to rebalance its unfairness to the applicant after said unfairness had taken place in no way lessens the harm done. As a result, I do not accept the failure of the applicant to accept one of the part-time offers as a refusal to mitigate.

Compensation for injury to dignity, feelings and self-respect

84The applicant seeks monetary compensation for injury to dignity, feelings and self-respect. As the Tribunal stated in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the amendments to the damages provisions in the Code remove the need for the Tribunal to divide damages awards into distinct amounts for mental anguish and for other intangible losses. The Tribunal is required only to make a general evaluation of the circumstances of the Code violation and its effects when determining the appropriate monetary compensation for injury to dignity, feelings and self-respect.

85As noted by the Supreme Court of Canada in considering damages for breaches of the Charter in Vancouver (City) v. Ward, 2010 SCC 27, at para. 27:

Compensation focuses on the claimant’s personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.

86Again, as the Tribunal commented in Arunachalam at paragraph 53,

(t)he first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

87In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed a number of factors for the Tribunal to consider when awarding damages, including:

• 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

88In setting the compensation for injury to dignity, feelings and self-respect at $25,000, I have taken into consideration the circumstances and effect of the termination on the applicant, the circumstances of the respondent and the fact that the applicant’s employment would have been ultimately terminated by the closure of the Centre, regardless of any violation of her protections under the Code.

89The applicant was at best in a fragile state as she commenced her return to work. Her evidence was that she was shocked and blindsided by the announcement on June 28, 2007, that she would have to decide between having her employment terminated, working part time but paying for a larger portion of her benefits or having no benefits, which as she testified were of vital importance to her as she returned from being grievously ill. As the applicant said in her direct evidence, she was “shocked” when advised by the respondent that “she had run out of time.” From her perspective she was doing her best, was working harder than her doctor recommended, and then felt that the rug had simply been pulled out from under her.

90The respondent is a large, sophisticated employer. It elected to take an aggressive approach in altering the conditions of the applicant’s employment. As it turns out, not only was it aggressive, it was in violation of the provisions of the Code. As a result, taking into consideration all of the circumstances of this case, I determine it is appropriate that the respondent pay damages for injury to dignity, feelings and self-respect at the high end of the scale.

Total Award and Interest

91The respondent shall pay the applicant $113,300 as compensation for her wage loss less statutory deductions to be remitted at source. Prejudgment interest on that amount shall be calculated in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, from September 2008, which is the halfway point in the 20 months of accruing damages from November 2007 to August 2009. See Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No. 13, at para. 27 (C.A.). Postjudgement interest on this amount is payable commencing 30 days from the date of this Decision.

92The respondent shall pay the applicant $25,000 as monetary compensation for the injury to dignity, feelings and self-respect. Postjudgement interest on that amount is payable in accordance with the Courts of Justice Act commencing 30 days from the date of this Decision.