Ignazio Nobile v. Ristorante Pinocchio, 2010 HRTO 2465

Human Rights Tribunal of Ontario

Between:

Ignazio Nobile Applicant

-and-

Ristorante Pinocchio Respondent

Decision

Adjudicator: Brian Eyolfson Date: December 13, 2010 Citation: 2010 HRTO 2465 Indexed as: Nobile v. Ristorante Pinocchio

Appearances

Ignazio Nobile, Applicant | Adriana Nobile, Representative Ristorante Pinocchio, Respondent | No one appearing

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 8, 2009, alleging discrimination on the basis of disability in employment.

2The respondent has not participated in the proceedings. In two Interim Decisions, the Tribunal addressed the issue of the respondent’s failure to file a Response in accordance with the Tribunal’s Rules of Procedure and outlined the consequences of that failure in light of Rule 5.5 of the Tribunal’s Rules: 2009 HRTO 2006 and 2010 HRTO 560. In the second Interim Decision, the Tribunal indicated that it would proceed without the participation of the respondent and deemed the respondent to have accepted all of the allegations set out in the Application and to have waived all rights to notice or participation in the proceedings.

3The applicant was provided with an opportunity to file any additional documents or materials with the Tribunal and a hearing was held by teleconference.

FACTS

4In his Application, the applicant indicates that he commenced employment with the respondent restaurant on January 10, 2005, and that he worked as a sous chef. He alleges that he went on sick leave on February 4, 2009, and that his doctor gave him 15 weeks “recovery”. At the end of March 2009, he went to the restaurant to say that he was feeling better and would like to come back to work. He alleges that he spoke to the owner of the restaurant, Michael Dacosta, and the head chef and was told “not to worry”, “stay home”, and “get well”. He alleges that Mr. Dacosta told him that he would call. In Form 1-A of his Application, the applicant explains further that he was asked to stay home another couple of weeks to recuperate.

5The applicant alleges that, on April 7 or 8, 2009, he again went to the restaurant to see if he could return to work and no decision was made at that time. In Form 1-A of his Application, the applicant alleges further that when he went back to the restaurant to ask when he should start work he was told by the head chef to look for another job.

6The applicant alleges that, after Easter, on April 13, 2009, he called Mr. Dacosta and left a message asking that Mr. Dacosta call him back. On April 16, 2009, he made another phone call to Mr. Dacosta and asked for his “separation papers” so that, once his sick leave was over, he could apply for Employment Insurance and start looking for another job. In Form 1-A, the applicant also explains that he tried to contact Mr. Dacosta so that he could get his separation papers, and that he made two phone calls to Mr. Dacosta.

7The applicant alleges that, as of the date of his Application, no effort was made by anybody at the restaurant to notify him if he still had a job or not, and no separation papers were sent. In Form 1-A, he alleges that, as of August 17, 2009, he had no return calls from the respondent.

8The applicant provided the Tribunal with documents, including a Medical Certificate for Employment Insurance (“EI”) Sickness Benefits. The Medical Certificate is signed by a doctor on February 12, 2009, and indicates that the applicant is “off work 4/2/09 due to vertigo/anxiety”. The expected recovery date is May 11, 2009.

9At the hearing, the applicant also explained that he got papers for Mr. Dacosta to sign so that he could collect EI Sickness Benefits while he was off work and that he told both Mr. Dacosta and the head chef that his doctor said he had vertigo and had to stay home. He also stated that the head chef brought paperwork to his home so that he could apply for EI Sickness Benefits which he received.

ANALYSIS AND DECISION

10The relevant provisions of the Code provide as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of… disability.

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

10(1) In Part I and in this Part,

“disability” means,

(a) 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

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

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

10(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

11The respondent has already been deemed to have accepted all of the allegations set out in the Application, 2010 HRTO 560, and I have no reason to doubt the facts alleged in the Application and the applicant’s statements at the hearing.

12Based on the undisputed facts before me, I am satisfied that the applicant’s medical condition, which resulted in his inability to work for approximately two months, and for which he received EI Sickness Benefits, constitutes a disability within the meaning of the Code. It also appears, based on the facts, that the respondent may have perceived the applicant to be disabled given the respondent’s request that the applicant stay home to recuperate.

13In the circumstances, I find that the applicant’s disability, and/or perceived disability, was a factor in the respondent’s failure to facilitate his return to work. While the applicant’s current employment status with the respondent is not clear, the applicant has not worked for the respondent since he went on medical leave on February 4, 2009. I find that the respondent was aware that the applicant was not able to work for medical reasons. At the end of March 2009, the applicant indicated to the respondent that he was ready to return to work and asked that he start working again. In response, he was asked to stay home longer, and later told by the head chef to find another job. His subsequent attempts to contact Mr. Dacosta appear to have been ignored. It also appears that Mr. Dacosta did not follow through on his assurance to contact the applicant.

14Based on the undisputed facts before me, I am satisfied that the respondent used the applicant’s disability-related absence as an opportunity to discontinue any meaningful employment of the applicant. As such, I find that the applicant was subjected to discrimination on the basis of disability in employment, contrary to sections 5(1) and 9 of the Code. Based on the vicarious liability provision in section 46.3(1) of the Code, the respondent restaurant is clearly liable for this violation of the Code.

REMEDY

15The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides, among other things, the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and the power to direct any party to do anything to promote compliance with the Code.

Monetary Compensation for Injury to Dignity, Feelings and Self-Respect

16In the circumstances, I find that it is appropriate to award the applicant compensation for injury to dignity, feelings and self-respect.

17Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified relevant criteria to be used in assessing the appropriate quantum of damages to compensate for the infringement of rights enumerated in the Code. See Sanford v. Koop, 2005 HRTO 53). The Tribunal has found the criteria developed in previous cases to be helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See S.H. v. M[...] Painting, 2009 HRTO 595 and Hughes v. 1308581 Ontario, 2009 HRTO 341. The Ontario Divisional Court, in ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

18The applicant worked for the respondent for a little over four years. At the hearing, he explained that he felt very bad as a result of what happened because he worked “all the time” for the respondent and he worked hard. In the circumstances, I find that an award of $8,000.00, inclusive of pre-judgment interest, is appropriate as compensation for injury to the applicant’s dignity, feelings and self-respect.

Lost wages

19In his Application, the applicant seeks $2800.00, representing four weeks lost wages. At the hearing, the applicant explained that he earned approximately $1,300.00 to $1,400.00 every two weeks, after deductions. He also indicated that he obtained alternate employment on May 4, 2009.

20The applicant provided a number of pay stubs indicating that his regular gross earnings were $1672.00, plus vacation pay, every two weeks. It appears from the pay stubs that he often worked overtime and seldom worked less than his regular hours. It is not clear, however, how busy the respondent would have been in and around April 2009 and incomplete pay stubs were provided for this time period in 2008.

21At the end of March, and in early April of 2009, the applicant attempted to return to work. In light of my finding that the respondent subjected the applicant to discrimination in failing to facilitate his return to work, I find that an award in respect of lost wages is appropriate. As the applicant commenced alternate employment on May 4, 2009, I find that an award for lost wages in the amount of $3344.00, reflecting regular earnings for four weeks, plus vacation pay and less any statutory deductions, is appropriate. Pre-judgment interest is payable on this amount from April 20, 2009, in accordance with the Courts of Justice Act, R.S.O. 1990 c. C.43.

Post-judgment interest

22Post-judgment interest is payable on the above amounts, in accordance with the Courts of Justice Act, and should run from 30 days from the date of this Decision.

ORDER

23Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent is liable to pay the applicant the following amounts:

   a. $8,000.00 in respect of compensation for loss arising out of the infringement of his rights, including injury to dignity, feelings and self-respect;

   b. $3344.00 in respect of loss wages, plus vacation pay and less any statutory deductions;

   c. Pre-judgment interest on the net amount in sub-paragraph “b” above, payable from April 20, 2009, to the date of this Decision, in accordance with the Courts of Justice Act;

   d. Post-judgment interest is payable on any of the above amounts not paid to the applicant within 30 days of the date of this Decision, in accordance with the Courts of Justice Act;

   e. I shall remain seized to deal with any issues which may arise relating to the implementation of this Decision.