HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gordon Lemaire
Applicant
-and-
Heritage Ford Sales Limited, Greg Bleeks and Arthur Ophelders
Respondents
case Resolution Conference DECISION
Adjudicator: David Muir
Indexed as: Lemaire v. Heritage Ford Sales
AppearanceS BY
Gordon Lemaire, Applicant ) Laura Hunter,
) Counsel
Heritage Ford Sales Limited, Greg Bleeks ) Lior Samfiru,
and Arthur Ophelders, Respondents ) Counsel
1This is an Application filed on December 24, 2008 under section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
2A Case Resolution Conference (“hearing”) was held in Toronto on November 2, 2009 in accordance with the expectations set out in the Tribunal’s Rules for Transitional Applications. I heard from the applicant and the two personal respondents. At the respondents’ request, and with the consent of the applicant, the respondents led their evidence first.
3The applicant alleges that he was discriminated against in employment on the basis of disability. The allegations, as framed in the human rights complaint underlying this Application, fall into two general categories. First, it is alleged that the respondents harassed the applicant because he had been injured at work and filed two workers’ compensation claims.
4The second general allegation is that the respondents, by their treatment of the applicant both in respect of the workers’ compensation claim and their treatment of him on his final day of work, June 11, 2007, created a poisoned work environment that made it impossible for the applicant to return to the workplace. It is also alleged that the respondents in their conduct on June 11, 2007, subjected him to taunts and disparaging comments which constituted direct discrimination on the basis of disability.
5The Application is allowed in part. I find that the respondents violated the applicant’s rights under the Code in the manner in which they treated him on June 11, 2007 in the course of a verbal and physical altercation that occurred that day. I am not persuaded however that the conduct of the employer, although egregious, was the cause of the applicant’s not returning to work or his apparent inability to successfully maintain an employment relationship subsequent to his leaving this workplace. In fact the evidence suggests that the applicant was by June 11 incapable of sustained employment and that he repeatedly requested that he be laid off because he understood that he could no longer work. My reasons for these conclusions follow.
6The applicant was hired by the corporate respondent (the “employer”) in January 2006. He was employed as an automobile mechanic and was a good one. The corporate respondent operates an automobile dealership. The respondent Bleeks is the owner and respondent Ophelders was the Parts and Service Manager at the material times.
7The applicant left the workplace on June 11, 2007 and did not return. Although he has made attempts to return to sustained employment since leaving the corporate respondent, he has been unable to do so.
8A significant issue in this case relates to the state of the applicant’s mental health during his employment with the respondents. There is no contemporaneous medical evidence and the later produced reports must be viewed with some caution. Nonetheless, there is little doubt that the applicant has struggled with significant mental health issues for much of his adult life including during his employment with the respondent employer. In a consultation record created in September 2008, a psychiatrist described his impressions of the applicant at that time:
The patient is presenting with acute psychotic illness likely mood disorder related (bipolar disorder versus major depression with psychotic features). He has improved I do not see that he would meet criteria for Form 1 now as he is posing no threat to himself, is compliant with treatment and has some insight.
9The applicant’s medical condition goes to the heart of the dispute between the parties. It also appears to have had some impact on the applicant’s ability to accurately recall events. One of the acknowledged symptoms of his disability is paranoia and an inability at times to distinguish fantasy from reality. The applicant conceded that in respect of some of the critical events, he may have been in what he described as a “singular” state when he could be come unaware of what was happening to and around him. On the other hand, the applicant said that when he perceived he was in this state he would write things down on pieces of paper which he could subsequently use to reconstruct events. The applicant testified that he made such notes on June 11 as the situation deteriorated in order that there would be some kind of record. The applicant also stated that the allegations made in the complaint are based on those notes.
10There is no doubt that the respondents were aware in a general sense that the applicant was a person with a disability. Mr. Bleeks testified that he was told by the applicant that he suffered from schizophrenia. The applicant does not recall informing Mr. Bleeks of his medical issues but it was clear from their testimony at the hearing that the respondent Bleeks had somehow been made aware of some of the details.
11Mr. Ophelders stated that he was never advised by Mr. Bleeks or the applicant that he suffered from schizophrenia but he did know that the applicant heard “voices” and was often emotionally labile. He also stated in response to a question from me, that it would have been helpful to know more about the applicant’s state of health.
12The respondents’ theory of the case is that the applicant was an enormous problem in the workplace and that they were constantly intervening to assist him by allowing him time off whenever he asked for it which, it is claimed, was very often. The WSIB file also indicates that the employer was aware of “some mental issues for which he [the applicant] is being treated”.
13It is not disputed that despite being aware to some degree that the applicant was a person with a disability, no enquiries were made of him by the respondents and no discussion of accommodations which might be required were initiated by either party. It is also agreed that the applicant asked for and was granted an extended leave of eight to ten weeks in January and February 2007 in an effort to get better. Other than the parties acknowledging that the leave was asked for, granted and was related in some way to the applicant’s mental health problems, there is no other evidence concerning this leave, its purposes or its results.
14It is also clear from the evidence that the applicant was becoming increasingly unhappy in this workplace. The work that the applicant performed was paid on a flat rate system, a sort of piece work scheme where employees are paid for a piece of work regardless of how little or long a time it takes to complete. The applicant testified that while at first he was happy with the system and how it was working for him, he became increasingly unhappy over time. The applicant did not suggest that this particular issue gave rise to any Code related concerns and given the lack of contemporaneous medical records it is impossible to determine whether this unhappiness and concomitant workplace stress was a consequence, exacerbating factor or some combination of the two in the unravelling of this employment relationship.
15The heart of the dispute relates to the events of June 11, 2007. By way of background, the applicant made a WSIB claim in late March 2007 about which there was considerable confusion in terms of whether or not it was a lost time accident. The applicant alleges that the employer was not happy about the claim and made some veiled threats of negative consequences. The evidence with respect to this aspect of the Application is too limited to come to any definitive conclusions one way or the other. On or about June 6, 2007, the applicant alleges that he suffered a second minor injury at work and claims that the employer was unwilling to report the accident as it was required to.
16There is no dispute that there was a serious verbal altercation on June 11. There is also no dispute that respondent Bleeks forcibly walked the applicant out of the building and off the property.
17The essence of the applicant’s allegation respecting the genesis of the conflict on June 11, 2007 was what he perceived to be an attempt by the respondents to pressure him into not pursuing the second compensation claim. The respondents deny this and deny that the compensation claim was in any way related to the events of June 11. The respondents say that the conflict that day was the recurring one of the applicant complaining about the jobs he was being assigned and the rate consequences for him of those jobs and that it escalated to the point where Mr. Bleeks became involved, culminating in the applicant being escorted from the building.
18I find that the preponderance of the evidence supports the applicant’s version of events. The applicant agrees that there had been a dispute about a job assignment that morning and notes created by Mr. Ophelders that day document a workplace dispute about job assignments. But contrary to the narrative presented by the respondents at the hearing, the employer’s contemporaneous record indicates that the job assignment was resolved and the applicant calmed down after being requested to do so.
19The applicant testified that after the first dispute was resolved between himself and Mr. Ophelders he was approached by respondents Bleeks and Ophelders. The applicant testified that Mr. Bleeks told him that the applicant was taking money “out of his pocket” by filing the compensation claims. The applicant also stated that Mr. Bleeks said that the employer would “starve” the applicant out. He was able to describe the incident in explicit detail. The dispute escalated quickly at that stage with the employer demanding that the applicant go home and the applicant demanding that the employer call the police.
20I would be reluctant to conclude based on the applicant’s evidence alone that the compensation claim was raised with him that morning, however there are contemporaneous records that tend to support his version. The applicant appears to have reported that the genesis of the conflict was the compensation claim to both the WSIB and the attending physician at Toronto East General Hospital on June 11. Further, despite the respondents’ denial that the compensation claim was a topic for discussion, it is clear that the issue of this second compensation claim was an issue on June 11 as both Mr. Ophelders and the applicant spoke to the WSIB about the claim on that date. In particular, I note that Mr. Ophelders contacted the WSIB twice on June 11, once while the crisis was unfolding at the workplace. I also note that the Form 7 reporting the accident on June 6 to the WSIB is dated and signed by Mr. Ophelders on June 11. Finally, when the respondent Bleeks was asked whether there would have been financial consequences for his business in the event that the applicant made a second compensation claim, he testified that he did not know and was not much concerned about it. This seems unlikely.
21There is no dispute that the applicant became upset during the course of these discussions, indeed at one point he agrees that he was likely screaming. The applicant testified that during the course of this unfolding verbal altercation Mr. Bleeks looked at him, pointed his index finger at his own head and made a circular motion with his hand. He then said, according to the applicant, “you are a fucking mental case”. When asked whether he had made such a gesture Mr. Bleeks responded not with a denial but a question –“why would I, I was always trying to build him up”. I did not find the response convincing and it seems to me more likely than not that in the heat of the moment – it being agreed that the applicant was likely screaming at the top of his lungs at this point – Mr. Bleeks in anger did make the gesture that the applicant has alleged.
22It is also not disputed Mr. Bleeks grabbed the applicant by the back of the neck and arm and escorted him out of the building to the edge of the property. When asked why he had done so, Mr. Bleeks responded that it was his property and he was entitled to do so. Police, ambulance and firefighters, having been called by the applicant, attended the scene and the applicant was taken to the hospital.
23The applicant never returned to the workplace. The employer caused an ROE to be created on June 19, 2007 which indicated that the applicant had not been terminated. The applicant testified that he was afraid to return to work because of the manner in which he had been treated by Mr. Bleeks including the hand gesture and his being escorted off the property. The employer sent an ROE together with any unpaid wages owing to the applicant by registered mail. The ROE was explicit in indicating that the applicant had not been terminated but it contemplated an interruption of employment of indeterminate length. The applicant returned the letter and its contents with a note to Mr. Ophelders telling him to stop harassing him and to leave him alone. The applicant returned to the workplace on two occasions to collect personal items and although the applicant’s physician cleared him to return to work approximately 12 weeks later, the parties had no further contact with each other. As indicated no contemporaneous medical evidence was lead with respect to the applicant’s medical condition at the material times. The respondent apparently formally terminated the applicant’s employment as indicated by an ROE dated in October 2007.
24I find that the manner in which the applicant was treated by the employer on June 11 was in violation of the Code. Knowing what he knew about the applicant’s fragile mental state, Mr. Bleeks’ actions on June 11 were a violation of the applicant’s right to be free from discrimination in the workplace. I find that the employer likely at least raised the applicant’s second compensation claim. I also find that it is more likely than not that the respondent Bleeks made the offensive hand gesture and remark to the applicant respecting a disability that Mr. Bleeks was aware of. I also find, and this is not disputed in any material respect, that the respondent Bleeks did not nothing to de-escalate the situation, but rather he frog-marched the applicant out of the building in a significant state of crisis. To be clear it does not matter whether the crisis that day began with an employer threat regarding the applicant’s compensation claims or was entirely the result of an unprovoked mental breakdown the manner in which he was treated was entirely inappropriate.
25The respondents ask rhetorically, what more could they have done? I appreciate that the applicant appears to have presented some management challenges, however given what they did know of his medical issues a first step might have been to request further information of him in order that they could better meet their obligations under the Code. In this regard, Mr. Bleeks apparently had greater insight into the applicant’s condition than Mr. Ophelders who worked with the applicant on a day to day basis he did not inform Mr. Ophelders about what he knew and took no further steps himself. I also find that despite their claims to have bent over backwards in their efforts to accommodate the applicant, in addition to not educating themselves, the respondents did very little. The claim that the employer accommodated the applicant by tolerating his routine requests for time off and his alleged failures to show up for work is greatly exaggerated. No documentation of the applicant’s alleged absenteeism was provided by the respondents and the record of other interventions in the workplace is non-existent. I accept the applicant’s evidence that he regularly attended at work and, although he did take time off from time to time, he never failed to show up as alleged by the respondents.
26I also find that by June 11, 2007, the applicant was likely incapable of continuing employment with this respondent and would have been unable to continue much longer even had the events of June 11 not occurred. In addition to the applicant’s underlying medical issues the evidence is that he was becoming increasingly unhappy with his work situation either as a consequence of or possibly exacerbating his mental health problems. I note in this regard that the applicant had been off for 8 to 10 weeks earlier in 2007 in an effort to deal with his mental health problems. Despite this extended leave of absence applicant’s subsequent repeated and acknowledged requests to be laid off are perhaps the best evidence of the fact that he was feeling unable to go on. As well as noted above, I have no contemporaneous medical records or evidence respecting the applicants’ state of mind on or about June 11 and subsequently.
27Given the limited evidence available it is impossible to tease out from all of the possible causes, the reasons why the applicant was unable to return to this workplace. I also note that the applicant although apparently cleared to return to work in August 2007 has been unable despite several attempts, to work on a sustained basis ever since. The only evidence that might explain this is the medical evidence created after the material events in this case which describes longstanding medical issues going back many years. As a result, I am not satisfied based on the evidence before me that these respondents can be held responsible for the applicant’s subsequent inability to maintain sustained employment.
Remedies
28Section 45.2 of the Code sets out the Tribunal’s remedial powers:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
29In light of my finding that the applicant was unable to work any longer as of June 11, 2007, there is no basis for an award of for lost wages and benefits.
30The applicant is entitled to an award of monetary compensation for the infringement of his right to be free from discrimination and in that regard claimed $15,000.00. The applicant submitted that there was an element of recklessness on the part of Mr. Bleeks in particular, in the manner in which he treated the applicant on his final day of employment.
31In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the Court held that Tribunals should consider the following factors in making these awards: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment. In addition to the subjective effects of discrimination on an applicant, it has also been held that it is appropriate to consider the surrounding circumstances and incorporate an objective component to the quantification of monetary compensation: see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.
32Having regard to the factors outlined in Lane, supra, I find that a significant award is warranted in these circumstances, despite the fact that I have only found a Code violation in relation to the June 11 incidents. In this regard, I find that the conduct of the respondent Bleeks was particularly egregious. The offensive hand gesture and discriminatory slur can not but have had an impact on the applicant’s sense of dignity, confidence and his self-respect. Rather than call for medical assistance or seeking ways to defuse the situation, the respondent Bleeks stood on what he understood to be his property rights and manhandled an obviously distraught individual to the curb where he was left to await assistance called for by the applicant himself.
33I accept that being forcibly marched out to the street was humiliating for the applicant. In this regard I accept the applicant’s evidence that these events had a significant impact on him and it was this in addition to his other mental health challenges that caused him to return his final pay cheque to the respondent. As his representative pointed out in this regard, the applicant was a particularly vulnerable person at the time. I also note that respondent Bleeks is the owner of the dealership. On the other hand, I have concluded that this one event did not effectively end the employment relationship. In all the circumstances, I find that an award of $10.000.00 is appropriate.
34The applicant also sought an Order requiring the posting of a “Szabo” notice in this workplace ensuring that employees were made aware of their right to file workers’ compensation claims without harassment. I have made only limited findings in respect of this aspect of the Application and accordingly find that it would not be appropriate to make such an Order in all of the circumstances.
35The Tribunal makes the following Orders:
The respondents Bleeks and Heritage Ford Sales are jointly and severally liable to pay the sum of $10,000.00 inclusive of pre-judgment interest to the applicant for violation of his inherent right to be free from discrimination, and for injury to his self-esteem, dignity, feelings and self-respect.
The respondents shall pay the applicant post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Decision.
Dated at Toronto, this 13^th^ day of January, 2010.
“Signed by”
David Muir
Vice-chair```