Una Clennon v. Toronto East General Hospital, 2010 HRTO 506

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Una Clennon

Applicant

• and-

Toronto East General Hospital

Respondent

DECISION ON REMEDY

Adjudicator: Mark Hart

Date: March 5, 2010

Citation: 2010 HRTO 506

Indexed as: Clennon v. Toronto East General Hospital

WRITTEN SUBMISSIONS BY

Una Clennon, Applicant ) Ernest J. Guiste, Counsel

Toronto East General Hospital, ) Jennifer Fantini and Respondent ) Lisa Cabel, Counsel

1In my Case Resolution Conference decision (the “CRC Decision”) in this matter, 2009 HRTO 1242, I found that while there were significant issues with the applicant’s work performance as Manager that were untainted by age discrimination, the respondent failed to take steps to address these performance issues with the applicant and I accordingly drew the inference that age was a factor in this failure and thereby tainted the respondent’s decision to terminate the applicant’s employment.

2Because this matter had been bifurcated to deal first with issues of liability and then with any issues of remedy, I requested that the parties file written submissions as to the remedies sought in light of my findings. This Decision addresses the written submissions filed by the parties.

3As part of the applicant’s submissions on remedy, she sought reconsideration of my decision on liability in this matter. That request is premature, as reconsideration under the Tribunal’s Rules lies only from a final decision: see Rule 25.1. This decision on remedy now represents the Tribunal’s final decision in this matter, and the applicant is free to renew her request for reconsideration if she so wishes in relation to both my decision on liability and this decision on remedy, by filing a Request for Reconsideration (Form TR-8) in accordance with the requirements of Rule 25 of the Tribunal’s Rules for Transitional Applications.

General Principles

4The guiding principle in human rights law is that the remedy for discrimination serves to put the applicant in the position she would have been in had the discrimination not occurred. Accordingly, as stated in my CRC Decision in this matter, my assessment of remedy is made on the basis that the applicant was experiencing significant performance issues as Manager and I need to consider what more likely than not would have occurred had the respondent taken appropriate steps to address these performance issues in the manner outlined by the Vice-President in his evidence and as discussed in the CRC Decision.

5The respondent submits that given the applicant’s lack of formal training and managerial experience and her serious performance problems, it is unlikely that she would have responded to any performance management plan so as to bring her performance up to an acceptable standard and would have been dismissed in any event for her unsatisfactory performance.

6In the CRC Decision, I found that the respondent provided credible evidence to support that there were significant issues with the applicant’s work performance as Manager. Specifically, I found that the May 31, 2004 360-degree performance assessment was a negative assessment of the applicant’s performance as Manager, and the Director’s assessment identified the applicant’s difficulty in dealing with challenging staff members, the need for the applicant to take a more active role in budget development and variance analysis and become more confident and familiar with computer software programs, and the need for the applicant to take on more of a leadership role when implementing new projects. In addition, I found that several troubling themes emerged from the comments made by the other assessors chosen to participate in the 360-degree review, including a lack of support for staff, a lack of role modeling, a lack of visibility in the unit, and a lack of enthusiasm. I further found that the Director’s concerns with the applicant’s work performance and the themes emerging from the 360-degree performance assessment were supported by evidence relating to specific incidents and issues that arose both before and after the assessment.

7The question for me to determine is whether, had the respondent implemented a performance management plan following the May 31, 2004 assessment, would the applicant have responded to this plan and improved her work performance to the point where her employment as Manager would not have been terminated? In my view, this is unlikely. The applicant in my view lacked a level of self-awareness as to the seriousness and significance of her own performance deficiencies. This was evident from the disparity between the applicant’s self-assessment on the May 31, 2004 appraisal as compared to the assessments of the Director and the other assessors, and the extent to which she was shocked by the evaluation of her performance. It also was evident in the applicant’s evidence in response to the specific incidents raised by the respondent, which she generally denied as being legitimate bases for concern.

8In making my determination, I am instructed by the adage that in order to solve a problem, a person first must recognize that there is a problem. I did not see this from the applicant. As a result, in my view, it is more likely than not that, even had a performance management plan been implemented, the applicant is unlikely to have been willing to accept and acknowledge her performance deficiencies as a first step to correcting them.

9Accordingly, I find that even if a performance management plan had been implemented, the applicant’s employment as Manager still would have been terminated by the respondent. In terms of the timing of the termination, I find that a period of over one year for implementation of a performance management plan is not unreasonable, with the result that I find that the applicant’s employment as Manager would have been terminated on July 5, 2005 in any event.

Monetary Compensation for Lost Wages and Benefits

10This raises the question as to what remedy should be provided to the applicant in relation to her claim for lost wages and benefits, given that I have found that she would have been terminated in any event even had the discrimination not occurred.

11In its submissions, the respondent has identified three possible scenarios: (1) that the applicant may have been dismissed for cause; (2) that the remedial award should be based upon as assessment of reasonable notice subject to mitigation; and (3) that the remedial award should be assessed on the basis of the actual terms of severance offered to the applicant.

12In my view, the first scenario is unlikely. The respondent didn’t assert cause for dismissal in the actual event of the applicant’s termination, and I find would have been unlikely to do so if the applicant had failed to meet the requirements of a performance management plan.

13This leaves the latter two scenarios. In weighing these two scenarios, in my view the best evidence as to what likely would have happened is the severance package that the respondent actually offered to the applicant. I see no reason why the same severance package wouldn’t have been offered to the applicant if a performance management plan had been implemented and she had failed to fulfil its terms.

14In my view, the difference would have been in relation to the likely acceptability of the severance package to the applicant. The applicant balked at signing the release required as part of the proposed severance package on the basis that it required her to acknowledge that the respondent had complied with the Code and that no facts exist which could give rise to a complaint under the Code. Obviously, that would not have been an accurate statement in light of the findings I have made in this proceeding.

15However, having gone through a performance management plan, where her performance deficiencies were clearly identified to her and requirements established to monitor her efforts to improve, it is my view that the termination of the applicant’s employment at the conclusion of such a plan would not have come as such a shock to her and, while she may not have agreed with the result, she would have had a greater understanding of the potential for this action to be taken and the respondent’s reasons for doing so. As a result, whether on her own or in consultation with counsel, I find it more likely than not that the proposed severance package would have been acceptable to the applicant if the discrimination had not occurred.

16This leaves the question of the quantum of compensation for lost wages and benefits had the applicant accepted the proposed severance package. The respondent submits that the applicant secured alternate employment within the statutory notice period for which she was paid. As a result, under the terms of the proposed severance package, the applicant would have been entitled to a pay-out of 50% of the balance remaining.

17This raises the question of when the applicant can be considered to have secured alternate employment. Following the termination of her employment at the respondent, it is clear that the applicant worked as a nurse at Markham Stouffville Hospital (“MSH”). However, the applicant had been working on a part-time basis at MSH throughout the entire period that she was employed as a Manager at the respondent hospital, earning an average of slightly more than $30,000 per year from this part-time employment at MSH. While the amount she earned from MSH in 2005 was somewhat higher ($40,491), it is not out of line with what she earned during the preceding year when she was employed as a Manager by the respondent ($39,635). As a result, I do not find that the applicant’s employment at MSH during the 2005 year constitutes alternate employment within the meaning of the proposed severance package.

18During the 2005 year, the applicant also performed some work teaching for Humber College. However, this also was only part-time and occasional work, and her earnings from Humber College in 2005 only amounted to a total of $11,619.

19In contrast, in the 2006 year, the applicant earned $63,796 from MSH and a further $28,285 from Humber College, for a total of $92,081. In my view, earnings at this level would constitute alternate employment within the meaning of the proposed severance package, so as to trigger the 50% payout of the remaining balance. As a result, I find that the applicant obtained alternate employment as of January 1, 2006.

20The proposed severance package was to provide payment of the applicant’s salary at her annual rate at the time of termination for a period of 78 weeks. By the end of the 2005 year, 25 weeks had elapsed from the effective date of termination on July 5, 2005, leaving a balance of 53 weeks to be paid. At a 50% payout, the applicant would be entitled to 26.5 weeks times her salary. Based upon the statutory entitlements paid by the respondent, I have calculated the applicant’s weekly salary to be $1,130.86 ($36,846.66 statutory payment divided by 32.583 weeks), such that the 50% payout as of January 1, 2006 would be $29,967.79. From this would need to be deducted the portion of the applicant’s statutory entitlements that she was paid and that is attributable to the 2006 year, which is 7.583 weeks or $8,575.31, leaving a balance owing of $21,392.48.

21As this amount would have been payable as of January 1, 2006, I also award pre-judgment interest on the full amount from that date to the date of this decision at the annual pre-judgment interest rate of 3.3%, for total interest to date in the amount of $2,941.46.

22The respondent has taken the position that this would represent a “windfall” to the applicant given that she secured alternate employment. This arises in any severance package which entails salary continuance with a payout if the former employee obtains alternate employment during the salary continuance period. While this may be regarded as a “windfall” in the sense that the payout exceeds what the former employee’s entitlement may be at common law, it nonetheless is utilized by many employers as an incentive for terminated employees to actively seek out and obtain alternate employment rather than simply waiting until the end of the salary continuance period, which is of significant benefit to the employer. In any event, these were the terms of the severance package proposed by the respondent to the applicant, which I have found more likely than not still would have been offered to her had the discrimination not occurred and that she more likely than not would have accepted.

23The applicant claims a top-up of 15% for lost benefits and a further top-up of 3% for cost of living adjustments (“COLA”). Neither of these claims is allowed, as they do not flow from the basis underlying my remedial award. The applicant’s benefits were continued by the respondent until January 31, 2007, and in fact remained in effect to April 9, 2007 due to a clerical error. As a result, the applicant suffered no loss in respect of her benefits as the terms of the proposed severance package were satisfied. In addition, the proposed severance package did not make provision for COLA, so there is no basis upon which the applicant is entitled to claim this amount.

24The applicant claims pension contributions that would have been made by the employer. Under the terms of the proposed severance package, the respondent stated that it would continue to make pension contributions on the applicant’s behalf during the salary continuation period. The respondent continued to make pension contributions on the applicant’s behalf until December 31, 2005. As I have found that the applicant’s salary continuation would have ended as of December 31, 2005, the applicant would have no entitlement to compensation for lost pension contributions beyond that date.

25The applicant claims for the loss of her life insurance plan, and takes the position that had she not been dismissed she would have been able to transfer this benefit. Under the terms of the proposed severance package, the applicant would have remained covered for life insurance until August 29, 2005. She also was advised to contact a representative of the respondent if she wished to transfer her life insurance to a private plan. The evidence does not support that the applicant suffered any compensable loss in this regard.

Reinstatement

26The applicant claims entitlement to reinstatement. Given the finding that I have made in this decision that the applicant’s employment as Manager would have been terminated even if the respondent had implemented a performance management plan, there is no proper basis to support an order to reinstate the applicant to the Manager position.

27However, the applicant further claims entitlement to reinstatement as a staff nurse at the respondent hospital, which is the position that she occupied for many years prior to becoming a Manager. The problem with this claim is that it does not flow from the allegations of discrimination raised in this proceeding or from the finding of discrimination that I have made.

28In deciding to terminate the applicant’s employment, there was no requirement for the respondent to place her back into the position she occupied before she became a Manager. In order for me to have remedial authority under the Code to make such an award, the remedy needs to arise out of the infringement that I have found. I have not found that any failure by the respondent to maintain the applicant’s employment and revert her back to a staff nurse was in violation of the Code, nor was any such allegation raised in this proceeding or supported by the evidence. As a result, there is simply no proper basis upon which to make such an order of reinstatement, and this remedy is denied.

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

29In support of her claim for compensation for injury to dignity, feelings and self-respect, the applicant has submitted a letter from a psychiatrist dated October 24, 2005 which states that the applicant was depressed following the termination of her employment, and notes that she had never been depressed nor had seen a psychiatrist previously. The psychiatrist states that the applicant was crying a lot and feels hopeless, that she was experiencing insomnia and required sleeping medication, that she wakes up with anxiety and feels like someone is pressing on her, that her appetite has been diminished and she has lost weight, and that she has a poor energy level, loss of interest and has been more socially withdrawn. The applicant was diagnosed with a major depressive episode.

30The applicant also submitted a letter from her family doctor dated July 2, 2006. This letter states that on July 5, 2005, after the termination of her employment, the applicant presented in her doctor’s office in a very distressed state and was very sad, upset, crying and unsure of her future options. As a result of increased symptoms of depression regarding her job loss, the applicant was referred to a psychiatrist. The family doctor states that he has continued to see the applicant since then, and she continued to be quite depressed and sad and showed significant anxiety about her future career options. The family doctor also notes that the applicant does not have any previous history of depression or psychiatric disorders.

31The applicant also submitted two further letters from her psychiatrist, one dated April 10, 2008 and the other dated October 6, 2008. In the former letter, the psychiatrist states that the applicant was progressing well up to the time she developed a medical problem in December 2007, at which time she started to experience dizziness, palpitations and hypertension. In the latter letter, the psychiatrist states that the applicant had a relapse of her depression due to her deteriorated medical health, her husband’s hospitalization and their poor marital relationship. On the basis of this evidence, I find that the impact of the termination of her employment had largely resolved by December 2007, and that subsequent issues were caused by other factors.

32The applicant also submitted a list of prescription drugs that she is required to take to treat the depression, anxiety and insomnia caused by the termination of her employment. She also states, and this is confirmed by her doctors, that her relationship with her husband deteriorated significantly as a result of her depression.

33The applicant has claimed an unstated amount for mental distress damages and $25,000 as general damages for the violation of her rights under the Code. Since the amendment of the Code on June 30, 2008, there is no separate assessment for “mental distress” damages and other general damages. Rather, there is now a global assessment of non-pecuniary damages as compensation for injury to feelings, dignity and self-respect. Further, unlike under the former Code, there no longer is any requirement to find wilful or reckless conduct on the part of a respondent in order to award mental distress damages. Rather, the focus is on the impact of the discrimination on the applicant.

34The applicant also has claimed an unspecified amount for “aggravated and punitive damages for bad conduct”. The Tribunal has no jurisdiction to award punitive damages. With regard to the claim for aggravated damages, all claims for non-pecuniary loss are now subsumed under the assessment of compensation for injury, feelings and self-respect, so no separate assessment of aggravated damages will be made.

35The respondent cites a number of age discrimination cases in support of its submission that the appropriate range for non-pecuniary damages in such cases is between $7,500 on the high end and $1,200 on the low end. However, there is no indication in the cases cited by the respondent that the kind of medical evidence that is before me in the instant case formed part of the assessment of these damages.

36In my view, a better context in which to assess non-pecuniary damages is recent case law at this Tribunal where there was at least some medical or other evidence of significant distress in support of the applicant’s claim. For example, in Lopetegui v. 680247 Ontario, 2009 HRTO 1248, an award of non-pecuniary damages in the amount of $20,000 was made in the context of a termination from employment in violation of the Code, where there was evidence of emotional distress, a negative effect on family relationships, and lost self-confidence. In Maciel v. Fashion Coiffures, 2009 HRTO 1804, an award of $15,000 was made where there was evidence of depression. And in Chan v. Tai Pan Vacations, 2009 HRTO 273, an award of $15,000 was made where the applicant took pride in being a good employee and the termination had a serious emotional impact on her.

37Even in those cases, there is no reference to the kind of medical and psychiatric evidence that I have received in the instant case, nor to effects that were as serious and prolonged as those suffered by the applicant.

38At the same time, I have found that, even had the discrimination not occurred, the applicant’s employment still would have been terminated, and the termination of employment alone is likely to have caused the applicant some measure of distress. However, if the respondent had implemented a performance management plan for the applicant, I find that she more likely than not would have been better equipped to expect, understand and cope with the termination of her employment, as opposed to the termination coming as suddenly as it did without prior warning. As a result, I find that while perhaps not all of the applicant’s distress is related to the discrimination that I have found she experienced, I find that a significant portion of it was.

39In all of these circumstances, I find that an award of compensation for injury to dignity, feelings and self-respect in the total amount of $20,000 is appropriate.

Legal Expenses

40The applicant has claimed in excess of $35,000 as legal expenses in relation to this matter. This Tribunal consistently has held that it does not have jurisdiction to award costs under the current Code or its Rules: see Macdonald v. Downtown Health Club for Women 2009 HRTO 1647; Dunn v. United Transportation Union, Local 104, 2008 HRTO 405; Ugbay v. Eston Manufacturing 2009 HRTO 61; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

41As a result, no award is made for the applicant’s claim for legal expenses.

Reimbursement for Expenses

42The applicant has made a claim for the cost of medications during the period from 2005 to 2010 in the total amount of $10,000, calculated on the basis of $200 per month. As previously indicated, the applicant’s benefits coverage with the respondent remained in effect until April 2007. In addition, I have found that at least as of December 2007, the applicant’s psychiatric condition as it related to the termination of her employment had largely resolved, but then she suffered a relapse due to other factors. In addition, apart from a general “ballpark” estimate, the applicant has not submitted any specific receipts or other evidence in support of her claim. Accordingly, this claim is denied.

43The applicant also has made a claim for gas and parking associated with her weekly visits to her psychiatrist. Once again, the claim appears to be for the entire period from the time she commenced seeing her psychiatrist in October 2005 to the present date, and is again based on a “ballpark” estimate without specific receipts or other evidence to support the claim. This claim too is denied.

ORDER

44For all of these reasons, I hereby make the following order:

1. The respondent shall pay to the applicant the sum of $21,392.48 as compensation for loss of the payout under the proposed severance package, less applicable statutory deductions, plus pre-judgment interest in the amount of $2,941.46;

2. The respondent shall pay to the applicant the further sum of $20,000.00 as monetary compensation for injury to her dignity, feelings and self-respect;

3. Post-judgment interest at a rate of 2.0% in accordance with the Courts of Justice Act shall apply on all amounts owing from 30 days following the date of this Decision.