Tofflemire v. Metro (Windsor) Enterprises, 2010 HRTO 69

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harry Tofflemire Applicant

-and-

Metro (Windsor) Enterprises Inc. and Ryan Soulliere Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist Date: January 14, 2010 Citation: 2010 HRTO 69 Indexed as: Tofflemire v. Metro (Windsor) Enterprises

1This Decision addresses a Request for Reconsideration (the “Request”) filed by the applicant in respect to a Tribunal decision dated September 14, 2009, 2009 HRTO 1471 (the “Decision”).

2In its Decision the Tribunal concluded that Metro (Windsor) Enterprises Inc. and Ryan Soulliere (the respondents) had contravened section 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), when they failed to provide Harry Tofflemire (the applicant) with reasonable accommodation. As a consequence the Tribunal made the following Order:

1. Within 30 days of the date of this Decision, the respondents shall pay the applicant $7,500 as compensation for injury to dignity, feelings and self-respect and lost wages for the temporary summer position. The amount for lost wages will be the difference between the wages the applicant would have received in the temporary summer position beginning August 18, 2008 and the benefits the applicant received during this period.

2. Pre-judgment interest is payable on the award for wage loss from the date of the Application to the date of this decision in accordance with the Courts of Justice Act. Post-judgment interest is payable on all amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.

3. Within 30 days of the date of this Decision the respondents shall resolve the applicant’s employment status with Metro and provide, if required, entitlements under the ESA.

The applicant’s Request was for subparagraphs 1 and 3 of this Order to be amended.

3On December 3, 2009, the applicant filed a further Request for an Order during Proceedings to indicate that he was no longer seeking reconsideration of subparagraph 3 of the September 14, 2009 decision.

4On December 8, 2009, the Tribunal asked for submissions from the respondents in response to the applicant’s Request and indicated that the applicant had the further right to provide reply submissions. The Tribunal has now received submissions from the respondents and the applicant.

Submissions

5The applicant argues in his original Request that the Tribunal should have ordered the respondents to pay lost wages to the applicant, specifically the wages the applicant would have received in the temporary summer position beginning August 18, 2008. Instead the Tribunal ordered the respondents to pay the difference between these wages and the Canada Pension Plan (“CPP”) disability benefits the applicant did receive during this period of time. The applicant argues that this decision to have benefits deducted from an award involving compensation for lost wages is in conflict with human rights jurisprudence which holds that compensation for lost wages only deducts wages earned from other jobs, not benefits, when determining what an applicant would have earned had discrimination not occurred.

6The applicant makes two principal arguments. One, benefits such as those received by the applicant in this matter (Employment Insurance Sickness benefits and CPP Disability Benefits) are collateral benefits which are irrelevant to the dispute between the parties. Two, any repayment of benefit obligations that are owed to the respective benefits providers are governed by their statutory schemes and the repayment of these benefits should not be decided as part of an award for lost wages.

7The respondents oppose the Request. They argue that since CPP benefits are considered taxable income they are to be offset against any award of lost wages made by the Tribunal (or any other Tribunal). Consequently, they are in agreement with subparagraph 1 of the Order from the Tribunal’s September 14, 2009 decision. In support of this argument the respondents cite the decisions in Barnes v. The Queen (58 D.T.C. 2073, 2003 TCC 832) in which CPP Disability benefit payments are considered income under the Income Tax Act, and a Workplace Safety and Insurance Appeal Tribunal decision in which CPP Disability payments are deducted against Workers Compensation payments: Decision No. 1534/04, 2004 ONWSIAT 2128.

8The respondents also submit that the wages the applicant would have earned in the temporary summer job beginning August 18, 2009, would have totalled $2,170.70 which would be less than the CPP Disability benefits the applicant actually received for this same period. Thus, if the Tribunal was to accept the respondents’ submissions that disability benefits should be deducted from the compensation for lost wages there is no outstanding amount of lost wages owed to the applicant.

9The applicant argues in his further reply submissions that the two decisions cited by the respondents relate to statutes with specific provisions that either mandate the deduction of CPP benefits or define income for the purposes of taxation as including a benefit under CPP. As the Code contains no comparable provisions about monetary awards these two cited decisions are distinguishable from the present case.

10The applicant goes on to argue that the common law practice is to recognize that benefits collected by a plaintiff from a collateral source are not deductible against an award of special damages for lost income: Cugliari v. White, 1998 CanLII 5505 (ON C.A.). The applicant further submits

At common law, it is accepted that the wrongdoer ought not have the benefit of insurance or other public or private schemes designed to protect persons at times of accident or loss. Case law has concluded that collateral benefits were intended to insure the employee against the risk of unemployment caused by illness or accident and not for the advantage of the wrongdoer who caused the employee to be unemployable.

11The applicant further argues that human rights tribunals have consistently followed the common law practice not to deduct benefits in awards of special damages and cites a number of human rights cases in support of this contention: Fuller v. Candur Plastics Ltd. (1981) 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 (Ont Bd. Of Inquiry); Shepherd v. Pines Motel (1993) 1993 CanLII 16442 (ON HRT), 22 C.H.R.R. D/343 (Ont. Bd. Inq.); Parks v. Christian Horizons (No. 2), (1992) 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd. Inq.).

Decision

12The applicant’s Request is made pursuant to Rule 26.5(c), which states:

26.5 A request for reconsideration will not be granted unless the Tribunal is satisfied that:

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance;

13Having considered the parties’ submissions I am satisfied that subparagraph 1 of the Order in Decision is in conflict with established jurisprudence and should be amended. I am satisfied that benefits received from a source such as CPP are collateral to the dispute between the parties and as such should not be deducted from an award for lost wages.

14It is true that by not allowing such deductions an applicant receives lost wages for a period in which he or she also received benefits. However, benefit providers can seek repayment of benefits pursuant to the provisions of their governing statutes.

15I also agree with the applicant that the respondents’ cited case law can be distinguished on the basis that it refers to very specific statutory provisions that allow for certain types of benefits to be deducted from an award and is not applicable to compensation under the Code.

Order

16The Tribunal’s Order in 2009 HRTO 1471) is amended to state:

1. Within 30 days of the date of the Decision of September 14, 2009, (the “Decision”) the respondents shall pay the applicant $7,500 as compensation for injury to dignity, feelings and self-respect and lost wages for the temporary summer position. Within 30 days of this Reconsideration Decision the respondents shall pay the applicant the wages the applicant would have received in the temporary summer position beginning August 18, 2008.

2. Pre-judgment interest is payable on the award for wage loss from the date of the Application to the date of the Decision in accordance with the Courts of Justice Act. Post-judgment interest is payable on all amount not paid within 30 days of the date of this Reconsideration Decision in accordance with the Courts of Justice Act.

3. Within 30 days of the date of the Decision the respondents shall resolve the applicant’s employment status with Metro and provide, if required, entitlements under the ESA.