Kovacs v. Inscan Contractors, 2010 HRTO 810

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandy Kovacs

Applicant

-and-

Inscan Contractors (Ontario) Inc and John Chapman

Respondents

decision

Adjudicator: Mark Handelman

Date: April 13, 2010

Citation: 2010 HRTO 810

Indexed as: Kovacs v. Inscan Contractors

APPEARANCES

Sandy Kovacs, Applicant ) On his own behalf

Inscan Contractors (Ontario) Inc. )

and John Chapman, Respondents ) Steven J. Gearing, Counsel

Introduction

1This is an Application filed June 25, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on September 20 2006 and abandoned upon filing this Application with the Tribunal.

2This hearing was conducted on March 26, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(5) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are more than a year old by the time they reach the Tribunal.

3At the hearing, the applicant gave evidence and did not call any witnesses. The individual respondent gave evidence. Brent Chasten (“Chasten”) and Thomas Kelly (“Kelly”) were also witnesses for the respondents. Chasten was the applicant’s supervisor at the time of his injury, Kelly was the corporate respondent’s president.

Background

4The applicant was a “red card” member of Local 95 of the International Association of Heat and Frost Insulators and Asbestos Workers. Red card members were members who had not yet been apprenticed and as such were for the most part dispatched from the union hiring hall for unskilled work.

5In accordance with union protocol and at the request of the corporate respondent for workers, the union first dispatched the applicant to the corporate respondent in April 2006. The corporate respondent laid the applicant off after one week because they had no more work for him. The corporate respondent rehired the applicant in June 2006 for asbestos removal. When that work was done after about a week, the corporate respondent continued the applicant’s employment in its cement restoration division. That was not unionized work.

6On June 24 2006, while working with other of the corporate respondent’s employees in cleaning a work site, the applicant felt a burning sensation on the back of his neck. By all accounts, this was caused by caustic substances dripping onto his neck on the job site. Over the next few days, the applicant developed a rash on his arms, hands, neck, face, chest and head.

7The applicant reported the rash to his supervisor at the corporate respondent on June 26. His physician completed a “functional abilities assessment form” (“FAF”) in which he indicated that the applicant should receive modified duties until the rash cleared up. The physician, Dr. Imre Szilvassy, wrote in part on the FAF, under title “General Comments/Specific Limitations, ”continuous office type work.”

8The corporate respondent did not have office work for the applicant. Instead, they assigned him to work in their shop, where they believed he would not be at risk of exacerbating his rash. The applicant, however, asserts that the shop was not suitable for him because of the dust. However, he accepted the work and did not complain. The evidence did not explain the alleged relationship between dust and rash.

9The applicant was able to return to regular duties with the corporate respondent on July 19, 2006. The corporate respondent did not have field work for him so the applicant continued to work in the shop until August 11, 2006, when he was laid off.

10The applicant alleges that his termination was a “reprisal” for his previously “standing up for his rights,” as he put it in his evidence at this hearing. He alleges that the termination cost him an apprenticeship with the corporate respondent, allegedly promised to him by Kelly, the corporate respondent’s president.

11The applicant also alleges that the corporate respondent failed to accommodate his disability because they gave him shop work instead of office work. He alleges that the individual respondent harassed him daily by urging him to go to the company’s doctor. He further alleges two single incidents of harassment because of his temporary disability. Both incidents were at the hands of the applicant’s supervisor, Chasten. In his answer to the applicant’s Human Rights Complaint and in his evidence at this hearing, Chasten admitted he made the statements complained of but denied the circumstances the applicant alleged.

12The first incident, a few days after the applicant’s rash developed, was Chasten telling the applicant that the applicant had “girly skin.” The second incident the following week was Chasten saying to the applicant, “How’s Itchy and Scratchy today?” Itchy and Scratchy are characters in a long running animated television series.

Analysis

Was the applicant disabled?

13Section 10 of the Code defines disability and includes this provision:

(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

14The respondents’ exhibits included a letter dated September 18 2006 from the Workplace Safety & Insurance Board (“WSIB”) to the applicant and signed by one of the Board’s Adjudicators. While the Adjudicator’s decision was to deny the applicant any benefits for this injury as he lost no income, the fact that the applicant “claimed” benefits brings this particular injury within that Code subdefinition of “disability.”

Was the termination of the applicant’s employment a breach of the Code?

15One of the applicant’s allegations is that his employment was terminated because he “stood up for his rights.” Since the original complaint to the Human Rights Commission was not made until after the applicant’s employment was terminated, that complaint could not have been relevant to the individual respondent’s decision to terminate the applicant.

16The individual respondent’s evidence at the Hearing was that it was his decision to terminate the applicant’s employment, a statement Kelly (president of the corporate respondent) corroborated. I therefore take it that in saying he was “standing up for his rights,” the applicant meant that he required the corporate respondent to provide him alternate work to accommodate his disability and that he went to the WSIB for benefits.

17The individual respondent’s evidence was that, due to a shortage of work in all its divisions, the corporate respondent laid off about 20 employees in the month preceding the applicant’s layoff. The only evidence contradicting this was the applicant’s allegation that “I just know they were busy.” It will be remembered that the applicant worked for the corporate respondent for a week or so in April 2006 and was then laid off.

18The individual respondent struck me as a credible witness, much more so than the applicant, who was given to outbursts of bluster and bravado when challenged as to any of his evidence and at other times. I accepted the individual respondent’s evidence, particularly as there was no meaningful evidence to the contrary. I found as a fact that the applicant’s termination was entirely unrelated to his temporary disability or to “standing up for his rights.”

Did the applicant lose an apprenticeship opportunity because the corporate respondent violated his Code rights?

19The conclusion set out in the preceding paragraph also disposes of the applicant’s claim that he lost the opportunity to apprentice due to his disability, but I also reject his allegation that Kelly promised him an apprenticeship with the corporate respondent.

20The applicant’s evidence was that Kelly promised him an apprenticeship at some point while the applicant was working for the corporate respondent. In his evidence, Kelly acknowledged discussing apprenticeship with the applicant but denies the discussion amounted to a promise of apprenticeship.

21Kelly was an employer’s representative on the union apprenticeship committee and therefore had familiarity with the process. According to his evidence, to become an apprentice of this union, a person had to be sponsored by an employer and then apply to the union local. Kelly said that he could not sponsor the applicant until he was satisfied that the applicant had a Grade 12 equivalency, which was a condition precedent to apprenticeship. He said he told the applicant to get confirmation that his college certificate was a Grade 12 equivalency and then they would discuss it again.

22The applicant admitted in evidence that he never applied to the union for an apprenticeship.

23Kelly testified that the applicant never provided him with proof that his college certificate was a Grade 12 equivalency. His evidence was entirely credible and I prefer its precision to the applicant’s bald allegations.

24Given that the applicant never produced the proof required and never applied to the union for an apprenticeship and given my preference for Kelly’s evidence over that of the applicant, I reject the applicant’s allegation that his failure to obtain an apprenticeship was in any way related to his temporary disability or that Kelly promised him an apprenticeship.

Did the corporate respondent fail to accommodate the applicant’s disability?

25The applicant further complains that the corporate respondent failed to accommodate his disability because they gave him shop work instead of the office work referred to in the FAF completed by his doctor. Other than his unsubstantiated allegation that dust made his rash worse, he does not suggest he couldn’t do the shop work or that it in any way exacerbated his condition.

26My view of Dr. Szilvassy’s comment about “continuous office type work” is that it was intended to protect the applicant from exposure to hazardous substances, not to specifically direct that the applicant be accommodated by being given work in an office. That is why the doctor wrote “office type work” rather than “office work.” The latter type of entry would have been suitable for a person injured and unable, for example, to lift heavy objects or stand for long periods.

27I therefore conclude that the corporate respondent did properly accommodate the applicant’s temporary disability.

Was the applicant harassed in the workplace because of his disability?

28The applicant alleges the individual respondent harassed him by insisting, on a daily basis while the applicant worked modified duties in the shop, that the applicant go to the company doctor. The individual respondent’s evidence is that there was one occasion on which he suggested to the applicant that the applicant get a second opinion regarding his injury. The applicant also alleged in his evidence that the individual respondent tried to bribe him by offering to pay for the time it would take the applicant to see the doctor.

29The individual respondent made a note in the applicant’s personnel record about their one conversation on this topic and it was an exhibit. The note, dated July 12/06, reads,

I ask (sic) Sandy if he would consider getting another medical opinion from a walk in clinic near here (212 Wyecroft) so we can have a clearer idea of what his condition is. He refused, but indicated that the problems he was/is experiencing were/is as a result of the medication he was initially given for the exposure.

30Again, I reject the applicant’s evidence. The individual respondent was a more credible witness. The applicant’s recollection is wrong only in part because the corporate respondent did not have a company doctor. The applicant’s explanation of why he refused was that he did not think he could get an honest opinion from the company doctor. In his evidence, the individual respondent said he wanted a clearer idea of the applicant’s condition because the applicant’s doctor had written on the FAF that the injury affected the applicant’s “whole body,” rather than only referring to the applicant’s skin. I accept that explanation.

31Chasten admits referring to the applicant on one occasion as having “girly skin.” The applicant says this took place in the presence of five other company employees as they were driving to a job site. Chasten said this took place on the Monday morning after the injury, being the day before the applicant first went to his doctor regarding his rash. Chasten’s recollection is that he made the comment in Dunnville and he did not think anyone else heard it.

32Chasten also admits that the following week he saw the applicant in the company shop and said something in the nature of, “How’s Itchy and Scratchy today?” Chasten acknowledges that the remark upset the applicant, who according to Chasten, “flew out of his chair and got in my face.”

33The applicant testified that another employee heard the “Itchy and Scratchy” remark and was “shocked” by it. It is worth noting that the applicant did not call as witnesses either this employee or any of the others he alleges heard the “girly skin” remark. While it is entirely possible that another employee heard the “Itchy and Scratchy” comment and that a group of other employees heard the “girly skin” comment, the applicant has failed to prove either allegation on a balance of probabilities. For the same reasons I preferred the individual respondent’s evidence, I prefer Chasten’s to that of the applicant.

34Section 5(2) of the Code protects individuals against harassment in the workplace:

Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

35The Code definition of “harassment” is,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

36Chasten says he was only joking with the applicant when he made the two remarks complained of. However, he joked about something that I have found as a matter of law to be a disability. In my view, that meets the definition of harassment.

Remedy

37While I have found that Chasten harassed the applicant within the meaning of the Code, in my view the incidents themselves were trivial, whether examined individually or both together.

38The applicant was clearly upset by one of the remarks at the time it was made but he offered no evidence that he suffered beyond those few moments and I frankly doubt that he did. But for the termination of his employment, I doubt the applicant would have thought twice about the comments Chasten made.

39By my observation in the preceding paragraph that the applicant offered no evidence that he suffered beyond those few moments, I mean that he did not, in his complaint to the Human Rights Commission, this Application, in his evidence in chief, on cross-examination or in answering my questions, or by way of documentary evidence, identify any lasting effect of the comments upon him, suggest that other employees took up Chasten’s teasing or offer any proof that he sought counseling of any sort or even identified his having been made to feel upset to any other person. He did not suggest he lost sleep over either incident or suffer in any other fashion beyond the few moments following being teased. He also did not allege any special or itemized damages.

40The Tribunal’s case law recognizes that damages awards should not be so low as to “trivialize the social importance of the Code by effectively creating a “license fee” to discriminate.” See Sanford v. Koop, 2005 HRTO 28, par. 34.

41On the other hand, I do not think damages awards for trivial infractions of the Code should be so high as to make mountains out of molehills. Damages are compensation that ought to fit the offence and the injuries suffered.

42Sanford v. Koop,supra, is also frequently cited for its identification of factors to be considered in damages awards. The Decision lists these factors:

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

43This award for damages relates to two offhand comments Chasten made to the applicant. The comments related to a disability that lasted less than a month. There was no proof either the disability or the harassment caused the applicant anything but momentary anger.

44As noted, the only evidence regarding the impact of Chasten’s comments upon the applicant came from the applicant. While it is not necessary for him to use the language of Sanford to support his claim for damages, it is necessary for him to prove the extent to which the harassment “damaged” him. He proved that he was momentarily angered by the second of Chasten’s comments. He proved nothing beyond that.

45In all of the circumstances, I think a damages award of $100.00 is appropriate. I fix interest from the date of the incidents to the date of this Decision at $10.00 and order interest from the date of this Decision to the date of payment in accordance with the Courts of Justice Act.

Order

46The corporate respondent is ordered to pay to the applicant the sum of $110.00 on account of damages and interest to the date of this Decision, together with interest calculated in accordance with the Courts of Justice Act on the sum of $100.00 from the date until the date of payment.