Simpson v. JB & M Walker Ltd., 2010 HRTO 819

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerri Simpson

Applicant

• and -

JB & M Walker Ltd. o/a Tim Hortons and Mark Walker

Respondents

DECISION

Adjudicator: Naomi Overend

Date: April 14, 2010

Citation: 2010 HRTO 819

Indexed as: Simpson v. JB & M Walker

APPEARANCES

Kerri Simpson, Applicant ) Melissa Mark, Counsel

JB & M Walker Ltd. o/a Tim Hortons and ) Colin Rayner, Counsel

Mark Walker, Respondents )

1Kerri Simpson, the applicant, sustained an injury to her leg and then her back, and for the last six months of her two-year employment with the respondent company was accommodated by working shorter hours and having more frequent breaks. This arrangement proceeded without any issue for a little over five months, at which point Mark Walker, the individual respondent, began to question the applicant about her need for a reduced work day and what he perceived to be her inordinately slow recovery from her injuries.

2In her Application, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the manner in which the individual respondent spoke to her about her need for accommodation and his attempts to unilaterally change her work hours amounted to discrimination and harassment on the basis of disability. She also alleges that the individual respondent reprised against her after she retained the Human Rights Legal Support Centre (“the Legal Support Centre”) to intervene on her behalf.

3The respondents deny that the applicant was discriminated against, harassed or reprised against, and assert that the individual respondent appropriately engaged in the dialogue that is part of the accommodation process.

4For the reasons that follow, I find that the applicant was discriminated against and harassed on the basis of her disability, but that the respondents did not engage in reprisal.

EVIDENCE

5The evidence for the applicant consisted of her testimony, the testimony of her family physician concerning the impact of the respondents’ action on the applicant and various notes and reports. The respondents called six witnesses, including the individual respondent, and tendered what were described as contemporaneous notes of the individual respondent. A summary of the relevant portions of this evidence follows.

6The applicant worked as a cashier/counter help at the Tim Horton’s franchise located in Mississauga from July 2006 to September 2008. On March 4, 2008, she injured her left leg when she slipped and fell in the parking lot at work. Because the fall took place on work property it was accepted as a compensable injury by the Workplace Safety & Injury Board (“WSIB”).

7The applicant returned to work on March 10, 2008, on modified duties, including reduced work hours. Initially, her physician recommended she work four hours per day. This was increased to six hours per day in early April. On April 18, 2008, her chiropractor filled out a Functional Abilities Form (“FAF”) for the WSIB recommending that the applicant work seven hours per day. From that point forward, the applicant worked seven hours per day rather than her usual eight hour shifts. The parties are in agreement that this arrangement continued without anyone questioning it until August 2008.

8There is no agreement between the parties with respect to the remaining facts, including whether the applicant sustained a second injury, whether the applicant required accommodation from mid-August onwards and, if so, whether the respondent appropriately participated in the accommodation process.

The Applicant’s Evidence

9The applicant testified that she also sustained a strain to her lower back, which she attributed to her altered gait following her leg injury. This lower back sprain flared up on April 21, 2008, when she bent down to gather supplies from under the counter while working at the “bagel station.” The applicant believes she took a couple of days off as a result of this injury. She saw her chiropractor on April 23, 2008, and he filled out a further WSIB form. This injury was also accepted as a compensable disorder by the WSIB.

10Following her return to work from the second injury, she was subject to new bending and lifting restrictions, but continued to work a seven-hour-a-day shift. In mid-May, her chiropractor also recommended that she take a 10-15 minute break every two hours. The applicant testified that she commenced work at 8:00 a.m., and took three 15 minute breaks at 10:00 a.m., 12:00 p.m. and 2:00 p.m. The 12:00 p.m. break was in lieu of the 30 minute break she would normally take as her lunch. Her shift ended at 3:00 p.m.

11Prior to her injury, her hours of work were 7:00 a.m. to 3:00 p.m. She said her immediate supervisor, Andrew, was responsible for scheduling her hours. When her hours were reduced, he asked her to come in later to do what the applicant described as the “jobs” that took place in the afternoon at the end of her shift. These jobs involve cleaning up the facility, stocking and taking out the garbage. The applicant testified that a number of people worked the 6 a.m. - 2 p.m. shift, leaving the store short-staffed during the time when these tasks were done.

12The applicant continued to see her chiropractor and periodically provide FAFs to her employer until July, at which point, WSIB stopped funding the chiropractic treatments. She testified that she continued to feel sore at the end of the shift, and was not inclined to increase her hours. The individual respondent did not speak to her about getting an updated FAF.

13However, in mid-August, the individual respondent started to question her about her reduced hours. The applicant testified that the first request occurred as she walked past his office and the individual respondent told her that he would like to speak with her. There was no room in his actual office so she had to stand at the doorway, which afforded her no privacy as the office is in the kitchen. The individual respondent said he would like her to work more hours. The applicant replied that she was following doctor’s orders and did not feel ready to resume an eight-hour shift.

14Following that initial meeting, the applicant said there were additional conversations – almost on a daily basis – for two weeks in which the individual respondent told her that he had put her on the schedule to start at 7:00 a.m. so she could work an eight-hour shift. She called the Labour Board, which in turn referred her to the Legal Support Centre. As a result of her conversation with the Legal Support Centre, she started keeping notes of her interactions with the individual respondent.

15Her first entry, dated August 28, 2008, states that as she was walking into work at 7:50 a.m., the individual respondent stopped her and said that he had put her on the schedule for 7:00 a.m. to work an eight-hour shift, and wanted to know why she was continuing to come in at 8:00 a.m. She answered that her doctor still wanted her to work modified hours, to which the individual respondent replied that he wanted her back in for regular shift and, if needed, he would accommodate her by giving her one more break.

16The following day, the applicant reports in her notes that she went to see the individual respondent at 7:45 a.m. and told him that she could not come in for eight hours as she was in a lot of pain after even seven hours of work. She said, however, that she would go back to her doctor and if he approved her returning to an eight-hour shift, she would comply with her doctor’s orders.

17The individual respondent replied that he kept getting calls from the WSIB asking why the applicant was not back full-time. The applicant notes indicate that she queried why the WSIB would be calling him, but not her, the client. The individual respondent got upset and said he was the client as he pays the insurance claim. He also said that she should be fine by now and he expected her to start her shift by 7:00 a.m.

18The applicant was not scheduled to work for the next four days. On September 2, 2008, she saw her physician, who prepared an updated FAF. This indicated that the applicant was still to work modified hours – specifically, a seven-hour shift with breaks every two hours.

19The following day, the applicant’s notes indicate that she woke with a sore lower back, and that she called into work at 6:54 a.m. to advise them that she would not be in to work that day. At 7:03 a.m., the individual respondent called her back to ask why she had called so close to the start of her shift. During the course of that call, the applicant indicated that she had an updated FAF, and it continued to call for a seven-hour shift. Her notes indicate that the individual respondent told her he expected her to come in for her full shift at 7:00 a.m. the next day.

20The applicant’s next entry is for September 5, 2008, indicating that, while the other employees were partnered up, she was left to work by herself for the period between 9 a.m. to 10:45 a.m., resulting in her having to ask for a break because she was in a lot of pain.

21There is a lengthy entry in the applicant’s notes for September 10, 2008. She went in that day, as usual, at 8:00 a.m. The individual respondent asked to speak to her, and again queried why she was not working the eight-hour shifts as directed. She explained that she had a doctor’s note indicating that she was to work seven hours. The individual respondent replied that he did not care, that he would give her an extra break but that she had to attend for eight hours and that the applicant could be fired for not complying with his order. At some point later in the conversation, her notes state the individual respondent said to her: “How can I ever make you a supervisor if you do not take my order.”

22The applicant testified that the individual respondent also stated that day that he did not believe her injury would take that long to heal. At one point in the conversation, the individual respondent said to her “I hope your conscience is clear about what you are doing.” The applicant got upset and asked what he meant – did he think she “was faking” her injury. The individual respondent replied that the WSIB was telling him she should be back on full-time hours.

23At this point, the applicant testified, she was crying and the conversation ended. The individual respondent called her back with her manager, Kerry Anne Nash, to have a further conversation that day. The individual respondent explained that he was getting frustrated with the situation and wanted to know why her treatments had not worked. She explained that she was trying to do everything right – that she attended all her appointments and her “physio” (this appears to be Dr. Stine, the applicant’s chiropractor) had requested an extension for treatment from the WSIB and they were awaiting the WSIB’s decision on this request. The individual respondent suggested that perhaps she should see his physio. At this point, he left her alone with Ms Nash, who suggested that maybe the applicant could find something at the health food stores.

24The applicant’s notes reflect a third meeting took place that day at the individual respondent’s request. He said that he had spoken to the WSIB and that they had appointed a new claims adjudicator to her case. When she asked, the individual respondent provided the applicant with the contact information for this person. He said that the WSIB could make the applicant pay all the money back she had received from them, and that knowing the situation with her son, she would not want that to happen. This last remark greatly upset the applicant.

25Following the conversations, the applicant testified she experienced significant emotional turmoil and heart palpitations. She felt sick to her stomach and was unable to sleep that night. The following morning, the applicant phoned in to say she would be unable to come into work. On September 12, 2008, the applicant saw the physician who had been treating her leg injury and he put her on medication (which the applicant describes in her notes as “relaxers”) and wrote her a note explaining she required a week off work.

26The applicant saw her family physician, Dr. Calder, on September 22, 2008. Dr. Calder observed that the applicant “presented with uncontrollable crying, shaking and insomnia.” She prescribed a sedative and gave the applicant a note saying that she needed to be off work for a further period of time. The applicant did not return to work until September 29, 2008.

27During the period between September 10 and September 28, 2008, the applicant was finally able to successfully connect with her WSIB claims adjudicator, whom she had had difficulty reaching up to that point. She also spoke with counsel at the Legal Support Centre, who in turn negotiated the applicant’s return to work with the individual respondent. The applicant’s understanding was that she would be permitted to return to the seven hour shift, with the same breaks as before, while she was awaiting the WSIB evaluation of her respective injuries.

28On the day of the applicant’s return, one of her supervisors, Mark, approached her and said that her breaks would only be 10 minutes in length. This was shorter than the 15 minute breaks she had been taking prior to that. The announcement provoked an anxiety attack in the applicant. She told the supervisor that this was not correct, and he replied that he was only the messenger and she should speak to the individual respondent. The applicant was very upset at this juncture and went back to speak to her manager, Kerry Anne Nash. Ms Nash attempted to calm the applicant down and then went to speak to the individual respondent. She came back with a note saying that the breaks would be as follows: 10:00 a.m., 15 minutes; 12:00 p.m., 30 minutes; and 2:00 p.m., 10 minutes. Previously her lunch break had only been 15 minutes. The applicant testified that at that point she thought “What’s he [the individual respondent] going to do next?”

29Although she worked the remainder of the shift, she experienced a number of panic attacks when she went home, and called her representative at the Legal Support Centre. She also went to see Dr. Calder, who put her on anti-anxiety medication and advised the applicant to remain off work. In October, the applicant made the decision that she could not return to work at the respondent organization, and requested her Record of Employment.

30The applicant was unable to look for work for a period of time and went on Employment Insurance sick benefits. She was finally able to look for work in early May 2009, and found another job shortly thereafter. Her new job commenced June 9, 2009.

The Respondents’ Evidence

31The individual respondent acknowledged that the applicant was in receipt of WSIB benefits for her leg injury, but expressed some doubt in his testimony about whether the fall had occurred on work property. He testified that there were video cameras in the parking lots, and neither of them revealed the applicant’s fall. However, the individual respondent acknowledged that the area between where the staff parked and the Wendy’s drive through was not under video surveillance.

32Moreover, the individual respondent denied that he was aware of the applicant’s subsequent back injury. Two of the applicant’s co-workers, who testified on behalf of the respondents, said that the applicant had told them that she would “fake” a back injury, as she had in a previous job. Both witnesses said they had seen the applicant pick up and swing around the 2½ year old son of one of the witnesses, and that they had been out with the applicant socially and she did not seem to be in any pain despite wearing high-heeled shoes and boots.

33They said the applicant had said she was feeling harassed about being asked to work eight hours, that she did not feel she was being treated fairly and that she had been promised by the individual respondent that she would be a trainer, and that that she felt she had been lied to. They said the applicant openly expressed her emotions about how angry she was, even to customers and management.

34This latter testimony was not supported by the three management witnesses (Kerry Anne Nash, the assistant manager; Andrew Pavaday, the store manager; and Mark Indovina, the applicant’s supervisor) who also testified on behalf of the respondents. Indeed, the individual respondent testified that in August 2008, he noticed that the applicant seemed to be improving – that she seemed happier, more back to her regular self. He said that he can tell by people’s demeanour whether they are in pain.

35On August 18, the applicant talked to the individual respondent about advancement opportunities, such as a “trainer” position or a supervisor. On August 21, he testified he stated to the applicant that he noticed that she seemed to be improving and that he would like to get her back to work at 7:00 a.m. He testified that the applicant seemed to be caught off guard by this conversation, and that she expressed concern about losing her WSIB benefits, but that it was otherwise a friendly exchange.

36On August 28, 2008, the individual respondent testified that he asked the applicant why she had not come into work at 7:00 a.m., as he previously told her to do, and she replied that she was only supposed to be working seven hours. He said to her that, with her breaks, she would be working only seven hours and 15 minutes, and that if she needed another 15 minute break to bring her down to seven hours, he would give it to her.

37On September 2, 2008, the individual respondent noticed that the applicant had again arrived at 8:00 a.m. and at that time he and the applicant had an argument about what was on her FAF. He said that he later observed the applicant up front with Kerry Anne Nash and that she was crying. He brought them both back and had a further conversation with the applicant, in which he said he needed her to work at 7:00 a.m. now that the summer was over and the kids were going back to school. He said she talked about getting an MRI, but that it had been delayed. He admits that he asked if her “conscience was clear” with respect to her representations to the WSIB about her injury and limitations, and told her about one employee who had had to pay back her WSIB benefits.

38The individual respondent testified that the applicant brought in an updated FAF the next day (i.e., September 3, 2008) in which it was specified that the applicant was to work seven hours with breaks every two hours. He regarded this as a step “backwards” as the previous FAF had not mentioned the breaks. He could not recall the applicant’s hours of work being an issue after this day, and does not recall having any conversation with the applicant on September 10, 2008. He states that the conversation the applicant said occurred on September 10 was, in fact, the conversation on September 2, 2008.

39The individual respondent agrees that the applicant was on sick leave between September 11 and September 28, 2008, and that during this period he spoke on the phone with the applicant’s counsel at the Legal Support Centre about the applicant returning to work on September 29, 2008. He testified that he did not speak to the applicant on the day of her return, but was approached by her supervisor, Mark Indovina, who asked what breaks the applicant was getting, to which he responded she was to have a break every two hours. Shortly thereafter, Kerry Anne Nash returned to say that the applicant was upset about her break schedule, so the individual respondent wrote it down on a yellow sticky note. He testified that this note said that the breaks were to be at 10 a.m. (15 minutes); 12 p.m. (30 minutes) and 2:00 p.m. (15 minutes). He asked Ms Nash to give the note to the applicant.

40The individual respondent heard nothing further that day, but heard the next day that the applicant had called in sick. He was at a loss as to why the applicant was upset, as he was offering her breaks in excess of the 10-15 minute breaks listed on the FAF.

41The two individuals who were also involved in the applicant’s return to work on September 29, 2008, have slightly different recollections with respect to what happened that day. Mark Indovina testified that he could not recall how long the applicant’s breaks were. He did recall telling her on September 29 that her breaks would be shorter after he spoke with the individual respondent, and that the applicant seemed unhappy when he came back to tell her that. Kerry Anne Nash testified, at first, that the applicant did not approach her on September 29, 2008. In cross, she said that the applicant approached her and that she seemed upset, although she was not crying. She could not recall whether the applicant was upset about her breaks being shortened. Like Mr. Indovina, Ms Nash could not recall on the stand the length of the applicant’s breaks during the period she was being accommodated.

ANALYSIS AND DECISION

42Where there is a divergence between the testimony of the parties, I must determine which of the factual elements is in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.” See: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). Generally speaking, where there was a discrepancy between the applicant’s testimony and the individual respondent’s testimony on a material fact (and that of the witnesses testifying on behalf of the respondents), I preferred the applicant’s version of events for the reasons discussed below.

Existence of a Disability

43The applicant did not put into issue her treatment by the respondents during the period preceding mid-August, and so the only period in which it is important to determine whether the applicant had a disability was from mid-August until late September. The applicant testified that her back was still bothering her. The individual respondent disputed that, saying that he could tell by the applicant’s demeanour that she did not seem to be in pain during this period. His testimony was buttressed by that of the two co-workers who testified that the applicant engaged in activities outside of work that were inconsistent with a back injury, and that the applicant had told them she had invented the injury because she was angry with the individual respondent for a number of reasons, including that he was requiring her to work an eight-hour day.

44The testimony of the two co-workers is incredible for a number of reasons. First, according to documentation provided by the applicant’s medical personnel to the WSIB, the back injury dates back to April 21, long before the applicant’s work hours were being questioned by the individual respondent. The WSIB itself accepted the existence of the applicant’s back injury and compensated her accordingly. That is, the back injury was not, as the co-workers’ testimony suggested, something invented after she felt hassled by the individual respondent.

45It is true that by the time the applicant was finally evaluated by a third party in October 2008, her back injury had resolved, but as the applicant explained, she had not been at work (with the exception of September 29, 2008) for more than a month, giving her back the respite that it needed to recover. Moreover, the independent evaluation did not question the fact that she had suffered a previous back injury and her WSIB benefits were not clawed back during the relevant time period.

46Moreover, according to these two co-workers, the applicant was openly angry around customers and managers alike during this period. This testimony is expressly denied by the three supervisors/managers called by the respondents. Even the individual respondent testified that he approached the applicant about increasing her hours because she seemed happier, which he believed was a sign that her health was improving.

Demands re: Hours of Work

47The applicant asserted that the individual respondent started questioning her requirement for modified work in mid-August, and this quickly evolved into demands that she work a full eight-hour shift even though she still believed she was medically unable to do so. His demands persisted until September 10, 2008, even after she obtained an updated FAF which continued to call for modified shifts.

48In contrast, the individual respondent testified that he only spoke with the applicant about her hours of work on three occasions between August 21 and September 2, 2008 (i.e., before he received her updated FAF) and that he had asked her to come in at 7:00 a.m. for business reasons because she seemed to be doing better.

49For the reasons that follow, I prefer the evidence of the applicant on this point. First, the applicant wrote contemporaneous notes which reflect the multiple conversations in which this pressure was applied. The individual respondent tendered what he testified were type-written versions of contemporaneous notes, indicating that there were only the three meetings, but he did not proffer the original notes from which these were allegedly taken. Moreover, these notes are written in the form of an after-the-fact narrative based on documents in a file as opposed to a contemporaneous record of events. For example, on the first page of the notes there is reference to the “first” FAF, which indicates that notation was written after the receipt of other FAFs rather than at the time of the receipt of that particular FAF.

50In addition, the individual respondent’s testimony on the critical issue of the applicant’s hours contradicted the position taken by the respondents in their Response to the Application. He testified that he had approached the applicant to work the earlier shift in August because there was a greater business demand for staff in the early hours starting with the return to school. However, in the Response, the respondents state that the applicant was repeatedly told from the time she started working seven-hour shifts (i.e., April 2008) that the respondents would prefer her to work the early shift (i.e., from 7:00 a.m. to 2:00 p.m.). It was the respondents’ position in the Response that the applicant steadfastly refused to come in for the 7:00 a.m. shift, insisting on the later shift (i.e., from 8:00 a.m. to 3:00 p.m.) even though this left the corporate respondent short-staffed from 7:00 to 8:00 a.m.

51Moreover, in his testimony the individual respondent testified that he did not simply want the applicant to shift her hours back one hour, but that he actually wanted her to work one hour more. For example, he testified that in one of the meetings with the applicant, he suggested she take an additional 15 minute break, which in combination with her other breaks, would total one hour, thus allowing to her be at the store for eight hours, but actually work only seven hours.

52With respect to whether the last conversation between the applicant and the individual respondent took place on September 2, 2008 (as the respondents maintain) or September 10, 2008 (as reflected in the applicant’s notes), the September 10 date makes more sense in terms of the applicant taking stress leave commencing September 11, 2008. On the respondent’s version of events – namely, that the last clash between the applicant and the respondent had taken place eight days earlier – there is nothing which would have precipitated the applicant’s departure.

Harassment and/or Discrimination

53While an employer is not obliged to accept any and all medical restrictions at face value, it cannot unilaterally ignore and impose working conditions beyond such restrictions. If the individual respondent believed that the applicant was capable of working longer hours, he was obliged to obtain all relevant information about the applicant’s current level of disability, prognosis and ability to perform job duties (see: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON Div. Ct.)). By ignoring this procedural aspect of the duty to accommodate, the respondents breached the applicant’s right to be free from discrimination.

54The applicant argues also that this breach amounted to harassment on the basis of disability. I agree that the applicant has satisfied the four elements of harassment, namely:

• There was a course of vexatious behaviour;
• on the basis of a prohibited ground (in this case, disability);
• by the employer, or agent of the employer;
• which was known (or ought reasonably to be known) to be unwelcome.

55The applicant’s notes and testimony, which I accept, reflect that the individual respondent spoke to her on multiple occasions demanding that she return to work when she felt she was medically unable to do so. This alone would constitute a course of vexatious behaviour. Moreover, it is common ground that on the last occasion the individual respondent spoke directly to the applicant he suggested to her that if she was found to have defrauded the WSIB, she would have to pay the WSIB back. This was sufficiently upsetting that the applicant wound up in tears and commenced a stress leave following her shift. Even if the individual respondent was unaware that his comments were unwelcome, a reasonable person in the respondent’s position would know that they were.

Reprisal

56The applicant argued that the individual respondent’s direction to reduce her break times upon her return to work on September 29, 2008, constituted reprisal for having involved the Human Rights Legal Support Centre in her negotiated return to work (i.e., for having claimed and enforced her rights under the Code). I am unable to find that the individual respondent’s direction vis-à-vis the applicant’s break times was a deliberate attempt on his part to increase the actual time she was required to work. There was some confusion, which may have happened because his verbal direction was being conveyed through a messenger. When clarification was sought, the individual respondent’s (reduced to writing) direction revealed that he was actually giving the applicant a longer lunch break, albeit a slightly shorter afternoon break.

57From a subjective point of view, the applicant may well have been upset that this seemingly shifting message was just the start of a new period of harassment, but I am unable to infer the individual respondent’s intention to reprise against her from these facts.

REMEDY

58The Tribunal’s remedial powers are set out in section 45.2 of the Code:

45.2 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:

1. 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.
2. 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.
3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.

Wage Loss

59The applicant testified that from September 11, 2008, with the exception of September 29, 2008, she was unable to work, or look for work, until early May 2009. She described that she was unable to sleep, had heart palpitations and panic attacks, and could not stop crying. Her evidence, which I accept, was supported by the clinical notes, medical report and verbal evidence of her family physician, Dr. Suzanne Calder, who observed “quite profound anxiety symptoms” in the applicant. Dr. Calder testified that she initially started the applicant on a sedative, but when her anxiety symptoms continued, she prescribed an anti-anxiety medication, Paxil.

60The applicant was able to secure employment shortly after she was medically able to look for work, starting her new job on June 9, 2009. In total, the applicant was out of work for 36 weeks. The total wage loss claimed is $13,896.00 (representing 36 weeks, 40 hours per week at $9.65 per hour). The respondents did not challenge the applicant’s claim for this period, and I see no basis for reducing the amount claimed.

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

61Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In ADGA Group Consults Inc. v. Lane, supra., the Divisional Court confirmed that there is no ceiling on the amount of compensation that can be awarded. In speaking about general damages, the Court noted at paragraph 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant and the seriousness of the offensive treatment.

62The applicant requested $15,000.00 in damages for injury to her dignity and feelings. This amount is consistent with awards in other loss of employment cases in which there is evidence of significant psychological consequences. While most of these cases involve applicants whose employment was terminated by their employer, the fact that the applicant quit her job in this case is not a significant distinguishing feature.

63As described above, the applicant experienced profound anxiety as a result of the discrimination and harassment she experienced during the last month of her employment with the respondents. She developed a generalized anxiety disorder which required her to go on long-term medication. Her doctor speaks to the vulnerability of the applicant in her report: “It is my opinion that [the applicant] was unable to continue working in such an environment even though she was financially quite needy.

64In light of the period of time over which the offensive conduct took place, the experience of victimization and the vulnerability of the applicant, I find that $15,000.00 is an appropriate amount in compensation for injury to her dignity, feelings and self-respect.

ORDER

65The respondents JB & M Walker o/a Tim Hortons and Mark Walker are jointly and severally ordered to pay to Kerri Simpson the following amounts within 30 days of the date of this Decision:

1. $13,896.00, minus applicable statutory deductions, as compensation for her loss of employment income;
2. $15,000.00 as compensation for injury to her dignity, feelings and self-respect;
3. Prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990 c. C. 43, on the amount set out in (1) from February 3, 2009, the midpoint between when the applicant ceased working for the respondent and when she commenced her new position; and
4. Prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (2), from September 11, 2008.

66In the event that the respondents, JB & M Walker o/a Tim Hortons and Mark Walker, fail to make the payments described in 1) through 4) above within 30 days of the date of this Decision, the respondents shall pay postjudgment interest in accordance with the Courts of Justice Act.