Elsa Torrejon v. 114735 Ontario Inc. o/a Weston Property Management, 2010 HRTO 934

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elsa Torrejon

Applicant

-and-

114735 Ontario Inc. o/a Weston Property Management

Respondent

DECISION

Adjudicator: Naomi Overend

Date: April 29, 2010

Citation: 2010 HRTO 934

Indexed as: Torrejon v. 114735 Ontario

APPEARANCES

Elsa Torrejon, Applicant ) Michelle Mulgrave, Counsel

1147335 Ontario Inc., Respondent ) Allistair Trent, Representative

1The applicant filed this Application on March 24, 2009, under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in employment. Specifically she alleged that she was terminated from her job from the respondent company after she advised her supervisors that she required an indefinite leave to receive treatment for recently diagnosed breast cancer.

2By agreement of the parties, the hearing was bifurcated as the applicant’s psychiatrist was not available on the scheduled days of hearing to give evidence on the impact of the termination on the applicant. The evidence for the applicant on the issue of liability consisted of her testimony, medical letters and other employment-related documents; the evidence for the respondent consisted of the testimony of the applicant’s two supervisors, Geri and Doug McDonald.

3For the reasons that follow, I find that the applicant was discriminated against on the basis of disability. Accordingly, it will be necessary to convene the parties by teleconference to hear the evidence of the Dr. Marlinda Freire to complete the evidence on remedy. Argument on remedy will be heard following that testimony.

EVIDENCE

4The applicant worked as a leasing agent for the respondent property management company. The two apartment buildings managed by the respondent had a very large Spanish-speaking tenant population. The applicant’s job was to show and rent out apartments to prospective Spanish-speaking tenants, and to otherwise liaise with the existing Spanish-speaking tenants.

5In the fall of 2008, the applicant noticed a suspicious lump on her breast and over the course of November and December was sent for a mammogram, an ultrasound and a biopsy. On Friday, January 30, 2009, the applicant met with her then-surgeon, Dr. Minna, and was told that the biopsy revealed that she had stage II breast cancer.

6Dr. Minna recommended the applicant undergo surgery as soon as possible, and before leaving her office, the applicant had booked surgery for February 13, 2009. Dr. Minna also discussed the fact that after surgery the applicant would have to undergo other forms of treatment, but they would not know what that entailed until after the surgery was done. She prepared a brief letter for the applicant to give to her employer, which advised of the surgery date, the fact that further medical treatment would be required and which stated: “She will need to be off of work indefinitely effective immeadiately [sic].”

7Upon returning to work that day, the applicant told her manager, Geri McDonald, the news and provided her with a copy of Dr. Minna’s letter. Ms McDonald was initially very sympathetic. She arranged a meeting between Doug McDonald, the Property Manager, (and Ms McDonald’s spouse), the applicant and herself that afternoon. There is a considerable difference of opinion about what transpired at that meeting.

8The applicant testified that they discussed when she would be leaving for treatment. Although her doctor’s note said “effective [immediately],” she told the McDonalds that she was feeling no physical ill-effects from the cancer and wished to work until February 12, 2009, the day before her surgery. They did not discuss her return to work at this meeting. In cross-examination, it was put to her that she resigned her position during that meeting, a proposition which the applicant denied.

9Doug McDonald testified that he recalled that he and his wife spent approximately half of the meeting expressing their sympathy for the applicant’s plight and the fact that he had had to struggle with serious health problems (heart disease) at a relatively young age. He testified that during the remaining minutes, the applicant advised that she would be terminating her employment, and discussed the date when that would happen. He said that he discussed the significance of this decision and encouraged the applicant to consider her options over the weekend. He also indicated that if she were resigning, he would require a letter from her on Monday to send to head office in Montreal. He testified that he repeated at least three times that the purpose of the letter was to advise head office of the effective date of her resignation.

10Geri McDonald offered a third version of the meeting. Contrary to her husband’s testimony that it was the applicant’s decision to resign her position with the respondent, Ms McDonald testified that she and her husband made it clear to the applicant that the applicant’s date of departure for surgery would be her last day with the respondent, as there had been declining rentals at the buildings over the fall of 2008. Ms McDonald testified that the purpose of the meeting was to discuss the applicant’s last day of work. She said initially the applicant had indicated that she would work until February 10, and then stated that she would like to work until February 12, 2009. Mr. and Ms McDonald asked the applicant to put this in writing. .

11On Monday, February 2, 2009, in response to a request from Doug McDonald, the applicant prepared a hand-written note in which she wrote the following words: “I, Elsa P. Torrejon, will be working till Feb 12/09.” She testified that she would have liked to have typed it, but that Mr. McDonald had been in a hurry to get it.

12The applicant testified that over the weekend after her diagnosis she gave further consideration to her medical options. She did not feel a great deal of confidence in Dr. Minna and began to wonder whether she ought to proceed with the surgery. In discussions with her ex-husband, he indicated to her that she should get a second opinion about her treatment options, and told her about Princess Margaret Hospital (“PMH”), a facility which she had not previously heard of. He told her he would research this for her. Early in the week he phoned with the name and phone number of three specialists at PMH. She phoned and left messages with all three of them. By the end of the week of February 2-6, 2009, she had received a phone call back from the office of Dr. Reedijk, a surgeon at PMH.

13By mid-week, the applicant made the decision that she would not be proceeding with the surgery on February 13, 2009. She wrote another letter to the McDonalds on February 4, 2009, advising them that she was seeking a second opinion and telling them to disregard the February 2, 2009 letter in which she said she would be working until February 12, 2009. She indicated that she did not have a new date for the surgery as she had not yet met with the new specialist, but that she would let them know. In the meantime, she indicated she would continue to work.

14Doug McDonald wrote a letter dated February 5, 2009 in response. He said that the applicant had resigned her position and that the Ministry of Labour had advised him that once an employee had provided “a notice of termination of employment or resignation,” this notice could not be withdrawn. He concluded his letter by saying that the applicant’s last day of paid employment would be February 12, 2009.

15The applicant sought the assistance of the Ministry of Labour, which in turn directed her to the Human Rights Legal Support Centre. With their assistance, she prepared a lengthy letter dated February 11, 2009, in which she denied that she had resigned, and stated that the discussion of January 30 and the subsequent letter of February 2, 2009 concerned a request for “sick leave.”

16The applicant said she put a copy of this letter on Geri McDonald’s desk. Sometime later, Doug McDonald came over to her and threw the letter on the counter saying that it was unacceptable. She was concerned that the respondent would subsequently deny receiving it, so she went across the street and faxed it from a convenience store. For his part, Mr. McDonald testified that the applicant handed him a letter as he was going through a “100 lb. door” on his way out to attend several meetings. He dropped it on the counter because the matter had already been dealt with and he did not believe he needed to consider the issue. Indeed, he testified that he did not actually read the letter until two days before the hearing in this matter.

17On February 12, 2009, the applicant was ill and unable to attend the office. She returned on February 13, 2009, and was greeted by Geri McDonald, who handed her an envelope containing her last paycheque, her T4 and her Record of Employment. Ms McDonald told the applicant that she had to leave and that she would no longer be allowed on the premises.

18The applicant was very upset about what she regarded as a termination of her employment. She contacted a reporter at the Toronto Sun, who wrote a story about her situation. This resulted in further media attention. Doug McDonald testified that for a period they received a great deal of adverse publicity, the result of which is that the respondent has fewer tenants and declining revenue. He testified that the applicant’s position was not filled as a result of the downturn.

19With respect to her treatment, the applicant met with Dr. Reedijk, who advised her that he thought that given the size of the tumour she ought to go through a course of chemotherapy prior to surgery. She started this chemotherapy on March 18, 2009. Until that time, the applicant testified she was healthy enough to work. Since then, she has been in treatment and unable to work. She will see her oncologist in June to determine whether she is able to return to work on a part-time basis in July this year.

ANALYSIS AND DECISION

20There are two issues in this case. The first is whether the applicant resigned her position or whether she simply commenced an indefinite sick leave. The second is whether the respondent discriminated against her on the basis of her disability.

Did the Applicant Resign Her Position?

21In order to deal with this issue, it is necessary for me to make findings of fact with respect to the January 30, 2009 meeting as the three participants in that meeting testified to three different versions of events. Briefly, the applicant testified that she merely discussed when she was starting her indefinite sick leave; Doug McDonald testified that the applicant specifically advised him and his wife that she was resigning from her job as of the date of her departure; while Geri McDonald testified that the applicant was told when she left to start her treatment her employment with the respondent would end.

22In determining which of this divergent testimony I accept, I have been mindful of the test for assessing credibility set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at para. 11:

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

23The obvious problem with the respondent’s version of events (namely, that the applicant resigned) is that that respondent’s two witnesses contradicted one another. According to Geri McDonald, the applicant’s employment was, in effect, terminated as of the date of her departure for surgery given the shortage of work, whereas according to Doug McDonald, the decision to leave was the applicant’s. Indeed, Doug McDonald went so far as to testify that he specifically told the applicant to think about her options over the weekend to ensure that she was making the right decision.

24Moreover, according to Doug McDonald, there was no shortage of work until after the applicant went to the media, after her employment was terminated, causing bad publicity and an increase in the vacancy rate at the buildings. This contradicts Geri McDonald’s position that the shortage of work had occurred the previous fall and was the result of the bad economic conditions.

25The applicant testified in a straightforward and consistent manner. As she made clear, she was tremendously concerned about her economic future and that makes it less likely that she would have resigned from the position. Her February 2, 2009 letter, written on the Monday following the meeting, makes no mention of her “resigning” or “quitting” or any other words that would unambiguously give rise to the inference that she was voluntarily terminating her employment with the respondent.

26Moreover, the applicant’s position is consistent with the record of employment prepared by the respondent. The “version code” (i.e., the reason for departure) on that document is “D,” which is the code that corresponds to “illness or injury,” not “E,” which is the code for “quit.” There is no mention of shortage of work on the record of employment. Doug McDonald testified that records of employment were prepared at the respondent’s head office in Montreal based on information provided by him to the payroll department. It would appear that whoever received the February 2, 2010 letter from the applicant (and whatever verbal information Doug McDonald supplied) interpreted the situation to be one of a leave for medical reasons.

27It was a traumatic time for the applicant and she may well not have been thinking of how the McDonalds were interpreting her announced intention to “leave” for her surgery. While it is possible that Doug McDonald assumed that when the applicant said she was leaving to have surgery and an uncertain course of treatment following, she would not be coming back, that assumption does not bind the applicant.

28The respondent posited that the applicant resigned because she was unhappy with her job, having been asked to work more evening hours, which would have interfered with her family life when the new schedule was implemented (it had not been implemented at the time of the diagnosis). However, the applicant testified that, prior to her diagnosis, she had made arrangements with someone in her building to look after her son (who was then 12 years old) on the evenings when her daughter was not available to baby-sit. In any event, during the period following her diagnosis, the applicant’s purported unhappiness with the shift in work hours would presumably have been less significant in light of the fact that she was just about to embark on what was to be a lengthy leave of absence.

29Having found that the applicant did not voluntarily terminate her position with the respondent, the only other option is that the respondent terminated her employment. This termination was manifest when the respondent notified her that she was no longer welcome on the premises following the applicant’s February 11, 2009 letter to it that she had not resigned her position.

Did the Respondent Discriminate Against the Applicant?

30Under the Code, an employer is obliged to accommodate a disabled employee short of undue hardship. This duty to accommodate has been found to include accommodating a disability-related absence from work. The ground of “disability” is broadly defined in the Code and, in any event, encompasses a diagnosis of cancer (see s. 10(1).

31Although Doug McDonald did not offer any direct testimony on this issue, he was asked questions in cross-examination about how long the respondent was prepared to accommodate the applicant’s absence. While he seemed unwilling or unable to answer these questions, he did acknowledge that he was unaware and remains unaware of an employer’s obligations under the Code.

32The respondent corporation took the position in its Response to the Application that its obligation to accommodate an absence was codified in the personal emergency leave provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41, (“ESA”), which state:

s.50 (1) An employee whose employer regularly employees 50 or more employees is entitled to a leave of absence without pay because of any of the following:

1. A personal illness, injury or medical emergency.

….

(5) An employee is entitled to take a total of 10 days’ leave under this section in each calendar year.

33Specifically, the respondent argued in its Response that the duty to accommodate a disabled employee set out in the Code must be read in tandem with this section of the ESA. Given that this particular respondent had fewer than 50 employees, it took the view that it was under no obligation to accommodate any absence. This interpretation is clearly at odds with the jurisprudence on the individualized nature of the duty to accommodate and with the primacy of the Code over other legislation (see s. 47(2)).

34The logical inference from both the respondent’s agent’s apparent ignorance of the Code, and from the respondent’s interpretation of the ESA, is that the respondent acted upon this mistaken belief that it could terminate the employment of the applicant, who was going to require time off work for surgery and treatment, without regard to whether or not her disability-related absence could be accommodated short of undue hardship. The fact that the respondent did not lead evidence or argue at the hearing that it could not accommodate the applicant’s absence bolsters this inference.

35For the above reasons, I find that the respondent discriminated against the applicant on the basis of disability when it terminated her employment.

36This hearing shall resume at time to be set by the Registrar to hear evidence and argument on the issue of remedy.