Ralph Lastella v. Oakville Hydro Corporation, 2011 HRTO 1071

Human Rights Tribunal of Ontario

B E T W E E N:

Ralph Lastella Applicant

-and-

Oakville Hydro Corporation, Dan Steele and Marcia Best Respondents

DECISION ON REMEDY

Adjudicator: David Muir Date: June 3, 2011 Citation: 2011 HRTO 1071 Indexed as: Lastella v. Oakville Hydro Corporation

Appearances BY

Ralph Lastella, Applicant ) John R. Evans, Counsel Oakville Hydro Corporation, ) Peter J. Thorup, Counsel Dan Steele and Marcia Best, Respondents )

1This is an Application filed September 29, 2008, under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Mr. Lastella (the “applicant”) alleged in the complaint filed with the human rights commission in June 2007 (the “complaint”) that his right to equal treatment in employment was violated by the respondents when his employment was terminated in early January 2007.

3In 2010 HRTO 1765, I allowed the Application in part. The parties had agreed that the hearing should be bifurcated, dealing first with liability and then, if necessary, the appropriate remedies for any violations that were found. This Decision deals with the parties’ submissions on remedy in light of my findings on liability.

4My conclusions on liability are largely set out at paragraphs 9, 10 and 11 of that Decision:

The Application is allowed in part. There is no basis for finding that the respondents’ ultimate decision to terminate the applicant’s employment when they did was informed in whole or in part by the fact that he was a person with a disability or that he had requested a medical leave.

However, I do find that the respondents knew that the applicant was a person with a disability at the time that the applicant’s termination was implemented and that they took no steps to make enquiries of his condition at that time. I also find that while the employer had made a firm decision to terminate the applicant’s employment in July 2006, the implementation of that decision was overtaken by the events of January 2 to 4, 2007.

I find that the respondent employer discriminated against the applicant when, being presented with evidence that the applicant was facing some significant medical issue and requesting a medical leave, it made a decision to terminate his employment for cause. As a consequence the applicant was terminated before he otherwise might have been. The decision of the respondent employer also deprived the applicant of the possibility of showing that his uncharacteristic behaviour in the final days of his employment was related in whole or in part to his medical issues. The failure of the respondents to pause and make further enquiries when presented with evidence of a potential disability amounts to a failure on the part of the respondents to meet both the procedural and substantive aspects of the duty to accommodate. My reasons for these conclusions follow.

5The applicant seeks the following remedies:

(a) Reinstatement to employment with deemed continuous service from the initial date of hire, for among other things, pension contributions;

(b) Loss of income and monetary value of employment related benefits from January 5, 2007, to a date determined by the Tribunal, less any mitigation income;

(c) Monetary damages for losses associated with, among other things, injury to dignity, feelings and self-respect in the amount of $75,000.00;

(d) Pre- and post-judgment interest on the award pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 rate; and

(e) Future compliance remedies in the form of policy development and disability/sensitivity training for the Respondents' management team.

The applicant indicated in his written submissions that he was not seeking any remedial orders against the individual respondents.

6The Code provides broad remedial authority in section 45.2 as follows:

45.2 (1) 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 ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

Reinstatement

7The applicant states that reinstatement should be presumed in a case such as this (see Kreiger v. Toronto Police Services Board, 2010 HRTO 1361, and the cases cited therein). The respondents states that the applicant’s request for reinstatement is improper because it was not made in the original complaint. The respondents also state that reinstatement would not be the appropriate remedy in this case for a number of reasons, but primarily because of my conclusion that the employer had made a decision to terminate the applicant’s employment for non-Code related reasons long before the events giving rise to the Application.

8The applicant states that but for the respondents’ violation of the Code in not pausing and enquiring further into the applicant’s state of health, he would be employed by the respondent employer to this day. The applicant states that had the respondents made further inquiries about the applicant’s state of health and not ignored the results of the IME they requested, they would have reconsidered their July 2006 decision to dismiss not for cause as a result of what the applicant describes as an “isolated incident” of non-cooperation between the applicant and Mr. Byrstin. The applicant states that the medical evidence, in particular the IME, establishes that he was a person with a disability at the time of his summary dismissal in January 2007 and perhaps earlier, and that this fact “kicks open the door” allowing a re-examination of the prior decision of the employer to dismiss the applicant not for cause.

9There is no doubt that reinstatement of an employee terminated in violation of the Code may be an appropriate remedy in many circumstances. However, leaving aside the usual questions of whether or not reinstatement is appropriate in the circumstances, a key determination in these cases was whether or not the employer had already made a decision to terminate the applicant not for cause when the events giving rise to the complaint and Application occurred. This issue arose and the decision was made to dismiss the applicant long before the events giving rise to this Application. My conclusions on that issue are captured in paragraphs 13 and 23 of 2010 HRTO 1765:

However, in considering all of the evidence I have concluded that it is more likely than not that the employer, for reasons unrelated to any Code-prohibited ground, determined that the applicant would be replaced when a number of things happened including finding a suitable replacement. I accept the respondents’ evidence that, while they had decided that the applicant could not remain for reasons discussed below, he was otherwise a good, competent and dedicated employee – he just did not see eye to eye with the CEO on a critical management issue.

What is also clear is that the July 2006 decision to terminate the applicant’s employment was overtaken by the events of January 2 to 4, 2007. In Steele and Byrstin’s view there was really only one decision to terminate the applicant and the only question was timing. The facts establish something else. Ms. Best put it most accurately when she testified that the decision to terminate without cause was never implemented. In fact the respondents ultimately made a second decision – to terminate the applicant for cause and immediately - as a result of the events of the first week of January.

10Reinstatement is not an appropriate remedy in this case. The applicant’s submissions on this point ignore my findings that the employer had made a decision to dismiss the applicant in July 2006. The applicant’s position also greatly exaggerates the conclusions of the IME and asks that I draw an inference from the fact that in the IME report it is noted that the applicant was able to identify symptoms in September 2006, that he must have been a person with a disability in July 2006. There is nothing in the IME to suggest that this was the case or that his disagreement with the CEO at that time on an important matter of policy was influenced by such a disability. The employer’s decision whether correct of not on the question of just cause is not up for review in this analysis. What we know is that the employer made a decision to dismiss the applicant, that it was not tainted by any factors prohibited by the Code and that the employer had begun a process that would result in his being dismissed with some kind of exit package.

11The violations of the Code I have found occurred in January 2007, when the respondents acted to summarily dismiss the applicant although they knew the applicant was seeking a four-week medical leave and with the suggestion that he might be significantly ill. Their failure was essentially a procedural one – I found that the ultimate decision to dismiss for cause was not made for discriminatory reasons. The consequences of the decisions made by the respondent employer in January 2007 are that the applicant was likely dismissed earlier than he might otherwise have been; more significantly, he was terminated for alleged cause when he was in a particularly vulnerable state rather then possibly being terminated not for cause at a later date. These are consequences for which damages, not reinstatement, are an appropriate remedy.

Damages

12The applicant seeks monetary compensation for what he has lost pursuant to section 45.2. The applicant claims lost wages as well as damages for injury to his feelings, dignity and self respect.

Lost Wages

13The applicant claims lost wages and benefits to the date of the remedies hearing, or to the date that the respondents first disclosed (October 2008) that they would be relying on what I have found was a decision to dismiss and replace the applicant taken months before the events giving rise to this Application.

14The applicant’s total compensation for the year 2006 was $97,640.00. The applicant was terminated on January 5, 2007, but he received short term sick benefits for the period January 7 to March 7, 2007, at full salary. The applicant looked for and obtained employment with Hydro One from April 2007 to November 2007, during which time he earned $55,339.20. There is no evidence with respect to this employment or why it ended in November 2007.

15In considering this aspect of the applicant’s remedial requests, it is important to recall again my findings on liability as discussed above. As indicated above, the most immediate consequences of the employer’s decision in January were that the applicant was possibly dismissed sooner than he otherwise might have been and was terminated for cause when the previous decision had been made to dismiss not for cause. The timing of the applicant’s ultimate dismissal is obviously not certain but based on the evidence, it appears likely that it would have occurred in March or April 2007.

16I find that an award of lost wages for a period of time is not an appropriate remedy in this case. It seems to me that what was lost by the applicant was the possibility of being dismissed not for cause at some point in the late winter or spring of 2007, in which case he would be entitled to notice of dismissal at common law. This is of course to some degree speculative and in the nature of a “chance” lost because we do not with certainty know what might have happened had the respondents not violated the Code.

17In this regard the applicant states that the respondents can not benefit from their failure to investigate the applicant’s circumstances and therefore it cannot be assumed that an investigation might not have resulted in a different decision by the respondent with respect to whether they were justified in summarily dismissing the applicant on January 4, 2007. I agree with that submission. In the particular circumstances of this case, I found that the applicant’s state of health and many of the factors considered by the respondents to justify their summary dismissal of the applicant were interwoven. This does not of course mean that there was not cause for summary dismissal on January 4, 2007, and it remains a possibility that even after investigating the applicant’s health issues the employer might have come to the same conclusions. It is also possible, although very unlikely given the applicant’s otherwise unblemished employment history, that his employment might have ended badly for some other reasons after his return from the medical leave. However, I agree with the applicant that the respondent should not receive the benefit of any doubt which flows from its failure to comply with its obligations under the Code.

18The parties disagree about the appropriate notice period if this were a case of wrongful dismissal. The applicant states that it would be eight to ten months and the respondents four to six. Such an assessment is somewhat beyond the Tribunal’s area of expertise. However having regard to the applicant’s six years of unblemished employment with the respondent, his senior and responsible position as the SCADA supervisor; the fact that he is in an industry with a limited number of potential employers as well as the fact that the applicant’s entitlement to notice is highly contingent as discussed above, I find that the applicant is entitled to an award of damages representing six months of wages and benefits, beginning with the end of his sick benefits on or about March 7, 2007, less amounts earned in mitigation of his damages. The respondent provided a calculation based on six months’ notice less earnings during the notice period resulting in a loss of $14,235.

Damages For Injury to Dignity, Feelings and Self-Respect

19In considering this question I found helpful the views expressed by the Associate Chair in Arunachalam v. Best Buy, 2010 HRTO 1880, at paras. 46 to 55, set out below:

Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights and Freedoms in Vancouver (City) v. Ward, 2010 SCC 27 at para. 27:

Compensation focuses on the claimant’s personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.

The principle that intangible losses are compensated with monetary awards is not unique to statutory human rights law. For example, negligence law provides for damages for pain and suffering, “fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in a particular case”: Ward, supra at para. 50; Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (S.C.C.), [1978] 2 S.C.R. 229. In the law of defamation, damages take into account injury to the plaintiff’s feelings in light of the nature of the conduct of the defendant, see McCarey v. Associated Newspapers Ltd. (No. 2), [1965] 2 Q.B. 86 (C.A.) at pp. 104-04, cited with approval in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (S.C.C.), [1997] 3 S.C.R. 701 at para. 105.

While principles from other areas of law may be useful analogies, the Tribunal’s approach to the exercise of its remedial discretion must be centered in the values of and statutory language in the Code. Code damages are meant to compensate, not punish, and Code violations, unlike some other areas of law, arise in a variety of very different social and legal contexts.

Damages for Code violations, as in other areas of law, must be fair to both the applicant and respondent(s), given the violations of the Code found: see Ward, supra, at para. 53. Damages under the Code must not be so low as to trivialize the social importance of the Code by effectively creating a license fee to discriminate (see Lane, supra at para. 152). At the same time, Code damages for intangible losses should not be “unduly high”: see Ward, supra at para. 54, referring to the approach of courts in other jurisdictions to damages for violations of constitutional rights. The Tribunal should be attentive to the possibility of ongoing inflation of damage awards for non-pecuniary losses that was recognized in the tort context in Andrews, supra in the 1970s. I do not agree with the applicant that an assumption that damage awards are “increasing” should affect the determination of awards.

In a system in which many decisions on the merits are made each year, there is a particular importance that damage awards for intangible losses be consistent and principled. As the Supreme Court stated in Andrews, supra at p. 263, in relation to the assessment of damages for intangible losses in negligence law:

[T]here is a great need in this area for assessability, uniformity and predictabili­ty. In my opinion, this does not mean that the courts should not have regard to the individual situation of the victim. On the contrary, they must do so to determine what has been lost. For exam­ple, the loss of a finger would be a greater loss of amenities for an amateur pianist than for a person not engaged in such an activity. Greater compen­sation would be required to provide things and activities which would function to make up for this loss. But there should be guidelines for the transla­tion into monetary terms of what has been lost. There must be an exchange rate, albeit conven­tional.

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled.

I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

These principles are not intended to comment on how the Tribunal would deal with a case where medical evidence shows an extreme degree of suffering in comparison to the nature of the event, a situation which I leave for another day.

20The applicant seeks monetary damages for losses under this head in the amount of $75,000. The respondents countered that the appropriate figure was in the $5,000 range.

21As I indicated to the parties at the hearing, the quantum sought by the applicant was extraordinarily high. The applicant could point to no authority that approached that amount. I also find that the range of monetary damages suggested by the respondent is too low in all the circumstances.

22Applying the objective/subjective framework articulated by the Tribunal in Arunachalam, above, I note that the applicant’s submissions take as their starting point that the applicant was dismissed in a discriminatory way and but for the discrimination he would be employed by the respondent to this day. As previously discussed, that is not the case. However, contrary to the respondents’ submission that the breach was primarily procedural, I also find that the consequences for the applicant were quite serious. The applicant had six years of unblemished service in a responsible supervisory position. I accept the applicant’s contention that he was employed in an industry with a small number of employers. The fact that he was dismissed for cause would reasonably have caused him concern about his ability to find work in the industry increasing the stress associated with losing one’s employment.

23I also accept the applicant’s submission that he was in a vulnerable position at the time that the employer chose to summarily terminate his employment. I have considered the fact that the employer misinterpreted what was happening between January 2 and 4, 2007, believing that the applicant had discovered that he was going to be replaced and was engaged in a course of conduct in retaliation for that. Nonetheless before the decision to dismiss the applicant had been implemented, they had received medical information (albeit quite limited information) that I found should have caused them to pause and make further enquiries and that from the applicant’s perspective the employer’s response to a request for a four-week leave of absence for medical reasons was a letter dismissing him for cause.

24As well I have considered that although the respondents’ response to the applicant’s request for a four-week leave was no doubt upsetting for him, the evidence suggests that whatever emotional impact it had was limited. The applicant was disabled from working on January 4, 2007 (the day before his termination), according to his family physician, but responded well to treatment and by the time of the IME in March he was able to return to work and in fact sought and obtained employment which began in April 2007.

25Taking all of these factors into account I have concluded that a substantial monetary award is appropriate largely flowing from the consequences of this breach for this applicant as set out above. In all of the circumstances an award of $12,000 for damages due to injury to dignity, feelings and self-respect is appropriate.

Interest

26The applicant is entitled to pre- and post-judgement interest from the date of termination in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Public Interest Remedies

27The applicant seeks the following Orders:

a. An order requiring that the respondents develop and circulate a comprehensive written policy on human rights that conforms to the requirements of the Code and that addresses discrimination on the grounds of disability.

b. An Order that the Respondents be required to post the policy in conspicuous locations in the workplace for a period of 12 months, post it on its website indefinitely and to distribute it to all employees and new hires.

c. An Order that Tribunal require that all of the employer’s managerial employees be required to undertake inclusiveness and sensitivity training on Code related grounds, including mental illness.

28The applicant states in this regard that it is clear from the evidence that the employer’s senior management team “lacks sensitivity to the issues facing disabled persons in the workplace.” The applicant further states that the respondents lack sufficient knowledge of their obligations under the Code, making it unlikely that they will be able to ensure compliance with the Code in the future. The respondents made no submissions on these remedial requests.

29I am not persuaded that the orders requested are necessarily required in these circumstances. The respondents filed a copy of the employer’s human rights policy in force at the time of the events giving rise to this Application. I heard no evidence that it was deficient in any way or that the respondent employer followed it with the results here. What occurred here was not a failure of policy; rather the chief decision-maker for the respondent, Mr. Byrstin, made a decision based on what he believed was causing the applicant’s behaviour in the first week of January and chose to ignore information provided by the applicant which might have provided an alternative explanation for the events of that week. I note that Ms Best appears to have understood the potential risks in proceeding as Mr. Byrstin wished and counselled caution. I also note that Mr. Byrstin is no longer employed by the respondent.

Orders

30The Tribunal makes the following remedial Orders:

a. The respondent Oakville Hydro will pay to the applicant the sum of $12,000 in damages for losses associated with injury to his feelings, dignity, and self-respect, within 30 days of this decision.

b. The respondent Oakville Hydro will pay to the applicant the sum of $14,235 representing the damages less mitigation he would have received upon his dismissal from the respondent’s employment, within 30 days of this decision.

c. The respondent shall pay to the applicant pre-judgement interest on the amounts set out paragraphs (a) and (c) above from January 5, 2007, in accordance with the Courts of Justice Act, within 30 days of the date of this decision.

d. The respondent shall pay the applicant post-judgment interest on any accumulated principal and interest on the amounts set out above in paragraphs (a) (b) and (c) calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Order.