Piechocinski v. Toronto Standard Condominium Corporation No. 1519, 2011 HRTO 1430

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Piechocinski Applicant

-and-

Toronto Standard Condominium Corporation No. 1519 Respondent

DECISION

Adjudicator: David Muir Date: July 29, 2011 Citation: 2011 HRTO 1430 Indexed as: Piechocinski v. Toronto Standard Condominium Corporation No. 1519

Appearances

Andrew Piechocinski, Applicant ) Self-represented Toronto Standard Condominium Corporation No. 1519, Respondent ) Laurie B. Jessome, Counsel

BACKGROUND

1The applicant filed an Application under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 31, 2008.

2The applicant was a superintendent with the respondent. On March 13, 2007, the applicant alleges he suffered a workplace-related injury. In the human rights complaint underlying this Application (the “complaint”) the applicant had alleged that his employment was terminated on March 15, 2007, in violation of the Code. The applicant believed that his termination related to his workplace injury. That allegation was dismissed in 2011 HRTO 886 on the basis that that aspect of the Application had been appropriately dealt with in another proceeding.

3In his complaint the applicant also alleged that he was required to work on March 14 and 15, 2007, despite his employer’s knowledge that he was injured and had been advised to not work by a physician. This part of the Application remained to be dealt with and was heard on July 19, 2011, in accordance with the expectation set out in the Code and the Tribunal’s Rules that section 53(3) applications be processed in a highly expeditious manner. I heard from the applicant as well as Dina K., an employee of the property management firm, managing the condominium in which the applicant worked at the time.

SUMMARY OF FINDING

4The Application is allowed.

FACTS AND EVIDENCE

5I note that the evidence of the parties was problematic in many respects. The evidence of the applicant was vague and contradictory, as it changed during the course of the hearing on some material points. However, despite the weaknesses in the applicant’s evidence, there were also significant gaps in the respondent’s evidence. The respondent’s one witness gave her evidence in a forthright and truthful way and to the extent that she could recollect the material events I largely accept her evidence. What problems there were with her evidence relate to her inability to recall details. However, more importantly, the applicant testified that he had discussions with another employee of the management company, Dina K.’s superior, C.C. Ms. K. could not say one way or the other whether these conversations took place and in all of the circumstances I find it is possible that they did take place. C.C. was not called as a witness. I conclude that the applicant established on a balance of probabilities he spoke to C.C. on March 15, 2007, as described below.

6Another potential issue which might have been argued but was not relates to the question of whether or not the applicant was a person with a disability at the material times. The respondent took no position on the issue. The applicant has a history of arthritis in his right foot and toe. The limited evidence available to me suggests that the applicant suffered a double sprain of his right big toe in the workplace accident on March 13, 2007. I am satisfied that, given the applicant’s long medical history including evidence of significant toe problems, which the accident in this case appears to have aggravated, the applicant was a person with a disability after the accident on March 15, 2007, and in need of accommodation. This was not simply a case of an otherwise physically intact individual suffering a minor injury to their toe, which might have given rise to a question of whether or not they were a person with a disability.

7The facts are not complex. The applicant was employed as a superintendent. He was injured at work late in the day on March 13, 2007. He reported the accident and injury to the building concierge. It is not clear whether or not Dina K. was at work on that day; she concedes that it is possible she was not. In any case, she would not have been on-site at the time of the incident. The applicant did not seek medical attention that evening and reported for work the following day.

8Where there is disagreement between the parties, I accept the respondent’s evidence with respect to the events of March 14, 2007. The applicant’s evidence with respect to what happened that day was very vague and changed several times throughout the hearing. To cite just one example, the applicant was adamant at first that Dina K. was not present on March 14, 2007, and believed she was away to attend to her father’s funeral. In the end, the applicant conceded that Dina K. was present at the workplace that day and in fact he may have spoken with her early in the morning.

9I find that on March 14, 2007, the applicant and Dina K. had a brief conversation about the incident the day before and that Dina K. told the applicant to see a physician. She gave him with a handwritten note that asked him to provide a doctor’s visit note, an accident report and any other medical evidence such as x-ray results. The applicant also likely stated, as claimed by Dina K., that he was fine to work at the time and that he had an appointment with the doctor later that day. Dina K. stated that she saw the applicant leave the workplace to attend to his doctor.

10The applicant returned from the doctor after 4:00 p.m. with a doctor’s note, which provided very limited information to the respondent. It is not clear which of Dina K. or C.C. saw the note. Dina K. did not recall seeing the note. However, ultimately there was no dispute between the parties that the note was received by the respondent and in its possession on March 14, 2007. The note indicated that the applicant was unable to perform his normal duties on March 15 and 16, 2007.

11According to the applicant he spoke with the Director, C.C., as he was leaving the building at about 5:30 p.m. on March 14, 2007. Dina K. agreed that she would have left the workplace an hour earlier. She could not say one way or the other whether this conversation between the applicant and the Director, C.C., took place. In his first version of what he said to C.C., the applicant did not state that he advised C.C. that he could not work on March 15 and 16 and it appears that the doctor’s note was not discussed at that time. In his evidence the applicant focussed on the need to complete the Form 7, the employer’s report of workplace accident and injury. According to the applicant, C.C. said that she did not have time to deal with the issue at the time but that he should return to work the following day to complete the Form 7 Later in his evidence, the applicant stated that he would have told C.C. that the doctor had said he could not work on the 15th and 16th and that he was going to have an x-ray taken on the 15th. It is not necessary to resolve the question of whether or not the applicant told C.C. that he was unable to work on March 15 and 16, 2007, because the only evidence from the applicant is that he was asked to come in to work the following day to complete the Form 7. On the applicant’s own evidence, a real conflict between his doctor’s advice that he should not work for a couple of days and the alleged instruction of this employer that he continue to perform his regular duties only arises the following morning. To be clear, it was not a violation of the Code for C.C. to ask the applicant to come in to work to complete the Form 7. Ultimately, the Form 7 was completed by Dina K. on March 15, 2007.

12The applicant attended at work at his regular start time the next day, March 15, 2007. He testified that C.C. was not at the workplace at that time, and neither was Dina K. The respondent did not dispute this. The applicant states that he spoke with C.C. on the phone at about 9:00 a.m. and she said that she and Dina K. were at another office and that he should wait for them at the workplace. The applicant states that he was told he should continue to perform his normal duties. He states that he reminded C.C. of the doctor’s note and the advice that he could not perform his normal duties. The applicant also stated that he told C.C. he needed to attend for an x-ray that day, and she said fine, but that she did not have anyone to cover for him that whole day and she needed him. The applicant stated that he went for the x-ray but otherwise performed his normal duties. The respondent had no evidence to show that this was not the case.

13Dina K. testified that because she was brand new to the building that she often consulted with C.C. Dina K. agreed that she had some conversation(s) with C.C. about the applicant’s injury and accident, but that she could not recall the content of those conversation(s). She also could not say one way or the other whether or not C.C. could have had a conversation, as described above, with the applicant in the morning of March 15, 2007.

14The respondent submits that I should not accept any of the applicant’s evidence. I have carefully considered this issue and while there are significant problems with his evidence, I am not prepared to discount it entirely. I do so primarily because elements of his evidence are more consistent with the surrounding circumstances and limited documentation available. In particular, it is not disputed that on March 14, 2007, the applicant discussed with the employer the incident on March 13, 2007, and his need to obtain medical information. It is also not disputed that as of late in the day on March 14, 2007, the applicant had provided the respondent a doctor’s note, which indicated he should be off work on March 15 and March 16, 2007. There is also indication in the material of his attendance for an x-ray on March 15, 2007, which is consistent with the applicant’s evidence. I have also considered that it is possible, as suggested by the applicant, that the respondent, having determined to dismiss the applicant from his employment on March 15, 2007, wanted him to stay at work for that purpose. It is entirely possible that the respondent, C.C. in particular, was focussed on that issue and did not turn her mind to the applicant’s request that he not be required to perform his regular duties that day. I find that the applicant’s evidence regarding the March 15, 2007 discussion with him and C.C. is consistent with the limited contemporaneous records and, on the other hand, I have no evidence from the respondent to counter the applicant’s assertion that he advised the respondent that he could not work on March 15, 2007, but was required to do so. I also accept his evidence that he complied with the direction because he felt that if he did not there would be consequences for him.

15In the alternative, the respondent also states that the request for accommodation must be a clear one. I find that the applicant on March 15, 2007, made a clear request to be accommodated by not being required to perform his normal duties. This request was rebuffed and the applicant complied with his employer’s direction. If the respondent required further information it could have asked for it, but I find that in these circumstances where an employee has suffered an apparently minor injury that is still being investigated by his physician, asking to be freed from your normal duties is a clear enough request that should have been responded to in some fashion. I find for all of these reasons that the respondent failed in its duty to accommodate the applicant to the point of undue hardship.

Remedies

16The applicant is seeking extensive remedies based largely on the original claim that his dismissal from employment was discriminatory. He also believes that the employer’s failure to accommodate him has had significant physical and psychological consequences for him. However, the medical evidence he provided does not support his view.

17I have reviewed the limited material provided by the applicant which suggests that the applicant had recovered from the injury sustained on March 13, 2007, within two to three months. In this regard, in addition to the few documents that were marked as exhibits at the hearing, I have also reviewed the WSIB materials filed by the applicant. The applicant’s ongoing medical and psychological problems do not appear to be directly related to the failure to accommodate him on March 15, 2007, but apparently flow from other injuries sustained prior to and subsequent to the events described above. The applicant’s own evidence at the hearing was that he suffered some pain in having to walk around the building performing his duties on March 15, 2007, and that other injuries were aggravated by this. He also testified about the trauma of the accident itself. In addition to that of course is the damage that is presumed to flow from the right to be accommodated in the workplace. I heard no evidence from the applicant on this issue. Understandably the applicant was and is more concerned with what he experienced as a discriminatory termination.

18The 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.

19In the circumstances of this case there is no claim to pecuniary damages. In terms of financial compensation the applicant’s only claim is to damages for injury to his feelings, dignity and self-respect.

20In 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.

21The applicant makes no specific claim to a particular quantum of damages. Having regard to the facts of this case, the limited timeframe of the respondent’s failure to accommodate, the lack of any evidence of an impact on the applicant of the respondent’s failure to accommodate him as opposed to the impact of its decision to terminate his employment, or the accident itself, for which they are not responsible, I find that a modest award is appropriate. I find that the respondent should pay to the applicant the sum of $1,000, inclusive of pre-judgement interest, reflecting the damage to his feelings, dignity and self-respect. The applicant is also entitled to post-judgment interest calculated on that amount if this amount is unpaid 30 days after the date of this decision.

22The applicant made no request for any other type of remedy and I find no basis for any further order in this case.

Order

23The Tribunal makes the following remedial Orders:

1. The respondent Toronto Standard Condominium Corporation No. 1519 will pay to the applicant the sum of $1,000 in damages for losses associated with injury to his feelings, dignity, and self-respect, within 30 days of this Decision.

2. The respondent shall pay the applicant post-judgment interest on any accumulated principal and interest on the amounts set out above calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990 c. C.43, from the date that is 30 days after the date of this Order.