Munoz v. Diocese of Toronto, 2011 HRTO 1434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Theresa Munoz

Applicant

-and-

The Roman Catholic Episcopal Corporation of the Diocese of Toronto, in Canada and Father Henry Menezes

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: July 29, 2011

Citation: 2011 HRTO 1434

Indexed as: Munoz v. Diocese of Toronto

appearances BY

Maria Theresa Munoz, Applicant ) Mary Ellen McIntyre, Counsel

The Roman Catholic Episcopal Corporation ) Susan Adam Metzler, Counsel

of the Diocese of Toronto, in Canada and )

Father Henry Menezes, Respondents )

INTRODUCTION

1The applicant, Maria Theresa Munoz, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on June 16, 2009, which alleged that the respondents discriminated against her with respect to employment because of her disability and age.

2Specifically, she alleged that when she attempted to return to her job at a church after an eight-month, disability-related leave, the parish pastor, Father Henry Menezes, informed her that she was not allowed to return because no employer would keep a job open for eight months, and he was not going to fire her replacement, who was younger than her.

3The respondents filed a Response on October 28, 2009, which denied the allegations of discrimination.

4The respondents stated that Father Menezes was surprised when Ms. Munoz attempted to return to her job, but denied that he made any comments about her age or the age of her replacement. The respondents stated that Father Munoz expressed surprise to Ms. Munoz that she expected her job back after she went off work for a lengthy period of time without providing updates on her situation or medical documentation to justify her absence. The respondents also stated that Ms. Munoz did not provide any medical documentation thereafter.

DECISION

5The Application is upheld in part. I have decided that Ms. Munoz has proven on a balance of probabilities that the respondents discriminated against her with respect to employment because of her disability. Ms. Munoz’s allegation that the respondents discriminated against her because of her age is dismissed.

BACKGROUND

6Ms. Munoz was employed at Corpus Christi Parish, which administers a church, and is part of the Archdiocese of Toronto. Father Menezes was the parish pastor during Ms. Munoz’s entire term of employment.

7The hearing of the merits of the Application took place over one day. I heard the evidence of four witnesses: (1) Ms. Munoz, (2) Father Menezes, (3) Patience Narcis, the parish secretary, and (4) Marcel Goulet, the Archdiocese of Toronto’s manager of human resources.

8Ms. Munoz testified orally through a professional interpreter, who is proficient in Spanish and English. The evidence-in-chief of Father Menezes and Ms. Narcis was admitted by way of written affidavit, and they were then cross-examined by Ms. Munoz’s counsel and answered my questions. Mr. Goulet’s entire testimony was oral.

9I also admitted into evidence a number of documents that were tendered by the parties, including a doctor’s report, a policies and procedures manual for employees, the Reasons for Decision of an Employment Standards Officer, a Record of Employment (“ROE”), and documents related to a Workplace Safety and Insurance Board (“WSIB”) claim.

EVIDENCE

10Ms. Munoz is an immigrant to Canada, whose first language is Spanish. Prior to coming to Canada, she completed high school and obtained a secretary certificate. She has not obtained any further education credentials in Canada. She was 56 years old at the time of the incidents at issue in this case.

11In 2003, Ms. Munoz started working part-time as a cook/cleaner at the parish. In 2007, she also started working part-time as a cleaner with another employer. On July 31, 2008, while performing her other job, Ms. Munoz fell down a set of stairs and injured her neck, back, hip, and thigh.

12Ms. Munoz did not attend her next work shift at the parish, and did not call in prior to the shift to report her absence. She testified that she was unable to call the parish immediately because of the severity of her injuries, and the fact that she was bed-ridden. She stated that she called the parish a few days later, and spoke with Father Menezes. She stated that she told him that she had an accident at her other job, was unable to report to work at that time, and did not know how long her treatment would take.

13Ms. Narcis denied that Ms. Munoz called the parish. In her affidavit, she stated that when Ms. Munoz did not show up for her shift, she called her several times over a two-day period and eventually reached her. She stated that Ms. Munoz told her that she had been injured at her other job and would not be reporting to work as a result of her injury, but did not say how long her absence would be. In his affidavit, Father Menezes stated that he also spoke with Ms. Munoz, and did not know at that time if her absence would be temporary or permanent.

14Ms. Munoz and Father Menezes then agreed that Ms. Munoz would find someone to do the cook/cleaner job. The parties’ evidence is conflicting about who initiated this action. Ms. Munoz testified that she offered to find someone, while Father Menezes, in his affidavit, stated that he asked Ms. Munoz if she knew anyone who could take over her job responsibilities.

15Ms. Munoz testified that she spoke to an individual close to the pastor at her local church about the situation, who recommended a person (“Ms. A”). Ms. Munoz stated she then explained the job duties to Ms. A. Ms. A started the cook/cleaner position at Corpus Christi Parish shortly thereafter.

16Ms. Munoz testified that Ms. A was an “undocumented person”, which meant that she did not have legal immigration status in Canada. In cross-examination, Father Menezes did not dispute the fact that Ms. A was undocumented, but stated that Ms. Munoz should not have arranged for Ms. A to be her replacement if she knew that she was undocumented.

17Over the next eight months, Ms. Munoz underwent treatment and therapy for her injuries, and received WSIB benefits. The parties’ evidence is conflicting about the level of contact between them over the eight-month period. In her Application, Ms. Munoz stated that she spoke with Father Menezes in November 2008, and told him that she was still recovering, but she did not mention this contact in her oral testimony, and in her closing argument, Ms. Munoz’s counsel stated that there was no contact between Ms. Munoz and Father Menezes between August 2008 and May 2009.

18In her affidavit, Ms. Narcis stated that she called and spoke with Ms. Munoz twice between August and December 2008. She stated that Ms. Munoz mentioned that she was still in therapy, but never said that she would be coming back to work. She also stated that Ms. Munoz never called her and said that she was “ready to return to work”.

19The parties’ evidence is also conflicting over whether the respondents requested medical documentation from Ms. Munoz to justify her absence. In cross-examination, Father Menezes stated that he spoke with Ms. Munoz in December 2008 and asked her to provide medical documentation. This statement contradicted the Response to the Application, which stated that Ms. Munoz did not speak to Father Menezes between August 2008 and the spring of 2009, and paragraph 7 of Father Menezes’s affidavit, which stated: “I did not speak to Ms. Munoz between August 2008 and the spring of 2009….”

20Ms. Munoz denied that Father Menezes or Ms. Narcis asked her to provide medical documentation during her absence. She stated that all her telephone conversations with them were polite and brief, and they never asked her to provide a doctor’s note to justify her absence. She also stated that she would have provided such documentation to the respondents if they had asked for it.

21In his affidavit, Father Menezes stated that by January 2009 he understood that Ms. Munoz would not be returning to her job because of Ms. Narcis’s two contacts with Ms. Munoz, and a conversation that Ms. Narcis had with Ms. A. In her affidavit, Ms. Narcis explained what happened with Ms. A:

While Ms. Munoz was absent from work, [Ms. A]… was offered a one-year job elsewhere. I learned this directly from [Ms. A]…. When I told Father Menezes about the job offer [Ms. A] had received, he asked me to have [Ms. A] speak directly with Ms. Munoz about the job at the Parish. Ms. Munoz and [Ms. A] did speak about the Parish job. Ms. Munoz told [Ms. A] she (Ms. Munoz) would not be returning to the Parish job as her daughter did not want her to work. [Ms. A] told me about this conversation between [Ms. A] and Ms. Munoz, and I reported it to this to Father Menezes. Father Menezes said [Ms. A] could continue with the Parish job.

22In cross-examination, when asked to clarify what changed in January 2009, Father Menezes stated that Ms. Munoz was “not quite well”. When asked whether he then assumed that she would not return to work, he responded in the affirmative.

23Ms. Munoz denied that she ever told Ms. A that she would not be returning to her job. She agreed that she spoke with Ms. A during her absence, but stated that she told her that she would be returning to her position when she recovered from her injuries.

24In cross-examination, Father Menezes and Ms. Narcis both admitted that they did not contact Ms. Munoz to confirm whether or not what Ms. A had told them was true. When asked by me why she did not contact Ms. Munoz directly, Ms. Narcis stated that it was because she had accepted what Ms. A told her was true. None of the parties called Ms. A as a witness.

25In early May 2009, Ms. Munoz returned to work at her other job on modified duties. The employer created a return to work plan in consultation with WSIB. At about the same time, Ms. Munoz went to Corpus Christi Parish and told Ms. A that she was returning to her job. Ms. Munoz testified that she also spoke with Ms. Narcis about her return, but Ms. Narcis denied that Ms. Munoz spoke to her.

26A few days later, Ms. Munoz arrived at the parish with groceries ready to start working again. Ms. Narcis asked her to speak with Father Menezes in his office. Ms. Munoz testified that Father Menezes screamed at her and told her that she no longer had a job, no employer would wait for eight months for an employee to return, and that Ms. A was younger than her. She also stated that she offered to provide him with medical documentation to justify her absence, but he responded that it was not necessary because he had fired her.

27In his affidavit, Father Menezes denied that he yelled at, or raised his voice, with Ms. Munoz, or said anything about Ms. A being younger than her. He stated that he told her that she could not just show up and expect to take her job back, she never produced a medical report or certificate, he did not believe that she was coming back to work after what she had told Ms. A, and he could not keep her job open for eight months, especially when she had not stayed in touch.

28In her affidavit, Ms. Narcis stated that she was close enough to hear the conversation, and that Father Menezes was not yelling at Ms. Munoz. She also stated that she heard Father Menezes ask Ms. Munoz about a medical report, and Ms. Munoz responded that she had not brought a medical report with her, but would bring it the next day.

29When asked how she communicated with Father Menezes, Ms. Munoz admitted that they spoke in English. She stated that despite her lack of fluency in English, she was able to get her point across.

30None of the parties presented evidence about the precise age of Ms. A. Ms. Munoz estimated that she was 35 to 40 years old, and Ms. Narcis estimated that she was 28 to 34 years old. Father Menezes testified that she was younger than Ms. Munoz, but he was unable to estimate her age.

31On May 12, 2009, Ms. Narcis issued an ROE to Ms. Munoz. In section 12 (Final Pay Period Ending Date), she wrote “22/08/2008”. In section 14 of the ROE (Expected Date of Recall), Ms. Narcis checked off “unknown” rather than “not returning”. In section 16 (Reasons for Issuing this ROE), she wrote Code “D” (illness or injury), rather than Code “E” (quit) or “M” (dismissal).

32Mr. Goulet testified that the ROE should have been issued in August 2008 after Ms. Munoz’s last day of work, and when he found out in May 2009 that no ROE had been issued, he instructed the parish’s bookkeeper to issue one.

33Ms. Munoz testified that the termination of her employment at Corpus Christi Parish had a significant impact on her. She stated that she cried frequently, was unable to sleep, and felt depressed. She also stated that for the first time in her life she lost faith in the Catholic Church, and stopped attending services.

34Ms. Munoz tendered into evidence a report from her family physician, which states that she visited him on May 12, 2009, told him about the termination of her employment, complained of depression, and said that she felt sad, angry and rejected by the Catholic Church. The report indicates that Ms. Munoz was prescribed an antidepressant, but does not contain a clinical diagnosis of depression. Ms. Munoz did not call her family physician as a witness.

35In cross-examination, Ms. Munoz admitted that she experienced severe pain at the time of the accident, and continues to experience pain up to the present time, but stated that it is not as severe as it used to be. During the hearing, Ms. Munoz stood up for periods of time, and admitted that it was to relieve the pain that she was feeling.

36Ms. Munoz testified that she continued working at her other part-time job until January 2010 when the company lost its contract, and was no longer able to accommodate her need for modified duties. She stated that she then entered WSIB’s Labour Market Re-entry (“LMR”) Program.

37In her Application, Ms. Munoz stated that she was trying to find another job, but was very afraid when she went for interviews. At the hearing, however, she did not provide any oral testimony or documentary evidence about her job search. The respondents also did not cross-examine Ms. Munoz on her attempts to mitigate her damages, or request that the Tribunal order Ms. Munoz to produce documentary evidence of any such attempts.

ANALYSIS

Applicable Law and Issues

Human Rights Code

38The Application relates to sections 5, 9, 10, and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… age… or disability.

(…)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. (1) In Part I and in this Part... “disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

(…)

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Issues

39In this case, the main issues that I am required to determine are as follows:

1. Did the respondents discriminate against the applicant because of her disability?

2. Did the respondents discriminate against the applicant because of her age?

Onus

40The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.

41The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. If the applicant establishes a prima facie case of discrimination, the respondent must establish defences and exemptions on a balance of probabilities. Although an evidentiary burden to rebut discrimination may shift to the responding party, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 112 and 119.

Credibility

42The basic chronology of events is not in dispute, but there are credibility issues with respect to some of the key facts. In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the 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…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]

43Accordingly, I have not considered each witness’s evidence in isolation, but rather, in the context of the totality of the evidence. See F.H., supra, at para. 58.

Did the respondents discriminate against the applicant because of her disability?

44In order to establish a prima facie case of discrimination, the applicant must prove that (1) she had, or was perceived to have, a disability, (2) she received adverse treatment, and (3) her disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.

45With respect to the first part of the test, Ms. Munoz proved that she had a disability within the meaning of the Code. She provided evidence that showed that she had physical injuries that significantly impaired her ability to work and were ongoing, and for which she applied for and received WSIB benefits.

46With respect to the second part of the test, Ms. Munoz proved that she received adverse treatment. She provided evidence that showed that Father Menezes terminated her employment when he refused to allow her to return to work following her leave of absence.

47With respect to the third part of the test, Ms. Munoz proved that her disability was a factor in the adverse treatment. She provided evidence that showed that Father Menezes terminated her employment while she was on a disability-related leave, and that her employment would not have been terminated if she had not been on such a leave. In other words, she proved that, in effect, Father Menezes terminated her employment because of her disability. This falls within the definition of discrimination that was set out by the Supreme Court of Canada in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at pp 174-75:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

48Accordingly, I find that Ms. Munoz established a prima facie case with respect to her allegation that the respondents discriminated against her because of her disability, and that is sufficient to shift the evidentiary burden to the respondents to establish that their actions were non-discriminatory.

49The respondents did not dispute the fact that Ms. Munoz had a disability, Father Menezes had given her job to Ms. A on a permanent basis in January 2009, and Father Menezes refused to allow her to return to her job in May 2009. Their defence was that Ms. Munoz quit her employment by failing to provide updates about her situation, failing to provide medical documentation to substantiate her absence, and telling her replacement, Ms. A, that she would not be returning to her job.

50I will deal with these evidentiary issues one-by-one. First, I find that Ms. Munoz did not initiate contact with the respondents between August 2008 and May 2009. Although her Application stated that she contacted Father Menezes in November 2008, she appeared to resile from that position at the hearing.

51On the other hand, I find that there was some contact initiated by the respondents during this time period. I accept Ms. Narcis’s evidence that she contacted Ms. Munoz on two occasions between August and December 2008, and Ms. Munoz told her that she was still in therapy, but never said she would be coming back to work.

52The respondents suggested that the fact that Ms. Munoz did not explicitly tell Ms. Narcis that she would be coming back to work was an indication that she had quit her job. I disagree. Ms. Munoz’s failure to be explicit in the way that Ms. Narcis suggests that she should have been cannot reasonably be equated with quitting her job, particularly in light of the fact that she had found someone to do her job while she was on her leave, and she told Ms. Narcis during those two conversations that she was in ongoing therapy.

53Turning to the second evidentiary issue, I find that Ms. Munoz did not provide any medical documentation to justify her absence, but I also find that the respondents never asked her to provide such documentation during her absence. Neither the Response to the Application nor Father Menezes and Ms. Narcis’s affidavits indicated that the respondents asked Ms. Munoz to provide medical documentation during her absence.

54Furthermore, I do not accept Father Menezes’s evidence, which he raised for the first time in cross-examination, that he spoke with Ms. Munoz in December 2008 and asked her to provide medical documentation. This evidence contradicted both the Response to the Application and his own affidavit, which stated that he had no contact with Ms. Munoz between August 2008 and the spring of 2009.

55In my view, Father Menezes never asked Ms. Munoz to provide medical documentation during her absence because he had accepted that she was unable to work because of her injuries. In his affidavit, he stated that he did not know if Ms. Munoz’s absence would be temporary or permanent, and in cross-examination, he admitted that he had assumed that she was not coming back to her job because she was not well. There is no evidence that he ever had concerns that Ms. Munoz’s leave could not be justified on medical grounds.

56I also accept Ms. Munoz’s evidence that she would have provided medical documentation to the respondents if they had asked for it. Father Menezes’s own evidence, which I accept, is that, upon his request, Ms. Munoz took active steps to find someone to fill her position while she was on a medical leave. Furthermore, she provided medical documentation to WSIB in order to obtain benefits with respect to her absence from her other job. In these circumstances, I do not believe that she would have ignored a request from the respondents to provide medical documentation to justify her absence from her job at the parish.

57Turning to the third evidentiary issue, I find that Ms. Munoz did not tell Ms. A that she would not be returning to her job. I accept her evidence that she intended to return to her job when she was sufficiently recovered from her injuries, and told Ms. A the same. Again, the fact that she found someone to fill her position while she was on a medical leave was a clear indication that she intended to return to her job. Furthermore, the fact that she attempted to return to her job at the parish shortly after she was medically cleared to return to her other job supports her evidence on this issue.

58I was also troubled by the fact that the respondents did not call Ms. A as a witness to provide direct evidence on this crucial issue, and provided no explanation for their failure to do so. Instead, the respondents asked me to find that Ms. Munoz quit her job based on hearsay evidence. I am not prepared to do so because of the potential unreliability of hearsay evidence, and the respondents’ failure to explain why Ms. A was not called as a witness. I would add that, even if Ms. A made such a statement to Ms. Narcis, the respondents should have known that the statement was potentially untrue because it was self-serving.

59I also found the manner in which the respondents handled this matter highly suspect. Ms. Narcis contacted Ms. Munoz for updates on her situation twice between August and December 2008, and never asked her if she had quit or was quitting her job, but then, when a situation arose (Ms. A was offered a one-year job elsewhere), which required her to directly ask Ms. Munoz that critical question, instead of contacting her directly, she asked Ms. A to talk to her. When I asked Ms. Narcis to explain why she did not contact Ms. Munoz directly, Ms. Narcis stated that it was because she had accepted that what Ms. A told her was true. I found this answer evasive and lacking in credibility given Ms. Narcis’s prior practice of contacting Ms. Munoz directly for updates.

60Finally, I find that Father Menezes could have repaired the situation when Ms. Munoz attempted to return to her job in May 2009, but instead confirmed that her employment with the parish had ended. I accept Father Menezes’s evidence that he told Ms. Munoz that she could not just show up and expect to take her job back, she never produced a medical report or certificate, he did not believe that she was coming back to work after what Ms. A told him, and he could not keep her job open for eight months.

61However, I also accept Ms. Munoz’s evidence that Father Menezes then rebuffed her offer to produce medical documentation to justify her absence. Ms. Narcis confirmed that she heard Ms. Munoz offer to bring a medical report the next day. Although Ms. Narcis also stated that Ms. Munoz never brought the report, I accept Ms. Munoz’s evidence that she did not do so because Father Menezes had confirmed that her employment with the parish had ended. In view of my findings above about Ms. Munoz’s ability to obtain medical documentation and her intention to return to her job at the parish, I believe that she would have provided a medical report to Father Menezes if she had been required to do so in order to return to her job.

62Accordingly, I find that the respondents did not establish a credible, non-discriminatory reason to rebut Ms. Munoz’s prima facie case of discrimination.

63Alternatively, Ms. Munoz’s counsel submitted that the respondents failed to fulfill their legal duty to accommodate Ms. Munoz’s needs related her disability up to the point of undue hardship. The respondents’ counsel, on the other hand, submitted that the duty to accommodate did not even arise because Ms. Munoz never asked the respondents to accommodate her disability-related needs.

64It is well-established that the accommodation process is a shared responsibility. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970. In order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. See Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at para. 35.

65The scope of the employer’s duty to accommodate an employee with a disability is set out in section 17 of the Code. Once the duty to accommodate has been triggered, the respondent employer has both procedural and substantive obligations. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship. See Baber v. York Region District School Board, 2011 HRTO 213 at para. 94.

66I disagree with the respondents’ counsel’s position on this issue. Neither Ms. Munoz nor Father Menezes had sophisticated knowledge about their obligations under human rights and employment law, but I find that they engaged in an accommodation process with respect to Ms. Munoz’s disability-related needs.

67I find that when Ms. Munoz informed Ms. Narcis and Father Menezes that she had physical injuries and needed time off work to recover, she had made a request for accommodation, which triggered the respondents’ duty to accommodate her disability-related needs. At that point, Father Menezes fulfilled the respondents’ duty to accommodate Ms. Munoz’s disability-related needs by allowing her take a leave of absence to recover. Courts and tribunals have recognized that providing a leave of absence for recovery can be a form of accommodation. See, for example, McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161 and Woolworth Canada Inc. v. Newfoundland (Human Rights Commission), 1995 CanLII 9888 (NL CA).

68I find that Father Menezes then continued to engage in the accommodation process by asking Ms. Munoz if she knew anyone who could take over her job responsibilities, and that Ms. Munoz facilitated the implementation of her accommodation by finding someone to perform her job while she was on her leave.

69I agree with the respondents that Ms. Munoz was not diligent in contacting the respondents to update them about her situation, but given the fact that she had found someone else to perform her job, and that she provided updates to Ms. Narcis about her situation when Ms. Narcis called her, her lack of diligence did not dislodge the respondents’ legal duty to continue accommodating her disability-related needs up to the point of undue hardship.

70I find that Father Menezes breached the employer’s duty to accommodate Ms. Munoz’s disability-related needs when, without contacting her, notifying that her employment was in jeopardy, or asking her for medical information on her current and future ability to work, he gave her job to Ms. A permanently, and then later refused to repair the situation by refusing to allow her to return to her job and confirming that her employment had ended.

71Accordingly, I find that the respondents did not rebut Ms. Munoz’s prima facie case of discrimination because they also failed to establish that they accommodated her disability-related needs up to the point of undue hardship.

72In all the circumstances, whether this case is framed as actions by an employer that had a discriminatory effect on an employee because of her disability, or a failure of the employer’s legal duty to accommodate an employee’s disability-related needs, I find that Ms. Munoz proved on a balance of probabilities that the respondents discriminated with respect to employment because of her disability. This allegation is therefore upheld.

Did the respondents discriminate against the applicant because of her age?

73I find that Ms. Munoz established a prima facie case of discrimination that the respondents discriminated against her because of her age. She provided evidence that showed that she is at least 15 years older than Ms. A, Father Menezes terminated her employment when he refused to allow her to return to work, and one of the reasons that Father Menezes provided to justify the termination was that Ms. A was younger her.

74The respondents did not dispute the fact that Ms. Munoz was significantly older than Ms. A, Father Menezes had given Ms. Munoz’s job to Ms. A on a permanent basis in January 2009, and Father Menezes refused to allow Ms. Munoz to return to her job in May 2009. Their defence on this particular issue was that Father Menezes never told Ms. Munoz that he terminated her employment because Ms. A was younger than her.

75In his affidavit, Father Menezes denied that he said anything to Ms. Munoz about Ms. A being younger than her. Ms. Munoz’s counsel did not cross-examine him on this issue, and he answered my questions on this issue in a straightforward and credible manner. Ms. Munoz’s testimony on this issue was also straightforward and credible, but she did not provide any additional evidence to support her allegation.

76In these circumstances, I am unable to determine who was telling the truth, and whose evidence was more credible. Accordingly, Ms. Munoz did not prove on a balance of probabilities that the respondents terminated her employment because of her age. At most, she established that this was a possibility, which is below the standard of proof. This allegation is therefore dismissed.

REMEDY

Applicable Law and Issues

77The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provide:

(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.

78Accordingly, the issues that I am required to determine are whether Ms. Munoz is entitled to monetary compensation or restitution, and whether the Tribunal should order the respondents to do anything further to promote compliance with the Code.

Monetary Compensation

Injury to Dignity, Feelings and Self-Respect

79Ms. Munoz seeks an award of $5,000 compensation for injury to dignity, feelings and self-respect. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Ontario Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 at para. 152.

80The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc., supra, at para. 153.

81In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:

(…) 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.

82I find that the respondents’ discriminatory treatment of Ms. Munoz was serious. The respondents terminated her employment because of her disability after she had worked for them for more than five years. Although there is insufficient evidence to find that she became clinically depressed because of the termination, and I believe that her physical injuries contributed to her emotional difficulties, I accept her testimony, which is corroborated by her doctor’s report, that she cried frequently, was unable to sleep, felt depressed, lost faith in the Catholic Church, and stopped attending church services because of the discriminatory termination of her employment.

83Recent Tribunal decisions that have considered disability-related discrimination in the context of the termination of the applicant’s employment have made awards ranging from $3,000 to $45,000. In the cases on the low end of the spectrum, the Tribunal found the applicant had work performance issues that contributed to the termination, only worked for the respondent for a short period of time, and/or failed to present evidence of the impact of discriminatory termination on him or her. See, for example, Quattroci v. Boz Electric Supply, 2009 HRTO 1082, Garcia v. Tri-Krete, 2009 HRTO 2181, and Buckingham-Vanderlei v. Walker, 2010 HRTO 1338. None of those circumstances exist in the case at hand.

84I find after considering Ms. Munoz’s individual circumstances and similar cases that $5,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect. Although $5,000 is on the low end of the spectrum of awards in the Tribunal’s case law, and I would have considered making a higher award if I had been asked to do so, Ms. Munoz’s position is that $5,000 is adequate to compensate her. See Van Adrichem v. Lopes, 2010 HRTO 1091 at para. 35 and Pereira v. Daf’d Restaurants, 2010 HRTO 1782 at para. 25.

Lost Income

85Ms. Munoz also seeks an award of monetary compensation for lost income. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory acts not occurred. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.) and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).

86The applicant is under a duty to mitigate her losses. In A. v. Ruby’s Foods Services Ltd., (1992), 1992 CanLII 14245 (ON HRT), 16 C.H.R.R. D/394, the Ontario Board of Inquiry (this Tribunal’s predecessor) stated at para. 45:

(…) the wronged party… must do what it reasonably can to minimize the losses…. An employee entitled to damages because she has been unlawfully discharged or has left her employment because of a violation of her statutory rights, cannot remain idle and then expect complete compensation for the period. She must seek employment to mitigate the damages. The wronged party is entitled to receive damages compensating only the losses that could not have been avoided.

87In deciding whether an employee acted reasonably, courts and tribunals have taken into account physical, mental or emotional problems caused by an accident or discrimination. In Walsh v. Mobil Oil Canada, 2007 ABQB 305, the Court of Queen’s Bench of Alberta stated at para. 88:

(…) While it is true that Ms. Walsh has a duty to mitigate that loss and take reasonable steps to find alternate employment she is only required to act reasonably. Any delay in mitigation because of physical, mental or emotional problems arising from her experience with Mobil should be taken into account. If her injuries as a result of the accident caused her problems in seeking work elsewhere, she is entitled to be compensated. If, as a result of emotional or mental anguish, she was prevented from seeking alternate employment, again she is only obligated to act reasonably. If she does so, she is entitled to compensation for whatever time she is off work….

88The respondent, on the other hand, has the onus of proving that the applicant failed to mitigate her losses. See Heintz v. Christian Horizons, 2008 HRTO 22, at para. 265.

89Although the ultimate burden of proving that an employee has not sufficiently mitigated rests on the employer, the employee has an initial evidentiary onus to show that she did attempt to mitigate. The employee is obliged to lead evidence of her attempts to mitigate, and it is not appropriate to fail to say anything about her efforts to mitigate. See, for example, Toronto Ass’n for Community Living and C.U.P.E., Local 2191 (2006), 153 L.A.C. (4th) 266 at paras. 18-19.

90In her closing arguments, the applicant’s counsel submitted that the Tribunal should award the applicant compensation for lost income from June 2009 to January 2010. She admitted that there is an issue as to whether the applicant mitigated her losses, but did not provide any further details.

91The respondents’ counsel submitted that the Tribunal should deny the applicant’s request for an award for compensation for lost income because there is no evidence that she looked for another job.

92The applicant’s request for an award of monetary compensation for lost income is denied. Ms. Munoz did not lead any evidence on her attempt to mitigate her damages, or why she was hindered in doing so, or unable to do so, because of physical, mental or emotional problems resulting from her accident or the discrimination. Accordingly, she failed to meet her initial evidentiary burden of showing that she attempted to mitigate her damages, and is not entitled to an award of compensation for lost income.

Compliance Remedies

93Based on the evidence, I am not satisfied that the respondents fully understand their obligations under the Code with respect to employees who have a disability. I have also noted that the Archdiocese of Toronto’s Policies & Procedures Manual for Archdiocesan Employees in Parishes includes a non-discrimination provision and a section on sexual and other forms of harassment, but does not have a section on accommodating employees with disabilities.

94I therefore find it appropriate to order that the Archdiocese of Toronto retain a consultant with expertise in human rights to assist in drafting and implementing a section in the Manual on accommodating employees with disabilities in accordance with the Code.

95Ms. Munoz also requested that all priests and employees of the Archdiocese of Toronto receive human rights training.

96In my view, this request is too broad given that the incidents of discrimination only occurred at one parish. However, I find it appropriate to order that Father Menezes, the current pastor at Corpus Christi Parish, and any other employees at the parish who deal with human resources matters, complete the Ontario Human Rights Commission’s online training module on human rights (http://www.ohrc.on.ca/hr101/).

ORDERS

97Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondents shall pay Ms. Munoz $5,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.

2. Within 90 days of the date of this Decision, the Archdiocese of Toronto shall retain a consultant with expertise in human rights to assist in drafting and implementing a section on accommodating employees with disabilities in its Policies & Procedures Manual for Archdiocesan Employees in Parishes, and provide a copy of the updated Manual to Ms. Munoz.

3. Within 90 days of the Date of this Decision, Father Menezes, the current pastor at Corpus Christi Parish, and any other employees at the parish who deal with human resources matters shall complete the Ontario Human Rights Commission’s online training module on human rights, and provide copies of the certificates of completion to Ms. Munoz.