Trevor Huffman v. Mitchell Plastics (a division of Ultra Manufacturing Ltd.), 2011 HRTO 1745

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Trevor Huffman

Applicant

-and-

Mitchell Plastics (a division of Ultra Manufacturing Ltd.)

Respondent

DECISION

Adjudicator: Andrew M. Diamond

Date: September 22, 2011

Citation: 2011 HRTO 1745

Indexed as: Huffman v. Mitchell Plastics (a division of Ultra Manufacturing Ltd.)

Appearances

Trevor Huffman, Applicant ) Self-represented

Mitchell Plastics,Respondent ) Greg McGinnis, Counsel

(a division of Ultra Manufacturing Ltd.) )

Introduction

1This is an application filed under section 34 of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”), alleging discrimination in the provision of employment by the respondent based on a disability, contrary to s.5 of the Code.

2This case is straightforward in that many of the fundamental facts are not in dispute, nor is the law. What is in dispute is whether or not the respondent employer knew or ought to have known about the applicant’s disability of alcoholism.

Background

3The respondent Mitchell Plastics (a division of Ultra Manufacturing Ltd.) specializes in manufacturing of interior plastic components, assemblies and tooling for the automotive industry at its manufacturing plant in Kitchener, Ontario.

4The applicant, Trevor Huffman was employed by the Respondent from January 5, 2004 until December 21, 2009.

Evidence

5The applicant and respondent agree that the applicant attended the respondent’s end of year holiday party for employees on or about December 18, 2009. The parties also agree that the applicant became intoxicated and acted in an inappropriate manner. As the applicant admits in his Application to the Human Rights Tribunal of Ontario (the “Tribunal”) when explaining what happened in his Form 1:

I went to the company Christmas party. I ended up getting intoxicated there. I was bought drinks there by members of management. I was harassing my supervisors and other members of management upon being intoxicated. The Monday following the Christmas party I was called into the hr office at the end of the day and terminated based on my actions at the Christmas party. It Happened at the St George Banquet Hall in Waterloo. I don’t recall all the events that allegedly took place as I blacked out toward the end of the party…

6While the applicant does not recall all of the details he does not deny the allegations made by the respondent set out in the respondent’s submissions and evidence. In light of the applicant not challenging the evidence of the respondent in any material way with respect to the applicant’s conduct I do not think it is necessary to go into the details of the conduct except to say they included his making physical threats and sexually inappropriate comments to fellow employees, members of management and their spouses.

7Where the parties differ on their version of the facts is that the applicant submits that “Mitchell Plastics is aware that I am an alcoholic and thus have a problem with it”. From that he argues that in light of his known disability his employment should not have been terminated as a result of his becoming intoxicated at a company event.

8Alcoholism is a recognised disability under the Code, but it is not one that is always obvious to the observer. As a result, this case turns entirely on the applicant’s allegation that the respondent knew of his disability prior to terminating his employment. The respondent denies any such knowledge prior to the applicant filing this Application.

9The applicant’s evidence in support of his allegation that the respondent knew of his disability is that in October of 2009 he approached Connie Bingeman, a human resources generalist with the respondent and told her he had a drinking problem and that he would like the company to assist him in paying for a prescription for a medication known as Champix that assists people with addictions. The applicant’s evidence was that Ms. Bingeman knew about the medication and that it was useful in treating many addictions including smoking, drinking and gambling. The applicant testified that both he and Ms. Bingeman knew that the respondent’s benefits policy did not provide assistance with stopping smoking and that Ms. Bingeman advised that she would have to get approval from Ms. Michele Dykeman, Director of HR. The applicant on cross examination admitted that Ms. Bingeman was the only person he told at the respondent that he had a drinking problem.

10The applicant testified that the day after his initial meeting with Ms. Bingeman she advised him that if the drug was to be used to assist with the applicant’s alcoholism the respondent would pay for the medication.

11Ms. Bingeman and Ms. Dykeman’s recollection of the events of October 2009 differ from those of the applicant. Ms. Bingeman testified that in October 2009 the applicant came to see her because his doctor had given him a prescription for Champix, a drug that was not covered under the respondent’s benefits policy and the applicant asked if there was anything that could be done as he could not afford the medication. Ms. Bingeman’s evidence was that the applicant did not tell her why the applicant’s doctor had prescribed Champix. Ms. Bingeman testified that she assumed it was to help him quit smoking as she had used the same medication to successfully quit smoking and was an enthusiastic proponent of the medication for that purpose.

12Ms. Bingeman testified that as a result of her having used the medication she was well aware that the drug was not covered under the benefits plan. Ms. Bingeman’s evidence was that the applicant was upset that a prescription drug was not covered under the plan so Ms. Bingeman offered to review the issue with her manager, Ms. Dykeman, to see if there was anything that could be done. Ms. Bingeman is not a member of management.

13Ms. Dykeman testified that she has discretion under the benefits policy to provide additional assistance and agreed to do so for a prescription for Champix for the applicant. Ms. Dykeman testified that Ms. Bingeman did not tell her that the prescription was for alcoholism; she believed it was for smoking. Ms. Dykeman testified that she was never told that the applicant had made a request for assistance with alcoholism. Ms. Dykeman also testified that she has in the past made accommodation for people with addictions, including alcoholism. Ms. Dykeman’s evidence was that in making the decision to terminate the applicant’s employment she did not consider that the applicant might have an addiction because she had no reason to. She testified that “there was no indication that he had a problem – I knew he drank and partied hard but did not know he had a problem.”

Analysis and DECISION

14In this Application, in order to establish discrimination in employment within the meaning of the Code the applicant must prove on a balance of probabilities that (a) he has the disability in question; (b) he made his employer was aware of his disability; and (c) that the respondent failed to accommodate his disability.

15When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. The Lippé Group, 2008 HRTO 50; Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68. The corollary of this principle is that an employer must know or ought reasonably to have known that an employee has a disability before the duty to accommodate will arise, and the employee seeking accommodation has the duty to bring the fact that they have a disability and the work-related needs arising from that disability to the attention of the employer: see Renaud v. Central Okanagan School District No. 23, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at para. 51. Therefore, assuming without deciding that the applicant is an alcoholic, as he has self-identified in his submissions and Application, the main issue in this case is - what did the management of the respondent know about the applicant’s disability prior to terminating the applicant’s employment?

16The applicant alleges that he informed Ms. Bingeman that he was an alcoholic when he requested benefit coverage for Champix. Ms. Bingeman denies being told that the applicant’s request for Champix coverage was due to an addiction to alcohol and asserts that she believed it was for a smoking addiction. Ms. Dykeman testified that Ms Bingeman did not tell her that the prescription request was for alcoholism, and she also believed it was for smoking. Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:

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.

17I find that the applicant has not established on a balance of probabilities that he advised the respondent’s management that he was an alcoholic and that he required the respondent to accommodate any work-related needs arising from that disability, or that he provided sufficient information to the respondent’s management that the respondent should have reasonably known that he was an alcoholic and required accommodation. The evidence before me indicates that Champix is commonly prescribed for smoking cessation. The Applicant had an opportunity to produce either his doctor’s clinical notes or the prescription to demonstrate, at minimum, that the drug was in fact prescribed for alcohol dependency. He failed to do so. Conversely, Ms. Bingeman’s evidence that she believed the applicant’s request to fund Champix was for smoking cessation was consistent with the evidence of Ms. Dykeman.

18Having heard the evidence of the applicant, Ms. Bingeman and Ms. Dykeman, and the applicant’s failure to provide any documentary evidence that could have supported his position, I find Ms. Bingeman’s evidence that the applicant did not tell her that the Champix funding request was for an addiction to alcohol to be more credible than the applicant’s evidence that he did. I am therefore satisfied that the respondent, when terminating the applicant’s employment, did not know that he had a disability that required accommodation, or that the respondent ought to have known his behaviour at the holiday party was related to a disability that required accommodation. As such, the respondent could not have been required to consider the applicant’s alcoholism when it terminated his employment.

DECISION

19For the above reasons, I find that the Application should be dismissed.