Tearne v. Windsor (City), 2011 HRTO 2294

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Tearne

Applicant

-and-

The Corporation of the City of Windsor and Proactive Ergonomics Concepts Inc. o/a Pinnacle Ergonomic

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: December 22, 2011

Citation: 2011 HRTO 2294

Indexed as: Tearne v. Windsor (City)

APPEARANCES

Gary Tearne, Applicant ) Dijana Simonovic and Natasha ) Persaud, Counsel

City of Windsor, Respondent ) Patrick Brode, Counsel

Proactive Ergonomics Concepts Inc. ) Ritch Coughlin, Representative

1This is an Application filed on July 16, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). A hearing was held over three days in November 2010 in Windsor, following which a conference call was held to receive the parties’ closing arguments.

2The applicant alleges that he experienced discrimination in respect of employment on the basis of his age. Specifically, he alleges that a conditional offer of employment as a part-time arena attendant made to him by the respondent City of Windsor (the “City”) was withdrawn after the respondent Proactive Ergonomics Concepts Inc./Pinnacle Ergonomic (“Proactive”) did not allow him to complete pre-employment testing. He argues that he was improperly excluded from completing the hiring process and from employment as a part-time arena attendant as a result of his factors relating to his age, contrary to the Code.

3The respondents, for their part, deny that they discriminated against the applicant and argue that the job in question is a heavy one, that valid, related and necessary pre-employment testing of the applicant was attempted on two occasions and that the testing was discontinued for sound reasons, specifically because the people administering the tests were concerned about the safety and well-being of the applicant.

4The City of Windsor also submits that Proactive is not properly named as a respondent in this matter as it is a supplier of services to the City of Windsor and all decisions that impact on the applicant were made by the City or those it authorized to act on its behalf.

5Over the course of the hearing, I heard from a number of witnesses. The applicant gave evidence on his own behalf. The respondents put forward the evidence of Ritch Coughlin, owner of the respondent company, Proactive, and Dennise Howells, Dan Iatonna, Yvan Mantha and Domenic Marcella, employees of the respondent City.

6I also heard from two expert witnesses: Dr. Paterson, on behalf of the applicant and Dr. Kenno on behalf of the respondents.

7For the reasons that follow, this Application is allowed.

THE LAW

8The relevant provisions of the Code provide as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

2. Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

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

11.(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member 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.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

24.(1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(b) the discrimination in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment;

(2) No tribunal or court shall find that a qualification under clause (1) (b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

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.

THE EVIDENCE

Gary Tearne

9The applicant testified that he was born in 1943 and, at the material time, he was 64 years old.

10He applied for a job as a part-time arena attendant with the respondent City. He had over 30 years experience doing janitorial work, some of which was acquired in large box store environments, and knew that he could do that part of the arena attendant job. In addition, he had taken some courses on refrigeration, had a “refrigeration B ticket”, and felt he had the knowledge to do the balance of the job and just needed the opportunity to gain some experience in the field.

11The applicant testified that he had applied for this type of job with the City four to five times over the previous few years and was pleased to have been granted an interview on this occasion. When describing the job, he says Ms. Howells, the recruiter, told him that he would be changing the propane tank on the Zamboni, learning to operate the Zamboni, using a “spud tool”, taking nets off the posts, giving out tickets and directions, and lifting garbage cans and mopping and cleaning.

12Following the interview, he met with Dennise Howells, who told him that he needed a police clearance check and a medical clearance from his family doctor. During one of their meetings she told him that he needed to complete a strength and agility test.

13He went to get a physical examination and medical clearance certificate from his physician, Dr. Heiman, who asked him to do some lifting and checked his general health. Dr. Heiman did a tuberculosis test as well. He provided him with the medical clearance requested by Ms. Howell on behalf of the respondent City.

14The applicant testified that he brought in a number of documents including the medical and police clearances as well as his diploma, and he was given a letter dated September 15, 2008, making him a conditional offer of employment. He signed that letter on September 19, 2008.

15The date the first test was conducted at Proactive was September 24, 2008. He was asked to sign a document. He testified that he gets naturally nervous about things he does not know about or understand. He also shared that he has a slight learning disability that he does not like to tell people about if it is not necessary.

16He was told to lift bins and put them on shelves. He tried to do the tasks quickly because of his nervousness and hyperventilated. He then calmed down and sat for a while, as he was told to do so by someone who worked for Proactive.

17The test lasted 10 to 20 minutes and he thought he had completed it successfully. He does recall the person administering the test took his pulse after each lift. He says at the time, he did not know why this was being done.

18When he realized that he had not, in fact, passed the test, he asked to see a copy of the test results. He says that although parts of the document are marked “not able”, he was not even given an opportunity to try to complete those portions of the test.

19He says he felt quite frustrated during this part of the process because the City told him it was up to the testing company to decide the matter and the testing company told him it was the City’s decision. He went to speak to his contact at the City, Dennise Howells, and told her he felt that he had not been treated fairly by the person administering the test and that he felt he had been discriminated against. He also disclosed the existence of his learning disability.

20In late October, 2008, he was invited back to the respondent Proactive’s offices and given an opportunity to retake the test. This time the test was administered by Ritch Coughlin, the owner of the company.

21The applicant testified that Mr. Coughlin was very pleasant and helpful. The test was administered at a slower pace and he lifted the weights as requested. He did not refuse to perform any of the tasks in the test; nor was he unable to do any task he was invited to perform. His pulse was being taken during the test but he did not know if his heart rate was at an acceptable level.

22After the test, he was asked by Ritch Coughlin to come to the office area and Mr. Coughlin explained that his heart rate had gone up to an unacceptable level at some points in the test. He said the matter was now out of his hands and suggested that the applicant seek special consideration from the City.

23He took that advice and told Dennise Howells that he felt he had done well but was concerned by what Ritch Coughlin had said. He told her that he did not feel Ritch Coughlin had discriminated against him, but rather that the test itself was discriminatory. She said there was nothing that she could do but asked if he wanted to speak to her boss. He told her he would speak to the head of personnel. He made an appointment to do so. Before the date of that appointment he received a letter from the City telling him that because he had failed the test twice, the City would not be proceeding with the offer of employment. He went to the appointment anyway and asked for what he calls “consideration” but nothing came of his request.

24The applicant testified that he had been engaged to be married but he did not follow through on those plans because he did not want to live off his partner and be a burden to her financially. He says he has a regular pension but had hopes of part time employment. Those hopes failed to materialize as a result of the respondents’ decisions.

25The applicant says he has been through some tough times financially. He was forced to declare bankruptcy and was recently discharged. At the time of the hearing, he was not working. Since the events involving the respondents, the only job he has managed to get was a three-week stint in 2009. He is qualified to do several types of work such as janitorial, shipping-receiving, driving delivery vans, and grounds keeping work. The applicant says he has applied to many job advertisements in the categories of work for which he is qualified and provided me with extensive records of his job search activity over the two year period between the events in question and the hearing date. In his view, he has not been hired because there are many people out of work and the competition for employment is stiff.

The City Employees

26I heard from Dennise Howells, Dan Iatonna, Yvan Mantha, and Domenic Marcella, all of whom are employees of the respondent City.

Dennise Howells

27Dennise Howells is a member of the Human Resources team at the respondent City. At the material time, she was a recruitment co-ordinator and worked on the job competition that is at the heart of this Application. Her evidence about her contact with the applicant does not differ substantially from his. In addition to testifying about her dealings with the applicant, Ms. Howells gave some general evidence about the process itself.

28Ms. Howells was asked about the absence of any mention of the testing in the conditional offer of employment sent to the applicant. She testified that was standard practice.

29She was unable to recall whether, in previous job competitions involving the arena attendant position, a physical test had been used, despite having checked the City’s records. She did acknowledge that the email correspondence on file suggested that a Physical Demands Analysis (“PDA”) was in the process of being completed in August of 2008, suggesting either that one did not already exist or that the existing one was being amended.

30Ms. Howells testified that there was a difference between a “rink attendant” and an “arena attendant”. Her recollection, without checking both job descriptions, was that an arena attendant had some additional caretaking duties in addition to those of the rink attendant. She was unable to explain why the physical testing sheets used by Proactive would have been titled “rink attendant” as opposed to “arena attendant”.

31She did not herself complete the PDA or the physical testing requirements and had no further direct involvement with the applicant after speaking with him following his second test at Proactive. She testified that she could not make any decisions about what to do about the test results from Proactive or necessary accommodations and directed the applicant to speak with the manager of human resources as he was clearly still dissatisfied about the process.

Dan Iatonna

32Dan Iatonna, the manager of employment services and WSIB matters within the human resources department of the respondent City, gave evidence that he got personally involved in this matter when the applicant asked to speak with Dennise Howell’s manager.

33On October 17, 2008, he recalls that there was the first disclosure by the applicant of a learning disability. As a result of that disclosure and the applicant’s failure to complete the first test at Proactive successfully, Mr. Iatonna then recalls meeting with other City staff the next day regarding retesting the applicant. After that discussion, he decided to go to Proactive’s facility personally, which he did on October 22, 2008. He was accompanied by other City staff, and Ritch Coughlin, the owner of Proactive, went through the test with them.

34He says that it appeared to him to be a good test and speaking to Ritch Coughlin made him believe that it was conducted fairly. Mr. Coughlin said he would allow a retest at no extra cost to the City.

35After the second test, he spoke to the applicant again. He felt that the applicant became more irate and aggressive with him as he realized he was not moving forward and would not be getting the job after all. He instructed Dennise Howells to prepare a letter to the applicant indicating that, as he had not passed the test at Proactive, he could not go forward.

36Under cross-examination, Mr. Iatonna admitted that he did not know the details of the test being administered by Proactive before visiting their facility on October 22, 2008. He said that this was because he had never run a job competition for this particular position before, although he had been responsible for recruitment at the City for the past six years.

37He also acknowledged that his own notes of his conversation with Ritch Coughin between the two tests, made contemporaneously but later transcribed, stated that Ritch Coughlin told him he “was confident that Gary would get the same result as it was clear he could not physically handle the test let alone the job”. This was despite Mr. Coughlin not having been present during the administration of the first test and not having met with the applicant prior to making such a statement.

38Despite having attended a meeting at Proactive with Mary Nuvion and Domenic Marsella, Mr. Iatonna could recall no specifics of the discussions. He says that he has no recollection of a number of facts recorded for the group by Ms. Nuvion and forwarded by her to the group the following day. Specifically, he could not recall that “when asked what accommodations Proactive would make if a person identified they had a disability, Rich indicated none as none are required”. He also could not recall that Mr. Coughlin is recorded as representing to the respondent City’s representatives at the meeting that “candidates are hooked up to a heart monitor” and that “Gary failed because of his heart rate and the physical component”.

39When questioned about whether there had been any discussion of accommodation of the applicant in the job itself, as opposed to accommodation during the testing process, Mr. Iatonna could not recall being part of any such conversation. He indicated that in the recruitment process, if accommodation is sought by an applicant, it would be the recruiter, himself, or his boss who would deal with such a request.

Yvan Mantha

40Yvan Mantha, a 24 year employee of the respondent City and a supervisor of maintenance, cleaning staff and arena attendants, provided a very clear description of the job functions of the position of a part-time arena attendant.

41He testified that he had been part of the interview committee that had selected 60 candidates for part time employment and, around July, 2008, had contributed information to the development of the PDA. He says that he recalled the applicant specifically because he had the refrigeration certificate.

42In explaining what is expected of arena attendants, Mr. Mantha distinguished between the larger and smaller rinks as well as the older versus the newer facilities. He explained that the type of work a person would be expected to do could vary significantly depending on the type of facility one was working in and also when they were scheduled to work.

43Some of the tasks include setting up and taking down a meeting room as well as cleaning it, emptying garbage and recycling bins, cleaning the stands, mopping up spills, picking up containers and refuse, sweeping, filling up garbage bags and taking them away, maintaining lobby and washroom area during the games, and doing snow removal by machine and occasionally by hand.

44At the facility that he is responsible for, the largest in Windsor, he said there were 100 garbage pails and depending on where they were, they weighed between 15 and 30 pounds. Also, attendants maintain all parts of the rooms. Machines are used to wash the floor and a person walks behind a scrubber that is about two feet wide.

45The job duties relating to ice maintenance can also vary depending on one’s location. He indicates that of the 30 staff at the large facility he is responsible for, not all of them need to know how to maintain ice. Mr. Mantha also described the use of the spudder, a device for breaking excess snow and ice off the boards, and the Zamboni (among other things), and explained that whoever is driving the Zamboni has to replace the tanks when they are empty. Apparently, changing one of the tanks is more awkward than the other.

46Under cross examination, he agreed that the heaviest tasks are seldom or rarely done, such as putting in a full propane tank weighing 56 pounds onto a Zamboni and moving a 100 pound hockey net. He also confirmed again that not everyone would be called on to do those tasks as not everyone does ice maintenance in many facilities.

47Mr. Mantha’s recollection was that there were no part-time employees doing modified work in this job category and perhaps one full-time employee. It was also his testimony that the wage for the position might be $15.76 per hour. However, he could not confirm this.

Domenic Marsella

48Domenic Marsella gave evidence that he has worked for the City for 16 years and, since 2008, he has worked as an injury prevention specialist. He is tasked with doing initial ergonomic assessments and facilitating the creation of PDAs for existing job positions. He is part of the City’s claims management disability team.

49His understanding is that if a job is heavy in nature, the City’s policy is to do pre-placement strength testing. He does not know when this policy was put into place but thinks it was before 2004. Its purpose, he says, is to ensure the safety of existing staff and those being hired. He clarified that people already in the job are not given tests, just those he described as “potentially hired”.

50He testified that he was part of the development process for the PDA for the job under discussion. He retained the services of a certified ergonomist from Proactive. A number of people from the City provided information to the people from Proactive and measurements were done by Proactive and a PDA created.

51Mr. Marsella became involved with the applicant’s case in October, 2008 when he went to Proactive with Dan Iatonna and another City staff member, Mary Nuvion, to discuss aspects of the testing with Ritch Coughlin on October 22, 2008. The applicant’s second test took place on the 31st of October, 2008.

52Although he attended the meeting, when asked about specific issues discussed at the meeting, Mr. Marsella had no recollection of any of the specifics contained in the detailed notes summarizing the meeting authored by Mary Nouvion, a fellow attendee who sent her notes to both Dan Marsella and Dan Iatonna the day following the meeting.

53In particular, Mr. Marsella could not recall Mary Nouvion’s notation of a conversation in which Ritch Coughlin was asked “what accommodations Proactive would make if a person identified they had a disability” and the reply received was that “Rich indicated none, as none are required”. He also could not recall that Mr. Coughlin is recorded as representing to the respondent City’s representatives at the meeting that “candidates are hooked up to a heart monitor” and that “Gary failed because of his heart rate and the physical component”.

54Dan Marsella’s evidence was that of the 60 people hired for the position, all of them took the test at Proactive and only two people failed the test, of which the applicant was one. He could provide no insight into the details of the other failed candidate’s test results. Finally, Mr. Marsella confirmed that after the meeting at Proactive, he had no further involvement with this matter.

Ritch Coughlin

55Ritch Coughlin gave evidence on behalf of the respondent Proactive. He testified that he holds a Bachelors degree in Human Kinetics from the University of Western Ontario. After graduating in 1986, he worked for a company called Preventive Ergonomics, and in 1991 started his own company, the respondent, Proactive. Initially it was an ergonomic consultant firm and then they moved into injury management. They would make recommendations to employers regarding injury prevention. He then started a physiotherapy clinic in 2000 and called it Pinnacle. They company now has two clinics in Windsor, where patients get physiotherapy and rehabilitation services. The company performs Functional Abilities Assessments for individuals as well as pre-placement testing for companies. The respondent Proactive has done work for the respondent City since 1991 doing PDAs, ergonomics and pre-placement physical tests.

56The usual process for the preparation of pre-placement tests was that the City would provide a PDA and, based on that document, Proactive would prepare a test to simulate the work done and to ensure people being placed in the job had the capability to perform the tasks.

57After some time, Proactive also became involved in putting together the PDAs and was involved in determining whether testing would be required. The company is still engaged in setting up and designing tests. There are three to four people trained at any given time to do the testing at the company. They have a variety of skill sets: some are kinesiologists, others are physiotherapists or physiotherapy assistants.

58Ritch Coughlin testified that he sought advice from Dr. Kenji Kenno on the validity of using a maximum heart rate cut off in the pre-placement test. The documents indicate that this was made in 2001, not 2008, and was in reference to a garbage collector position and not that of an arena attendant.

59His evidence was that PDAs are meant to test for a person’s ability to perform the essential functions of the job. It arises from an on site evaluation of the job site. A person from his office visits the site, watches the job being performed for approximately three hours, takes all necessary measurements, and then provides the document to the City. The City then reviews the document and gets back to Proactive with input from the department. Changes are made as required and the document is then resubmitted. In designing PDAs, he testified that it is important to incorporate maximums as well as general and infrequent tasks. They also include photographs so those looking at a PDA can have a visual guide to help them understand what is done as part of the job.

60Under cross-examination, Mr. Coughlin was not able to recall many specifics with respect to the PDA relating to the job that is at the heart of this Application. He was unable to recall when his company was contacted and asked to put together the PDA; when it was actually devised; he could not explain why the PDA is entitled “Rink Attendant” as opposed to “Arena Attendant” except to say that they mean the same thing to him; he could not recall whether this was an entirely new PDA or one created by revising a previously used PDA; when the testing protocol was devised from the PDA; and finally whether his company had ever done testing for previous job competitions involving the same “Arena Attendant” job.

61He testified that the first person administering the test to the applicant was an employee who is no longer with the company. He was not present himself during the first test but is aware that there was concern about the applicant’s fatigue level and his increased heart rate.

62He recalled discussing the applicant’s situation with City staff and that he agreed to have him retested at no extra charge and took the City staff through the process step by step. He decided he was going to conduct the second test as he is most familiar with the testing protocol and wanted to ensure that the learning disability issue identified by the applicant was addressed. .

63Under cross-examination, he did not recall suggesting to Dan Iatonna that he was confident the applicant’s results would be the same on the second test. He was also unable to recall whether he had told City staff during his step by step walk through of the process that test subjects were hooked up to a heart monitor. He confirmed that he did not hook the applicant up to a heart monitor but that he took manual readings of his heart rate.

64Mr. Coughlin described what happened during the second test in detail. At first, he sat down with the applicant and described what was going to be done. He then measured starting heart rates and began the testing. He explained that he “stepped” the test, that is to say, he started the test with one large weight instead of two large weights and started him at a lighter weight.

65He was monitoring the heart rate manually using the Fox and Haskell formula. The goal was to ensure that a person does not get to the 85% level. While going though the test results, Mr. Coughlin explained that if the applicant went past the level he considered safe, he did not test him further and made a notation to that effect that read “NT”, as in “not tested”.

66He spoke with the applicant after the test was done and went through each aspect of the test and recalls explaining to him that he had not safely passed the majority of the tests. He feels that the rapport between them was still fairly good. He said that the applicant did not like the result but was calm and accepted what he was being told.

67Under cross-examination, Mr. Coughlin indicated he was not an exercise physiologist, and that he used the heart rate criterion so people did not put themselves at risk as his facility is not prepared to handle potential problems of that nature. He acknowledged that a heart rate criterion is not used in all pre-employment testing because sometimes physical demands are not as great.

68He acknowledged that very few older adults are usually tested at his company. He could not explain why the applicant’s age was incorrectly recorded on the first test as 65 instead of 64. While he acknowledged that the wrong age would affect the results, he did not feel it made a difference in that case.

69His explanation for why he “stepped” the test if the only disability raised by the applicant was a learning disability was that he saw from the results of the first test that the applicant had trouble the first time.

70During the course of the proceeding it became apparent that there are two different formulas that are or have been in recent use for calculating maximal heart rates in various different fitness assessments tests: namely the “Tanaka” formula and an older “Fox and Haskell” formula. In explaining why the older Fox and Haskell formula was used instead of the Tanaka formula, Mr. Coughlin testified that the original testing protocols were created in the 1990s and at the time the Tanaka formula was not in existence and Fox and Haskell was widely accepted.

71During the course of the proceeding an issue also arose with respect to the prediction of heart rate maximum in older adults and the use of a “standard deviation” in calculating the appropriate maximal heart rate. Mr. Coughlin indicated that he is aware of standard deviations in the population but did not take that factor into account as he could have stopped the test much earlier or much later had he done so. However, his position is that he does not want people to get into situations that he cannot handle.

72In explaining why if the PDA says 50 lb lifts are done rarely or seldom, the test required persons to lift 50 lbs at 9 second intervals, he indicated that this is standard practice and accepted widely.

73He testified that he did not have any further direct contact with the applicant following the second testing date.

The Expert Evidence

Dr. Paterson

74Dr. Paterson, a Professor at the School of Kinesiology in the Faculty of Health Science at the University of Western Ontario and the Research Director of the Canadian Centre for Activity and Aging, provided a report and gave evidence on behalf of the applicant. He is an expert in integrated human physiology with a specific focus on the exercise responses and limitations of older adults.

75Dr. Paterson began his analysis by acknowledging that it is well-known that there is an age-related loss of strength and strength endurance such that the same task would be a greater relative demand on an older person. He further accepts that the older person must be able to show that they can complete those tasks if they are part of the job function.

76That said, he testified that the additional criterion of performing the tasks while remaining below maximal heart rate is unknown in strength test protocols in scientific literature or guidelines. He indicates that in his 30 years of experience in the field and as a research scientist, he has never seen a pass-fail outcome imposed on strength testing using a maximal heart rate measurement. He indicates that while such a criterion is often used in cardio-respiratory fitness assessments, it is generally not currently used in strength or strength endurance test protocols. This is a practice that is accepted by the American College of Sports Medicine (“ACSM”), the authoritative body on exercise physiology to which both experts belong.

77Dr. Paterson’s primary point in this regard, as outlined in his report, is the following:

…[H]eart rate response to muscle strength tasks is not closely related to the energy cost or need to supply oxygen to the exercising muscles, but more to the sympathetic nervous system response (flight or fight mechanisms) and the elevated heart rate is not sustained over a period of many minutes as it would be in an aerobic activity. In fact, in strength related tasks a high blood pressure is the greater concern. However, even in older adults, “strength training” exercise programs have been found to be safe.

78By way of example, Dr. Paterson explained that using a heart rate criterion in the testing (Fox and Haskell formula) would result in varying results depending on age. With the same weight being lifted by two people aged 30 and 65, a young person would not hit 85% of the maximal heart rate until 162 beats per minute and the 65 year old would reach it at 132. An invalid outcome measure is being imposed if both persons can actually lift the weight successfully but the older person is stopped or is failed because he has reached his maximal heart rate.

79In contrast, in relation to activities relating to cardio-respiratory fitness, heart rate monitoring is recommended by ACSM. Where heart rate is maintained over a significant length of time having a higher heart rate can be an issue. Despite having searched, he has not seen any literature that suggests the stopping of strength tests on the basis of reaching maximal heart rates.

80When provided with the paper authored by Dr. Bunch, an ergonomist in the United States, and presented to the Louisiana Association of Occupational Nurses, that suggests that maximal heart rate should be used to stop pre-employment testing, Dr. Paterson indicated that he is unaware of Dr. Bunch’s credentials. Moreover, his reading of the paper suggests that it appears not to have been refereed, subjected to any peer review, and it is unclear what data was used to arrive at the conclusions contained in the paper.

81Dr. Paterson went on to say that even if heart rate monitoring is to be accepted as appropriate, the “Tanaka” (200 – 0.7 age) formula is a more accurate one and now more widely accepted in his field. Use of that formula would result in a maximum heart rate for a 65-year-old of 162 as opposed to 155 and 85% would be 138 as opposed to 132. Dr. Paterson also points out that the prediction of heart rate maximum in older adults has a “standard deviation” of approximately 13 beats per minute as compared to 8 beats per minute with young adults. Taking into account the standard deviation and using the Tanaka formula would result in 85% of maximum heart rate being calculated as 154 beats per minute. He noted that the applicant’s testing was discontinued and he was not permitted to continue lifting after he hit 144 beats per minute.

Dr. Kenno

82Dr. Kenji Kenno, an Associate Professor at the University of Windsor and an Exercise/Cardiac Physiologist, gave evidence on behalf of the respondents.

83He confirmed having been consulted by Proactive in 2001 with respect to another pre-employment test in which a similar maximal heart rate criteria was built in. His view at that time was that use of the heart rate measure was a sound safety practice.

84Dr. Kenno also commented more recently on the present test. In his more recent report and his testimony, he expressed his view that the PDA developed by Proactive represented a reasonable and acceptable representation of many of the tasks associated with the job. He appears to base his conclusion, in part, on the experience of Pinnacle/Proactive in doing such design work in the past; in evidence he confirmed that the design of PDAs is not an area of expertise for him.

85His review of the test results showed him that the tests were clearly and fairly administered. His view is that using the Fox and Haskell formula and considering 85% of maximum the termination point was safe and reasonable. The ACSM guidelines also state that the tester’s judgement should be used and that is the most important factor.

86Dr. Kenno pointed out support for the proposition that the use of maximal heart rates as a criterion is supported by Dr. Bunch’s paper, presented as an attachment to his report. His information is that Dr. Bunch teaches at Tulane University. He does not disagree with Dr. Paterson that this is a single non-refereed paper and is unaware of it having been published since its presentation at a conference for occupational nurses. He speculated that Dr. Bunch may have collected data from the 163 clinics that he owns and operates in the United States, but that he does not know the source of the data and that information is not clear in the paper.

87Dr. Kenno disagreed in one fundamental aspect with Dr. Paterson’s analysis. He does not hold the view that this test can be characterized as a strength test alone. Because of the movement involved in lifting, it represents an evaluation of agility and is a continuous or semi-continuous test that is administered over 60 to 90 minutes. Therefore, in his view, strength endurance and cardio-respiratory elements both exist in this test. Essentially, because the test involves repetition and continuity, it has, in his view, a submaximal cardiovascular element.

88Dr. Kenno’s view of what constitutes a cardiovascular element appeared to be much broader than that of Dr. Paterson and included activities that are often characterized as sedentary by the ACSM. He did indicate that the generally held view (according to the ACSM) is at least 30 minutes of aerobic activity.

89As indicated above, in addressing Dr. Paterson’s view that test stoppage if one is approaching or hitting maximal heart rates is warranted in activity that is considered cardiovascular, Dr. Kenno’s view was that if it is a continuous, repetitive activity, stoppage is also warranted.

90Dr. Kenno proposed that, although the literature may not suggest using maximal heart rate to stop strength related activity, his view is that the same stresses on the heart occur whether the activity is cardiovascular or strength related. He argues in his report that:

…during strength evaluations, there is a rise in arterial blood pressure, heart rate, mechanical compression of blood vessels in working muscle and a rise in intra thoracic pressure via the valsalva manoeuvre may evoke irregular heart rhythms and collectively may create an additional stress on the cardiac muscle during work simulations.

Therefore, his view is that stopping the activity in question is warranted in either instance.

DECISION

Whether Proactive is Properly Named as a Party

91Although the respondent City raised this issue in its opening argument, the respondent Proactive did not do so. I have reviewed the argument made in response by the applicant in this regard and agree that the applicant’s interactions with Proactive can be characterized as falling either within the social area of services or in respect of employment. As such, given its role in developing and administering the pre-placement test in question, I find no reason that the respondent Proactive should not have been named in this Application as a respondent.

92It may be that in saying that Proactive is not a proper respondent, the respondent City is suggesting not that Proactive is not properly named but rather that it has been unnecessarily named. The respondent City has said in the evidence it has called, and in argument, that it contracted with Proactive for the work that was done and all interactions between the respondent Proactive and the applicant were undertaken by the former at the behest of the City. I understand the City to be arguing that it considers that any remedy that is granted in the event that it is found that the Code has been breached should be granted as against the City and not Proactive.

Employment Offer

93I note, at the outset, that the City’s conditional offer of employment to the applicant, dated September 15, 2008, did not include a specific requirement that the applicant undergo and successfully complete the testing conducted by the respondent Proactive, and, in fact, does not mention any further conditions to be met beyond those included in the letter (see below).

94The conditions to be met, as outlined in the City’s letter, accepted and signed by both the applicant and Ms. Howells on September 19, 2008, before the required acceptance deadline of September 26, 2008, are the following:

• A current medical which shall be arranged by the Corporation at our expense;

• A satisfactory police clearance at your cost;

• Proof of required education (Ontario Secondary School graduation dipoma or Ontario Ministry of Education equivalency; must hold and maintain a current and valid Ontario Class “G” driver’s license;)

• Satisfactory references from current and/or previous employers;

• Compliance with the current corporate Family Relationship Hiring Policy.

95The applicant’s treating physician provided him with a certificate that indicated that he had passed a fitness test adequately and was “fit for employment” as a “rink attendant”. The applicant provided the City with the balance of the documents outlined on the above list, and there is no indication from the evidence that I heard that the respondent City disputes that the above listed conditions were met.

96However, such testing appears to have been inserted into the process and characterized as a requirement at some stage, although it is not at all clear to me when that happened, given in particular its notable absence from the offer of employment.

97The alleged failure to successfully complete the pre-employment testing protocol is, however, the reason offered by the respondent City for its decision not to “proceed further with (the) Offer of Employment”, communicated to the applicant by way of a subsequent letter dated November 3, 2008

Prima Facie Discrimination

98Having reviewed the evidence, it is apparent that the requirement that a person complete the pre-employment test devised by the respondent Proactive, at the request of the respondent City, while maintaining a heart rate below the maximum, as calculated using the Fox and Haskell test, resulted in an exclusion or restriction of the applicant’s ability to fully participate in the testing process and, as a result, to ultimately work in the job of arena attendant (for which he had received a conditional offer of employment) for reasons related to his age.

99The parties and their experts agree that a younger person’s maximum allowable heart rate using the same formula is higher than that of an older person and that the former would not have had their testing process terminated had they reached the heart rate level the applicant did during both tests.

100The respondents refer to age as a non-modifiable risk factor, point to its inclusion in alternate formulas of maximum heart rate calculations such as the “Tanaka” formula, and justify the use of the standard as one related to safety, but do not appear to be disputing that the age of a test subject or potential employee will have an impact on when the maximal heart rate is reached and, therefore, when the test will be potentially terminated.

Justification of the Standard Used

101With the applicant having made out a prima facie case of discrimination, the onus shifts to the respondents to establish a defence under the Code. Specifically, the respondents must demonstrate that the standard that has resulted in the applicant’s exclusion can be justified as a bona fide occupational requirement (“BFOR”) and that the applicant cannot be accommodated to the point of undue hardship. This is the case whether the analysis is conducted under section 11 or 24(1)(b) of the Code.

102Section 24(2) of the Code provides some guidance on the considerations involved in determining whether a requirement is a BFOR. The Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), revised the legal test for establishing a BFOR by requiring evidence that the claimant could not be accommodated without experiencing undue hardship.

103The test to be applied in order to establish a justification under either section 24 or section 11 of the Code is the test set out in Meiorin at para. 54. In particular, the respondents must prove:

• That the pre-employment testing, including the heart rate monitoring requirement, was adopted for a purpose or goal that was rationally connected to the performance of the job;

• That the pre-employment testing, including the heart rate monitoring requirement, was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

• That the pre-employment testing, including the heart rate monitoring requirement, is reasonably necessary to accomplish the purpose. To show that the standard is reasonably necessary, among other things, it must be demonstrated that it is impossible to accommodate individuals sharing the characteristics of the applicant without imposing undue hardship upon the respondents.

104The respondents argue that an employer is obliged and has a responsibility to ensure that no one it employs is a danger to himself, and it is for safety reasons that the heart rate monitoring requirement is part of the testing process. As such, they argue that the purpose or goal of the standard is rationally connected to the performance of the job, that it was adopted in an honest and good faith belief that it was necessary to the fulfillment of legitimate work related purpose, and that it is reasonably necessary to accomplish the purpose.

105The respondent City urges the Tribunal to refrain from engaging in what it describes as “Monday morning quarterbacking” and suggests that the respondent Proactive may refuse, for legitimate professional reasons and safety concerns, to administer a test it considers dangerous in the absence of a safety mechanism.

106The respondent City has referred me to the Supreme Court’s decision in Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 (S.C.C.). Counsel specifically referred me to the portion of the decision where firefighting is referred to as “a young man’s game” and the Tribunal’s view that this was an impressionistic view not based on data. In contrast, the respondent City argues that in this instance it did not behave capriciously or without reliance on experts, but rather that it took into account a factor that both experts agree is a matter of fact – that there is an age related loss of strength and strength endurance.

107The respondent City also argues that, as an employer, it has the right, and, in fact, the responsibility to ensure that an employee is not a danger to himself and, if it can be established that the employee cannot perform the essential tasks of the position safely, it can discontinue the process, as it did. See Hydro-Quebec v. Syndicat des emplyees de techniques professionelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561 (S.C.C.) 43.

108The applicant has presented several arguments in response. The initial position adopted is that the maximal heart rate standard should not have been used as a testing criterion at all. If it had to be used, they say that the more nuanced Tanaka formula should have been used and the accepted deviation rates for older adults ought to have been factored into the calculation.

109The applicant argues that both respondents have breached the Code: Proactive because it designed and applied a discriminatory standard and the City for adhering to the results of tests administered by using the discriminatory standard without any attempt to accommodate the applicant with respect to the application of the standard or in the job.

110The applicant argues that inclusion is the goal of the Code and the essence of discrimination is arbitrariness and that by using the standard as formulated the respondents have not met their burden to prove that they have met any of the three elements outlined in Meiorin.

111The lack of clarity as to when the PDA and tests were compiled, the fact that some documents referred to a “Rink Attendant” as opposed to an “Arena Attendant”, the fact that the test did not exactly mimic the tasks of the job itself, and the fact that the consultation between Proactive and Dr. Kenno with respect to the use of heart rate as a criterion took place in 2001 as opposed to 2008 and in relation to another job position and competition altogether are all concerns that the applicant has raised in regard to his argument that steps 1 and 2 of the Meiorin analysis cannot be satisfied

112In addition, the applicant presented me with a number of arguments as to why the standard could not be considered reasonably necessary. They can be summarized as follows:

a. The standard used cannot be considered reasonable if it is not a minimum standard. If a heart rate formula was considered necessary, the Tanaka formula with standard deviation rates factored in would have been the necessary minimum standard to comply with the Code;

b. The respondents cannot meet their burden if the expert based his opinions on questionable or invalid data. Dr. Bunch’s paper is the only support for the position advanced. It was not subject to peer review or refereed in any way and the source of his data is unknown;

c. There is no evidence of work done to link the test to performance of work tasks. The applicant argues that such work was not done prior to the test being devised and cannot be inferred. The respondents are implying that the applicant cannot do the essential duties of the job but the evidence only establishes that he was stopped from showing he could do the test.

d. That I should prefer the analysis presented by Dr. Paterson over that of Dr. Kenno. The description of the test provided by Ritch Coughlin makes it fit more closely with the strength endurance test described by Dr. Paterson. Dr. Kenno’s suggestion that the test has sub-maximal cardiovascular elements is not one that is consistent with widely used and accepted categorizations of strength and cardiovascular activities;

e. The standard is not reasonably necessary if the respondent did not analyze the risk the test is meant to prevent. In this case, the applicant argues that the respondents did not present evidence regarding actual risk and, in light of Yvan Mantha’s testimony, the conclusion to be drawn from the evidence is that the actual risk is minimal; and

f. There is no scientific evidence regarding actual harm. Dr. Kenno could not point to credible data or studies that point to actual harm. His only justification for retaining the standard is the potential for harm when viewing the issue from first principles.

113Having heard the evidence and considered the arguments advanced by the parties, I find that I can accept that the first two elements of the Meiorin test have been satisfied by the respondents.

114In my view, it would be hard to suggest that safely performing one’s job is a not a purpose or goal rationally connected to the performance of one’s job. Clearly doing one’s job properly involves doing it safely.

115Secondly, I have heard no convincing evidence that would lead me to doubt that the pre-employment testing was adopted in anything but the honest and good faith belief that monitoring one’s heart rate to a measurable maximum during pre-employment testing was necessary to achieve the legitimate work related purpose of doing one’s job safely.

116Although the applicant has raised an issue as to the timing of the compilation of the PDA and the pre-employment test, that factor, in and of itself, does not suggest that the work was not done in good faith and in the honest belief that it was necessary to a purpose or goal rationally connected to the job.

117Similarly, neither the fact that some documents presented to me in evidence referred to a “Rink Attendant” as opposed to an “Arena Attendant” nor the fact that the test did not exactly mimic the tasks of the job itself is indicative of a lack of good faith.

118The fact that the consultation between Proactive and Dr. Kenno with respect to the use of heart rate as a criterion took place in 2001 as opposed to 2008, and in relation to another job position and competition altogether, does not lead inevitably to a conclusion that the heart rate criterion was adopted in bad faith.

119Rather, I am persuaded that Mr. Coughlin incorporated the element of heart rate maximums into his testing protocols for honest and good faith reasons and the respondent City relied on his expertise in this regard.

120However, I am of the view that the respondents have failed to establish that the standard adopted is reasonably necessary to achieve the purpose of performing the tasks of an arena attendant without harming oneself, and, in particular, the suggestion that it is reasonably necessary to achieve the purpose of performing the job without suffering a cardiac event of some type.

121In paragraph 68 of Meiorin, the court stated the following:

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. Courts and tribunals must bear this in mind when confronted with a claim of employment-related discrimination … To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible. A standard that does not allow for such accommodation may be only slightly different from the existing standards but it is a different standard nonetheless.

122In providing guidance on the question of whether a standard is reasonably necessary, the court suggests that the inquiry in the present Application should be whether this standard was or is reasonably necessary to ensure that the job can be done safely and whether there were or are other ways the employer can ensure the job is done safely without this particular standard or within it by providing individualized accommodation.

123While the goal of safety in job performance is a reasonable one that was acted upon in good faith, the standard adopted by the respondent City, in concert with the respondent Proactive, is overly rigorous and unnecessarily restrictive.

124This conclusion is based on my finding that the respondents have not met their burden in establishing that reaching one’s maximum allowable heart rate, using the Fox and Haskell formula (while performing a pre-employment test that does not exactly mirror the job duties and that is, by standards accepted in the field of exercise testing, a strength test as opposed to an aerobic one), would lead to an unsafe situation generally, or a cardiac event in particular, when actually performing the duties of an arena attendant.

125The expert evidence does not establish that an elevated risk for cardiac events exists when higher heart rates are reached while undertaking strength-related activities such as those included in the pre-employment testing. Dr. Paterson’s uncontested evidence is that older adults are routinely engaging in strength activities on a regular basis without associated incidents of fatality or cardiac events reported in the research literature.

126Dr. Kenno, for his part, did not suggest that data existed to support that an elevated risk exists. He could not confirm that Dr. Bunch’s paper had been subjected to peer review and was unsure of the source of the data used to arrive at the conclusions contained in the paper, and suggested the data may have come from testing facilities owned and operated by Dr. Bunch. He suggests that it would be a possibility given that persons engaging in strenuous activity such as snow shovelling can suddenly experience cardiac events.

127I agree with the applicant that the standard of safety underlying the retention of the standard based on this research seems to be analogous to absolute safety. While the respondents may argue otherwise, I understand Dr. Kenno’s opinion as to why the standard should be retained to be based on the idea that there is always a risk that someone may have a heart attack if they hit the maximal heart rate and remain at that level. In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 SCR 868 (“Grismer”) at para 30, the Supreme Court of Canada made it clear that “risk” on its own would be insufficient to justify an otherwise discriminatory standard:

The third question is whether the standard chosen by the Superintendent was reasonably necessary to accomplish the legitimate purpose. To meet this requirement, the Superintendent had to show that he could not meet his goal of maintaining highway safety while accommodating persons like Mr. Grismer, without incurring undue hardship. Risk has a limited role in this analysis. It is clear from Meiorin that the old notion that “sufficient risk” could justify a discriminatory standard is no longer applicable. Risk can still be considered under the guise of hardship, but not as an independent justification of discrimination.

128In this instance, the evidence shows that the standard is not a minimum. Furthermore, there is no evidence of actual harm only a suggestion of the risk of possible harm.

129The respondents have failed to establish that the standard could not be modified short of undue hardship as a form of accommodation.

130This is sufficient to find that the respondents have not met their onus to justify the standard. Moreover, the evidence does not support that the respondents met either their procedural or substantive duties to accommodate the applicant to the point of undue hardship.

131At the material time, the respondent Proactive did not address the applicant’s real concerns with respect to the discriminatory standard, but instead focussed on a mention of a learning disability that was peripheral to the entire process. The company appears to suggest, through Ritch Coughlin’s evidence, that because of a theoretically possible risk of a critical medical incident, it would constitute undue hardship for it to have used the more nuanced Tanaka formula or to take into account the standard deviation rate information.

132I am not persuaded that the respondent City has established that it conducted any type of individualized assessment of its ability to provide the necessary accommodation to the applicant in respect of the standard and his ability to satisfy it that he could perform the job in question, or that to require it to do so would amount to undue hardship.

133None of the respondent city’s witnesses who were involved in this process could point to any meeting, conversation or assessment that took place where this analysis was even discussed, let alone undertaken.

134Yvan Mantha’s involvement was in the interview stage and in providing information to others putting together a PDA on which the testing would be based. He was not called on at any time to assess whether the applicant could be accommodated in respect of the standard or the job.

135While Dennise Howells, the recruiter, the person she reported to, Dan Iatonna, and Domenic Marsella all gave evidence that they were part of a process that resulted in the applicant being retested by the respondent Proactive, they also testified that they did nothing further once the retesting had been arranged. Specifically, no one at the respondent City appeared to have turned their minds to the question of whether the test was more stringent than necessary or whether the applicant could be accommodated within the testing standard or in the job of part-time arena attendant.

136By all accounts, the applicant was simply told that because he had failed to successfully complete the pre-employment test, as designed, a decision had been made that he would no longer be put into the job.

137The applicant’s position is that he can do the job but was prevented from completing the strength-based activities in the test to show the respondents that he could do the job. The evidence shows that he did not declare himself unable or unwilling to do any of the lifts he was asked to perform during either test.

138The City’s argument is that the applicant is unable to perform the essential tasks of the job of an arena attendant, not because he declared himself unable or unwilling to complete the lifts as required, but because the pre-employment testing was legitimately discontinued by the respondent Proactive for the reasons outlined above (that is to say because he hit the cut off heart rate point while doing the lifts).

139The suggestion underlying this conclusion is that the applicant is at risk of having a cardiac event occur while performing the job because he hit the maximal heart rate while performing the test and that, therefore, he is medically unfit to perform the essential tasks of the job of part time arena attendant.

140That is not a link that the evidence supports. The City’s expert, Dr. Kenno, was unable to point to any refereed, peer reviewed study or data source to substantiate his concern that this was a likely outcome. In particular, in the applicant’s case, it runs counter to the certificate of medical fitness presented by the applicant to the respondent City from his treating physician. Although not directly stated, the City appears to be suggesting that the applicant is medically unfit to perform the tasks of the job of part time arena attendant because of the results of the pre-employment testing. The City has not clearly explained its reason for having disregarded or overlooked the fitness certificate from the applicant’s treating physician.

141In reviewing the evidence, I note that the study authored by Dr. Bunch, and referenced by both Dr. Kenno and Ritch Coughlin as support for the proposition that maximal heart rate measures are appropriate tools for testing termination, does not suggest that the process end when a test subject hits their maximum point. In fact, Dr. Bunch indicates that the test subject should be informed of the finding and then “instructed to consult a healthcare provider to assess and/or correct the problem and acquire a medical release in order to resume the functional testing process at a later date”.

142In summary, I find that the respondents have not met their onus of establishing that the standard used in this instance is reasonably necessary to accomplish the goal of an arena attendant being able to do his or her work safely and that the respondents cannot accommodate individual capabilities and differences without incurring undue hardship. As a result I find that the applicant was discriminated against on the basis of age.

REMEDY

143By way of remedy, the applicant seeks an award for monetary compensation in the amount of $20,000, lost wages with increases received by those in the job, and an order placing him in the job.

Monetary Compensation

144In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paragraphs 52-54, the Tribunal canvassed the recent history of awards for injury to dignity, feelings and self-respect, stating:

(…)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.

145The applicant urges me to consider the following factors in determining the amount of the monetary compensation award: the impact the discriminatory conduct had on his long time goal of working in the field, his financial struggles, previous joblessness and bankruptcy, and the fact that his plans to move forward in his personal life had to be put aside.

146I accept that the applicant wanted very much to supplement his pension income with this part time employment and that the events that brought him to this Tribunal frustrated him and affected his life. The loss of the right to be free from discrimination and the often corresponding injury to dignity, feelings and self-respect are intangible losses and difficult to quantify. See McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 at para. 52.

147I have considered the matter carefully, and taken into account the factors outlined above, such as the applicant’s sincerely held goal of working in this particular job, the steps he took to get a certificate in refrigeration before this job competition, and the impact of the withdrawal of the conditional job offer on him financially and emotionally. I have also reviewed Tribunal case law involving similarly discriminatory pre-employment testing standards in arriving at my decision as to the appropriate award in the Application at hand. I award the applicant the sum of $10,000 as monetary compensation for the infringement of his right to be free from discrimination. See Lauzon v. Ontario Provincial Police, 2011 HRTO 1404.

Lost Wages

148The applicant argues that he is entitled to compensation for lost wages from the date of the first test through to the date of this Decision.

149Although there is some uncertainty with respect to what might have happened had the applicant been permitted to complete the testing process, such as whether he would have successfully completed all aspects of the test and subsequently whether he would continue to be employed by the respondent City or whether he would have ceased to be employed for reasons unrelated to the Code, my view is that the cost of that uncertainty must be borne by the City.

150I have extensive evidence of job search activity by the applicant up to the point of the hearing date and no information beyond that date. I, therefore, direct that the applicant and the respondent City together calculate the amount of wages that would have been earned from September 24, 2008 through to the final day of hearing, December 10, 2010, and that amount, subject to deductions, be paid to the applicant within 60 days of the date of this Decision. I will remain seized in the event there is a dispute between the parties on this issue.

Placement into Job

151At the hearing, the applicant sought an order placing him in the job of part time Arena Attendant. The Tribunal has placed individuals into positions in similar situations. See Kearsley v. St. Catharines (City), 2002 CanLII 46502 (ON HRT). A significant length of time has passed since the events that bring us to this point. In my view, such an order is appropriate subject to the following. In the event that the applicant wishes to proceed with the job in question, the respondent City is entitled to receive an updated medical certificate or clearance from the applicant’s physician within one month of this Decision. Once it is in receipt of that document, the City, within one month, may undertake such pre-employment testing that it considers necessary and that is compliant with the Code and the principles outlined in the Decision. If the applicant successfully completes such testing, he should be placed in the job.

ORDER

152In the result I order:

a. Within 30 days of the date of this Decision, the respondent City will pay the applicant $10,000.00 as monetary compensation, together with prejudgment interest on this amount from September 24, 2008 to the date of this Decision;

b. Pre-judgment and post-judgment interest on the monetary compensation is at the applicable rate under the Courts of Justice Act, R.S.O. c. C.43. Pre-judgment interest is to be calculated on the sum of $10,000.00 starting from September 24, 2008, and post-judgment interest is to run starting 30 days from the date of this Decision.

c. Within 60 days of the date of this Decision, the respondent City will pay to the applicant lost wages in accordance with the directions set out in paragraph 150 (above).

d. I will remain seized in the event there is a dispute about the calculation of lost wages.

e. If the applicant wishes to be placed in the job, within 30 days of the date of this Decision he is directed to provide the respondent City with a medical certificate from his treating physician, following which the City will be entitled within a further 30 day period to make any inquiries and administer such pre-employment testing as it considers necessary in compliance with the Code and the principles outlined in this Decision. If the applicant successfully completes such testing, he should be placed in the job.

Dated at Toronto this 22nd day of December, 2011.

”signed by”________________

Jay Sengupta

Vice-chair