HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kristine Roseblade
Applicant
-and-
Randy River Inc. and Cathy Pritchard
Respondents
DECISION
Adjudicator: Jim Dimovski
Indexed as: Roseblade v. Randy River
AppearanceS
Kristine Roseblade, Applicant ) Janet Roseblade, ) Representative
Randy River Inc. and Cathy Pritchard, ) Jordan M. Smith, Respondents ) Student-at-Law
1This Application was filed under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on November 10, 2005, and abandoned upon filing the Application with the Tribunal.
2In June 2005, the applicant took a two-week medical leave from her employment as a store manager from the corporate respondent, Randy River. She alleges that during her absence the personal respondent, her new District Manager the personal respondent Cathy Pritchard, harassed her on the basis of disability by calling her at home to make “harassing statements”, actively seeking her permanent replacement and refusing to allow her return to work at the end of her medical leave period.
3Upon the applicant’s return to work in early July 2005, the personal respondent allegedly continued to harass her which precipitated another medical leave in August 2005. The applicant alleges she was continuously harassed until her employment was terminated in October 2005. While the corporate respondent provided several non-discriminatory reasons for its decision to terminate applicant’s employment, the applicant claims that since she was on medical leave at the time of her termination the “only reason” she was terminated was due to her disability.
4The respondents denied that the applicant was subjected to discrimination on the basis of disability. Further, the respondents submit that the applicant’s employment was terminated due to her poor performance, her discriminatory attitude and her inability or refusal to communicate with the personal respondent about performance related matters.
5On March 19, 2010, a hearing was held in Kingston. At the hearing, I heard testimony from the applicant, Peggy Carter, Vice-President of Operations during the relevant time for this Application, as well as Andrew Harris, the applicant’s former District Manager.
6Although a will-say statement was produced, the personal respondent did not appear at the hearing. The corporate respondent declined to seek an adjournment to ensure the personal respondent’s attendance. The applicant then agreed to withdraw the Application as against the personal respondent. The implications of the absence of such an important witness for this matter was considered as noted below.
EVIDENTIARY MATTERS
7The applicant sought to introduce an email (from a hotmail account) dated March 15, 2006 from Tony Patrick, a former employee and the applicant’s friend, and blog entries from May 13, 2005 to October 31, 2005, obtained from the internet, written by a person who eventually replaced the applicant as manager. The corporate respondent objected on the basis there was no proof these particular documents had been disclosed to the respondents.
8After much discussion with the parties, I was not satisfied that these particular documents had been disclosed to the respondents. Additionally, the applicant stated she had no intention of calling either Tony Patrick or the author of the blogs as a witness. After determining the documents were simply intended to corroborate the applicant’s testimony, and in light of real concerns with the authenticity of the internet documents and the absence of their authors for cross-examination, I decided not to admit the documents into evidence. In my view, the prejudice of the late production and highly questionable reliability outweighed their limited probative value.
9At the close of the hearing, the applicant’s representative made further arguments about my decision to exclude the documents and took the position they would have been important to proving the allegations. I must note again that even had I accepted the documents as exhibits I would have placed little or no weight on the hearsay statements contained in them in the absence of any proof of their origins and reliability.
EVIDENCE
10On August 14, 2004, the applicant was hired as an assistant manager for the corporate respondent’s Kingston store location. After the previous store manager left, the applicant was promoted to store manager in April 2005.
11In addition to working, the applicant also attended school with courses two days a week. With her exams approaching, the applicant noted that she felt a great deal of anxiety and wanted time off work. The applicant testified she approached the personal respondent and asked to take the time off work as vacation. After listening to her, the personal respondent refused the applicant’s last minute vacation request but mentioned that if a medical clinic approved her time off work she could go off on medical leave.
12On June 10, 2005, the applicant took medical leave from her position. The medical note from her physician, which had been presented to the respondent, indicated that the applicant required two weeks off work.
13During her time off work, the applicant alleges that the personal respondent, began harassing her. The applicant alleges her harassment included the following.
As early as June 16, 2005, she alleges the corporate respondent advertised her position at her store’s mall and on the HRDC website. The advertisement remained posted at the mall in which her store was located until July 13, 2005.
The personal respondent also called her at home making “harassing statements” about why she was off work.
When the applicant informed the personal respondent she could return to work, the personal respondent refused to accept her return and schedule for work until she provided a physician’s note acknowledging she could return. The applicant noted she was not able to obtain an appointment with her physician until June 27, 2005; at that appointment, another physician, authorized her off work for another two weeks.
14As a result of her harassment, the applicant began to believe that the personal respondent “was out to get her”. She noted that at no time prior to, during, or after her various absences from work, did the personal respondent mention any performance related issues. On the contrary, she stated that the personal respondent attempted to add to her duties.
15On July 11, 2005, the applicant returned to work and alleges her harassment continued. She also noted that her schedule was substantially changed; instead of working 5 days per week, 12 hours per day, she told she had to work 7 days per week, 8 hours per day. The applicant was not permitted to take any time off from approximately August 14, 2005 until the Labour Day weekend.
16The personal respondent refused the applicant’s request to put in writing that her schedule reflected the “standard scheduling arrangement for all store Managers”. The applicant alleges she was told that if she felt she could not “do” her job “then we’ll find someone else”.
17In addition, in material filed with the Tribunal, the applicant stated that on July 21, 2005, she met the personal respondent to discuss work issues. She alleged that the personal respondent confronted her with: “I hear you don’t like me”. The applicant denied her response was that, if she was not happy with her work performance, she could find someone else.
18The applicant alleges that it was at this meeting that the personal respondent gave her additional duties. In her view, this supports that there was no performance issues outstanding at the time.
19On August 11, 2005, allegedly due to the ongoing harassment, the applicant went on another medically authorized leave.
20On September 30, 2005, the applicant states that she sought her return to work schedule as she was “hopeful” of returning to work on October 4, 2005. She was told she could not be scheduled or enter her store until the personal respondent and Peggy Carter, the Vice-President had met with her.
21After leaving a voicemail for her, the applicant left a message requesting an appointment with the personal respondent and Ms. Carter. Ms. Carter returned the call and left a message with the applicant’s father that the meeting would occur on October 4, 2005, at 1 p.m., at the Kingston store’s mall food court.
22As she felt intimidated by the harassment, and since she had heard from her staff that she would be fired at this meeting, the applicant wanted a representative at the meeting. At the hearing, the applicant confirmed that she intended her mother to be her representative at the meeting. The applicant’s mother attempted to reschedule the meeting and left a voice message for Ms. Carter. Ms. Carter did not respond to the applicant’s mother. instead, on October 4, 2005, at approximately 1:20 p.m, Ms. Carter left a message on the applicant’s home number indicating that she was waiting for the applicant. Within a half hour, the applicant’s mother called Ms. Carter back and requested the meeting be rescheduled for another time.
23The applicant alleges that, during this time, she had another medical certificate which indicated she was to be off work until October 31, 2005. The applicant states she gave a copy of the medical note to Anthony Patrick who personally delivered it to Ms. Carter on October 5, 2005; he had also personally faxed it to the personal respondent on October 4, 2005.
24The applicant alleges that her position was filled on a permanent basis prior to October 2, 2005.
25On October 19, 2005, the applicant alleges she received a registered letter from the corporate respondent dated October 17, 2005, informing her that she had been terminated. The termination letter, signed by Ms. Carter, related the applicant’s termination to her inability to address a “number of matters” about her store and her defensiveness and unwillingness regarding those matters by making herself unavailable to discuss them in August 2005. Ms. Carter wrote that during the “past two weeks we have also attempted to meet with you again regarding areas of concern, however you were absent”. Ms. Carter also noted that complaints from a customer and staff had confirmed the applicant stated that she did not like working with “girls” and that “certain female employees would not be working long at your store”. This incident occurred on September 30, 2005, when the applicant visited her store during her medical leave.
26Prior to her medical leave, the applicant states had no indication her employer had any concern with her performance. The applicant also noted that the personal respondent denied the job posting when confronted about it. In June, the applicant alleges that she met Andrew Harris, her previous District Manager, who was covering for the personal respondent at the time, and that he admitted the job posting at the mall was a mistake and retrieved it. In his testimony, Mr. Harris denied making such comments.
27In general, the corporate respondent denies the applicant was harassed due to a Code protected ground. It denies the job posting was an attempt to replace the applicant, but was rather an attempt to build up a bank of resumes for store managers and assistant managers which could be used for short-staffed store locations in Kingston and nearby store locations.
28With regard to her work schedule allegation, the corporate respondent notes August and September is the busiest time of year for business due to back-to-school shopping and that it was not unusual for managerial employees to be denied time off work during this period. In addition to advising new hires of the demands during the back-to-school period, the applicant’s store was short-staffed and as such her inability to obtain time off work should not have come as a surprise.
29Also, the corporate respondent alleges that, following the applicant’s return to work, the personal respondent made several store visits and deemed several items as “unsatisfactory”. The applicant became defensive when these issues were addressed with her. The corporate respondent states that several unsuccessful attempts were made to meet with the applicant prior to her stopping work in August.
30On September 1, 2005, the corporate respondent acknowledges it received the applicant’s medical note putting her on medical leave until October 1, 2005 due to “medical reasons”.
31The next day, however, the corporate respondent claims that the applicant appeared at the Kingston store to visit staff members and put up posters for a concert in the store’s backroom.
32On September 28, 2005, the personal respondent received a note, unsigned and with no letterhead, indicating that due to an “emergency” the applicant’s appointment with her physician was rescheduled for October 3, 2005; it also stated, the applicant would be tentatively prepared to return to work on October 4, 2005.
33On September 30, 2005, the applicant visited her store location. The corporate respondent states that the applicant asked for her store keys back. The employee at the store stated she did not have the authority to relinquish the store keys. The corporate respondent states that the personal respondent advised the applicant she was not permitted on the premises while on leave.
34When the applicant noted she was prepared to return to work, the personal respondent advised her a meeting would have to occur before she could return. In accordance with its corporate policy, employees returning from medical leave were required to meet with their immediate supervisor to discuss proper reintegration before returning to work. The applicant was provided a telephone number to phone in order to set up a meeting with the personal respondent for this purpose and deal with the performance issues. Specifically the applicant had been heard complaining about two female employees stating that they would not be employed much longer since “she does not like to work with girls”. Besides being discriminatory, the applicant’s attitude had implications for the respondents business considering that her store was under-staffed and that the introduction of a new female clothing line would benefit from more female employees. The respondent claims that the applicant did not hire any females and when asked about this discrepancy her responses included that “she did not work well with girls” or that “no girls had dropped off resumes”. The respondent noted that the applicant’s staffing levels was a matter it had tried to unsuccessfully address with the applicant.
35In addition, the applicant allegedly intervened in a transaction between an employee and a customer and was rude to both the customer and the employee. The customer subsequently complained to Ms. Carter. As a result, the respondent investigated the incident obtaining statements from two employees, Sara Reine and Andrew Harris.
36On October 2, 2005, the applicant attempted to meet with the personal respondent that evening. The personal respondent left a message with the applicant’s father indicating she was unable to meet at that time since she was not in the Kingston area. Instead, she advised the applicant’s father she could meet on October 4, 2005, at 1 p.m and, unless she heard from the applicant, she would assume the timing of the meeting was satisfactory. The personal respondent drove from Toronto for the scheduled meeting but the applicant did not appear.
37Later that day, the applicant’s mother called to say that the applicant would not be able to attend the meeting. The personal respondent had no success in personally contacting the applicant. The applicant responded to voicemails and messages left with her parents by leaving messages for the personal respondent at the Kingston store; a location the personal respondent rarely attended.
38The corporate respondent denies the applicant’s allegation that it was advised that her medical leave had been extended to October 31, 2005. It claims it never received any medical note which entitled the applicant to be off work for a period longer than October 4 or up until October 31, 2005.
DECISION
39I am satisfied that the balance of evidence supports a finding that the corporate respondent perceived the applicant to have a disability. While I am not satisfied the applicant was subjected to harassment on the grounds of perceived disability, I am satisfied that the applicant’s termination was, in part, due to disability. My reasons for these findings follow.
RELEVANT LEGAL PRINCIPLES
40Section 5 of the Code provides:
Every person has a right to equal treatment with respect to employment without discrimination because of (…) disability.
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
41The Code defines ‘harassment’ as follows:
(… )engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
42Disability is defined as :
(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; ("handicap")
43Section 10(3) provides that “the right to equal treatment without discrimination because of disability” is extended to a person who “has or has had a disability or is believed to have or to have had a disability”.
The Disability
44When interpreting the provisions of the Code, including its definitions, the Supreme Court has stated that human rights legislation has a special quasi-constitutional status and as a result a general interpretive approach to the Code is appropriate. Ontario (Human Rights Commission) v. Simpson Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536, at para. 12.
45Under the Code, the definition for disability includes both physical and mental disability. Beyond applying facts of a matter to a narrow and rigid definition for disability, the Supreme Court has indicated that a multidimensional approach that considers the socio-political dimension of disability is necessary: See,Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, “Montreal (City)”.
46In Montreal (City), the Supreme Court attempted to provide a series of guidelines that would facilitate interpretation of the meaning of disability although it is referred to in the following quotation as “handicap”. In the Quebec Charter, the word used is “handicap” rather than “disability”; nonetheless, the approach is relevant for the application of Ontario’s Code. For the Court, Justice L’Heureux-Dube, wrote from para. 79:
Thus, a “handicap” may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. Indeed, it is the combined effect of all these circumstances that determines whether the individual has a “handicap” for the purposes of the Charter.
Courts will, therefore, have to consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made. In examining the context in which the impugned act occurred, courts must determine, inter alia, whether an actual or perceived ailment causes the individual to experience “the loss or limitation of opportunities to take part in the life of the community on an equal level with others”: McKenna, supra, at pp. 163 and 164. The fact remains that a “handicap” also includes persons who have overcome all functional limitations and who are limited in their everyday activities only by the prejudice or stereotypes that are associated with this ground...
47However, there are limits to the definition of “disability”. While the appropriate approach in applying facts to the definition of “disability” is to be broad, it is not to be so broad as to render the definition of “disability” meaningless and inconsistent with the purpose of the Code. Again, in Montreal (City), at para. 82, the Court cautioned:
These guidelines are not without limits. Although I believe that health may constitute a “handicap” and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or “normal” ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a “handicap” for the purposes of s. 10. As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap”, although they may be discriminatory for other reasons.
48In essence, the applicant submitted that she was ‘harassed’ and terminated due to her medically authorized absences from work. On numerous occasions, the applicant submitted that her termination was ‘wrongful’ since it occurred while she was on a medically authorized leave. As noted at the hearing, the extent of my jurisdiction is to determine whether her rights under the Code were violated. In this case it means, essentially, to determine whether the applicant was harassed and/or terminated, even in part, due to disability. If not, the nature of her termination, whether ‘wrongful’ or otherwise is a matter that is outside my jurisdiction.
49For the purposes of establishing her disability, the applicant relied on the medical notes she submitted dated June 10, 27, September 1, and October 3, 2005. This medical evidence was particularly scant and lacking any substantive narrative. The notes only authorized the applicant’s absence from work due to “medical reasons”. When pressed to reveal her disability, the applicant stated that she had been diagnosed with anxiety and clinical depression for which she had received treatment.
50In my view, the medical evidence is scant and provided no diagnosis to substantiate that the applicant had any functional limitation associated with an actual physical or mental disability. Moreover, I am not satisfied that her medical notes are sufficient to support that the reasons for her absences would recur. While ‘medical reasons’ may suggest a disability, in my view, the phrase is ambiguous and not sufficient to establish that the applicant had an actual disability or any set or fixed limitations.
51While the applicant’s medical notes authorized her absence from work, I do not find that they are sufficient to establish that she had a disability and/or functional limitations. Accordingly, I find no bio-medical basis to conclude the applicant had a disability. However, relying entirely on medical evidence is not a sufficient basis upon which to determine whether the applicant has a disability for Code purposes.
52The question is whether there is sufficient evidence to support that the corporate respondent could have perceived that the applicant had a disability and/or limitations.
53The applicant testified that she has been diagnosed with anxiety and clinical depression. Although she testified about her diagnosis at the hearing, she admitted that no such diagnosis had been provided to her employer during the relevant time. In fact, she noted that she thought it was not necessary or proper. In her view, her medical notes were integral to shielding her from any sort of communication with her employer about her condition or action such as termination. Although the applicant is not obligated to disclose her specific diagnosis, her belief about the necessity of dialogue is not accurate. In fact dialogue is essential to ensuring that the employer is able to meet its duty to appropriately accommodate a disability. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.; Moulton v. Leisureworld Caregiving Centre, 2009 HRTO 1575.
54In any event, I find that the evidence supports that the corporate respondent developed a perception based on her medical absences that the applicant had a disability which might affect her ability to perform her job. My reasons for making such a finding are as follows.
55I find the applicant’s testimony, which was not contradicted on this point, supports that Ms. Pritchard connected the applicant’s absence with her functional ability to perform her job when she advised the applicant to take care of her physical and mental health. Also, when pressed, Ms. Carter stated that despite the scant medical notes, it was her understanding that the applicant took time off work for stress. Also, there was no evidence submitted by the corporate respondent which indicated that it questioned the legitimacy of the applicant’s absences from work or that her absences were not due to a medical basis. Indeed, the Associate File Amendment dated July 19, 2005, signed by both Ms. Pritchard and Ms. Carter, acknowledged that the applicant had returned from “sick leave”.
56Moreover, I am satisfied that the corporate respondent’s conduct towards the applicant during the relevant time supports it perceived the applicant as disabled during her absences. For example, Ms. Carter established that the applicant had breached ‘policy’ by visiting the Kingston store while on sick leave. Additionally, as stated in its Response to the Application, Ms. Carter affirmed that the applicant was required to provide a doctor’s note establishing her capacity to return to work. Indeed, Ms. Carter noted that the applicant’s attempts to return to work prior to October 3, 2005 would not have been in accordance with its ‘policy’ since a reintegration meeting was required to ascertain, among other things, her medical capabilities prior to her return to work.
57Accordingly, I am satisfied that the corporate respondent perceived the applicant had a disability which caused her absences from work during the relevant times.
58The next question, in this matter, is whether the applicant’s disability or perceived disability is a factor in Ms. Pritchard’s interaction with her during the relevant times.
59In her Application, the applicant alleged that Ms. Pritchard made “harassing” statements to her when she was on medical leave; that she sought a permanent replacement; refused to allow her to return to work without medical clearance; and when she returned to work was told that if she could not perform her job someone else who could do it would be found. In her testimony, the applicant noted that during her first medical leave, Ms. Pritchard called her at home several times making ‘threats’ which led her to believe her job was in jeopardy. On one occasion, she called the applicant and “screamed” at her because she had kept her store keys while on leave.
60After reviewing the applicant’s testimony on these points I am unable to accept her allegations for the following reasons.
61When pressed, the applicant was unable to provide sufficient particulars to support her allegations. For example, she noted Ms. Pritchard would telephone her and make “harassing statements” however she could not recall any specific statement. As such, she did not provide sufficient evidence to assess whether any comments made by Ms. Pritchard could constitute harassment under the Code.
62Also, based entirely on her own testimony, I am not satisfied that any actions attributed to Ms. Pritchard during the applicant’s medical leave could reasonably be viewed as unwelcomed or inappropriate. In the absence of any particular medical restrictions, I am not satisfied the act of an immediate supervisor contacting her to ascertain her condition and obtain store keys (which she should not have had in her possession), among other things, was obviously inappropriate. Also, I am not persuaded that “demands” for her store keys, in accordance with business protocol, could be viewed as the applicant being singled out for differential treatment. Indeed, the applicant was unable to explain how Ms. Pritchard’s “demands” were inconsistent with Ms. Pritchard’s duties in supervising her district and instead, related to an enumerated ground.
63The applicant seems to believe that any interaction with the corporate respondent while she was on medical leave was inappropriate. For example, it was clear that the applicant believed that any employer phone call to her during her medical leave would have been inappropriate and offensive. However, as noted above, the medical information provided to her employer did not restrict contact. In this context, Ms. Pritchard’s questions about her return to work and the request concerning the store keys cannot be viewed as harassment. I am not satisfied that Ms. Pritchard’s conduct could be reasonably viewed as unwelcome in all the circumstances.
64Also, I am not satisfied that a change in the applicant’s schedule could be viewed as differential treatment based on any perception of disability held by her employer. The applicant confirmed that she had no medical restrictions when she returned to work in July after her first medical leave and she did not ask for any disability related accommodation after she returned to work. The corporate respondent’s evidence for the manner in which the schedule was set was not challenged in any meaningful way. There is no basis to find the change of schedule was a form of differential treatment.
65More importantly, I find that the applicant’s testimony regarding Ms. Pritchard was inherently contradictory on an important point. In my view, the applicant’s testimony about Ms. Pritchard’s animus towards her, based on disability, was not consistent with her testimony surrounding the circumstances of her first leave. As noted by the applicant, her last minute request for vacation was denied by Ms. Pritchard on business administrative grounds. After listening to her reasons for her request, Ms. Pritchard suggested that if the applicant obtained a medical certificate authorizing her time off work she could bypass any administrative reason that would deny her vacation time. In this regard, the applicant’s testimony supports that Ms. Pritchard facilitated her time off work instead of harbouring any animus toward her for doing so.
66The most serious allegation was that Ms. Pritchard had immediately posted an advertisement for a permanent replacement after the applicant went on medical leave. The applicant also asserted that her position was permanently filled prior to October 2, 2005. In support of her allegations, she relied on an undated and (personally) unsigned letter by Melissa Maracle, who was Acting Manager, while the applicant was on her first medical leave. Ms. Maracle subsequently resigned in mid-July 2005. The applicant also alleges that she had a discussion with Andrew Harris, her previous District Manager, who covered for Ms. Pritchard, and admitted the posting was a mistake. The applicant also submitted a copy of the posting for my review.
67Mr. Harris acknowledged that a job posting had been made although he denied the authenticity of the posting as presented by the applicant. Mr. Harris and Ms. Carter testified that the posting was made in order to build up a bank of resumes.
68The applicant submits that the job posting came about due to Ms. Pritchard’s animus towards her for taking time off work due to her disability. As noted above, I find the applicant’s testimony does not support that such an animus existed at the time of the posting. Accordingly, without such animus present, I am not persuaded Ms. Pritchard sought to replace the applicant due to her perception of the applicant’s disability during her first leave.
69Additionally, at the time of the job posting, I find no evidence to support that the corporate respondent perceived the applicant’s disability as recurring in nature or that upon her return from her first medical leave the applicant would have been functionally restricted from certain aspects of her job. Indeed, the applicant testified that after her first leave she was not restricted from her duties and that she returned to her position as Manager. As such, I am not satisfied that the job posting was placed in a context tainted by Ms. Pritchard’s concerns or perceptions of the applicant’s disability.
70Also, despite the corporate respondent’s concerns about the authenticity of the posting submitted, I did not find the posting submitted by the applicant particularly persuasive in establishing that the corporate respondent was actively seeking to replace her in her position. In my review, the job posting submitted, supports the corporate respondent’s version of events, and that the posting was an attempt to build up a bank of resumes. Indeed, the job posting did not have the indica one would reasonably expect to find on a posting with the purpose of filling a specific position. For example, the job posting did not indicate a deadline for resumes or specify any particular store location. This, combined with the fact that the applicant returned to her position after her first medical leave, supports the corporate respondent’s position.
71Further, I am also not satisfied that the corporate respondent permanently filled the applicant’s position prior to October 2, 2005, or even prior to October 5, 2005. In her testimony, the applicant confirmed that she kept herself informed of the all relevant news at her store through her friends (who worked there). As such, when pressed, she could not explain how she fully expected to return to her managerial position at the time her reintegration meeting was scheduled, despite her allegations that her position had been permanently filled. Instead, contrary to her claims, she was unable to provide sufficient evidence or particulars to establish her allegation that her position had been filled permanently prior to October 2, 2005.
72The applicant relied on Ms. Maracle’s letter to support her allegation that Ms. Pritchard attempted to find a new manager for the Kingston store. I note the letter was undated and the author who was not called by the applicant to testify to the truth of her statements about Ms. Pritchard. This raises questions about its reliability however, even if accepted on its face I am not satisfied that it supports the applicant’s allegations. Ms. Maracle noted that Ms. Pritchard made her Acting Manager which suggests that she was acting for the applicant on a temporary basis. Moreover, Ms. Maracle’s statement that Ms. Pritchard was not aware of the applicant’s return is an accurate reflection of the history of the applicant’s absences. For example, her medical notes would establish a return to work date which was subsequently amended prior to any anticipated return to work date.
73Finally, both Ms. Carter and Mr. Harris denied the applicant’s allegations regarding the job posting. In fact, Mr. Harris denied much of the applicant’s testimony regarding their meeting in June 2005. Both witnesses were unshaken in asserting that such a job posting was not aimed at permanently replacing the applicant while she was on leave. Indeed, when pressed, the applicant was not able to affirm that her position had been filled on a permanent basis, as opposed to interim or Acting basis, while she was on medically authorized leave.
74While I am troubled by the failure of the corporate respondent to submit a copy of the job posting and the absence of testimony from Ms. Pritchard, in the circumstances, I find that my concerns with the applicant’s testimony regarding her harassment overshadow any inadequacies in the corporate respondent’s evidence. In the circumstances, I am not satisfied that the applicant was harassed based on any perception of disability during the relevant times.
75The last question to determine is whether the applicant’s disability or perception of disability was a factor in her termination.
76The parties’ significant dispute, under this area of assessment, focussed on whether the applicant delivered the October 3, 2005 medical note to the corporate respondent. The applicant alleges she had delivered the note and thus she was fired while on authorized medical leave; the corporate respondent submits it did not receive the note.
77The employer denied that it received the medical note dated October 3, 2005 at any time prior to the applicant’s termination. Instead, on October 3, 2005, as confirmed by her personal notes from that time, Ms. Carter scheduled a meeting with the applicant for October 5, 2005 to discuss return to work issues. Ms. Carter testified that both she and Ms. Pritchard traveled to Kingston with the intention of conducting a meeting with the applicant regarding her return to work. Ms. Carter noted that the meeting had been initiated by the applicant when, in late September 2005, she indicated she was ready to return to work. Ms. Carter denied she had received the medical note dated October 3, 2005.
78In her testimony, the applicant stated that she provided the October 3, 2005 medical note to her brother who provided it to a Kingston store employee, Mr. Patrick, her friend, who faxed it to Ms. Pritchard on October 4, 2005, and personally provided it to Ms. Carter on October 5, 2005. This account does not appear in the applicant’s Application; no explanation regarding delivery of the note appears in her Application.
79The applicant admits she has no actual knowledge that the medical note in question was delivered. Mr. Patrick was not called to testify on this point and the applicant confirmed she did not intend to call him as a witness at the outset of the proceeding.
80On the other hand, Ms. Carter testified that she did not receive the note. Instead, she confirmed that, on October 5, 2005, she and Ms. Prichard had expected to meet and discuss the applicant’s return to work. She was cross-examined on this point with some vigour.
81Based on the evidence, I prefer the corporate respondent’s version of events. In my view, Ms. Carter’s testimony on the denial of any knowledge of the October 2005 medical note was unshaken on cross-examination. Also, I am more inclined to accept the corporate respondent’s version of events because it had accepted and respected similar medical notes in the past from the applicant without question. Further, Ms. Carter’s attempts to contact the applicant on October 5, 2005, regarding her reintegration to work, reflects the behaviour of someone with no knowledge of such a note. Indeed, the knowledge of the medical note would have made the meeting and the applicant’s presence unnecessary.
82Moreover, I find that the applicant’s testimony about the delivery of the October 3, 2005 medical note does not harmoniously accord with the preponderance of the probabilities which a practical and informed person would readily recognise as reasonable in that place and in those conditions. On one hand, the applicant noted that by the time of her scheduled October 5, 2005 meeting, both Ms. Pritchard and Ms. Carter should have received her medical note. Then, when pressed, she was unable to reconcile the reasons behind the last-minute and rushed attempt by her mother to cancel the meeting on October 5,2005 meeting. Indeed, the applicant’s story regarding these messages to Ms. Carter did not reference the medical note but rather, that she was unable to make it to an ‘emergency’.
83Accordingly, I am not satisfied that the corporate respondent had knowledge of the applicant’s October 3, 2005 medical note authorizing to be her off work until October 31, 2005.
84Still, the issue which remains to be addressed, is whether the perception of the applicant’s disability was a factor in the decision to terminate the applicant’s employment. More specifically, did the corporate respondent base its decision to terminate the applicant on a perception that she would take further medical leaves and as such be functionally prevented from performing her job.
85The applicant submitted that there was no other basis on which to terminate her employment. Specifically, she denied that there were performance issues, however the corporate respondent submitted the September 30 incident and the allegations involving her dislike for “hiring” girls, among other performance issues, were central to the applicant’s termination after she failed to show up for her reintegration meeting.
86Although she denied any performance issues, when viewed in totality, the applicant’s own testimony confirmed that there were issues with her performance. For example, she admitted that Ms. Pritchard did talk to her about store issues which included the low staffing levels at the store. Further, she contradicted her prior written statement in which she denied talking to a customer during her visit to her store on September 30, 2005. Indeed, the applicant’s testimony corroborated that she engaged a customer and an employee, in conversation on September 30, 2005. Moreover, the applicant’s interaction with the customer and employee was sufficient to have been reported to Ms. Carter by the customer. Ms. Carter and Mr. Harris testimony was supported by the performance reviews on record and Ms. Carter’s personal notes. In my view, the evidence supports that, more likely than not, there were concerns with the applicant’s job performance.
87Notwithstanding the performance issues the corporate respondent had with the applicant, the question remains whether the applicant’s dismissal occurred, in part, due to the corporate respondent’s perception that the applicant would take further leaves of absence and thus be prevented from performing adequately.
88I acknowledge that I have placed little weight on the applicant’s testimony thus far essentially since I am not satisfied her actions and beliefs, at times, accorded with the reality of the situation. However, in my view, the reasons for the applicant’s termination are more appropriately determined by the corporate respondent’s evidence in light of the fact that it occurred after a period of recurring absences which were perceived as related to disability.
89In my view, the corporate respondent’s decision to terminate the applicant was, in part, based on the perception of further absences by the applicant. As noted above, the gaps in the corporate respondent’s evidence were troubling. Discriminatory actions, are by their nature, actions which cannot always be verified by direct proof. As such, it may become necessary to infer discrimination from the conduct of an individual or individuals. Although the applicant’s testimony has garnered little weight, I am satisfied that with regard to her termination the corporate respondent more than likely based part of its decision on the perception that she would go off on medical leave again and thus be functionally impaired from performing her job. My reasons are as follows.
90I find the preponderance of evidence supports that further absences from the applicant would affect the store’s functioning. As noted by Ms. Carter and Mr. Harris, the Kingston store was not operating at an optimal level as supported in the performance improvement documents submitted by the corporate respondent. Further absences by the applicant meant issues regarding the store could not be fully addressed. As noted in a performance improvement document, Ms. Pritchard generally linked the inadequate staffing level at the time with detrimental consequences to the Kingston store in case of illness. As noted: “short staffed in case of illness [and] works staff too hard to perform to standard”.
91I am also troubled by Ms. Carter’s explanations regarding the October 17, 2005 termination letter. The letter is completely devoid of any mention of the applicant’s recent medical absences. The corporate respondent submits that since it had no knowledge of the October 3, 2005 medical note it had no knowledge of the applicant’s disability and thus it was not a factor in the termination. I am persuaded that the lack of medical note was viewed as an opportunity to terminate the applicant during a period when she was not on medical leave. I base this finding on aspects of Ms. Carter’s testimony which confirmed one part of the applicant’s testimony: during her second leave, Ms. Carter not only believed that the applicant was off due to stress but that during the second leave she was unaware if the applicant would return to work.
92Within this context, I am satisfied that an inference can be made to find that the corporate respondent took the lack of medical note as an opportunity to terminate the applicant before another note was presented authorizing her off work. In this regard, I rely on the evidence which supports that it papered over the reasons for the applicant’s termination on October 5, 2005. Indeed, the performance improvement evaluations regarding issues from months past were all dated October 5, 2005.
93When pressed, Ms. Carter could not explain the reasons for preparing for the applicant’s termination on the same day the applicant’s reintegration meeting was scheduled; a meeting which was required because she had been off work on medical leave. Indeed, Ms. Carter affirmed that it required a reintegration meeting to assure the applicant was functionally capable of returning to work. Ms. Carter denied that there was any thought that the reasons which had made the reintegration meeting necessary in the first place might have prevented the applicant from attending the meeting. Without any explanation for her absence, Ms. Carter could not adequately explain the reason for not sending a registered letter requesting the reason for the applicant’s absence in an attempt to confirm that it was not related to her past absences
94In light of the recent past, I am persuaded that Ms. Carter and Ms. Pritchard proceeded, in the absence of any medical certificate, to terminate the applicant before the applicant could present such a certificate authorizing her off work and thus preventing them from addressing the issues at the store which required a full-time manager. At the time, the applicant had gone off work a few times and questions of an eventual return were raised and speculated upon.
95While the corporate respondent had no medical certificate authorizing her off work, the recurring nature of her absences had occurred in the context of medical notes which had not suggested that the applicant’s absences would recur; but they had. Since a future absence was linked to the store’s operation in a negative or possibly damaging manner, I am satisfied that in the absence of a medical note authorizing her off work, the corporate respondent terminated the applicant, in part, due to concerns regarding her managerial performance but also, in part, due to a belief that her medically based absences would recur.
96Accordingly, I find that the applicant’s termination occurred due to a perception that the applicant would take further medical leave. As such, the corporate respondent terminated the applicant, in part, on a perception of her disability.
REMEDY
97The applicant submitted that her remedy should total approximately $25,000.00. While she left the appropriate quantum regarding “Harassment & Job Security Threats” and “Pain & Suffering Plus Delays” to the Tribunal’s discretion, she particularized her lost income as a result of her termination. In her testimony, she indicated that she searched for employment from November to early spring 2006. She admitted to receiving Employment Insurance (EI) benefits during the relevant time. The applicant specified that her lost income claim should include the following: loss of her gross salary during her unemployment, including those periods in which she was on medical leave, her future raise increases or adjustments, outstanding and future vacation pay among other things.
98The applicant provided no documentation supporting her claims for damages, such as examples of her resume, her EI stubs or any Revenue Canada documentation for the 2005 and 2006 taxation years. The corporate respondent also submitted no documentation which addressed the applicant’s lost income claims; instead, it relied on its cross-examination of the applicant for its evidence.
99Under section 45.2 of the Code, the Tribunal’s remedial powers are set out:
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:
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.
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.
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.
Injury to Dignity, Feelings and Self-Respect
100It is well established that the Tribunal’s remedial powers are not punitive in nature. On the other hand, in assessing quantum, the Tribunal is to be mindful of not setting the amount too low, effectively creating a licensing fee to discriminate.
101In Sanford v. Koop, above, the Tribunal summarized the factors to be used in assessing the appropriate quantum of damages. They are: humiliation experienced by the complainant; hurt feelings experienced by the complainant; a complainant’s loss of self-respect; a complainant’s loss of dignity, self-esteem and confidence; the experience of victimization; vulnerability of the complainant; and the seriousness, frequency and duration of the offensive treatment. In assessing quantum, the Tribunal is to be mindful of not setting the amount too low thereby trivializing the social importance of the Code and effectively creating a ‘license fee’ to discriminate (See, Sanford, at para. 34; also ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) at para. 152).
102The 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., above, at para. 153.
103When provided an opportunity to address her damages, the applicant focused on her emotional upset and anger caused by losing her managerial position and the disruptions to her friendships with her employees. However, as she acknowledged, her emotional upset was not so significant that it required an extension of her medical leave. Indeed, she qualified for regular employment insurance subsequently.
104After listening to her testimony, I am persuaded that the infringement of the applicant’s right to be free from discrimination was objectively and subjectively less than serious. In my view, the applicant’s perceived disability was a factor in her termination however, it was not the determining factor in her termination. While she was hurt and angered by her termination, when pressed, the applicant did not articulate that she lost any self-respect, dignity or confidence to support the infringement was serious. Furthermore in the absence of the corporate respondent’s harassment and since her termination was, in part, due to the perception of disability as well as performance factors I am not satisfied that the infringement endured to the extent that it could be viewed very significant.
105After listening to the applicant’s testimony, I am satisfied that an award in the amount of $6,500.00 is appropriate. In my view, this award is not inconsistent with another case, which in the absence of harassment, an applicant was terminated, in part, due to disability. See Garcia v. Tri-Krete Limited, 2009 HRTO 2181.
106I also find that it is appropriate to award the applicant pre-judgement interest on the amounts set out above, in accordance with s. 128 of the Courts of Justice Act from the January 9, 2008 – approximately the mid-point between the date of her losses and the Tribunal hearing date.
Lost Income
107Where it has been found that an applicant was dismissed contrary to the Code, the applicant is generally entitled to compensation for lost wages.
108As noted in Heintz v. Christian Horizons, 2008 HRTO 22 at para. 265, an applicant is under a duty to mitigate his or her losses by making reasonable efforts to obtain suitable employment. The applicant is entitled to be compensated only for those losses that could not have been avoided and the respondent has the onus of proving the applicant’s failure to mitigate. It is the Tribunal which must assess what is reasonable in the circumstance.
109On cross-examination, the applicant, beyond stating she diligently looked for work after she was terminated, could not recount sufficient details to support her testimony. In my view, the corporate respondent highlighted a serious concern about the applicant’s mitigation efforts. During the period she received Employment Insurance, the applicant could not provide any particulars regarding her approach to job searching other than providing a few examples, she could not recount the jobs and business she targeted. Based on her testimony, I am not satisfied that the applicant made a particularly diligent search for employment in order to justify the several months of lost wages she claims.
110Although her job search was not particularly diligent, I am persuaded that there was some attempt by the applicant to find work. Based on the evidence presented at the hearing, the applicant made $432.00 gross, per week at the time of her termination. This amount is supported by the corporate respondent’s document titled “Associate File Amendment” dated May 10, 2005. In light of the evidence presented at the hearing, and in the circumstances of this matter, I award the applicant $432.00 gross per week to accrue from November 1, 2005 to January 1, 2006 or approximately 8 weeks. In my view, this award is an appropriate reflection of the applicant’s effort towards the mitigation of her wage loss as a result of the infringement of her rights under the Code. In addition, this amount is subject to any applicable deductions which the corporate respondent will deduct from source.
111I was not persuaded the applicant’s other claims for damage are valid because I am not satisfied she is entitled to them. For example, the claims for pay during her medical leaves would not be appropriate since the evidence suggests there was no entitlement to such pay from the corporate respondent for such absences. Also, the applicant submitted she would have been entitled to periodic wage increases however there is no evidence the applicant would have been entitled to such wage increases. As such, in my view, basing the applicant’s wage loss on her rate of pay at the time of her termination is appropriate.
112The applicant is entitled to pre-judgment interest on the amount the corporate respondent is to pay to the applicant after it has made all the appropriate deductions. In my view, pre-judgment interest is to accrue from January 9, 2008; approximately the mid-point from November 1, 2006 and the Tribunal hearing date.
ORDER
113Having found that the corporate respondent has violated the Code, the Tribunal makes the following orders:
Within 30 days of this Decision, the corporate respondent shall pay the applicant $6,500.00 in compensation for loss arising from injury to feelings, self-respect and dignity for the infringement of her rights under the Code. The applicant is entitled to pre-judgment interest in accordance with s. 128 of the Courts of Justice Act from January 9, 2008.
Within 30 days of this Decision, the corporate respondent shall pay the applicant an amount equivalent to $432.00 gross per week from November 1, 2005 to January 1, 2006. The corporate respondent is to make all appropriate deductions from source, if any. The applicant is entitled to pre-judgment interest in accordance with s. 128 of the Courts of Justice Act from January 9, 2008.
If the corporate respondent has not paid the applicant within 30 days from this Decision, post-judgment interest is to accrue calculated in accordance with the Courts of Justice Act.
Dated at Toronto this 22nd day of February, 2011.
“Signed By”
Jim Dimovski
Member