HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Mazzei
Applicant
-and-
Toronto District School Board, Melanie Stoughton and Silvana Filice
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: Mazzei v. Toronto District School Board
APPEARANCES
David Mazzei, Applicant ) ) Richard Ferriss, Counsel and ) George Nathaniel, Student-at-law
Toronto District School Board, ) Grant Bowers, Counsel and Melanie Stoughton and Silvana Filice, ) Michelle Sun, Student-at-law Respondents )
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated June 22, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 31, 2006.
2The applicant alleges that he experienced discrimination in respect of employment because of his disability contrary to sections 5 and 9 of the Code, arising out of his application for a part-time caretaker position with the respondent school board in November 2005.
3The hearing in this matter was held on October 8, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(5) applications proceed in an expeditious manner. I heard from the applicant and one additional witness called on his behalf, as well as from the two personal respondents.
4The applicant has a non-verbal learning disability. While he has verbal skills in the average range, his working memory, perceptual organization and processing speed are well below average. He also has been diagnosed as Attention Deficit Disorder – Inattentive. The applicant can get flustered and frustrated when placed under time restrictions. He needs assistance with tests, including being given a longer time to do the test, getting help with interpretation, and being able to use a calculator for math questions.
5The applicant applied for a job with the respondent school board as a part-time caretaker. He received a letter dated November 11, 2005 inviting him to attend a screening test on November 25, 2005 at 2:30 p.m. The screening test was described in the letter as “a literacy and numeracy screening test which consists of reading and math skills test (pass mark 70%)”. The letter states that this was “the only date and time available for the pre-screening test” (emphasis in original) and that “no exceptions will be made”.
6The hiring process for the part-time caretaker positions was being run by the personal respondent, Melanie Stoughton, who was the Administrative Services Coordinator for the respondent board’s Facilities Department. There were approximately 60 part-time caretaker positions available, for which the board received some 1800 applications. For the purpose of the screening test, the applicants were divided into four groups aligned with the board’s school quadrants. This meant that each group writing the test would be composed of 400 to 500 people. The location set for the test being administered to the applicant’s group was in a large cafeteria at one of the board’s high schools.
7Upon receiving the board’s letter, the applicant was concerned about having to write the screening test due to his learning disability. He was working at the time with an employment services agency called Adult Learning Disabilities Employment Resources (“ALDER”) and asked for advice about what he should do. He was encouraged to contact the board and advise them of his disability and his need for accommodation.
8Sometime prior to November 17, 2005, the applicant called Ms. Stoughton. While there are some areas of dispute about this call, in my view the versions are substantially similar. The applicant says that he identified himself as an applicant for the part-time caretaker positions and said that he had a learning disability that required accommodation for the screening test scheduled for November 25, 2005. The applicant states that he specifically identified the accommodations that he required, namely that he needed to write the test in a separate room, that he needed someone to break down the questions for him so that he could understand, and that he needed to use a calculator for the math questions. Ms. Stoughton didn’t recall that the applicant provided his specific needs for accommodation, although she allowed that he may have said that he needed more time to write the test.
9In his evidence at the hearing, the applicant testified that Ms. Stoughton’s response was that the school board doesn’t accommodate. He later testified that in response to his request for specific accommodations, Ms. Stoughton said, “we don’t do that”. This evidence was contradicted by the applicant’s own witness, Mr. Yarrow from ALDER, who testified that at the time, the applicant reported to him that Ms. Stoughton’s words were that the board didn’t accommodate “at this stage of the process”.
10Ms. Stoughton’s version is that she said that due to the nature of the session on November 25, 2005, the board couldn’t give support to one individual due to the number of people being tested and the limited number of staff. This generally corresponds to what Ms. Stoughton says that she told Mr. Yarrow subsequently when he called her directly – namely that the board couldn’t provide accommodation at the session itself. In my view, there is no real difference between the two formulations of words: whether it was stated that the board didn’t accommodate “at this stage of the process” or that the board “couldn’t provide accommodation at the session itself”. I find that in both formulations, the message to the applicant was that his needs arising out of his learning disability would not be accommodated at the November 25, 2005 testing session.
11There is no dispute that Ms. Stoughton then proposed that the applicant simply attend the session and write the test and see how he did. She told the applicant that if he wrote the test and didn’t pass, then the board could consider further steps to accommodate his needs. This was not acceptable to the applicant, and he wanted specific accommodations at the time the test was scheduled to be written. In the applicant’s words, he believed that he was being “set up to fail”.
12The applicant reported this discussion to Mr. Yarrow, ALDER’s Executive Director, which prompted Mr. Yarrow to write a letter to Ms. Stoughton on November 17, 2005 and then to follow up with a phone call on November 21, 2005. Ms. Stoughton said that she could not discuss the specifics of the applicant’s situation with Mr. Yarrow without first receiving authorization from the applicant. Mr. Yarrow asked to speak with Ms. Stoughton’s supervisor, but was directed to the personal respondent Ms. Filice, who is a Staffing Officer in the board’s Employee Services department. Mr. Yarrow appears to have thought that he was talking to Ms. Stoughton’s supervisor, which is not correct. In my view, nothing turns on this.
13Mr. Yarrow called Ms. Filice later that afternoon on November 21, 2005. Once again, Mr. Yarrow was told that Ms. Filice couldn’t speak with him about the applicant’s specific case in the absence of authorization from the applicant. Mr. Yarrow states that Ms. Filice repeated Ms. Stoughton’s statement that the board didn’t accommodate at this stage of the process.
14This is not the evidence set out in Ms. Filice’s written statement, which she affirmed at the hearing, and Ms. Filice was not cross-examined on this point. Her evidence is that she was not aware of the applicant’s specific situation, and so could not comment on what Mr. Yarrow was saying. In my view, nothing turns on this conversation given my finding above that Ms. Stoughton already had told the applicant that accommodations would not be provided for him at the November 25, 2005 testing session.
15Meanwhile, also on November 21, 2005, Mr. Yarrow contacted the applicant and asked him to provide his authorization to the board so that they could discuss the details of his case. The applicant did this by calling Ms. Stoughton late in the afternoon of November 21, 2005. He confirmed that the board could speak with Mr. Yarrow about his situation. The applicant states that he also once again raised that he has a learning disability and requires accommodation, and that Ms. Stoughton once again refused to provide accommodation.
16There is no dispute that on this call the applicant offered to provide medical documentation to support his disability and needs, and that Ms. Stoughton agreed to accept this documentation. Ms. Stoughton’s evidence is that she told the applicant that once she received this documentation, she would send it to the appropriate person for review and someone would get back to the applicant about next steps. The applicant’s evidence is that Ms. Stoughton said that his medical documentation would be considered once it was sent in. I do not see any material difference between Ms. Stoughton’s and the applicant’s evidence on this point. There is no dispute that the call ended abruptly.
17On November 21, 2005, after his call with Ms. Stoughton, the applicant contacted Mr. Yarrow and told him that we wished to withdraw his application for the position at the board because he believed he was being set up to fail. In the meantime, Ms. Filice had been in touch with the board’s Legal department, which prompted a call from counsel in that office to Mr. Yarrow. Upon being advised that the applicant had withdrawn his application, counsel told Mr. Yarrow that there was nothing further to discuss.
18A letter was written by Mr. Yarrow to the Chair of the respondent board in December 2005, and there was an article about this situation in a Toronto newspaper in March 2006. Nothing in my view turns on these later events.
19The first issue for me is whether the applicant experienced prima facie discrimination because of his learning disability in relation to the application process for the part-time caretaker positions. I find that he did. The applicant has a documented learning disability which makes it difficult for him to perform on written tests without assistance, particularly when dealing with math problems without use of a calculator. A review of the screening test with the applicant in his evidence at the hearing indicates that he would have had difficulty with at least four of the five math questions without use of a calculator, which alone would have ensured that he would have failed the test. In addition, Ms. Stoughton’s own evidence is that, if she had been aware of the applicant’s limitations and needs as set out in the letter from his doctor tendered into evidence before this Tribunal, she would not have required him to write the test without accommodation.
20Having established that the applicant experienced prima facie discrimination because of his learning disability, the next question is whether the respondent took appropriate steps to accommodate the applicant’s needs. This requires a recognition that the accommodation process is a joint process between a prospective employer and the person seeking accommodation, and an examination of the responsibilities of each party. These respective responsibilities are summarized quite nicely and accurately by the respondent board in its own guidelines on accommodation for persons with disabilities, which is in evidence before me.
21The board’s guidelines state that the person seeking accommodation has the responsibility to advise the employer of the disability, to make his or her needs known, and to provide information regarding relevant restrictions or limitations, such as information from healthcare professionals. In turn, the board’s guidelines state that the employer’s responsibilities include taking an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and obtaining expert opinion or advice where needed, such as from the board’s Employment Equity Office or Human Rights Office.
22There is no dispute that in his first discussion with Ms. Stoughton, the applicant identified that he had a learning disability and at least stated that his needs included being given more time. This, in my view, at the very least should have prompted a discussion which included a request by Ms. Stoughton for further information about the applicant’s needs if these were not in fact made known to her already, any request for supporting medical documentation that Ms. Stoughton thought necessary or appropriate, and a commitment to consider the applicant’s needs and how they might be accommodated in the testing process. In accordance with her responsibilities as set out in the board’s own guidelines, which I find are an accurate statement of the law, Ms. Stoughton should have taken an active role in considering alternative approaches and solutions and should have involved other resources at the board if required.
23However, Ms. Stoughton did none of this. I appreciate the logistical difficulties of making accommodation arrangements for one individual out of 1800 a short period of time prior to when the testing is scheduled to take place and with the large number of applicants and small number of staff available at the testing site. However, accommodating the applicant’s needs did not necessarily mean providing this accommodation at the testing site on November 25, 2005. Given the applicant’s needs, accommodation could have involved doing the testing at a different time and at an alternate site, where the assistance required could readily be provided. This does not appear to have been considered by Ms. Stoughton at the time. I am aware that part of the November 25, 2005 session was to provide information about the job to the applicants, but the applicant could have attended the session for this purpose and then been excused to write the test at another time and place.
24Ms. Stoughton’s evidence is that she told the applicant that the board did not provide accommodation at the testing session. Even on her own evidence, this is not true. Ms. Stoughton readily acknowledged that she wouldn’t make someone who was blind write the screening test without accommodation, and she also stated that if the person was deaf, she would have made accommodation arrangements for the session. The difference with the applicant is that he had a learning disability, which is an invisible disability that can cover a broad spectrum of limitations. As was put to Ms. Stoughton on cross-examination, a person with a learning disability may not be able to read - or they may be able to do so. If they can’t read, it certainly would not be appropriate to require them to write a screening test anyway without consideration of whether their needs could be accommodated.
25What Ms. Stoughton required, and did not request, was more information about the nature of the applicant’s learning disability and the needs for accommodation that it gave rise to. In my view, the applicant had provided sufficient information to Ms. Stoughton to identify his disability and his need for accommodation. To put the obligation on the person seeking accommodation to anticipate how much information an employer needs, particularly when the person has a learning disability, in my view puts the responsibility onto the wrong shoulders.
26The employer and its representatives should be aware of the duty to accommodate, including the duty to accommodate at all stages of the hiring process. If the employer requires more information about the nature of the disability or the person’s needs as part of the accommodation process, then the employer can identify this and request the information. In my view, it would be unfair to require a person such as the applicant to come to an initial discussion about a request for accommodation, which is already a fraught and stressful situation for the person to be in, and be armed and ready to volunteer detailed information about the nature of their disability and their specific needs, or be held to be disentitled to accommodation. In my view, it is enough for the applicant to have identified that he had a learning disability and that he had needs related to the writing of the screening test. If the board required more, then it could and should have asked. But it didn’t.
27Instead, Ms. Stoughton suggested that the applicant attempt to write the test and see how he did, and if he didn’t pass then the board would consider what the next steps would be. In my view, this was not an appropriate response. Much was made at the hearing of the fact that the applicant and Mr. Yarrow didn’t know precisely what was entailed in the screening test. However, the letter itself states that it was a “literacy and numeracy screening test which consists of reading and math skills”, which are precisely the areas where the applicant has difficulty without accommodation. This description alone, in my view, provided a sufficient basis for the applicant to appreciate that he required accommodation to write the test. In such circumstances, where a person requires accommodation, to require that person to attempt to do something they cannot do without accommodation is not appropriate. Once again, I return to Ms. Stoughton’s own evidence that she would not have suggested that the applicant write the test if she had seen the letter from his doctor that was tendered into evidence. This to me confirms that, even on her own evidence, Ms. Stoughton understands that it would not have been appropriate to require the applicant to write the test without accommodation.
28In my view, and I find that, on the basis of the initial discussion between the applicant and Ms. Stoughton, there was a breach of the procedural component of the duty to accommodate by the respondent board. If the board required substantiation of the nature of the applicant’s disability, this should have been requested – but wasn’t. If the board wasn’t sufficiently clear about the applicant’s needs, further information should have been requested – but wasn’t. No advice was sought from those within the board who might have had a greater understanding and appreciation of the board’s responsibilities in response to a request for accommodation. And an inappropriate suggestion was made for the applicant simply to write the test without accommodation to see how he made out. I find this conduct by the board to constitute discrimination in respect of employment against the applicant because of his disability in violation of sections 5(1) and 9 of the Code.
29I appreciate that accommodation is often a process and that the process needs to be looked at as a whole, rather than piece by piece. I am well aware that following the initial conversation between the applicant and Ms. Stoughton, there were several further conversations about the situation involving various individuals, including a further conversation between Ms. Stoughton and the applicant. However, in my view, there was no process envisioned arising out of the initial call, apart from Ms. Stoughton’s suggestion that the applicant write the test and see how he did, which I have found to be inappropriate given the applicant’s learning disability. As I see it, the transaction was complete at that stage, but for the applicant doing something that he should never have been asked to do. For that reason, I am prepared to base my finding on that discussion in and of itself.
30However, as noted, the tale does not end there. In the second call between Ms. Stoughton and the applicant, I find that there was a repetition of the gist of the earlier conversation, but there was an added element. On this occasion, the applicant offered to provide medical documentation to support his request for accommodation. As I have already found above, he should not have been required to initiate this offer – but he did. And given that he made the offer, Ms. Stoughton told him that the material would be reviewed and considered. In my view, this offer and acceptance revived an accommodation process that had been moribund following the first call. However, the applicant never followed through on his offer and failed to provide the medical documentation to support his request. And then he withdrew from the competition.
31In my view, these later events do not detract from the violation of the applicant’s rights that ensued from his first phone call with Ms. Stoughton. They do, however, indicate that the accommodation process had been revived and not completed at the time the applicant decided to withdraw his application. I appreciate that the applicant may have reached this conclusion out of frustration. But it is not at all uncommon for all parties to experience frustration during the course of the accommodation process, and that is not a good or sufficient reason to back away from the process without consequence.
32Ms. Stoughton had agreed to receive the applicant’s medical documentation and to review and consider it in the context of the applicant’s accommodation request. Had the applicant provided the kind of letter from his doctor that was tendered into evidence, Ms. Stoughton’s evidence is that she would not have required him to write the test. Or receiving the medical documentation may have caused her to review the matter with the board’s Employment Equity Office or Human Rights Office and to explore alternatives and options for providing accommodation. We’ll never know, because the medical documentation wasn’t provided. And that, I find, is the applicant’s responsibility, and not the board’s.
33The impact of this is that I find that the applicant withdrew himself from the competition after the accommodation process had been revived and was not completed. This is different from the situation in Qureshi v. G4S Security Services, 2009 HRTO 409 (“Qureshi”), where the applicant’s withdrawal followed a clear indication that his needs would not be accommodated. I also note that the applicant in Qureshi was in the very final stages of the hiring process when he withdrew, whereas the applicant was in the very preliminary stages and was one of 1800 individuals competing for 60 positions.
34In these circumstances, I find that the applicant’s withdrawal from the competition was his responsibility and that the respondents should not bear the burden of that decision. Accordingly, I find that the applicant is not entitled to compensation for loss of his opportunity to compete for the part-time position.
35The applicant is, however, entitled to compensation for injury to his dignity, feelings and self-respect. The applicant seeks an award of $20,000. The applicant relies on ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 91 O.R.(3d) 649 (Div.Ct.), where a combined award of $45,000 of non-pecuniary damages was upheld. In my view, this case is readily distinguishable on its facts, given the evidence cited by the court to uphold an award of that magnitude.
36Two other cases that were cited to me were Qureshi, where an award of $5,000 was made, and Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, where an award of $10,000 was made.
37As in all cases, the specific assessment of non-pecuniary compensation depends greatly upon the facts of the individual case. Here, the applicant testified that he felt humiliated, disgusted and demoralized by how he was treated, and was left feeling worthless. He also testified that he feels fearful now about disclosing his disability to prospective employers in the event that accommodation will be denied, although I note from his evidence that he has disclosed his disability to subsequent employers and his needs have been accommodated.
38Mr. Yarrow’s evidence is that the applicant went from a very high level of excitement about his application getting accepted into the process at the respondent board to agitation and anger. He testified that institutions have been helpful to the applicant as a person with a learning disability and the applicant believes in institutions, so that when they don’t fulfil his beliefs, it is very painful for him. Mr. Yarrow stated that he hasn’t seen the applicant in many years and said he looks a little worn down and was young and much more vibrant the last time Mr. Yarrow saw him, although it had been almost 6 years since the events at issue by the time of the hearing and some of this may simply be attributable to the aging process.
39Having considered the evidence and all of the relevant factors, I find that an award of $7,500 is appropriate as compensation for injury to dignity, feelings and self-respect. I decline to award pre-judgment interest on this amount as it is being assessed as at the date of hearing.
40This takes me to the issue of remedies to ensure future compliance with the Code. No such specific remedies were requested by the applicant in the pre-hearing material filed with the Tribunal, although I note that on his Application form he requested “systemic change”. In any event, I have discretion pursuant to s. 45.2(2)(b) to order such remedies even if no such order was requested. On this basis, I indicated to applicant’s counsel that I was at least prepared to hear and consider their ideas for possible future compliance remedies.
41The first was that the respondent board engage a consultant or lawyer to train all Human Resources personnel regarding accommodation, including procedures to address requests for accommodation. The material filed by the applicant includes contact with the Manager of the respondent board’s Employment Equity Office following the publication of the article in a Toronto newspaper in March 2006. This material includes email correspondence from Mr. Yarrow asking whether the newspaper article generated positive changes at the board, to which the Manager replied that he had shared with “senior staff” a document that his office had prepared together with the Board’s Human Rights Office to highlight the responsibility to accommodate. This, I understand, is the board’s guidelines on accommodation I have referenced above.
42In my view, it makes little sense to require the respondent board, which is one of the largest in Canada, to retain an external consultant or lawyer to conduct training when it has considerable internal resources that are well-equipped to address human rights and equity issues. Nor do I believe that the circumstances of this case call for the kind of broad-based training that the applicant suggests. I also don’t believe that targeting Human Resources personnel is the right focus, since this case involved a line manager in the Facilities Department who was responsible for the hiring process.
43I do, however, believe that some communication would be in order. Given that this case originated out of the board’s Facilities Department, it would be appropriate for the board’s Employment Equity Office and/or Human Rights Office to distribute to all managers in that department with hiring power and to all Employee Services staff with responsibility for that department a copy of the guidelines on accommodation developed by the respondent board, and a reminder that the duty to accommodate applies at all stages of the hiring process, and I so order.
44The applicant also suggested that all letters to applicants make it known that accommodation in the hiring process is available. I will acknowledge that I am more than a little concerned by the language of the form letter sent out to applicants in November 2005, which states that the date set for the screening test is “the only date and time available” and that “no exceptions will be made”. I can well imagine that this language was inserted to address all manner of excuses and reasons for not being able to attend at the scheduled date and time that have nothing to do with Code-related needs or the duty to accommodate. However, I am concerned with how categorical this message is without allowing for the possibility of needs for accommodation. In my view, some information about the board’s willingness to provide accommodation for Code-related needs would be appropriate to include in such letters, and I so order. As this case arose in the context of the board’s Facilities Department, I have limited the application of my order to that department. As I indicate below, I will remain seized for a period of six months to address any issues regarding the implementation of this aspect of my order. If the respondent board has any questions regarding the specific implementation of this aspect of my order, it may write to the Registrar-Transition to raise these questions, and the matter will be brought to my attention.
45Finally, the applicant suggested that a written apology be provided to him. This was not part of the remedy requested by the applicant, and represents more of a restitutionary remedy under s. 45.2(1).2 as opposed to a future compliance remedy under s. 45.2(1).3. While I have the power to order a future compliance remedy even if no such remedy is requested, I have no similar power with regard to restitutionary remedies. In any event, I do not believe that ordering an apology would be helpful or appropriate in this case, and I decline to do so. The applicant and all parties will have a written decision setting out the findings that I made pursuant to this legal process, and that, in my view, is a proper and sufficient outcome.
46Finally, with regard to the potential liability of the personal respondents, I have noted elsewhere that I have discretion whether to impose liability on a personal respondent where an organizational respondent exists that is fully capable of responding to the remedy ordered. See Williams v. Children’s Aid Society of Toronto, 2011 HRTO 265 at paras. 178 to 182. As in the Williams case, I find no compelling reason to support imposing personal liability on Ms. Stoughton, even though it was her actions which I have found to be responsible for the breach of the Code by the respondent board. I make this finding because the respondent board is fully capable of providing the remedy I have ordered, and I see no purpose served in also imposing joint liability personally on Ms. Stoughton, nor do I see how this would advance the remedial purposes of the Code. There is no basis in the evidence to support any finding of liability as against Ms. Filice.
ORDER
47For all of these reasons, I make the following order:
a) The respondent board shall pay to the applicant the sum of $7,500.00 as compensation for injury to dignity, feelings and self-respect;
b) Post-judgment interest on the amount in sub-paragraph a shall accrue at a rate of 3.0% per year commencing 30 days from the date of this Decision if said amount is not paid by then and for so long as said amount remains unpaid;
c) Within 30 days of the date of this Decision, the respondent board, through its Employment Equity Office and/or Human Rights Office, shall distribute to all managers in the Facilities Department with hiring power, and to all Employee Services staff with responsibility for that department, a copy of the guidelines on accommodation developed by the respondent board and a reminder that the duty to accommodate applies at all stages of the hiring process;
d) From and after 30 days from the date of this Decision, information about the board’s willingness to provide accommodation for Human Rights Code-related needs shall be included in letters to job applicants for positions in the board’s Facilities Department; and
e) I shall remain seized for a period of six months regarding the implementation of sub-paragraph d above.
Dated at Toronto, this 24th day of February, 2011.
”signed by”_________________
Mark Hart
Vice-chair