Human Rights Tribunal of Ontario
B E T W E E N:
Nicole Machado Applicant
-and-
Terrace Ford Lincoln Sales Inc. Respondent
DECISION
Adjudicator: Ailsa Jane Wiggins Date: March 17, 2011 Citation: 2011 HRTO 544 Indexed as: Machado v. Terrace Ford Lincoln Sales
APPEARANCES
Nicole Macado, Applicant ) Self-represented
Terrace Ford Lincoln Sales Inc., Respondent ) James Higginson, Counsel
INTRODUCTION
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 human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on October 17, 2005 and abandoned upon filing this Application with the Tribunal.
2The applicant alleges that she was discriminated against by the respondent, her employer, on the basis of disability. The applicant has chronic ulcerative colitis.
3The respondent maintained that it was not aware of the applicant’s disability until it advised her that she was being removed from her position as business manager due to her tardiness and absences. The respondent offered her the option of a position on the sales floor. When the applicant did not reply to the offer of an alternate position the respondent terminated her employment.
THE LAW
4Section 5(1) of the Code provides:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
5Disability is defined at section 10(1) 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.
SUMMARY OF ALLEGATIONS AND EVIDENCE
6At the hearing I heard testimony from the applicant and David McDermott, the respondent’s sales manager.
7The applicant commenced employment with the respondent on April 11, 2005. When she was hired her medical condition was in remission and she was feeling well. She did not advise the respondent that she had a disability.
8The applicant testified that ulcerative colitis can go into remission and then flare up from time to time.
9Sometimes the applicant would be late for work due to her condition. She testified that she did not advise the respondent of the reason for her tardiness because she was embarrassed about her condition.
10The applicant testified that she can deal with mild flare ups but in August of 2005 she had a more serious flare up. She took some time off work but still did not tell the respondent about