Dean v. Halpern’s, 2011 HRTO 780

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvonne Dean Applicant

-and-

Halpern’s Limited Respondent

DECISION

Adjudicator: Jay Sengupta Date: April 18, 2011 Citation: 2011 HRTO 780 Indexed as: Dean v. Halpern’s

APPEARANCES

Yvonne Dean, Applicant (Self-represented) Halpern’s Limited, Respondent (David Hadden, Representative)

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges harassment and discrimination in respect of employment on the basis of disability. The respondent denies all allegations of harassment and discrimination and argues that the termination of the applicant’s employment was for reasons unrelated to her disability.

2During the hearing into this Application, I heard from the applicant on her own behalf and from Olga Kulchin, a personal friend of the applicant. The respondent called as witnesses Vindhya Rathore, Vice President of the respondent, and David Hadden, who is referred to in various documents submitted by the respondent as either the respondent’s owner, managing director or President.

3For the reasons that follow, I find the respondent breached the Code when it terminated the applicant’s employment.

THE LAW

4The relevant sections of the Code are set out below:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) 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.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing

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

10(1) In Part I and in this Part,

“disability” means,

(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”)

THE FACTS

5The applicant was employed by the respondent between November 22, 2004 and December 5, 2008. She worked in sales. At the time she was hired, the respondent was under different ownership. In October 2007, Mr. Hadden bought the respondent. Both the applicant and Mr. Hadden agreed that their working relationship was not positive and did not flourish.

6The applicant testified that her title was changed from Sales Manager to Account Manager, something she considered a demotion. She also gave evidence that Mr. Hadden reduced her opportunities to make lucrative sales by telling her not to approach schools with more than 200 students. In particular, she felt he took her off the file of a large potential client, a school board with whom she had spent years developing relationships in the hope of bidding for their business when their contracts with other suppliers came to an end.

7She testified that she felt she was being ignored and not being kept informed about useful information by Mr. Hadden, as he discontinued the practice adopted by the previous owners of having regular management meetings. This led to her feeling isolated, unsettled and worried about the security of her job.

8The applicant’s evidence was that events in the workplace led to her seeking medical attention. In July 2008, her doctor prescribed anti-depressants. This is borne out by the medical records presented by the applicant. She said that she felt she could not take any time off work or disclose the medical difficulties she was having as she felt her employment situation was already precarious and because of the stigma she perceived as being attached to mental health conditions.

9For his part, Mr. Hadden gave evidence that he had concerns about the applicant’s abilities and that he felt she did not have what it took to do the job. He said that he tried to work with her, push her to do better and gave her specific and useful direction because of his own background in sales. However, he felt her attitude was negative and his confidence in her dwindled over the course of the year. He spoke to a lawyer in advance of the events of November and December 2008. From his perspective, this was an underperforming employee who was not showing any improvements despite active coaching.

10He testified that he had been told by Ms. Rathore that the applicant had previously expressed dissatisfaction with the way in which she was being treated. During a trip to Kingston, the applicant had broken down crying and Ms. Rathore said that the applicant told her she would “get Dave for this”, referring to his telling them that he was reassigning a meeting with a customer from the applicant to Ms. Rathore. This evidence was confirmed by Ms. Rathore in her testimony.

11Prior to the applicant’s departure in late November 2008, a Request for Proposal (“RFP”) had come in from the large potential school board client that was the subject of one of the disputes between him and the applicant. Despite the fact that she was no longer the person assigned to this client, the applicant was given the RFP and told to complete the work on the file.

12The applicant testified that she went to see her doctor on November 20, 2008. He told her to take some time away from work and gave her a note to that effect. She presented the doctor’s note to the respondent and requested a Record of Employment (“ROE”). On the same date she consulted a lawyer. She presented notes and letters from both consultations as evidence. The doctor’s note stated that she needed to be off work for at least two or three weeks due to health problems.

13When Mr. Hadden returned from a golf vacation on November 21, he found out that the applicant was off work and made inquiries with respect to the status of the RFP. He then reassigned the work to Ms. Rathore and a number of employees who had to complete the RFP in the week that followed.

14The applicant’s position was that 90 percent of the work for the RFP was complete. Ms. Rathore gave evidence that, in her view, 50 percent of the work had been done before she and a team of people completed it in the last week of November 2008.

15Mr. Hadden stated that he felt that the applicant was taking time off work at that particular time to attempt to undermine his business. He said that the school board proposal was due the first week of December 2008. He believed that the applicant had left the work undone, requiring it to be reassigned to others in the company, in order to harm his chances at winning the bid.

16He testified that the applicant had not disclosed the existence of a disability and that he did not know that she was experiencing health problems. Mr. Hadden maintains that the applicant was simply not performing up to his standards in her sales role. He denies that he removed her from a large sales opportunity to avoid having to pay her a substantial bonus. His reason for transferring her off the file is that he did not have confidence in her ability to do the job

17Instead of receiving a Record of Employment that would allow her to apply for sick benefits, she received a letter from Mr. Hadden telling her that her employment was being terminated immediately for cause and an ROE containing a code that indicated that she had been terminated, rather than one stating she was off work due to sickness. The letter, dated December 5, 2008, stated that “Halpern’s believes that your employment is subject to termination for cause” citing her inability to generate sales and stated that she had “ignored directives from (her) superiors and … neglected certain essential responsibilities”. However, in exchange for a release it offered payment of six weeks salary.

18On receiving the ROE and termination letter, the applicant’s counsel wrote to the respondent through its counsel reiterating her request for time off to deal with her disability related issues.

19The respondent’s counsel replied stating that, despite the clear language in the December 5 letter, the company now took the position that

while it may have done so, your suggestion that Halpern’s terminated Ms. Dean’s employment for cause is not correct. The December 5, 2008 Halpern’s letter indicates that termination is for convenience.

20The applicant testified that she was devastated by these events. Her sister had to lend her a large sum of money to pay off her mortgage as she was having financial difficulties making mortgage and car lease payments. She did not feel like leaving her home, had trouble with every day activities like eating, sleeping and cleaning and lost a significant amount of weight. This evidence was borne out by both her doctor’s records and the testimony of Ms. Kulchin.

21The applicant testified that she applied for and received sick benefits through HRSDC until approximately May 2009, and subsequently received regular unemployment insurance (EI) benefits until December 2009. Around that time she began collecting retirement benefits under the Canada Pension Plan (CPP), benefits for which she applied prior to turning 65 because she felt that she would not be successful in finding another job.

ANALYSIS

Credibility

22Where my resolution of the factual differences relates to a credibility assessment, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

Discrimination on the Basis of Disability

Events Leading to Termination

23The applicant argued that she experienced a hostile and poisoned work environment and was unfairly treated by Mr. Hadden. While that may be true, there is no evidence before me linking the alleged unfair and hostile treatment to a ground under the Code.

24It is undisputed that the working relationship between the applicant and Mr. Hadden was not positive and gradually deteriorating. However, the applicant has adduced no evidence that would suggest a connection between disability and the conduct she points to as harassing and discriminatory. Instead, the evidence from both parties is that the negative working relationship predated both the existence of a disability and the respondent’s awareness of the existence of a disability. In fact, in her Application and the evidence presented at the hearing, the applicant attributes the development of the disability to the alleged harsh and unfair treatment she experienced at work.

25As a result, I find that the applicant has not established a nexus between the treatment experienced in the workplace prior to her departure on sick leave on November 20, 2008 and discrimination under the Code.

Termination of Employment

26It is clear from the evidence of both the applicant and Mr. Hadden that the employment relationship was strained and gradually deteriorating. It is also clear that the applicant herself believed that she was on the verge of losing her job. In fact, the letter from the lawyer she consulted confirms that she told him that “regardless (of) what (she) did (her) employment would be terminated”.

27The evidence of Mr. Hadden was that the applicant was underperforming and he had pointed this out to her in the past. He also stated that it was his view that she left work when she did to undermine his business. He relies on a statement made by the applicant to Ms. Rathore when she was emotional and overwrought over work and sales opportunities being reassigned.

28The request for time off work in November 2008 was supported by documentation from the applicant’s physician. The medical records submitted show that the applicant had been actively seeking and receiving treatment for the conditions underlying her request for a number of months already. As such, there is no credible evidence that the request for time off work was for reasons other than medical ones that are supported by the applicant’s physician, that also support that the applicant was a person with a disability as defined in the Code.

29The argument advanced by the respondent company that the applicant took time off work to undermine the company’s chance to garner a contract is unsupported by anything other than a previous statement allegedly made by the applicant when she was upset and Mr. Hadden’s opinion that the two events were connected. The evidence does not support his conclusion.

30While the applicant’s absence from work may not have been the only reason for the termination decision, the applicant’s absence from work during that particular time was, by Mr. Hadden’s own account, clearly one of the reasons for the termination decision. As the absence was clearly connected to the applicant’s disability, and where the absence was a factor in the decision to terminate the applicant’s employment, I am satisfied the termination constitutes discrimination on the basis of disability and was contrary to the Code.

Remedy

31Having found that the respondent breached the Code, I turn now to question of the appropriate remedy in the circumstances.

32The applicant has framed her request for a remedy of $80,000 in monetary compensation in the following way:

• $25,000 for infringement of her rights;
• $10,000 for pain and suffering;
• $20,000 punitive damages;
• $24,000 to cover reduction in CPP for 20 years; and
• $1,000 for one year of prescription and dental coverage

33The Tribunal’s remedial jurisdiction is based on subsections 45.2(1) and (2) of the Code which read as follows:

(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

34In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed a number of factors to consider when awarding damages, including:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

35In a recent decision, Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at para. 52 the Tribunal summarized the principles on which damages under section 45.2(1) 1 are awarded:

The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination.

36It is well established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. Intention to discriminate is not a factor in determining whether the Code has been breached. It is the result or effect of the alleged discriminatory action that is significant. The actions of the respondent may be relevant in determining the harm done to the applicant and consequently the amount of compensation required to restore an applicant in the position he or she would have been in, but for the discrimination. See Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Osvald v. Videocomm Technologies, 2010 HRTO 770; Hughes v. 1308581 Ontario, 2009 HRTO 341; Torrejon v. 1147335 Ontario, 2010 HRTO 1513 and Nemati v. Woman’s Support Network of York Region, 2010 HRTO 327.

37In the circumstances of this Application, the applicant testified, and I accept, that the impact of receiving documents terminating her from a job she had held for 4 years, instead of documents to assist her in accessing sick benefits from HRSDC, was serious. She had delayed taking time to deal with her illness because of concern for her employment and, being faced with termination once she had finally accepted her physician’s advice to take time away from work to deal with a serious medical condition, led to a lengthy period of recovery that is documented by her physicians.

38Her evidence about experiencing extreme weight loss, feelings of despair and social isolation are bolstered by the medical records from her treating physicians and her friend, Ms. Kulchin, and I accept that she felt extremely vulnerable as she did not believe that she would be able to get another job given her disability and age. This concern led her to believe that she had no option but to apply for early retirement benefits under the Canada Pension Plan. Her evidence is that this has led to a reduction of the amount of retirement benefits she will receive from the plan going into the future.

39I accept the applicant believed that her age and disability made her vulnerable and I accept as credible her testimony that the termination of her employment at a time when she felt vulnerable caused harm to her self esteem and confidence.

40Given the factors outlined outlined, and having considered previous decisions of the Tribunal in cases involving employees who have experienced a loss of employment as a result of discrimination which consider the length of employment among other factors, I find that an award of $15,000.00 in monetary compensation is appropriate in the circumstances of this Application. See Duliunas v. York-Med Systems, 2010 HRTO 1404, Vetricek v. 642518 Canada, 2010 HRTO 757. This award will be subject to pre-judgement interest commencing from the date of the termination and post-judgement interest if unpaid after 30 days from the date of this Decision.

41In light of my finding that the applicant’s employment was not secure, given that the evidence of both the applicant and Mr. Hadden that the applicant’s employment was likely to end regardless of her disability, in my view, there is insufficient basis for an award for lost wages and benefits. The evidence is that she was paid monies in lieu of notice in accordance with her minimum entitlements under the Employment Standards Act, 2000.

42Although the applicant has not sought a remedy to ensure future compliance with the Code, it is my view that the respondent would benefit from training regarding its responsibilities and obligations under the Code. The respondent is ordered ensure that all managers and any others within the organization that perform human resource functions complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr 101) within 30 days of this Decision. The respondent shall confirm to the applicant, in writing, that this aspect of the Order has been complied with, within 45 days of this Decision.

ORDER

43Having found that the respondent violated sections 5 and 9 of the Code, the Tribunal makes the following order:

(i) The respondent, Halpern’s Limited, shall pay the applicant $ 15,000.00 as monetary compensation for the injury to her dignity, feelings and self-respect. Pre-judgement interest commencing from the date of termination is awarded on this amount in accordance with the provisions of the Courts of Justice Act. Post-judgement interest shall be payable on any amounts not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act;

(ii) The respondent, Halpern’s Limited, shall ensure that all managers and any others within the organization that perform human resource functions complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of this Decision; and

(iii) Within 45 days from the date of this Decision the respondent shall confirm in writing to the applicant that the training set out in paragraph ii (above) is completed.