HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Randolph Boyce
Applicant
-and-
Toronto Community Housing Corporation
Respondent
decision on remedy
Adjudicator: Brian Cook
Indexed As: Boyce v. Toronto Community Housing Corporation
APPEARANCES
Randolph Boyce, Applicant ) Jo-Ann Seamon, Counsel
Toronto Community Housing ) Ian Faulkner, Representative
Corporation, Respondent )
1In the Decision on the Merits, 2010 HRTO 520, the Tribunal found that the respondent had failed to meet its duty to accommodate the applicant. The hearing was reconvened on December 7, 2010, to hear evidence and submissions regarding the appropriate remedy.
2The applicant submits that he is entitled to compensation for lost wages and benefits for the period from November 15, 2005 to August 26, 2008. He also claims compensation of $15,000 in general damages and submits that the respondent should issue a written policy regarding accommodation requests made by its employees.
3The respondent submits that the applicant is entitled to no damages or very limited damages. The respondent argues that the evidence surrounding events that gave rise to the finding that the respondent had failed to accommodate the applicant shows that the applicant is entitled to only limited damages. The respondent argues that to the extent that there was any infringement of the applicant’s Code-protected rights, the situation was not static and that the applicant’s physical condition improved so that he could have done the modified work that the respondent offered.
Decision
4For the reasons that follow, I find that the applicant is entitled to limited financial compensation for the respondent’s failure to properly consider the applicant’s request that he be allowed to do the Parking Enforcement Administrator job at a different location and the respondent’s failure to properly investigate accommodation measures that would allow the applicant to do the Parking Enforcement Administrator job at the Bloor Street location.
5The applicant is entitled to only limited compensation because the medical evidence provided by the applicant shows that for the period after November 30, 2005, he required accommodation to allow him to do the Parking Administrator job only to March, 2006. The applicant’s entitlement to financial compensation for injury to dignity, feelings and self-respect is also limited because only some of the alleged injury to dignity, feelings and self-respect relates to the infringement of the applicant’s Code-protected rights.
Background
6The applicant suffered a work-related knee injury on March 11, 2005 when he was working as a Community Patrol Officer. He was granted full loss of earnings (“LOE”) benefits by the Workplace Safety and Insurance Board (“WSIB”) from the date of the injury to November 15, 2005. He was in receipt of long-term disability (“LTD”) benefits until November 7, 2007. The Canada Pension Plan has granted the applicant a disability pension dating from August 6, 2006.
7In June 2005, the respondent offered the applicant alternate work as a Parking Enforcement Administrator. As noted in the Decision on the Merits, this was a temporary job, created to deal with a backlog of parking tickets that had to be processed. As discussed in the Decision on the Merits (at paragraphs 16 and 17):
The Parking Enforcement Administrator job was available at 325 Bloor Street East, at the corner of Bloor and Sherbourne in downtown Toronto. In June 2005, the applicant was living in Scarborough. The applicant could have traveled to 325 Bloor Street East by car or public transit. The corporate respondent rents space at 325 Bloor Street East but it owns a housing complex nearby on Bleeker Street. Employees generally park at the Bleeker Street site and walk to 325 Bloor Street East, a distance of approximately 500 meters. There was an underground parking lot at 325 Bloor Street East but, as discussed further below, it has never been determined if the applicant could have used the underground parking lot.
The applicant advised that although the job itself was physically suitable, he would have difficulty getting to work and he argued that the job was not suitable on that basis. The applicant also asked that he be allowed to do the job in a different location that would not involve as much driving and that would not require extensive walking to get to the workplace. That request was refused by the respondents.
8At paragraph 99, I concluded:
I find that the respondents failed to properly consider the applicant’s request that he be allowed to do the Parking Administrator job at a different location and failed to properly investigate accommodations that would have allowed the applicant to do the Parking Administrator job at the Bloor Street location. For these reasons, I find that the respondents failed to meet their duty to accommodate the applicant.
9The WSIB initially determined that the applicant’s refusal to accept the Parking Administrator job at the Bloor Street location represented a refusal to accept suitable employment that was available at no loss of earnings and suspended the applicant’s LOE benefits on that basis. The applicant objected to that decision and a WSIB Appeals Resolution Officer found that the Parking Administrator job at the Bloor Street location was not suitable employment in June 2005 because the applicant’s work-related knee injury meant that he could not safely get to work. The Appeals Resolution Officer granted the applicant full LOE benefits on that basis to November 15, 2005.
10As discussed in the Decision on the Merits, from the perspective of the Code, the respondent’s failure to accommodate the applicant in June 2005 had two parts. First, the applicant had asked for accommodation to allow him to do the job at a different location. Second, the applicant’s concerns about getting to the Bloor Street location were not adequately addressed.
11At the hearing on the merits, the respondents argued that an accommodation to allow the applicant to do the Parking Enforcement Administrator job at another location could result in undue hardship. This argument is dealt with at paragraphs 89 to 93 of the Decision on the Merits, and at paragraph 93, I concluded:
I was not presented with any evidence to show that the job could not be done at one of the other locations in a manner that would be sufficiently secure as to satisfy the legislated protection of privacy concerns, particularly as the work in question was only a temporary work assignment.
12However, at paragraph 94, I stated:
This is not to say that the only appropriate accommodation in this case would have been to allow the applicant to do the job at another location. An employer is not required to simply acquiesce to an accommodation request and is entitled to develop solutions that result in accommodation that better fits with the employer’s business requirements. In this case, another accommodation that was discussed involved resolving the parking issue to allow the applicant to do the Parking Administrator job or the dispatch job at the Bloor Street location. The applicant understood that he could only park at the Bleeker Street location and walk to the Bloor Street location, a distance of approximately 500 yards, involving stair climbing as well.
13At the remedy hearing on December 7, 2010, the respondent emphasized that even if the applicant could only get to the Bloor Street location by parking at the respondent’s Bleeker Street location, and even if in November 2005 his knee injury meant that he could not safely walk the 500 yards from Bleeker Street to the Bloor Street location, there is a question of how long that restriction was present. There is also a question of what hours the applicant could have worked, assuming that he had been accommodated.
14Another factor relevant to the situation in November 2005 and subsequently is that the applicant’s application for long-term disability benefits was approved by the respondent’s disability insurer. The application was approved on November 30, 2005, and made retroactive to September 9, 2005. As a result, the applicant began to receive LTD benefits which continued to September 9, 2007.
15At the hearing on December 7, 2010, the parties agreed that, for the period that the applicant was on LTD benefits, there was no discussion between the parties about a return to work, and no discussion about accommodation.
Remedies
16Section 45.2(1) sets out the Tribunal’s authority to make an order if it determines that a person’s rights Code-protected have been infringed:
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.
17A finding that a person’s Code-protected rights have been infringed can give rise to different types of financial compensation. In this case, I have determined that the applicant is entitled to compensation for the financial impact of the infringement and compensation for injury to dignity, feelings and self-respect.
18In assessing the financial impact of the infringement, it is necessary to consider the actual circumstances of the period for which the applicant claims compensation. In assessing the appropriate compensation for injury to dignity, feelings and self-respect, there are two main considerations: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880.
Compensation for the Financial Effects
19For the period from November 15, 2005 to September 9, 2007, there are two accommodation issues. The first relates to the applicant’s request for accommodation so that he could do the Parking Enforcement Administrator job at a different location. In the Decision on the Merits, I found that the respondent failed to consider the applicant’s accommodation request that he be allowed to do the job at a different location. However, I found that the effects of this breach were limited because doing the job at a different location was not the only appropriate accommodation.
20The other accommodation issue involved resolving concerns around parking that would allow the applicant to do the Parking Administrator job at the Bloor Street location. There is no dispute parking at the Bleeker Street parking location would have required the applicant to walk about 500 yards on level ground in order to reach the Bloor Street work office. In the Decision on the Merits, I found that the applicant’s knee disability meant that he could not walk that distance in November 2005 and that the respondent failed to properly investigate accommodation in regard to parking at the Bloor Street location that may allowed the applicant to do the job at the Bloor Street location.
21The medical evidence submitted by the applicant indicates that his knee condition continued to improve after November 2005. In the time following the injury, the applicant was treated by Dr. Peck, his family doctor, and Dr. Fung, a chiropractor. A note dated November 2005 from Dr. Peck indicates that the applicant could return to work 4-5 hours a day, three days a week, doing light duties, with a “work station close to home” beginning November 18, 2005. Dr. Peck provided a Functional Abilities Form dated December 1, 2005, that indicated that the applicant could walk a “short distance only” but did not otherwise specify the applicant’s walking restrictions. The Form indicated that the applicant could tolerate a “short” flight of stairs.
22A treatment note from Dr. Fung dated December 8, 2005, indicates that the applicant had pain when walking “when slippery – unsteady”. On December 13, 2005, Dr. Fung indicated that the applicant should be able to increase his walking tolerance. A note dated January 7, 2006 states: “Exercised well over holidays, lots of walking”.
23A noted dated January 12, 2006, indicates that the applicant was experiencing some swelling in his knee after walking. A knee brace was prescribed. On February 18, 2006, Dr. Fung indicated that there was “popping” in the knee but that it was stable with a resulting increased confidence while walking.
24On March 4, 2006, Dr. Fung indicated that the applicant was walking more with a tolerance of over 30 minutes.
25The medical records thus indicate that, while the applicant had continuing knee symptoms, his walking tolerance gradually increased. I conclude that at some point, the applicant no longer required accommodation to allow him to do the Parking Enforcement Administrator job as his knee disability did not preclude him from parking at the Bleeker Street location and walking to the Bloor street location.
26The available evidence does not give a precise answer to the question of when the accommodation was no longer required. Based on the medical evidence, by January 7, 2006, the applicant was doing “lots of walking”. He subsequently complained of swelling with walking but, by February 18, 2006, the knee was stable and the applicant had increased walking confidence. By March 4, 2006, he had a walking tolerance of 30 minutes.
27Allowing for a slow pace and some opportunity to rest, the applicant should have been able to walk the approximately 500 yards from the Bleeker Street location to the Bloor Street location in under 30 minutes.
28Parking at the Bleeker Street location required climbing a flight of about 20 stairs. There is no notation about the applicant’s ability to climb stairs in the medical reporting subsequent to the Functional Abilities Form that Dr. Peck completed in November 2005. At that time, Dr. Peck indicated that the applicant could tolerate a “short” flight of stairs. It is reasonable to infer from the medical evidence that the applicant’s stair climbing tolerance also gradually increased as the knee became increasingly stable.
29The applicant did not contact the respondent to report the improvement in his condition subsequent to November 15, 2005. He instead remained off work on long-term disability benefits.
30In my view, the evidence establishes the applicant likely could have tolerated the walking and stair climbing that was involved in getting from the Bleeker Street location to the Bloor Street location by March 4, 2006 when his walking tolerance had increased to 30 minutes and the stability of his knee had also increased significantly. I conclude that at that point, the applicant no longer required any additional accommodation to allow him to do the Parking Administrator job.
31I conclude that the applicant is entitled to compensation equivalent to the wages and benefits he would have earned if he had worked at the Parking Administrator job for the period from November 21, 2005 to March 4, 2006. The period of compensation starts on November 21, 2005, because Dr. Peck indicated that the applicant could return to work on November 18, but November 18, 2005, was a Friday, so the applicant would more likely have returned to work on Monday, November 21, 2005.
32Dr. Peck indicated that the applicant required a graduated return to work, starting at 4-5 hours a day, three days a week, or 15 hours a week. Had the applicant been accommodated, he would have returned to work on November 21, 2005, at 15 hours a week and gradually increased his hours. Since that did not in fact happen, there is no direct medical evidence about the hours the applicant would have worked as his hours gradually increased. However, assuming a standard graduated return to work, it is reasonable to conclude that the applicant would have increased his hours by five hours per week so that he would have been working a full shift by the start of week 5, or the week of December 19, 2005.
33Subsequent to March 4, 2006, the applicant remained on long-term disability benefits until September 9, 2007. There was then some renewed discussion about a return to work. The respondent contacted the applicant on a number of occasions advising him that a Dispatcher position was available and asking him to contact the respondent to discuss a return to work. He was also invited to submit medical information if further accommodation was required.
34However, the applicant did not provide medical confirmation that he required further accommodation or otherwise request accommodation except for a request that he be allowed to do various other tasks from home. He did not explain why this was necessary or why he was not prepared to try the dispatch job. He did not respond to repeated invitations to provide further information or attend meetings to discuss accommodation.
35While it appears that there still had been no investigation by either of the parties to clarify that the applicant could park at the Bloor Street location, the respondent was not presented with any accommodation request in respect of the dispatch job. The applicant subsequently advised the employer that he had applied for a disability pension from the Canada Pension Plan and that he anticipated this would be allowed as in fact it was. In these circumstances, the applicant is not entitled to financial compensation for lost earnings for this period.
36The applicant is entitled to compensation equivalent to the wages and benefits he would have earned if he had returned to work with accommodation and followed a graduated return to work with increasing hours, starting a 15 hours a week on November 21, 2005, and increasing his hours by five hours a week after that.
37I will remain seized in the event that the parties are unable to agree as to the exact amount this would represent.
Compensation for injury to dignity, feelings and self-respect
38In regard to the applicant’s claim for compensation for injury to dignity, feelings and self-respect, in Arunachalam v. Best Buy Canada, supra, the Tribunal reviewed the development of the Tribunal’s approach to the assessment of damages (at paragraphs 52-54):
The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
39The considerations discussed in Sanford v. Koop 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
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
40The applicant testified about the impact on him, and especially about the injury to his dignity and self-respect that was caused by the events that transpired after his knee injury and his belief that the respondent unilaterally failed to accommodate his disability. He testified that in particular he suffered a loss of dignity and self-esteem. He experienced significant financial difficulties as a result of the loss of income and this impacted his personal relationships. He felt vulnerable because of his injury and felt that he was not being afforded the respect that he was due as a long-term employee.
41I have no reason to doubt the applicant’s description of the difficulties he faced and the impact on him. However, it is apparent that not all of the difficulties that the applicant experienced can be attributed to the breach of the respondent’s duty to accommodate. The loss of dignity and self-esteem that the applicant experienced relates to the full period after November 2005 to the present. I have found that the applicant is entitled to compensation only in respect of the period from November 2005 to March 4, 2006. As a result, the applicant is not entitled to compensation for the fact that he was unemployed and experiencing financial difficulties for the full period after November 2005.
42The applicant’s role in what happened is also relevant to the consideration of compensation for injury to dignity, feelings and self-respect. In my view, it is relevant that the applicant did not communicate with the respondents in the months following November 2005 to keep the respondents informed of the improvement of his knee.
43In considering all of the factors in this case, I conclude that the applicant is entitled to compensation in the amount of $4,000 for the injury to dignity, feelings and self-respect that arose from the breach of the respondent’s duty to accommodate.
44In the circumstances of this case there is no reason to direct the respondent to review its policy regarding accommodation requests made by its employees.
DECISION
45The applicant is entitled to compensation equivalent to the wages and benefits he would have earned for the period from November 21, 2005 to March 4, 2006, as if he had returned to work with accommodation and followed a graduated return to work with increasing hours, starting a 15 hours a week on November 21, 2005 and increasing his hours by five hours a week after that.
46Pre-judgement interest commencing from November 21, 2005, is awarded on this amount in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
47The applicant is also entitled to compensation for injury to dignity, feelings and self-respect in the amount of $4,000.
48Post-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.
Dated at Toronto, this 28th day of April, 2011.
“Signed by”
Brian Cook
Vice-chair