HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Hinze
Applicant
-and-
Great Blue Heron Charity Casino
Respondent
DECISION
Adjudicator: David Shannon
Indexed as: Hinze v. Great Blue Heron Casino
AppearanceS BY
Robert Hinze, Applicant ) Ian A. Wilson, Counsel
Great Blue Heron Charity Casino, Respondent ) Sarah C. Crossley, Counsel
[1] This 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 30, 2009. The underlying Complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 23, 2008.
[2] The Application alleges that the applicant experienced discrimination because of disability when his employment was terminated by the respondent.
ISSUES FOR DETERMINATION
3Based on the evidence I must determine the following:
Was the applicant disabled within the meaning of the Code at the time of the alleged breach?
If so, was he accommodated up to the point of undue financial hardship?
If he did not have a disability within the meaning of the Code was the applicant nonetheless terminated from his employment due to a perceived disability?
FACTS AND BACKGROUND
4The applicant commenced employment with the respondent’s Facility Maintenance department on April 25, 2001. He was promoted twice within the Facility Maintenance department during the course of his employment with the respondent. The applicant was promoted to Housekeeping Supervisor in September of 2004 when he assumed responsibility for the direct supervision and training of the respondent’s housekeeping staff as well as the day-to-day housekeeping operations. In this position, the applicant reported to the Housekeeping Manager.
5During the course of his employment, the applicant occasionally notified the respondent that he experienced an illness that affected his ability to carry out his duties. This led to the respondent providing the applicant with numerous leaves of absence, modifying his work hours, and allowing him to design a schedule that was flexible to his medical needs. In February 2005, the applicant advised the respondent that had an illness. He submitted a note from his doctor advising that he would require two weeks off work following a biopsy performed on his right leg. As a result, the respondent granted him an initial medical leave of absence for three weeks. When the applicant notified the respondent that his medical condition prevented him from returning to work indefinitely, the respondent extended his leave of absence.
6In addition to extending the applicant’s medical leave of absence, the respondent approved the applicant for $1,000.00 from its Crisis Relief Fund. The applicant’s illness continued to prevent him from working, and he went on Long Term Disability in April 2005. He remained on Long Term Disability until March 14, 2006.
7Prior to the applicant’s return to work, the respondent’s WSIB/Workplace Specialist met with him to discuss his reintegration into the workplace. The employer arranged for him to return to work on a modified schedule of three days per week, four hours per shift and that his duties would not exceed the restrictions outlined in his doctor’s medical note. In April 2006, the applicant’s supervisor again met with the applicant to discuss his accommodation. His hours were increased to five hours per shift, three days per week, which was consistent with the advice of the applicant’s physician.
8In August of 2006, the respondent was advised by its insurance carrier that the applicant’s doctor indicated he was fit to return to work on a full-time basis. The applicant resumed his original full-time shift. Nearly a year after returning to his full-time duties, the applicant was asked whether he would be interested in assuming the role of Training Supervisor. The applicant accepted this new role on June 1, 2007. The applicant never indicated to his employer that his leg was causing him problems or that his schedule was not accommodating his medical needs, although during the hearing into this matter he claimed to be slowed down with residual pain and edema, a swelling due to fluid retention. In his testimony the applicant noted that he failed to request accommodation for his disability because did not want to be singled out as asking for special privileges, and he was able to informally take it upon himself to trade shifts so that his sore leg could avoid causing him pain.
Termination
9The applicant’s employment was terminated when, on or about November 25, 2007, the respondent discovered that the applicant had been loaning money to the respondent’s employees. This was contrary to numerous policies and procedures of the respondent. The applicant had loaned collectively over $2,000.00 to three staff on his housekeeping team. Also, he had used the respondent’s computer to draw up the letters confirming the loans on the respondent’s letterhead as well as to record repayment of the loans. He also used the respondent’s computer equipment to draft and print out the documentation relating to these loans. Each letter sets out the amount loaned, the rate of interest and in some cases the financial penalty of not repaying the loan or the interest.
10In his role as a supervisor, the applicant was advised of the respondent’s policies and procedures respecting: Conflicts of Interest; Conduct and Behaviour; Electronic Resources; Use of Physical Resources; and the Employee Assistance Program among other things. Also, a message would pop-up on all users computer screens upon logging in, stating, among other things, that “any and all uses of this system is governed by the policies and procedures of the Great Blue Heron Charity Casino as amended. Unauthorized or improper use of this system may result in disciplinary action up to and including termination”.
11According to the respondent, by using work equipment for purposes other than the respondent’s use and collecting money for an unauthorized purpose, the applicant’s conduct constituted a direct breach of the respondent’s policy on Conduct and Behaviour. The use of electronic resources for personal use, personal gain or solicitation of any non-employer business or activities was strictly prohibited by the respondent’s policy on Electronic Resources and Use of Physical Resources. By engaging in financial dealings unrelated to the respondent with employees under his supervision, the applicant also placed himself in a direct conflict of interest as defined by the Conflicts of Interest Policy.
12Upon learning that the applicant had been making loans to subordinate employees and using the respondent’s office equipment to maintain records of the loans, management of the respondent met with the applicant. He admitted he had loaned the employees money and confirmed he had used the respondent’s computer to draw up the loan letters and track the loan payments. A respondent representative explained that as supervisor of the employees to whom he had loaned the money his actions would result in termination. The applicant was handed a letter of termination on November 26, 2007 confirming this meeting and that he had been terminated for cause.
13The applicant asserts that he was terminated from his employment with the respondent in part because he had a disability. It is not disputed that he had in the past had a disability. This included temporary illness and cancer. He had ongoing edema and occasional leg pain. The respondent denies that disability was a factor. It asserts that the applicant did not have a disability at the time he was dismissed, and it did not perceive him as disabled. Furthermore, it believes that it arrives with clean hands because when he did have a disability he was fully accommodated in the workplace. I must therefore first determine whether the applicant was disabled within the meaning of the Code.
THE LAW
Definition of Disability
14Discrimination on the basis of disability is prohibited in employment at section 5 of the Code. Disability 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.
The definition of disability extends to the actual or perceived possibility that an individual may develop a disability in the future. The emphasis is on obstacles to full participation in society rather than on the conditions or state of the individual. Ailments such as a cold, or personal characteristics such as eye colour, are excluded from the scope of disability. See: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) 2000 SCC 27 (hereafter “City of Montreal”). Although the definition of disability may vary, it should nonetheless be interpreted in a broad manner, consistent with the Canadian Charter of Rights and Freedoms as well as other provincial human rights tribunals: see City of Montreal. The fact that a physical condition is of a temporary nature does not exclude it from coverage under the Code: Mississauga (City) v. A.T.U. Local 1572 (2005), L.A.C. (4th) 84 (Ont. Arb. Bd.).
Three Models of Disability
15In order to accurately define disability within the meaning of the Code and determine whether the applicant did indeed have a disability at the time he was terminated from his employment, it is necessary to place it in the context of three dominant models of disability. These so-called models have historically impacted on how persons with a disability are perceived in society, and as a result whether they have experienced discrimination based on their disability.
Medical Model
16Historically, disabled persons have had many daily activities controlled, and consequently a loss of independence through institutionalization, or a misguided sense of benevolent care. Disability rights commentators refer to this as the medical model. The decision makers within this model are usually physicians who promise to cure or change the symptomatic manifestations of disability. As a result, disabled persons are defined by their biomedical condition to the exclusion of their psychosocial selves. From this perspective, remedial medical intervention to restore the disabled individual to a “normal” condition is considered not only proper, but also the only credible option to pursue. Treatment of that condition has been considered a benevolent rationale for the containment of the disability community, but it resulted in profound disempowerment.
Economic Model
17The economic model of disability views disability in the context of labour and economic relations. This model values a person based on their productivity in the labour market and capacity to work. Under the economic model, everyone is held to the mainstream standard of a robust level of productivity. Only those persons who fit the image or prototype of being “seriously disabled” are exempt from the labour market expectations of a certain level of productivity and excused from participation in the workforce and thus entitled to be dependent upon social support.
18In contrast, persons who do not fit this stereotypical mould of a tragically disabled person are cast in the image of a malingerer and not worthy of the social assistance or deserving community pity. In addition, the economic model looks at disability through a cost/benefit lens. It looks at alleged “deficiencies” and assess whether it is economically efficient to make the adjustments necessary to address the disability needs. Accommodation is only accorded when the costs do not exceed the benefit to society.
Social or Independent Living Model
19The social model conceptualizes “disability” as the outcome of socially constructed barriers and discriminatory customs and norms and seeks to eliminate those barriers and prejudicial attitudes. The social model asserts what is truly the disadvantage is not the physical or mental condition, but rather society’s response, which characterizes the condition as an impairment, and society’s failure to accommodate difference. Under the social model, disabled people are not intrinsically disadvantaged because of their conditions, but rather they experience discrimination in the way we organize society.
20The Independent Living (IL) Movement has been described as a philosophy that changes the way society views people with disabilities and the way people with disabilities view themselves. It is worldwide in its scope, and founded on the right of people with disabilities to:
live with dignity in their chosen community;
participate in all aspects of their life; and
control and make decisions about their own lives.
The Independent Living (IL) Movement promotes legislation and public policy where rights and responsibilities are shared between citizens and the state, focusing on building a country based on the principles of inclusion, equity, affordability and justice. While the aim of Independent Living is not to make a person “normal” in a physical or mental sense, the movement emphasizes the value of people with disabilities to have ordinary life experiences by providing community-based, consumer-controlled services, supports, resources and skills training to enable people with disabilities to live an “ordinary life” in the community. Proponents of this multi-facetted approach to greater inclusion and participation of persons with a disability claim that it has created benefits at all economic, social, political and cultural levels.
21The social model understanding of “disability” has been articulated in the Preamble to the Convention on the Rights of Persons with Disabilities, which has recently been ratified by Canada. This is believed by many to have created a “paradigm shift”. That is, the medical model of disability, where disability was defined by an individuated bio-medical subordinated self, has been replaced with a view that disability is a personal affect deserving of human rights protection. Enshrining the social or independent living model is the culmination of a conceptual evolution of a disabled person’s place in society and hence their right to be free from discrimination.
22In City of Montreal, supra, the Supreme Court of Canada dealt with three cases arising under Quebec’s human rights statute and adopted the social model of disability. In each case an employer had either refused to hire a prospective employee or dismissed an existing employee on the basis of a physical condition which did not result in any functional limitation on the part of the employee or prospective employee but rather because of a concern that a latent condition might arise in the future. At paragraphs 76 to 77 the court stated:
… "handicap" must not be confined within a narrow definition that leaves no room for flexibility. Instead of creating an exhaustive definition of this concept, it seems more appropriate to propose a series of guidelines that will facilitate interpretation and, at the same time, allow courts to develop the notion of handicap consistently with various biomedical, social or technological factors. …
Generally, these guidelines should be consistent with the socio-political model proposed by J. E. Bickenbach in Physical Disability and Social Policy (1993). This is not to say that the biomedical basis of "handicap" should be ignored, but rather to point out that, for the purposes of the Charter, we must go beyond this single criterion. Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a "handicap". In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.
The social model of disability was also adopted in Granovsky v. Canada (Minister of Employment and Immigration, 2000 SCC 28, at para. 34:
It is therefore useful to keep distinct the component of disability that may be said to be located in an individual, namely the aspects of physical or mental impairment, and functional limitation, and on the other hand the other component, namely, the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks. This manner of differentiating among the different aspects of disabilities is elaborated upon in the medical context by the World Health Organization in the International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease (1980); restated in: United Nations Decade of Disabled Persons, 1983-1992: World Programme of Action concerning Disabled Persons (1983), at pp. 2-3, and in the human rights area by Professor J. E. Bickenbach, Physical Disability and Social Policy (1993), and Professor M. Minow, "When Difference Has Its Home; Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference" (1987), 22 Harv. C.R.-C.L. L. Rev. 111, at p. 124. (While the WHO, in the medical context, uses the word "disability" to refer to functional limitation (the second aspect), I prefer to use the expression "functional limitation" to emphasize that in legal terms it is all three aspects considered together that constitute the disability.)
I therefore must determine whether the applicant has a disability within the meaning of the Code by employing the social, or its equivalent, the independent living model of disability.
The Threshold of Disability
23An employee who reports pain in a functional abilities evaluation but who has the functional ability to do the work does not prove a physical disability: Dominion Castings Ltd. v. U.S.W.A. Local 9392 (1998), 1998 CanLII 30064 (ON LA), 73 L.A.C. (4th) 347 (Ont. Arb. Bd.). There must be some inability to do something others can normally do and substantial ongoing limits on one’s activities: Bielecky v. Young (1992), 1992 CanLII 14291 (ON HRT), 20 C.H.R.R. D/215. It is not the precise nature of the disability or the duration of work absence which defines whether a disability is covered under the Code. A work injury may not be severe or long term; yet the employer may think that it will interfere with business operations and profitability and, on that basis, dismiss the employee. It is this perception and consequent treatment which defines the injury as a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.
24The following have been said to constitute disabilities under the Code:
Temporary injuries for which benefits were claimed or received under the Workplace Safety and Insurance Act: Deroche v. Yeboah-Koree, 2005 HRTO 26 at para. 150-151;
Cancer: Black v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.);
Atrial fibrillation of the heart (perceived disability): Kearsley v. St. Catherines (City) (2002), 2002 CanLII 46502 (ON H.R.T.)
The following have been identified as not constituting disabilities under the Code:
A cold or upper respiratory infection is not generally a disability: Moluton v. Leisureworld Caregiving Centre, 2009 HRTO 1575;
The flu: Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19;
A temporary illness (deep vein thrombosis) from which the complainant has recovered: Elkas v. Blush Stop Inc. (1994), 1994 CanLII 18421 (ON HRT), 25 C.H.R.R. D/158;
Obesity, unless caused by bodily injury, birth defect or illness: Ontario (Human Rights Commission) v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425
While some earlier cases seem to suggest that the definition of disability in the Ontario Code is exhaustive (Yeomans v. Ottawa (City) (1993), 1993 CanLII 16447 (ON HRT), 20 C.H.R.R. D/502), the more recent decision in City of Montreal, supra, cautioned against adopting too narrow an approach, even to specific statutory definitions of disability.
Analysis and Conclusion
24I find that the applicant did not meet the de minimus, or minimal, threshold for having a disability. His physician cleared him for work in August 2006 and he was terminated in November 2007. There was no indication by his physician during this period that the applicant had a disability that required accommodation. While the applicant indicated that the edema in his leg hampered his mobility by causing him to require regular rest, he continued to work full time. He also was able to occasionally change shifts to suit his schedule, but he did not advise his employer that this was due to a disability.
25In addition, between August of 2006 and the date of termination, the applicant never raised any issues with his supervisor respecting a need for accommodation. The applicant was given days off to attend medical appointments, but never spoke to his supervisor about having difficulty performing his job duties due to his illness. The respondent worked with the applicant and its insurance company to ensure the applicant’s physical and medical needs were fully accommodated.
26It was the respondent’s observation and belief that the applicant had fully recovered from his previous illness. I believe this for the following reasons: it had been more than a year since he had taken time off for a disability and he appeared fully functional in the workplace. I also find that the respondent based its decision to terminate entirely on what they view as a serious violation of the employee code of conduct, and a perceived disability was not a factor.
Conclusion
27I find the following: (1) there was no disability and therefore “actual” disability could not have been a factor in the termination decision and (2) the employer did not perceive the applicant to be disabled and therefore “perceived” disability was not a factor in the termination. Accordingly, the application is dismissed.
Dated at Toronto, this 12th day of January, 2011.
“Signed by”
David Shannon
Member