HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marie Yochim
Applicant
-and-
Complex Services Inc.
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Yochim v. Complex Services Inc.
APPEARANCES:
Marie Yochim, Applicant ) Margaret Hoy, Counsel
Complex Services Inc., Respondent ) Laurie Reesor, Counsel
INTRODUCTION
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.
2The respondent denies all allegations of harassment and discrimination and seeks dismissal of the Application.
3In advance of the hearing into this matter and during the course of the hearing, four Case Assessment Directions (CADs) were issued addressing procedural issues and providing ongoing deadlines. The first of these CADs alerted the applicant to the fact that no witness statements had been filed in support of her case in accordance with the extended deadline of October 8, 2010 that had been set for filing of same, obtained on consent of the parties. The CAD, dated October 14, 2010, also outlined the potential consequences of failing to file the documents in accordance with the deadlines outlined in it.
4On the first day of hearing, November 9, 2010, the applicant indicated her intention to call a number of witnesses for whom no witness statements had been provided. The respondent objected to this request. In fact, counsel for the applicant sought to have the hearing stood down while she interviewed the potential witnesses. The applicant’s request was denied. The applicant had been represented by counsel from the outset. There was no satisfactory explanation for why counsel for the applicant had not contacted, interviewed and provided witness statements for the potential witnesses in question at some time between the filing of the Application and the hearing date, particularly given the final reminder issued just one month prior to the commencement of the hearing, in the CAD, dated October 14, 2010.
5Despite the lack of a detailed witness statement from the applicant, she was permitted to give evidence in accordance with the allegations contained in her Application and Reply documents. I heard from Carla Henoud and Karina Procopchuk on behalf of the respondent.
6Ms. Henoud is a current employee of the respondent who was hired on September 8, 2010, well after the events that give rise to this Application. As a result, her evidence was only relevant as to general practices as she had no direct information to offer as to the applicant’s situation but could only describe what was contained in the documentary record.
7Karina Procopchuk is no longer employed by the respondent but was with the organization at the material time and was directly involved in the applicant’s case and, therefore, able to provide more relevant evidence.
8Following the hearing, which took place over four days, the parties were provided an opportunity to make written submissions.
9For the reasons that follow, this Application is granted in part.
THE LAW
10The relevant sections of the Code are as follows:
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.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
45.2 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 out to do to promote compliance with this Act.
THE FACTS
11The applicant, Marie Yochim, is employed at a casino in the Niagara area by the respondent, Complex Services Inc., which provides human resources and staffing services to two casinos in the region. While she has not been an active employee since her departure from the workplace on medical leave on August 13, 2008, she was still employed by the respondent at the time of the hearing and had been in some capacity since February of 2002.
12The applicant began working for the respondent as a temporary contract employee in 2002 and became a permanent status associate in July 2006. She was made a “dual rate supervisor” in November 2006 and was demoted in July 2008, a month before her departure on an approved medical leave.
13While the applicant provided a great deal of detailed evidence as to what transpired in the workplace leading up to her departure in August 2008, I have only discussed the portions of that testimony that are relevant to my findings and, as a result, the bulk of that evidence is not reproduced in detail in this Decision.
14The gist of the applicant’s evidence regarding the period up to her departure on medical leave in August 2008 is that she was doing well in her job and had no difficulties until there was a change in her immediate supervisory team in 2006. At that time, two new supervisors were put in place to manage her. She attributes the difficulties she had subsequently to their harsh treatment of her.
15She believed they scrutinized and monitored her performance more than that of other employees. Her evidence was that the new managers stared at her. They seemed to be watching her with a view to catching her doing something wrong in order that they could get rid of her. Her former supervisor had already been fired by the new management team and she felt that they wanted to do the same to her. The applicant described several unpleasant and difficult meetings with her supervisors during which she was taken to task for not doing her job in the way in which they thought she should be, criticized, described as insubordinate and spoken to in a disrespectful way. She described the impact of these unpleasant encounters on her and explained how her blood pressure, which had been controlled until then with medication, began giving her problems. She also attributes this treatment as the reason that she eventually had to start taking a sleeping pill and other medication to cope with the stress.
16Following her demotion in July 2008 and some unpleasant encounters with her supervisory team, she departed on medical leave on August 13, 2008. The applicant testified that she received 15 weeks of sickness benefits from Employment Insurance. Other than that she received no other income either during the sick leave or following it, when she was cleared to return to work on April 28, 2009, until she found other work with a different employer on October 5, 2009.
17She testified that since that time, she has been working for another employer in a call center taking incoming calls. She has had to borrow money and refinance her home in order to survive. She also provided evidence as to the frustration, anxiety and worry that she experienced during the lengthy and ultimately unsuccessful return to work process she engaged in with the respondent.
18As indicated above, on April 28, 2009, she was declared able to return to work by her physician. Her doctor indicated that she should avoid stress and that she could not work with the management team that she was working with prior to her departure in August 2008. The doctor also indicated that the applicant had a number of physical restrictions such as no bending, no twisting of the back and knees, no lifting and standing, restrictions that had not been listed in the medical updates provided during the time she had taken off work. Finally, the applicant was to avoid walking. The doctor recommended that the applicant be given a job in the call center part of the respondent’s operations.
19Ms. Procopchuk’s evidence was that a member of their disability management team considered the doctor’s suggestion and rejected it. Given the respondent’s view that the applicant had underperformed in her position in the PAC area to such an extent that she had been demoted, the respondent concluded that she did not have the qualifications to perform the job in the call center. In addition, the job was considered a step up from the PAC area job and considered high stress, a factor that would have rendered it outside the applicant’s stated restrictions. Finally, the respondent points out that there was no job opening in the call center at that time and, until early 2010.
20The applicant, for her part, takes the view that she was never told of this conclusion. She takes issue with the assessment that this job was outside her qualifications and says that she has had two previous call center jobs that she argues were comparable. She also takes the view that the recommendation that she avoid stress related only to not having to work with the previous management team and that it would not have prevented her from working in the call center. The applicant argues that the doctor would not have recommended work at the call center if it was incompatible with her restrictions.
21The applicant acknowledges that she was contacted by the respondent’s representatives a number of times and asked to update her profile on the respondent employer’s database. Several medical updates were requested and provided. The respondent also informed the applicant on a number of occasions that no alternative work within her medical restrictions was available.
22The respondent’s evidence is that the disability management employees looked through all available jobs that were posted and assessed them in light of the applicant’s medical restrictions. The Tribunal was provided with a listing of what Ms. Procopchuk identified as all the positions, both full time and contract, that became available during the material time.
23It was her uncontradicted evidence that either she or a member of the employer’s disability management team considered each of these positions with a view to whether they were within the applicant’s restrictions or whether she could be accommodated within those positions. Her evidence was that as a result of the specific bar against her working with the old management team, the requirement that she avoid stress as well as the physical restrictions such as no bending, no twisting of the back and knees, no lifting and standing and avoiding walking, most of the jobs available within the respondent’s facilities were unsuitable for the applicant.
24In or about December 2009, additional physical restrictions were outlined by the applicant’s doctor. In this medical note, the doctor indicated that in addition to avoiding stress and working with the previous management team, the applicant was to limit the use of her hands, avoid gripping and pinching, avoid movement in the shoulders and elbows and limit the use of her entire left arm.
25The respondent’s evidence is that the call center position required constant typing involving the use of both arms and moving the upper body to monitor two computer screens.
26Finally, in a letter dated June 4, 2010, the applicant’s doctor indicated that she could return to work in her old position with no restrictions outlined. When additional clarification was sought by the respondent given the abrupt nature of the change in position, the applicant sent in an old note in which it again specified that she could not work under her old management team and should avoid stress.
27Subsequent requests for clarification were made by the employer on September 14, 2010 and September 29, 2010. There is no evidence that the applicant responded to those letters with additional information.
28While there was a letter sent to the applicant indicating that the respondent was moving towards termination, that course of action was reversed by the employer and the applicant remains an employee of the respondent, albeit an inactive one.
DECISION
29Broadly speaking, the applicant alleges that she was subject to harassment on the basis of disability, culminating in a demotion in July 2008. She then left work on August 13, 2008 on a medical leave and, when she was able to return to work from that leave, she alleges that the respondent discriminated against her by failing in both its procedural and substantive duties to provide necessary accommodation and return her to active employment.
No Prima Facie Case with respect to Harassment Allegations Prior to August 13, 2008
30During the course of the hearing, I heard the evidence of the applicant. As she was the only person giving evidence in support of her case, at the close of the applicant’s evidence in chief, I indicated that I would not call on the respondents to address the harassment allegations either in cross examination or in the presentation of their case.
31I ruled at that time that the applicant had failed to provide any evidence to establish a prima facie case with respect to a connection between the harassment allegations prior to her departure from work on a medical leave and the Code.
32There was no evidence before me that any alleged harassing behaviour on the part of her supervisors could be linked to any ground under the Code, and in particular to the cited ground of disability.
33There was no evidence submitted that a disability, as defined by the Code, existed at the time of the events that are alleged to constitute harassment or that any alleged harassment was connected to any such disability.
34In fact, the applicant’s evidence was that the alleged harassment caused a disabling condition, not that she experienced harassment for reasons relating to a disability or any other ground under the Code. It is not necessary for the purpose of deciding this Application for me to decide whether I accept that evidence. Having dismissed the harassment allegations, I continued to hear evidence and argument concerning the balance of the Application.
Discrimination Allegations
35The applicant alleged that following her departure from the workplace in August 2008, she took some time to recover. There is no evidence that the respondent employer breached the Code during this time and I find that there is no issue as to its conduct vis a vis the applicant during the time period between August 13, 2008 and April 28, 2009. The applicant sought and was permitted to take time off work to recuperate from her medical conditions. There is no dispute between the parties that the applicant had a disability within the meaning of the Code from August 13, 2008 forward, although there is disagreement as to her medical restrictions at various points in time.
36The applicant’s evidence, and that of the respondent’s witnesses, is that, beginning on April 28, 2009, her physician cleared her return to work. At that time, the applicant’s physician completed documents that outlined a number of restrictions. In that document, and in several documents sent in the following months, the doctor continued to suggest that the applicant ought to be placed in a particular job.
37The applicant’s main argument appears to be that the respondent organization did nothing to assist her in returning to work. She does not dispute that her own physician’s position is that she could not perform the essential functions of her own position. However, she argues that her file was ignored by the respondents and she was not assessed by anyone within the organization with a view to getting her back into the workplace. She suggests that some other position could have been found for her within her medical restrictions and that a position within the call center, in particular, would have been an appropriate fit.
38The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 (hereafter “Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129, at paras. 22 and 42–45. To meet the procedural part of the duty to accommodate, the respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. That involves obtaining all relevant information about the applicant’s situation, at least where it is readily available. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, 295 DLR (4th) 425 (ON S.C.D.C.)
39In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. The ADGA decision was confirmed on appeal: ADGA Group Consultants Inc. v. Lane (supra).
40Accommodation is a collaborative process: the person with a duty to accommodate has a duty to actively seek the information he or she needs, and must be prepared to consider and explore the possibilities. The person requiring accommodation must also cooperate in the attempt to find suitable accommodation.
41In the present Application, the applicant’s physician indicated, from the time she was medically able to return to work, that she could not return to an environment where she would have to report to the same supervisors with whom she had difficulties in the past. The forms also indicated that she should avoid stress and outlined a number of physical restrictions.
42While the applicant’s physician indicated that she should be considered for a position in the call centre portion of the respondent employer’s organization, it is unclear how the physician could have arrived at such an opinion in the absence of any information about the specifics of that job function. The respondent argues, and I agree, that this type of specific job placement recommendation is not within the physician’s purview.
43Where I have some difficulty with the respondent’s conduct, however, is in its failure to respond in any direct or meaningful way to the applicant or her physician upon receiving this very specific suggestion and in its failure to communicate its view that the call centre job was not a suitable position for the applicant for reasons relating both to the applicant’s past job performance as well as the medical restrictions outlined in the doctor’s notes.
44This was a view that was articulated quite clearly at the hearing by Ms. Procopchuk. In her opinion, given that the applicant had not performed up to expectations in her positions in the Players Club, either as an associate or as a dual rate supervisor, she did not have the required qualifications for a job in the call centre, as she described the latter position as a grade above the former. In addition, she testified that her view was that the doctor’s recommendation that the applicant avoid stress was also a factor that would have made the call centre job unsuitable for the applicant, given the inherently active and demanding nature of the job, which included making quick decisions, operating a number of different computer programs, dealing with customer incentive programs, complaints and issues and resolving problems.
45Also clear from Ms. Procopchuk’s testimony and the documentary evidence is that this opinion was never communicated, clearly or otherwise, to the applicant or to her physician by her or any other member of the team dealing with the applicant’s accommodation issues. No specific information about the call center job was sent to the physician to ascertain whether the requirements would have been consistent with the restrictions outlined in the numerous medical notes received from the applicant’s doctor, given the employer’s view on that score.
46Instead, the letters sent subsequently by various members of the respondent’s “disability management” team, of whom Ms. Procopchuk was a member, urged the applicant to update her resume, to update her computer profile and to actively participate and cooperate in the attempt to get her back to work. There were also several more requests for medical information and updates.
47In sum, the communication that followed the initial recommendation by the physician was non-responsive; at least insofar as the particular suggestion of call center work was concerned. There was no communication, either verbal or written, to let the applicant know that the respondent had, in effect, ruled out this possibility and certainly no explanation as to why it had been ruled out.
48The parties to this conversation were speaking at cross-purposes. The applicant and her physician continued to send in documents and forms to suggest the call center position in subsequent medical notes and the respondent employer’s disability management team continued to ask the applicant to update her computer profile, resume and medical information.
49In this situation, although the respondent employer sent numerous letters of a general nature to the applicant when she was able to return to work, continuing to urge her to take necessary and appropriate steps to assist in the accommodation process, my view is that it was singularly unhelpful, unresponsive and obtuse in failing to engage in the accommodation conversation in respect of the particular and very specific suggestion made by the applicant’s physician.
50In my view, in these circumstances, a respondent employer cannot ignore a suggestion even if it takes the position that the recommendation appears to be outside the purview of the medical professional. It would be contrary to the nature of the ongoing dialogue that the procedural aspect of the duty to accommodate attempts to foster.
51At the very least, the respondent’s representatives ought to have communicated to the applicant and/or her physician their view that the call center position was a non-starter from their perspective, given their interpretation of the disability related restrictions outlined in the FAEs by the applicant’s physician and other factors. Alternatively, they could have provided a job description and sought clarification from the applicant and her physician as to the compatibility of the job and her restrictions.
52It was Ms. Procopchuk’s evidence that she would only have “reached out” to a doctor and provided a job description if the job had been a “very suitable” one. This does not explain her failure to “reach out” and explain to either the doctor or the applicant that she disagreed with the specific recommendation being made by the former.
53The respondent employer’s failure to communicate or take any of the above steps led to a disconnect in the process or a breakdown in the accommodation conversation between the parties and was at odds with the collaborative approach that is mandated under the Code. As a result, I find that the applicant has established a breach of the procedural aspect of the accommodation process.
54At the same time, I do note that the applicant did not, in fact, update her profile or resume, despite being repeatedly urged to do so. Although the applicant testified that she had, in the past, been employed in two call center jobs, the resume and employment information on her profile on the respondent employer’s database does not show this experience base and it appears that the applicant made no changes to the profile despite numerous requests that she do so.
55In addition, it was not until a decision of the WSIB was released in October 2010 that the respondent employer became aware that she had been employed full time for a year at another job. This was another failure on her part to provide updated and relevant information to the respondent that could have clarified matters and may have assisted in resolving matters between the parties.
56Finally, I also note that there was no opening for any positions in the call center until March of the following year, by which time the applicant was working full time elsewhere. It is unclear from the information before me whether the job would have been within the applicant’s restrictions or qualifications.
57While the applicant seems to be arguing that failing to consider her for this opening is a breach of the Code, I accept the evidence of Ms. Procopchuk that she did, in fact, consider whether all open positions would have been appropriate for the applicant, given her qualifications and restrictions. I accept her assessment that the position was not within the physical or stress related limitations outlined by the applicant’s physician at the time the position became available, specifically given the applicant’s physician’s medical note of December 2009.
58I also accept the evidence of Ms. Procopchuk that, given the doctor ruling out returning to her old position from April 28, 2009 to June 4, 2010, returning the applicant to her old position during that period was not an option and, as a result, all openings were reviewed against the applicant’s stated restrictions and job qualifications, with a view to placing her in a position within her restrictions either by her or a member of the disability management team. I accept her evidence that no suitable positions were available from April 28, 2009 until June 4, 2010, at which time the applicant and her physician indicated she was able to return to her old position. The applicant has not pointed to any other specific openings other than the call centre position as possible positions in which she could or should have been accommodated.
59Given the forgoing, I find that the applicant has failed to establish that the respondent employer breached the substantive aspect of its obligation to provide accommodation of her disability related needs.
60The employer’s subsequent requests for information to ensure a safe return to work were not unreasonable under the circumstances, given the time away from the job, the abrupt changes in the restrictions outlined and the contradictory nature of the medical notes provided in early June 2010. The applicant’s failure to comply with those requests led to the impasse that existed at that time and, subsequently, in the time leading to the hearing.
REMEDY
61The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:
(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:
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.
(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.
62In the Application document, the applicant requested a financial remedy in the amount of $100,000.00 that was characterized as “a punitive award together with pain and suffering as a result of the respondent’s failure to accommodate in the workplace as per doctor’s recommendations and for harassment.” She also sought workplace accommodation in accordance with the recommendations made by her doctor.
63Following the hearing, in written submissions, the applicant sought $90,000.00 (2 years at $45,000.00), $45,000.00 for hurt feelings and general damages, prejudgement interest at 4% and costs. There is no continuing mention of an order regarding workplace accommodation.
64Although not clearly stated, I have assumed that the first amount ($90,000.00) is intended to be a request for lost wages for two years. However, the basis for the amount and dates referred to in the submissions is not explained and is inconsistent with previously submitted information. I note that the Application documents indicate that the applicant earned $35,000.00 to $37,000.00 per annum as opposed to $45,000.00.
Monetary Compensation
65It is well established that the focus of the remedial power under the Code is restorative rather than punitive. The principle under which monetary compensation is ordered is to attempt to restore the applicant to the position she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination, not to punish the perpetrator. When it comes time to determine a just and appropriate remedy, the focus is on the experience of the applicant and not on the party responsible for infringing his or her rights. See Hughes v. 1308581 Ontario, 2009 HRTO 341.
66An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. The Ontario Divisional Court has recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc. v. Lane, (supra) at para. 153.
67In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 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.
68Although the Application, as originally formulated, alleged harassment, I have found that the applicant has not established a prima facie case of harassment. In addition, the breach of the Code established is limited in scope to the employer’s failure to do its part to engage in a collaborative exercise in communicating with the applicant and her physician concerning her restrictions in respect of a specific recommendation. Also relevant is my finding that the applicant has failed to establish that the employer breached its substantive duty to accommodate.
69I accept that the effect of the failure of the respondent to engage in a meaningful and responsive conversation with the applicant and her physician when specific recommendations were made by the latter about the nature of the accommodation sought caused her some considerable frustration at a time when she was financially insecure and vulnerable.
70In considering what an appropriate remedial award would be in this Application, I have also taken into account the applicant’s own role in this matter, such as neglecting to take required steps such as updating resume, skills and medical information and the impact of that lack of cooperation on the eventual failure of the accommodation exercise in the circumstances of this case.
71Awards for discrimination on the basis of disability in respect of employment range widely. In cases involving termination or repeated breaches, the awards are at the higher end of the range. In the situation at hand, the applicant has not been terminated and remains an inactive employee of the respondent.
72I have considered the Tribunal’s case law and the applicant’s circumstances, including the impact of the discrimination on her. I find that $3,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect in this matter.
Lost Wages
73The applicant has requested $90,000.00 in lost wages at a rate of $45,000.00 per annum.
74There is no basis upon which I am able to consider any additional award for lost wages. I note that the applicant was employed full time beginning in October 2009. However, I have been provided with no documentary information as to the wages earned by her since that time and only limited oral testimony that touched on the rate of pay received initially with no clarity as to actual earning.
75In any event, I have found that no job within the applicant’s stated restrictions was actually available between April 28, 2009 and either March 2010 (if the call center position had been within the applicant’s restrictions and qualifications, which she has not established) or June 4, 2010 (the date on which she indicates she was able to return to her old position but failed to provide required information to facilitate the return to work process).
76As such, I decline to make any award for lost income.
Other Specific Requests for Order
77Finally, the applicant’s final submissions indicate that she no longer seeks an order directing the respondent to take any additional steps with respect to workplace accommodation.
78A number of decisions of the Tribunal have held that Tribunal does not have the authority to award costs (see for example, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; Farris v. Staubach Ontario Inc., 2011 HRTO 979; Clennon v. Toronto East General Hospital, 2010 HRTO 506; and M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174). Although the applicant has included a request for an order for costs, she has provided me with no argument or authority in support of such an order. Accordingly, the request for costs is denied.
ORDER
79In the result, I order:
Within 30 days of the date of this Decision, the respondent employer will pay the applicant $3,000.00 as monetary compensation.
In the event that the respondent fails to make the payment described above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with the Courts of Justice Act, R.S.O 1990, c. C.43.
Dated at Toronto this 12th day of July, 2012.
Signed by
Jay Sengupta
Vice-chair