DeForest v. Brockton Farm Ltd., 2012 HRTO 1666

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joshua DeForest

Applicant

-and-

Brockton Farm Ltd., Hilltop Stone and Supply Inc., and Jeanie Ferraro

Respondents

DECISION

Adjudicator: Geneviève Debané

Date: September 4, 2012

Citation: 2012 HRTO 1666

Indexed as: DeForest v. Brockton Farm Ltd.

APPEARANCES

Joshua DeForest, Applicant

Self-represented

Brockton Farms, Hilltop Stone and Supply Inc. and Jeanie Ferraro, Respondents

Mark T. Rush, 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”), alleging discrimination with respect to employment because of disability. The respondents filed a common Response denying the allegations in the Application.

2A hearing was held with respect to the merits of this Application on February 9 and 10, 2012, in Toronto. The parties filed no case-law in support of their positions.

Background

3It is not in dispute between the parties that the applicant was employed since 2006 by the respondent Brockton Farm Ltd., (the “employer respondent” or “Brockton”) which operates a sandstone quarry. The applicant’s employment was seasonal in nature. He would work, depending on weather conditions and product demand, for approximately eight months from April to November of each year.

4Brockton is a family owned business and the individual respondent Jeanie Ferraro (the “individual respondent”) owns a third of the common shares of Brockton. Her two brothers, John Gailbraith and Mark Gailbraith, who both testified at the hearing, each also own one third of Brockton’s common shares. Ms. Ferraro is also employed by Brockton as the Business Manager.

5Hilltop Stone and Supply Inc. (“Hilltop”) is a separate company which operates on the same property as Brockton. There is at least one shareholder of Hilltop who is not a shareholder of Brockton. The applicant has never performed work for Hilltop.

6It is not in dispute that the applicant injured himself at work in each season that he worked for Brockton. In the 2008 season, for example, the applicant was off work from June until September and received benefits pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16, Sched. A (WSIA).

7The applicant was recalled to work in the 2009 season and on July 22, 2009 he suffered another injury for which he received benefits pursuant to WSIA. There was no dispute that this injury was a disability pursuant to the Code. The Application asserts that Mr. DeForest’s disability was not accommodated by the respondents and that he was not recalled to work in the 2010 season because of his disability.

8The respondents assert that it is the applicant who advised Ms. Ferraro in August of 2009 that he would not be returning to work and was resigning from his employment. In consequence, the employer issued the applicant a Record of Employment (the “2009 ROE”) which confirmed that he would not be returning to work due to his injury.

9The issues in this Application which must be determined by the Tribunal are whether the applicant’s disability was accommodated in 2009, and whether in fact the applicant’s disability was a factor in the employer’s alleged decision not to recall him for the 2010 season. If the Tribunal accepts the respondents’ assertion that the applicant did in fact resign from his position in August 2009 then the Application must be dismissed.

The Evidence

10The applicant testified that on July 22, 2009, he felt a sharp pain in his abdomen while lifting a rock at work. He applied for and received benefits pursuant to the WSIA until on or about November 12, 2012.

11He denies that he advised Ms. Ferraro in August 2009, that he would not be returning to work due to his injury. When the respondents suggested to him in cross-examination that he had resigned, he testified that he would not have done this since he would have thought it would impact his eligibility for WSIB benefits. The applicant stated that he kept Mr. John Gailbraith, the person he reported to directly, and a co-owner of the company apprised of his medical condition.

12The applicant testified that after having an abdominal surgery he was cleared to return to work. The applicant testified that on November 11, 2009 he attended work and was advised by Mr. John Gailbraith that it was too late in the season for him to come back to work. The applicant was successful in obtaining employment insurance benefits commencing in December 2009.

13In February 2010, the applicant needed a confirmation of employment in order to purchase a car so he spoke with Mr. John Gailbraith who told him that it would not be a problem and to call Ms. Ferraro. He was advised by his wife, that Ms. Ferraro had returned his call and that she refused to confirm the applicant’s employment because he was no longer employed by Brockton.

14The applicant testified that he felt depressed and that he is still taking anti-anxiety medication as a result of his termination from employment. The applicant found another job within two weeks and he commenced work on April 1, 2010. His new employment was not seasonal in nature and he earned less money. Ultimately, this new job ended in September 2010 but he became reemployed by a different employer in October 2010.

15During cross-examination, counsel for the respondents was able to demonstrate inconsistencies between the evidence the applicant gave at the hearing and allegations (or statements) made in the Application. This included discrepancies about how and when he received his 2009 Record of Employment and his communications with the respondent in February 2010.

16The applicant’s wife, Heather DeForest testified for the applicant. Her most significant testimony was with respect to her conversation with Ms. Ferraro in February 2010. Mrs. DeForest maintained that Ms. Ferraro told her that the applicant had been replaced because he had missed too much time off. She also testified about the impact on the applicant due to his loss of employment with the corporate respondent.

17Ms. Ferraro testified that she was advised that the applicant was claiming that he had been injured at work on July 22, 2009 and she prepared and sent an Employer’s Report, Form 7 on July 28, 2009 (the “2009 Form 7”). Section F of Form 7 requires the employer to fill out information with respect to the applicant’s return to work. Question 4 of section F asks “Who is responsible for arranging worker’s return to work?” One of two boxes must be filled out either, “myself” or “other”. If the “other” box is filled out then the employer is required to identify the name of the individual responsible for arranging the worker’s return to work. Ms. Ferraro testified that when she sent the original Form 7 to WSIB on July 28, 2009 she left section F blank.

18Ms. Ferraro testified that the applicant attended work on August 3, 2009 and advised her that he was resigning his employment because his doctor told him that he would never be able to return to work. Based on this conversation Ms. Ferraro prepared the 2009 ROE on August 4, 2009, which states that it was being issued due to illness/injury and that the applicant would not be returning to work. Ms. Ferrerro explained during cross-examination that she did not issue a ROE which stated resigned because the applicant had indicated to her that he was quitting because of his injury. Ms. Ferraro testified that the only reason that she issued an ROE was because the applicant resigned from his employment.

19In a letter dated August 11, 2009, WSIB advised the respondents that it was allowing the applicant’s claim for WSIB benefits. Ms. Ferraro testified that she had some communications with WSIB employees assigned to oversee the applicant’s WSIB benefits.

20She testified that she spoke to a representative at WSIB at some time, likely in August or September 2009 and that she advised the representative that the applicant had resigned from his employment in August 2009. She testified that the representative told her to resend the Form 7 with this new information so she wrote “will not be returning” on her copy of the Form 7 and that she faxed the amended Form 7 to WSIB. Ms. Ferraro could not provide the exact date that this occurred. She said that she did not have the original copy of the Form 7 because she had written on her only copy. The respondents did not provide to the Tribunal any fax cover page or covering letter or transmission report for this alleged amended Form 7 that was sent to WSIB.

21During Ms. Ferraro’s testimony I asked counsel for the respondents whether production of the applicant’s WSIB file was still being sought by the respondents. I note that at paragraph 36, of the Response the respondents were seeking “production of the Applicant’s complete WSIB file”. Counsel advised that the respondents were not seeking such production.

22Ms. Ferraro states that she was contacted by the applicant in November 2010, because he was seeking a revised ROE indicating that he was being laid off for the season. She testified that she advised him that she would not be reissuing a ROE because he had resigned in August 2011. She denies that Mr. DeForest asked to go back to work at that time.

23Ms. Ferraro testified that in February 2010 that she had a conversation with Mrs. DeForest during which she advised Mrs. DeForest that the applicant had resigned from his employment. The applicant’s wife was angry and called her back a few minutes later. During this conversation Ms. Ferraro stated that Mrs. DeForest accused her of terminating Mr. DeForest because he had taken too much time off and that they would be making a complaint to the Labour Board.

24Mr. Mark Gailbraith did not have any direct knowledge with respect to the applicant’s employment in the 2009 season. He testified about the nature of the work that the applicant had done in the past. He also gave evidence with respect to the downturn in the industry and the fact that Brockton was hiring less and less employees each season and that had Mr. DeForest been reemployed in 2010 he would have worked less hours.

25Mr. John Gailbraith, testified that the applicant did not keep him apprised of his status during the summer of 2009. He did recall that his sister, Ms. Ferraro told him that the applicant resigned though he did not recall the specific date but that it was right after the applicant went to see her. Mr. John Gailbraith does recall that the applicant did come to talk to him in November but that he was laying off employees, and he had no authority to give him work.

26In final argument, the applicant acknowledged that there were some inconsistencies in his evidence but suggested that these were on relatively minor points that given the passage of time were understandable. He argued that there was no reason for him to resign from his employment because he did not know if this could have had a detrimental impact on his WSIB benefits. The applicant pointed out that the WSIB Form 7, filed out by the respondents on July 28, 2009, indicates that he was not returning to work which predates his alleged resignation on August 3, 2009, by almost one week.

27Counsel for the respondents reviewed the inconsistencies in the applicant’s testimony. He also argued that the applicant established that in the past when the applicant had a workplace injury he was called back to work in the next season which is evidence that the respondent’s conduct was not discriminatory.

Decision

28One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor 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 the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

29I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.

30In this case the applicant and Ms. Ferraro have given two completely contradictory accounts of the events that occurred after the applicant’s injury in July 2009. I find that it is their evidence which is critical to the determination of the issues in this case. The key issue to be determined is whether Mr. DeForest did in fact give his notice of resignation on August 3, 2009.

31For the reasons that follow I prefer the evidence of Mr. DeForest over that of Ms. Ferraro on this issue:

a. I accept that it is unlikely that Mr. DeForest would have resigned from his employment because he did not know if this could have a negative impact on his WSIB claim;

b. There was no compelling reason for Mr. DeForest to resign on August 3, 2009;

c. As soon as Mr. DeForest was cleared to return to work after his surgery, he attended work on November 11, 2009 which demonstrates his understanding that he was still employed;

d. The only Form 7 that was put into evidence by the respondents is dated July 28, 2009, and indicates that the applicant would not be returning to work. I do not accept Ms. Ferraro’s testimony that she left that portion of the original Form 7 blank when she first sent it to WSIB in July 2009. There was no reason to leave this portion of the Form 7 blank and it is inconsistent with Ms. Ferraro’s practice in the past. I note that at Tab 16 of the respondents’ Book of Documents there is a copy of the Form 7 that was issued with respect to the applicant’s 2008 injury, the return to work portion of the Form 7 clearly identifies that Mr. John Gailbraith is responsible with respect to the applicant’s return to work;

e. I do not accept as credible that after having spoken with a WSIB representative that Ms. Ferraro would write on the Form 7 “will not be returning to work”. This statement is vague and does not accurately reflect her alleged verbal statements to WSIB that the applicant had resigned. It is more likely that Ms. Ferraro would have written that the applicant had in fact resigned on August 3, 2009 not that he “will not be returning to work”; and

f. I also draw an adverse inference from the respondents’ failure to seek production of the applicant’s WSIB file or otherwise try to obtain a copy of the alleged original Form 7.

32In conclusion, I find that the evidence of Ms. Ferraro is not consistent with the documentary evidence nor is it consistent with her previous practice. I find that she indicated on the Form 7 on July 28, 2009 that the applicant would not be returning to work, which was prior to the applicant’s alleged resignation from employment on August 3, 2009.

33Based on the evidence that I heard I find that the applicant’s testimony that he would not have resigned in fear that this might affect his WSIB benefits to be compelling and bears an air of reality. With respect to the applicant’s inconsistencies I agree that these were on relatively minor and ancillary issues and not necessary to the finding that the respondents breached the Code. I find that the employer decided in July 2009, immediately after Mr. DeForest’s WSIB claim and workplace accident that it would not be reemploying him in the future. I find therefore, that this decision not to reemploy him was motivated by the fact that the applicant was disabled.

34However, I do not accept the applicant’s submission that the employer failed to accommodate him in 2009. There was simply no evidence, medical or otherwise from the applicant in support that he could perform any modified work prior to November 11, 2009. I accept that when the applicant sought to return to work in November 2011, that the work season was almost over and that there was no work available for Mr. DeForest. Therefore, I do not accept the applicant’s allegation that the respondent failed in its duty to accommodate the applicant’s disability related needs during the 2009 season.

Liability of Hilltop

35However, the applicant has not provided a basis for finding a violation of the Code by the respondent Hilltop. The applicant never performed any work and/or had any employment relationship with Hilltop. As such, Hilltop owed the applicant no duties pursuant to the Code. The Application as against Hilltop is therefore dismissed.

Liability of Ms. Ferraro

36The respondents presented no cases or arguments with respect to the liability of the individual respondent Ms. Ferraro, other than to submit that there was no breach of the Code. I find that Ms. Ferraro made the deliberate decision not to reemploy the applicant. Her actions and decisions are central to my finding of discrimination in this Application. Given her status as a co-owner and directing mind of Brockton I find that she should be held jointly and severely liable for any damages.

Remedies

37The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:

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.

38The applicant seeks special damages for lost wages and $10,000 dollars in general damages. He does not seek any public interest remedies.

39I have considered the evidence of the applicant with respect to his wage loss claim. In the Application, the applicant indicates that he is seeking compensation from July to November 2009. Having found that the applicant has not established that he was capable of performing any work or that there was work available it is not appropriate to order any compensation to the applicant for this time period.

40The applicant also claims lost wages for the 2010 season because he was not recalled to work. It is his position that he was paid at a lower rate in his new employment and that he should be compensated for the difference.

41The respondents submitted that the applicant has suffered no wage loss because he immediately mitigated his damages and in fact commenced work on April 1, 2010, weeks before he would have been recalled to work with Brockton.

42I have reviewed the applicant’s evidence and I find that he has not established on the balance of probabilities that he suffered any wage loss. Because of the seasonal nature of his work at Brockton, its declining business, which did not guarantee any fixed hours, I find that he fully mitigated his damages in 2009 with the income that he earned from his subsequent employment based on the two T-4’s that he submitted. Therefore, I decline to make an order for lost wages.

43In addressing relevant factors in determining damages for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, 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, 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, 2005 HRTO 53 at paras. 34-38.

44I find that it is appropriate to award the applicant some general damages since I accept that the infringement of his right to be free from discrimination has had an impact on the applicant. I find that the amount that the applicant seeks, $10,000 dollars is reasonable and fair in the circumstances. It is also consistent with similar cases, and I note on the lower range of damages that are awarded to individuals who have lost employment for reasons that are contrary to the Code: see Pridham v. En-Plas Inc. 2007 HRTO 8. I find that the applicant was denied his right to be reemployed because of his disability, which is a significant loss and that this caused him harm including injury to his dignity, feelings and self-respect. In awarding this amount I also take into consideration the nature of the loss of the employment, including that this was seasonal employment for a small employer and that the applicant was able to secure alternate employment.

45I also find it appropriate to award some public interest remedies, even though the applicant has not sought any that have some educational component, to ensure that the owners and officers of Brockton are familiar with their obligations under the Code. I find that such educational remedies promote the goals of the Code and will result in compliance in the future.

Order

46The Tribunal Orders:

(a) The Application is dismissed as against Hilltop Stone and Supply Inc.;

(b) The Application as against Brockton Farm Ltd. and Jeanie Ferraro is allowed;

(c) Within 30 days of this Decision, Brockton Farm Ltd. and Jeanie Ferraro will pay $10,000 dollars to the applicant as compensation for the infringement of the Code and injury to his dignity, feelings and self-respect;

(c) Brockton Farm Ltd. and Jeanie Ferraro shall pay to the applicant pre-judgment interest running from August 3, 2009, the date the applicant’s employment ceased, on the sum at paragraph c) above, calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;

(d) Brockton Farm Ltd. shall pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act from the date that is 30 days after the date of this Decision;

(e) Brockton Farm Ltd. and Jeanie Ferraro are jointly and severally liable for any monetary amounts payable pursuant to this Order; and

(e) Within 60 days from the date of this Decision, Brockton Farm Ltd. shall confirm to the applicant that all of its owners and managers have:

(i) Completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/; and

(ii) Obtained and read a copy of the Ontario Human Rights Commission’s “Policy and Guideline on the Duty to Accommodate”.

Dated at Toronto, this 4th day of September, 2012.

“signed by”

Geneviève Debané

Vice-chair