Braun v. Sunshine Landscaping, 2012 HRTO 2236

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ramy Braun Applicant

-and-

Sunshine Landscaping, Valdir Prado and Alexios Paraskevopoulos Respondents

DECISION

Adjudicator: David Muir Decision Date: November 29, 2012 Citation: 2012 HRTO 2236 Indexed as: Braun v. Sunshine Landscaping

APPEARANCES

Ramy Braun, Applicant Self-represented

Sunshine Landscaping, Valdir Prado Valdir Prado, Representative

Alexios Paraskevopoulos Self-Represented

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 in employment on the basis of disability.

BACKGROUND

2This Application was dismissed in 2012 HRTO 865 where it appeared that the applicant had abandoned the Application. Due to an administrative error by the Tribunal it became apparent that the applicant had not abandoned the Application and was intending to attend the hearing. As a consequence of the fact that the entire basis for the Decision to dismiss was the result of the Tribunal’s error the Decision could not stand and it was reconsidered and set aside in 2012 HRTO 1002.

3On May 24, 2012 the applicant requested an adjournment of the case for a number of reasons. The other parties submissions were sought but before the deadline for those submissions the applicant withdrew his request. On May 30 2012 the applicant corresponded with the Tribunal indicating that due “to continuing issues at home and chronic pain” the applicant stated that he was unable to complete his journey to Toronto from Manitoba. The applicant further stated that he had a panic attack on a bus and had to get off the bus in Thunder Bay. The respondents indicated that they were unable to attend the hearing as well and the adjournment request was granted.

4Neither party had filed any of the materials required under Rules 17 of the Tribunal’s Rules of procedure although specifically directed to do so in a Case Assessment Direction issued on May 29, 2012. In the circumstances I made the following Directions:

a. At the hearing the applicant will be entitled to give evidence but it will be confined to the allegations made in the Application.

b. Similarly the two individual respondents have filed responses and have provided a narrative response to the Application. The individual respondents will be entitled to give evidence as well if they wish but that evidence will be confined to the answers to the allegations contained in their respective responses.

5I also directed that the new hearing date would be peremptory to all parties.

6In his Application the applicant makes the following allegations”

a. The applicant was injured at work on June 10, 2009. He reported the injury to his supervisor, Alexios, who threatened him and told me the accident occurred because of a previous injury to my hand.

b. The applicant alleges that he was warned not to file a WSIA claim/ He threatened to “bury me” if I reported the accident and made threats against me and my family;

c. The applicant alleges that he had a pre-existing injury to his hand and the respondents were aware of this;

d. The applicant alleges that the day following the applicant reported the accident and his supervisor’s response, to Valdir Lopo Prado. He also told Mr. Prado that Alexios had treated him badly, threatened him and called him names.

e. The applicant alleges that his doctor had given him a note clearing him for light duties at work. At this point Mr. Prado told me to take a break from work. The applicant alleges that this break took the form of a layoff due to shortage of work.

f. The applicant also alleges that the employer failed to report the accident to WSIA.

g. The applicant alleges that he called Mr. Prado about this but was yelled at.

7The respondents Sunshine Landscaping, Valdir Prado responded to the Application as follows:

a. The applicant did not report a workplace accident or injury;

b. There were performance issues with the applicant;

c. The respondent alleges that he was called to a work site one day because the applicant was out of control and he was sent home;

d. The respondent alleges that as a result of a strike of the City of Toronto’s outside workers, the respondent employer was required to ask people to stay home for a short period of time.

e. No formal layoff was undertaken but a number of individuals including the applicant and his supervisor Alexios were not given work for a period of time. The respondent alleges that the applicant began calling Mr. Prado often, with angry threats of going to the WSIB if he was not provided with work immediately.

f. The respondent did receive a call from the WSIB about the non-report of accident.

g. The respondent alleges that the applicant was an unsatisfactory employee who did not follow instructions and who was often late;

h. The respondent terminated the applicant because of the complaints of other employees.

8The personal respondent Alexios Paraskevopoulos states as follows:

a. The applicant was often late for work.

b. He was a poor worker.

c. He was at times completely irrational having temper tantrums etc.

d. The applicant suffered an injury at work but was able to continue working he said. He went to his doctor the next day but said he was fine to keep working.

e. The applicant did not complain about an injury until the strike when he and a number of others were laid off.

f. This respondent alleges that it was the applicant making threats and not him. He does concede that he threatened to call the CAS about the situation his children were in.

g. This respondent alleges that the applicant is exaggerating the whole situation for financial gain.

9At the hearing held on October 31, 2012 I heard from the applicant as well as the two individual respondents. Valdir Lopo Pradir confirmed that he represented the corporate respondent.

10The Application is allowed in part. While the evidence of all parties was significantly deficient on a number of points. In the end I find that a factor in the decision not to recall the applicant after the lay-off required by the 2009 Toronto Civic Workers Strike as it has come to be known, was that he was perceived to be unfit due to either a pre-existing medical condition or an aggravation of that pre-existing condition during the applicant’s employment by the organizational respondent. I also find that there were workplace conflicts in the workplace which were unrelated to any Code issues which also informed the respondents view that the applicant should not be recalled to work.

EVIDENCE AND ANALYSIS

11The applicant is veteran and in receipt of a veterans pension. At some point in the past the applicant suffered a crush injury to his right hand which has resulted in some mild deformity to the hand and some limited impairment to the applicant’s use of it.

12The applicant became acquainted with the personal respondent, Alexios Paraskevopoulos who recruited him for work in the landscaping business operated by the organizational respondent. He began working on May 26, 2009.

13The applicant was injured at work on June 10, 2009. Mr. Paraskevopoulos was the applicant’s supervisor. He asked the applicant if he was alright to work. The applicant agrees that he told his supervisor that he could work. He attended at his family doctor that evening. His doctor’s advice at that point was that he should continue working if he could. The applicant went to work the next day. He was asked by his supervisor whether he was alright to work and at that point said he was ok. To this point in the narrative the parties are in agreement. The parties are also agreed that the employer did not file a report of workplace accident to the WSIB.

14The applicant testified that he worked that day but the pain in his hand increased to the point where he had to stop. He testified that he went to his doctor who advised him to take two weeks off and engage in some physiotherapy. The applicant testified that his family doctor completed the WSIB paper work and initiated the claim on his behalf. The applicant testified that he spoke with his supervisor and advised that he needed two weeks off for physiotherapy. The applicant testified that he took the two weeks off and attended physiotherapy. The applicant testified that he was able to return to work after taking this treatment.

15The applicant testified that on June 26, 2009 he received a Record of Employment indicating that he had been laid off due to a shortage of work. He testified that he contacted Mr. Paraskevopoulos who said there was no work. He contacted an employee of the organizational respondent who indicated that there was no work. The applicant testified that he contacted Mr. Prado a number of times after he received the ROE and after he became aware that others were being recalled but was told by Mr. Prado that he was unfit for work.

16The applicant denies that he was a discipline problem at work but did say that he did not like the way he was treated on the worksite and did complain about it on many occasions to Mr. Prado and others. Indeed much of his evidence related to what he perceived as harassment and bullying at work, none of which he connected to any Code ground.

17The respondent Paraskevopoulos denies that the applicant took two weeks off due to the injury. The respondent Paraskevopoulos gave evidence of the workplace conduct of the applicant and the conflict that occurred from time to time. Mr. Paraskevopoulos confirmed that he and everyone else was laid off as a consequence of the strike.

18Not one of the witnesses was able to say when the strike began, but a google search indicates that it likely began on June 22, 2009. The applicant had no evidence to suggest that there were no layoffs as a result of the strike.

19Mr. Prado testified that the first he became aware of any of the issues was when he was contacted by the WSIB who were querying why no report of workplace accident had been filed. He also testified that the applicant contacted him demanding to return to work. Mr. Prado does not know when this occurred but it was likely when the strike was still ongoing. He testified that the applicant also threatened to file a WSIA claim if he was not given work. He further testified that the applicant asked whether there were light duties that he could perform.

20The respondents did not corroborate their version of events with any documents such as payroll records which could establish one way or the other whether the applicant was off on a two week leave prior to his lay-off.

21In the end, the applicant never returned to work with this corporate respondent.

22As indicted previously I find that it is more likely than not that a factor in the respondent’s determination that it would not recall the applicant after work resumed following the conclusion of the strike. I make this finding for a couple of reasons. First while the applicant’s evidence was deficient in that he could not be précised about when he made contact with the corporate respondent or Mr. Prado his evidence on this point was otherwise credible and consistent with the normal course of events. That is it would be expected that after a lay-off whether necessitated by a strike as suggested by the respondents or for other reasons, one would expect an employee who wanted to work to contact their employer and enquire about a return to work. On the face of it there is no reason to not accept the applicant’s evidence on this point.

23On the other hand Mr. Prado’s evidence is internally inconsistent and contradictory on two key points going to the central allegation of the applicant. As indicated above, it is not disputed that the employer did not report the workplace accident as required. Mr. Prado testified that the first he heard about any of these issues was when he was contacted by the WSIB enquiring about the failure to file an employer’s report of accident. Despite this evidence he also stated that the applicant threatened him with a WSIA claim in a subsequent conversation. It is not at all clear why the applicant would be threatening a WSIA claim when one was already ongoing. A second problem with Mr. Prado’s evidence was his admission that the applicant asked him about light duties and that his response was that there were no light duties. It is not at all clear why he and the applicant were discussing light duties if the applicant’s perceived or actual physical ability to do the job were not an issue.

24For these reasons I prefer the evidence of the applicant on the central question of whether or not he was told that he was not fit to work. Accordingly I find that a factor in the respondent’s decision not to return the applicant to work was their perception that he was not physically up to the work. There is no evidence at all that they considered whether or not they could accommodate whatever level of disability the applicant may have been experiencing at the time, although there is no evidence that the applicant was not, after the two weeks of physio-therapy, capable of performing the work safely.

25I also find, and it is not disputed by the applicant, that the applicant was involved in considerable conflict in the workplace none of which engaged any Code grounds and that this conflict was a factor in the respondent employer’s failure to re-call him to work when work became available after the strike .

REMEDIES

26Section 45.2 (1) of the Code provides as follows:

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.

27The applicant was in receipt of WSIB benefits for a period of time over the summer of 2009 because of the workplace injury and until he achieved maximum medical recovery. I have also considered the fact that there was clearly a great deal of conflict between the applicant, his supervisor, and others which is not alleged to have been related to any Code grounds and in any event based on all of the evidence there would be no basis to conclude otherwise. Accordingly, I have concluded that although the applicant’s perceived disability was a factor in the decision I also find that the respondents would not have recalled the applicant for other non-discriminatory reasons. Accordingly, the applicant is not entitled to an award of lost wages.

28The applicant is entitled to an award of damages for injury to his dignity, feelings and self-respect. The evidence in support of such an award is very weak. The applicant gave very little evidence about the impact of the respondents’ decision on him. As indicated above much of the evidence and evident concern of the applicant related to the workplace conflict and bullying he claims to have experienced. None of this is related to any Code ground. I have also concluded that because of this conflict the respondents would not have returned the applicant to work. The applicant also has other issues in his life unrelated to this brief employment relationship and for which this respondent is not responsible. Given all of these circumstances, it is very difficult to tease out any particular impact of the discriminatory treatment of him in this case. In all of the circumstances I find that an award of $3,000 for injury to his dignity, feelings and self-respect is appropriate.

29The applicant sought no public interest remedies and in my view in all of the circumstances it would not be appropriate to make such an order.

30The Tribunal makes the following Remedial Orders:

a. The respondents Sunshine Landscaping, Valdir Lopo Prado as owner of the corporate respondent are jointly and severally liable pay to the applicant the sum of $3,000 in damages for losses associated with injury to his feelings, dignity, and self-respect, within 30 days of this Decision.

b. The respondents Sunshine Landscaping, Valdir Lopo Prado are jointly and severally liable to pay to the applicant post-judgment interest on any accumulated principal and interest on the amounts set out above in paragraphs (a), (b) and (c) calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, from the date that is 60 days after the date of this Order.