HUMAN RIGHTS TRIBUNAL OF ONTARIO
______________________________________________________________________
B E T W E E N:
Marcel Backs
Applicant
-and-
Corporation of the City of Ottawa
Respondent
______________________________________________________________________
decision On Remedy
______________________________________________________________________
Adjudicator: David Muir
Indexed as: Backs v. Ottawa (City)
______________________________________________________________________
Written Submissions
Marcel Backs, Applicant ) Sean McGee, Counsel
City of Ottawa, Respondent ) David Patacairk, Counsel
1This is an Application filed on January 26, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In 2011 HRTO 959 (the “Merits Decision”), I found that the respondent employer had violated the Code in the manner in which it dealt with the applicant’s request to return to the work place after recovering from an aggravation of injuries sustained in a workplace accident. I concluded that the applicant, a Fire Prevention Officer (“FPO”), could have been returned to his pre-injury work in his home position with some accommodation or to a dispatcher position in which he had also worked, with little or no accommodation.
3In the Decision I left it to the parties to attempt to resolve the remedial issues. The parties, with some important exceptions, appear to be agreed about a number of the other remedial issues. This Decision deals with the major points of controversy and leaves it to the parties to resolve the remaining essentially calculation issues within 30 days of the date of this Decision. I will remain seized in the event that the parties are unable to resolve the outstanding issues or if an Order of some kind is required.
4The remedial provisions of the Code are set out in section 45.2(1), which 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:
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.
Wage Loss
5Under the Code, a person whose rights have been infringed is entitled to monetary compensation for actual losses arising out of the infringement. The purpose of compensation is to restore the applicant as far as reasonably possible to the position that he would have been in had the discriminatory acts not occurred. In determining compensation for lost wages, any award is subject to an applicant’s duty to mitigate his losses by making reasonable efforts to obtain suitable employment. The onus of proving a failure to mitigate is on a respondent.
6The parties agree that the applicant is entitled to an award of lost wages. They also agree about the date from which lost wages should be calculated but disagree about when the claim should end as well as the proper calculation of the quantum.
7The applicant calculates his entitlement to lost wages to the date his submissions were filed – November 21, 2011. The respondent states that the applicant retired on November 30, 2010, and, accordingly, his entitlement to lost wages must conclude at that point. The applicant responds that he was forced to retire in order to supplement his income and would not have done so had he been returned to the workplace. The applicant indicates that it is his intention to revoke his retirement and retire again effective November 30, 2011. The applicant has not sought reinstatement to a position with the City.
8In cases such as these it is often a matter of speculation what the actual consequences of a respondent’s actions have had for the applicant. This case is no different and in some sense the contingencies surrounding the wage loss issue are more substantial than others because of the passage of time and the applicant’s state of health. As I noted in the Merits Decision, more than four years have passed since the respondent employer’s decision that it could or would not accommodate the applicant. A similar length of time has passed since the applicant’s fitness to return to this workplace was last assessed. Whether or not the applicant could have returned to work with the City, or in what capacity, at the time of the Merits Decision was somewhat speculative. Based on the medical evidence available at the time, the success of a return to work in 2007 was not a certainty. Assuming that the applicant could have successfully returned to work in his former position as an FPO it is similarly somewhat speculative to state that the applicant would have been able, or been content, to remain actively employed for the subsequent four years.
9In my view the difficult question raised in this case, given that the facts giving rise to it arose several years ago, is how long the respondent ought to be responsible for the applicant’s lost wages. The resolution of this issue is impacted by the fact that the applicant was in receipt of Workplace Safety Insurance Act (“WSIA”) benefits throughout and appears to have taken no other steps to mitigate his damages until he retired in November 2010. I have no evidence of what steps (if any) the applicant took to mitigate his damages. The tax information produced by the applicant indicates that he earned substantial incomes in 2007 and 2008 but the materials produced for those years are insufficient to assess what the sources of this income were.
10The decisions the Tribunal has released since the advent of the new remedial provisions (set out above) provide no ready answer to the length of time for which wage loss damages might be awarded an applicant, other than to repeat the view that the common law of damages in employment cases is not the reference point. See Osvald v. Videocomm Technologies, 2010 HRTO 770, and, in particular, the decision of the Ontario Court of Appeal in Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347). This view flows from the language of section 45.2 and its predecessors, which clearly signals a different and certainly broader approach to the fashioning of remedies.
11There are a range of possible scenarios that can be imagined. At one end of the spectrum fall situations where the Tribunal concludes that a Code-prohibited ground was a factor in a decision to dismiss an employee but his or her employment would have been terminated by the employer in any case for other non-discriminatory reasons. In that case there would likely be no claim to lost wages. At the other end of the spectrum fall circumstances where the Tribunal must consider whether an award for wage loss should continue post hearing. For example where an employee was just shy of normal retirement age at the time of the hearing and the Tribunal is persuaded that he or she would have remained employed until that time or beyond it. See McLean v. DY 4 Systems, 2010 HRTO 1107.
12In this case the applicant had been unable to perform his full duties for some years prior to the human rights complaint being filed, and had been off work entirely for almost three years at that point. As I found in the Merits Decision, while the medical evidence tendered in this matter established that the applicant may have been able to perform his pre-accident position with some modifications, it also suggested that there remained significant issues with his physical health. The parties’ submissions seem to accept as a given that the applicant is entitled to lost wages until his retirement, subject to the dispute about the retirement date. This will not always be the appropriate time frame for damages to run.
13In Pilon v. Cornwall (City), 2012 HRTO 177, I considered this issue in a situation where there was a similarly lengthy period of time between the discriminatory events and the hearing. In that decision, I considered the personal circumstances of the applicant: age, educational background and work experiences; length of employment and seniority in the respondents’ organization which may affect the transferability of skills and ability to seek work with other employers and in other fields. Another consideration was the availability of work that the applicant is able to perform in the area in which they live. An additional factor that might be considered and which arises in this case would be the applicant’s ability to retire with a pension within a reasonable time after the lost wage claim began to run. In the final analysis the determination of how long a respondent is liable for lost wages damages to an employee who has been put out of work or otherwise lost income is in the end a question of determining what is reasonable in all of the circumstances. In a case where a wage loss claim is made, the practical question is for how long is the respondent reasonably responsible to support the applicant in their effort to adapt to their new circumstances and find a new means of earning a living.
14I am not satisfied that the applicant is entitled to be compensated for lost wages to the date of his submissions on remedy. An award of lost wages for somewhat more than four years seems excessive in the circumstances. A claim of this length carries with it the implicit assertion that the applicant would have been able and/or willing to work for that period of time. In all of the circumstances this seems unlikely. I note that the applicant is not seeking reinstatement and has taken no apparent steps to find alternative employment. The only evident step he has taken to mitigate his damages was his decision to retire in November 2010.
15On the other hand, given the applicant’s age, physical health and length of service with the employer, as well as the proximity of these events to an apparently acceptable retirement date I find that it is reasonable in all of the circumstances that the applicant be entitled to lost wages until his retirement in November 2010. This represents an award of lost wages of somewhat more than three years, which in my view is a reasonable period of time for someone the applicant’s age and with his work experiences to have adjusted to his new circumstances and found a new way to earn a living.
Deduction of WSIA Benefits
16The parties agree that the WSIA benefits received by the applicant, grossed up to reflect the fact they are not subject to income tax, should be deducted from the lost wage award, at least until April 1, 2009. How these benefits should be treated after that date is the second significant disagreement between the parties.
17This issue concerns the treatment of the WSIA benefits the applicant continued to receive after they are said to be “locked in”, in this case as of April 1, 2009. The applicant states that once “locked in”, WSIA benefits paid to the applicant, in this case by the City directly, should no longer be deducted from damages for lost wages because they would be paid to the applicant in any event. Even if, for example, he had gone back or been returned to work for the City after April 1, 2009, the applicant argues that his WSIA benefits would be payable to him in addition to the wages he was entitled to as an employee. The applicant relies on the fact that the City took the position as a preliminary matter that this was the case and accordingly that it would be unjust to embark on this proceeding with the potential consequence that the City would be required to pay the applicant lost wages and WSIA benefits for the same periods of time.
18The applicant’s position has a certain logic to it but in the end I reject the submission. While the applicant is correct that the respondent laid out this scenario as part of its preliminary argument that this Application ought to be dismissed, it is also the case that the respondent’s argument was rejected by me. See 2010 HRTO 808. In doing so, I noted that the fact that the applicant was in receipt of WSIA benefits throughout the piece would have implications in determining the appropriate remedy should it be determined that the Code had been violated.
19The scenario raised by the respondent in its preliminary arguments and now relied on by the applicant has not in fact come to pass. The fact is that the applicant did not return to the workplace before or after April 1, 2009, nor has the applicant sought to be reinstated by me. What I am now required to do is to determine as best as I can the remedy that puts the applicant in the position he would have been in had the respondent employer made a proper determination of its ability to accommodate him in May and June 2007. Had the respondent not violated the Code, the applicant should have been returned to work at some point in 2007, in which case his WSIA benefits would likely have ended. Examined from that perspective, to not allow a credit to the respondent for payments actually received by the applicant as compensation for lost wages would leave him better off than he would have been had the respondent not violated the Code.
20A minor dispute between the parties relates to the calculation of the wages the applicant would have received had he been back at work beginning in October 2007. Although there is an official annual salary for an FPO which the respondents are relying upon, the applicant states that the actual earnings of an FPO are calculated using a formula set out in the collective agreement. The result is a different and slightly greater annual salary than the official salary. The applicant made detailed submissions on this point with reference to the relevant provisions of the collective agreement. The respondent provided a table of salaries for the applicant prepared by the respondent’s payroll department but with no explanation of how the figures were derived. The applicant’s submissions make it clear how the figures were derived and I accept them as a reasonably accurate estimate of what the applicant might have earned had he been allowed to return to work.
21The parties agree that the WSIA payments received by the applicant should be grossed up to reflect the fact that WSIA benefits are not taxable and wages are.
22For purposes of calculating damages for lost wages, the applicant agrees that the WSIA deemed the applicant could have earned in occupations for which he was suited whether earned or not, can be deducted from the wages the respondent should be liable for.
23In summary I find that the applicant is entitled to be paid lost wages from October 7, 2007 to November 30, 2010 less those amounts received in the form of WSIA benefits as well as the deemed mitigation during this time period. For the years 2007 and 2008 these amounts as reported on the applicant’s spreadsheet are as follows:
2007
$6,301.22
2008
$23,256.69
The amounts owing for 2009 and 2010 will need to be recalculated following my determinations set out above.
Other Pecuniary Losses
24The applicant seeks an Order requiring the respondent to take the appropriate steps to re-adjust the applicant’s pensionable service and make the appropriate premium payments on behalf of the applicant. The respondent has indicated that it would make such payments directly to the pension plan. In response, the applicant sought an Order as part of the damages award that the City pay amounts set out below and provide him with confirmation from OMERS that his pension contributions and the corresponding amount of the employer's contributions were paid. As with other heads of damages, the amount payable for 2010 may have to be recalculated to reflect my determination of the retirement date issue above. As indicated above, if an Order is required in respect of this issue I remain seized of this matter for this purpose as well.
2007
$1,612.39
2008
$8,162.44
2009
$9,211.88
2010
$9,777.29
Lost Overtime Opportunities
25The applicant seeks compensation for lost overtime opportunities based on an average of overtime performed in the department. The applicant claims an amount of overtime based on an average of what was worked in the applicant’s work area over the relevant period of time. The respondent states that the applicant is not entitled to be compensated for lost overtime opportunities because there is no evidence that he would have been available or able to perform such assignments. Alternatively, the respondent states that the overtime hours worked during the period in question were greater than normal because the applicant was not in the workplace. The respondent argues that the applicant’s work hours should be deducted from the overtime hours worked in the work area to quantify the actual need for overtime.
26I do not accept the respondent’s position on this point. While I do agree that there are contingencies surrounding the applicant’s availability and/or willingness to work overtime for the reasons set out above, I can not accept their assertion that the overtime that was worked was entirely a function of the applicant’s absence. The applicant argues that he would have taken the opportunity to work the average number of overtime hours worked in his department. This seems somewhat unlikely particularly early in his return to work. A period of work hardening would have been required as the applicant had been off for several years. If, as he became stronger, the applicant was able to adequately and safely perform his duties as modified over the long term, it could be anticipated that the applicant would have worked overtime as it was available. All of which is say that it is a matter of some considerable speculation whether and how much overtime work the applicant would have been willing and able to perform in the event that he was returned to work.
27In assessing the appropriate damages in a situation where what has been lost is an opportunity, as in this case, the party seeking the award must establish a reasonable possibility that the opportunity would have been taken. The greater the likelihood the opportunity would have been available and taken the higher the damage award. See Dantu v. North Vancouver District Fire Department, (1986) 1986 CanLII 6503 (BC HRT), 8 C.H.R.R. D/3649, cited with approval by the Board of Inquiry in McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5.
28Although I find that overtime opportunities would likely have been available to the applicant I have no evidence that would support the conclusion that he would have been willing and able to take up those opportunities. Accordingly, there is no evidentiary basis to determine the likelihood that the applicant would have been willing or able to work the overtime that might have been available to him.
Sick Leave
29The parties agree that the applicant should be compensated for lost sick leave gratuities based on average usage of sick leave in his department. That amount is $11,732.62.
Non-Pecuniary Damages
30In assessing the appropriate compensation for injury to dignity, feelings and self-respect, there are two main considerations: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880. In Arunachalam, the Tribunal reviewed at paras. 52-54 the development of its approach to the assessment of damages:
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.
31The considerations discussed in Sanford v. Koop are:
- Humiliation experienced by the complainant
- Hurt feelings experienced by the complainant
- A complainant’s loss of self-respect
- A complainant’s loss of dignity
- A complainant’s loss of self-esteem
- A complainant’s loss of confidence
- The experience of victimization
- Vulnerability of the complainant
- The seriousness, frequency and duration of the offensive treatment.
The applicant is entitled to compensation for the intangible losses he has experienced including losses to his dignity, feelings and self respect. The applicant seeks $50,000 in compensation for damages to his feeling, dignity and self-respect. The respondent disagrees stating the appropriate quantum of damages under this head is $15,000.
32In support of what is an extraordinarily large award under this head the applicant submits the City effectively terminated his employment. In the applicant’s submission there is no indication that the respondent had any intention to take any real, meaningful steps to return the applicant to any job. The applicant submits that the City ignored the medical evidence that supported his return to work and did not refer him for potential work because of perceived problems with the applicant’s ability to work with others.
33I find that a substantial award is merited in this case but do not accept the applicant’s submission that $50,000 is the appropriate sum. I find that an award of $15,000 is appropriate in all of the circumstances. In coming to this conclusion I accept that from the applicant’s perspective he was in effect terminated by the respondent after a career of some 16 years and that the respondent took no serious steps to consider his re-employment in Fire Services, either in his own position or in Communications. As I noted in the Merits Decision, the respondent led a good deal of evidence of alleged performance and other interpersonal issues with respect to the applicant but which was not referred to in argument and seemed to serve no purpose. Although not necessary to make any findings in this regard in the Merits Decision, this evidence considered together with the weakness of the respondent’s evidence on the steps they took to accommodate the applicant is sufficient to support the inference that the respondent was not going to return the applicant to Fire Services under any circumstances. In my view the loss of one’s employment in these circumstances merits a significant award of monetary compensation for damages to injury.
34On the other hand, the applicant was not in fact terminated and was in receipt of WSIA benefits at all material times until he was able to retire in November 2010. As such he was in a less vulnerable position than an employee simply put out of their employment. I also have very little evidence of the subjective impact of these events on the applicant. The hearing was bifurcated and the applicant’s evidence was largely confined to the issue of liability. However, during the course of his evidence he was asked about the impact of his not being returned to work. The applicant was evidently emotional in his brief response to the question and I accept that the manner in which the respondent dealt with his request to return to work had an emotional impact on him.
Interest
35Neither party made any submissions on interest. I find that the applicant is entitled to post-judgement interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, on any amounts still owing to the applicant 30 days after the date of any Remedial Order made in this Application.
36I am seized of this matter.
Dated at Toronto, this 27^th^ day of February, 2012.
“Signed by”
_______________________________
David Muir
Vice-chair