O’Brien v. Organic Works Inc., 2012 HRTO 457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendel O’Brien Applicant

-and-

Organic Works Inc. o/a Organic Works Bakery and Peter Cuddy Respondents

DECISION

Adjudicator: Kathleen Martin Date: March 5, 2012 Citation: 2012 HRTO 457 Indexed as: O’Brien v. Organic Works Inc.

Oral and Written SUBMISSIONS

Wendel O’Brien, Applicant ) Melissa Mark, Counsel Organic Works Inc. o/a Organic Works Bakery and Peter Cuddy, Respondents ) No one appearing

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”), filed May 27, 2010, alleging discrimination in employment on the basis of disability. The applicant alleges that he was discriminated against by being laid off from his employment with the organization respondent following his return to work after a work injury.

2On July 22, 2010, the Tribunal issued a Notice of Application and delivered the Application to the respondents by regular mail at the address provided by the Applicant. The respondents did not file a Response and the Tribunal’s correspondence was not returned.

3The Tribunal issued an Interim Decision, 2010 HRTO 2116, dated October 20, 2010, which warned the respondents of the possible implications for failing to file a response. The Interim Decision was couriered to the respondents and the package was signed for at the address for the respondents provided by the applicant. The address is the same address listed on the organization respondent’s website. The package sent by regular mail has not been returned.

4The Tribunal issued a further Interim Decision, 2011 HRTO 101, dated January 13, 2011. In that decision, I found that the respondents received notice of the Application and the earlier decision directing the respondents to file its response. In addition, I found that the respondents refused or have chosen not to participate in the proceeding. I issued a number of orders, including that the respondents are deemed to have accepted all of the allegations set out in the Application, and the respondents are deemed to have waived all rights to notice or participation in these proceedings.

5A hearing into the Application took place on June 3, 2011, by conference call. At the hearing, the applicant adopted a signed declaration as part of his evidence and provided additional oral testimony. I also admitted into evidence a number of documents about the applicant’s employment, including documentation about his work injury, the circumstances leading up to his return to work reflected in correspondence and documents from the Workplace Safety and Insurance Board (“WSIB”) and various pay records.

The Evidence

6The following summary is based on the applicant’s signed declaration that he adopted before me, including documentary material and the additional evidence provided by him during the hearing. Unless indicated otherwise, I accept the evidence.

7The applicant commenced working for Organic Works Bakery (“Organic Works”) on November 4, 2008. The individual respondent, Peter Cuddy, is the president of Organic Works.

8The applicant was employed as a delivery driver, which was considered a permanent position. The job required the applicant to drive to Toronto and surrounding areas every Tuesday, Thursday and Friday to deliver the bakery goods. The applicant also did marketing for Organic Works on Mondays, Wednesdays and Saturdays, which included doing product demonstrations and meeting with shop owners to recruit them as new customers.

9The applicant worked a minimum of 40 hours per week at the rate of $8.75 per hour.

10On December 23, 2008, the applicant was injured in a car accident while working. The applicant was taken to emergency at Alexandra Hospital in Ingersoll and discharged on the following day. The applicant filed a claim for loss of earnings and benefits with the Workplace Safety and Insurance Board (“WSIB”) and was subsequently approved for benefits.

11The applicant was examined and seen by a psychiatrist on February 3 and 23, 2009. The applicant was diagnosed as having post-traumatic stress disorder from the accident. In addition, in February 2009, the applicant was diagnosed by his physician as having chronic back pain and acute post-traumatic symptoms. This physician recommended that the applicant receive physiotherapy and see a psychiatrist for acute psychiatric complaint.

12Throughout the spring of 2009, the applicant continued to be off work because of the injuries sustained during the accident. The applicant participated in a work conditioning program. As of March 25, 2009, the applicant was cleared to return to modified work with reduced hours and restrictions. It is the applicant’s understanding that Mr. Cuddy could not provide work within his limitations and so the applicant continued to remain off work. This is confirmed in the documentary material admitted, including memo notes from WSIB records relied on by the applicant.

13On April 21, 2009, the applicant began a work hardening program. On May 1, 2009, a return-to-work meeting was held with a WSIB return to work specialist and a representative of Organic Works. The applicant states that it was determined that he could perform some tasks as part of his work hardening. The corresponding notes of that meeting indicate that at one point, a representative of Organic Works suggested that the applicant could do local deliveries on Monday, Tuesday and Thursday of two hours or less a day; elsewhere it is indicated that Organic Works is only able to offer delivery that would also include out of town deliveries to Toronto and Hamilton. In the end, no duties were provided and the applicant remained on WSIB benefits.

14On June 15, 2009, the applicant was cleared to return to full regular duties. A letter to the applicant from the WSIB confirms this along with the result that loss of earnings benefits would cease as of June 13, 2009. The letter and related memo to file from the applicant’s WSIB file reflect that Mr. Cuddy would to take the applicant back June 15, 2009 to “full regular” duties.

15The applicant states that he went into Organic Works on June 15, 2009, expecting to return to work but Mr. Cuddy sent him home stating that there was no work for him. The applicant returned on June 17 and 18, 2009, but was again sent home. The applicant called Mr. Cuddy on June 19, 2009, and left a voice mail message asking if he had work for him. No response was received that day.

16On Saturday June 20, 2009, the applicant went into Organic Works and did some cleaning. He was sent home after three hours.

17The applicant was told by a co-worker and Mr. Cuddy that the applicant had been replaced with another employee. The applicant observed this replacement employee at Organic Works when he came in hoping to return to work.

18The applicant was frustrated and contacted the WSIB on June 22, 2009. It is the understanding of the applicant that following this contact, the WSIB called Mr. Cuddy, who reportedly said it was a slow time for business, that it would pick up in September and that he had hired someone to help with deliveries but he only does the “odd run”.

19On June 23, 2009, the applicant went into work and asked Mr. Cuddy why he no longer had any hours for him. Mr. Cuddy stated there was no work and asked “Can’t you get a job at East Side Marios?” The applicant had previously worked at this restaurant as a sauté cook and baker.

20On June 25, 2009, the applicant was laid off by Mr. Cuddy. Mr. Cuddy told the applicant that he had no more work for him and he was permanently laying him off. The applicant asked Mr. Cuddy to give him a call if anything came up and Mr. Cuddy agreed to do so.

21The applicant had no further contact with Mr. Cuddy following his layoff.

22The applicant started to look for another job immediately after being laid off. The applicant estimates that he sent out a minimum of 15 résumés per day to prospective employers. The applicant candidly admitted that he had a few offers, but outlined reasons for declining the offers, which I find acceptable. For example, the applicant was offered a delivery job at one company but did not have a car so was unable to take the offer. The applicant was also offered a job selling knives but he was unable to take this offer because he had to buy the product himself upfront and he would only be compensated if he sold the product. A third offer received in late September was for a door-to-door salesperson for Direct Energy but this position was paid only on commission. The applicant was concerned about the absence of a guarantee of any pay and the reports in the press at the time which cautioned people to not talk to the salespersons. The applicant got a job on October 19, 2009.

23On July 18, 2009, while searching for a job online, the applicant found an advertisement in the London Free Press for a “baker” at Organic Works. The applicant did not receive any call from the respondent about this job opportunity and the applicant believes he would have been qualified for it given his prior experience at East Side Mario’s. The applicant states that he did not apply for the job because he understood Mr. Cuddy would let him know if there was any work for him.

24The applicant states that the delivery job continued to be done at Organic Works by the employee hired to replace him when he was away. The applicant states that delivery is key to the business of the bakery and absent deliveries to Toronto and Hamilton, Organic Works would cease to exist. The applicant believes that the marketing function was done by Mr. Cuddy after he left the workplace.

25The applicant described the serious impact that the accident, its aftermath and his eventual lay-off from employment had on him. The applicant states that when he lost his job he felt like a failure. He became depressed and felt that he was not worth anything. He started new medication with his psychiatrist. The applicant states that he was very hurt when he saw that Mr. Cuddy was hiring a baker, as he had five years’ experience in baking bread and cookies and that’s when he started to have issues at home as he became “mopey and depressed”.

26The applicant also testified about the financial stress he experienced. It was particularly difficult given his circumstances which included having a newborn child and a girlfriend on maternity leave. The applicant states that financially he was unable to pay his student loan and had to go to a food bank to get food. The applicant states that the “accident” put a lot of pressure on his girlfriend as she had to pay all the bills and because he was so injured, he could not help out and they started to fight more.

27The applicant states that he still feels the impact of what happened. The applicant states that they have tried many medications, but that he is still diagnosed as having chronic back and shoulder pain and has “remnants” of post traumatic stress.

ANALYSIS AND DECISION

28The relevant provisions of the Code provide as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of (…) disability.

9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10(1) In Part I and in this Part,

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury,…….

(b) a mental disorder, or

(c) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

11.(1) A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs,…..

29The Code prohibits discrimination whether direct or adverse effect (s. 11). While the Code addresses direct and adverse effect discrimination separately, the underlying issue is the same: whether or not the applicant faces some burden or disadvantage as a result of his identification with a prohibited ground.

30In this case, the applicant alleges that he was discriminated against when he was not allowed to return to work, was denied hours of work and then was laid off. The applicant disputes that the respondents’ conduct was motivated by a shortage of work and argues that his injury and related request for time off was the reason for being treated in the manner described. In the alternative, the applicant argues that even if there was a slowdown, the applicant was disadvantaged insofar as the respondents decided to keep the replacement worker instead of him.

Did the respondents discriminate against the applicant on the basis of disability?

31The applicant bears the onus of proving on a balance of probabilities that his rights under the Code have been infringed. A balance of probabilities means that it is more likely than not that the applicant’s rights have been infringed. It is also well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination.

32In order to establish a prima facie case of discrimination under the Code, the applicant must prove that (1) he had, or was perceived to have, a disability; (2) he received adverse treatment; and (3) his disability was a factor in the adverse treatment. See for example: Communications, Energy & Paperworkers’ Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52, at para. 36.

33Based on the acceptance of allegations and the uncontradicted evidence of the applicant, which I accept as credible, I find that the applicant has been discriminated against on the basis of his disability.

34With respect to the first part of the test, a workplace injury clearly falls within the definition of disability under the Code: see section 10 (1)(e). Further, and in any event, the applicant was specifically diagnosed with chronic back pain and post-traumatic stress disorder following the accident and which he testified he continues to suffer from as of the date of hearing. I accept that these conditions are disabilities within the meaning of the Code (given that the definition of disability includes “any degree of physical disability, infirmity…caused by bodily injury” and a “mental disorder”).

35With respect to the second part of the test, I find that the applicant has established adverse treatment. The applicant’s evidence was that he was not allowed to return to work, was denied hours and on June 25, 2009, was permanently laid off.

36With respect to the third part of the test, I find that the applicant has established a link between the adverse treatment and his disability.

37I begin with the respondents’ deemed acceptance of the central allegation in this case – namely that the respondents laid him off because he was injured and not because of a shortage of work. In the Interim Decision dated January 13, 2011, the respondents were deemed to have accepted all of the allegations in the Application including this central allegation. As such the respondents have accepted the direct link between the applicant’s adverse treatment and his disability.

38Moreover, and in any event, based on the evidence presented, I find I can reasonably infer that the applicant’s workplace injury and related time off was a factor in the denial of hours and subsequent layoff. I draw this inference from the following evidence:

• The documentary material from the WSIB reflects that it was reported that Mr. Cuddy would take the applicant back to “full regular” duties, which clearly suggests that full regular duties were available for the applicant to perform;
• The applicant’s former duties continue to be performed but were not reassigned to him. To the extent there is some indication in the documents referenced that Mr. Cuddy is reported as saying after the applicant’s return that the replacement worker only does the “odd” delivery run, I do not accept it. This “report” is hearsay and in any event is inconsistent with Mr. Cuddy’s earlier documented representation to the WSIB. I prefer the applicant’s oral evidence about the key role that delivery plays in the business (implying that delivery is a consistent requirement of the business), his own observation of the replacement employee and the reports to him that he had been replaced (see paras.17 and 24 above); and
• The applicant was permanently laid off within days of his return to work.

39This evidence supports a finding of constructive discrimination. As set out above, section 11 of the Code provides that a right of a person is infringed where a “requirement, qualification or factor” exists that is not discrimination on a prohibited ground but results in discrimination as set out in that section. In this case, it is apparent that the applicant has been adversely affected or disadvantaged by a requirement that is not discrimination on a prohibited ground - namely the requirement that he be in attendance at work - because his work was reassigned when he went on a disability- related leave and it was not assigned back to him when he was able to return.

40The applicant had a disability, as a result of which, he required a leave from work. Implicit in the notion of a “leave” is the right to return to one’s former work to the extent the work continues and subject to any defences or non-discriminatory explanations that a respondent may raise. Based on the evidence that I accept, there was no shortage of work. Further, apart from the applicant’s injury and related time off to recover, I have no evidence before me of any difference between the applicant and the replacement employee who continued to perform the delivery work, nor have I been provided with any explanation as to why the applicant was not re-assigned his marketing functions. In short, the failure of the respondents to participate in these proceedings means that there was no defence or justification advanced as to why the work could not be reassigned to the applicant.

41For all of the above reasons, I therefore find that the applicant was discriminated against on the basis of disability in not being given hours upon his return to work and being subsequently laid off on a permanent basis.

42The applicant asks that the respondents be held jointly and severally liable – the corporation on the basis that it is the applicant employer and as such is liable for the actions of its officers and employees on the basis of s. 46.3 (1) of the Code, and Mr. Cuddy on the basis that he is the “sole owner” of the corporation and was responsible for the discrimination. Having regard to these submissions, I find that it is appropriate to hold the respondents jointly and severally liable for the violations.

REMEDY

43Section 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.

44In this case the applicant requests that the Tribunal award him $20,000.00 in general damages; lost wages for the period June 15, 2009 to October 19, 2009; and remedies for future compliance. I find it appropriate to grant the remedies in part.

Remedy for injury to dignity, feelings and self-respect

45In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the 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.

46In this case, the applicant argued that $20,000 was justified having regard to the seriousness of the breach, the particular impact on the applicant and comparator cases. While the applicant submits that, in general, the Tribunal’s awards have been in the range of $10,000 to $20,000 for disability-related discrimination involving a termination (or resignation resulting from discriminatory treatment), the applicant made specific reference to cases at the upper half of the range, including Jackson v. M. Butler Insurance Brokerage Ltd., 2007 HRTO 5 ($10,000 general damages and $10,000 mental anguish); Turner v. 507638 Ontario, 2009 HRTO 249 ($15,000); Lopetegui v. 680247 Ontario, 2009 HRTO 1248 ($20,000); Simpson v. JB & M Walker, 2010 HRTO 819 ($15,000); and Torrejon v. 1147335 Ontario, 2010 HRTO 1513 ($20,000).

47While I do not disagree with the applicant’s submissions on the range of awards, I have had regard to the Tribunal’s case law generally, including those awards at the lower end of the range cited: See, for example, LeBlanc v. Syncreon, 2010 HRTO 2336 ($10,000.00); Wappler v. Geo Holiday Services, 2010 HRTO 1465 ($10,000), and Coscina v. Halton School of Equitation, 2011 HRTO 1949 ($10,000.00). In addition, I note that in cases where $15,000 to $20,000 has been ordered, the cases have involved either multiple breaches or conduct occurring over a longer period of time (e.g. Lopetegui and Turner) or evidence of significant psychological or emotional consequences (e.g. Simpson), in some cases with medical evidence (Torrejon).

48In this case, I find the treatment of the applicant serious. While the applicant had relatively short term employment of approximately seven months, he was essentially precluded from returning to work after a work injury and laid off. I accept the applicant’s evidence on the impact of the lay-off including that he became depressed and felt like a failure. While I accept this evidence, I do note that it was somewhat sparser than the evidence given on the impact of the accident itself, evidence which I also accept but which I do not find relevant to the breach found. I do accept that the lay-off came at a particularly vulnerable time for the applicant given that he had a new baby and his girlfriend was on maternity leave, which resulted in serious financial consequences including having to go to a food bank.

49In this case, having regard to applicant’s circumstances and the comparator cases, I find that the appropriate remedy is $13,000.00 for injury to dignity, feelings and self-respect.

Lost Wages

50The applicant also seeks an award of monetary compensation for lost wages for the period June 15, 2009 (when he was supposed to return to full regular duties) to October 19, 2009, when he commenced his new position, subject to a deduction for the wages received for the work performed on June 20, 2009.

51The applicant is under a duty to mitigate his losses but the onus of proving that an applicant failed to take reasonable steps to mitigate lies on the respondent. See Heintz v. Christian Horizons, 2008 HRTO 22, at para. 265.

52The applicant provided un-contradicted evidence that he was not provided with work by the respondents following his return to work (other than three hours of cleaning) and was unemployed for 18 weeks. The applicant also provided his 2009 T4 reflecting that he received $430 from the respondents in the calendar year. The applicant testified that the amount reflects the income earned in 2009 for cleaning in addition to vacation pay owed to him.

53I find the applicant lost income of $6,273.75 based on the following formula: $8.75 (his hourly rate) x 40 hours (per week) x 18 weeks subject to a deduction of $26.25 for the three hours worked.

54I also find that the applicant mitigated his losses. As set out above, the applicant testified about his efforts to find alternative employment, including detailing offers received which he provided reasons for rejecting. I find that the applicant’s reasons were valid and do not find that the award for lost wages should be reduced other than as indicated for the three hours of cleaning.

55I find that the applicant is entitled to an award of $6,273.75 for the wages lost.

Remedies for Future Compliance

56The applicant also requests that Mr. Cuddy take human rights training (either Human Rights 101 e-learning course accessible through the Ontario Human Rights Commission’s website or a formal class); and that a copy of this decision be provided to all current and future employees of the organization respondent for a one year period and/or that a copy of the decision be posted where current employees can see it. The applicant requests that the Tribunal remain seized or that confirmation of the foregoing be provided to the applicant’s counsel.

57While these particular remedies were not requested in the Application, under s. 45.2 (3) the Tribunal may make an order directing the party to the application to do anything, that in the opinion of the Tribunal, the party ought to do to promote compliance with the Act.

58In this case, I do find it appropriate to order that Mr. Cuddy undergo training. In my opinion, Mr. Cuddy would benefit from training on his obligations under the Code. Accordingly, I order that he complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) or equivalent training on basic principles of human rights, and confirm to the applicant’s counsel within 60 days of this Decision that he has done so.

59I am not convinced that providing the decision to other employees and/or having it posted would serve to promote compliance with the Code based on the evidence presented and so decline to order either of the alternative remedies sought.

Interest

60The applicant also seeks pre and post judgment interest with a request that the former run from the date the applicant was laid off.

61Under s. 128 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, pre-judgment interest runs from the date the cause of action arose to the date of order. In this case, I find it appropriate to order that pre-judgment interest run on the compensation for injury to dignity, feelings and self-respect from June 25, 2009, but that pre-judgment interest run on the compensation for lost wages from August 15, 2009, which is an approximate mid-point in the period for which compensation for wages is being ordered.

ORDERS

62The Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondents are jointly and severally liable to pay the applicant $13,000.00 in monetary compensation for injury to dignity, feelings and self-respect along with prejudgment interest calculated from June 25, 2009 in accordance with the Courts of Justice Act;

2. Within 30 days of the date of this Decision, the respondents are jointly and severally liable to pay the applicant $6,273.75 as monetary compensation for lost wages along with prejudgment interest calculated from August 15, 2009 in accordance with the Courts of Justice Act;

3. The respondents are jointly and severally liable to pay the applicant post-judgment interest on any amount of the awards of monetary compensation set out above in paragraphs 1. and 2. not paid within 30 days from the date of this Decision.

4. Within 60 days of this Decision, Peter Cuddy shall complete the Ontario Human Rights Commission’s Human Rights 101 course or equivalent training on basic principles of human rights, and confirm to the applicant’s counsel that he has done so.

Dated at Toronto, this 5th day of March, 2012.

“Signed by”

Kathleen Martin Vice-chair

CORRECTION: The decision released on March 5, 2012 had an incorrect name for the corporate respondent. The name is corrected to “Organic Works Inc. o/a Organic Works Bakery”.