HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Phil Britton
Applicant
-and-
General Motors of Canada
Respondent
DECISION
Adjudicator: David Shannon
Indexed as: Britton v. General Motors of Canada
Appearances
Phil Britton, Applicant ) Self-represented
)
General Motors of Canada , ) David Bannon, Counsel
Respondent )
)
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated February 4, 2009. The underlying Complaint was filed with the Ontario Human Rights Commission (the “Commission”) on August 28, 2007.
2The Application alleges that the respondent discriminated in employment on the basis of disability, contrary to s. 5 of the Code when it failed to accommodate his seizures arising from epilepsy. In particular, the applicant alleges that the respondent invoked improper protocol when it physically restrained him and barred him from returning home after a seizure on March 7, 2007.
3At the outset of the hearing the applicant indicated through his counsel that he wished to have the two personal respondents removed from the Application before this Tribunal. The respondent counsel agreed, and I ordered that their names be removed from this Application.
ISSUES FOR DETERMINATION
4The parties agree that the applicant has a disability within the meaning of the Code due to his epilepsy. I must therefore determine based on the evidence whether the applicant has established on the balance of probabilities a case of discrimination on the basis of disability, and if so, whether the respondent has established that it made reasonable attempts to accommodate the applicant’s disability up to the point of undue hardship. For the reasons that follow, I find that the respondent did not meet its procedural and substantive duties to accommodate the applicant.
Facts Alleging Discrimination
5The applicant had suffered seizures since beginning work with the respondent. They were sporadic and unexpected, but consistent insofar as they would last between 15 and 20 minutes in length. He had several seizures at work. If someone pulled him during the seizure he would pull the other way, but if asked to sit down, he would comply. Often he would pass out at the start of the seizure, and had no memory of the seizure period. Typically it would take 3-5 minutes for respondent medical personnel to arrive. After a seizure he would usually go to the respondent medical office or be taken by cart to quietly be left alone.
6On March 7, 2007, shortly before 2:00 p.m. the applicant suffered a seizure during his shift with the respondent employer. He had experienced seizures several times in the past at work to which both nursing staff and co-workers had responded. During this incident of seizure the plant nurse was notified, arriving as his seizure concluded after 2:00 pm. As on prior occasions, the nurse determined whether the applicant was oriented to time and place by asking him to state the date, time and his name. These answers were correct. The applicant then advised the nurse that it was almost the end of his shift and he wished to go home to recover as he had a previously arranged ride with a carpool of co-workers. The nurse then asked the applicant to go to the nurse’s station so that she could call an ambulance. The applicant indicated that because he had experienced similar seizures before, he believed what he needed was to go home to rest and he therefore did not need an ambulance. Furthermore, a co-worker who frequently drove him home would be escorting him.
7The applicant then left his workstation and proceeded to the front gate. Security was called by the nurse, and she followed him. He again explained to the nurse that because he had experienced several similar seizures in the past, he was aware of his condition and did not require further medical attention. It was best that he go home to relax. The respondent did not provide evidence to controvert this assertion, although the nurse did indicate that it was her opinion at that precise time that the applicant should be detained pursuant to the Mental Health Act, R.S.O. 1990, c. M.7.
8At or near this time the nurse contacted security to detain the applicant. When he arrived at the lobby near the ‘guard shack’, between 4 and 5 security guards as well as his supervisor were waiting for him. The applicant then called 911 to advise that he was being held against his will. He next attempted to exit using his badge card, however he was restrained from doing so. He was then detained by the security guards. A security video recording entered into evidence and played. It was stark in how it relayed the facts that followed. It was clear that:
In addition to the security guards and supervisor, paramedics were waiting at the exit;
The applicant attempted to leave peacefully through the exit turnstile;
A security guard held the applicant in a bear hug position from behind;
The other security guards and paramedics joined in, physically restraining the applicant;
One of the paramedics taunted the applicant by lifting his leg and threatening to kick in a karate style motion while the applicant was restrained;
There was probably a shift change in progress because several dozen people passed through the turnstile where this activity was taking place;
The police arrived and an officer threw the applicant to the ground, handcuffing him then taking him away.
9The applicant indicated that this experience caused him “immeasurable pain in my weakened condition,” and he continually stated his objections to being restrained because he was in pain and just wanted to go home and recover from his seizure. Also, some plant workers were laughing at him as they exited the building. He furthered indicated that the police took him to the hospital where he was assessed by the paramedics and released. The police officers and paramedics apologized, and the police ensured that he got home safely. This was uncontroverted by the respondent.
10The applicant reported back to work on October 11, 2007, and he had a seizure at work in the washroom. E.M.S. was called and when he came to, he walked with them outside to the smoking area. He told them he did not need formal medical care and they said they could not force him to go to the hospital, and they asked him to sign a form. On October 13, 2007, the applicant went to the hospital in order to get a medical note. When he arrived at work on Monday October 15, 2007, he was told by the Labour Relations representative that the note was not acceptable and he was sent home again. He went to a physician, Dr. Senior on October 16, 2007, and he was told to return to work on October 17, 2007. A meeting was held on October 17, 2007 with the applicant, Steve Campbell, Scott Williamson, Dr. Martens, a nurse, union representatives, Dave Dowdle and Rory Gibbs. On that date, a plan was put in place to address what to do when he had a seizure. The applicant is now retired.
ANALYSIS
11The Code explicitly prohibits discrimination in the workplace based on disability by stating at s.5 the following:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.
12The parties did not dispute that the Tribunal had jurisdiction to consider the applicant’s allegations of discrimination pursuant to s.5 of the Code. There is also no dispute between the parties that the applicant has a disability within the meaning of the Code.
13The applicant must prove on a balance of probabilities that the respondents discriminated against him based on his disability.
14When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. The Lippé Group, 2008 HRTO 50 and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68. As the Code states at s.17(2):
17(2) No tribunal or court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
15Therefore, as a result of s.17, a respondent cannot claim the defence of undue hardship unless it can demonstrate through objective evidence that it has undertaken measures up to the point of undue hardship to accommodate an applicant’s disability.
16It is well-established in human rights law that the duty to accommodate encompasses two components: 1. procedural (that being the process whereby the accommodation was considered) and 2. substantive (the accommodation that was achieved or the reasons for lack of accommodation) (see: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) at paras. 62-68).
17In Oak Bay Marina Ltd., supra at para. 84, the Tribunal summarized the relevant authorities on the scope of the procedural content of the duty to accommodate, as follows:
The duty to accommodate is a positive obligation. An employer has a duty to obtain all the relevant information about the employer’s disability, at least when it is readily available. This includes information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term “undue hardship” requires respondents in human rights cases to consider seriously how complainants can be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any steps could be taken does not satisfy the duty.
18Counsel for the respondent argued that the applicant’s disability-related needs were fully accommodated. I disagree.
19The respondents were aware of the applicant’s need for accommodation. However, I find that the respondent failed to make meaningful inquiries into how the applicant could be accommodated and to understand his disability related needs when they barred him from exiting his workplace. Furthermore, their security personnel assaulted the applicant at the exit while managers who could have put a halt to the incident did nothing to stop these actions. As a result the applicant experienced humiliation and discrimination due to his disability and should be compensated for his loss.
20The applicant had suffered from seizures at his workplace in the past, and the plant nurse, Laura Piggot was fully aware of his medical condition at all times. On previous occasions he had gone down to the nurse’s station to lie down for a brief period. When recovered he would resume his shift. As a result the nurse knew of the applicant’s ability to recover from a seizure and that the applicant was aware of when he did or did not need medical attention. At the end of the applicant’s shift, the applicant advised the nurse that he did not need any further medical attention and that he was going outside to proceed home to recover there. Furthermore, the applicant had a ride in a car pool, and therefore had no reason to remain at the plant.
21The applicant was in the best position to determine what means were best to accommodate his epilepsy. He has lived with his disability most of his life, and, as such, is probably an expert on the most effective adaptations to his disability. The respondent cannot reasonably contend otherwise. In my view, there was no justifiable reason for the respondent to have called the police in these circumstances. Having done so, however, I note that the police ultimately determined that there was no reason to involve the criminal justice or mental health systems, but by then the damage was already done. I was also troubled by the nurse’s assertion that it was her opinion at the time of the applicant’s detention that he should be detained pursuant to the Mental Health Act. While I accept that there was a genuine disagreement over the most appropriate form of care following the applicant’s seizure and that the nurse may well have had a genuine concern with respect to potential future harm the applicant might suffer, I had no evidence to explain how the nurse arrived at the conclusion that the applicant was also under a mental disorder that would trigger the need for involuntary detention and a psychiatric assessment. The intrusion into one’s privacy and loss of liberty that is visited upon an individual when the powers and specific criteria of the Mental Health Act are invoked should be considered with the utmost of consideration. Notwithstanding my concerns, given the lack of evidence on this point I decline to reach any conclusions.
22Once the duty to accommodate has been triggered, the respondent had a procedural obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required to allow the applicant to participate fully in the workplace and leave peacefully, if necessary. This includes making inquiries and exploring with the applicant options that may be available to accommodate the applicant’s disability up to the point of undue hardship (see Robdrup v. J. Werner Property Management, 2009 HRTO 1372). The respondent failed to satisfy this procedural obligation. The nurse had previously allowed the applicant to recover at the nursing station, and did not conduct a thorough inquiry or investigation into what the applicant needed in order to accommodate his disability. She had complied with his requests in the past, and then inexplicably reversed her behaviour on the day in question, and failed to make further inquiries.
23In Lane v. ADGA Group Consultants, 2007 HRTO 34, the Tribunal made it clear that failure to meet the procedural dimensions of the duty to accommodate is a form of discrimination in itself.
24Accordingly, I find that the respondent General Motors Canada failed in its procedural duty to accommodate the applicant’s disability-related needs.
25I also find that the respondent failed in its substantive duty to accommodate the applicant’s disability-related needs. As previously stated, the applicant had in the past demonstrated an awareness of his own epilepsy and his needs for medical attention arising from a seizure. The respondent has not satisfied me as to what was different about the occasion on March 7, 2007 so as to justify the extreme measures taken to forcibly prevent the applicant from leaving its premises and going home. In my view, respect for the applicant and his knowledge of his own disability-related needs should have caused the respondent to allow him to leave its premises as he desired to do.
Remedy
26Section 45.2(1) of the Code provides the Tribunal with the authority to direct a party who has violated the Code 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. It also provides the Tribunal with the authority to direct “any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance” with the Code. In this case, the applicant is seeking compensation for the injury to his dignity, feelings and self-respect caused by the respondent’s violation of his rights under the Code plus pre-judgment interest on this award.
Compensation for injury to dignity, feelings and self-respect
27The approach to awards for damages for the intrinsic harm of discrimination has evolved in Code jurisprudence. Prior to the significant amendments that took effect in June 2008, the Code established a limit of $10,000 on damages for “mental anguish”, which required a finding of wilfulness or recklessness on the part of the respondent (see s. 41(b) of the Code as it read prior to June 30, 2008). Tribunal decisions, however, routinely awarded greater damages for intangible losses, awarding separate amounts for mental anguish as a result of findings of discrimination on different grounds and by different respondents. After the Divisional Court’s decision in Ontario (Human Rights Commission) v. Shelter Corporation, 2001 CanLII 28414 (ON SCDC), [2001] O.J. 297 confirmed that this was permitted under the Code, amounts were awarded for “general damages”, which were considered as separate from amounts awarded for mental anguish.
28The amendments to the damages provisions in the Code removed the need for the Tribunal to divide damages awards into amounts for mental anguish and for other intangible losses. They require the Tribunal to make a general evaluation of the circumstances of the Code violation and its effects to determine the appropriate monetary compensation for injury to dignity, feelings and self-respect.
29Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. Discrimination has a psychological component. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights and Freedoms in Vancouver (City) v. Ward, 2010 SCC 27, at para. 27:
Compensation focuses on the claimant’s personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.
30The Divisional Court has recognized that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness, frequency and duration of the offensive treatment are among the factors to be considered in setting the amount of damages: see ADGA Group Consultants Inc., supra. at para. 154. There is an intrinsic value to the rights set out in the Code and the infringement of those rights warrants an assessment of general damages. As the Divisional Court stated in Ontario (Human Rights Commission) v. Shelter Corp., supra at para. 43:
In my view, a Board of Inquiry is entitled to award non-pecuniary intangible damages arising out of the infringement of the Code. It is an award to compensate for the intrinsic value of the infringement of the complainants' rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages.
31The Tribunal has recognized that the effect on the victim, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code; see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. Thus, the first criterion – effect on the particular applicant who experienced discrimination – recognizes the applicant’s particular experience in response to the discrimination, while the second criterion – objective seriousness of the conduct – recognizes that injury to dignity, feelings and self respect is generally more serious depending, objectively, upon what occurred. See also: Arunachalam v. Best Buy Canada 2010 HRTO 1880,
32When determining an appropriate remedy, the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate: see ADGA Group Consultants Inc., supra.
33I find that the applicant is entitled to monetary compensation for the injury to his dignity, feelings, and self-respect arising from the breach of his right to be free from discrimination due to his disability. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization.
34The applicant indicated that the embarrassment of suffering from seizures is difficult for him, and on the day in question he felt singled out and publically humiliated. The applicant indicated that he had been honest with his supervisors and co-workers about his condition, and that he had previously experienced seizures at the respondent’s workplace without public humiliation, embarrassment, and mistreatment. The applicant was also vulnerable due to his disability, and the physical restraint he experienced at the exit of his workplace in front of dozens of colleagues exacerbated the situation.
35This discriminatory conduct resulted on the evidence before me in consequential damage to the applicant’s feelings of self respect and self worth. Comparable circumstances to those experienced by the applicant can be found in Dodds v. 2008573 Ontario Inc., 2007 HRTO 17, ($10,000 in general damages; $5,000 for mental anguish under previous Code provisions); AGDA Group Consultants v. Lane, 2008 39605 (ON S.C.D.C.), 2008 39605 (Ont. Div. Ct.) ($35,000 in general damages, $10,000 for mental anguish under previous Code provisions); Harriott v. National Money Mart, 2010 HRTO 353 ($30,000 total); and Khan v. 820302 Ontario, 2010 HRTO 265 ($25,000).
36I also have considered Simpson v. Commissionaires (Great Lakes) 2009 HRTO 1362 and Brown v. Trebas Institute 2008 HRT0 10 where the applicant alleged a failure to accommodate. This case distinguishes from both of those cases, however, because here the applicant was caused public humiliation due to the respondent’s lack of respect for the applicant’s own knowledge of his disability-related needs.
37An order for compensation for injury to dignity, feelings of self worth, and self respect is a discretionary award. When considering the public humiliation, hurt feelings and diminished feelings of self respect experienced by the applicant, I conclude that, in the circumstances of this case, an award of $10,000 is appropriate to compensate the applicant for loss of dignity and the injury to his feelings arising from his right to be free from discrimination due to his disability. Although I find that this case involved an incident of discrimination on the more serious end of the spectrum from an objective perspective, I have also taken into account factors that lead me to a lower award than in the Dodds, Lane, Harriot and Khan cases cited above. Although serious, the discrimination involved a single rather than ongoing series of events; the discrimination also did not result in the loss of employment; and I note that following the event the applicant and respondent did address the accommodation needs of the applicant on a going forward basis. Still, notwithstanding these mitigating factors, I cannot turn away from the public humiliation that the respondent caused for the applicant.
Pre-judgment interest
38I am awarding pre-judgment interest on the general damages I have awarded, as calculated from the date the applicant’s complaint was filed with the Commission up to the date of this Decision. Under the Courts of Justice Act, R.S.O. 1990 c. C.43, as amended, the pre-judgment interest rate is calculated based upon the quarter in which the proceeding was commenced. The applicable rate on August 28, 2007 (the third quarter) was 4.5%. Pre-judgment interest is therefore applicable from August 28, 2007 to the date of this decision. Post-judgment interest, if any, will also accrue calculated in accordance with the Courts of Justice Act, on any amount unpaid commencing 30 days from the date of this Decision.
ORDER
39The respondent, the Corporation of the General Motors Canada, is ordered to pay to the applicant:
I. $10,000 as monetary compensation for the loss arising out of the infringement of the Code, and
II. pre-judgment interest calculated in accordance with paragraph 38, above, and
III. post-judgment interest (calculated from 30 days from the date of this Decision) in accordance with the Courts of Justice Act, R.S.O. 1990 c. C.43, as amended.
Dated at Toronto, this 3rd day of April, 2012.
“signed by”
David Shannon
Member