HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Edmondson

Applicant

-and-

Alumpro Building Products Inc. and Mark Alexander

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: May 23, 2012

Citation: 2012 HRTO 993

Indexed as: Edmondson v. Alumpro Building Products Inc.

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment.

2The evidence was heard over three days: June 30, 2010 and February 2 and 3, 2011. The parties filed documentary evidence in advance of the hearing, the applicant gave oral evidence, and the respondent testified and called oral evidence from Mike Arens, Alan Oldershaw, Kristine Jennings, Harry (“Ross”) McDonald and Garry Phair.

3The parties made oral argument by teleconference on March 28, 2011.

THE FACTS

4The personal respondent is the president of the corporate respondent, a dealer in doors and windows in the Chatham-Kent region of Ontario. The applicant is a labourer. Prior to the events that gave rise to this Application, the applicant and the personal respondent had known each other within the Chatham construction community for thirty years.

5After seeing an employment advertisement on the Human Resources and Skills Development Canada (HRSDC) website, the applicant contacted the personal respondent. In May 2008, the applicant was hired as a warehouse manager/boom truck operator with the corporate respondent. The relationship ended in May 2009 when the applicant’s employment was terminated, which he alleges was discriminatory.

6The events leading up to the termination begin on April 21, 2009, when the applicant fell through a wooden plank in the warehouse. Video surveillance of the incident was admitted into evidence, and identified by the applicant as a true recording of his fall. In the video, the applicant is seen stumbling and then falling.

7The respondents’ evidence did not contest the fact of the applicant’s fall. A witness for the respondent, Alan Oldershaw, who worked for the corporate respondent and associated with the applicant outside of work as a result of dating the applicant’s daughter, is visible in the video. He witnessed the fall and described it at the hearing. The basic fact is that the applicant fell through a board about four feet to the ground. According to Oldershaw, while the fall was hard, he thought it was funny at the time. He testified, however, that in the subsequent days it was obvious that the applicant was in pain.

8The applicant testified that immediately after falling, he went directly to the personal respondent’s office to tell him that the board broke, he fell, and that his leg and knee were sore. The applicant testified that he told the personal respondent that he did not want to make a “big issue” out of it. He shrugged it off and went on with his day.

9The personal respondent testified that this conversation never happened. The applicant put to him on cross-examination that the meeting did happen, and that he had reviewed surveillance tape, saw the fall, chuckled and apologized to the applicant. The personal respondent strongly denied all of it and stated that for the entire week of April 21, he had no idea that the applicant was hurt, and that the applicant reported for work and fulfilled his duties without apparent strain or limitation.

10The following Monday, April 27, 2009, the evidence is clear the applicant and the personal respondent had a full conversation about the applicant’s fall and injury. The applicant said that he had seen the doctor, that it was not getting worse, but that it also was not healing, and therefore required further monitoring. Also in the April 27, 2009 meeting, the personal respondent directed the applicant to communicate with Kristine Jennings, who handled human resources paperwork, including reporting to the Workplace Safety and Insurance Board (“WSIB”). Jennings testified that she first heard about the applicant’s injury on April 27, when the personal respondent informed her about it on her arrival at the office. She testified that it appeared to her that the personal respondent had also just learned about the injury.

11Jennings met with the applicant on April 27, 2009. She testified that she was surprised to learn that the accident had occurred a week earlier and did not understand why the applicant would have delayed reporting it directly to her. As the health and safety coordinator in the warehouse, the applicant was aware that any WSIB matter should go straight to Jennings. She asked him why he had not reported the injury sooner, and testified his response was that he had told the personal respondent the previous week.

12Jennings testified that she did not believe the applicant, based on her impression that the personal respondent had just learned about the accident and the fact that nobody had reported anything to her. Her suspicions increased when she heard the applicant complaining about pain and was seen limping in the workplace, but appeared to “walk normal” when out of sight.

13The applicant admitted that the first time he spoke with Jennings about the accident was on April 27, 2009, but insisted that he had spoken with the personal respondent the week prior. It is implausible that the personal respondent would have done nothing about a workplace accident resulting in an injury if it had been reported to him on April 21. Jennings was responsible for handling these matters and the personal respondent relied on her. On April 27, when it is agreed that the personal respondent was confronted with information about the applicant’s injury, the personal respondent immediately directed him to Jennings. The applicant’s evidence concurred regarding the April 27, 2009 meeting. He was unable to offer an explanation for why the personal respondent would not have reacted the same way if the accident had been properly reported a week earlier. I am satisfied that it was not reported a week earlier.

14The question of when the applicant reported the fall is not determinative of the main issue in this case, unlike in a related WSIB proceeding that is concerned with specific causal facts. My impression from the evidence is that, it is possible that the applicant made some reference to a fall or perhaps to some strain as early as April 21, 2009. However, it is clear that any such information was not taken by the personal respondent to be either reporting a workplace accident or disclosing a significant injury.

15Given the applicant’s general behaviour of downplaying physical pain (as I find, below), it is possible that, prior to April 27, 2009, the applicant may have mentioned that the “board broke” and may also have mentioned at some point that his knee hurt. It is also possible that the personal respondent would have forgotten about any such comments where he did not understand those comments as reporting issues of concern. The applicant admitted that he tended to work through pain, and did not wish to “inconvenience” his employer. The personal respondent was aware that the applicant was very private about his health and expected that any significant issue would be clearly communicated. Whether the personal respondent had an obligation to be more proactive with respect to the applicant’s health and workplace safety is not an issue for me to determine.

16I see no reason to doubt the applicant’s assertion that he was experiencing pain after the fall and wanted to manage it on his own and see what the doctor had to say. Oldershaw, who saw the applicant both at work and at home, gave evidence that directly supports that the applicant was in pain in the days following the fall. Although Oldershaw did not believe at the time that he witnessed the fall that it had been serious, it was clear that the applicant was suffering pain in the aftermath.

17While Jennings had begun to suspect that the applicant was “faking” his injury, it is likely the opposite: the applicant was trying to minimize the perception of pain and physical limitation. It is now known that the applicant had knee surgery on August 7, 2009 (more than three months after the fall) and has been found to be permanently disabled. It remains unclear (and irrelevant to this case) whether the permanent damage was caused by the fall, though it is worth noting that the applicant has been receiving WSIB since his August 2009 surgery and, as of the hearing in this matter, the respondents continued to appeal the WSIB ruling.

18I find that, in the aftermath of his fall, the applicant was sincerely afraid of being permanently injured, which led him to assume that his job was in peril. He testified that he had a fear of losing his job if he were viewed as physically unfit. This fear was based on assumptions informed by his perception of past experience. It was not based on any objective evidence of actual animus or other reason for reprisal by the respondents.

19As a result of his fear of losing his job, the applicant had a motive to play down what might have been a more serious injury. I find that, while in doing so he was making a sincere attempt not to inconvenience his employer, it led him to act in suspicious and, at times, unscrupulous ways, causing the respondents to view him with concern.

20Also on April 27, 2009, Jennings and the applicant drafted a job advertisement to post on the HRSDC website for a second boom truck driver. The personal respondent testified that business was picking up again in advance of summer (the applicant had been hired at the same time the previous year) and a second driver was needed, especially given that the applicant refused to work Saturdays. The applicant admitted on cross-examination that he was aware that the company was looking to hire a second boom truck driver prior to his injury.

21On April 28, 2009, the applicant stayed home from work pending a medical check-up. In the evening, he spoke with the personal respondent and told him that he was going to see the doctor the following day. The next day, the personal respondent met with the applicant to discuss his injury. According to the personal respondent, the applicant told him that the injury was likely just a tear and that it would not interfere with his ability to work. He told the personal respondent that he would work as normally as possible, medicate for pain, and have Oldershaw pick up the balance of the work. The personal respondent testified that the applicant specifically declined the need for any accommodations.

22The applicant returned to work and completed his regular duties from April 29 until May 8, 2009.

23In the meanwhile, Jennings had commenced a WSIB application immediately following the applicant’s reporting of the fall. The applicant testified that Jennings “insisted” that he take the WSIB forms to his doctor, despite the applicant telling her he wanted “no part” of the WSIB application. In the medical report, signed and dated April 29, 2009 (WSIB Form 8—Health Professional’s Report), the applicant’s doctor, Dr. Stronks, stated that the applicant was experiencing pain, stiffness and swelling in the knee, which he identified as “possible miniscal injury”. He indicated that there were no known pre-existing conditions that could delay recovery. He prescribed Tylenol 3 for the pain and the applicant returned to work with specified limitations regarding lifting, kneeling, bending/twisting and climbing. In the explanation section, Dr. Stronks stated: “Patient has continued to work. He is able to modify his activities as necessary without formal restrictions in effect. This arrangement is satisfactory for the foreseeable future, subject to further recommendations from specialist.”

24On May 5, 2009, a WSIB investigation began into the incident. The applicant was already unhappy because he did not want to be involved in a WSIB claim. The company had reported the incident to WSIB as a matter of standard procedure. The applicant did not allege that the respondents’ reporting to WSIB was discriminatory. Rather, he testified that after WSIB began its investigation, the personal respondent’s attitude changed towards him. He alleged that the personal respondent called him into his office and demanded to know what was going on with WSIB. He believed that the personal respondent was angry due to the inconvenience caused by the investigation and was taking it out on the applicant.

25The personal respondent testified that he was never angry about having to comply with WSIB procedures. He stated that he was concerned about the applicant’s physical health and the safety of the workplace. He sought to comply with appropriate laws and rules. He also had limited information about the applicant’s previous injury. The evidence indicates that the respondents were aware, from the time of the applicant’s hire, that he had some physical restrictions due to an undisclosed past condition. The personal respondent testified that he knew there was “something”, but that the applicant did not disclose any details and made it clear he did not wish to discuss it. Although he had been hired on that basis, it was now becoming of some concern.

26On May 6, 2009, the WSIB representative contacted the company to follow-up with its investigation. The applicant was increasingly unhappy with the investigation and wanted it to end. On May 7, he contacted the claims adjudicator and told her that he wanted the file closed because he was concerned about reprisal and job security. There was no objective evidence to support a causal link between the WSIB investigation and the applicant’s belief that he was targeted for reprisal or dismissal.

27In fact, that same day was the first time the personal respondent spoke directly with WSIB about the matter. He testified that he wished to understand exactly what was happening. He did not believe the applicant was providing him with all the relevant information. He had knowledge about an existing disability for which the applicant had waived accommodation and refused to disclose. He also saw suspicious behaviour on the part of the applicant – reluctant reporting of a workplace accident, inconsistent reporting about the extent of the injury, resistance to a WSIB investigation, and lack of clarity about any ongoing restrictions.

28The applicant was still working. He testified that while he was still in pain and medicated, he had no ongoing restrictions. He explained that “it couldn’t get any worse”. The applicant’s evidence on this point was confusing: on the one hand, he testified that he was suffering from pain; yet, on the other, he claimed to be able to fulfil all of his job functions without restriction. These claims went contrary to the many restrictions identified in Dr. Stronks’ medical note.

29The only conclusion I can draw from the evidence is that the applicant was trying desperately to work through a difficult physical situation, which led him to downplay the extent of pain and to deliver mixed messages about his prognosis. Saying that something “can’t get any worse” is not the same as saying that it is 100% (which would mean he could fulfil all of his job functions without pain or risk of aggravating it further). Yet, the applicant was unwilling to acknowledge the possibility of serious or permanent injury. There was a contradiction in what the applicant was communicating to the respondents.

30On May 10, 2009, the applicant’s mother-in-law passed away. He was off work on bereavement leave May 11-14, 2009. To cover the applicant’s absence, the respondents hired a replacement boom operator named Rick, who worked the applicant’s shifts. The respondents had actually already begun searching for a second boom operator in April and were considering Rick. The applicant had been involved in advertising the position and interviewed at least two other candidates. The applicant admitted on cross-examination to being aware that the company wanted to hire a second boom truck operator well before his injury.

31Jennings testified that, on May 11, 2009, the applicant phoned her and told her that he had instructed WSIB to withdraw his claim. Jennings testified that the applicant told her that the claims adjudicator had said not to bother sending the security tape of the accident because she would not have time to see it. Jennings did not take the applicant’s word for it; she followed-up with the claims adjudicator and discovered contradictory information: WSIB had never told the applicant to forget the tapes. On the contrary, the claims adjudicator told Jennings she did wish to review the recordings of the fall. There was never any question the investigation was ongoing. It appeared to Jennings that the applicant was trying to sabotage the WSIB process.

32On May 14, 2009, the applicant contacted the personal respondent and indicated that he was ready to return to work. The personal respondent asked the applicant to provide an updated medical report. The next day the applicant saw Dr. Stronks and obtained a report, dated May 15, 2009, clearing the applicant to “work without restriction”. The applicant delivered the report directly to the respondents. He testified that when he gave the note to the personal respondent, he felt like the personal respondent had “no time” for him and was trying to “avoid” him.

33The chronology of events of the subsequent week was unclear from the evidence of the respondents, who appeared to have a weak recollection of dates and the order of events. The applicant, on the other hand, gave a coherent, chronological account of the facts of that week. He testified that on Monday, May 18, 2009, the personal respondent left him a voice mail advising him that a boom truck operator, Rick, had been hired during the applicant’s bereavement leave, and indicating that some scheduling coordination would be required because the company did not require two boom truck operators working at the same time (given that the company only had one boom truck).

34The next day, May 19, 2009, the personal respondent left the applicant another voice mail indicating that he had decided to have Rick work the rest of that week, and to bring back the applicant the following week, moving Rick to part-time. The applicant testified that he found these voice mails confusing and disturbing, not knowing why he was being asked to “accommodate” Rick’s schedule.

35The applicant testified that, on May 20, 2009, he reached the personal respondent by telephone and they agreed to meet that day at 5 p.m. The applicant went to the shop but the personal respondent was in his office with the door closed. The applicant spoke with Jennings, who took a phone call, and then asked the applicant to return at 5:30 p.m. The applicant testified that he left and returned at 5:20 p.m. to find the place locked-up and deserted.

36The applicant drove directly to the personal respondent’s home. He spoke with the personal respondent’s wife, who reached her husband on his cell phone and advised the applicant that “something” had “come up”. The applicant phoned the personal respondent later that night and left him a message “begging” him to tell him what was going on. The applicant testified: “I didn’t understand, there was no reason for it. Why was he avoiding me? I knew something was wrong.”

37The next day, Thursday May 21, 2009, the applicant attended at the workplace, where he met with Jennings. He told her he was worried about his job. Jennings told the applicant that he had “nothing to worry about.” The applicant asked her why the personal respondent was treating him “this way”. He became enraged and shouted at Jennings and another female colleague, “He doesn’t know who he’s fucking with. He’d better not fuck with me!” and then stormed out. The applicant admitted in testimony that he was furious because he felt that he was being treated poorly by the personal respondent. Jennings testified that the applicant phoned back ten minutes later and told her, “that conversation never happened.”

38Of course, Jennings reported the outburst to the personal respondent, most likely the same day, although the personal respondent testified that he learnt about it on May 19, which is impossible if we accept the applicant’s chronology. The personal respondent’s memory with respect to dates was generally poor and I give him little credibility on questions of chronology. I accept the applicant’s timeline, which put the outburst on May 21, the day before the termination of his employment.

39Indeed, for the personal respondent, news of the applicant’s outburst marked the culmination of a growing, and deep, personality conflict between the two men. I accept the personal respondent’s credible claim that his concerns with the applicant had nothing to do with his injury, and more to do with his personality. After learning about the applicant’s outburst, the personal respondent testified that he had reached a breaking point that had been building for some time. To his mind, the applicant was incorrigible and the relationship was irreparable.

40Addressing specifics about what was wrong with the relationship, the personal respondent testified that the applicant was controlling and over-bearing in the workplace, even belligerent and insubordinate. The applicant’s treatment of colleagues, and those working under his supervision, was creating dissatisfaction to the point that one employee was threatening to quit. According to the personal respondent, this behaviour was undermining his authority to manage his business.

41It is not necessary for me to find that these opinions were factually correct. All that is required is that they be credible beliefs, and that they reasonably reflect the respondents’ state of mind at the relevant times.

42Jennings testified that her relationship with the applicant was also problematic. She described him as “very controlling”, leading them to “bump heads” on occasion. She said that the applicant would “throw tantrums” and use profanity. She testified that a window supplier, Rafal Siedlecki, had witnessed the applicant’s behaviour. The respondents admitted into evidence an email Siedlecki sent to Jennings, describing a yelling incident he claimed to have witnessed. The email states: “I have never heard an employee yell and scream and use profanity like he did. I commented to Kris [Jennings] as I noticed that she was very upset, that I would have dismissed this person if he worked for my company.” The email is dated July 18, 2009, and describes an incident that allegedly occurred four months earlier. Siedlecki did not testify and Jennings confirmed that she asked him to write the email after the applicant was dismissed. The incident was not raised with the applicant at the time by way of discipline. In his testimony, he did not assert that it did not occur.

43I have no trouble finding that the applicant had a temper, at times used profanity and was prone to outbursts in the workplace. I do not need to rely on Siedlecki’s note to make this finding, and the note is not useful for any additional evidentiary purpose.

44The personal respondent was considering ending the relationship, but feared the applicant would not accept termination. The respondents knew from the applicant’s history that his last employment had ended in litigation. During his job interview with the respondents, or at some early point in the relationship, the applicant told the personal respondent that he did not want “the same thing to happen that happened at Home Hardware”, referring to his previous employer.

45The respondents later learned that the applicant had ongoing litigation against his former employer. Jennings testified that, on the day of an appearance, the applicant came to the workplace with his wife and told Jennings that he had “won”. He disclosed that he got $25,000, and asked her not to tell anyone. Jennings testified that she gave the applicant a hug.

46The personal respondent testified that, for some time he had known that the applicant was going through a “wrongful dismissal claim through Human Rights”. On the day of the applicant’s “hearing” (the same day to which Jennings referred), the personal respondent testified that the applicant and his wife came into his office and told him that it “was over”. The applicant told him that he had been “awarded” $25,000. The personal respondent testified that, as the applicant told him that his previous employer was going to “cut a cheque”, the applicant and his wife squeezed hands, and said they were pleased and relieved.

47The allegation that the applicant disclosed the content of a confidential settlement in previous human rights litigation is potentially a serious one, and I am not making any findings of fact regarding any allegation of breach of terms. The applicant did not seek to contradict the evidence of Jennings, or of the personal respondent, on this point.

48The evidence is relevant because it is clear that the respondents believed, prior to their decision to terminate the applicant, that the applicant had previously litigated a human rights matter and had obtained a sizeable monetary settlement. They testified that they did not know the substance of the prior litigation because the applicant had not wished to discuss the details. In their testimony, the personal respondent and Jennings referred to the litigation interchangeably as “wrongful dismissal” and “human rights”.

49Because the respondents had so little information about the previous claim, they had no reason to accept that it was bona fide, but also had no reason to doubt it. This knowledge did give them a reasonable basis to foresee the possibility that the applicant would litigate again if he was in fact, or were to believe that he was, being wronged. The respondents, therefore, had an incentive and motive to act carefully.

50In the days leading up to the applicant’s outburst, the applicant’s perception that the personal respondent was keeping his distance might well have been true. I accept that the personal respondent was trying to figure out how to best deal with the applicant, given the challenges he was presenting both in the workplace attitude and possible obstruction of an ongoing WSIB investigation. Recent events had sharpened concerns about the applicant’s scruples.

51The personal respondent recalled his April 29 conversation with the applicant, when the applicant told him that he had told his doctor that he had been carrying a three-pound bag when he fell from the plank. The personal respondent knew from having reviewed the security tape that the applicant was not carrying anything at the time of the fall. It seemed that the applicant had lied to his physician. He had lied to WSIB. He had disclosed a settlement and asked them not to tell. The personal respondent found it difficult to know if he could trust the applicant.

52After the applicant’s outburst, the personal respondent testified that he was uncomfortable dealing with the applicant face-to-face. He described himself as “conflict averse”, and described the applicant as aggressive, pushy and combative. In his testimony, the applicant described the personal respondent as an honest, “nice guy” who rarely gets angry and never uses curse words.

53Before deciding on eliminating the applicant’s job, the personal respondent prepared a document entitled, “Going Forward”. He testified that he drafted this document on Wednesday, May 20, 2009 as a basis for addressing his problems with the applicant’s attitude and working style prior to returning him to the workplace. The document is not signed and was only produced during the hearing. The respondents also filed with it a screenshot of a Microsoft Word “Properties” box for a file titled “Going Forward”, indicating that it was “created on” May 20, 2009 at 5:28PM, and was modified on Thursday, May 21, 2009 at 5:03PM. Jennings testified that she recognized the document from a conversation with the personal respondent on May 20, 2009 when he sought her input.

54The document begins with: “First and for most [sic] I need to be established as the owner and I am aware of changes that need to be made.” The subsequent 16 points deal with a variety of matters, including: (1) affirming the personal respondent’s authority as boss; (2) articulating standard rules and procedures for the warehouse; (3) making changes to scheduling requiring every employee to work two Saturdays a month (the applicant had previously insisted on not working weekends); (4) emphasizing the importance of good communication, respect and cleanliness in the workplace. The final point was: “We are not a unionized shop, we are a new small business”.

55The content of this document supports the personal respondent’s testimony that he was struggling in his relationship with the applicant and was slowly reaching a difficult decision about termination. It took a culminating incident, like the uttering of a threat by the applicant, to be the final straw. Accepting the applicant’s timeline, the Going Forward document would have been drafted the day before the culminating incident. This is credible, even though the respondent failed to remember it in this order. I have already determined that he is not credible regarding the timeline.

56The Going Forward document speaks to rebuilding, even re-defining, the relationship between the applicant and his employer. It has the tone of both a plea for co-operation and an assertion of authority. It appears to be an attempt by the personal respondent to communicate to himself, and to the applicant, the necessary solutions to the problems in the workplace.

57The next day, May 21, 2009, the applicant exploded in the office,. The personal respondent met with Jennings on the evening of May 21, 2009 to discuss next steps. He expressed to her feelings that things “weren’t right” with the applicant, that corrective action was futile and the relationship needed to end. He complained that he found the applicant’s temper and controlling personality divisive, and his tendency to walk around shirtless unprofessional. Jennings testified that the personal respondent told her that a worker had threatened to quit as a result of the applicant’s behaviour. The personal respondent said he would talk to a lawyer about termination, and Jennings offered to make contact with the Employment Standards division of the Labour Board.

58Based on information they obtained, the personal respondent and Jennings testified that a decision was made to “lay off” the applicant immediately. The intention was to permanently sever the employment relationship. The personal respondent confirmed that he acted in accordance with the legal advice he was given, based on what was necessary for his business, and on what he understood to be fair, legal and reasonable in the circumstances for the applicant. He testified that, “It was a tough time for me. He [the applicant] was relentless. I liked him. But I had to eliminate the problem, and the position. I became the warehouse manager.”

59The applicant acknowledged in evidence that he could be hot-tempered, but explained why he believed his anger about the situation with the personal respondent was justified. He believed that he was being punished for having been injured on the job and inconveniencing the respondents with a WSIB claim. He expressed strong scepticism about the respondents’ alleged grounds for termination—bad behaviour and poor attitude. He testified that in nearly a year of employment, he never received any negative feedback, discipline or warnings about his actions. He maintained that he was a diligent and responsible worker who simply had the misfortune of being injured on the job.

60The respondents’ witnesses confirmed that the applicant was a dedicated and competent employee. He took workplace rules seriously, took the lead on health and safety issues, and provided leadership. The problem, as described by the personal respondent, and which I accept as credible and true, was primarily one of attitude and personality. The applicant was causing friction in the workplace and was causing the personal respondent to feel increasingly insecure in his role as owner and manager of the company.

61The personal respondent described the management issues as “power struggles”. He explained that he and the applicant had disagreements about how to run the business. He testified that on a couple of occasions the applicant stormed out of meetings with the personal respondent after arguing with him about workplace operations. The personal respondent would follow him and try to work things out, but these disagreements rarely got resolved to the personal respondent’s satisfaction. It may be that the personal respondent could have managed the applicant differently, but, by the time the situation reached a head, the personal respondent felt incapable of reining-in what he perceived to be an unmanageable employee.

62On Friday, May 22, 2009, the applicant came to the workplace to pick up his pay cheque. The personal respondent advised him that he was being “laid-off indefinitely”. No reason was given. The Going Forward document was never delivered to the applicant.

63There was some evidence about post-discharge events, which are mostly irrelevant to these proceedings. The respondents adduced evidence showing that the applicant was working through the summer, including climbing, lifting and bending, as part of a roofing company he apparently launched with a friend. They also adduced evidence that the applicant used a treadmill and lifted weights. The purpose of this evidence was to show that the applicant was not actually injured. I am not persuaded that the respondents are correct.

64On August 7, 2009, the applicant underwent exploratory surgery on his knee. He began receiving WSIB benefits as of that date, as he was unable to work thereafter. It appears that the applicant was indeed permanently injured. This fact is not determinative either of the questions that were before the WSIB, or of the respondent’s state of mind when deciding to dismiss the applicant, because this information was not known at the time.

ISSUES

65The issue to determine in this case is whether disability, perceived or actual, was a factor in the respondent’s decision to terminate the applicant’s employment.

ANALYSIS

66The Application relates to subsection 5(1) of the Code, which prohibits discrimination in employment, and states: “Every person has a right to equal treatment with respect to employment without discrimination because of … disability.” The applicant bears the onus of establishing on a balance of probabilities that a violation of the Code has occurred.

67The applicant’s allegation of discrimination is premised on circumstantial evidence. There are no words or actions that the applicant specifically points to as evidence of disability discrimination or which reveal a discriminatory motive for the termination of his employment. Rather, his case rests on inferences drawn from the facts which reveal, in his view, underlying disability discrimination.

68Discrimination analysis typically proceeds through two stages: first, we must assess the evidence and see if the applicant has established the factual basis for a finding of prima facie discrimination—has he adduced sufficient evidence that, on its face, provides a complete and sufficient basis for finding in his favour, before considering any responding evidence? If so, the onus shifts to the respondents to provide an explanation and additional evidence to disprove the prima facie finding. The standard of proof is the balance of probabilities, which means in the end, the Tribunal must be persuaded that it is more likely than not that the Code was breached in the circumstances. See: Ontario Human Rights Commission v. Simpson-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28.

69This is not a case about accommodation. The applicant did not allege that he had disability-related needs that were not accommodated. Rather, his argument is that the respondent’s decision to terminate the employment relationship was based on discriminatory considerations. This is the sole basis for the claim that the respondent breached the Code.

70There is no direct evidence of an improper motive, or of discriminatory considerations in the respondent’s decision to terminate the applicant’s employment. The basic facts, however, give some reason to scrutinize the dismissal. It is known that the applicant was a good worker and played a lead role in the workplace up until his fall and injury. He missed a few days of work after this injury, and then missed more time following the untimely death of his mother-in-law. A WSIB claim was filed and an investigation was ongoing. During this time, a new boom truck operator was hired and the applicant’s position was eliminated.

71It is necessary to look more closely at the facts. The personal respondent gave credible evidence about his state of mind at the time of the decision to dismiss. First, it is clear that the personal respondent had no specific knowledge of any disability on the part of the applicant. Or, more specifically, the personal respondent was aware both that the applicant had suffered physical health issues in the past, and that he had been injured recently. However, he also understood that the applicant guarded his medical privacy closely and provided information to the employer on a “need to know” basis. The applicant had assured the personal respondent, both before and after the accident, that he was fine, needed no accommodations, and could manage the job tasks. It appears the applicant maintained this position even when his doctor listed some minor restrictions following the April 21, 2009 accident.

72By the time of termination, by all accounts the applicant was fit to work. Indeed, this is what the applicant repeatedly told the respondent, and it was confirmed in the applicant’s May 15, 2009 medical report. The personal respondent did not believe the applicant had any restrictions.

73While believing the applicant to be fit to work, I accept that the personal respondent was losing trust in the applicant for reasons unrelated to the Code. In his evidence the personal respondent cited multiple incidents or observations that caused him to question the applicant’s judgment and character. These included: the applicant speaking about a “confidential” settlement in previous human rights litigation; lying to his doctor about carrying weight during the fall (disproved by security tape); lying to the personal respondent that WSIB had no wish to see the security tape of the fall; and providing inconsistent information about his health, such as downplaying his pain. Doubts had started with the applicant’s perceived delay in reporting the injury.

74Further weakening of trust occurred when learning that the applicant had sought covertly to close the WSIB file once an investigation had begun. The applicant’s interference at this level exacerbated the respondents’ existing frustration with aspects of his workplace behaviour. The outburst on May 21, 2009, when he threatened the personal respondent in front of staff, shouting, “he’d better not fuck with me”, was the final straw.

75Both the applicant and the personal respondent characterized their relationship as deteriorating leading up to the termination. What differs is the reason cited for the deterioration in the relationship. The applicant was certain in his belief that the personal respondent “turned” on him as a result of his injury and WSIB claim, thereby discriminating against him on the basis of his disability. The respondents maintained, it was about workplace issues having nothing to do with reprisal or stereotyping with respect to the applicant’s disability.

76I do not find the applicant’s theory of reprisal or anger-motivated discrimination persuasive. There is no direct evidence of animus on the part of the personal respondent regarding the applicant’s disability. It is true that the personal respondent was losing trust in the applicant, but that was because he had caught him in lies and was growing impatient with his workplace attitude. This created a reasonable basis to consider ending the employment relationship. It is not the purpose of this hearing to determine whether the termination was “just” within the meaning of employment law. Yet, at the same time, the defence against the allegation of a discriminatory decision in this case is that there were other, non-Code-related reasons. The respondents’ reasons for dismissal are therefore central to assessing whether discriminatory considerations entered the fray.

77The party making the allegation of discriminatory animus in decision making bears the onus of proving it. Sometimes it can be proven by inference: adducing sufficient surrounding facts that reasonably lead to the conclusion that discrimination was at play. It can also be proven by direct evidence, such as an admission by the responding party, or where the respondent’s explanation is plainly weak and lacking credibility.

78In this case, the only direct incident relied upon by the applicant to support his assertion of discriminatory intent is an alleged conversation on May 5, 2009 during which the applicant alleges the personal respondent was angry about the WSIB application. It was not alleged that any specific words uttered by the personal respondent were discriminatory, but rather that his tone revealed a discriminatory attitude. The personal respondent denied the allegation about his state of mind, and specifically denied that he shouted or spoke angrily about the WSIB file.

79Based on all the evidence and the overall credibility of the witnesses, I find that the applicant misunderstood the personal respondent’s attempts to obtain information about the fall and injury. It is clear that the applicant was feeling vulnerable about WSIB’s involvement; at best, he hoped to minimize any inconvenience to the company; at worst, he was seeking to supress facts about the fall. The respondents had every reason to ask relevant questions about the WSIB file. This is not, on its face and in the absence of any additional supporting evidence, an incident of discrimination.

80The personal respondent testified that, despite his growing concerns with the applicant’s behaviour, he had remained for some time committed to “working with him”. The “Going Forward” document, drafted in the final days of the applicant’s employment and never actually delivered, reveals a manager struggling to maintain his authority and manage workplace issues. It was only after the applicant’s threatening outburst that a decision was taken to end the relationship. The personal respondent could no longer bring himself to deal with the applicant face-to-face. The matter was personal: for the respondent, the problem was with the applicant’s character, and was not based on disability-related stereotypes or assumptions about his capabilities.

81The applicant testified that no issues had ever been formally raised with him about any company concerns with his performance or behaviour. I accept that. However, I also accept that the problems had been building for some time and that the personal respondent did, at times, attempt to communicate issues to the applicant. It is clear that he was unsuccessful. The question for me to determine, however, is not whether the applicant was treated appropriately within the view of employment law. The only question concerns whether the respondents’ reasons for termination were tainted by Code-related factors.

82The applicant has not succeeded in presenting a surrounding factual basis to justify drawing an inference of discriminatory reasons for the termination of his employment. To dispel the suggestion that discrimination intent can be inferred by looking at the totality of the facts, I found that there was sufficient evidence of other factors at play for the respondents to repel any contrary inferences, which must be founded on reasonable and substantial facts. Given the plausibility of alternative explanations in this case, and the paucity of hard evidence from the applicant, the onus required to sustain drawing the kind of inferences needed to establish discrimination in this case is not met.

83The respondents adduced a strong evidentiary record to reject inferring discriminatory factors in the applicant’s termination. While it is not necessary to determine every issue raised by the respondent, it is sufficient that I find there was a reasonable, non-Code-related basis for the respondents’ choice of conduct. These proceedings are not determining the question of wrongful dismissal or statutory or legal obligations. The decision to terminate need not have been correct, or perfectly executed, in order to comply with the Code. It need only have been made on the basis of non-Code grounds. I am persuaded that it was.

84In sum, I find that the respondent terminated the applicant’s employment for non-Code related reasons. These reasons centred on the applicant’s challenge to aspects of the respondent’s management of the company which pre-dated his workplace injury, but included other specific issues such as his scheduling inflexibility, inappropriate workplace attire at times (shirtless) and inappropriate workplace conduct (yelling and swearing). I also find that the applicant’s outburst on May 21, 2009, notwithstanding that it occurred after his workplace injury and at a time when the respondent had concerns about the applicant’s conduct in relation to a WSIB investigation, was viewed by the respondent as a culminating incident in relation to the respondent’s pre-existing concerns about the applicant’s attitude and behaviour.

DECISION

85For the reasons above, I do not find that disability was a factor in the respondents’ decision to terminate the applicant’s employment. Accordingly, the Application is dismissed.