Human Rights Tribunal of Ontario
B E T W E E N:
Dwight Norrena Applicant
-and-
Primary Response Inc. and Andre Hilton Respondents
DECISION
Adjudicator: Judith Keene
Indexed as: Norrena v. Primary Response Inc.
APPEARANCES
Dwight Norrena, Applicant Self-represented
Primary Response Inc. and Andre Hilton, Respondents Yvonne MacDonald, Representative
Introduction
1This is a Decision in respect of an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age and disability. The Application also claimed reprisal.
2As noted above, the applicant, who stated that he was born in 1944, alleged discrimination based on age as well as disability. In their written materials, the respondents state that over 30% of the corporate respondent’s employees were over the age of 60 years when hired, “and we currently employ over 50 individuals between the ages of 70 and 84 years”. The respondents brought no evidence to substantiate this claim, but it was unnecessary in any event, as the applicant admitted that he had no evidence of age discrimination other than a feeling that his age had something to do with adverse treatment by the respondents. The applicant did not establish that age discrimination had occurred, and this part of the Application is dismissed.
3The Application also claimed reprisal. The applicant presented no evidence that would establish reprisal for the purposes of the Code, and that part of the Application is dismissed.
4On the facts of this case, I have found a breach by the respondents of sections 5 and 11 of the Code, on the ground of disability. My reasons are set out below.
Preliminary Issues
5Neither party was represented by legal counsel. Both the corporate and the personal respondents were represented by the corporate respondent’s director of Human Resources, who was involved in the incidents that are the subject of this Application.
6The respondents had indicated that they would be calling Justin Mills, a person identified as a “Recruiter”. The witness statement filed in respect of Mr. Mills indicated that he would “testify to inviting [the applicant] to attend a prescreening orientation and provide an overview of what is discussed at time of invitation”. The witness statement did not indicate what Mr. Mills was expected to say. The respondents did not call this individual, and I have not taken this witness statement into account in assessing the evidence in this matter.
7With their documentary evidence, the respondents filed 3 audio files. They appear to be recordings of phone calls. In one, there is a voice mail greeting in which someone gives the applicant's name. In the other two, a similar voice gives the name of an organization that has not been mentioned in any of the filed documents. The respondents did not refer to this evidence in the course of their testimony. I see no reason why it might be relevant, and I have not taken it into account in assessing the evidence in this matter.
8The applicant had brought with him to the hearing a portable microphone that he uses to assist him in hearing speech clearly. The microphone could be used by only one wearer at a time, which made this device not well suited for the requirements of the hearing, in which, for example, the applicant would have to be able to hear the respondents’ representative’s questions, the answers given by a witness being questioned, and any questions or directions I might need to make during the witness's testimony. I suggested that the applicant use the microphones supplied by the Tribunal at each desk, which would also communicate wirelessly with his hearing aid. After a brief period of testing the equipment, this turned out to be a workable solution. I asked the applicant to let me know immediately if the equipment was not working properly, and checked with him several times during the course of the hearing as to whether he was hearing the participants clearly. On a couple of occasions he could not, but the equipment was adjusted and statements were repeated.
9Earlier in the proceedings, the respondents filed a Request for an Order During Proceedings in which they asked that the personal respondent be removed as a respondent. On its face, the Application alleged facts that would, if proven, amount to prima facie case of discrimination against the personal respondent, and the Request was not dealt with prior to the hearing. I indicated to the respondents that they might bring this matter to my attention again at the end of the hearing, at which point I might be able to make a ruling on the basis of the evidence. In the event, I have accepted that the personal respondent did breach the Code in the course of his employment duties. The respondents did not raise the matter again at the end of the hearing, and I heard nothing in the course of the evidence that could lead to any finding that individual liability for a breach of the Code should not apply. Pursuant to section 46.3 of the Code, the corporate respondent is also liable for the breach.
Evidence
10The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at para. 119). In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 1985 (S.C.C.), at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. More recently, in Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court stated at para. 33:
[T]o demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the [area]; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
11Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence, to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination (see Moore, above; Chau v. Olymel S.E.C.\L.P., 2009 HRTO 1386).
12The parties adopted the statements in the documents filed with the Tribunal in the course of the proceedings. Certain of these documents were specifically identified as Exhibits. I heard testimony from the applicant, the personal respondent and Anthony Beekham, a witness for the respondents. All testimony was given under affirmation. The non-party witness, Mr. Beekham, was excluded from the hearing until he was called.
13The respondents asserted that certain actions and omissions of the applicant should reflect unfavourably on his credibility. These included his evident awareness of the right to the accommodation of disability, and the fact that he did not make a complaint to the respondents before filing the Application. In respect of this latter submission, it is clear that nothing in the Code bars parties from attempting to deal with a complaint that human rights have been infringed through an internal process. Equally however, there is no obligation in law for the applicant to make this attempt, nor can I draw an adverse inference from the fact that an applicant did not attempt to deal with a human rights complaint without filing an Application. In any event, the evidence giving rise to my findings has been largely that of the respondents themselves.
14The applicant asserted that he is hearing impaired, and has been so since the age of 30. He stated that he is deaf in one ear and very hard of hearing in the other, for which he uses a hearing aid. He can usually hear the sound of a voice, but has difficulty recognizing and distinguishing the words that are being said. The applicant also has a disability that affects his mobility. He lip-reads, and he uses a service dog, a portable microphone that transmits sound wirelessly to his hearing aid, and on occasion a scooter. The applicant did not present or call supporting medical evidence, but the respondents did not challenge the existence of a hearing–related or a mobility-related disability, and I accept that the respondent is in fact hard of hearing, even when he is wearing his hearing aid, and that this condition meets the definition of “disability” for the purposes of the Code.
15The events that gave rise to the Application occurred when the applicant attended a “prescreening orientation” of candidates for employment with the corporate respondent, at the premises of the corporate respondent. The Application claimed that this occurred on March 9, 2012. The respondents indicated that corporate records show the correct date to be March 8, 2012, and the applicant agreed that this must be the correct date.
16Prior to March 8, 2012, the applicant had submitted a written application for employment on a form created by the corporate respondent, a resume, and a letter dated March 3, 2012 (filed as Exhibit 1). The material indicated, among other information, that the applicant had a high school education and a number of certificates, and held a security guard license. On the corporate respondent’s form he indicated that he had not “worked for anyone for the past 30 years”, although the other documents list a number of jobs. No security guard work was listed in his previous employment experience, other than an indication that he had “volunteered as a ‘Citizen on Patrol’ for the Barrie City Police”.
17The applicant asserts that the respondents discriminated against him during prescreening orientation. First, he says that he was asked inappropriate questions and was actively discouraged from applying due to his disability. Secondly, the respondents denied him a requested accommodation of needs related to disability. Finally, the respondents screened him out of the job competition. I will deal with these allegations in this order.
“Inappropriate” questions.
18The parties agree that, shortly after the applicant arrived at the office of the respondents with his service dog, the corporate respondent’s manager of Human Resources, Ms. Yvonne MacDonald, took him aside for a brief interview in a boardroom adjacent to the reception area. The applicant testified that he was asked whether he could stand and walk for long periods and function outside and whether the dog would be “okay outside”. He considered these questions discriminatory, and he insisted that his disabilities would not interfere with his ability to do most job postings. The applicant stated that he was aware that there might be a range of working conditions that might be available, and that he felt he was being discouraged from pursuing employment with the respondents. He stated that these questions “poisoned the environment” for him.
19The respondents’ evidence was that Ms. MacDonald took the applicant aside to ask these questions because she noticed that the applicant used a cane and had an assistive dog. The adopted Response states that Ms. MacDonald explained in the interview that the questions were asked because the applicant was using a cane and had a dog and that the respondents would need to be assured that he could tolerate physical demands and that both he and the dog would be safe doing the job. She asked the applicant whether he was aware that the job required the ability to stand or walk for periods of up to 12 hours in length and that all the positions were outside.
20The Response makes two more allegations relating to the brief initial interview that were not put to the applicant in cross examination. The Response states that after hearing these questions the applicant advised Ms. MacDonald that he had already spoken with “the human rights commission” and was told that “he had to be hired as it is discriminatory not to”. “He then made reference to prior experience with the human rights Tribunal”. The Response states that Ms. MacDonald asked the applicant why he would assume prior to coming to the offices that he was going to be discriminated against, “to which he smiled and did not answer”.
Denial of requested accommodation at the class
21The applicant admitted that he was allowed to attend the orientation class. He first completed some paperwork along with other candidates. The personal respondent, Mr. Hilton, who was the corporate respondent’s trainer for the day, said that he entered the room in which the candidates were completing the paperwork, stated that the class would start at 10 AM and asked if anyone had any questions or difficulties. Mr. Hilton stated that he asked the applicant this question specifically.
22The applicant did not recall Mr. Hilton saying that class would start at 10 AM. He said that when he completed his paperwork he took his dog outside for “a bathroom break”. He stated that, when he returned, Mr. Hilton came up to him and told him that he was late for class. The applicant testified that he could not have been late for class because the class had not started. He agreed in cross-examination that he was not in the class at 10 AM, and that the class could not start without the instructor.
23Mr. Hilton had a different recollection of events. He stated that the applicant had not completed his paperwork by 9:30 as required. He approached the applicant at 9:50, and asked if the applicant was having difficulty with the forms, or had any questions. The applicant replied that he did not. Mr. Hilton stated that the reason he asked the applicant whether he had any difficulties was that he noticed he had a service dog with him. Mr. Hilton states that he advised the applicant that he would have to hurry, as the class was to begin at 10 AM. When the class started, he realized that the applicant was not in the classroom. He went to Reception where he had last seen the applicant doing the paperwork. Neither the applicant nor the dog were anywhere to be found. The respondents’ receptionist stated that the applicant told her that he was going to walk his dog. Mr. Hilton postponed starting the class. He indicated that he would not have been as patient with a candidate who was late but did not have any sign of disability such as the service dog.
24After 20 minutes, Mr. Hilton again looked for the applicant. He found him in the reception area. The applicant smelled strongly of cigarette smoke; Mr. Hilton concluded that part of the reason for the applicant’s lateness was his need to smoke, but did not confront the applicant with this.
25The applicant testified that when he entered the class he found a seat at the back, and because he was at the back of the room, he asked Mr. Hilton to wear the portable microphone. The parties agree that he showed Mr. Hilton the microphone and said he needed Mr. Hilton to wear the microphone because of his hearing difficulties, so that he could “clearly and distinctly hear what was said”. The parties also agreed that Mr. Hilton said he needed time to consult with his supervisor, that he left the room, and that when he returned, he said he would not wear the microphone.
26Mr. Hilton stated that, after arriving to class late, the applicant asked him to wear the microphone. He testified that the applicant did not ask this politely; did not say “please”. His witness statement summarizes the response given in his testimony: “I told Norrena that because he did not consult me prior to the beginning of the lecture, I opted out having an unknown device around my neck”.
27The respondents admit that Mr. Hilton checked with Ms. MacDonald concerning the request. Mr. Hilton testified that Ms. MacDonald said that it was up to him. The respondents’ Response states that Ms. MacDonald advised Mr. Hilton not to comply “as Mr. Norrena when he met with myself earlier in the morning had been asked if he required any accommodation and he responded in the negative”, and because “we did not know if the request was a recorder, which is not allowed by participants due to our confidentiality policy and thirdly and most importantly, as a guard you must have adequate hearing to perform the duties of a guard”.
28The applicant said that Mr. Hilton had indicated something about the microphone possibly being a tape recorder. Other than the reference to the “confidentiality policy”, there was no explanation given by any witness for the respondent as to why the respondent might have objected to the training session being recorded. The existence or content of any policy was not confirmed by any witnesses, or with any documentary evidence. While the respondents may have had some concern about confidentiality, they have provided no evidence to suggest that any such concern amounted to undue hardship.
29The parties agree that Mr. Hilton moved the applicant from the back to the front of the class so that he could hear better, and placed the microphone on his (Mr. Hilton’s) desk. The parties also agreed that Mr. Hilton was moving around the class as he lectured rather than sitting at his desk.
30The applicant moved to the front, but he testified that this was of little or no use to him. The parties agreed that Mr. Hilton asked the applicant if he could hear him, and that the applicant smiled (according to the respondents, “sarcastically”) and said yes. Hilton also stated that during the class the applicant was able to answer questions and make comments on the lecture.
31Mr. Hilton testified that the applicant was rude, difficult and short tempered. He regarded the applicant's demeanour during class as mocking, said that he did not look at the instructor and that occasionally he laughed. Apparently Mr. Hilton did not confront the applicant about this behaviour or check to see whether his assumptions concerning the applicant's facial expression were correct. Mr. Hilton also testified that the applicant was five minutes late coming back from break.
Dismissal from the orientation session and from further consideration for employment
32After the applicant completed the written examination and the exam was graded, Mr. Hilton called him into the public hallway outside of the offices together with “about three” other students. After a short discussion with the three other students, Mr. Hilton directed them to leave immediately.
33The applicant testified that Mr. Hilton first told him that he had failed the exam. The applicant said that he stated that it was unfair to consider that he failed the exam when he had not been accommodated in respect of the microphone. He testified that Mr. Hilton then told him that he did pass, and in fact had done well on the exam, but did not meet the respondents’ requirements. Allegedly Mr. Hilton stated there were “irregularities” in the applicant's work history. The applicant testified that this made no sense to him because he had been self-employed for the previous 30 years. The applicant stated that he told Mr. Hilton that he wanted to speak to the person who was responsible for the decisions that his work history was irregular, and that Mr. Hilton refused.
34According to the applicant, Mr. Hilton told him to leave, and when he did not, said “the laws of trespass are very clear”. The applicant stated that he asked if Mr. Hilton was going to arrest him but that Mr. Hilton simply said “leave”. The applicant testified that Mr. Hilton would not look at him. He admitted that during at least part of this interchange, his voice was raised. When asked if he recalled calling Mr. Hilton names, he said it was possible that he had said something derogatory but did not recall. He denied calling Mr. Hilton a “stupid Chink”. The applicant said that he eventually got into the elevator and left.
35Mr. Hilton stated that he called three or four of the candidates, including the applicant, out of the classroom to inform them that they had not been successful at that time, and indicated that he had told them that they could try again in three months.
36Mr. Hilton says that the applicant told him that he wanted to use the washroom and “ordered one of the applicants to watch his dog”. Mr. Hilton agreed that, when he told the applicant that he had been unsuccessful, he also told the applicant that he was concerned that the applicant's resume showed “no work history in 30 years”, and agreed that the applicant told him that he had been self-employed. He stated that in his experience the term self-employed is often used when people have been unemployed. He agreed that he told the applicant that his work experience was not “the kind of work experience we are looking for”. I asked him if he had asked the applicant any questions about the nature of his self-employment, and he said that he had not.
37Mr. Hilton in his testimony did not speak to the allegations that he first told the applicant that he did not pass the test and later told him that he did. He agreed that he showed the applicant the page with his score, after the applicant “tried to grab it”.
38Mr. Hilton did not recall raising the Trespass to Property Act. He testified that, after he directed the applicant to leave, and the interchange got more heated, he turned and started to walk away “to defuse the situation”. Mr. Hilton stated that the applicant yelled “look at me when I'm talking to you” and then called him a “stupid Chink”. “I turned around and said ‘excuse me?’, and he said “stupid dingbat”. Mr. Hilton said that before the applicant left, he said he would file a human rights complaint.
39Anthony Beekham was a recruit who attended the March 8 orientation session. He is now employed with the respondents. Mr. Beekham confirmed that the applicant was late for class and indicated that at one point Mr. Hilton asked where the applicant was and the applicant did not respond, but later said that he could not hear the question. Mr. Beekham also stated that the applicant did not answer some of Mr. Hilton's questions during class. Mr. Beekham concluded that the applicant was ignoring Mr. Hilton because “he would look at Hilton, smile and ruffle papers on his desk”. However apparently Mr. Beekham did not ask whether the applicant heard Mr. Hilton on those occasions.
40Mr. Beekham testified that he came out into the hall on his way to the washroom after the applicant and the other three unsuccessful candidates have been called into the hall. He confirmed that the applicant asked him to watch his dog, but he said that he couldn't do that because he was going to the washroom. In cross examination, Mr. Beekham indicated that the applicant might have said “don't touch my dog”. Mr. Beekham testified that he heard the applicant yelling about unfairness and that he heard him use the term “stupid Chink”. Mr. Beekham said he heard no reference to the Trespass to Property Act. Mr. Beekham estimated that the interaction took no more than a couple of minutes.
ANALYSIS AND CONCLUSIONS
41The relevant provisions of the Code read as follows:
(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, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(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, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device
- (1) A right of a person under Part I 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 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, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
23 (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
42The respondents did not dispute that section 5 of the Code is engaged by the allegations, and I agree that any stage of a process that is intended to lead to employment, such as the recruitment/orientation session that is involved here, is properly considered “with respect to employment”.
Initial questions—s.23 (2)
43The parties agree that Ms. MacDonald took the applicant aside to ask some questions relating to whether he could meet the job requirements. The applicant was asked whether he could stand and walk for long periods and function outside and whether the dog would be “okay outside”. The applicant confirmed the respondents’ assertion that Ms. MacDonald explained that the questions were because the applicant was using a cane and had a dog and that the corporate respondent would need to be assured that he could tolerate physical demands and that both he and the dog would be safe doing the job, and that she asked him whether he was aware that the job required the ability to stand or walk for periods of up to 12 hours in length and that all the positions were outside.
44In my view, the requirements of the job could have been raised with candidates in advance of the orientation class without, in the words of s. 23(2), making an oral inquiry that directly or indirectly classified or indicated qualifications by a prohibited ground of discrimination. For example, the corporate respondent might have provided an accurate written job description to all candidates In this case, however, Ms. MacDonald singled out the applicant because he had a cane and a service dog, and gave a rather sweeping description of the job “requirements” (such as “the ability to stand or walk for periods of up to 12 hours in length”) without specific discussion of the range of requirements that might actually be at issue in any particular job, any consideration of what requirements were essential, or any discussion of accommodation. The corporate respondent brought evidence of only the basic job requirements, and the applicant’s uncontradicted testimony was that specific job conditions can vary with specific assignments, and that he had no idea of the range of working conditions that might be available.
45In this interview, Ms. MacDonald apparently assumed without asking that, although the applicant was licensed as a security guard, he was unaware of the requirements of security work. In addition, her description of the requirements of the work gave no indication that she was aware of her responsibility, in any individual case, to identify the essential requirements of any particular job, and to accommodate needs arising from personal characteristics protected by the Code, to the point of undue hardship. In the circumstances, the interview predictably had the effect, whether or not this was intended, of discouraging the applicant from continuing with the employment process. The applicant obviously did persist, but he testified that he felt the atmosphere was “poisoned”.
Failure to adequately accommodate the applicant at the orientation class—s.11
46In respect of s. 11, the “requirement…that is not discrimination on a prohibited ground” was the requirement that the applicant attempt to learn what was taught at the orientation session on the same basis as the other students, without the use of an ameliorative device that the applicant was willing to provide, despite the fact that his disability created needs that the other students did not have. By the respondents’ own admission, the applicant’s requested accommodation of needs created by his hearing disability was denied.
47There is no question that some of the responsibility for the applicant's unsatisfactory experience in the class rests with the applicant himself. The applicant indicated in cross-examination that he did not raise in advance of the class his need for the lecturer to wear a microphone, although he knew he needed it, in his own words, “every time when talking to people”. Presumably, he is experienced enough in dealing with his ameliorative device to know that people might require some explanation about what it was, why he needed them to wear it and how it operated. He did not take the opportunity to approach Mr. Hilton before the class to explain his needs; he waited until sometime after the class was supposed to start, when, understandably, Mr. Hilton was in a hurry to get on with his work, and other recruits were waiting for the class to start.
48The applicant also admitted that he was late for class, and it is clear that the class started late because the applicant took his dog out of the building. He was not courteous enough to speak to Mr. Hilton in advance about his need to be late for class because of having to attend to the dog, despite the fact that he clearly had the opportunity to raise this before he left the building. These omissions may have been careless, or they may have been because the applicant was already irritated at what he considered discriminatory questions at the beginning of the orientation process. Understandable or not, these omissions made it less likely that a request for accommodation would be met in the circumstances. Finally, the applicant admits that he answered “yes” on at least one occasion when asked if he could hear, despite the fact that he was having some difficulty. As noted above, this response was recognised by the respondents to be sarcastic, but the applicant certainly risked being misunderstood.
49Having said the above, the fact remains that the applicant’s request was for a specific accommodation that could have been implemented quickly and with minimal inconvenience. If the personal respondent had any questions or concerns, these could have been raised with the applicant. Instead, the requested accommodation was refused.
50Several reasons were given at the hearing for the refusal to use the device as requested. Mr. Hilton stated that the applicant did not ask politely, and had not given notice of his request prior to the beginning of the lecture. The corporate respondent’s evidence was that Ms. MacDonald had advised Hilton not to comply “as Mr. Norrena when he met with myself earlier in the morning had been asked if he required any accommodation and he responded in the negative”, and because “we did not know if the request was a recorder, which is not allowed by participants due to our confidentiality policy and thirdly and most importantly, as a guard you must have adequate hearing to perform the duties of a guard”.
51I do not think that Mr. Hilton had any fixed notion that individuals with disabilities could not or should not do security work. I accept that Mr. Hilton was irritated at the applicant’s lateness, and unfamiliar with the use of the ameliorative device at issue. He made some effort to arrange the applicant’s seating in the hope that this would help. However, I find that his and Ms. MacDonald’s decision not to grant the applicant’s request to use his ameliorative device, made as it was on untested assumptions and without further questions to or discussion with the applicant, resulted in a barrier being placed between the applicant and effective participation in the employment process.
52To put a complicated matter simply, an individual presented with a request for accommodation in respect of areas and grounds covered by the Code should not ask “why?” s/he should accommodate but “why not”? That question is not merely rhetorical—a request for accommodation may be novel, but with the statutory standard of accommodation to the point of undue hardship, requests must be given serious consideration. That does not mean that an individual is entitled to precisely the accommodation strategy s/he proposes, immediately and in all circumstances. In many situations, including this one, the requested accommodation could have been made relatively easily and quickly. In others, arriving at an accommodation strategy is a collaborative process that can, depending on the circumstances, properly involve dialogue and mutual willingness to reasonable compromise in respect of details.
53As noted above, the applicant could have handled his request for accommodation in a much more prudent manner. He was late for class, and properly instructing the personal respondent in how to use the device and adjusting the device to the room would have taken more time, necessitating an even later start. It is possible that in some situations involving a late request for accommodation, a respondent might be able to establish that immediate compliance (as opposed to later compliance) with the request amounts to undue hardship, considering “cost, outside sources of funding, if any, and health and safety requirements, if any”. However, the evidence here shows that the respondents rushed to a denial of the requested accommodation on the basis of irritation and at least one untested assumption. In this case, the respondents brought no evidence that would indicate that granting the applicant’s request would have involved hardship, much less “undue” hardship.
54I find that Mr. Hilton's offer to move the applicant to the front of the class was not a particularly helpful response to the applicant's difficulties; Mr. Hilton moved around the class while he lectured and therefore was not close enough to his desk for the microphone to pick up anything that he said. Further, the fact that Mr. Hilton moved around made it more difficult for the applicant to read his lips.
Dismissal from the orientation session and from further consideration for employment
55The personal respondent stated in his testimony that the applicant had not been successful on the test, but the respondents adduced no other evidence that this was so. In addition, Mr. Hilton testified that he assumed that “self-employment” was in fact unemployment, although he made no attempt to verify this assumption with the applicant. As noted above, the applicant maintained that the personal respondent had told him that he had done well on the test.
56A scored copy of the applicant’s test was marked as Exhibit 2. The form indicates that “you must get a minimum 40 out of 50 to pass this exam”. The score shows as 35 out of 50 marks, although it appears that the original entry was 38; a fainter “8” can be seen behind the heavier marker apparently used. The form shows the words “pass” and “fail”, with the latter circled.
57Neither party discussed the test in their testimony other than stating the views indicated above. On the basis of the document relied upon, I find that the applicant achieved a score below 40 and therefore failed the test, but I think it is fair, having accepted the applicant’s uncontradicted evidence as to his disability and his need for the ameliorative device to hear the instructor, to conclude that his performance on the test was affected by his inability to hear the instructor clearly. Having found a breach of s.11 in respect of the class on which the test was based, I find that his dismissal from the session, which barred him from further consideration for employment for at least three months, breached the Code.
58On the facts of this case, consideration of the applicant for further employment by the respondent was affected by the applicant’s unmet request for accommodation, the personal respondent’s untested assumptions about his previous employment experience, and the fact, which I have accepted, that the applicant lost his temper and called Mr. Hilton a “stupid Chink”. At this point in his interaction, the applicant had reason to be annoyed, but racist slurs are inexcusable. Racist slurs by a candidate for employment are a perfectly valid reason to refuse that employment. However, even if valid and non-discriminatory reasons exist for an adverse decision affecting employment, if one of the reasons for a decision involves a prohibited ground of discrimination, that decision infringes the Code. It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see for example Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 1989; CanLII 97 (S.C.C.), Filion v. Capers Restaurant, 2010 HRTO 264.
REMEDY
59Subsection 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
60The applicant stated that he continued to look for work after the incident with the respondents, and that he is presently working as a security guard and has been for approximately the past year. At present, he is working for two days a week (approximately 24 hours), but from the end of June of 2012 to the beginning of September, he was working 60 to 65 hours per week.
Compensation for wage loss
61Pursuant to subsection 45.2 (1), above, an applicant who proves a breach of section 5 of the Code is entitled to compensation for wage loss arising out of the discriminatory act. Subsection 45.2 (1)1 of the Code directs the Tribunal to consider what loss arose “out of the infringement” of the Code when considering the proper amount of monetary compensation. In Airport Taxicab (Malton) Assn. v. Piazza, (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.), the Ontario Court of Appeal at para. 45017, stated that the “purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred”. Decisions of this Tribunal and of its predecessor Boards of Inquiry have commonly considered loss arising from the date of the infringement of the Code to the date of the hearing, (although there has been some discussion of awards and one actual award for wage loss going beyond the date of the hearing; see discussion in McLean v. DY 4 Systems, 2010 HRTO 1107, paras 90 and 91, McKee v. Hayes-Dana Inc. (1992), 1992 CanLII 14231 (ON HRT), 17 C.H.R.R. D/79 (Ont. Bd. Inq.), and Pilon v. Cornwall (City) (No. 4) (2012), CHRR Doc. 12-0677, 2012 HRTO 177). The amount is reduced to account for any employment income received during the period, and may be reduced for other reasons, such as evidence that the applicant’s employment would have been reduced or eliminated for reasons unrelated to a breach of the Code.
62Because of the early stage of the applicant’s dealings with the respondent as a candidate for employment, it is fair to say that what was lost here was an opportunity for future employment, rather than a loss of employment, which can be quantified more exactly. The Tribunal has dealt with the assessment of opportunity loss in several decisions; see for example Ravi DeSouza v. 1469328 Ontario Inc., 2008 HRTO 23, and Rocha v. Pardons and Waivers of Canada, 2013 HRTO 537. In this case, the parties led no evidence that would go to the probability of employment for the applicant with the respondent after the application process. In addition, there is the matter of the racist slur uttered by the applicant after he was told that he had not been successful. Mr. Hilton gave evidence that, in addition to the fact that he understandably felt hurt and affronted by the slur, it made him wonder whether the applicant might repeat this behaviour on the job, where he would be dealing with the public, sometimes in difficult situations. I conclude that, for this reason, there was little possibility that the applicant would have been offered work, and I decline to make an order in respect of lost opportunity for employment.
Compensation for injury to dignity, feelings and self-respect
63Subsection 45.2 (1) 1 authorizes monetary “compensation for injury to dignity, feelings and self-respect”. In the light of my remarks above in respect of the racist slur uttered by the applicant, I note that my reading of this provision, informed by the discussion in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), is that it provides no authority to punish the conduct of any party. The inquiry under subsection 45.2 (1) 1 should be limited to an assessment of how the respondents’ breach of the Code affected the applicant.
64In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents. The Tribunal assesses intangible loss and suffering with a degree of objectivity in assessing the amount of compensation; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. The Divisional Court has recognized that 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” for discriminatory behaviour. See, ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).
65The concepts of “dignity” and “self-respect”, while certainly including factors that are subjective in nature, import considerations that are broader than the individual’s reaction to how he or she was treated. Dignity and self-respect can be diminished by how one is perceived and treated by others, as well as how one feels about that treatment. It is true, for example, that an individual who has a disability that affects communication may be unable to convey outrage at an affront to his or her dignity, and an individual who is consistently oppressed may grow to regard such treatment as “normal”. That cannot prevent this Tribunal from recognising an affront to dignity, nor absolve it from attempting to quantify a compensatory award according to its obligations under section 45.2(1) and the policies expressed in the Preamble to the Code.
66A compensatory order is not a punitive order, but consideration of the actions of the respondent cannot be avoided in determining whether dignity was violated and how. As Professor Denise Réaume notes in her wide-ranging discussion of the concept of human dignity, “violating dignity involves conveying the message that some are of lesser worth than others” (Denise G. Réaume, “Discrimination and Dignity” in Faraday, Denike and Stephenson eds., Making Equality Rights Real (Toronto, Irwin Law Inc., 2006)).
67I accept the applicant’s evidence was that he was upset, traumatised and discouraged. He felt that he had been treated “as a commodity” rather than as an individual and that his dignity had been damaged. He was also angry and frustrated.
68In the circumstances of this case, I award $10,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity. This award arises from both the initial questions described above and from a refusal of accommodation that denied the applicant the right to equal treatment in the class. The personal respondent was certainly involved in the latter incident, but in view of the fact that both incidents were primarily the responsibility of the corporate respondent, and in view of the abusive language used by the applicant to the individual respondent, I decline to make an order against the personal respondent.
69Finally, the applicant requested that the respondents be ordered to undertake training. I think that such an order under subsection 45.2 (1) 3 is appropriate in this case.
ORDER
70The Tribunal makes the following order:
a) Within 30 days of this Decision, the corporate respondent, Primary Response Inc., shall pay $10,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity. This amount is an award of monetary compensation in the nature of general damages for injury to dignity, feelings and self-respect
b) Primary Response Inc. shall pay the applicant prejudgment interest in accordance with the Courts of Justice Act, (1.3%) on the amount set out in paragraph (a), above, from March 8, 2012;
c) In the event that Primary Response Inc. fails to make the payments described in subparagraphs (a) through (b) above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, (3%) from the date that is 30 days after the date of this Decision; and
d) Within 60 days of the date of this Decision, the respondents shall 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 review the Human Rights Commission’s Policy and guidelines on disability and the duty to accommodate, (available at http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate) and shall confirm to the applicant, in writing, that they have done so.
Dated at Toronto, this 4th day of July, 2013.
“Signed by”
Judith Keene
Member