Hébert v. 1497422 Ontario Inc., 2013 HRTO 133

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jocelyn Hébert Applicant

-and-

1497422 Ontario Inc. Respondent

DECISION

Adjudicator: Paul Aterman Date: January 25, 2013 Citation: 2013 HRTO 133 Indexed as: Hébert v. 1497422 Ontario Inc.

APPEARANCES

Jocelyn Hébert, Applicant Self-represented

149722 Ontario Inc., Respondent Bernard Dignard, Representative

Introduction

1The applicant was employed by the respondent from 2006 to December 6, 2010. The respondent is a numbered company owned and run by Mr. Bernard Dignard. The applicant’s job was to provide janitorial services at the Ontario Provincial Police (OPP) detachment in Embrun.

2There was no dissatisfaction with the quality of the applicant’s work. In October of 2010 he went on leave from his work for medical reasons. On December 6 he was told by Mr. Dignard that his employment was terminated. The applicant has brought this Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the ground of disability.

3For the reasons that are set out below, I find that the termination of the applicant was discriminatory. This Application is allowed.

BACKGROUND

4The Application was heard on December 20, 2012 in both English and French. An interpreter was present to provide translation, but was not called upon. The parties agreed mid-way through the hearing that his services were no longer needed and he was released. The applicant provided oral and documentary evidence. Among the documents the applicant introduced are his notes that set out his version of the relevant events. He adopted those notes as his evidence and supplemented them with his oral evidence. He was questioned by me and by Mr. Dignard.

5The respondent did not introduce any documents in support of its case. Mr. Dignard testified for the respondent and was questioned by me and by the applicant.

The applicant’s evidence

6The applicant worked as an independent contractor for the respondent from 2003 to 2006. In 2006 the parties agreed that the applicant would become an employee of the respondent and be paid an annual salary. At the time of termination his salary was $36,010.

7The applicant’s job was to keep the OPP station clean and well-maintained. This consisted of exterior and interior cleaning, making small repairs and improvements, cleaning police vehicles and driving them to be serviced, and overseeing the work of contractors when they were required at the station. The applicant described the job as one he enjoyed. The hours were flexible and the work was not physically demanding.

8There were no complaints about the quality of the applicant’s work. He introduced into evidence a card and email from Linda Scott, a property manager with the Ontario Realty Corporation, which oversees the contracting of property management work at the OPP station. The documents, which were sent in February of 2010 to the applicant and Mr. Dignard respectively, praise the quality of the applicant’s work. The evidence of Mr. Dignard was that he had no concerns with the quality of the applicant’s work.

9Over the course of his employment with the respondent the applicant was facing challenges in his personal life. He testified that since 2006 his marriage had been under strain. He and his wife had been in marriage counseling since that time. He described an improvement in their relationship in 2010, after they went on holiday together. The applicant also testified that in the year preceding his termination he had been caring for his aging mother. These family pressures caused him to miss six weeks of work in the year leading to his termination.

10Mr. Dignard described these absences as giving him concern about the applicant’s reliability, but he also stated that at the time he readily accepted and accommodated the applicant’s requests for time off. No disciplinary action was taken in relation to these absences.

11The applicant testified that these pressures caused him to be under stress in the period leading up to his termination. He states that on October 23 and 24 of 2010 he had heart palpitations. He went to his family doctor on October 26. His doctor directed him to remain off work for 90 days on stress leave and gave him a note stating that he needed to be off work for medical reasons until January 27, 2011. The note provides no description of the applicant’s medical condition.

12On the afternoon of October 26 the applicant went to the respondent’s office in order to hand in the note to Mr. Dignard and to ask him to prepare a Record of Employment so that he could apply for Employment Insurance sickness benefits. The applicant provided few details of the conversation that he had with Mr. Dignard at that time.

13Mr. Dignard’s evidence was that the applicant handed him the note and told him that he needed to be off for three months on stress leave. He testified that he asked the applicant what the medical condition was underlying the symptoms of stress, and was told that he could ask the applicant’s doctor if he needed to know. Mr. Dignard indicated that at the time he was not surprised by the applicant’s request for leave, as he knew that the applicant was having personal problems. However he was surprised by the length of time that the applicant needed.

14The applicant’s evidence is that he then went from the respondent’s office to the OPP station in order to store his personal effects in his tool chest. He states that he was asked by the officer in charge of the station, Inspector Dupuis, to remove his chest from the station. The applicant refused, indicating that the chest was too heavy and that he would only be away from work for three months.

15The applicant states that on the following day he was called by Mr. Dignard and was told to remove the chest. The applicant attended at the respondent’s office and collected his Record of Employment, which Mr. Dignard had prepared. The Record of Employment provides illness as the reason for issuing the Record, and lists the expected date of recall as “unknown”. The applicant then went to the OPP station and, with the help of Alex Lemieux, removed his tool chest.

16Mr. Lemieux is the son of one of the officers at the OPP Embrun detachment. He had been employed on an occasional basis since the start of 2010 by both the respondent and by another company also owned by Mr. Dignard. At times he replaced the applicant when the applicant was absent from work or on holiday.

17In December of 2010 the applicant intended to renew his mortgage and needed proof of his employment to do so. He called Mr. Dignard and asked him to provide him with pay stubs and a letter confirming his employment. On December 6 he went to the respondent’s office to pick up these documents. He had a conversation with Mr. Dignard. The uncontested evidence is that Mr. Dignard told the applicant that he “had to make some changes” and that the applicant was no longer employed by the respondent. It is also uncontested that at the time the applicant did not ask why he was being terminated and that Mr. Dignard did not provide him with a reason. The applicant later discovered that he had been replaced by Mr. Lemieux.

18The applicant’s evidence is that the respondent used his illness and absence from work as an opportunity and a pretext for terminating him. He asserts that Mr. Dignard colluded with Inspector Dupuis and Mr. Lemieux’s father to have Mr. Lemieux take his job. In support of this he points out that he has no disciplinary record and that there were no concerns with the quality of the work that he performed since 2003. He asserts that the requests by Inspector Dupuis and Mr. Dignard in October to have him remove his tool chest indicate an early intent not to have him ever return to work.

19Following his termination, the applicant continued to receive sickness benefits until the end of February, 2011; his doctor having extended his medical leave by a further month. In February he filed a complaint under the Employment Standards Act for termination pay. The respondent was eventually ordered to pay termination pay equivalent to three weeks of salary. In March of 2011 he filed this Application.

20The applicant returned to work in March of 2011 on a part-time basis as a shipper/receiver at a hardware store. This is the job he currently holds. He earns an hourly wage of $14.50.

21The applicant described the impact of the termination as severe. He stated that his marital relationship worsened as a result of losing his job and that his wife left him at the end of 2011. The applicant did not blame his wife for this. He stated that he had become very difficult for anyone to live with after the termination. He maintained that he suffered a great deal of stress, and he identifies the stress as the cause of an episode in August, 2011 when he was hospitalised for three days with what was diagnosed as cardiac arrhythmia.

22The applicant claims to have suffered economic loss as a result of the termination, because he had to take a part-time job with irregular hours at less pay. He estimates the loss at $10,000.00. In response to Mr. Dignard’s questions, he indicated that he did not look for any jobs other than his present one. He did not seek work as a janitor and was not interested in any full-time work because he is not physically capable of doing so. The applicant testified that he enjoys his work now, as his hours have become regular and predictable and the work suits him.

The respondent’s evidence

23Mr. Dignard testified that when the applicant went on medical leave in October he needed to replace him. He chose Mr. Lemieux, as he had replaced the applicant in the past, would not need to be trained and had already obtained the security clearance needed to work in the station. He testified that Mr. Lemieux asked to have the job on an indeterminate basis and indicated that otherwise he would look for work elsewhere. Mr. Dignard agreed to this, and then Mr. Lemieux, rather than the applicant, became the sole full-time employee of the respondent.

24Mr. Dignard was asked whether he considered hiring Mr. Lemieux on a temporary basis, until the applicant returned. He stated that he thought about this, but that M.r Lemieux would only accept indeterminate employment. He testified that he did not think about hiring anyone else on a temporary basis because Mr. Lemieux had shown that he could do the job.

25He also noted that it would take too much time and trouble to hire someone new into the job on a temporary basis. In addition to the time it would take to find the right person, a new employee would have to pass the OPP security screening, be trained and then be monitored for a period to ensure they were doing the work correctly. He indicated it would take a few days for the security screening to be completed.

26Mr. Dignard also testified that he was not convinced that the applicant would return to work at the end of the three month period of his recommended medical leave. He did not provide a reason for this, other than to say that in the past the applicant had been off work for periods of time. On being asked, Mr. Dignard stated that he thought that when the applicant went on medical leave, he believed his job would be waiting for him upon his return.

27Mr. Dignard described the decision to terminate the applicant as an “administrative” decision, and that he had intended no harm to the applicant. He also stated that, as a janitor, the applicant could easily find similar work.

28He testified that by notifying the applicant of his termination in early December of 2010, rather than waiting for him to return to work at the end of January and then telling him that he had lost his job, he was giving the applicant far more than the required notice period. He stated that this gave the applicant time to think about what he wanted to do and look for work while he was still on sickness benefits. He also stated that because he had given the applicant this period of notice, he assumed that he would not have to pay the applicant termination pay under the Employment Standards Act.

29The applicant suggested to Mr. Dignard that the requests by him and Inspector Dupuis in October 2010 to have the applicant remove his tool chest from the station show collusion in a decision to take advantage of the applicant’s illness and terminate him. In response, Mr. Dignard stated that Inspector Dupuis had authority to run the station and it was within his power to make such a request of the applicant.

30The applicant asked Mr. Dignard if he felt that Mr. Lemieux’s demand for indeterminate employment was a reason to terminate his, or if he felt that it was justifiable to terminate any employee because they were on sick leave. Mr. Dignard’s response was that his actions were justifiable in the circumstances.

ANALYSIS AND DECISION

31The issues I need to determine are whether the applicant was disabled and, if so, whether his disability was a factor in the decision to terminate his employment. If I find that it was, then I must decide what remedy he is entitled to.

Was the applicant disabled?

32“Disability” is defined in s. 10 of the Code in its relevant part as follows:

. . . 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 . . .

33The applicant identified his disability as a heart problem. He stated that heart palpitations triggered his visit to the doctor in October of 2010 and that the doctor told him to stay off work. There is no diagnosis provided, as the doctor’s note simply indicates the need for the applicant to stay off work. Throughout his evidence the applicant also referred to being off work because of stress. Finally, although he did not introduce any documentary evidence to support this, he testified that some months after he ceased working for the respondent he was diagnosed with cardiac arrhythmia.

34The respondent did not challenge the fact that the applicant was ill and was off work because of that illness. In light of this, it is not necessary for me to decide what the exact nature of the applicant’s illness was. As it was not contested that the applicant suffered from a medical condition that required him to be off work from October 26, 2010 to March of 2011, I find that he suffered from a disability as it is defined in the Code.

Was the applicant discriminated against because of that disability?

35The relevant provisions of the Code are set out in s. 5(1) and 17, which read as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

36To succeed in this Application the applicant needs to show that his disability was a factor in the respondent’s decision to terminate his employment. He does not need to show that it was the sole or the dominant reason: see Velenosi v. Dominion Management, 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.); Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.). It is also not necessary for the applicant to establish that the respondent intended to discriminate see: Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.

37The evidence of Mr. Dignard was that he needed to replace the applicant when he went on sick leave. The applicant was the sole employee of the respondent, performing full-time cleaning duties, and there was no way that the respondent could fulfill its contractual obligation to maintain the OPP detachment without a full-time replacement for the applicant. That evidence is uncontradicted and I accept it.

38However, in replacing the applicant the respondent was under a duty to accommodate his disability up to the point of undue hardship. This is required by s.17(2) of the Code. The duty to accommodate has a procedural and a substantive component: British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (Meiorin), 1999 CanLII 652 (S.C.C.), (1999) 35 C.H.R.R. D/257.

39The procedural aspect of the duty to accommodate requires an individualized investigation of accommodation measures and assessment of the employee’s needs. The substantive aspect of the duty to accommodate involves an analysis of the reasonableness of the accommodation offered.

40In this case the respondent knew that the applicant would be away for a temporary period and had every intention of returning to his job. This should have caused the respondent to then look at whether and how it could accommodate the applicant’s disability by enabling his return to work at the end of his medical leave. The respondent did not do this.

41Mr. Dignard testified that he doubted that the applicant would return at the end of the three month period that the doctor had recommended as sick leave, and that this was a consideration in his decision to replace the applicant indeterminately. He offered little justification for his reasoning, other than to say that the applicant had missed work at times in the past. Even if he did hold this belief, he made no effort over the course of the applicant’s absence to inquire of the applicant if he was on track to return to work as planned.

42The fact that the respondent hired Mr. Lemieux shortly after the applicant went on sick leave indicates clearly that the respondent had no intention of looking at how to accommodate the applicant. Mr. Lemieux would only accept the job on an indeterminate basis and the respondent accepted this condition. Mr. Dignard indicated that it would have been too much trouble to replace the applicant temporarily by hiring someone other than Mr. Lemieux.

43I find that the respondent, through Mr. Dignard, did not seriously entertain the possibility of hiring a temporary employee and took no steps to meet the procedural component of the duty to accommodate. Essentially, the respondent mistakenly believed that once the applicant went on medical leave, it was open to it to simply replace the applicant on an indeterminate basis.

44In Central Okanagan School District v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at 984, the Supreme Court of Canada considered the requirement that a respondent must accommodate up to the point of undue hardship, and noted that:

More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term “undue” infers that some hardship is acceptable; it is only “undue” hardship that satisfies this test.

45In my view efforts by the respondent to hire someone other than Mr. Lemieux on a temporary basis would, at best, have amounted to an inconvenience. Mr. Dignard’s own evidence indicates that a security clearance for the workplace could have been obtained in a few days. Other than that, the respondent would have had to train and monitor a new employee. It would not have been an undue hardship for the respondent to seek to hire a temporary replacement for the applicant.

46I find that the applicant’s disability was a factor in the decision to terminate his employment. There was no concern with the quality of the applicant’s work, and the respondent offered no reason for permanently replacing the applicant. The applicant’s absence from work for medical reasons provided the respondent with what it thought was a justification for permanently replacing the applicant. That decision was discriminatory. Having reached this conclusion, it is not necessary for me to address the applicant’s allegation that Mr. Dignard colluded with Inspector Dupuis to benefit the son of one of the station’s officers by giving him a job.

What is the appropriate remedy?

47Section 45.2(1) of the Code provides that:

… the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Lost Income

48The applicant has requested monetary compensation, but has not specified an amount. The Application makes reference to lost income, as well as to the stress and humiliation of having lost his job. In his testimony the applicant maintained that his termination worsened his marital relationship and contributed directly to its end. He also asserted that the stress of losing his job worsened his heart condition.

49The applicant resumed work as soon as his medical leave ended. He did so by taking a part-time job at a hardware store at a lesser hourly rate than his job with the respondent. He estimated the difference at about $10,000.00 on an annual basis. However, in response to Mr. Dignard’s questions, he admitted that this was the only job he looked for and that he was not interested in or able to look for full-time work. The applicant has not tried to find full-time work or tried to find any higher paying part-time work. In these circumstances I do not find that the applicant has suffered any loss of income that can be attributed to the discrimination.

Compensation for Injury to Dignity, Feelings and Self-Respect

50In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraph 53 that:

… injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

51In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed a number of factors to consider when awarding damages, including:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment.

52Other than his testimony, the applicant did not bring forward evidence to support a number of his claims of the impact that termination had upon him. I accept that the termination had some additional negative impact on his marriage, which had been in difficulty since 2006. However, there is no evidence of the extent of its impact such that I could conclude on a balance of probabilities that it led to the end of his marriage.

53There is also no medical evidence which links his termination to a worsening of his heart condition, as the applicant claims.

54However, it is clear from the applicant’s evidence that the termination shocked, stressed and humiliated him. He felt that it was sudden, callous and arbitrary. In this regard it is worth noting that he had worked for the respondent since 2003, for three years as an independent contractor and for five years as an employee. I conclude from the way in which the applicant described his work for the respondent that he took pride in his work and the evidence is that he did it well.

55I accept the applicant’s evidence that the sudden termination after five years of employment left the applicant feeling diminished and vulnerable. It was evident to me that he still feels those effects today. However, it is not clear to me what the impacts of this experience are on the applicant’s self-confidence over the longer term because there is no evidence in that regard. He indicates that he is satisfied with his current job and has not tried to find other employment, so I cannot conclude that the termination has harmed his longer term prospects.

56In assessing the damages the applicant is entitled to for injury to dignity, feelings and self-respect I have considered how the Tribunal has dealt with similar cases. In O’Brien v. Organic Bakery Works Inc., 2012 HRTO 457 at paras. 46-47, the Tribunal provides the following useful summary of some recent cases:

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

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

57I would note that there are other similar cases not cited in O’Brien where the damage awards have been consistent with the approach outlined in that case: see for example: Duliunas v. York-Med Systems, 2010 HRTO 1404, where $15,000 was awarded in circumstances where discriminatory conduct occurred over a protracted period of time; similarly, in Mirashrafi v. Circuit Centre, 2010 HRTO 512, and Dean v. Halpern’s, 2011 HRTO 780, the Tribunal awarded $15,000 where the applicant provided medical evidence of the impact.

58In this case I have determined that the applicant is entitled to $12,000.00 as monetary compensation for the injury to his dignity, feelings and self-respect. Here the discriminatory conduct did not take place over a long period of time and the evidence of the impact is limited to what the applicant provided through his testimony. Nonetheless, it is clear that he was terminated abruptly, that the termination came at a time of vulnerability in his personal life, and that this worsened his personal circumstances. I find that the impact of the abrupt termination on the applicant was aggravated by the fact that he had worked for the respondent for a lengthy period of time and there were no indications of problems with his job performance. In the applicant’s mind this made the termination all the more shocking.

ORDER

59This Application is allowed.

60The respondent shall pay the applicant $12,000.00 for injury to dignity, feelings and self-respect arising from the infringement of his rights under the Code. The respondent shall also pay pre-judgment interest on this amount from the date of the Application, in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43.

61The respondent shall pay this amount within 30 days of the date of this Decision. If it fails to do so, then post-judgment interest shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date.