Moore v. Curraghmore Farm Inc., 2013 HRTO 1586

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Moore

Applicant

-and-

Curraghmore Farm Inc.

Respondent

DECISION

Adjudicator: Alison Renton Date: September 20, 2013 Citation: 2013 HRTO 1586 Indexed as: Moore v. Curraghmore Farm Inc.

APPEARANCES

Brian Moore, Applicant Christine Lundy, Representative

Curraghmore Farm Inc., Respondent Vera Simpson, Self-represented

Introduction

1This is an Application filed on March 19, 2012, under section 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 disability.

2A hearing in this matter was held on June 21, 2013, and both parties participated. I heard evidence from the applicant and, for the respondent, from Vera Simpson, who owns the respondent. The respondent was given an opportunity to file submissions relating to the applicant’s case law which was presented during the hearing, but ultimately did not file subsequent submissions.

3For the reasons set out below, the Application is upheld.

background

4The respondent, which is located in Waterdown, is one of three horse farms that are owned or rented by Ms. Simpson. The other locations are located in Milton and Burlington.

5The applicant commenced employment on May 5, 2011, as horse farm staff. He worked primarily at the Waterdown location, but also at the other locations.

6On or about June 11, 2011, the applicant experienced a workplace injury after he attempted to move a riding lawnmower that had become stuck in wet grass. The applicant subsequently filed for, and received, benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, sch. A (“WSIB benefits”). At some point following his injury, the applicant’s employment ended with the respondent.

7The issues in this Decision are: should the respondent have accommodated the applicant in the workplace after his workplace injury?; did the applicant quit his employment?; did the respondent layoff or terminate the applicant because of his workplace injury?

8I am setting out the facts that are relevant to my determination of whether or not the applicant’s Code-protected rights were infringed.

9The applicant is an experienced horse handler who has worked for a number of years with horses. The parties disagree about how the applicant started working for the respondent, with the applicant testifying that Ms. Simpson contacted him, and Ms. Simpson testifying that the applicant contacted her. The parties also disagree whether or not the applicant was employed at the time that they established contact about the position. The applicant claimed in his Reply that he had quit his previous position, but testified that upon obtaining employment with the respondent he quit his former employment. Ms. Simpson testified that the applicant had quit his previous employment and was seeking new employment. Ultimately, how the applicant became employed with the respondent is not material to the Decision.

10Ms. Simpson testified about the farms that she operates and their seasonal work. At her farms, she boards, but does not own, thoroughbred mares that are pregnant and have been brought, from different locations in the United States, to Ontario to foal. The foals need to be born in Canada to be eligible to run in Canadian horse races, including the Queen’s Plate. A number of mares usually arrive at her farms by October 1, already pregnant because all horses have a universal birth date of January 1 regardless of their actual date of birth, and foal in the spring until approximately mid-June. The farms are busy during the winter months and during foaling season, and then the mares return to locations in the United States to be bred again and one of the respondent’s farms is closed. Because of the seasonal nature of the work, the number of mares fluctuates, as does the number of Ms. Simpson’s staff. She does, however, have some staff that work full-time and year-round.

11The parties disagree whether or not the applicant was a seasonal employee or a permanent employee. The applicant testified that he thought that his employment was full-time, that he could have the position for as long as he wanted, was not told that he was a seasonal or temporary employee, and did not sign a contract upon commencing employment. He testified that Ms. Simpson told him it was a plus that he had a car so he could drive back and forth between the farms. She never told him that he would have much less work after she closed down one farm in June.

12Ms. Simpson testified that the applicant was a seasonal employee which corresponded with the seasonal nature of her business. She could not guarantee full-time work for him, particularly at the end of the breeding season, and she had staff who had been with her for years. Ms. Simpson testified, in cross-examination, that she did not have a discussion with the applicant about how long the job would be and did not tell him that the work would be for about six weeks. He did not have a job, she testified, and she had some work for him, initially with the horses until they were gone and then with fence repair. She testified that she would determine during his first three months of employment whether or not he would become a permanent employee. There was nothing in writing about the nature or length of his work, she testified in cross-examination. She testified that she had no concerns with either the applicant’s work ethics or his performance.

13In his Application, and during his testimony, the applicant stated that on June 11, 2011, he suffered a workplace injury to his right arm when he attempted to lift up a riding mower which had become stuck in wet grass. He is right hand dominant. In his Application, the applicant indicated that he was alone when this injury happened. During his evidence, he testified that “another guy” helped him pull out the stuck mower. He did not identify the name of the other individual. In his Reply, the applicant asserted that on the day of his workplace injury he worked at the thoroughbred farm near Milton in the morning and in the afternoon worked at the brood mare farm at Waterdown. This is where the retired mares were living and the farm required upkeep like mowing and keeping the fences in good condition.

14The applicant went into the barn and told a woman who was sweeping, whose name he did not know, that he hurt his arm and was going to the hospital. He also conveyed this to the individual who helped him with the stuck riding lawn mower. The applicant did not tell Ms. Simpson, he testified, because she was not around. He thought that the woman who was sweeping would pass along this information to Ms. Simpson. The applicant did not have the telephone numbers for Ms. Simpson or her partner, Michael Dube. In cross-examination, he said that the woman sweeping said that Ms. Simpson was unavailable because she was at the races.

15The applicant attended a hospital, was seen by a doctor who gave him a note. The note said “Should be on light duties – no lifting with ® arm until further notice”. The applicant testified that the doctor said that they would not know what was wrong with his arm until he had an ultrasound but he thought that the applicant had torn his bicep.

16The next day, Sunday, June 12, the applicant was scheduled to work at the Milton farm where, after working for some time doing his work with his left hand, he met Ms. Simpson in the feed room and told her what had happened. The applicant gave Ms. Simpson the doctor’s note and told her that he could only do light duty work. Ms. Simpson gave him back the note and asked him to lead out some horses, which he did with his left hand. The mare was easy to lead out, but the colt, the applicant testified, was “kind of spooky”, and jerked the applicant’s arm. The applicant had to grab the colt which caused him pain. The applicant alleges that Ms. Simpson told him that he was “no good to her” and he might as well go home. The applicant testified that because of his arm, he believed she did not want him anymore. He thought that he was fired because of what happened on his next shift on June 14.

17Ms. Simpson confirmed in her testimony that the applicant told her that he had strained his arm the day before, had gone to the hospital and had been given a note from a doctor, which he gave to her. Ms. Simpson testified that she looked at the note and gave it back to him. She did not have any discussions with him about the injury, other than claiming that the applicant told her that he had strained an old injury. The applicant “seem uncomfortable”, she stated, but she did not ask him if he was. She did not ask whether he could stay and do less work. She testified, “As for discussion about whether he could stay and do less work and it’s just not possible with our business”. She testified that “[the horses] are volatile animals and you can’t handle horses if you have an injured arm where you are not able to control them”. “It’s dangerous for the animals and the people if the animals aren’t controlled”, she explained and confirmed, in cross-examination, “If you haven’t got control over animals then you’re a danger to yourself”. She confirmed that it would be unsafe despite the applicant being an experienced handler.

18Ms. Simpson testified that she told the applicant to go home and look after his arm as it was a Sunday and he had the Monday off. He told her that he did not need to go home. His next job would be mowing and fixing fences; however, the mower was broken and the respondent was waiting for parts to arrive from the United States so that it could be repaired.

19Ms. Simpson denied, in response to a question from the Tribunal, that she told the applicant that he was “no good to her”. “I have may said that he should go home and I’m quite sure that I did because I sent someone to replace him and he didn’t want to go and he called me on the farm phone to say that he didn’t want to go and I told him lots [of other workers] around and he should go and look after his arm”, she testified.

20Further during her cross-examination, Ms. Simpson testified that the applicant’s job description changed following his injury. As more horses left the farms, the applicant was required to do more maintenance work. As Ms. Simpson had staff that could handle the horses, with or without the applicant’s injury, the applicant’s job would not have been to handle horses, but do work on the fences and mowing.

21The applicant’s next scheduled shift was June 14, 2011. He returned to work and met again with Ms. Simpson. In his Reply, he told Ms. Simpson that he had torn his bicep and gave her the doctor’s note that said just that. Ms. Simpson, the applicant claims, told him to stay home until the doctor explained what was wrong with his arm. The applicant went home, and did not attend work on June 15 because of Ms. Simpson’s directions, but he did see his doctor.

22The applicant testified that during the evening on June 15, he received a telephone call from Ms. Simpson. She told the applicant that he was going to be laid off because they got along fine without him that day.

23The applicant testified that even with his right arm injury, there was work that he could have performed. He testified that he could have done odd jobs like cleaning the water buckets, and taking the temperatures on the foals and feeding them, but that Ms. Simpson never asked him what he could or could not do.

24The applicant next heard from Ms. Simpson who called him about mowing the lawn. In his Application, the applicant identified the date of the call as being July 1 and in his Reply he identified the date as June 29. In both his Reply and his evidence, the applicant stated that he told Ms. Simpson that he could not do the mowing until July 1, 2011, as he was doing haying with a friend before then. In his testimony, the applicant said that he could do the mowing as it involved sitting on the truck and did not require a lot of manual labour with it. He testified that he did not do any physical work with the haying, but instead drove a vehicle with its four way flashers.

25Ms. Simpson testified that she did not recall when the lawn mower parts came in, but when they did, she called the applicant and asked him to come in and mow the lawn. This conversation, she thought, took place on a Sunday night. They did not discuss the applicant’s arm and whether he still had restrictions with it. The applicant told her that he was doing haying and could not come until the end of the week. The applicant came on July 1, but Mr. Dube, in the meantime, mowed the fields.

26On either June 30 or July 1, 2011, the applicant testified, he arrived at the Waterdown farm at 6:40 a.m. to do the mowing. The applicant did not see Ms. Simpson, but saw, instead, Mr. Dube. Mr. Dube asked what he was doing there and the applicant told him that Ms. Simpson had called him to mow the lawn. Mr. Dube told the applicant that the machine was broken, but he would give the applicant a day’s work because the applicant had driven to the respondent. Mr. Dube instructed the applicant to clean and paint the fences.

27The applicant testified that he worked for 10 hours pressure washing and painting the fences with the pressure painter. The applicant used his left hand where he could. Mr. Dube, the applicant testified, did not ask if he needed help. In his Reply, the applicant stated that he saw Ms. Simpson at the end of the day. She did not ask how he was feeling although, he claims, she must have seen that he was in pain as he was holding his right arm with his left hand.

28The parties agreed that the applicant was paid for the day’s work, in a separate cheque issued to him by the respondent in the amount of $120.00 as his hourly rate was $12.00.

29Ms. Simpson confirmed in her testimony that the applicant power washed and painted the paddock fences on July 1 as directed by Mr. Dube. She did not think that Mr. Dube knew about the applicant’s arm and his restrictions. At the end of the day, she made a point of going to speak with him. The applicant told her that the intermittent work was not suitable and he did not want to rely upon it. In response she told him about the opportunity to work for her mother, where he could be his own person. The applicant told Ms. Simpson, she testified, that he was going to apply for EI benefits the following week.

30In his Application, the applicant claimed that this was the last time that he heard from the respondent or Ms. Simpson. However, in his testimony, the applicant stated approximately one and a half weeks later, he went into the office to pick up his pay. Along with his pay was a Record of Employment (“ROE”), which he had not requested.

31Two ROEs were introduced as exhibits during the hearing. Both were issued June 17, 2011, and one was typed and one was handwritten. The ROEs both give Code A as the reason for their issuance with the words “shortage of work/end of contract or season” written on the typed ROE. The applicant testified that he received the typed ROE.

32The applicant testified that he had no knowledge that he would be laid off because of the end of the season. He felt that the ROE was issued because he got hurt. “The way that I looked at it I thought that I was fired that Sunday morning [June 12]”, he testified during his examination-in-chief, referring to the Sunday when Ms. Simpson told him that he was “no good” to her. He had no knowledge that he would be laid off because of the end of the season.

33The applicant disputed that there was a shortage of work. During his cross-examination, he testified that between the three farms, the respondent had between 40 to 60 horses. The respondent had 30 horses at the Waterdown farm. In re-examination the applicant testified that the work with foals and mares does not end once the foals are born and that it is a year-round job.

34Ms. Simpson testified that because the applicant’s earnings had been interrupted for five days, she prepared the ROE. She did not want the applicant to be sitting around without money. She did not indicate that the applicant was fired, because he had not been, but rather that there was a shortage of work because there were not enough horses to keep him busy and because she was not sure when the riding lawn mower parts would come in. This was a different mower than the one the applicant was using when he hurt his arm. Ms. Simpson marked off that the expected date of his recall was unknown, rather than saying that he would not be returning.

35During her cross-examination, Ms. Simpson testified, “we are all in agreement that he injured himself and what I’m saying is that he quit”. She elaborated by saying that she had work for the applicant, in the form of working for her mother, which he did not accept, as well as work mowing the fields. Later in her cross-examination she testified, “He [the applicant] was taking another avenue with his life and, put it this way, he made it clear that he would not be coming into work and I had the mower parts and they were in and mowing that was required which was done by someone else and he made the decision to go somewhere else”. Ms. Simpson was upset during this part of her evidence. She told the applicant that she had further work for him, but it was not steady work, and he wanted steady work. She came to the conclusion that he quit when she looked at everything and thought about it all. She noted that she did not take the position that the applicant quit even when she filed her Response.

36As exhibits, Ms. Simpson filed some Canada Revenue Agency “Statement of Account for Current Source Deductions” for April, May, June and July, 2011 (“the CRA documentation”). She testified that the number of employees that the respondent employed during these months dropped from 13 in April, 10 in May, 9 in June, 8 in July and 7 in August. The names of her employees during this time were not produced. She stated that there was a shortage of work for the applicant and that he was not replaced. During her cross-examination, she testified that she laid off, or no longer employed, four employees from the beginning of May until August 2011. Some people left because of shortage of work and others left to go to other jobs.

37After July 1, the applicant testified that he had further contact with Ms. Simpson. He received EI sick benefits and applied for WSIB benefits and telephoned her on July 5 to tell her that he had applied for WSIB benefits and because he required surgery at the end of July 2011. Ms. Simpson, he testified, said “oh”. He testified, and submitted in his Reply, that he called her because she had not submitted the employer’s report about his injury which he asked her to file. His WSIB claim was approved for loss of wages to January 2012. In his cross-examination, the applicant testified that WSIB told him that the respondent had not filed the employer’s WSIB form.

38Ms. Simpson testified that the applicant called her the week after July 1. He told her that he was not eligible for EI benefits because of his previous employer’s paperwork, that his injury was more involved than he thought and he was going to apply for WSIB. She completed her WSIB form and that was the last that she heard from him. There was disagreement between the parties as to whether or not Ms. Simpson had testified in her examination-in-chief that there was no reason to contact the applicant after he applied for WSIB benefits. Ms. Simpson testified, during her cross-examination, that he never called her about returning to work after he filed for WSIB benefits and that she did not call him. “I did not call him after he told me the direction that he was taking and he didn’t call me about returning to work with restricted duties or being able to work” she stated. It is not her practice to call an employee, she testified, “when they decide to change direction in their life”. She testified, in response to a question from the Tribunal, she thought the onus was on the applicant to call her and tell her that he was “repaired” and “healthy” and “ready to work” and he did not. She confirmed that she does not know about the Code and had never had “a problem like this”.

39The applicant testified that Ms. Simpson offered him work as a handyman working for her mother who resided at the Milton or Bluffton farm. This was the only work that he was offered after July 1, 2011. He testified in re-examination that Ms. Simpson did not tell him this was an alternative to working for the respondent. Ms. Simpson told him that he would require his own workers’ compensation insurance coverage as he would be self-employed. He understood that he would not be an employee of the respondent if he performed this work. He told Ms. Simpson that he was not interested in this work and testified that it was because he knew that he would not be able to obtain his own insurance coverage, he was scheduled for surgery, and he did not want to be self-employed. The applicant also testified that he could not do this type of work as it involved “tearing down stuff”. Ms. Simpson did not suggest any modifications to take into account his injury. In his Reply, he added that there was no security in such work.

40The applicant testified that from the time of his injury until the time of his surgery, he could have performed light duties. His surgery was July 21, 2011. The only restriction that he had was that he could not lift anything over 15 pounds. After his surgery, he testified, he also could have returned to work performing light duty work, such as feeding the horses and working between the Waterdown and Milton farms.

41The applicant claims that his layoff became indefinite and accordingly turned into a termination. His testimony about the period following July 1 is set out in the remedies section below.

credibility of witnesses

42In my assessment of the evidence, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed, which held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [emphasis added]

43Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors considered in appraising reliability and credibility, including:

• The internal consistency or inconsistency of evidence

• The witness’s ability and/or capacity to apprehend and recollect

• The witness’s opportunity and/or inclination to tailor evidence

• The witness’s opportunity and/or inclination to embellish evidence

• The existence of corroborative and/or confirmatory evidence

• The motives of the witnesses and/or their relationship with the parties

• The failure to call or produce material evidence

Shah v. George Brown College, 2009 HRTO 920 (“Shah”) at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.

44Thus, evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, as discussed in Shah, above, a finding of lack of credibility with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible.

onus of proof

45The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”), that the “balance of probabilities” standard of proof applies to all civil cases and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. The Court advises to “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58.

the law

46Section 10 of the Code sets out the definition of disability. In employment situations, it can arise from either an occupational, workplace injury, or a non-occupational disability and it can include a temporary or a permanent disability. The relevant parts of the definition are:

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

“disability” means,

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

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

47Section 5(1) of the Code prohibits discrimination in employment. It says:

5.1(2) 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.

48Sections 17(1) and (2) of the Code specifically address disability and a respondent’s corresponding right to accommodate to the point of undue hardship. They state:

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.

analysis

49It is not disputed by the respondent that the applicant has a disability within the meaning of Section 10(1)(a) the Code. If this were disputed, I would nonetheless find that the applicant met the definition of “disability” under section 10(1) of the Code as he claimed for and received benefits under the WSIA as a result of this workplace injury. See Ferreira v. KMS Van Lines Inc., 2013 HRTO 182 at para. 79.

Should the applicant have been accommodated by the respondent after his workplace injury?

50Having a disability within the meaning of the Code raises obligations for an employer, and specifically the obligation not to discriminate against an employee because of his or her disability. Employers also have an obligation, under the Code, to accommodate an employee with a disability, occupational or non-occupational, to the point of undue hardship. This Code obligation is in addition to any obligation that an employer may have to accommodate an employee with an occupational disability under the WSIA. See McKee v. Imperial Irrigation, 2010 HRTO 1598 at paras. 27 and 28.

51The Supreme Court of Canada has accepted that the duty to accommodate under the Code has both a substantive and a procedural component. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868.

52The procedural component requires an individualized investigation of accommodation measures and an assessment of the applicant’s needs. Accommodation is a collaborative process: the person with a duty to accommodate is required to actively seek the information he or she needs, and must be prepared to consider and explore the possibilities. The person requiring accommodation must also cooperate in the attempt to find a suitable accommodation. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, and Fisher v. York University, 2011 HRTO 1229 at para. 43.

53The substantive component of the analysis requires a consideration of the accommodation offered or a respondent’s reasons for not providing accommodation. It is a respondent who bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate an individual to the point of undue hardship. See Meiorin, above, Dixon v. 930187 Ontario, 2010 HRTO 256, and Byers v. Fiddick’s Nursing Home, 2012 HRTO 952 at para. 227.

54I find that the respondent, through the actions of Ms. Simpson, breached both the procedural and the substantive components of the respondent’s obligation to accommodate the applicant’s disability. The applicant should have been accommodated after his workplace injury, however, he was not. Ms. Simpson, by her own admission, read the doctor’s note that the applicant handed to her on June 12 and handed it back to the applicant without any discussion. Further, while Ms. Simpson denies telling the applicant that he was “no good to her anymore”, her evidence is clear that she sent him home because of his injured arm despite the applicant telling her that he did not want to go home. This occurred on both June 12 and June 14.

55It is the employer who bears the onus in applications under the Code of proving what considerations, assessment, and steps it took to accommodate an injured worker to the point of undue hardship. In this case, the evidence is clear that Ms. Simpson did not engage the applicant in any discussion about the type of work that he could or could not perform. The applicant’s medical documentation did not indicate that he was unable to perform any work, but rather that he required modified work and that he had some restrictions with his right arm. The applicant’s medical documentation did not indicate that the right arm restrictions were permanent but would exist “until further notice”. Ms. Simpson did not ask the applicant for updated medical information, or what jobs that he felt that he could perform or not perform. The applicant testified about some light duty work that he could perform around the farms, including mowing and feeding the horses. Although his evidence was not exhaustive on this issue, it suggests that there was some work that he could have performed. Instead, Ms. Simpson sent him home despite him stating that he did not want to go home.

56Furthermore, Ms. Simpson made assumptions about the applicant’s medical condition from her observations of the applicant, at least with respect to his working directly with the horses, rather than having any discussions with the applicant about his condition. She testified that the applicant “appeared uncomfortable” on June 12, although she did not ask him about his level of comfort. She testified that he expressed pain while leading the colt, which the applicant confirmed in his evidence. However, Ms. Simpson did not ask him about this or ask if he was unable to lead the horses, despite recognizing during her evidence that the applicant was an experienced horse handler with whom she had no issues either with respect to his work ethic or his performance. I accept that the respondent had safety concerns about an injured person working with horses, and that in some circumstances safety concerns about working with animals could support a respondent’s position that it had accommodated an employee to the point of undue hardship. However, in this case, when Ms. Simpson did not speak to the applicant about her safety concerns, sent him home without discussion, and did not consider what, if any, modified work the applicant could perform, the respondent violated the respondent’s obligation to accommodate the applicant. See Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 at para. 33.

57Based upon the above, I find that the respondent failed to accommodate the applicant’s disability to the point of undue hardship.

58The respondent, through Ms. Simpson, agreed that she never contacted the applicant after their discussion about her requirement to submit documentation to WSIB. Ms. Simpson submitted that, in her opinion, it was not her responsibility to contact the applicant with respect to modified work but instead it was the applicant’s obligation to contact her when he was “repaired” and “healthy”. I disagree and find that it is part of the respondent’s substantive obligation to accommodate, as set out above.

59As for the offer that the applicant could work for Ms. Simpson’s mother as a handyman, I find that this was not an offer of accommodated or modified work that the applicant was required to accept. I accept the applicant’s evidence, which was unchallenged by the respondent, that acceptance of this work would mean that he would no longer be employed by the respondent, but instead would be self-employed. I find that Ms. Simpson told the applicant that he would be required to obtain his own insurance, which supports the applicant’s position that he would not be working for the respondent.

Did the applicant quit his employment or was he laid off or terminated contrary to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

60As for whether or not the applicant quit, was terminated, or was laid off for shortage of work or end of season, I find that the applicant was terminated once Ms. Simpson found out about his disability. On this issue, I did not find Ms. Simpson’s evidence that the applicant quit or was laid off to be credible or reliable given the inconsistencies in her evidence on this issue.

61Ms. Simpson stated that the applicant quit his employment when she considered everything together. However, this is a position that she advanced for the first time during the hearing, and well after the applicant’s employment had ended and the Response was filed and she did not explain the delay in raising this position. Further, it was inconsistent with the respondent’s own documentation, in the form of the ROE on which the respondent indicated that the applicant was laid off due to shortage of work or end of season. I do not accept that the applicant quit his employment.

62Several times during the hearing, when Ms. Simpson was testifying about the applicant telling her he was going to apply for WSIB benefits, she stated that the applicant had “changed direction with his life” as a reason why she did not communicate with him after this telephone call. While this was in reference to the applicant telling Ms. Simpson that he had applied for WSIB benefits, it does not support Ms. Simpson’s position advanced during this hearing that the applicant had quit his employment. An employee has a statutory right under the WSIA to apply for benefits for a work-related injury. Whether or not the employee is entitled to benefits under WSIA is, of course, not within the purview of this Tribunal. However, a statutory right to apply for such benefits does not, in my view, mean that the applicant has decided to “change direction”, seek another direction with his life, or quit. All it means, in the context of this case, is that he was representing to WSIB that he had a work-related injury and seeking benefits from WSIB as a result of his injury. The respondent’s obligations under the Code to accommodate the applicant still continued notwithstanding his claim with WSIB.

63I do not accept that the applicant was laid off due to the end of the season as stated by the respondent and as written on the ROE, as opposed to being terminated for reasons related to his disability. First of all, I find that the applicant was not hired as a seasonal employee. I accept the applicant’s evidence that there was no documentation presented to him by the respondent at the beginning of his employment addressing his employment status. Ms. Simpson conceded this during her cross-examination. I also accept the applicant’s evidence, which Ms. Simpson confirmed during her cross-examination, that there was no discussion about the length of his employment, and most particularly any discussion that he would be hired just for the season. Ms. Simpson in fact testified during her examination-in-chief that she would observe his performance during his first three months of employment to determine whether he would be a permanent employee. This undermines her position that the applicant was hired for the season, as she testified that the season ends approximately mid-June and the applicant was hired at the beginning of May, 2011. Furthermore, it is unlikely that the respondent, hiring the applicant, an experienced horse person, would not tell him that his employment would only be until mid-June or so. I would expect that an employer would want to very clearly let a prospective employee know that the duration of his or her employment would be extremely short, particularly when the farms continue to operate, at least to some extent, after the foaling season is over, to avoid any confusion.

64I do not accept Ms. Simpson’s evidence about the delay in obtaining the lawn mower parts from the United States as being part of lack of work which generated the ROE. In this regard, her evidence was inconsistent and unclear. That there was a delay in obtaining the parts of the mower, she testified, was one of the reasons upon which the ROE was based. However, the lawn mower parts were for a different mower than the one that the applicant used on June 11 when he hurt himself. Further, it was clear that the respondent expected the motor parts to come in. Ms. Simpson called the applicant before the end of June to do the mowing. He agreed to do the mowing, but said that he could not until the end of June or beginning of July and when he attended on July 1, Mr. Dube told him that the mowing had already been done, by himself.

65I also do not accept the respondent’s position that it laid off the applicant because of shortage of work as stated during the hearing and as written on the ROE. The CRA documentation submitted by Ms. Simpson does not support her position that the amount of remittances, as well as employees, decreased for the period April to August as she testified. The CRA documentation, which is on a CRA pre-printed form, shows printed information apparently from CRA, including the date showing the statement of account, the employer’s name (the respondent), balances on the last statement, including amount paid for 2011, and current balances, including amount paid for 2011 with printed explanation of changes. The account number of the employer appears to be left blank. The CRA documentation also contains handwritten numbers at the bottom of the page, for CPP contributions, EI premiums, tax deductions, current payment, gross payroll and “no. of employees in last pay period” as well as a stamp indicating “paid”, the date and the cheque number.

66The handwritten gross payroll information appears to show fluctuations from $83,991.50 on the April statement, decreasing to $20,113.50 on the May statement, increasing to $20,304.80 on the June statement, decreasing to $17,856.05 on the second June statement, and increasing to $25,390.80 on the July statement notwithstanding that the handwritten number of employees in the last pay period appears to decrease each month. Even if I accept Ms. Simpson’s evidence that the number of reported employees is based upon the last payroll of the month, which may possibly explain why the number of employees decreased each month, there was no explanation provided as to why the gross payroll increased significantly between the two June statements and the July statement. While the handwritten documentation shows payments made in August and September 2011, there is no CRA documentation confirming those payments. Accordingly, I do not rely upon the CRA documentation as being reliable in establishing that the number of employees who worked for the respondent decreased from June 2011 onwards.

67Even if I did accept that fewer employees worked for the respondent after June 2011, I heard no evidence from the respondent as to why the applicant, a very experienced horse handler with whom Ms. Simpson had no performance or work ethic issues, was selected ahead of other employees to be laid off. Ms. Simpson did testify that she had full-time employees who had worked for her for a while and who work year-round, but these employees were not identified. There was no evidence led about the identity of the employees who were maintained, the positions that they had, or why they were retained over the applicant.

68While Ms. Simpson testified that she is required to issue a ROE after an interruption of five days of earnings, the evidence was that the applicant reported for work, and did work, for at least part of June 12 before he was sent home by Ms. Simpson. He was not scheduled to work on June 13 and he reported again for work on June 14 only to be sent home again. From this, it is unclear that the applicant had an interruption in earnings for at least five days. Instead, given its timing, it seems more probable that the ROE was completed because the applicant experienced an injury.

69Finally, I accept the applicant’s evidence that there was work available for him after his injury. He testified that a number of horses were retained at the farms, and that work for the horses would continue even if the foaling season were over. He had a car, drove to the three farms and worked on each of them, a fact not disputed by the respondent and he worked on July 1.

70I find that the applicant was terminated by Ms. Simpson, not on June 12, as the applicant believed, but rather on June 15 when Ms. Simpson telephoned the applicant and told him that she was laying him off. Ultimately whether or not someone has been terminated and when is a legal determination. See Ferreira v. KMS Van Lines Inc., 2013 HRTO 182 at para. 89. This termination was based solely on the fact that the applicant had a disability and accordingly is contrary to the Code.

71It was clear that by this point, including sending home an employee who had not indicated that he could not work, subsequently completing his ROE, and testifying that the applicant should not contact her until he was “repaired” and “healthy”, that Ms. Simpson was not interested in continuing the applicant’s employment and that it was only because of the injury that he sustained on June 11. Although she called and offered the applicant further work in the form of mowing the lawn, when he arrived at the respondent, she did not meet him upon his arrival. Instead, it was Mr. Dube whom, Ms. Simpson testified, did not know about the applicant’s medical condition, had himself completed the work the applicant had agreed to perform, and assigned him work that clearly, but unknown to Mr. Dube, was beyond the applicant’s restrictions, but which the applicant performed without complaint. Even at the end of the day when Ms. Simpson observed the applicant, she did not ask him how he felt, or the status of his medical condition. Her offer of further work was not as the respondent’s employee, and told him he would be required to obtain his own insurance. She paid the applicant for his work on July 1 by cheque, in the amount of $120 based upon his hourly wage of $12 for 10 hours of work. This appears to have been issued without any source deductions. All of this treatment appears to have occurred because the applicant had an injury on June 11, 2011.

72Accordingly, having terminated the applicant because of his disability, I find that the respondent terminated the applicant contrary to the Code.

remedies

73Having found that the respondent breached the Code, I turn now to the question of the appropriate remedy in the circumstances. The Tribunal’s remedial jurisdiction is based upon sections 45.2(1) and (2) of the Code which reads as follows:

45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out 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.

45.2(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

74It is well-established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator. Intention to discriminate is not a governing factor in construing human rights legislation. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 18. It is the result or effect of the alleged discriminatory action that is significant. See also Nemati v. Women’s Support Network of York Region, 2010 HRTO 327 at para. 112.

75During closing submissions, the applicant submitted that he was seeking $15,000 as general damages as well as loss of wages for a one-year period. He quantified this amount, taking into account the amounts that he received from WSIB and EI as $20,498. Further, the applicant submitted that he was seeking a letter of reference, but would be satisfied with a letter confirming employment. He also requested that the Tribunal order the owners and managers to take the Ontario Human Rights Commission’s (“the Commission”) e-learning training module, Human Rights 101, and that the respondent provide a notice to all employees as the Tribunal ordered at para. 54(2) of Royal v. Optilinx Systems Inc., 2010 HRTO 2135.

damages for injury to dignity, feelings and self-respect

76The Tribunal awards damages to “injury, feelings and self-respect” pursuant to section 45.2(1)2. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (“Arunachalam”), the Tribunal, at paras. 52-54, summarized the principles on which damages under section 45.2(1)1 are awarded:

The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

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

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

77The applicant testified about the impact that the respondent’s conduct towards him and his termination had on him. His evidence was stated fairly succinctly. He testified that following his termination his social life “sucked” (he apologized for the use of that word during the hearing). He is a bachelor and before his termination he used to go out a lot, including to the races and the casino, and subsequent to his termination he stayed home all the time. Further, he was depressed. He stated that he felt like he was a yo-yo being bounced around. He had been prescribed a mild depressant, which he stopped taking. His doctor told him to take the medication and he started it again, but it was hard.

78Other than his testimony, the applicant did not bring forward evidence to support his claim about the impact that his termination had upon him, including any medical documentation linking his termination to his depression.

79The respondent took no position with respect to the $15,000 being claimed by the respondent.

80During the hearing, the applicant appeared to be a person of few words, who spoke plainly and without embellishment. He became emotional at various points of his testimony. I accept that his termination and the treatment that he received from the respondent subsequent to June 12 had a negative impact on him despite his succinct evidence and that he still feels those effects today.

81In assessing the damages that the applicant is entitled to for dignity, feelings and self-respect, I have considered how the Tribunal has recently dealt with similar cases, involving very short term employees with a disability who have been terminated.

82In O’Brien v. Organic Bakery Works Inc., 2012 HRTO 457, the applicant worked for seven months before being terminated and was awarded $13,000 in part due to his sparse evidence about the impact of his termination. In Defina v. Lithocolour Services Ltd., 2012 HRTO 1768, a decision upon which the applicant submitted, the Tribunal awarded $15,000 to an applicant who had been employed for less than two months and who had been terminated by e-mail with harsh accusations contained in it that had previously not been raised with her.

83In this regard, I find it appropriate to award the applicant $13,000 as compensation for injury to dignity, feelings and self-respect, given his tenure of employment and the respondent’s failure to accommodate him subsequent to his injury.

loss of wages

84The applicant seeks loss of wages for a one-year period which he has quantified as being $20,498. During the year, he received EI sickness benefits until he was approved for WSIB benefits, which continued until January 2012. He had surgery for his arm on July 21, 2011.

85His evidence pertaining to his loss of wages claim was very brief. He testified that his doctor told him that he could have performed light duty work up until the time of his surgery as well as after his surgery. The only restriction, he testified, was that he could not lift anything over 15 lbs. He suggested that he could have fed the horses in the morning and led them out at the farms that were operating during this period of time.

86The applicant testified that he started working part-time in January 2013. At the time of the hearing, he was doing light maintenance, painting fences and delivering water, running a forklift, picking up pallets and stacking them. He managed without too much problem. He testified that he can have limited contact with horses.

87He led no evidence about his attempts to mitigate his loss of wages from the time of his termination, or from July 1, 2011, until he started working part time in January 2013. The parties agreed that the applicant earned $12.00 per hour while working for the respondent, and the ROE showed his total insurance earnings as being $3,720. However, apart from July 1 when the applicant worked 10 hours, the applicant led no evidence about the number of hours per day or per week that he worked for the respondent.

88The respondent disagreed that loss of wages should be ordered for 52 weeks. Instead, Ms. Simpson submitted that it should be ordered for a six-week period, if any was to be ordered.

89An applicant has a duty to mitigate his or her losses. In Adams v. Knoll North America, 2010 HRTO 376 at para. 16, the Tribunal explained this duty as follows:

The applicant is under a duty to mitigate his losses by making reasonable efforts to obtain suitable employment. He cannot remain idle and then expect complete compensation for the period of his unemployment. The applicant is entitled to be compensated only for those losses that could not have been avoided and the respondent has the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22 at para. 265; A. v. Ruby’s Food Services Ltd. (1992), 1992 CanLII 14245 (ON HRT), 16 C.H.R.R. D/394 at para. 45 (Ont. Bd. Inq.).

90In this case, I find that the applicant did suffer a loss of income from his termination, that I have found occurred on June 15, 2011, connected with his disability, until July 21, 2011, when he had his surgery. Accordingly, I order that the respondent shall pay the applicant loss of wages from June 15 to July 21, 2011, less any amounts received and less deductions required by law. If the applicant was not paid for June 12, 14 and 15 when he was sent home by Ms. Simpson, given my findings above, the respondent is also ordered to pay the applicant for any loss of wages for those days too. I shall remain seized in the event that the parties cannot agree on these amount.

91I do not find that the applicant has proven that he suffered any loss of income subsequent to July 21, 2011. He testified that at this point, he was in receipt of WSIB benefits, which continued until January 2012, and that following his surgery in July 2011, he was able to do light duty work. He provided no details about his job search efforts for the period that he is seeking for loss of wages. Accordingly, I decline to award him any loss of wages subsequent to July 21, 2011.

letter of reference

92I decline to order that the respondent provide a letter of reference or a letter confirming employment as I see that it is comparable to a letter of apology, which the Tribunal has declined to order. See Royal at para. 51 and the cases cited therein. However, I note that Ms. Simpson agreed during her final submissions that she could provide a letter confirming employment as the applicant was a good employee and the Tribunal would hope that she would agree to provide one again following the issuance of this Decision.

future compliance remedies

93The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”. See Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 91.

94The applicant is seeking an order that the owners of the respondent and its management take the Commission’s e-learning training module entitled Human Rights 101. Ms. Simpson submitted that this was not a problem for her and Mr. Dube to take. There was no evidence that there were any management other than Ms. Simpson and Mr. Dube, therefore I order that Ms. Simpson and Mr. Dube take the Commission’s eLearning module “Human Rights 101” that is found on the Commission’s website at http://www.ohrc.on.ca/hr101/, within 30 days of the date of this Decision, and to confirm in writing to the applicant’s representative that they have completed this training.

notice to employees

95I decline to order the respondent to post a notice to all employees in the form set out in paras. 54(2) of Royal. I note that in that case, the applicant was terminated after she filed a WSIB claim and that the notice ordered in Royal specifically addressed the situation of having filed or received benefits from WSIB before an employee was terminated. This is distinguishable from the situation before me in which I have found that the applicant was terminated before he applied for WSIB benefits.

orders

96The Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent shall pay the applicant $13,000.00 as monetary compensation for injury to dignity, feelings and self-respect along with pre-judgment interest, calculated from the time of filing the Application, March 19, 2012, in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (“CJA”);

2. Within 30 days of the date of this Decision, the respondent shall pay the applicant for loss of wages for the period June 15 to July 21, 2011, less amounts received and any deductions required by law, along with prejudgment interest calculated from June 30, 2011 in accordance with section 128 of the CJA. I will remain seized in the event that the parties are unable to agree upon the quantum;

3. The respondent is liable to pay the applicant post-judgment interest in accordance with section 129 of the CJA, if the monetary amounts in paras. 1 and 2 are not paid within 30 days from the date of this Decision; and

4. Within 30 days of the date of this Decision, Ms. Simpson and Mr. Dube shall complete the Commission’s Human Rights 101 eLearning module which is available online at http://www.ohrc.on.ca/hr101/ and confirm with the applicant’s representative that they have completed it.