Vinayagamorthy Arumugam v. Venture Industrial Supplies Inc., 2013 HRTO 1776

Human Rights Tribunal of Ontario

B E T W E E N:

Vinayagamorthy Arumugam Applicant

-and-

Venture Industrial Supplies Inc. Respondent

DECISION

Adjudicator: Douglas Sanderson Date: October 23, 2013 Citation: 2013 HRTO 1776 Indexed as: Arumugam v. Venture Industrial Supply Inc.

APPEARANCES

Vinayagamorthy Arumugam, Applicant Steven Sacco, Representative

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

the application

2The applicant was a delivery truck driver for the respondent from September 2008 to April 6, 2009. His duties were to load skids of product onto a delivery truck and make deliveries. He would unload the truck at his destination. The applicant stated that he injured his back at work on November 10, 2008, which resulted in permanent restrictions, including not lifting and bending. The applicant stated in the Application that his restrictions prevented him from loading skids onto the truck, but asserted that he could do office work. The applicant alleged that when he returned to work he required modified duties because he could not sit for prolonged periods or bend repetitively. Instead, he was assigned his pre-injury duties.

3The respondent filed a Response on December 22, 2009 denying the allegations.

4The applicant filed a Reply on February 10, 2010.

BACKGROUND

5The Application was deferred pending completion of the applicant’s Workplace Safety and Insurance Board (“WSIB”) claim and a Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) proceeding. In Interim Decision 2012 HRTO 1682, the Tribunal reactivated the Application following a decision by the WSIAT.

6In correspondence to the Tribunal dated September 6, 2012, Rotimi Oluwasola, the respondent’s representative, indicated that the respondent company changed ownership and that he no longer represented the respondent company in any capacity.

7The Tribunal attempted to correspond and communicate with the respondent company by mailing and sending by e-mail the Interim Decision reactivating the Application to the individual identified by Mr. Oluwasola as the new contact person for the company. The Tribunal’s correspondence to the new contact person for the respondent company was returned to the Tribunal as “moved”. However, the e-mail sent to the new contact person was not returned as undelivered.

8The applicant complied with the Tribunal’s directions to attempt to ascertain the respondent’s current address, without success. The applicant advised the Tribunal that he nonetheless wished to proceed to a hearing. Pursuant to a Case Assessment Direction, dated January 8, 2013, the Tribunal sent a Notice of Hearing to the respondent’s last known e-mail and postal addresses. In the same Case Assessment Direction, the Tribunal stated that if the respondent failed to contact the Tribunal and/or appear at the hearing, the Tribunal would proceed to deal with this Application without further notice to the respondent and deem the respondent to have waived all rights with respect to participation in this proceeding.

9The Tribunal held the hearing of this matter on July 2, 2013 and the respondent did not attend.

Evidence

10The applicant's evidence was that he worked as a driver delivering cleaning products for the respondent, which included loading the delivery truck. He stated that he injured his back while at work on November 10, 2008 and was off of work until April 6, 2009, during which time he received benefits from the WSIB for this workplace injury. On April 2, 2009 the applicant met with the respondent and a WSIB return to work specialist to discuss his return to work. According to the applicant, the return to work specialist considered the applicant to be able to return to his pre-injury duties and the respondent indicated that it had no light duty to offer the applicant. The applicant adduced decisions the WSIB made regarding his claim that confirm that the applicant's case manager was of the view that the applicant could return to his pre-injury job.

11The applicant's evidence was that during the return to work meeting he asked to be given light duties or to be allowed to drive without lifting. The applicant stated that the respondent advised that it could not provide him with a helper, as it was a small company. In that regard, the applicant confirmed that he was the only driver and the only other employee was a person who worked in the warehouse who would have been too busy to load for the applicant. The applicant stated that the respondent advised that light duties were not available and testified that the owner and his wife performed the office work. The applicant also confirmed that his duties included longer distance deliveries, e.g., to Guelph, which he could not perform because of the prolonged sitting required.

12The applicant testified that he returned to work on April 6, 2009 and attempted to perform his regular, pre-injury, duties. The applicant stated that he worked for about four hours and found that he could not do the work. He informed the owner that the work caused him pain and, at the owner's request, the applicant provided a letter stating that he could not work. The applicant did not return to work for the respondent after April 6, 2009.

13According to the applicant he could not perform long-haul driving even without the requirement of lifting (i.e., to load the truck) because he could not sit for extended periods of time. He stated, however, that he could perform short-haul work if he were relieved of the requirement of loading the goods onto and off of the truck.

14The applicant submitted that the respondent could have modified his duties, e.g., by hiring someone to assist him, but the respondent did not accommodate him.

Analysis and decision

15The relevant sections of the code are 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

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

“disability” means,

(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; (“handicap”)

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.

16The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against him on the Code grounds alleged. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

17The applicant claimed and received benefits under the Workplace Safety and Insurance Act, 1997 S.O. 1997, c. 16, Sched. A, as amended, regarding his back injury; therefore, this injury comes within the definition of “disability” under the Code. Pursuant to section 17 of the Code, however, the Code is not violated if a person cannot perform the essential duties of an activity, e.g., a job, because of disability, provided the needs of the person cannot be accommodated without undue hardship. The applicant's own evidence establishes that he was unable to perform the essential duties of his position.

18In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin”) the Supreme Court of Canada also established that the duty to accommodate has both a procedural and a substantive component. To meet the procedural aspect of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. The substantive component of the analysis considers whether the accommodation offered was reasonable or whether a respondent was justified in not providing accommodation. The respondent bears the onus of demonstrating the considerations, assessments, and steps it undertook to accommodate the employee to the point of undue hardship.

19Whether a respondent took adequate steps to explore an employee’s accommodation needs and to assess accommodation options is determined on a case-by-case basis and depends, amongst other things, on the particular circumstances of the respondent. In this case, the evidence establishes that the respondent was a small operation whose personnel consisted of the owner and his wife, a warehouse employee and the applicant. The respondent participated in the return to work meeting with the WSIB during which the applicant requested either to be given light duties, which he identified as office work, or to relieve him of the requirement of loading and unloading the delivery truck. The applicant’s evidence was that the respondent denied this request because there were no light duties available and the respondent could not hire someone to assist the applicant. At the same meeting, the applicant stated that WSIB return to work specialist advised the parties that the applicant could return to his pre-injury job, i.e., that accommodation was not necessary. This conclusion was confirmed by a memo drafted by the return to work specialist, dated April 2, 2009, which the applicant adduced. As is discussed below, the respondent was not required to provide the applicant with office work it did not need or to hire another employee to perform some of the essential duties of the applicant’s job. In these circumstances, the respondent’s only realistic employment option for the applicant was as a driver and I cannot find that the respondent did not meet its procedural obligations.

20The jurisprudence regarding the substantive aspect of the duty to accommodate indicates that an employer is not required to fundamentally change working conditions, but must arrange an employee’s workplace or duties to enable the employee to do his or her work, if such arrangements can be made without undue hardship. The duty to accommodate does not require an employer to assign the essential duties of an employee with a disability to other employees or to hire another employee to perform them in the employee’s place. An employer is also not required to change the essential duties and requirements of a position so that an employee can meet them. See : Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000, 2008 SCC 43, Briffa v. Costco Wholesale Canada Ltd., Yeats v. Commissionaires Great Lakes, 2010 HRTO 906 2012 HRTO 1970 and Brown v. Children’s Aid Society of Toronto, 2012 HRTO 1025. Ultimately, an accommodated employee must be able to perform useful and productive work for his or her employer. See: Vanegas v. Liverton Hotels International Inc., 2011 HRTO 715.

21I find that the essential duties of the applicant’s position were to load and unload the delivery truck and to drive the truck to customers, which included local and longer haul driving. Of these essential duties, the applicant’s evidence was that he was capable of performing only the local driving. To accomplish the other essential aspects of his job, the applicant submitted that the respondent could have hired someone to help him. Perhaps the respondent could have hired someone to help him, but the jurisprudence is clear that it was not obliged to. Consequently, I find that the applicant could not perform the essential duties of his position because of his disability and accordingly I find that there is no breach of the Code in these circumstances.

22The applicant suggested that the respondent could have given him light duties, e.g., office work. The applicant’s evidence was that the respondent’s owner and wife performed the office work and he did not indicate that any such work was available or that he was qualified to do office work. The applicant did not take issue with the respondent’s assertion that there was no light work available. The respondent was not obliged to assign work to the applicant for which it had no need.

23The Application is dismissed.