HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Troy Ferreira
Applicant
-and-
KMS Van Lines Inc.
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Ferreira v. KMS Van Lines Inc.
APPEARANCES
Troy Ferreira, Applicant
Frank Sampson and Robert Whitteker, Representative
KMS Van Lines Inc., Respondent
Gordon Weir, Counsel, and then Jackie Ng, Representative
Introduction
1This is an Application filed on January 28, 2010 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 because of disability.
2The hearing commenced in March 2011 and continued in August 2012. During the hearing, I heard evidence from, and in this order, John Ho, the applicant, and Jackie Ng, all of whom were affirmed. Mr. Ho is the owner of the respondent and Mr. Ng is its financial controller and both testified for the respondent. On the first day of hearing, the respondent was represented by Gordon Weir, counsel, and Mr. Ng attended as the respondent’s advisor. Shortly before the August 2012 hearing dates, Mr. Weir advised the Tribunal that he was no longer representing the respondent, at which time Mr. Ng took over as the respondent’s representative.
3Prior to the first day of hearing, the Tribunal issued several Case Assessment Directions dated January 25, 2011 and March 21, 2011 pertaining to preliminary issues, including the respondent’s Request for Order During Proceedings (“RFOP”) in which it requested that the Tribunal dismiss the Application as being untimely. The Tribunal also raised an issue about its jurisdiction to determine the Application as the Tribunal has found that some transportation companies fall under federal rather than provincial jurisdiction.
4On the first day of hearing, after some introductory comments from the Tribunal about the hearing process and the applicant’s representative raising some concerns about Mr. Ng, the respondent’s then advisor, sitting in during the hearing and about the late production of the respondent’s documents (which were handed to the applicant and the Tribunal the morning of the hearing), the parties agreed to participate in settlement discussions with the Vice-chair. They signed the Tribunal’s mediation-adjudication agreement. The hearing was adjourned while settlement discussions took place.
5When the discussions failed to result in a settlement, the hearing reconvened and opening submissions were made. Respondent counsel submitted that there was a change in the ownership of the respondent when two previous owners left the company on June 30, 2009, that prior to the change in ownership the respondent sent shipments to the United States and other provinces and in January 2010, when the Application was filed, the respondent operated exclusively within Ontario. The Tribunal ruled it would hear submissions about the timeliness of the Application during final submissions; Mr. Ng could sit in during the hearing as the respondent had agreed that Mr. Ng’s evidence would proceed first and before the evidence of the applicant; the respondent could rely upon its documents as most had been previously produced to the applicant or consisted of the pleadings; and the Tribunal would require evidence about the respondent’s change in ownership as well as any change in the nature of the business and would require submissions from the parties on the jurisdictional issue.
6The Tribunal stated that the evidence of Mr. Ng could commence that day, but, as it was already 4:00 pm, the parties submitted that they did not want to commence evidence that day and the hearing was adjourned for the day.
7Subsequent to the first hearing date, in a Case Assessment Direction dated February 24, 2012, the Tribunal directed the respondent to deliver to the applicant and the Tribunal documentation demonstrating the change in the respondent’s ownership, including the date upon which the ownership changed, and verifying the nature of the work that the respondent conducted before and after the change in ownership. The Tribunal also directed the respondent to identify a witness, with first-hand information, who would testify about these issues, as well as a witness who would testify about what, if any, efforts the respondent made to accommodate the applicant. The Tribunal issued another Case Assessment Direction dated August 15, 2012 directing the respondent to immediately comply with the directions in the February and August CADs. The respondent failed to comply with these directions prior to the hearing.
8The hearing resumed on August 22, 2012. At the beginning of that date, the respondent advised the Tribunal that it had not complied with the directions set out in the February 24 and August 15, 2012 CADs because there had been no change in ownership in 2009. Mr. Ng submitted that the respondent’s former counsel was incorrect when he advised the Tribunal that there had been a change in the respondent’s ownership in 2009. On August 23, 2012, the hearing continued in the applicant’s absence, but with his legal representatives in attendance.
background information
9The following background information was not in dispute between the parties, although the characterization of this information and how it pertained to their legal positions was disputed between the parties.
10The applicant commenced employment as a driver/mover with the respondent in December 2000. In or around June 2006, the applicant had a workplace injury for which he applied and received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A. (the “WSIA”).
11Following his injury, the applicant was off work for approximately two weeks. Upon his return to work, the applicant was provided with modified duties. He was off work again to have surgery that took place in or around August 2007.
12At some point following his surgery, the applicant was medically able to return to work with restrictions, specifically no heavy work, lifting, or stretching with his right arm. The applicant never returned to work after his surgery in August 2007. He received benefits under WSIA while off work.
13The applicant never received a termination letter from the respondent. He was entitled to group health benefits, was required to pay some of the contributions himself. At some point, his group health benefits were discontinued.
14The applicant’s interactions with the respondent about modified duties were with Nigel Coffen, the respondent’s former President, and Greg Coffen, the respondent’s former operations manager. Nigel Coffen and Greg Coffen left the respondent in or around June 2008. The respondent does not know the whereabouts of either Coffen.
15In January 2010 the applicant became eligible to participate in a labour market re-entry (“LMR”) program which is outlined under the WSIA and coordinated by the Workplace Safety and Insurance Board (“WSIB”). As of the hearing, the applicant had completed his LMR program through WSIB, including education upgrades, to become a construction estimator and had secured employment in that field. While participating in the LMR program, the applicant was in receipt of benefits under the WSIA. The applicant is not seeking loss of wages.
16During the first day of hearing, and as set out in the Response, the respondent’s then counsel confirmed that the respondent did not dispute that the applicant had a “disability” within the meaning of the Code. Mr. Ho, in response to a question from the Tribunal later in the hearing, also confirmed that the respondent did not dispute that the applicant had a disability within the meaning of the Code.
the credibility of witnesses
17The Supreme Court of Canada has observed, “[a]ssessing credibility is not a science. It is very difficult … to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events,” R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
18In my assessment of the evidence, I have also 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.
19Underlying 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 at paras. 12 -14 (“Shah”); Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717, at paras. 35-36.
jurisdictionAL issue
20The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. Pursuant to subsection 92(10)(a) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3 (the “Constitution”), transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction. The issue of whether or not this respondent is subject to the Code was raised by the Tribunal after the respondent’s Response was filed and in advance of the initial hearing date in CAD dated March 21, 2011. See section 4.6(1)(b) of the Statutory Powers Procedures Act, R.S.O. 1990, C. S. 22.
21The onus is on the party who seeks to invoke an exception to provincial jurisdiction. See MacDonald v. MaxSys Consulting, 2010 HRTO 584 at para. 7; McElrevy v. BC Corps of Commissionaires, 2004 BCHRT 160; and Nicholson v. Bombardier Transportation Canada Inc., 2012 HRTO 2062 at paras. 37 and 42. Accordingly, the documentation that the applicant tendered as exhibits from Human Resources Development Canada and other places containing the names of companies that have been determined to fall within federal jurisdiction and which did not list the respondent does not address the respondent’s onus of proving that it falls within federal rather than provincial jurisdiction.
22The Supreme Court of Canada has held that it is the “reality of the situation” and not the “commercial costume” worn by the entity involved that determines the question of constitutional jurisdiction. See Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, 1989 CanLII 78 (SCC), [1989] 2 S.C.R. 225 and the Tribunal’s decision in Soler v. Luckhart Transport, 2009 HRTO 1486 at para. 9.
23After the issue was raised by the Tribunal, the respondent submitted that it does not fall under the Code, but, instead, is a federally regulated undertaking. However, based upon the evidence before me, including a description of the nature of the respondent’s work, I find that the respondent has not been able to prove that it does not fall under the purview of the Code.
24I find that there was a change in the respondent’s senior management structure and possibly its ownership in June 2009, but I am unable to conclude that there was a change in the nature of the respondent’s business before and after 2009. I find that the evidence of Mr. Ho and Mr. Ng was neither credible nor reliable and was, in some parts, internally inconsistent. Mr. Ho’s motives in having the Tribunal dismiss the Application on jurisdictional grounds, in particular, caused me to question the credibility and reliability of his evidence. Further, I draw an adverse interest against the respondent for its failure to comply with the Tribunal’s directions to provide documentation about the change in the respondent’s ownership and the nature of the work that it conducted before and after 2009 and do not accept the explanations that the respondent’s witnesses offered in this regard. Taken as a whole, I do not accept the evidence of the respondent on this issue.
The Respondent’s Failure to Provide Documentation
25The respondent failed to comply with the directions set out in the Tribunal’s February and August CADs to provide documentation about the change in its ownership in 2009 and the nature of the work that it conducted before and after 2009. Mr. Ho testified that it was a “mistake” not to produce any documentation to the Tribunal, as the respondent had the paperwork to prove that it was federally incorporated. In fact, he referred several times during his examination-in-chief and cross-examination to information from the respondent’s financial statements, but failed to provide this documentation. At another point in his testimony, Mr. Ho stated that the respondent did not know what documents the Tribunal was seeking for it to produce and it “had no clue” about documents that it could bring to the Tribunal because it had “so many files”. He also testified that the respondent did not know how to submit its files or annual statement to the Tribunal.
26Mr. Ng testified that while the respondent was represented by counsel, the respondent relied upon counsel to comply with the directions in the Tribunal’s CADs. After counsel no longer represented the respondent, Mr. Ng testified that he looked at the CADs, in which it stated that the productions were required 21 days before the hearing and it was his impression that any documentation he filed would be late. During the third day of the hearing, and testifying as its final witness, Mr. Ng testified that the respondent could still produce documentation if the Tribunal permitted it to do so. During his cross-examination, Mr. Ng testified that the respondent did not produce the documentation the Tribunal directed it to produce because there was no direction from the ownership about providing financial statements to the Tribunal.
27At the end of the respondent’s final submissions, Mr. Ng produced an undated copy of the respondent’s registration that he wanted the Tribunal to admit as an exhibit. The applicant objected. The Tribunal ruled that the document was inadmissible, given its late disclosure, but admitted some of the information on it, including the name of the company that was registered which was the respondent. Mr. Ng submitted that the reason why the respondent wanted the document to be admitted was because it showed that the respondent’s name could be used to do business across Canada and that the respondent could open branches across Canada in this name. During his evidence, Mr. Ng testified that he and Mr. Ho believe that the respondent is federally registered and “for businessmen or accountants like us we don’t see the difference between being federally regulated or registered”.
28I do not accept the respondent’s explanations for failing to produce the documentation they were directed to produce. Instead, I find that the respondent was evasive and provided excuses for its failure to comply with the Tribunal’s directions, rather than taking responsibility for its actions. Further, I draw an adverse inference against the respondent for its failure to comply with the Tribunal’s directions, in accordance with section 43(9) of the Code, meaning that the respondent did not provide this documentation because it would not have been supportive to its case.
29With respect to the respondent’s registration that Mr. Ng produced following the parties’ final submissions, again I see this as a further attempt by the respondent to avoid the consequences of failing to comply with the Tribunal’s directions. It also prevented a witness for the respondent from testifying about it and being subjected to cross-examination. Further, I do not find the undated registration, and the respondent’s claim that it is federally incorporated, to be of assistance in determining whether federal or provincial human rights laws apply to this company. The jurisdiction in which a company is incorporated is not determinative of the issue of whether the provincial Code applies and is distinct from the legal question of whether or not a company is a federally regulated work or undertaking within the meaning of the Constitution. See Soler v. Luckhart Transport, 2009 HRTO 1486 at para. 9.
The Respondent’s Change in Ownership
30While the issue of the change of the respondent’s ownership, or minimally its senior management structure, is not ultimately determinative of the jurisdictional question in this case, the evidence with respect to this issue is important because it has a bearing on my credibility findings with respect to the respondent’s two key witnesses.
31The respondent submits that there was no change in its ownership in 2009 or at any other time. Mr. Ho testified, in response to a question from the Tribunal, that the respondent’s former counsel was inaccurate when he represented on the first day of the hearing that the respondent’s ownership changed in 2009. Neither the business structure of the respondent, nor its ownership, Mr. Ho testified during his examination-in-chief, changed. During his cross-examination, Mr. Ho confirmed that he signed the Response on behalf of the respondent, but he was not involved in the file while counsel represented the respondent and he did not tell counsel about a change in the respondent’s ownership. He suggested that Mr. Ng communicated with counsel.
32However, when he testified during his examination-in-chief, Mr. Ho used the word “we” in describing in start-up of the respondent. He testified that “when we opened the business, we registered under federal corporation” (emphasis added). Further, Mr. Ho testified that when the respondent opened, he was not the only owner. Mr. Ho did not provide any evidence about, or identify, any other owner. He did admit, during his cross-examination, that he was not involved in the applicant’s case because he was not involved in the operation side of the respondent’ business. During his cross-examination, Mr. Ho testified that the applicant’s case was handled by Greg Coffen, the operations manager, and Nigel Coffen.
33During his submissions to the Tribunal on the August 22 hearing date, Mr. Ng, as the respondent’s new representative, submitted that there was no change in ownership in 2009 and that the respondent’s former counsel was mistaken when he represented that a change had occurred. However, Mr. Ng’s evidence, which he affirmed before testifying, differed from this representation.
34Mr. Ng testified, during his examination-in-chief, that he is the respondent’s financial controller, responsible for the respondent’s accounting and payroll functions, and has been employed by the respondent since 2003. He is not part of the respondent’s ownership. He testified that two of the respondent’s owners, Nigel Coffen and Greg Coffen, suddenly left the respondent in June 2009 leaving Mr. Ho as the remaining owner. During his cross-examination, Mr. Ng testified that the Coffens “abandoned” the respondent and that he did not receive advance notice of their departure. Further in his cross-examination, Mr. Ng testified that there was “probably an ownership change” with Mr. Ho being the sole owner when the Coffens left, but he did not confirm this information with Mr. Ho. Mr. Ho told him that he is working on the change in ownership, but it has not yet taken place.
35Mr. Ng was asked by the Tribunal if he was alleging that the respondent’s former counsel’s representation was incorrect when he represented that there had been a change in the respondent’s ownership in 2009. Mr. Ng testified, “that is correct and officially [there was] no change in ownership”. During his final submissions, Mr. Ng submitted that there was confusion with respect to the ownership of the respondent and people did not know what was going on.
36The applicant testified, in response to a question from the Tribunal, that in 2009 he thought that the respondent was a partnership between Mr. Ho, Mr. Ng, Nigel Coffen and Greg Coffen.
37It is more probable than not, based upon the evidence before me, that there was a change in the respondent’s senior management structure in June 2009 when Nigel and Greg Coffen left the respondent. It seems to me that Mr. Ng, as the respondent’s financial controller, would be in a good position to know and understand the senior management structure, if not also the ownership arrangements of the respondent and the testimony that he gave during his examination-in-chief and his cross-examination confirmed that there was a change in senior management structure when the Coffens left the respondent in June 2009. I prefer Mr. Ng’s testimony to that of Mr. Ho, whose evidence confirmed that there was more than one owner of the respondent during its start-up, but failed to clarify later in his testimony who those other owners were. That failure is significant given that the ownership of the respondent was an issue during the hearing and, at least until June 2009 appears to have been synonymous with its senior management structure. That, combined with the respondent’s failure to produce documentation about its ownership, leads me to conclude that Nigel Coffen and Greg Coffen were owners of the respondent until June 2009 when they abruptly left the respondent. At that point, they ceased to have any involvement in the respondent’s management structure, leaving Mr. Ho as the sole remaining member of the senior management structure and possibly its sole owner.
38Of course, despite drawing an adverse inference against the respondent for its failure to produce documentation it was directed to produce, and finding that there was a change in the respondent’s senior management structure and possibly a change in ownership in June 2009 does not ultimately resolve the issue of whether or not the respondent falls within the purview of the Code. However, the failure to produce documentation as ordered and the shifting and evasive testimony of the respondent’s witnesses in relation to this issue undermines the credibility and the reliability of the evidence given by Mr. Ho and Mr. Ng generally. This has implications for my findings with respect to these witnesses’ testimony about the nature of the respondent’s business, below.
The Nature of the Respondent’s Business
39Mr. Ho, during his examination-in-chief, testified that when the respondent started in 2000, it was involved in moving and relocating across Canada, the United States and overseas, with the majority of its business outside of Ontario. The respondent’s annual business statement would show, he claimed, that the respondent has been involved in this type of business across Canada since “we” opened it. That documentation, as noted above, was not produced to the Tribunal.
40Mr. Ho testified that the respondent is also an agent for Atlas Van Lines, which he described as being the “head office” and the “mother company”. Mr. Ng testified that in addition to being an agent for Atlas Van Lines, the respondent was also an agent for United Van Lines.
41In response to a question from the Tribunal, Mr. Ho testified that the respondent’s core business consisted mainly of household relocations, as well as store fixture relocations for department stores, and that the nature of the respondent’s business had not changed since it opened. Mr. Ng testified that the nature of the respondent’s business was local moves within Ontario, with which the applicant was involved, moves from Ontario across Canada, shipments coming or going to the United States, overseas moves, and warehousing personal household items and other non-household items. The Tribunal specifically asked if all of this work fell within the respondent’s business, to which Mr. Ng testified that it was “all basically KMS”.
42Mr. Ho testified that the respondent’s local business consisted of approximately 20 per cent of its total business. The remainder of the business, which involved moving people to the United States and other provinces, and relocations to other countries and as well as corporate emigrations to Canada, allegedly comprised 60 to 70 percent of the total business, although Mr. Ho testified that he “…did not have the figures in front of [him]”.
43Mr. Ng estimated, in his evidence, that approximately 25 to 30 per cent of the respondent’s business, both overseas and local, was acting as an agent for Atlas Van Lines. This volume of business was reduced every year such that in 2009 it was “about 20% and comprised of overseas and local business” and in 2010 it was “probably” 10 to 15% and was exclusively overseas business.
44As agent for Atlas Van Lines, Mr. Ho testified that the respondent’s customers included the federal Department of Defence and External Affairs. The respondent’s own customers included RBC, the Hong Kong Commission, the Consulate of the Philippines, and the US Embassy located in Toronto. Mr. Ng testified that as an agent for Atlas Van Lines and United Van Lines, the respondent had the obligation to accommodate the types of moves it was assigned by Atlas Van Lines and United Van Lines, whether that be a move to British Columbia or the United States.
45The respondent, Mr. Ho testified, had two long distance truck drivers, whose names he provided, who drove outside of Ontario. Mr. Ng in his evidence confirmed that there were two long distance truck drivers, who drive a tractor trailer containing mostly household goods across Canada. When they reach their destination, Mr. Ng testified that the long distance truck driver would hire helpers in other provinces, arranged through a local employment centre, or by requesting a labour supply from Atlas Van Lines to help unload the truck.
46Mr. Ho testified that the respondent has storage facilities located at the back of its offices. The warehouse is a Canada customs approved bonded warehouse. For items that are shipped overseas, Mr. Ng testified that they were sent by container and are received by overseas agents who are not the employees of the respondent.
47The applicant testified, during his cross-examination, that when he commenced employment with the respondent, it did only local moves. His understanding of the respondent’s business was that it operated only within Ontario. The applicant testified that he only worked in the local residential move business, particularly within the Greater Toronto area. He reported to Nigel Coffen and Greg Coffen who oversaw the local moves. There were three trucks with thirteen employees involved in the local residential moving business with 3 to 4 movers used at a time.
48When Mr. Ho and Mr. Ng “came in”, the applicant testified, they took care of the “overseas stuff” and he saw items destined for overseas bubble-wrapped in the warehouse, but he was not involved in the overseas work. He did not know the long distance truck drivers about whom Mr. Ho testified and identified.
49In response to questions from the Tribunal, the applicant testified that he thought that in 2009 the respondent was a partnership between Mr. Ho, Mr. Ng, Nigel Coffen and Greg Coffen, with the Coffens overseeing the local residential moving company. He believes that the overseas business was a separate entity from the respondent and its business and was run by Mr. Ho and Mr. Ng.
50Despite testifying about documentation that would establish the nature of the business, the invoices of its customers and its “home office”, the respondent failed to produce any documentation that would establish the nature of the business as described during the evidence of Mr. Ho and Mr. Ng. The absence of this documentation, which clearly exists from their testimony, not only casts doubt on the credibility of Mr. Ho’s and Mr. Ng’s evidence, but raises serious questions as to whether the nature of the business as described by the respondent witnesses is the respondent’s business, or whether it is the business of the respondent and other companies owned or operated by Mr. Ho separately or in conjunction with other persons including Mr. Ng. The specific wording of Mr. Ng’s testimony that the work he described was “basically” that of the respondent, leads me to consider this possibility as does the shifting and evasive testimony of the respondent’s witnesses with respect to the ownership of the respondent. Again, the failure of the respondent to provide documentation in support of the nature of the respondent’s business is enough for the Tribunal to draw an adverse inference that such documentation would not be supportive of the respondent’s position that it is subject to federal regulation. I find that the respondent has not proven that it conducts business outside of the province, which would otherwise make it subject to federal regulation, and accordingly the Code applies to the issues raised in the Application.
timeliness of the application
51In addition to the preliminary issue of whether the respondent is federally or provincially regulated, there is also the issue of whether or not the Application itself is timely. The respondent filed a RFOP before the first hearing date in which it asserted that the Application was untimely. In its January CAD, the Tribunal indicated that it was not clear that the Application was untimely given the documentation that had been disclosed by the applicant in advance of the hearing. During the first day of hearing, the Tribunal stated that the timeliness issue could be addressed during the parties’ final submissions. During its final submissions, the respondent reiterated its position that the Application was untimely and that the delay in filing the Application was not made in good faith. The applicant submitted that it was timely.
52Mr. Ho did not testify about the respondent’s position that the Application was untimely either during his examination-in-chief or his cross-examination. The Tribunal specifically asked Mr. Ho if he had any evidence in support of the respondent’s position that the Application was untimely. Mr. Ho responded that he could not answer the question because he had “no idea”.
53During his examination-in-chief and his cross-examination, the applicant did not provide any testimony to address the respondent’s claim that the Application was untimely. In response to questions from the Tribunal, the applicant testified he considered himself to be terminated by the respondent before he had his surgery, which he had in 2008. The respondent told him, at that point, that it could not accommodate him. He waited until 2010 to file his Application, the applicant testified, because he was not aware of his rights until they were brought to his attention. In re-examination, the applicant testified that until such time that he filed his Application, he was attending medical treatments many times per week, heavily medicated, and focussed on how to support his family and attend the LMR program.
54Mr. Ng testified during his examination-in-chief that the timeliness of the Application was very important. The applicant’s work-related accident was in June 2006 and the Application was not filed until January 2010. He pointed out that the applicant testified that he expected the respondent to hire him in 2008 and when it did not “that was the last straw”. It is not good faith, the respondent submits, to wait until 2010 to file an Application in these circumstances.
55Section 34(1) of the Code provides:
34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incidents to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
56Notwithstanding the applicant’s understanding of his termination date, I find that on the facts of this case, the applicant was terminated less than a year before he filed his Application and, accordingly, the Application is timely. My reasoning for this is set out below in considering the merits of the Application.
onus
57It is clear from the Tribunal’s jurisprudence that in order for an applicant to be successful, there must be sufficient evidence to allow the Tribunal to find that it is more likely than not that discrimination occurred, whether it be direct discrimination or discrimination to be inferred from the facts put before the Tribunal. See Junejo v. Peel (Regional Municipality), 2009 HRTO 1912. The applicant bears the onus of proving discrimination on a balance of probabilities. See Iqbal v. Inscape Corporation, 2009 HRTO 1189.
58The 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 held that Courts must “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. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah, at para. 19.
59The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that he was discriminated against, with respect to employment, on the basis of the prohibited grounds of disability. A prima facie case of discrimination “… is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complaint’s favour in the absence of an answer from the respondent-employer”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“Simpsons-Sears”) at para. 28.
60Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision does not involve a discriminatory consideration. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at paras. 51-52.
the evidence with respect to the applicant’s disability in the workplace
61Mr. Ho testified, during his cross-examination, that he had no first-hand information about the respondent’s role in accommodating the applicant’s disability because he was not involved in the operational side of the respondent’s business. The applicant’s situation was handled by Nigel Coffen and Greg Coffen, Mr. Ho testified, both of whom have left the respondent. Mr. Ho’s knowledge of the applicant’s working situation is based upon his review of the documentation.
62Mr. Ng confirmed, in his examination-in-chief, that Nigel Coffen and Greg Coffen were involved with the applicant’s case and that they communicated with WSIB about the applicant. Mr. Ng’s only involvement was when WSIB called him to find out the applicant’s weekly income. His next involvement was in April 2009 when WSIB called him asking if the respondent had modified work available for the applicant. The applicant’s case fell into his lap, he explained, because no one else was picking it up to respond to the Application and because Nigel Coffen and Greg Coffen had left the respondent.
63The applicant testified during his examination-in-chief that his conversations with the respondent about returning to work and performing modified duties were with Nigel Coffen and Greg Coffen, and not Mr. Ho or Mr. Ng.
64Mr. Ho testified in his examination-in-chief that the applicant received health care benefits through the respondent, although at some point they were discontinued because the applicant’s cheque for his share of the contributions bounced. The applicant testified during his examination-in-chief that he had health care benefits to which he made contributions. In his cross-examination, he said he continued his contributions for about a year after his initial injury. He found out that his benefits were discontinued when he attempted to fill a prescription using his benefits card at a drug store and was told by the store that his benefits had been declined. He called Mr. Ng who told him that his benefits had been discontinued. He put a stop payment on the cheque that he sent to the respondent for his benefit contributions. He denied receiving a new benefit card from the respondent and there was no evidence disclosed prior to or during the hearing that could have suggested that a new benefit card was issued after the initial card was declined. Mr. Ng did not testify about the applicant’s health care benefit coverage.
65In his examination-in-chief, the applicant testified that following his workplace injury in 2006, he was off work for several weeks and then returned to work and performed modified duties as offered by Greg Coffen, including warehousing duties, sweeping and directing trucks. The modified duties continued until his medical condition worsened and he required surgery. Upon hearing of his anticipated surgery, Greg Coffen told the applicant that the respondent would not have any further modified work for him upon his return.
66After his surgery, around August 2007, the applicant testified during his examination-in-chief, he did not return to work. He testified that he spoke with Nigel Coffen and Greg Coffen and suggested to them that he could work dispatch work or office work, however, they would not accommodate him in these functions. He denied the suggestion that the respondent offered him these modified duties as reflected in a WSIB memo dated July 8, 2008 which was entered as an exhibit, and denied that Nigel Coffen offered him a dispatch position. He confirmed that a WSIB document dated May 20, 2008, which was also entered as an exhibit, was accurate with respect to a conversation the applicant had with the respondent following a medical appointment in April 2008 during which time the respondent confirmed that it had no modified duties for him.
67In response to questions from the Tribunal, the applicant testified that after his surgery, the respondent made it clear that no other accommodations would be made available to him. As noted above, he stated that he first learned of this in a conversation that followed an April 2008 medical appointment. This was confirmed by the respondent’s July 9, 2008 letter to him, which was marked as an exhibit. The letter which requested an updated Functional Abilities Form (“FAF”), which the applicant provided, and advised that it did not have any light duty driving work available.
68In or around April 2009, WSIB advised the applicant that the respondent had no modified duties available for him and that it was unable to permanently accommodate him. He was told by WSIB that he would be referred for a LMR assessment. He testified that he met with the LMR assessor in July 2009, who told him that she had contacted the respondent to find out if there was modified work available for the applicant and was told the respondent was prepared to let the applicant proceed with the LMR. In January 2010, the applicant learned that he had been approved for the LMR program by WSIB.
69Mr. Ho testified during his cross-examination that he did not think that the respondent made an offer to accommodate the applicant in writing, but had “no comment” when asked why it did not. He re-iterated that he was not the one who handled the case. His understanding of modified duties, he testified, meant modified duties in relation to the job for which the applicant was employed, in this case, specifically driver/mover. The respondent has no modified duties for a mover as it is their responsibility to move furniture. Two or three employees, including the driver, are sent out on a move. The driver needs to be a mover as well.
70Mr. Ng testified, in his cross-examination that he knew from Nigel Coffen that there was no modified position for the applicant. After Mr. Coffen left the respondent, there was a lot of confusion as “two owners had just left the respondent” and Mr. Ng responded to a telephone call from WSIB and confirmed that the respondent could not accommodate the applicant, although he did not review this position with anyone else at the respondent. Mr. Ng testified that “you could hold the ownership responsible, but you cannot hold an employee responsible for responding to a phone call”. He denied, in cross-examination, that he was the decision-maker pertaining to the applicant’s employment situation and to make that suggestion, he stated, was “outrageous”. No one made the decision not to provide modified duties to the applicant, Mr. Ng testified in cross-examination, and modified duties were provided at one point.
71With respect to a notation in the WSIB documentation from July 2009 attributable to Mr. Ng that the respondent was downsizing and could not retain the applicant, Mr. Ng testified that he had no memory of this conversation. It is not incorrect, he stated, but it “might be different from the fact”.
72Mr. Ng denied, in cross-examination, that the respondent attempted to appeal the WSIB’s decision to place the applicant into a LMR program after the respondent started to receive accident cost statements from WSIB about the LMR program. Instead, Mr. Ng testified, the respondent was appealing a WSIB decision which he unhelpfully described by way of stating it was “everything we are trying to get medical information from the applicant at that time”. The accident cost statements were entered as an exhibit over the objection of the respondent. Mr. Ng confirmed that the respondent’s WSIB premiums were increased because the applicant went through the LMR.
73Mr. Ng testified that he did not know why the respondent’s former counsel had written to the Tribunal advising that Mr. Ng would testify about “…the Respondent’s support and financing for the Labour Market ReEntry Program [LMR] provided to the Applicant by the Workplace Safety & Insurance Board”. Mr. Ng did not talk to former counsel about this issue.
74During their respective cross-examinations, Mr. Ho and Mr. Ng both denied that the applicant had been terminated by the respondent. Mr. Ho stated that the respondent was still holding the applicant’s “regular job with his regular duties” for him. He added that “if he [the applicant] is returning to what he is qualified for, there is a job for him”. He identified warehouse and dispatch positions as being possible positions for the applicant or “whatever our company is capable of giving him”. Mr. Ng denied in his cross-examination that the applicant had been constructively dismissed and stated that the applicant did not receive a termination letter from the respondent or provide the respondent with a resignation letter.
75The applicant testified, in response to a question from the Tribunal, that he considered himself to be terminated once the respondent told him that it could not accommodate him. This was around the time that he was required to have an operation and it was “the straw that broke the camel’s back”, he testified.
76Mr. Ho testified during his examination-in-chief that from his perspective, the respondent complied with its legal obligations to accommodate the applicant, particularly in relation to those obligations under the WSIA. During his cross-examination, he stated that he is not a lawyer, not an expert in human rights, and does not know everything under the Code. He noted that the respondent is still making WSIB payments in relation to the applicant and that the respondent “tried to help out the best that it could” in meeting its Code obligations.
the law
77The relevant sections of the Code are sections 10(1), 5(1) and 17(1) and (2). They provide:
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.
10.(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 by the Workplace Safety and Insurance Act, 1997.
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
78It is clear, from the evidence of Mr. Ho and Mr. Ng, that the respondent is unsophisticated about its obligations under the Code in relation to the duty to accommodate. It is also clear both from the evidence of its witnesses and the Response that was filed, that the respondent believed that it accommodated the applicant by fulfilling certain obligations under the WSIA, thus also meeting its Code obligations, and that it accommodated the applicant by agreeing to the LMR. However, I do not find that in the facts before me that the respondent accommodated the applicant to the point of undue hardship and I do not find that the LMR is a form of accommodation the respondent can rely upon per se to satisfy its obligations under the Code.
79It is not disputed that the applicant has a disability within the meaning of the Code. If this were disputed, I would find that the applicant met the definition of “disability” under section 10(1) of the Code as he claimed and received benefits under the WSIA. Having 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 to accommodate an employee with a disability to the point of undue hardship. The Supreme Court of Canada has accepted that the duty to accommodate 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.
80The procedural component requires an individualized investigation of accommodation measures and an assessment of the applicant’s needs. The 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; Dixon v. 930187 Ontario, 2010 HRTO 256 and Byers v. Fiddick’s Nursing Home, 2012 HRTO 952 at para. 227.
81In this case, it is not disputed that the respondent provided some modified work to the applicant after his initial injury in June 2006 until he was required to have surgery in August 2007. However, I find that following the applicant’s surgery, the respondent failed to offer him modified work, failed to consider how the applicant’s mover/driver position could be accommodated, failed to consider other functions for him such as dispatch or office work, failed to consider the long distance driving position for him, and ultimately de facto terminated his employment. The applicant has established on a prima facie basis that he was discriminated against because of disability.
82In this regard, I accept the evidence of the applicant over the evidence of the respondent. Neither Mr. Ho nor Mr. Ng had any first-hand knowledge about the applicant’s employment situation up to April 2009 as, it was agreed, Nigel Coffen and Greg Coffen were the ones involved with the applicant’s work situation both with WSIB and directly with the applicant during this period of time.
83The applicant testified that following his initial injury, he returned to work in 2006 and performed some modified work. This continued until August 2007 when he had his surgery. However, when he recovered from his surgery such that he could return to work, he had discussions with Nigel Coffen and Greg Coffen about modified duties, including dispatch and office work, and the respondent was not interested in providing those for him. The respondent told him, as evidenced by the Worker’s Progress report dated November 10, 2008 that the applicant spoke with the respondent on June 12, 2008 and November 10, 2008 with no modified work made available for him.
84A WSIB document from July 2008, which was entered as an exhibit, provides details of a telephone conversation between a WSIB claims adjudicator and Nigel Coffen about the applicant, his restrictions, and what, if any, work he could perform. The parts of that document that are relevant for this proceeding indicate: the respondent was not able to accommodate the applicant’s restrictions on a temporary or permanent basis given the nature of the respondent’s business, the applicant’s position was a mover/driver, and that it was not in the respondent’s financial best interest to have applicant only drive as customers would not want to absorb that cost; Mr. Coffen had spoken with the applicant about other positions, such as office duties or dispatch, but “he” did not seem interested in pursuing these alternative; the applicant could perform the dispatch job with minimal training, and; the applicant was to obtain another FAF, upon receipt of which by the respondent, the respondent would see if it could accommodate the applicant and if so would provide the applicant with a written offer accordingly and then update WSIB to this effect.
85Even if I accept that Nigel Coffen spoke with WSIB about the applicant performing the dispatch position, there is no evidence from the respondent that this option was discussed as a possibility with the applicant. The applicant testified that Greg Coffen told him that there was no modified work available for him. Further, the applicant testified that he, rather than Nigel or Greg Coffen, suggested that he attempt dispatch work or office work, but the respondent refused to consider him for this work. As noted above, neither Nigel nor Greg Coffen testified, so there is no direct evidence contradicting the applicant’s evidence on this point. There is no evidence to suggest that the applicant was uncooperative in attempting in returning him to work or altering his testimony to better his case.
86Instead, the evidence demonstrates that the respondent consistently told the applicant either directly, through discussions with the Coffens, or indirectly, in WSIB’s communications with the applicant and his representatives, that it had no modified work available for the applicant. The respondent’s July 2008 letter to the applicant requested an updated FAF and told the applicant that no light duty driving work was available. The WSIB documentation that was entered as exhibits, dated August 8, 2008 and February 5, 2009 demonstrates this, as well as the respondent’s letter to WSIB dated June 24, 2008. In my opinion, the lack of evidence about the respondent’s efforts to consider an individualized assessment of the applicant’s accommodation needs violates the procedural component of the respondent’s obligation to accommodate.
87The respondent’s stated position that it had no modified work available for the applicant continued until April 2009 when, according to the WSIB documentation entered as an exhibit, Mr. Ng told the WSIB adjudicator that not only were there “no modified duties available for this w[or]k[e]r”, but that the respondent was “unable to permanently accom[m]odate”. In July 2009, according to the WSIB’s LMR consultant’s notes, Mr. Ng told WSIB that modified duties were not available, the respondent was downsizing and employment with potential training was not available. Mr. Ng testified that he did not recall the conversation, it was “not incorrect but might be different from the facts” and that he did not have the authority to make any decisions about the applicant.
88Subsequently, in January 11, 2010, the applicant was informed by WSIB that he had been approved for a LMR program. I do not accept, in these circumstances, that the WSIB’s approval of an LMR program for the applicant was a form of accommodation by the respondent, as it suggested during the hearing and in its Response. Further, it is probable from the evidence given during the hearing that the respondent was challenging WSIB’s decision to allow the applicant to participate in a LMR program as evidenced by the August 9, 2010 letter from WSIB to the respondent and despite Mr. Ng’s evidence to the contrary. Indeed, Mr. Ng’s evidence on this point was very confusing and nonsensical. Under section 42 of the WSIA, the decision to provide an LMR program to an injured worker is WSIB’s and not an employer’s, and is triggered by a respondent’s reporting to WSIB whether or not it has modified duties available for the injured worker.
89While the applicant testified that he believed himself to be terminated, after his surgery in August 2007 when he wanted to return to work, ultimately whether someone has been terminated or not is a legal determination. See, for example, Byers, at paras. 278 and 281, in which the Tribunal found that the applicant was forced to resign rather than voluntarily resign or retire. In this case, once the respondent told WSIB in April 2009 that it could not permanently accommodate the applicant, which was reiterated in July 2009, a de facto termination took place. In making this finding, I have also taken into account that there was no evidence before me that the respondent communicated directly with the applicant in 2009 or thereafter to advise that he was still an employee, albeit an inactive employee, and to canvass what work functions he was capable of performing.
90I do not find Mr. Ho or Mr. Ng to be credible in asserting that the applicant was not terminated. Mr. Ng’s evidence on this point was more focussed on the fact that the respondent did not issue a written termination letter to the applicant, rather than the fact that the respondent stopped communicating with the applicant. Mr. Ho’s evidence, as I have found above, was not credible as it was motivated by his attempts to avoid liability under the Code. For example, he testified that the applicant could return only to his former position provided he could do that work, and later stated that the applicant could perform whatever work in whatever position he was capable of performing.
91Given that there was a de facto termination as of April or July 2009, with the Application being filed in January 2010, I find that the Application is timely.
92I also find that the respondent failed the substantive component of its obligation to accommodate the applicant. Given that the Coffens did not testify, and it is the respondent’s onus to demonstrate what considerations, assessments, and steps were undertaken to accommodate an applicant to the point of undue hardship, I am unable to conclude how the respondent attempted to accommodate the applicant to the point of undue hardship. The evidence that Mr. Ho and Mr. Ng presented about positions and functions that the applicant could or could not do are in relation to the current workplace and years after WSIB determined that the applicant would proceed through a LMR program. There is no evidence that either Mr. Ho or Mr. Ng communicated this directly to the applicant. Instead, the respondent relied solely upon WSIB’s determination that the applicant proceed through LMR, notwithstanding that it later appeared to contact WSIB to file an objection to that determination.
REMEDIES
93Having 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 on 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:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
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.
94It 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 Simpsons-Sears, 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.
95The applicant seeks $43,000 as general damages and $7,000 as loss of benefits for a total of $50,000, as well as public interest remedies. The applicant is not seeking loss of wages, as set out in paras. 12 and 15.
Damages for Injury to Dignity, Feelings and Self-Respect
96The Tribunal awards damages for “injury to dignity, feelings and self-respect” pursuant to section 45.2(1) 2. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (“Arunachalam”), the Tribunal, at para. 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 discrimination: 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.
97Some of the Tribunal decisions that have considered disability-related discrimination in the context of the termination of the applicant’s employment have awarded $45,000 (Lane v. ADGA Group Consultants Inc., 2007 HRTO 34); $35,000 (Krieger v. Toronto Police Services Board, 2010 HRTO 1361); $20,000 (Lopetegui v. 6800247 Ontario, 2009 HRTO 1248); $15,000 (Mirashrafi v. Circuit Centre, 2010 HRTO 512); $15,000 (Vetricek v. 642518 Canada, 2010 HRTO 757); $20,000 (Knibb v. Brant Artillery Gunners Club, 2011 HRTO 1032); $13,000 (O’Brien v. Organic Bakery Works Inc., 2012 HRTO 457 (“O’Brien”); and $15,000 (Defina v. Lithocolor Services Ltd., 2012 HRTO 1768 (“Defina”).
98In O’Brien and Defina, lower amounts were awarded, in large part, because of the short tenure of the applicant’s employment. Further, in O’Brien, at para. 12, the adjudicator noted that the applicant’s evidence was “sparser” about the impact of his layoff than it was about his evidence about the impact of the accident itself.
99The applicant, in this case, also provided rather sparse evidence with respect to the impact of both the respondent’s failure to accommodate him and the termination. He testified that he felt betrayed by the respondent as he worked for 6 or 7 years for it without any problem and once he became injured, the respondent turned its back on him. He testified that he felt nervous and scared that he did not have a job, particularly given that his baby had just been born.
100In addition to speculating that the applicant’s motives for filing the Application were for monetary gain, the respondent submitted that a financial order would be a financial burden to the respondent and put the business at jeopardy. Mr. Ho testified that the respondent is a small business which, from 2004, has been losing money. Mr. Ng testified that for the past 8 years the respondent has been losing money. As noted in other parts of this Decision, the respondent failed to file any documentation with respect to its assertions, in this circumstance, the financial situation of the respondent, and again I draw an adverse inference against the respondent that such documentation would not have been supportive of the respondent’s claims of financial difficulties.
101In this case, I find that it is appropriate to award $15,000 for damages for injury to dignity, feelings and self-respect. In awarding this amount, I have considered the length of the applicant’s employment, without any alleged work-related problems, the period of time over which the respondent failed to accommodate the applicant, including a time he was vulnerable because of a new baby, and most particularly the loss of the applicant’s employment. I have accepted the sparse evidence the applicant provided about the impact of the discriminatory treatment and the termination, as noted in the preceding paragraph, as well as the fact that the applicant considered himself to be terminated at some point in 2008.
102While the respondent may be a small business, in assessing quantum, the Tribunal is mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a “licence fee” to discriminate. See Sanford, as cited in Arunachalam, at para. 34. The Tribunal has held that the loss arising out of the injury to an applicant’s dignity, feelings and self-respect is no less compensable because of the limited financial situation of a respondent. See Longboard v. 708179 Ontario Inc., 2012 HRTO 2170 at para. 50.
Loss of BENEFITS
103Section 45.2(1) 1 of the Code permits the Tribunal to award other monetary losses, such as loss of benefits. See, for example, Pilon v. Cornwall (City), 2012 HRTO 177 at para. 23.
104The applicant seeks loss of benefits. He claims that although the value of the benefits was approximately $8750 to $10,500 per year because they cost approximately 25 to 30 per cent of his gross annual wages, $35,000, he is seeking only $7,000.
105Loss of benefits have typically been awarded by the Tribunal to compensate an individual for medical or related expenses that were incurred, which would otherwise have been covered under a benefits package. In this case, however, I have no evidence before me of any expenses actually incurred. It appears that the applicant has attempted to put a nominal valuation on the benefits package he had under his employment but, again, has provided no evidence of actual out-of-pocket expenses incurred from the loss of his benefits package. Accordingly, I have no evidentiary basis to make an award for loss of benefits and decline to do so.
Future Compliance Remedies
106The 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.
107In the circumstances of this case and in order to promote future human rights compliance, it is important for Mr. Ho and Mr. Ng to have a better understanding of rights and responsibilities provided by the Code. The applicant submitted that he wanted public interest remedies awarded, although he was not specific about what those were. The respondent made no submissions, in response to the applicant’s request.
108I find it appropriate to require Mr. Ho and Mr. Ng to take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca, within 30 days of the date of this Decision, and to confirm in writing to the applicant’s representatives that they have completed this training.
orders
109The Tribunal orders as follows:
Within 30 days of the date of this Decision, the respondent shall pay the applicant $15,000.00 as monetary compensation for injury to dignity, feelings and self-respect along with prejudgment interest, at the rate of 0.5% calculated from the time of filing the Application, January 28, 2010, in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended;
The respondent is liable to pay the applicant post-judgment interest in the amount of 3% in accordance with section 129 of the Courts of Justice Act, if the monetary amount in paragraph 1 is not paid within 30 days from the date of this Decision; and
Within 30 days of the date of this Decision, John Ho and Jackie Ng are directed to take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and to provide the applicant’s representatives with proof that they have completed it.
Dated at Toronto, this 1st day of February, 2013.
“Signed by”
Alison Renton
Vice-chair
CORRECTION
The decision released on February 1, 2013 incorrectly omitted the word “not” in the sentence “…respondent has proven that it conducts…” at paragraph fifty of the decision. The error is corrected to: “respondent has not proven that it conducts…”
Dated at Toronto, this 7th day of February, 2013.
“Signed by”
Alison Renton
Vice-chair