Kane v. Caledon Community Services, 2013 HRTO 213

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Kane

Applicant

-and-

Caledon Community Services and Monty Laskin

Respondents

DECISION

Adjudicator: Alan G. Smith

Date: February 5, 2013

Citation: 2013 HRTO 213

Indexed as: Kane v. Caledon Community Services

APPEARANCES

Kathleen Kane, Applicant

Self-represented

Caledon Community Services and Monty Laskin, Respondents

Self-represented

BACkground

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination on the basis of disability with respect to employment. The applicant alleges that on August 11, 2010, her employment was terminated because she had taken a medical leave of absence. The applicant names as respondents both Caledon Community Services (“the employer”) and Mr. Monty Laskin its executive director.

2In their Response filed August 16, 2011, the respondents say that the applicant was terminated due solely to the restructuring of the employer’s operations.

3A Case Assessment Direction was issued by me on May 15, 2012, which addressed, among other things, the fact that the ground of discrimination indicated in the Application was “record of offences”, however the parties appeared to be proceeding on the basis that “disability” was the alleged discriminatory ground.

4The matter was heard on its merits before me on June 14, 15, and July 19, 2012. As a preliminary matter I agreed, on the consent of all the parties, to proceed on the basis that the alleged ground of discrimination was “disability”. All parties participated in the hearing.

The evidence

Applicant

5The applicant began her employment with the institutional respondent in May of 2008 as manager of the employer’s retail store operations.

6The applicant advised that she was experiencing severe work related stress in the Spring of 2010. Her doctor prescribed anti-depressants and advised her to take time off work. She informed the employer’s senior management of her doctor’s direction and provided a doctor’s note.

7The applicant provided a one page 2010 calendar which she had colour-coded, this was marked as Exhibit 1. The calendar provided the following chronology of events with respect to the applicant’s work history:

• May 10 – 24: on sick leave;

• May 25 – 28: on vacation;

• May 31 – June 3: at work;

• June 4: on vacation;

• June 7 – 11: on sick leave;

• June 14 – 18: on short term disability;

• June 21 – August 13: on Employment Insurance Sick Benefits.

8On her return to work on May 31, 2010, the applicant testified that she went into a meeting with Monty Laskin, and Mel Herman, the employer’s human resources manager. She was told that she had a new position with the respondent starting in September 2010 and would no longer be part of the management team. She was further informed that Mr. Laskin would be working with her to develop a new job description.

9The applicant advised that she had a further meeting with Mr. Laskin on June 3, 2010, where he indicated that he needed more details with regard to her stress related medical issues in order to allow the employer to accommodate her.

10On June 15, 2010, the employer issued, at the applicant’s request, an Employment Insurance “Record of Employment” (“ROE”) to the applicant indicating “illness or injury” as the reason for the cessation of work.

11The applicant pointed to an email exchange that occurred between herself and Ms. Herman on June 29, 2010, where the applicant requested clarification of the new job duties she was to undertake in September 2010. Ms. Herman advised that she could not provide any clarification until she knew the date that the applicant anticipated returning to work.

12The applicant testified that on July 19, 2010, she provided the employer with a further note from her doctor advising that she was to be reassessed by her doctor on August 12, 2010.

13The applicant stated that, at the request of Mr. Laskin, she attended a meeting at the respondent’s premises on August 11, 2010, where she was informed that her employment with the respondent was terminated immediately. She was provided with a cheque for two week’s pay and told that when she returned the respondent’s laptop computer and keys she would be provided with a further two week’s pay in lieu of notice.

14That applicant advised that she was still undergoing treatment for depression but that the treatment regime was in place before the termination and did not change because of the job loss. However, she also indicated that she had suffered a loss of confidence and sense of isolation because of the termination.

15In cross-examination the applicant admitted that she had never requested accommodation from the respondent other than time off work.

16The applicant agreed that she had a conversation with Mr. Laskin sometime in February 2010 with regard to what Mr. Laskin felt was the poor performance of the respondent’s retail operations. The applicant stated that during the conversation she asked Mr. Laskin if he felt that her employment should be terminated and he responded that, “it hasn’t come to that yet”.

Mel Herman

17Ms. Herman testified that she was the director of human resources for the respondent during the period of the applicant’s employment.

18Ms. Herman advised that in May 2009, after a performance appraisal, the applicant had agreed to, “document and then implement a stores marketing plan that would produce increased donations and customer count”. However, during the June to December 2009 period the stores failed to meet sales targets.

19Ms. Herman stated that in January 2010, because of the continued disappointing performance of the retail operations, the respondent’s senior management decided to restructure the staffing of the stores. During the period January through March 2010 the restructuring plans were implemented, which included the elimination of three staff positions.

20Ms. Herman testified that in May 2010, as part of the restructuring, the retail operations were placed under the direction of the respondent’s fundraising division. As a result, in early June 2010 the respondent’s manager of fundraising, Fiona Ott, was given the added responsibility of filling the applicant’s duties with the title of Acting Manager, Stores Program.

21Ms. Herman testified that she had no direct knowledge of the decision making process regarding the applicant’s termination. However, she stated that the final decision was the sole prerogative of Mr. Laskin.

22In cross-examination Ms. Herman admitted that it was probable that the Chair of the respondent’s Board of Directors would have been consulted before the applicant’s employment was terminated.

Monty Laskin

23Mr. Laskin reviewed the steps that were taken by the respondent in early 2010 to restructure the organization. He stated that in the new organization five distinct service divisions were created and that the retail operation was amalgamated with the fundraising and communications division. Staff was reduced in the stores in an effort to meet profitability targets.

24He testified that in March 2010 five of the respondent’s retail employees were laid off as a result of the reorganization.

25Mr. Laskin stated that in a meeting held May 8, 2010, the applicant was informed that Ms. Ott would be assuming the applicant’s responsibilities and that she would become the applicant’s supervisor.

26Mr. Laskin confirmed that the applicant never requested accommodation of her disability aside from the time off work.

27Mr. Laskin noted that, in late June or early July 2010, he had held discussions with the institutional respondent’s Board Chair regarding the progress of the organization’s restructuring. The discussions were of a general nature and not about specific employees. He reiterated that he was the sole decision maker with regard to the termination of the applicant’s employment.

28Mr. Laskin testified that he understood that the applicant anticipated returning to work on August 16, 2010, subject to her doctor’s final approval.

29In cross-examination Mr. Laskin testified that if the applicant had been actively employed in May and June 2010 it would have made no difference in the decision to terminate her employment. The applicant’s disability played no part in his decision to terminate her employment. Her termination was based solely on the fact that her position was redundant due to the restructuring of the retail operations and Ms. Ott becoming the manager of the retail operations

30Mr. Laskin was questioned by me with regard to statements contained in the summary of his expected testimony prepared in anticipation of the hearing. In that document Mr. Laskin states:

…I made the decision to eliminate her [the applicant’s] position as Manager, Eco Stores in late June 2010, after consultation with the Chair of the Board of Directors, the Manager of Human Resources, and the Manager of Fundraising & Communications…

The termination of Ms. Kane’s actual employment was deferred until confirmation of her return-to-work date of August 16, 2010 was received…

On June 4^th 2010 Ms. Kane requested a second leave, this time for an undefined period…

I placed Fiona Ott in the role of Acting Manager, Stores Operations. She accepted this assignment while continuing to perform the entire scope of her regular duties as Manager, Fundraising and Communications…

Many frequent discussions with staff and volunteers at the Stores throughout this transitional period reinforced my conclusion that the Manager role was no longer needed…

In the absence of any information to the contrary, I concluded that Ms. Kane’s planned return to work in August was genuine and without restriction.

Mr. Laskin confirmed that these statements were factually correct. The document also listed four factors which Mr. Laskin indicated he considered in his decision to terminate the applicant’s employment. Number four reads, “a review of all available information regarding Ms. Kane’s absences beginning May 10, 2010”. Mr. Laskin testified that he had made note of the applicant’s absences only with regard to the timing of the termination, not the actual decision to terminate. In other words, the applicant would have been terminated sooner if she had not been on sick leave.

THE LAW

31The 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, age, record of offences, marital status, family status or disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

32Disability is defined in section 10(1) as:

(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,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(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.

33The definition of disability extends to the perception that an individual has a disability. The emphasis is on obstacles to full participation in society rather than on the conditions or state of the individual. Ailments such as a cold, or personal characteristics such as eye colour, are excluded from the scope of disability. See: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) 2000 SCC 27. Although the definition of disability may vary, it should nonetheless be interpreted in a broad manner, consistent with the Canadian Charter of Rights and Freedoms as well as other provincial human rights tribunals: see City of Montreal above. The fact that a physical condition is of a temporary nature does not exclude it from coverage under the Code. See, Mississauga (City) v. A.T.U. Local 1572, (2005), L.A.C. (4th) 84 (Ont. Arb. Bd.) and Hill v. Spectrum Telecom Group Ltd, 2012 HRTO 133.

34The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. It is also well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination. It is not necessary that discrimination be the sole or even the predominant reason for the termination for the Code to be infringed. See, Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 and Royal v. Optilinx Systems Inc., 2010 HRTO 2135. My job is therefore to determine whether the respondent’s decision to terminate the applicant’s employment was tainted by impermissible consideration of the applicant’s disability, or perceived disability, contrary to the provisions of the Code.

ANALYSIS

35Taking the evidence as a whole, for the reasons that follow, I find that the applicant has failed to prove that it is more probable than not that her disability, or the perception by the respondent that she was disabled, was a factor that contributed to the decision to terminate her employment.

36I accept that at the very least the respondent perceived the applicant to be suffering from a disability pursuant to the Code after May 2010. Even if the respondent was not aware of the exact nature of the disability, the doctor’s notes provided to the respondent, the fact that the applicant obtained short term disability coverage and Employment Insurance sick benefits, both of which the respondents were aware of, would have indicated the fact of a disability being present. However, the principal question remains: was the applicant’s disability or perceived disability in any way a factor in the decision to terminate her employment?

37The respondent’s decision to terminate the applicant’s employment five days before her anticipated return to work raised an inference of discrimination. However, in this case I am satisfied that the respondents have rebutted that inference. In my view the applicant’s allegations, other than the timing of the termination, are based solely on her subjective perceptions and suspicions, without any facts to support those suspicions.

38The personal respondent testified that the decision to terminate the applicant’s employment was based on legitimate business reasons and these were not a pretext for discrimination. I agree. I find that the respondent has established that the decision to terminate the applicant’s employment was a business decision in the face of the poor performance of its retail operations. This is supported by the totality of the employer’s actions in terms of terminating and/or laying off other employees, re-assigning responsibilities, and consolidating elements of the respondent’s structure. There is no evidence that other employees who were treated the same as the applicant were subsequently hired back or that new employees were hired in their stead. There is no evidence, save for the applicant’s suspicions and the unfortunate timing that the applicant’s disability was a factor in the decision, directly or indirectly. The respondent started the restructuring some six months before the onset of the applicant’s illness. The respondents provided a non-discriminatory explanation for why the applicant’s position, in particular, was selected for termination, among others. The applicant tendered no evidence to refute the respondents’ assertions. The respondents agreed that the applicant had been told on May 31, 2010, that despite the restructuring, new job duties would be found for her in the organization. In late June 2010 the respondents reversed that position. The applicant had already taken some three weeks of medically necessary leave by May 31, 2010. There is no evidence that the change of plans was related in any way to the applicant’s continued disability. I therefore accept Mr. Laskin’s testimony regarding the legitimacy of his actions. To that extent, the rationale I have adopted is similar to that expressed by the Tribunal in McClendon v. Standard Insurance Brokers, 2009 HRTO 2072 and Hill above.

39Therefore, I find that the applicant’s disability, or the perception thereof, was not a factor in the respondent’s decision-making and that her absence from the workplace on a disability-related leave did not put her at any disadvantage in the workplace. In essence, I find that if the applicant had not had a disability at the relevant time, the outcome would have been the same.

ORDER

40The Application is dismissed.