HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Lagana Applicant

-and-

Saputo Dairy Products Canada G.P. and Rob Castellano Respondents

DECISION

Adjudicator: Eric Whist Date: February 22, 2013 Citation: 2013 HRTO 309 Indexed as: Lagana v. Saputo Dairy Products Canada G.P.

APPEARANCES

Tony Lagana, Applicant Self-represented

Saputo Dairy Products Canada G.P. and Rob Castellano, Respondents Ranjan Agarwal and Amanda McLachlan, Counsel

INTRODUCTION

1This is a Decision determining remedy in Applications TR-0419-09 and 2008-00897-I under the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the Code). These Applications were heard together and the parties agreed to bifurcate the issues of issues of liability and remedy.

2The issue of liability has already been determined. In a Decision dated July 25, 2012, 2012 HRTO 1455 (“the liability decision”), I determined that the respondents violated the Code when they failed in their duty to accommodate the applicant during the period April 23, 2007 to May 31, 2007.

3The respondents’ failure to accommodate the applicant can be briefly summarized as following. The applicant was employed in the corporate respondent’s Woodbridge warehouse preparing orders of food products to be shipped to customers. This is physically demanding work. On April 23, 2007, he requested modified duties owing to an injured back. He provided medical documentation in support of this request including a WSIB “Form 7” identifying his medical restrictions. In the liability decision I determined that the respondents did provide the applicant with modified duties, but also had a practice of having the applicant work beyond these restrictions with the proviso that the applicant could decline these further tasks. I found that having an informal practice of letting employees decline work and relying on employees self-regulating their work may be a reasonable accommodation measure in certain circumstances. This informal practice may be appropriate when employees have reported a minor injury and when there are no clearly identified medical restrictions or when employees with identified medical restrictions are told that they can decline to undertake a task that is within their restrictions in order to protect them from aggravating their condition. However, I determined this informal approach is not appropriate in situations, such as the applicant’s, where an employee has defined medical restrictions and has job functions that extend to tasks beyond these restrictions.

4On May 31, 2007 the applicant stopped working on the advice of his doctor who recommended the applicant remain off work until June 18, 2007.

5I dismissed all of the applicant’s other allegations of discrimination, including that the respondents failed to meet their duty to accommodate the applicant’s disability in June 2007; that the individual respondent subjected the applicant to harassment during a meeting on May 22; that the corporate respondent failed to meet its duty to investigate the applicant’s complaint of harassment and discrimination under the Code; that the respondents failed to meet their duty to accommodate the applicant when the applicant was required to return to his home position in September 2007 and that the corporate respondent‘s decision to terminate the applicant’s employment in December 2007 was discriminatory or in reprisal for the applicant exerting his rights under the Code.

6On February 14, 2013 the hearing was resumed to hear evidence and submissions on remedy. Both parties provided oral submissions. The respondents also relied on testimony from Frank Zbaraschuk, the corporate respondent’s Vice-President for Human Resources-West. Mr. Zbaraschuk testified about the corporate respondent’s human rights policies and supporting training initiatives. The respondent disclosed related documentary evidence. The applicant relied on medical documents he previously disclosed. The respondents also provided case law for my consideration.

REMEDY

7Section 45.2 of the Code sets out the Tribunal’s remedial powers:

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

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

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

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

Monetary Compensation for Loss Arising out of the Infringement

8Monetary compensation is awarded as a way to make victims of discrimination whole, to compensate them for injury to dignity, feelings and self-respect. It is important not to set the quantum of damages too low, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”. See Sanford v. Koop, 2005 HRTO 53.

9The applicant asks for $25,000 in monetary compensation for injury to dignity, feelings and self-respect apportioned as: $12,500 from the corporate respondent and $12,500 from the personal respondent. The applicant provided no submissions on why he was of the view that $25,000 was an appropriate sum. The applicant also made no claims for monetary compensation for any out of pocket losses and no evidence was led to indicate that the applicant suffered a loss of income as a result of the respondents’ failure to accommodate the applicant.

10The applicant submits that the respondents’ actions have had an adverse effect on him; that he felt humiliated and suffered a loss of confidence. He testified that not only has he had to endure the effects of what happened to him but so has his family.

11The applicant testified that he has had to seek counselling for depression and anxiety. The applicant provided medical documents from a social worker who saw him twice in September and October 2007, from a psychotherapist who saw him from November 2007 to May 2008 and a letter from his doctor dated October 23, 2009 stating that the applicant became extremely anxious and depressed during the course of his injury in 2007.

12The applicant also testified that the respondents’ discriminatory actions have contributed to his having a permanent disability, noting he cannot lift heavy objects or stand for extended periods of time.

13The respondents submit that the Tribunal should find the Code violation to be less serious given that the respondents did make good faith efforts to accommodate the applicant during the period April 23 to May 31, 2007 by providing modified work albeit with a flawed process for dealing with other work tasks. They submit there is no issue of the respondents harassing the applicant or acting maliciously. They submit that the period in which they failed to provide appropriate accommodation was not long, 38 days, and that after this period the respondents did provide or offer appropriate accommodation to the applicant, as determined by the Tribunal in the liability decision.

14The respondents submit that the applicant has not provided any evidence to show a causal link between his current physical condition and events that occurred specifically between April 23 and May 31, 2007. The respondents submit that the medical documents disclosed by the applicant are based on accounts of events provided by the applicant to medical practitioners including the termination of the applicant’s employment in December 2007 (and events from June 2007 to December 2007) and these documents do not constitute evidence that the applicant suffered psychological injuries specific to the period April 23 to May 31, 2007.

15The respondents submits that there are three Tribunal decisions that involve a respondent failing to accommodate an applicant for a short period of time that are analogous to the present case and that the Tribunal should consider when determining the respondents’ liability. These are Piechocinski v. Toronto Standard Condominiums Corporation No. 1519, 2011 HRTO 1430, ($1,000 awarded in compensation for injury to dignity, feelings and self-respect ); Goad v. 1681078 Ontario Inc., 2010 HRTO 817, ($1500 compensation for injury to dignity, feelings and self-respect) and Burns v. Employer’s Choice of Staffing of Canada Ltd., 2009 HRTO 1255 ($3,000 compensation for injury for dignity, feelings, and self-respect).

16In evaluating the appropriate compensation for injury to dignity, feelings and respect under section 45.2 of the Code the Tribunal has applied two criteria: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. As stated in Arunachalam v. Best Buy Canada, 2010 HRTO 1880:

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.

17I find both the objective seriousness of the respondents’ failure to accommodate the applicant in April - May 2007 and the effect on the applicant to be of a less serious nature. I find the respondents’ objective conduct less serious given that the failure to appropriately accommodate the applicant was for a limited period of time, and that subsequently, the corporate respondent did offer the applicant a more structured and formal accommodation that did meet his medical restrictions. I also find it significant that the respondents did attempt to accommodate the applicant in the April - May 2007 period by providing modified duties that met the applicant’s restrictions, albeit that this was ultimately compromised by having, in addition, an informal practice that led to the applicant having to carry out tasks beyond these restrictions.

18I accept the applicant’s testimony that he was emotionally and psychologically affected by the respondents’ requirements that he work beyond his medical restrictions during April and May 2007. It was certainly clear from the evidence before me that the applicant was angry and bitter about how he felt he was treated by the respondents during this period. However, the applicant also testified about how he was significantly affected by the respondents’ actions from June to December 2007, actions that I did not find to be discriminatory. The medical documents the applicant disclosed to support his contention that he became anxious and depressed as a result of the respondents’ actions also appear to relate to the applicant’s experiences with the respondents throughout 2007. Under these circumstances, I have determined that I must give limited weight to the emotional difficulties the applicant may have experienced specifically as a result of the respondents’ failure to accommodate him in April - May 2007.

19The applicant submits that the failure to accommodate him in April - May 2007 has led to his ongoing physical difficulties. However, while I determined that the applicant was inappropriately required to undertake physically demanding tasks in April and May 2007 there is no medical evidence to link this work experience to the applicant’s current physical condition. I note that there was evidence before me that the applicant has had a long history of back troubles that began prior to this period. There is evidence that the applicant was later injured in September 2007. Under these circumstances, I am not prepared to make a finding that the respondents’ failure to accommodate the applicant in April - May 2007 has contributed to the applicant’s present physical condition.

20In determining what should be an appropriate award in this case I have considered the Tribunal’s case law. Awards for discrimination on the basis of disability in respect of employment range widely. Cases involving the termination of employment generally result in awards of $10,000 and higher. I do not find that the nature of the respondents’ failure to accommodate the applicant over a 38 day period and the effects this action had on the applicant warrant a remedy in this range.

21On the other hand I do not find this case to be analogous to the three Tribunal decisions cited by the respondents that involved awards ranging from $1,000 to $3,000 The present case is somewhat comparable to Burns where the applicant was not appropriately accommodated while at work over a short period of time (three months). However, in Burns, the applicant worked in an office and the failure to accommodate was principally not allowing the applicant to make up time for previously scheduled physiotherapy appointments and not allowing the applicant the opportunity to stretch his back at regular intervals. In the present case the respondents’ failure to provide appropriate accommodation to the applicant resulted in the applicant having to carry out physically demanding tasks beyond his medical restrictions. I find this to be a factor that should be taken into account when determining remedy.

22Having considered all the circumstances including the impact of the discrimination on the applicant I find that an award of $6,000 for injury to dignity, feelings and self-respect is appropriate. The respondents are jointly and severally liable for this award.

Remedies to Promote Future Compliance

23The applicant asks that the corporate respondent be directed to distribute copies of the Tribunal’s liability decision to all employees. He further asks that the corporate respondent be ordered to post “human rights cards” in its facilities.

24The respondents oppose these requests. The respondents submit that the applicant’s request that copies of the Tribunal’s liability decision be distributed is based on the applicant’s belief that this will embarrass the respondents and consequently is punitive in nature, rather than remedial. It submits that the posting of human rights cards is not necessary in light of the corporate respondent’s substantive efforts to promote its corporate human rights related policies.

25I heard testimony from Mr. Zbaraschuk and had documentary evidence before me to show that the corporate respondent has a Code of Ethics and an Anti- Harassment and Violence Policy that are provided to all new employees. I heard further evidence about the training the corporate respondent provides to employees in relation to these two policies. The respondents provided copies of training materials and documentary evidence to show that employees have participated in a variety of training sessions. In addition the corporate respondent has, since the events that gave rise to the Application, introduced a written protocol that requires a manager and an injured employee to 1) identify and document the steps being taken in response to any injury; 2) document the further steps that will be taken to develop and implement a return to work plan (when one is required) and 3) submit a return to work evaluation report in order to provide an assessment of how the well the return to work process worked.

26Section 45.2 of the Code empowers the Tribunal to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote future 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.

27I am satisfied that no future compliance orders are required in this case. I make this determination based on the fact that after May 31, 2007 the corporate respondent proceeded to appropriately provide and offer accommodation to the applicant and the fact that the corporate respondent has introduced a more formal written protocol for managing its accommodation process. I am further satisfied that the corporate respondent’s human rights policy and training initiatives will also help ensure future compliance with the Code.

AMENDING PREVIOUS DECISIONS

28In Interim Decision, 2010 HRTO 155, dated January 26, 2010, I addressed a request to remove the personal respondents in Applications 2008-00897-I and TR-0419-I. I determined that Frank Zbaraschuk, Pat Roehl, Dino Dello Sbarba and Rob Castellano would be removed as individual l respondents in Application 2008-00897-I and Frank Zbaraschuk and Pat Roehl would be removed as individual respondents in Application TR-0419-09. I declined to remove Rob Castellano from Application TR-0419-09 as an individual respondent given that the applicant alleged that Rob Castellano had personally harassment him. Owing to an administrative oversight the January 26, 2010 Interim Decision and the Tribunals’ subsequent Decisions in relation to these two Applications did not reflect the fact that Rob Castellano continued to be a named respondent.

29Accordingly, it is appropriate to amend Decisions 2010 HRTO 155; 2012 HRTO 1455; 2012 HRTO 2117 and 2012 HRTO 2118 so that the styles of cause indicate Saputo Dairy Products Canada G.P. and Rob Castellano are the named respondents.

ORDERS

The Tribunal makes the following Orders:

a) The respondents are jointly and severally liable to pay the applicant the sum of $6,000 in monetary compensation for injury to his dignity, feelings, and self-respect, within 30 days of this Decision;

b) The respondents, are jointly and severally liable to pay pre-judgement interest in accordance with section 128 of the Courts of Justice Act on the amount set out paragraph (a) from April 23, 2007 within 30 days of the date of this Decision;

c) In the event that the respondents fail to make the payments described in paragraphs (a) and (b) above within 30 days of the date of this Decision, the respondents shall jointly and severally pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision; and

d) The Tribunal will amend Decisions 2010 HRTO 155; 2012 HRTO 1455; 2012 HRTO 2117 and 2012 HRTO 2118 to show both Saputo Dairy Products Canada G.P. and Rob Castellano as the named respondents.

Dated at Toronto, this 22^nd day of February, 2013.

“Signed by”

Eric Whist Vice-chair

CORRECTION

The decision released on February 22, 2013 incorrectly misspelled the respondents’ counsel name “AGARWAL” for “AGGRAWAL” at the APPEARANCES page. In addition, the Tribunal has omitted co-counsel for the respondents’ “Amanda McLachlan”. The errors are corrected.