Sveto Maric v. National Millwork Inc., 2013 HRTO 425

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sveto Maric Applicant

-and-

National Millwork Inc. Respondent

DECISION

Adjudicator: Sheri D. Price Date: March 13, 2013 Citation: 2013 HRTO 425 Indexed as: Maric v. National Millwork Inc.

APPEARANCES

Sveto Maric, Applicant Marisa Scotto di Luzio, Counsel

National Millwork Inc., Respondent No one appearing

Introduction

1In this Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent discriminated against him with respect to employment because of disability. Specifically, the applicant, who was employed by the respondent as a cabinet-maker, alleges that the respondent discriminated against him when it terminated his employment because the applicant refused certain work that he was unable to do because of his disability.

RESPONDENT DID NOT PARTICIPATE IN HEARING

2On December 14, 2011, the Tribunal sent the parties a Notice of Confirmation of Hearing advising them that the hearing of the Application would take place on June 18 and 19, 2012, in Toronto.

3The Notice of Confirmation of Hearing that was sent to the parties set out the consequences of failing to attend the teleconference hearing as follows:

CONSEQUENCES OF FAILING TO ATTEND THE HEARING

If you fail to attend the hearing after receiving proper notice the HRTO may:

• proceed in your absence;
• determine you are not entitled to further notice of the proceedings;
• determine you are not entitled to present evidence or make submissions to the HRTO;
• decide the Application based solely on the materials before the HRTO;
• dismiss the Application as abandoned if the applicant fails to attend, and;
• take any other action the HRTO considers appropriate.

4The Notice of Confirmation of Hearing was sent to the respondent at the contact information provided by it in its Response to the Application and was not returned to the Tribunal as undeliverable.

5In addition to setting the date, time and place for the hearing of the Application, in the Notice of Confirmation of Hearing, the Tribunal gave the parties certain directions and deadlines regarding the pre-hearing disclosure of documents and witnesses, pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure.

6The respondent complied with the direction in the Notice of Confirmation of Hearing to provide copies of its arguably relevant documents to the applicant and to confirm that it had done so, by filing a Form 23 (Statement of Delivery) with the Tribunal (Rule 16.1). However, it failed to comply with the May 4, 2012 deadline for providing a list of its intended witnesses; summaries of their intended evidence; and copies of the documents that it intended to rely upon at the hearing (Rule 16.2 and 17.1).

7Accordingly, the Tribunal issued two Case Assessment Directions in this matter, dated May 14, 2012 and June 12, 2012, directing the respondent to comply with its pre-hearing disclosure obligations. Both Case Assessment Directions reiterated that the hearing was scheduled to proceed on June 18 and 19, 2012.

8The May 2012 Case Assessment Direction was sent by regular mail to the respondent at the contact information provided by it in the Response to the Application and was not returned as undeliverable. A copy was also successfully sent to the respondent by fax.

9The couriered version of the June 2012 Case Assessment Direction was returned to the Tribunal with a notation that the respondent had “moved”. However, copies of the June 2012 Case Assessment Direction were successfully delivered to the respondent by fax and email.

10Rule 1.13 of the Tribunal’s Rules of Procedure provides that parties to proceedings before the Tribunal are obliged to notify the Tribunal and the other parties of any change in their contact information as soon as possible. The respondent did not advise the Tribunal of any change in its contact information at any point after filing its Response to the Application, nor has the respondent contacted the Tribunal since confirming that it delivered its arguably relevant documents to the applicant in January 2012.

11On June 18, 2012, I convened the hearing at the set place and time. The applicant attended the hearing and was represented by counsel. The respondent did not attend the hearing.

12I was satisfied at the hearing that the respondent had received timely and proper notice of the hearing. Of the three documents sent to the respondent confirming that the hearing would commence on June 18, 2012, the only document that was returned to the Tribunal as undeliverable was the couriered version of the June 2012 Case Assessment Direction. Even if the respondent did not receive that document, all indications are that it did receive the December 2011 Notice of Confirmation of Hearing advising of the date, time and place of the hearing. This is evident not only from the fact that the Notice was sent to the respondent at the contact information provided by it in its Response to the Application and not returned as undeliverable; but also from the fact that the respondent complied with a direction in the Notice to provide copies of its arguably relevant documents to the applicant and to confirm to the Tribunal that it had done so. In addition, all indications are that the respondent received copies of the May and June 2012 Case Assessment Directions sent by regular mail, fax and email.

13The Notice of Confirmation of Hearing advised the respondent that if it failed to attend the hearing, the hearing could proceed in its absence.

14In the absence of the respondent or any explanation for its failure to attend, I proceeded with the hearing in the respondent’s absence.

INTERPRETER

15In accordance with the applicant’s request, a Serbian-English interpreter was provided by the Tribunal to assist the applicant in giving evidence at the hearing of this Application.

BACKGROUND

16The applicant testified at the hearing of the Application and also submitted documentary evidence. The applicant’s evidence in this matter was straightforward, clear, compelling and internally consistent. It was also uncontradicted and unchallenged. I accept it as credible.

17The applicant was employed by the respondent on a full-time basis as a cabinet-maker, which job involved cutting out cabinet pieces and assembling them, in order to make cabinets, reception desks, shelves, etc.

18In its Response to the Application, the respondent pleaded that the applicant did not commence employment with it until March 2009. However, the applicant disputed this in his testimony. He testified that, although the business may have changed hands over the years, he worked for the same company, under the same foreman, since 2001.

19The applicant testified that, on August 18, 2009, he was kneeling on the floor working on a “layout”. When he stood up, he felt a sharp pain in his left knee. The applicant testified that he finished his shift on August 18, 2009, but was unable to go to work the following day. The applicant testified that when he saw his family doctor a day or so later, she recommended that the applicant stay off work, pending further investigation of the knee with ultrasound and an MRI scan. The applicant’s evidence on this point was consistent with his family doctor’s September 24, 2009 medical report, indicating that the applicant was “unable to work” at that time.

20In late November 2009, after an MRI scan, the applicant was diagnosed as having a torn medial meniscus in his left knee. Surgery was recommended. However, the applicant opted to try a 12-week course of physiotherapy first and to consider surgery if that proved unsuccessful. This is also confirmed in a February 2012 medical report from the applicant’s family doctor.

21Following his workplace injury, the applicant applied for and was granted Loss of Earnings benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sch. A. As part of the Workplace Safety and Insurance Board (“WSIB”) process, on September 29, 2009, a doctor at St. Joseph’s Healthcare Hamilton completed a Functional Abilities Form (“FAF”) that addressed the applicant’s ability to return to work. The September 2009 FAF indicated that the applicant was capable of returning to work within certain restrictions. In particular, it indicated that the applicant’s ability to walk, stand, lift, or climb stairs or ladders was restricted by the fact that the applicant was not to bear any weight on his left leg, pending reassessment by an orthopaedic surgeon the following day. In addition, the applicant was restricted from bending, twisting or engaging in any repetitive movement of his left knee. Based on the evidence presented at the hearing, the September 2009 FAF appears to have been the only medical assessment of the applicant’s functional abilities completed between the time of the applicant’s injury and the termination of his employment in April 2010.

22There appears to have been no discussion about returning the applicant to work within the above-noted restrictions, following completion of the September 2009 FAF. In fact, the applicant testified that he never had any discussions with the respondent employer about his ability to return to work until March 2010.

23Specifically, the applicant testified that, in March 2010, he was invited to a meeting with the respondent and the Workplace Safety and Insurance Board to discuss the possibility of returning the applicant to modified work with the respondent employer. The applicant testified that no one from the respondent showed up for the meeting on the date that it was originally scheduled. The meeting was rescheduled as a result and ultimately took place on or about March 25, 2010.

24The applicant testified that, at the March 25, 2010 meeting, the respondent employer offered him work refinishing 300 chairs. The applicant testified that he was unable to do the work in question because of certain disability-related restrictions and that he conveyed this to the WSIB and the respondent during the meeting.

25In particular, the applicant testified that he was unable to do the work in question because he continued to be in severe pain as a result of his knee injury, and was unable to sleep as a result.

26In addition, the applicant testified that he was physically incapable of doing the work in question because he was on crutches at the relevant time. The applicant testified that the work offered to him in March 2010 would have required him to pick up chairs, put them on a workbench, work on them, and then take them off the workbench and put them back on the floor. The applicant testified that he would have been required to stand while performing all of the above-noted tasks. He testified that he could not use his hands to perform any of these tasks while standing because, while standing, he needed his hands to hold his crutches.

27The applicant’s evidence that he needed to use crutches to stand and/or walk is consistent with the September 2009 FAF indicating that the applicant was restricted from bearing weight on his left leg; as well as medical reports from his family doctor and chiropractor submitted at the hearing (discussed below). In addition, the applicant’s evidence that he would have been required to stand, if not all, then at least a significant part of the time that he was working on the chairs is consistent with a WSIB memorandum about the March 25, 2010 meeting, indicating that the respondent was to provide the applicant with “a chair for sitting to interrupt weight bearing”. (emphasis added) The availability of a chair to “interrupt” weight-bearing suggests that, aside from such interruptions, the applicant would have been required to bear weight on his leg in order to do the work in question. Again, according to the applicant’s evidence and medical reports submitted at the hearing, this is something that the applicant was unable to do because of his disability.

28The above-noted WSIB memorandum also referred to the respondent being willing to make a student or co-worker available to the applicant to lift the chairs onto the applicant’s workbench, if lifting were a concern for the applicant. (The memorandum also expressed the expectation that the applicant himself “would lift a chair onto the table” and then spend up to 15 minutes working on it). I asked the applicant during his testimony about whether the respondent had offered to have a student or co-worker assist the applicant in the above-noted manner. In response, the applicant was adamant that no such assistance had been offered to him during the meeting or otherwise. (At this juncture, it is important to note that, to the extent that the WSIB memorandum in question seems inconsistent with the applicant’s evidence on this point, it is hearsay. It is therefore inherently unreliable and not, in my view, a proper basis upon which to reject the applicant’s evidence, the only evidence adduced at the hearing and evidence that I have found to be credible. In any event, insofar as the preponderance of evidence certainly indicates that the applicant would have been required to stand while working on the chairs, whether or not the applicant would have also been required to stand while lifting the chairs is of less import. Either way, I find that the applicant would have been unable to do the work in question because of his disability (discussed below).)

29The applicant also testified that he was unable to accept the work offered, because he was unable to drive himself from Hamilton, where he lived, to Burlington, where he worked. This, the applicant testified, was because he was unable to use his left leg to drive his standard transmission car.

30The applicant testified that, for all of the above reasons, he was unable to do the work offered to him by the respondent employer in March 2010. Accordingly, he refused the work offered. Moreover, and as noted above, the applicant testified that he conveyed to the respondent and to the WSIB during the March 25, 2010 meeting that he was unable to do the work in question because he was in “excruciating pain” and because he still needed crutches. The applicant testified that he also told them that he could not even get to work because he could not drive his car.

31Shortly after the March 25, 2010 meeting, the applicant received a letter from the respondent terminating his employment. In its April 12, 2010 termination letter, the respondent expressly stated that it was terminating the applicant’s employment because he had declined the modified work offered to him by the respondent:

It is the case that despite recent confirmation of your ability to return to (sic) under the specified light duty work schedule issued by your WSIB claims adjuster, you continue to decline the offer of employment by National Millwork. To that extent, it leaves National Millwork with no other option than to terminate your employment effective immediately.

32The applicant points out that, at the time of the March 25, 2010 meeting, it was known that the applicant was scheduled to see a specialist about his knee in mid-April 2010. This is evidenced by a notation to that effect in the WSIB memorandum regarding the March 25, 2010 meeting.

33Consistent with that, medical documents submitted by the applicant confirm that the applicant saw a surgeon at St. Joseph’s Healthcare Hamilton about his knee on April 13, 2010. In her report following that appointment, the surgeon notes that the applicant’s trial of physiotherapy had not provided him with any symptomatic relief and that the applicant wished to proceed with surgery. Arrangements were made and the applicant underwent surgery on his left knee shortly thereafter, on April 21, 2010.

34The applicant’s evidence that he was unable, for disability-related reasons, to perform the work offered to him by the respondent employer in March 2010 was supported by two medical reports in particular that he submitted into evidence at the hearing.

35In his January 23, 2012 report, the chiropractor who provided the applicant physiotherapy and/or other treatments during the period from December 2009 to March 2010 opined that the applicant was unable to perform the work offered to him by the respondent in March 2010 because he was using crutches and undergoing meniscus surgery the following month.

36In her February 13, 2012 report, the applicant’s family doctor, who treated the applicant in respect of the August 2009 injury, stated:

I believe that walking on crutches and having severe pain and decreased range of movement in left knee (and back pain with restricted range of movement) [the applicant] was unable to return to work in March 2010. At that time, … surgery was necessary and pending and WSIB and his company should have taken that into consideration (what (sic) they didn’t).

ANALYSIS AND DECISION

37In order to prove that he has been discriminated against contrary to s.5 of the Code, the applicant bears the onus of proving in evidence that the respondent treated him in a distinct and disadvantageous manner because of disability; or that a “requirement, qualification or factor” had a distinct and disadvantageous effect on him because of disability (s.11). In my view, the evidence in this case clearly establishes that the respondent treated the applicant in a distinct and disadvantageous manner because of disability when it terminated his employment and/or that the respondent’s requirements had a distinct and disadvantageous effect on the applicant because of his disability. The respondent thus discriminated against the applicant contrary to s.5 of the Code.

38I begin by observing that the workplace injury to the applicant’s left knee is clearly a “disability” within the meaning of the Code. This is because s.10 of the Code specifically defines “disability” to include “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.” Since the applicant both claimed and received benefits in respect of the August 2009 injury to his left knee, the applicant has established that his left knee injury is a “disability” within the meaning of the Code.

39The question is whether the applicant has established in evidence that the respondent discriminated against the applicant because of his disability. In my view, he has.

40It is clear from the face of the respondent’s April 12, 2010 letter that the respondent terminated the applicant’s employment because of his refusal to accept the chair-refinishing work that the respondent offered him in March 2010.

41In order to link this obviously disadvantageous treatment to his disability, the applicant must establish that he refused the work in question because of disability. In my view, he has done this.

42The applicant’s evidence, and the evidence of his family doctor, establishes that the applicant could not do the work offered to him by the respondent in March 2010 because, at that time, he was in too much pain to work. In addition, the applicant’s evidence establishes that the work in question would have required the applicant to work on the chairs (if not also to lift chairs to and from his workbench), while standing, which the applicant could not do because of his left leg injury. Specifically, the applicant could not use his hands to work on (or lift) the chairs while standing, because, while standing, he needed to use his hands to hold his crutches. Based on the applicant’s evidence on the above points, I find that the applicant was unable to perform the work that the respondent offered him in March 2010 because of his disability.

43In addition, based on the applicant’s evidence that he told the respondent during the March 25, 2010 meeting that he could not do the work in question for the above-noted reasons, I find that the respondent knew that the applicant refused the work because of his disability. Accordingly, when the respondent terminated the applicant’s employment because of his refusal to accept the work offered to him, the respondent treated the applicant in a distinct and disadvantageous manner because of his disability. The applicant has thus made out a prima facie case of discrimination under the Code.

44At this point, the inquiry would ordinarily turn to whether the respondent had proved a statutory defence to discrimination, such as the one contained in either s.11 or s.17 of the Code: Baber v. York Region District School Board, 2011 HRTO 213 at para. 88-95. In this case, however, as the respondent chose not to attend the hearing of the Application, it neither asserted nor called evidence to prove a defence under the Code.

45Even if I were to consider whether a defence under s.11 or s.17 had been proved in the respondent’s absence (and leaving aside whether that would be appropriate), there is no evidence in this case upon which I might find that the termination of the applicant’s employment was justified and therefore not prohibited discrimination under the Code. In order to prove that the applicant’s termination was justified under the Code, the respondent would have to prove, among other things, that the applicant’s disability-related needs could not have been accommodated without undue hardship. There is no evidence of that in this case. On the contrary, there is nothing before me to contradict the applicant’s position that the respondent could have accommodated his disability-related needs by simply maintaining the applicant's status as an employee off on WSIB leave, pending surgery, and until it could be determined whether the applicant might be able to return to work at some future point.

46Accordingly, I find that the respondent discriminated against the applicant because of disability with respect to employment, contrary to s.5 of the Code, when it terminated his employment effective April 12, 2010.

47Before turning to the question of remedy, I would point out that, in concluding that the respondent discriminated against the applicant, I have not relied on the applicant’s evidence or argument that his disability-related inability to drive a standard transmission car meant that he was unable to do the work offered in March 2010 because of disability.

48Although the applicant was not able to drive his standard transmission car to work because of his disability, he acknowledges that he would have been able to drive an automatic. According to the applicant, however, he could not afford to either rent or buy an automatic car to travel to and from work. (Among other things, the applicant testified that he could not sell his standard to buy an automatic because his car was very old and not worth anything.)

49It is not clear to me that the applicant’s inability to drive his standard transmission car to work is an additional reason to conclude that the applicant was unable to accept the chair-refinishing work because of his disability. In any event, insofar as the applicant has proven that he was unable to do the work in question for other disability-related reasons (i.e. pain and his need to use crutches), it has not been necessary for me to decide this issue in order to determine that the termination of the applicant’s employment was discriminatory.

REMEDY

50Section 45.2(1) of the Code establishes the Tribunal’s remedial authority in this case:

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

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

51In this case, the applicant seeks monetary compensation in the $10,000 to $20,000 range for the injury to his dignity, feelings and self-respect. The applicant does not seek monetary compensation in respect of any lost wages arising out of the termination of his employment. This is because, as it turned out, the applicant’s disability would have prevented him from ever returning to active employment with the respondent.

52That said, the applicant points out that the fact that he would have been ultimately unable to return to work was unknown at the time the respondent terminated his employment. On the contrary, the applicant submits that, at the time his employment was terminated, the applicant was planning to have surgery on his knee and hoped that he would recover sufficiently to return to work with the respondent.

53Against that backdrop, the applicant testified that he was shocked when the respondent terminated his employment. He testified that he felt that he “did not deserve” the callous treatment that he received from the respondent and that his dismissal was very stressful. The applicant testified that the respondent should have talked to him about the situation before terminating his employment in April 2010. The applicant testified that, if the respondent did not believe him when he said that he was unable to do the work in question (which he assumes it did not, based on its actions), the respondent should have asked him for a letter from his doctor. Instead, the applicant testified, the respondent showed no concern for him at all. He testified that it was “not humane” for the respondent to treat the applicant the way it did, after nine years of work. The applicant also testified that he felt as though the respondent blamed him for “ruining” the company, by getting injured and going on WSIB benefits. He testified that, whereas everything was great while he was well and at work, once he was injured, everything turned “upside down”. According to the applicant, the April 2010 termination of his employment “ruined his life”. He testified that whereas he “never took a pill” before this happened, he now does not lead a normal life. In this regard, the applicant submitted psychiatric reports at the hearing indicating, among other things, that the applicant has been suffering from significant depression and other mental health problems since around April 2010. Although the reports suggest that these problems relate primarily to the applicant’s disability and inability to work, the applicant testified that he feels that his mental health problems started with the termination of his employment.

54In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52-54, the Tribunal summarized the principles on which monetary compensation for injury to dignity, feelings and self-respect is awarded:

The Tribunal’s jurisprudence … 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…

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…

55Having considered the matter carefully, and taking into account the relevant principles, I find that it is appropriate to order the respondent to provide the applicant with the sum of $15,000.00 as monetary compensation for the infringement of his right to be free from discrimination and for the injury to his dignity, feelings and self-respect.

56In my view, this substantial amount is warranted in order to compensate the applicant for the significant injury to his dignity, and feelings and self-respect caused by his being turned out of a position that he had had for many years, just because of his disability, at a time when the applicant still hoped and expected to return to work. In coming to this conclusion, I recognize that the business that employed the applicant may have changed hands over the years. However, this does not change the fact that, from the applicant’s perspective, this was a full-time job that he had been in for a number of years and to suddenly lose it was very serious. The applicant’s particular emotional difficulties also weigh in favour of a substantial award. Even if the applicant’s depression was related more to his disability and physical inability to work than the termination of his employment per se, at a minimum, the termination came at a time when the applicant was particularly vulnerable and significantly injured the applicant’s dignity and feelings.

57On the other hand, it must be borne in mind that what the applicant lost in this case was a job that he would not have been able to return to in any event, because of his disability, regardless of the discriminatory conduct. In my view, this factor militates against an order for monetary compensation at the higher end of the range requested by the applicant.

ORDER

58The Tribunal orders as follows:

a. Within 30 days of the date of this Decision, the respondent will pay the applicant $15,000.00 as monetary compensation, together with prejudgment interest on this amount at the applicable rate under the Courts of Justice Act, R.S.O. c. C.43, from April 12, 2010 to the date of this Decision;

b. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.