HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Halliday
Applicant
-and-
Van Toen Innovations Incorporated and Geoffrey Van Toen
Respondents
DECISION
Adjudicator: Maureen Doyle
Indexed as: Halliday v. Van Toen Innovations Incorporated
APPEARANCES
William Bruce Halliday, Applicant
Sharan Basran, Counsel
Van Toen Innovations Incorporated, Respondent
No one appearing
Geoffrey Van Toen, Respondent
No one appearing
Introduction
1This is an Application filed on October 26, 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. By way of a later amendment, he also included an allegation of reprisal, which he alleged occurred when the personal respondent uttered a death threat to him due to the fact he had filed this Application with the Tribunal.
2The applicant alleges that he provided confidential information to the respondents regarding his addiction and that they spread word of his disability, both to another individual working for the respondent company and to contacts at automobile dealerships outside the respondent company, with whom he had conducted business. The information provided by the respondents was provided in a way which disparaged the applicant and which he claims caused him embarrassment and loss of dignity. He also seeks damages in respect of the impact of the reprisal. By way of remedy, he seeks $7920 in financial compensation for lost commission from November 18, 2009 to February 18, 2010 and $25,000 in compensation for injury to feelings, self-respect and dignity.
3One Response was filed on behalf of the corporate respondent and the individual respondent. The Response identifies Charles Van Toen as the contact person and “Chairman” of the respondent company. The respondents submit that the applicant was not an employee of the respondent company, but rather, was an independent contractor. They assert that the applicant was paid “on a commission basis and was responsible for his own expenses etc.” They submit that he was free to sell any other products “as long as they were not represented as part of the TransDeal.ca product line and [he was] prohibited from selling a competitive product”. They deny discrimination and state that after the applicant disclosed his addiction, they were impressed that he was turning his life around and assert that they supported him in his efforts. The respondents filed no amended Response addressing the amendment to the Application which included an allegation of reprisal.
4At an early stage in these proceedings, this matter was scheduled for mediation, but the respondents wrote to the Tribunal, advising that the mediation should be cancelled, due to a restraining order prohibiting the individual respondent from being within the applicant’s proximity. The Tribunal issued a Case Assessment Direction (CAD) on May 30, 2011, directing the parties to provide documentation with regard to the restraining order and with regard to the criminal proceedings associated with it. The CAD also directed the parties to file submissions regarding the question of whether the Application should be deferred pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure if there were ongoing criminal proceedings, and regarding the question of whether the matter should be held in abeyance until the restraining order was no longer in effect or had concluded.
5The parties provided further information and made submissions pursuant to the May 30, 2011 CAD and ultimately on October 4, 2011, following a court appearance and the September 1, 2011 issuance of a peace bond, the Tribunal issued a CAD, directing that as the peace bond provided an exception for attendance at legal proceedings, this matter would be processed in the normal course and would be scheduled for hearing.
6The Tribunal sent a Notice of Confirmation of Hearing to the parties on January 17, 2012. It stated, in part, as follows:
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.
7The Notice was not returned as undeliverable.
8Counsel for the applicant confirmed that the respondents complied with their disclosure obligations pursuant to Rule 16.1 on February 16, 2012.
9The applicant filed a Request for an Order During Proceedings (RFOP) on April 13, 2012, in which he sought to amend his Application, adding the ground of reprisal, and to provide a Reply to the respondents’ Response. The respondents did not respond to the RFOP and on May 25, 2012, the Tribunal issued an Interim Decision allowing the Requests and providing a timeline for the respondents to file a Response to the amended Application. The Interim Decision was not returned as undeliverable. The Tribunal received no further Response from the respondents.
10Also on May 25, 2012, the Tribunal issued a CAD in which it directed the personal respondent to file with the Tribunal and deliver to the other parties, a copy of any documentation in his possession which related to the issuance of the September 1, 2011 Peace Bond, including any documentation indicating any conditions upon which the Peace Bond was issued, including any admission by him. It also provided a time frame for the parties to make any submissions they wished with regard to the question of what implications, if any, the issuance of the Peace Bond may have for the fact finding process relating to the reprisal allegations at the Tribunal. The CAD was not returned as undeliverable. The individual respondent provided no documentation and neither respondent provided any other Response pursuant to the CAD.
11The remainder of the deadlines for the respondents to comply with their disclosure obligations under Rules 16 and 17 passed without receipt of any contact from the respondents.
12On July 5, 2012, the Tribunal issued a further CAD, in which, among other things, it directed the respondents to comply immediately with their disclosure obligations under Rules 16 and 17 and directed the individual respondent to comply immediately with the directions provided in the CAD of May 25, 2012. It advised them if they failed to comply with their obligations by July 9, 2012, the Tribunal “may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing”. The CAD was not returned as undeliverable. The respondents did not file the disclosure required by Rules 16 or 17, nor did the individual respondent comply with the direction stated in the May 25, 2012 and repeated in the July 5, 2012 CAD.
13On July 12, 2012, at 1:06 p.m., the day before the date scheduled for the hearing, the Tribunal received an email with an attachment from the respondents, stating that they were “unable to respond coherently to Mr. Halliday’s false and unsubstantiated allegations”. They indicated that both Geoffrey Van Toen and Charles Van Toen were currently under medical treatment for stress and depression and that Geoffrey Van Toen had had a period of hospitalization. They recounted the strain that the Application has resulted in for them, and stated that there is “still a restraining order” and that “appearing in the same court room for this case not only will breach the restraining order but will allow Mr. Halliday to further harass Geoffrey Van Toen”. They indicated that they did not have legal aid to assist them and that they have no money for legal services. They conclude:
Ideally, we believe this case should be terminated on the grounds of frivolous allegations. Failing that, we believe that it should be postponed until both Geoffrey and Charles. Van Toe nares [sic] psychological condition to deal with this situation coherently. For these reasons we are requesting a further six-month postponement of this case. During this time, we would like to see proof for Mr. Halliday’s allegations. Meanwhile, we are contemplating filing our own complaint against Mr. Halliday in the event that no proof is forthcoming. We feel we are the victims of a man who knows how to work the system and is doing just that for his own financial ends and to the emotional, financial and psychological detriment of the Van Toen family. Should you need documentation of the medical conditions of either Geoffrey or Charles Van Toen we will be happy to supply it.
14The Tribunal responded by email at 3:16 pm on July 12, 2012, confirming receipt of the respondents’ email and stating:
The parties are advised that the hearing scheduled for Friday, July 13, 2012 will continue as scheduled. The Respondents can raise any issues they wish to address with the adjudicator at the beginning of the hearing.
The email was sent to the respondents at the email address they had used and was not returned as undeliverable.
15The Tribunal received a further email from the respondents at 4:35 p.m. on July 12, 2012, stating that “Unlike Mr. Halliday, we have a valid reason to not be present tomorrow,” and that this matter had at one point lead to Geoff Van Toen’s hospitalization. The email indicated that the respondents could not attend and “risk being harassed by Mr. Halliday”. The email indicated that they would provide medical information. They concluded that they “need time to get our case together” and stated that the applicant was responsible for ruining their lives.
16The Tribunal responded by email at 8:10 a.m. on July 13, 2012, stating:
The HRTO understands the concerns you have raised, however, as these concerns were raised so close to the hearing date the hearing will proceed as scheduled. Your email will be forwarded to the adjudicator. The HRTO expects and requires, under the Rules of Procedure, that parties be respectful and courteous of each other and the HRTO. The conduct of all parties will be taken into consideration at the hearing and steps will be taken to ensure all parties follow the Rules. Your attendance is still expected.
The email was sent to the respondents at the email address they had used and was not returned as undeliverable.
17The hearing was convened on July 13, 2012. The respondents were not in attendance, and as is the practice of the Tribunal, the matter was held down for thirty minutes, until 10 a.m.
18No further communication was received from the respondents regarding their failure to attend the hearing.
19Counsel for the applicant made submissions that the matter should proceed in the respondents’ absence. She submitted that the Tribunal has required more of parties than simply asserting medical conditions without providing medical evidence that they are currently suffering from a condition which prevents them from attending and participating in a hearing. She cited previous Tribunal decisions Taylor-Wright v. York University, 2009 HRTO 989, Ruffolo v. Focus Assessments, 2011 HRTO 682, Vizcaya v. University of Toronto, 2009 HRTO 2128, and Palangio v. Cochrane (Town), 2010 HRTO 1278.
20The respondents made no formal request for an adjournment and in any event, their emails indicate no emergency or other concerns which might be considered “exceptional circumstances” warranting an adjournment. Their emails indicate that they did not wish to attend the hearing set for July 13, 2012 for several reasons. They indicate that they do not have legal counsel; they indicate they are stressed; they indicate that they do not believe the applicant and feel he should have to prove his case; they indicate that there are health reasons to consider; they also seek to rely on the Peace Bond which they say would be violated if they attended at the hearing; they state that they need more time to prepare their case and; they state that they are fearful of being harassed by the applicant at the hearing. To be clear, no medical evidence or evidence of a Peace Bond other than the one addressed in the October 4, 2011 CAD, was ever provided to the Tribunal.
21I was satisfied that the respondents had received the initial Notice of Hearing and that in response to their emails of July 12, 2012 they had received notice in three separate emails from the Tribunal that the hearing would proceed and that they must attend and would have the opportunity to raise their concerns with the adjudicator at that time. In the circumstances, I determined that it was appropriate to proceed with the hearing in the absence of the respondents. In making this determination, I had regard to the factors above as well as the respondents’ repeated failure to comply with directions from the Tribunal in the past, and the fact that despite having some six months notice of the scheduled hearing date they had not contacted the Tribunal until less than 24 hours before the hearing was scheduled to commence in order to raise their purported concerns (concerns which I have noted above were not supported by any evidence) with respect to attendance. The possible consequences of their failure to attend the hearing were known to the respondents when they made their choice not to attend, which was one of a series of choices to ignore the Tribunal’s process. In the circumstances, no further notice or warning would be appropriate and the hearing proceeded without them in attendance.
NATURE OF THE WORK AND THE APPLICANT’S RELATIONSHIP WITH THE CORPORATE RESPONDENT
22The applicant worked for the respondent company as a sales agent, or “Vehicle Locating Specialist”. The respondent company has a website, TransDeal.ca, and its business is locating automobiles fitting its clients’ requirements and working to obtain preferential pricing for them. It arranges an appointment for the client with a car dealership where the client concludes the contract of purchase with the dealership and arranges to take possession of the automobile from the dealership.
23The role of the sales agents associated with the respondent company is to receive “leads”, or client names and contact information, from the respondent company, and to contact the leads in order to obtain further information from them, including the type of vehicle they require. The sales agent then uses his or her “contacts” at automobile dealerships to attempt to obtain the automobile the client seeks at the most favourable price. The “contacts” are senior sales personnel or principals at automobile dealerships. Once the sales agent has located a vehicle at an acceptable price, the sales agent then arranges an appointment for the client at the dealership, where the client concludes the contract for the purchase of the vehicle. Once the client signs a contract for a vehicle, the dealership remits a certain payment to the respondent company, and the respondent company pays a percentage of this as commission to the sales agent. The sales agent never invoices the dealership directly, but instead receives his compensation from the respondent company. The applicant was always paid by cash or cheque by the corporate respondent.
24The applicant introduced into evidence a copy of an email, dated November 26, 2009, attaching an April 6, 2009 email from Geoffrey Van Toen “To all TransDeal.ca ‘Agents’”. It set out several “principles” including an instruction that if ordering business cards, they must list the respondent company’s TransDeal phone number and website, and his TransDeal.ca email address. The email also instructed the applicant and other sales agents not to list his cell phone number on any business card, but the applicant testified that the individual respondent had orally instructed him to use his personal cell phone, as the respondent company’s telephone number was simply equipped with a mail box. The email also forbade “outside deals”, and instructed sales agents that even if they generated their own leads through family or friends, those leads must be “run through” TransDeal.ca. It also stated that all leads must be contacted within 24 hours of receiving them, unless the respondent company was advised that it was not possible for the agent. It advised that the respondent company would meet with the sales agents once per month to review all leads. It also advised that sales agents were responsible for following up regarding payment, though the applicant testified that his role was finished when the car was sold and that in fact, it was Geoffrey Van Toen’s responsibility to pick up cheques from dealers. The email also indicated that sales agents were not to email new car prices without permission from Charles Van Toen. It indicated that contravention of the “principles” would result in termination of the contract with the sales agents and possible legal action.
25The applicant testified that each morning, he checked his email to see what leads had been assigned to him. He would then go to his full time job in construction, returning home at approximately 4 pm. He testified that on his lunch hour and as soon as he returned home, he would phone or email leads, depending on the type of contact information provided. He testified that he did this work approximately 6 hours per day, 5-6 days per week. He testified that it was very important to follow up with leads as quickly as possible, because these were typically people who were keen to purchase a car within the next few days. When corresponding by email with the leads he had been provided, his email address included the corporate respondent’s name and the signature line included a link to the corporate respondent’s website. He testified that each day, he was in contact with the personal respondent, to keep him abreast of his dealings with the leads he had received in the previous few days. He testified that when a contract was signed at the automobile dealership, he was responsible for advising Geoffrey Van Toen in order for him or Charles Van Toen to send an invoice to the automobile dealership. He testified that both Charles and Geoffrey Van Toen were active managing the business, but that the direct supervisor with whom he had daily contact was Geoffrey Van Toen.
26The applicant also testified that he was hired by Geoffrey Van Toen on or about February 1, 2009, and that when he first began working with the respondent company, he was given the names of 3 “contacts” at dealerships. He testified that by the time he finished working with the respondent company, he had developed approximately 25 contacts. The applicant testified that good “contacts” with automobile dealerships are vital to success, as the business is fast-moving and sales agents need strong relationships with their contacts to ensure a quick call-back from the automobile dealership. He testified that he developed contacts by “cold calling”, saying he was calling on behalf of TransDeal.ca, educating them about the service offered by TransDeal.ca and seeking the best price. He testified that he was required to share his contacts with the respondents for use by other sales agents also at the respondent company.
27The applicant testified that the contacts at the automobile dealerships were all senior people such as sales managers, general managers or even principals. He testified it is a small community and that they were all aware of each other and relied upon each other due to dealer trades. He described his relationship with them as “very personal” and testified that they trusted him as a professional sales agent. He testified that they were aware that he was always prepared and that when a client came to them from him, it was a strong sales lead. He testified that he followed up on his leads for his contacts, calling them the day before they were to go to the dealership in order to confirm their appointment. He testified that he would go the extra distance to make it an easy, smooth transaction for all. He testified that both contacts and clients said he was the “best guy” they had and he believes he made the process enjoyable. He testified that the contacts would not take a call from someone if they did not consider the person professional, but that contacts returned his calls right away. He testified that people used to thank him profusely and that he got a lot of referrals. He testified that he had a good sales record.
THE LAW
28Sections 3, 5, 8, 9 and 10(1) and (3) and 46.3(1) of the Code read as follows:
- Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
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.
5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
10(1) In Part I and in this Part,
“disability” means,
(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; (“handicap”)
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
10 (3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability. 2001, c. 32, s. 27 (4).
46.3(1) For the purposes of this Act, except subsection (2), subsection 5(2), section 7 and subsection 46.2, any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
29Though the respondents take the position that the applicant was not an employee of the corporate respondent, the applicant argues, and I agree, that the language of the Code is sufficiently broad to protect the applicant in his relationship with the corporate respondent.
30The applicant relies upon several cases, including Sutton v. Jarvis Ryan Associates et al., 2010 HRTO 2421 (“Sutton”) at paragraphs 95-97, where the Tribunal considered principals which should inform the Tribunal’s interpretation of the words “with respect to employment”, citing the Board of Inquiry decision Payne v. Otsuka Pharmaceuticals Co. Ltd., 2001 CanLII 26231 (O.N. H.R.T.):
The Supreme Court of Canada has consistently held that human rights statutes across Canada should be given a fair, large and liberal interpretation to advance and fulfill their purposes of preventing discrimination against identifiable protected groups: see Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.); Action travail des femmes v. Canadian National Railway Company, [1987] 1.S.C.R. 1114.
The applicant alleges a contravention of the Code and, along with other sections, a breach of section 5(1), which states that “every person has a right to equal treatment with respect to employment without discrimination because of … sex”.
As the Board of Inquiry stated in Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON HRT), 2001 CanLII 26231 (ON H.R.T.),
Section 5(1) does not state that “no employer shall deny equal treatment to an employee”. Indeed, there is no definition of “employment” in the Code. Rather, section 5(1) involves discrimination “with respect to employment”. “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship. In Canada (Attorney General) v. Rosin (1990), 1990 CanLII 12957 (FCA), 16 C.H.R.R. D/441, the Federal Court of Appeal, in upholding the decision of the Canadian Human Rights Tribunal, stated at D/449:
Remembering the broad and liberal interpretation that must be taken to this type of legislation…[C]ourts have interpreted the words [i.e., “employ” and “employment”] broadly, finding employment relationships to exist in this context where in other contexts they might not have so found.
An infringement of section 5(1) can occur between an employee and other persons who are not “employers” in the traditional sense. For example, a trade union may be held liable in two ways: where it caused or contributed to the discrimination by participating in the formulation of the work rule that has a discriminatory effect on a complainant; or if it obstructs or blocks the efforts of an employer to accommodate: see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at 990-991.
In the Board’s view, there must be some nexus or link in the chain of discrimination between the respondent and the complainant. The Board is satisfied that this nexus “appears” to exist with regards to the parties that it has decided to add in the instant motion. [Emphasis added.]
31The applicant submits that the above-noted facts with respect to the applicant and his relationship to the respondents support a finding that he was an employee of the corporate respondent.
32In view of the fact that the applicant was not permitted to perform the relevant work for anyone other than the corporate respondent, including himself, and that he was dependent upon the corporate respondent for assignment of work, collecting payment from the automobile dealerships and remitting commission to him and setting his rate of commission, and considering that the applicant was expected to hold himself out as a representative agent of the corporate respondent, he was required to share his business contacts with other sales agents of the corporate respondent, and his work was supervised by an individual at the corporate respondent, I find that the applicant was, for purposes of the Code, in an employment relationship with the respondent company and I find that this Application is properly framed as an Application regarding allegations of discrimination in employment.
THE ALLEGATIONS
The Applicant’s Addiction
33The applicant is a recovering addict, being addicted to crack cocaine. He testified that a psychologist diagnosed him as a “Chronic Addict” and that he has been addicted for approximately 23 years. He testified that he has participated in 14 residential addiction recovery programs over the years and that he has relapsed many times over the years, having been hospitalized on a number of occasions. He has experienced periods of homelessness and joblessness and has been estranged from family and friends as a result of his addiction. He testified that his addiction has had a major impact on his life and that it “cost everything”. He testified that it takes constant vigilance to remain clean and sober. He testified that in his experience, people believe that as an addict, he must lack willpower and not want to recover. He testified that people pull away from relationships with him.
34He testified that he had been clean and sober for 8 months when he began his work for the respondent company, and except for two weekends in the late summer in 2009, he remained clean and sober for the duration of his employment at the respondent company. He testified that he got along well personally with the personal respondent and that on one occasion about one month after his hire, the personal respondent invited him out for a drink. Given his addiction, he refused, but he explained to the personal respondent that he was refusing to go out for a drink because he was a recovering addict. He testified that over the course of time, he told the personal respondent all about his history as an addict, including periods of homelessness. He testified that the personal respondent was supportive of him at the time, and that he indicated how impressed he was by the applicant for having turned his life around. The applicant also testified that he knows that the personal respondent told his father, Charles Van Toen about the addiction, as Charles Van Toen approached him about the possibility of speaking to a group of high school students about his experiences as an addict. He testified that Charles Van Toen appeared very happy for him also, and that he was very supportive of his recovery.
35He testified that the two weekends in late summer 2009 when he relapsed, it did not interfere with his work as automobile dealerships are closed on Sunday. He testified that he told Geoffrey Van Toen and that shortly after the first relapse, Geoffrey Van Toen owed him money and told him he would come to his house to pay him. When he got there, the applicant testified, the personal respondent suggested that they go to a bank machine. He testified that once they were in the car, Mr. Geoffrey Van Toen told him unless he checked into a detox program, he would not get paid. The applicant testified that Mr. Geoffrey Van Toen took him to two detox sites, over his protestations as he tried to explain that admission to detox programs does not work like that. He testified that he “went along” because he wanted to get paid, but that he felt like he was being kidnapped. He testified that at the detox sites where they stopped, personnel there explained to the personal respondent that this was not the way admissions were done, and that after about 1 ½ hours Mr. Geoffrey Van Toen drove him home and gave him partial payment. He testified that the personal respondent told him he would pay him the remainder when he could. The applicant testified that he found the experience “bizarre” and that shortly after that he “got back into recovery” and began going to meetings again.
36The applicant’s counsel asked him about the respondents’ assertion in their Response that “On at least 2 occasions around July/August 2009, Geoffrey Van Toen interceded in paying money to drugs [sic] dealers for Mr. Haliday”. In particular, the respondents asserted that on one occasion the applicant had called Mr. Van Toen to “come to a ‘crack house’ to pay a ‘resident’ to retrieve his laptop” and that Mr. Van Toen did so. They also asserted that on a second occasion, the applicant gave Mr. Van Toen’s cell phone number to a dealer “who then called wanting $75 to return Mr. Halliday’s phone to him” and that Mr. Van Toen did this also. They also state that they helped the applicant in other ways, including driving him downtown to get his bike where he had left it and driving him to a local detox centre. The applicant denied these events, with the exception of the incident described above where Geoffrey Van Toen drove him around seeking to have him admitted to a detox centre.
37The applicant testified that neither Geoffrey nor Charles Van Toen had ever raised concerns with him regarding his performance. He testified that prior to November 2009, neither of them had ever accused him of dishonest conduct of any kind, or of making deals “on the side”.
November 14, 2009 Telephone Call
38The applicant testified that on November 14, 2009 he received an unusual telephone call from Geoffrey Van Toen, asking if he had any deals to close that week. He testified that he told Geoffrey Van Toen that he had a “couple of things coming up”. He testified that after that call, he sent an email to a fellow sales agent for the corporate respondent asking her if she had a good contact at a Lexus dealership. He testified that she called him, gave him the information and told him she had heard great things about him. He testified that she also advised him that she was uncomfortable as she had not been paid in one month. He testified that he had not been paid in a couple of weeks also and he assumed that there was a cash flow problem which had prompted Geoffrey Van Toen’s unusual call to him. As a result, he called Geoffrey Van Toen and told him that the call now made sense to him, in light of the fact he had not been paid in a while. He testified that he told Geoffrey Van Toen to “just be honest” and he would “work with him”, but that Geoffrey Van Toen seemed to take offense and berated him on the telephone, calling him a “fucking crack-head”. He testified that Geoffrey Van Toen said the company had done everything to help him and that he would get paid when he got paid.
39The applicant also introduced emails between himself and Geoffrey Van Toen from that day, in which the applicant states what he is owed and Geoffrey Van Toen responds that the email is “insulting”, says he will get paid when the company gets the cheques, and indicates that they “need to have a chat”. The applicant then sent another email, asking why Geoffrey Van Toen was taking things so personally and stated a concern with not being paid on time. In response, Geoffrey Van Toen stated that the applicant had made the company some money that month, but other than that, had not made them any money in months.
40The applicant testified that when Geoffrey Van Toen called him a “crack-head”, he was hurt and shocked. He testified that he had been clean for 4 months at that point and this felt like a slap in the face. He testified that there is a very strong stigma associated with the term “crack-head”.
November 18, 2009 Email To Fellow Sales Agent
41The applicant also introduced an email dated November 18, 2009 which was forwarded to him by the sales agent with whom he had spoken regarding a contact for selling Lexus and regarding delays in getting paid. The forwarded email was sent to her from the email address of Geoffrey Van Toen. In it, he referred to other sales agents, including the applicant, about whom he said the following:
…Since then rest of staff has blew us off and some dealers as well – we suspect Bill has been stealing from us for months (he is a former crack head – not to put that against him) who is actually paid up to date and are going back and calling leads to varify [sic].
42The applicant testified that he was stunned that Geoffrey Van Toen was telling another employee that he was a “crack-head” and a thief, and he said that people assume that crack-heads are thieves. He said that he felt discriminated against, embarrassed and ashamed, as his co-worker had simply known him as a great employee and now she had been told about his disability. He testified that he felt he could not trust the respondent, knowing that he was publically calling him a “crack-head”. He sent an email to Geoffrey Van Toen on November 18, 2009, resigning effective immediately. He testified that he also sent emails to key automobile dealerships with whom he had existing deals, advising them that he was no longer representing TransDeal.ca, as he felt that he owed it to his contacts to inform them. He testified that he had never signed any “non-compete” clause and that he also wanted to keep his contacts open for future networking.
43In a November 19, 2009 email to Geoffrey Van Toen, the applicant advised him that he was very disappointed with the way things turned out, but that “after reading the email that you sent [to the other sales representative] I hope one day you will understand why I am acting the way I am. This could have all been avoided had you not said the things you said to her about me”. He went on to advise that he would pay the usual 20% to the respondent company should any business come his way as a result of the respondent’s referrals, but that until the respondent company’s debt to him was paid, he would invoice the automobile dealerships directly. He also advised that once the respondent company’s debt to him was paid, he would forward “any referrals” directly to Geoffrey Van Toen and he could “do with them as [he] wish[es]”.
44On November 19, 2009, the applicant also wrote an email to Charles Van Toen, advising him that he had resigned and telling him about the email to the fellow sales agent. He also asked to be paid the money owing to him. On November 21, 2009, Charles Van Toen sent the applicant an email which he indicated was a confirmation of a telephone message he left for the applicant. He stated that Geoffrey Van Toen’s email to the applicant’s co-worker “should not have happened and we apologize for it” and stated that any deals currently being paid or negotiated were the property of the respondent company and “further action” would be taken if the applicant attempted to “act outside the contract”. He stated that the applicant’s commission would be paid as soon as possible.
Emails To The Applicant’s Business Contacts
45The applicant testified that around November 19, 2009, he began to get calls from some of his contacts at dealerships asking him about some emails they had received. He testified that they subsequently forwarded him copies of the emails. In particular, one email was dated November 18, 2009, was from Geoffrey Van Toen with a signature line “Founder Van Toen Innovations Inc.”, was to “undisclosed recipients” and stated as follows:
Please be advised Bill Halliday no longer works for TransDeal.ca if he is working any deals with you we need to know about them. There is possible legal action against Bill from our company.
We will be calling all of his clients to confirm if he has been paid direct by any dealers. We had worked with Bill to curtail his crack addiction helping him into rehab last year among other things. He has now slipped and made short cuts with a few dealers and clients. He has also made physical threats towards myself and our company.
46The applicant also received an email chain from one of his contacts, in which his contact informed Geoffrey Van Toen that the automobile dealership had sent out “no personal cheques”, to which Geoffrey Van Toen had replied with “Thanks John”.
47The applicant testified that he realized things were “out of control” when he received copies of the above-noted November 18, 2009 email. He testified that Geoffrey Van Toen knew all of his contacts and that though he was unsure who else had received the email, he had reason to believe that all of his contacts were included in the “undisclosed recipients”. He also testified that he concluded from the email chain regarding personal cheques that Geoffrey Van Toen had called his contact to see if he had paid the applicant personally.
Post-Resignation Communication
48On December 4, 2009, the applicant emailed Geoffrey Van Toen, saying that perhaps one day Geoffrey Van Toen would tell him why he said what he did “to the others”. That day, Geoffrey Van Toen responded, saying “Not sure what you are talking about”, offering the applicant the opportunity to speak on the phone with Charles Van Toen, stating that the company has been harmed and that “[t]he whole situation has been hurtful to all parties involved”. The email went on to discuss deals and protest that the sales representatives had all tried to ruin the company.
49On December 5, 2009, the applicant sent an email to Geoffrey Van Toen, stating that he had never tried to damage the respondent company, but that his reputation in the car industry had been damaged as a result of Geoffrey Van Toen’s comments, and advising him that he had been affected emotionally and was seeking professional help to deal with his pain and suffering. He also stated that his source of income had been directly affected by the emails and asked him to stop threatening legal action.
50An email chain between the personal respondent and the applicant, dated January 18, 2010, was before me in evidence. The personal respondent started the chain, indicating that a vehicle for an individual named Roman was due to come in, in mid-February and that there were three referrals “being worked for” the applicant and also indicating that the respondents would keep the applicant posted. The applicant thanked the personal respondent, and the personal respondent replied by indicating that the corporate respondent would pay the applicant “50/50” on the deal involving Roman’s vehicle and stating “I realize how hard you worked and Roman was happy with you”. The applicant sent another email thanking the personal respondent and then the personal respondent wrote to the applicant in which he stated that business was booming and that his father, Charles Van Toen, wanted the applicant to work for them again. The applicant testified that after what had happened, he did not feel he could work for the respondent company again and wrote to Geoffrey Van Toen the next day, stating “thanks for the offer I will keep it in mind should things change on my end”.
51He also introduced an October 1, 2010 email Geoffrey Van Toen sent to him while he was in detox in which Geoffrey Van Toen uses foul language, vilifies him, gloats over the failure of his business, calls him disloyal and tells him to get help and to “Check yourself in and stay there for an extended period of time. There is a reason everyone hates/given up on you”. He told the applicant that part of his “12 steps should be a sincere appology [sic] to us”. The applicant testified that this was when he decided to file his Application with the Tribunal, as even though 9 months had passed, Geoffrey Van Toen was still ridiculing him.
Post-Resignation Events
52The applicant testified that for the three months immediately following his resignation, he worked to set up his own business as an automobile broker. He testified that over that time period, in addition to maintaining his full time job, he worked building his business, building a website and learning about doing business on the internet. He testified that he finished putting the new business together February 18, 2010.
53The applicant testified that what happened during his employment for the respondent company had a significant impact on him. He testified that when he started his own business he was under a great deal of stress. He testified that he was overwhelmed mentally and emotionally and by his financial situation. He testified that the pay he would have received from the respondent company would have helped him make ends meet, but instead, by April 2010 he was in arrears to creditors and was late with his rent.
54The applicant testified that in the months following February 18, 2010, he was under a good deal of pressure, working 18 hours per day and running his own business. He testified that he began to cut back on support meetings and began using drugs and that by April 2010 he was “back into full-blown addiction”. He testified that by June 2010 he had lost everything, including his business and his day job and he was homeless again. He testified that he resigned from a company where he was doing well. He testified that he suffered psychologically and that he checked himself into a long term detox facility.
Reprisal Allegations
55The applicant testified that on May 5, 2011, he was leaving the patio of a coffee shop when the personal respondent accosted him. He testified that the respondent approached him aggressively and threatened to kill him, saying that he never should have filed an Application with the Tribunal. He testified that the respondent repeatedly tried to provoke him to become physically aggressive. He testified that the personal respondent crossed the street, and held up his phone while yelling to the applicant that he had a “huge surprise” for him after the Tribunal process was over. He testified that he was frightened and that he left the area and called 911. The police came and took his statement. He testified that he also told the police about an occasion approximately one month previous when he saw the personal respondent on the street and he said he would kill the applicant. The applicant indicated that he had not reported the earlier encounter to police as he had not taken it seriously at the time. The applicant testified that the police also spoke to several witnesses at the coffee shop and that the police called him later and advised that they had arrested Geoffrey Van Toen for uttering death threats. He testified that this was the incident which led to the criminal trial and Peace Bond ordering Geoffrey Van Toen not to come near him. He introduced a copy of the police report he received into evidence.
Impact On The Applicant
56The applicant testified that after the email to his contacts, he noted that when he attempted to phone them regarding the leads he still had, the way they responded to him had changed. He testified that their tone of voice had changed and that a “seed had been planted”. He testified that one contact would no longer return his calls and another was very hesitant with him. He testified that he was full of shame, self-conscious, and felt that his dignity had been tarnished. He was concerned that people were judging him and questioning his integrity and whether they wanted to do business with him anymore. He testified that there is a strong stigma associated with being identified as a “crack-head” and he felt his contacts would never look at him in the same way. He testified that though he would previously have felt confident, he was now too embarrassed and ashamed to ask any automobile dealership for a job. He remarked that it is a “tight knit industry” and that “they talk”.
57He testified that after the personal respondent sent emails about him and his disability, he felt embarrassed socially and professionally and began to isolate himself. He identified isolation as something which played a major role for him in his relapse into addiction. Previously, he stated, he had felt connected to the business world, but that after being alone too much he simply stopped reaching out for help. He testified that he had previously felt proud of himself for his recovery, but that after the public emails about him and his disability, he began to feel like a fraud. He testified that his sleep and his interest in food were affected, he became depressed, and he began using drugs again to escape his pain.
58The applicant testified that he would not have resigned from the corporate respondent but for the breach of his confidence and he would have continued to earn commission from the corporate respondent. The applicant introduced a list of clients for whose deals he had received commission in August and September 2009. The total amount paid to him, according to his list, was $5280.
59He testified that the October 2010 email from Geoffrey Van Toen and the incident in May, 2011, caused him to become judgemental about humanity. He testified that he has become cautious about who he talks to and the threat on his life has made him very nervous.
60The applicant testified that the personal respondent’s death threat has left him frightened, as he is afraid that Geoffrey Van Toen will come after him. He testified that he has become quite nervous and aware of his surroundings when he is out, as the personal respondent is a “big man”. He testified that after the encounter in May, 2011, he regretted having filed an Application at the Tribunal and was not sure if he should proceed with it, as his life was being threatened.
61The applicant testified that he is clean and sober and that he is currently working to complete his Bachelor of Social Work degree.
62The hearing of this matter concluded following the applicant’s evidence. I determined it would be appropriate to provide the parties, including the respondents who had chosen not to participate in the hearing and who had accordingly adduced no evidence in support of their position, with an opportunity to make closing written submissions. The Tribunal issued a Case Assessment Direction (CAD) setting out dates for the parties to make their written submissions. As noted above, the respondents did not attend at the hearing and therefore did not provide any evidence by way of oral testimony. The evidence of the applicant was accordingly largely uncontradicted except to the limited extent that the respondents provided their own account by way of written submissions contained in their Response and closing written submission in response to this CAD (I deal with this issue in more detail below).
The Parties’ Submissions
63Counsel for the applicant submits that the applicant’s disability of long-term and “chronic” addiction to crack cocaine fits the definitions in s. 10(1) and 10(3) of the Code. She submits that he has an “objective disability” and also that there is a “subjective component” to his disability which is based on societal prejudices around drug related addiction. She cites Entrop v. Imperial Oil Ltd., 2000 CanLII 16800 (ON CA), [2000] O.J. No 2689 at paragraphs 88 and 89 and submits that the Court of Appeal has recognized substance abuse as a “handicap” (the equivalent language for “disability” in the Code at that time) and that perceived abuse as well as actual abuse is included in the definition of “handicap”. She also cites Quebec v. Montreal et al. (Mercier), 2000 SCC 27, arguing that here, as in that case, the applicant has a disability which does not cause “functional limitations”, but “[r]ather, the aspect of disability engaged in this case are the personal respondent’s perceptions and stereotypes”.
64Counsel for the applicant submits that the applicant was subject to adverse treatment, at least in part due to his disability. She submits that there is a stigma associated with addiction and she cited Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 as a case where the Court of Appeal recognized that people with addictions experience great social stigma and prejudice. She also cites articles, including a literature review from Centre for Addiction and Mental Health (CAMH), “The Stigma of Substance Use: A Review of the Literature”, from August 18, 1999, which discusses the stigma associated with addiction. Counsel for the applicant submits that the applicant was subjected to disadvantageous treatment which perpetuated the pre-existing stigma, prejudice and discrimination specific to persons with drug-related addiction.
65She submits that when the applicant inquired about payment of his commission in a telephone conversation with Geoffrey Van Toen on November 14, 2009, Mr. Geoffrey Van Toen used the applicant’s disability as a weapon to demean, embarrass and discredit him. She submits that in saying “You’re a fucking crackhead” and in telling him he would get paid when he got paid, it was a “slap in the face”, in effect, telling the applicant that he is not an equal who can assert his right to wages like any other employee.
66With regard to the email Mr. Geoffrey Van Toen sent to the applicant’s co-worker, she submits that this was public disclosure of his disability in a derogatory way, as he included accusations which linked the applicant’s disability to dishonest activity and violence. She notes that the applicant testified that it had made him feel embarrassed and ashamed and that it was the main factor in his resignation from the corporate respondent.
67Counsel notes that the applicant testified that the emails had ruined his credibility with his contacts in the small community of automobile dealerships, as they would now view him as a “crack head” and question his integrity. She also submits that Mr. Geoffrey Van Toen used the applicant’s disability as a weapon to “destroy” him, as he knew of the applicant’s personal suffering associated with his addiction. She notes that the applicant testified that the response he received from his contacts at the automobile dealerships changed after the emails, the applicant was embarrassed, self-conscious and hurt, he started to isolate himself, he feared rejection, and he was anxious as he did not know the identity of all of the “undisclosed recipients”. She submits that these emails publically discredited the applicant, disclosing his disability in association with stereotypes associated with people with addictions.
68Counsel for the applicant also submits that the respondents did nothing to respond to or minimize the harm which had been caused by the emails, and notes that there was no retraction of the emails.
69The applicant’s counsel also submits that the November 14, 2009 telephone call and the November 2009 emails amounted to harassment contrary to the Code, as they were a vexatious course of conduct that was known or ought reasonably to have been known to be unwelcome and was based on disability. She submits that it was conduct which “invaded” his working conditions or atmosphere through the network of his contacts and that it resulted in a poisoned work environment.
70The applicant’s counsel submits that these incidents of derogatory labelling conjured up a negative portrait of the applicant due to his drug related addiction, and it reinforced the stigma and stereotypes associated with his condition in a public manner which humiliated him. She submits that this clearly amounts to discrimination on the basis of disability. She cites Knibbs v. Brant Artillery Gunners Club, 2011 HRTO 1032 (“Knibbs”) as a case where the posting of confidential medical information about an applicant was discriminatory because it stigmatized her and poisoned her work environment contrary to sections 5(1) and 5(2). She also cites Wiens v. West Telemarketing Canada, 2006 BCHRT 432 (“Wiens”) as a case where the context within which comments are made must be taken into account when considering whether the comments amount to discrimination. In that case, the B.C. Human Rights Tribunal found that the public nature of discussion about an employee’s need for washroom breaks humiliated the applicant and offended his dignity and as a result, constituted discrimination based on disability. She also cites Turner v. 507638 Ontario Limited et al., 2009 HRTO 249 (“Turner”), where the respondent’s repeated negative comments, in front of staff and customers, regarding the applicant’s mental health condition, was found to be discrimination on the basis of disability.
71With regard to the October 10, 2010 email from Geoffrey Van Toen, counsel for the applicant submits that it contained “egregious and demeaning comments about the applicant’s disability that were clearly discriminatory” and which were intended to degrade and belittle the applicant. She submits that the applicant had felt “re-victimized”.
72Counsel for the applicant submits that this is an appropriate case in which to find the corporate and personal respondents jointly and severally liable and she cites Knibbs and OHRC v. Farris, 2012 ONSC 3876 (“Farris”). In support of her submission, she notes that the personal respondent was a directing mind, being the applicant’s boss, and played a central role in the discriminatory conduct, Geoffrey Van Toen acted alone and independently, the reprisal was particularly egregious and Geoffrey Van Toen must bear a high level of culpability for his actions, the corporate respondent has not assumed responsibility for any acts or omissions of Geoffrey Van Toen, and the respondents have not complied with Tribunal Rules or orders. She submits that in Farris, the Court held that where managers and directing minds played a definite role in the creation of a poisoned work environment, personal liability may be appropriate. She submits that it was Geoffrey Van Toen who created the poisoned work environment and that he failed to correct the situation, though he was in a position to do so.
73The applicant’s counsel submits that as he resigned solely due to the discriminatory conduct of the personal respondent, an award of lost wages from the date of his resignation, November 18, 2009, to February 18, 2010 when his new business was launched, is appropriate. She cites Turner v. 507638 Ontario Inc., 2009 HRTO 249 (“Turner”) as a case where though the applicant resigned, the respondent’s actions were the direct cause of his resignation, and he did not resign voluntarily. Further, the applicant submits that he could not have returned to the workplace due to the subsequent emails to his contacts at automobile dealerships. The applicant submits that in setting up a business to replace his part time income from the corporate respondent, he adequately mitigated his lost commissions in comparable work. The applicant submits that as his records indicate earnings of approximately $2640 per month, it is appropriate to order payment of $7920 for lost earnings.
74The applicant seeks an award of $25,000 for injury to feelings, dignity and self-respect. His counsel cites Sanford v. Koop, 2005 HRTO 53 (“Sanford”), and argues that in assessing such damages, the Tribunal has looked at the impact on the applicant considering such factors as humiliation experienced by the applicant, hurt feelings, loss of self-respect, dignity, self-esteem, confidence, the experience of victimization and the seriousness, frequency and duration of the offending treatment. She submits that an award in the higher range is warranted as the applicant has experienced a high degree of emotional damage, pain, loss of confidence, shame and victimization through the public disclosure of and derogatory comments relating to his disability. Further, he lost his job and an important source of income, and the extreme financial pressure he experienced contributed to his relapse into addiction in the spring of 2010. Finally, she submits that the nature of the reprisal is “highly unique” and that the physical threats to the applicant were the “most serious form of reprisal imaginable”.
75Notwithstanding that the respondents had failed to participate in the hearing and had accordingly adduced no evidence, they none-the-less did provide joint written submissions in response to the Tribunal’s CAD. They re-stated their argument that the applicant was not an employee and submitted that the applicant had “voluntarily resigned”. They submit that he was not forced. Additionally, they submit that several of the applicant’s assertions are unsupported by evidence. In the remainder of their submissions, they attempt to provide “evidence” to contradict the evidence which was adduced through oral testimony and subsequently relied upon in the applicant’s written submissions. For the reasons below I would give little if any weight to these submissions as “evidence”, but none-the-less have reviewed and considered these submissions fully and reproduce them for the sake of a complete record. They allege that the applicant threatened the personal respondent and his family. They submit that the statement that the applicant was a good employee was not supported by evidence, and disagree with the applicant’s description of himself as a “low maintenance employee”. They repeat the assertions initially made in the Response to the effect that they had driven him to a detox centre and helped him leave “crack houses”. They assert that the applicant did not tell the personal respondent of his addiction, but that it was one of the applicant’s fellow agents who told the personal respondent. They asserted that the business experienced cash flow difficulties but that all agents were eventually paid. They also submit that there is “no supporting evidence of the so-called comments made by G. Van Toen”. They note that the applicant said he was “too embarrassed to walk into a dealership to get a job”, but they assert that he was not properly qualified for a job in sales in the automotive business. They submit that there is “no proof that harassment occurred post filing of the HRDC [sic] complaint” and they allege that the only reason the personal respondent accepted a “peace bond” was because it was “the easiest way to resolve the situation” and he did not want any further interaction with the applicant. They also submit that the applicant would not have continued working for the corporate respondent but for the email Geoffrey Van Toen sent to the other sales agent, as they allege that the applicant had registered a domain name for a competing business in August, 2009. They submit that there is “no evidence on which to base the ‘lost commission’”, and allege that it is unlikely he would have continued as an agent with the corporate respondent as it went through a period with “little or no business” and there were no agents “on board”. Further, they state “[w]hile not disputing the claim that certain derogatory comments were made we dispute the claimed impact of these”. They submit that aside from the applicant’s “unsupported comments, no evidence is provided to support either the financial or psychological/health impacts”.
Decision
76The applicant has a long-standing and chronic addiction to crack cocaine. In Entrop v. Imperial Oil, [2000] O.J. No. 2698, at paragraph 89, the Ontario Court of Appeal accepted the finding of a Board of Inquiry that drug abuse is a “handicap” and that it is “an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning.” In citing an earlier version of the Code, and its use of the term “handicap” rather than “disability”, it also accepted that drug dependence is a handicap. It found that “substance abusers are handicapped and entitled to the protection of the Code. I accept that after approximately two decades of addiction to crack cocaine, relapses and participation in numerous treatment programs, the applicant suffers from an addiction which amounts to a physical and/or mental disability under section 10 of the Code”.
77In Tranchemontagne, at paragraph 121, the Court of Appeal for Ontario took notice that “It is well-known that addicts…have been, and continue to be, the subjects of stigma and prejudice”. I accept the applicant’s evidence that he has experienced stigmatization related to his disability. I find that the applicant’s disability is one which is associated with stigmatization, making him vulnerable to negative stereotyping.
78The respondents chose not to participate in the hearing scheduled in this matter. At a hearing, the respondents have a clear means to explain and defend against human rights allegations through cross-examination of the applicant’s witnesses, presentation of their own evidence and in their submissions. The January 17, 2012 Notice of Hearing alerted the parties to the fact that if they did not attend the hearing, it may proceed in their absence and also that the Tribunal may determine that they were not entitled to present evidence or to make submissions. As noted above, given the history of the respondents’ failure to comply with Tribunal directives and rules, their history of making themselves unavailable and their last-minute emails to the Tribunal combined with their decision not to attend the hearing date despite clear communication from the Tribunal indicating that the matter would proceed, I determined that it was appropriate to proceed in their absence on the date scheduled for the hearing of this matter.
79In their written submissions, the respondents have attempted to introduce evidence and have submitted that there is “no evidence” regarding matters about which the applicant testified. In choosing not to participate in this hearing, however, the respondents have given up their opportunity to challenge the applicant’s evidence in cross-examination or to tender their own evidence, which would equally be subject to cross-examination. Accordingly, and although I have reviewed their written submissions, I am unable to accord any weight to the written submissions of the respondents to the extent that they seek to rely on those for the truth of their contents. In any event, I note that in their submissions they have made an admission that “certain derogatory comments were made”. Further, I note that they have not denied that Geoffrey Van Toen sent the above-described emails to the applicant’s fellow agent or to his contacts at automobile dealerships. Other than the applicant’s evidence regarding whether he was a good worker and regarding the impact on him, the only factual allegations they appear to dispute are those relating to what happened after the applicant filed his Application with the Tribunal.
80The evidence provided by the applicant in his testimony is uncontradicted; however, the applicant still bears the onus of proving his allegations. Applications under the Code are decided on a balance of probabilities. The applicant presented his evidence in a straightforward fashion, it was internally consistent, and I accept his evidence with respect to his allegations as accurate and truthful.
81There is no evidence before me to indicate that the personal respondent made any effort to ameliorate the situation. He has never apologized either for using the term “crack head”, nor has he apologized for sending the offending emails and publically humiliating the applicant. In fact, when the applicant wrote to him on December 4, 2009, seeking an explanation, Geoffrey Van Toen indicated no appreciation of the harm he had done, stating that he was “not sure” what the applicant was talking about and going on to complain about harm to the business and to state that “all parties” had been hurt.
82For the reasons below, I find that Geoffrey Van Toen discriminated against the applicant in employment on the basis of disability. His actions not only amounted to differential and discriminatory treatment on the basis of disability but created a poisoned work environment for the applicant. This amounts to an infringement of the applicant’s rights under s.5(1) of the Code. I also find that the personal respondent’s actions, for the reasons below, amounted to harassment in employment on the basis of disability and infringed the applicant’s rights under s.5(2) of the Code.
83The corporate respondent is liable for any discrimination in employment on the basis of disability under s. 5(1) of the Code by Geoffrey Van Toen, because of the vicarious liability provisions at s. 46.3 of the Code. Where the conduct of an employee or supervisor creates a poisoned work environment, the corporate respondent has a duty to investigate (see, for example, Harriott v. National Money Mart (“National Money Mart”), 2010 HRTO 353), the criteria for which was set out in Laskowska V. Marineland of Canada Inc. (“Laskowska”), 2005 HRTO 30.
84I also find that Geoffrey Van Toen was a directing mind of the corporate respondent and that the “organic theory of corporate liability” applies. This theory establishes that an organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization. Generally speaking, managers and central decision-makers in an organization are part of the “directing mind”. Even employees with only supervisory authority may be part of the “directing mind” if they function, or are seen to function, as representatives of the organization. On the evidence before me, Van Toen Innovations Incorporated was a closely run family business in which Geoffrey and Charles Van Toen both played key roles in the day to day operations of the company. I also note that, to the extent they did participate in this proceeding, the respondents consistently filed joint communications and submissions. Not only did Geoffrey Van Toen supervise the applicant and other employees of the corporation, but he was at minimum seen to and did function as a key representative of the organization. The significance of this is that even if the corporate respondent was not aware of all of the conduct of Geoffrey Van Toen it is none-the-less liable for this conduct to the extent it amounts to harassment because of disability in employment under s. 5(2) of the Code.
85There is evidence that Charles Van Toen, on behalf of the corporate respondent, offered an apology to the applicant on the personal respondent’s behalf, with respect to the email sent to his fellow sales agent, though in the same email, he asserted the corporate respondent’s ownership over any deals currently being paid or negotiated and threatened legal action against the applicant should he attempt to “act outside the contract”. Other than the use of the word “apologize”, there is nothing in this email which can be understood as a commitment to investigating or retracting or following up on the email to repair or minimize the damage done to the applicant’s reputation, or to repair the rupture in the employment relationship, but rather, it takes a confrontational stance with the threat of legal action. I find that in this context, the “apology” cannot be considered an attempt to recognize and address the discrimination or the poisoned work environment. Some of the criteria for an appropriate response by an employer to the creation of a poisoned work environment, as established in Laskowska (and see National Money Mart), include whether the employer conducted a reasonable investigation once it became aware of the poisoned work environment or complaint, whether it took the complaint or discriminatory conduct seriously, whether it dealt with it appropriately and promptly, whether it demonstrated the appropriate sensitivity to the concerns of the applicant. There is no apology with respect to the emails sent to the applicant’s business contacts. There is no evidence of any attempt by the corporate respondent to investigate or by either respondent to retract or follow-up on the emails sent in order to repair or minimize the damage done to the applicant’s reputation or to acknowledge or address in any way the poisoned work environment.
86I am mindful of the overture made by the respondents in the January 18, 2010 email offering re-employment, but, as found above, there is no indication that either the corporate or the individual acknowledged the harm done in the November 2009 emails to the applicant’s business contacts, nor is there any indication of a commitment from the corporate respondent to investigate or by either respondent to attempt to repair the damage done and to retract the earlier emails. They have not acknowledged or addressed the discrimination or the poisoned work environment created by the personal respondent’s actions.
87I find that when the applicant inquired about his overdue payment, the personal respondent called him a “fucking crackhead” and told him he would be paid when he was paid. The use of this derogatory term in this context was belittling to the applicant, linking his addiction to a diminished right to expect payment of commission owed to him.
88I find that the applicant advised the personal respondent of details of his addiction and that this information was used against the applicant in a series of emails the personal respondent sent. I find that the personal respondent sent an email to the applicant’s fellow sales agent, on November 18, 2009, divulging the fact of the applicant’s addiction in the context of an allegation of theft and once again using the derogatory term “crack head”. The fact that the email states “not to put that against him” does nothing to negate the pejorative term or association the email makes between addiction and criminal activity. The email provides no other context for the information regarding the applicant’s addiction, and despite the disavowal, the email provides the information regarding addiction in the middle of an accusation of theft, and I find that in effect it invites the reader to make a connection between the two.
89I accept that the applicant’s relationships with his business contacts was key to success in his work. I find that the personal respondent also sent emails to the applicant’s contacts in automobile dealerships, in which he again divulged the applicant’s addiction in the context of allegations of wrongdoing. He indicated that the applicant had “slipped”, had “made short cuts” and had made physical threats. There was no other context within which the information regarding the applicant’s addiction was presented, and again, the email invites the reader to make a connection between the applicant’s disability and the allegations of malfeasance and even of threats of physical violence.
90Though in their written submissions the respondents have attempted to assert that the personal respondent learned of the applicant’s addiction from someone else, and not from the applicant himself, even if this were so, and for clarity, I do not find it to be so, this does not excuse the way in which the personal respondent proffered information regarding the applicant’s disability and the way in which he linked it to alleged wrongdoing, undermining the applicant’s reputation with his co-worker and business contacts.
91I find that the personal respondent’s use of the term “crack head” both to and about the applicant was demeaning of the applicant because of his disability. The disclosure of his addiction in emails in the context of allegations of wrongdoing offended the applicant’s dignity and stigmatized him because of his disability. I accept that this discrimination had a detrimental impact on the applicant’s confidence within the work environment and on his ability to work with his business contacts, and that they did not respond to him as they had done previously. The corporate respondent has not addressed the discrimination or the poisoned work environment. As noted above, according to s. 46.3(1) of the Code the corporate respondent shares responsibility for such discriminatory actions of Mr. Geoffrey Van Toen. I find that the respondents breached the applicant’s right to be free from discrimination because of his disability with respect to employment, pursuant to s. 5(1) of the Code.
92I find that the conversation between Geoffrey Van Toen and the applicant where Mr. Geoffrey Van Toen called the applicant a “fucking crack head” and the emails dated November 18, 2009 which Mr. Geoffrey Van Toen sent to the applicant’s fellow sales agents and business contacts was a course of vexatious comment or conduct which was known or ought reasonably been known to be unwelcome. I find, therefore, that the personal respondent also violated s. 5(2) of the Code. For the reasons above, I also find the corporate respondent liable for the harassment under the organic theory of corporate liability.
93I accept the applicant’s evidence regarding death threats uttered by the personal respondent and I find that he threatened the applicant’s life by way of reprisal for having filed this Application. Though the respondents chose not to participate in the hearing, as noted above, they have attempted to tender evidence in their final written submissions. On this point, they assert that the personal respondent simply accepted the Peace Bond for the sake of ease. However, as noted above, despite the Tribunal’s Interim Decision providing them time frames within which to do so, the respondents filed no Response to this allegation after it was included in the Application by way of amendment. Further, they ignored the Tribunal issued CAD on May 25, 2011, directing the personal respondent to file any documentation he had relating to the issuance of the Peace Bond and providing the parties with the opportunity to make any submissions they wished to make with regard to the question of what implications, if any, the issuance of the Peace Bond may have for the fact finding process relating to the reprisal allegations. They chose not to participate in the hearing process. It is now far too late for the respondents to attempt to provide a different version of events relating to the issuance of the Peace Bond. In any event, it would appear that the only explanation to be offered by the personal respondent is that it was “easier” for him to accept a Peace Bond. The applicant’s testimony regarding a death threat made by the respondent is consistent with the issuance of the Peace Bond. Even if the personal respondent had provided testimony to indicate that he chose to accept a Peace Bond because it was “easier”, there would be an inconsistency between his evidence and the issuance of the Peace Bond. I find that the applicant has discharged his burden of establishing on a balance of probabilities that this incident of reprisal took place as he has recounted it. I find, therefore, that the respondents have violated s. 8 of the Code.
94The applicant also submits that the hurtful email he received from the personal respondent in October, 2010, was a further violation of s. 5 of the Code, as it was “made with respect to [his] former employment and his activities following his employment”. It occurred prior to the filing of the Application, and the applicant does not rely upon it as an incident of reprisal. I do not agree with the assertion that this email was a violation of s. 5 of the Code. The applicant’s employment relationship with the respondents had ceased almost one year before this email which was a private communication between the personal respondent and the applicant. It occurred a significant period of time after the termination of the applicant’s employment and it had no employment related consequences. In these circumstances, the fact that it was an email from his former supervisor and the fact that it makes reference to his employment, does not, in my opinion, bring it within the ambit of discrimination “with respect to employment”. The email is derogatory and insulting, but I am not persuaded that there is a nexus to the Code. Accordingly, I do not find that this email is a violation of the applicant’s rights pursuant to s. 5 of the Code.
REMEDY
95The Tribunal’s remedial powers are set out in section 45.2 of the Code:
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;
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, feeling 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.
Injury to Dignity, Feelings and Self-respect
96The applicant seeks $25,000 as compensation for injury to his dignity, feelings and self-respect.
97In Arunchalam v. Best Buy, 2010 HRTO 1880, at paragraphs 52 to 54, the Tribunal summarized some of the considerations relevant to an assessment of damages to be awarded under s. 45.2 of the Code:
I turn now to the relevant factors in determining the damages in a particular case. 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.
98The non-exhaustive list of relevant considerations discussed in Sanford v. Koop, 2005 HRTO 53 (“Sanford v. Koop”) are: humiliation experienced by the applicant; hurt feelings; loss of self-respect, dignity, self-esteem, confidence; the experience of victimization and; the seriousness, frequency and duration of the offensive treatment.
99In considering the objective seriousness of the discriminatory conduct, I note the very public nature of the discrimination: it included disclosure of personal information regarding the applicant’s disability in such a way that undermined his professional reputation.
100I accept that as a result of the discrimination, the applicant suffered humiliation, embarrassment, experienced a loss of self-respect, dignity, self-esteem and confidence and that he felt that he had been stigmatized in the context of his working environment. I find also that it resulted in him losing trust in the respondents and consequently to his resignation from this employment and that it resulted in a poisoned work environment. I am mindful of the fact that the applicant suffers from chronic addiction, and that he has lapsed into substance use on many previous occasions, including a period in the summer of 2009 when he was employed by the corporate respondent and prior to the discrimination. The applicant does not ask me to find that the discrimination was the only cause of his relapse, but only that it was one factor contributing to his relapse in the spring of 2010. I find that the experience of discrimination by public humiliation and the financial pressure he experienced more likely than not (on a balance of probabilities) played some role in the fact that the applicant isolated himself, and experienced the stresses associated with setting up a new business and more likely than not (on a balance of probabilities) played some role in his relapse in the spring of 2010.
101In considering the impact these events have had on the applicant I am mindful of the central importance of work in a person’s life. In this regard, I note for example the often cited comments of Dickson C.J. in his dissent at paragraph 91 of Reference Re Public Service Employees Relations Act (Alta), 1987 CanLII 88 (SCC), [1987] 1 SCR 313:
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.
102The loss of work has a commensurate significance for individuals. This was the subject of comment in Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 SCR 986, per Iacobucci J. for the majority:
I turn finally to the policy considerations which impact on the issue in this appeal. Although the issue may appear to be a narrow one, it is nonetheless important because employment is of central importance to our society. As Dickson C.J. noted in Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, at p. 368:
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
I would add that not only is work fundamental to an individual's identity, but also that the manner in which employment can be terminated is equally important.
103In considering the objective seriousness of the conduct which I have found to be reprisal, threats to personal physical safety and life is extreme conduct, and it is among the most serious forms of reprisal imaginable. I accept that as a result of the reprisal, the applicant wondered about the wisdom of having filed an Application with the Tribunal. This is the very kind of mischief which the Code seeks to address in providing protection against reprisal.
104I accept that in addition to making the applicant regret having filed his Application, the personal respondent’s threats have left him frightened and he is nervous about his surroundings when out in public.
105The personal respondent acted in a supervisory role vis à vis the applicant. By his actions he discriminated against the applicant, created a poisoned work environment for the applicant and reprised against him contrary to the Code, and there has been no satisfactory effort by either respondent to address or acknowledge these breaches. The fact that the corporate respondent may be liable for the conduct of its employees does not insulate employees from personal liability. I find that both respondents are liable for having violated the applicant’s right to be free of discrimination at work and have violated his right to be free of reprisal.
106Further, I have found that the personal respondent violated the applicant’s right to be free from harassment at work under s. 5(2) of the Code. Under section 46.3(1), the corporate respondent cannot be held vicariously liable for the acts of its employees, agents or officers when it is a question of harassment. It is the personal respondent who committed the harassment who is liable for that breach. However, in the circumstances of this case I find the corporate respondent would also be liable for the harassment under the organic theory of corporate liability.
107There is no indication that the corporate respondent assumes responsibility for any remedial orders the Tribunal may make. Throughout these proceedings, the respondents have displayed their resistance to complying with the Tribunal’s orders. In these circumstances, I am concerned that there is a real and increased risk that if I make an order as against one respondent only, there may be no remedy actually provided to the applicant. In the circumstances of this case, a poisoned work environment arises from both the discrimination which was contrary to s. 5(1) of the Code and from the harassment which was contrary to s. 5(2) of the Code. Further, I find that in the circumstances of this case, and noting that the applicant has requested no additional award in respect of the violation of s. 5(2), I do not find that it is appropriate to make an additional award for the violation of s. 5(2) of the Code as the same events have led to a finding of a violation of s. 5(1) of the Code. In the circumstances, I find that it is appropriate to award a global amount. Further, in these circumstances, I find that it is appropriate for both the personal respondent and the corporate respondent to be found jointly and several liable and to be ordered to pay compensation to the applicant for injury to his feelings, dignity and self-respect.
108While I have not found the October 2010 email to have constituted a breach of the Code, in view of the objective seriousness of the breaches of the Code which I have found, and taking particular note of the threats of bodily harm by way of reprisal, and in view of the above-noted impact on this applicant, I find that it is appropriate to grant an award for injury to dignity, feelings and self-respect which is at the higher end of the Tribunal’s awards. Accordingly, I award damages as follows: the corporate respondent and the personal respondent are liable jointly and severally to pay $25,000.00 to the applicant for violation of his right to be free from discrimination in employment, free of a poisoned work environment, for failing to address the poisoned work environment and for the violation of his right to be free from reprisal under s. 8 of the Code and for injury to his feelings, dignity and self-respect. The respondents will also be liable for postjudgment interest as set out below.
Damages in Respect of Lost Income
109While the applicant resigned from his employment, he did so immediately following learning of the personal respondent’s email to his fellow sales agent, and referenced that incident in his letter as the reason for his resignation. While an immediate resignation might otherwise be considered somewhat precipitous, where the respondents made no subsequent attempt to acknowledge or address the poisoned work environment, in circumstances where the personal respondent had indicated to the applicant that his disability was linked to the timing of his payment for work performed, and where the applicant felt the personal respondent had betrayed a personal confidence regarding his stigmatized disability (and I have found they did), and where he felt his reputation in the workplace had been damaged by the personal respondent’s action (and I have found it was), I accept that the applicant’s resignation was not truly voluntary. Further, and for the same reasons and for the reason that he subsequently learned of the emails sent to his business contacts, I do not find that the fact he refused the re-employment offered to him in January, 2010, constitutes a failure to mitigate his losses: his resignation and refusal to recommence employment with the corporate respondent were a result of the irreparable rupture in the employment relationship caused by the respondents.
110Following his resignation to the time when his own business was “up and running”, the applicant was engaged in efforts to replace his lost income by establishing his own business. The period of time for which he claims lost earnings is a relatively short period, and I am satisfied that three months is a reasonable time for him to replace his earnings. Accordingly, I find that it is appropriate to award the applicant an amount to compensate for lost commission which he would have otherwise earned from November 19, 2009 to February 1, 2010.
111The applicant’s evidence regarding the commission he received consisted of a client list and commission paid to him in August and September. He uses those commission figures as a basis for his claim of $2,640.00 per month for the period following his resignation before his own business was up and running.
112The events which gave rise to this Application began when the applicant sought payment for commission in mid-November, 2009. According to his testimony, he had not been paid in a “couple of weeks”. The applicant has put no information before me with respect to any amounts he claimed to have earned in October or November, 2009. It would appear, therefore, that the applicant was performing work for the respondent company in October 2009 and either earned nothing, or was paid some amount in a timely fashion. It would also appear that there was some amount of commission payable to him for work performed in the first two weeks of November, 2009. However, the only evidence I have is that the applicant received approximately $5,280.00 from the corporate employer. Given the lack of evidence regarding October 2009, when he may have earned nothing, and the first two weeks of November 2009, a period of time for which I have no information regarding his earnings, I do not find it appropriate to use the figure of $2640.00 per month to extrapolate subsequent earnings. Rather, I find it appropriate to use his total earnings figure of $5,280.00 divided between August, September, October and half of November, 2009, which indicates a monthly average figure of approximately $1,508.00. Accordingly, I order the corporate respondent to pay to the applicant compensation in the amount of $4,524.00 in respect of earnings he would have made from November 19, 2009 to February 18, 2010, but for the breach of the Code. The corporate respondent is also liable for prejudgment interest on this amount from October 26, 2010 and postjudgment interest as set out below.
Orders Regarding Future Practices
113The Tribunal’s authority to make an order to achieve future compliance with the Code is set out in s. 45.2(2) of the Code. Though the applicant has not requested such an order, I find that throughout the events complained of and throughout these proceedings, the respondents have demonstrated a very poor understanding of their obligations and the rights of their sales agents under the Code. I am of the view that future compliance with the Code will be enhanced if the respondents are required to complete training in order to become better informed with respect to rights and obligations contained in the Code. Accordingly, I order that the personal respondent and principals at the corporate respondent complete within 30 days of this decision, the on-line training module known as “Human Rights 101” on the website of the Ontario Human Rights Commission.
114For the same reason, and to achieve future compliance with the Code, the corporate respondent is directed to provide, a copy of the Human Rights Code Card, also found at the website of the Ontario Human Rights Commission, to all of its sales agents.
ORDER
115For the reasons above, the Tribunal orders as follows:
Within 30 days of this decision, the personal respondent and the corporate respondent are jointly and severally liable to pay the applicant $25,000.00 for the inherent right to be free of discrimination with respect to employment and to be free from reprisal and for the injury to his dignity feelings and self-respect flowing from this violation. Postjudgment interest shall be payable on this amount at the rate of 3.0%, calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, commencing 30 days from the date of this decision.
Within 30 days of this decision, the corporate respondent is liable to pay the applicant $4524.00 in respect of loss arising out of the infringement of the applicant’s right to be free from discrimination with respect to employment. I also award prejudgment interest at the rate of 1.0% pursuant to section 128 of the Courts of Justice Act, from October 26, 2010 to the date of this decision. Postjudgment interest shall be payable on this amount at the rate of 3.0% pursuant to section 129 of the Courts of Justice Act, commencing 30 days from the date of this decision.
Within 30 days of this decision, the personal respondent and principals at the corporate respondent are required to complete the on-line training module known as “Human Rights 101”, found on the website of the Ontario Human Rights Commission.
Within 30 days of this decision, the corporate respondent is required to provide a copy of the Human Rights Code Card, found at the website of the Ontario Human Rights Commission, to all of its sales agents.
Dated at Toronto, this 9^th^ day of April, 2013.
“Signed by”
Maureen Doyle
Vice-chair