HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alice Quackenbush
Applicant
-and-
Stegg Ltd.
Respondent
DECISION
Adjudicator: Catherine Bickley Decision Date: April 22, 2013 Citation: 2013 HRTO 672 Indexed as: Quackenbush v. Stegg Ltd.
APPEARANCES
Alice Quackenbush, Applicant Self-represented
Stegg Ltd., Respondent No one appearing
Introduction
1This is an Application dated March 8, 2010, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, specifically differential treatment when returning to work following an injury for which benefits were received under the Workplace Safety and Insurance Act, 1997, c.16, Sched. A.
2The applicant gave oral evidence, called as a witness her partner, Karen Miller, filed several documents and made closing submissions. I also asked the applicant a number of questions to clarify her evidence. The respondent did not attend the hearing.
3For the reasons set out below, I find that the respondent breached the Code in its treatment of the applicant.
non-attendance of the respondent
4This hearing was scheduled to start at 9:30 a.m. on January 16, 2012. No one was present on behalf of the respondent nor did anyone communicate with the Tribunal to explain the failure of a representative of the respondent to attend. The applicant was present and prepared to proceed.
5Where a party has been given written notice of an oral hearing and does not attend the hearing, the Tribunal may proceed in their absence: s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
6The Notice of Confirmation of Hearing [the “Notice”] was sent to the respondent by mail to the address indicated on the Response on August 17, 2011 and was not returned as undeliverable. The Notice included the following paragraph under the heading “CONSEQUENCES OF FAILING TO ATTEND THE HEARING”:
If you fail to attend the hearing after receiving proper notice the HRTO may:
proceed in your absence;
determine you are not entitled to further notice of the proceedings;
determine you are not entitled to present evidence or make submissions to the HRTO;
decide the Application based solely on the materials before the HRTO; and
take any other actions the HRTO considers appropriate.
7I am satisfied that the respondent had notice of the hearing and of the consequences of not attending the hearing.
8At 10 a.m., the hearing proceeded without the respondent.
amendment of the application
9At the hearing, the applicant sought to amend her application to include the ground of reprisal, alleging that her layoff in December 2010 was a reprisal for the filing of this application. I permitted the amendment and heard evidence with respect to the layoff and its impact on the applicant.
the applicant’s evidence
10The applicant testified that she began work as a full-time employee of the respondent in January 1998. In addition to her salary, she received a full benefit package that included dental and medical benefits and the respondent matched her contribution to its group Registered Retirement Savings Plan [“RRSP”] up to 3% of her gross salary.
11Between 1998 and 2007, the applicant filled several different positions in the workplace.
12On September 27, 2007, the applicant slipped on an oily floor in the workplace and injured her back. Her injury required surgery and a lengthy period away from work. Following her surgery, the applicant continued to experience pain and used a cane because she was “unstable on [my] feet”. She applied for and received benefits from the Workers Safety Insurance Board (the “WSIB”). The respondent told the WSIB that it did not have suitable modified work available so the applicant could not return to work.
13After the applicant had been away from work for approximately two years, i.e. in the fall of 2009, the WSIB proposed to send her to school to study Information Technology. The estimated cost of the educational program, which the applicant understands would have been charged to the respondent, was presented by WSIB to the respondent. A week later, the respondent advised the WSIB that it now had modified work for the applicant. It was arranged that she would return to work in January 2010.
14Before the applicant’s January 2010 return to work, she attended a number of meetings with Mr. Stokes (the respondent’s president), Sharon Voteary (the respondent’s human resources manager), and a WSIB representative. The applicant testified that at the majority of these meetings, she asked about the reinstatement of her health and dental benefits and the RRSP matching. In response, Mr. Stokes referred her to the respondent’s employee handbook. She checked the employee handbook but did not find anything that applied to her situation, i.e., an employee who is returning to work after an absence due to a workplace injury.
15The applicant returned to work on January 27, 2010, having been absent from the workplace for two years and four months. She was assigned to a position sorting valves.
16The applicant testified that she was happy to be back at work but still concerned about the benefits/RRSP issue: “All I wanted was to go in, do my job to the best of my ability and receive what I was entitled to like everyone else.”
17On the applicant’s first day back at work, she met with Ms. Voteary to try to clear up the benefits/RRSP issue. After checking with Mr. Stokes, Ms. Voteary told the applicant “You can begin contributing to your RRSP at any time but Stegg will not begin to match until the end of 12 months”.
18The applicant felt that she was being treated like a new employee since, if Stegg did not “begin to match” until after 12 months, she wouldn’t receive any matching until 24 months after returning to work and then that matching would only be for 12 months.
19The applicant told Ms. Voteary that she felt she was being discriminated against for being off work for two years and for using a cane to walk. Ms. Voteary said she would “look into it” but the applicant heard nothing further from Ms. Voteary.
20On February 7, 2010, the applicant gave a letter addressed to “To Whomever it May Concern” to her supervisor, Ken McGregor. This letter set out some concerns with respect to vacation pay, then stated:
As you are aware I have inquired about the re-instatement of Benefits, RRSP Contributions, and the Length of Vacation Time/Pay during the meetings leading up to the date of my return to work. Each response I have received in return has referred to the handbook which states the policies of a new employee which I am not.
21The letter further set out certain provisions of the Employment Standards Act and the Code before concluding with the following paragraph:
I would like to think that this is an oversight and your immediate attention to correcting it will take place. I am confident that a resolution can be made without involving any third parties and look forward to your response by Feb 12 2010.
22Mr. McGregor told her that he had personally given the letter to Mr. Stokes.
23The applicant did not receive a reply to her February 7, 2010 letter.
24On February 27, 2010, the applicant began contributing 3% of her gross earnings to her RRSP. Her contribution was not matched by the respondent. The applicant submitted as evidence her bank records and her final paycheque, dated December 24, 2010, showing that her total RRSP contributions during 2010 were $766.73.
25Having received no reply to her February letter, the applicant wrote another letter on March 1, 2010, this time addressed directly to Mr. Stokes, advising him that she had enlisted the help of “the ESA (Ministry of Labour)” and asking to meet with Mr. Stokes ”to resolve these issues so that we both can continue to progress with our work”. She did not receive any reply to this letter.
26It was not only the lack of response to her inquiries about the benefits/RRSP issue that caused the applicant concern. Within her first week back at work, she felt that she was being treated differently than before her injury. It was her impression that supervisors had been ordered to “constantly watch me; if I do anything, write me up.” In addition, Mr. Stokes seemed to “suddenly have a different view of me – like trash; when you’re done with it you throw it out.” While he had previously communicated directly with the applicant, when she returned to work Mr. Stokes would not talk to her at all in person, communicating with her only through supervisors.
27The applicant testified that the respondent also seemed to be reluctant to follow through on its agreement with WSIB to install conveyor belts that the WSIB had purchased to facilitate the applicant’s work. Indeed, at the time the applicant was laid off in December 2010, the respondent had still not installed the belts. As a result, the applicant needed some assistance from other employees to move the valves into and out of her working area. The applicant testified that if the belts had been installed, she would have been able to do her job independently.
28In the fall of 2010, the applicant noticed that some of the valve sorting was being sent to an outside company. She approached her supervisor with her concerns and was told “don’t worry about it”. She received a layoff notice on December 3, 2010. The applicant testified that the layoff hit her hard as she “thought I would retire from that place. Now it’s like I’m back in my teenage years, going back to school and having to fight against teens for a job.”
29The layoff notice stated that she would be recalled to work in March 2011. The applicant was not recalled to work in March 2011 or at any time up until the date of this hearing. The applicant’s WSIB contact told her that there was no suitable modified work at the respondent. At the time of the hearing, the applicant continued to be in receipt of WSIB benefits.
karen miller’s evidence
30Ms. Miller is the applicant’s partner. She worked for the respondent for 13 years but left her employment some time before the applicant’s return to work because she was unhappy with changes to her shifts and work assignments following a change in the respondent’s ownership in 2005 or 2006.
31Ms. Miller’s evidence focused on the impact on the applicant of her treatment by the respondent. She testified that the applicant would come home and tell her about the difficulties she was having at work. Further, the uncertainty of the applicant’s employment situation was “eating her up inside”. Although the applicant had been happy to return to work, after a while she “wasn’t herself” due to her negative experiences at work. Ms. Miller became so concerned about the stress the applicant was experiencing, that she encouraged the applicant to quit. Following her layoff, the applicant was very upset that she couldn’t contribute to their joint living expenses as much as when she was working.
THE RESPONDENT’S POSITION
32As the respondent did not attend the hearing, the only information regarding its position with respect to the applicant’s allegations is found in a very brief Response filed on May 26, 2010, and an even briefer statement filed on July 20, 2010.
33The May 26, 2010 response stated, in answer to Question 9, “Responding to the Allegations”:
We agree that Elizabeth Quackenbush is not receiving benefits.
We disagree that Elizabeth Quackenbush is being discriminated against.
Our company has a policy, which has been vetted by Service Canada with regards to employees who have left Stegg for a period of over 2 years.
34On July 20, 2010, in response to a Second Notice of Incomplete Response from the Tribunal, the respondent confirmed that the applicant had made a complaint under the organization’s internal complaint processes. In reply to Question 13 (d), which asked it to “Describe how the organization responded and what was the outcome of the complaint process,” the respondent stated: “She asked for benefits, we said policy was 6 months.”
35The respondent also submitted pages 5 and 6 of its employee handbook. It is unclear why the respondent submitted these particular pages as they make no reference to entitlement to health or dental benefits or to RRSP matching.
relevant code provisions
(1) Every person has the right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Every person has the 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 doing so.
10 (1) “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.
(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;
the respondent’s employee handbook
36The applicant submitted a complete copy of the respondent’s employee handbook. The sections concerning health and dental benefits and the group RRSP are reproduced here:
Benefits Paid By Stegg
After 6 months, Full Time Employees will be enrolled in the Stegg Benefits Program. All employees will be part of the Benefit plan. Employees hired after January 1st, 2008; who have less than 3 years of continual service but more than 6 months participate at a rate of 80% of the benefit plan.
A Benefit Handbook will be made available which details the benefits offered.
The Stegg Benefit plan includes:
i) A Dental Plan
ii) An Extended Health Care – including Vision Plan, Drug Plan, and Semi-private Hospital Accommodation.
iii) Life Insurance for the employee, their spouse and children
- Stegg reserves the right to modify the Benefit plan at any time.
Appendix 1
GROUP REGISTERED RETIREMENT SAVINGS PLAN (RRSP)
All full-time employees who have been with Stegg for at least three months are eligible to enrol into our group RRSP program.
How much can be Contributed?
A minimum of 3% of your gross pay must be paid into the RRSP. However, you may increase this amount to the maximum stipulated by Revenue Canada.
Stegg will match Contributions!
Once a full-time employee reaches their 24th month anniversary, Stegg will begin matching the contributions of equal to 3% of your eligible gross wage. Stegg contributions are based on the calendar year, January to December. Should your eligibility date fall within that time, Stegg will match only contributions from the eligibility date to the end of the year.
For example;
Your 24th month anniversary is June 30, and you are making contributions of 4% of your gross wages per pay period. Stegg will match 3% of the gross wages that you earned July 1 to December 31. The following year, you contribute from each pay earned January through to December. Stegg will match equal to 3% of eligible wage.
You must be employed with Stegg on December 31st to receive the matching amount of contributions [for] the year.
… [details regarding which bank branch to enrol at are not reproduced here] …
Summary
You are eligible to enrol into the Stegg RRSP program after 3 months employment
After 2 years employment, Stegg will match contributions of equal to 3% eligible gross wage
You will double your contributed money, and gain interest
Should you leave Stegg, your RRSP is completely portable
Analysis
Disability
37The applicant testified that as a result of her 2007 back injury, she experiences some level of pain “24/7”, her left leg gets numb from time to time, it drags when she is tired and she uses a cane to cope with unsteadiness while on her feet. The applicant received benefits from WSIB starting in 2007 and was still in receipt of those benefits at the time of the hearing.
38I find that the applicant has a disability within the meaning of the Code.
Breach of the Code
39The respondent maintained that it had no suitable modified work for the applicant for two years yet found modified work for her swiftly when faced with a cost for retraining her. This fact, combined with the respondent’s failure to install the conveyor belt provided to it by WSIB to assist the applicant, suggest at the very least a lack of commitment to accommodating the needs of its employee.
40In the weeks leading up to the applicant’s return to work, she asked the respondent’s president and human resources manager about the reinstatement of her benefits and RRSP matching. The respondent’s president simply directed her to the company’s employee handbook which did not contain any information relevant to the situation of an employee returning to work following a lengthy disability-related absence.
41In the material it filed with the Tribunal, the respondent claimed that it had a policy regarding employees who had “left Stegg for a period of over 2 years”. It further claimed that its policy had been “vetted by Service Canada”. The respondent did not provide any details on the content of this policy. The applicant testified that she had never heard of this policy and that the respondent had made no mention of the policy in response to her repeated inquiries.
42This purported policy is contained nowhere in the respondent’s employee handbook, a document that is 36 pages long and includes 15 appendices. Given the length and comprehensive nature of the handbook, it is not credible that a policy that impacted the benefit entitlement of employees returning to work after a disability-related absence would be omitted from the handbook.
43Further, the respondent’s explanations regarding the benefit entitlement of the applicant are inconsistent, including statements that such entitlement could be found in the employee handbook, that “we said six months,” and that RRSP matching would start at the end of 12 months.
44I conclude that there was no general policy which imposed a waiting period for benefit entitlement on employees returning to work from a disability-related absence. Given I have concluded such a policy did not exist, it is unnecessary for me to consider whether such a policy would have been discriminatory in and of itself. It is clear that long-term disabled employees retain their status as employees, see for example Ontario Nurses' Association v. Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON CA), at para. 63. Given that the applicant was not a new employee but rather a long-term employee returning from disability leave, I find the failure to provide benefits to the applicant was based on the fact that she had been on leave from her position and required modified work. This constitutes discrimination because of disability, as the applicant’s disability was a reason this action was taken and she was clearly treated differently than other long-term employees in active employment.
45I also find, based on the applicant’s uncontradicted testimony, that following her return to work, she was subjected to greater scrutiny by supervisors than before her absence and that the respondent’s president with whom she had previously had a cordial relationship now refused to communicate with her except indirectly through supervisors. The circumstances suggest an inference that this treatment was because of the fact that she had taken leave due to a disability.
46The respondent’s refusal to continue the applicant’s benefits while providing her with inconsistent and varying reasons for that refusal, combined with heightened scrutiny by her supervisors, the change in attitude of the respondent’s president toward the applicant (demonstrated by his lack of response to her two letters which sought to clarify and resolve the benefits/RRSP issue), and the refusal of the company to install the conveyer belts, created an environment in which the applicant felt that she was being punished for having been absent due to a workplace injury and for continuing to require accommodation in the workplace.
47I find that this negative treatment and the refusal to reinstate the applicant’s benefits and continue the RRSP matching resulted from Mr. Stokes’ irritation at the applicant’s long absence from the workplace and at having to find the applicant modified work. Given Mr. Stokes’ position as president of the respondent, the respondent is liable for his actions.
48I further find that when considered in the context of the respondent’s overall treatment of the applicant upon her return to work, and in the absence of any alternate explanation, the applicant’s layoff amounted to a reprisal for her pursuit of her rights under the Code.
49For all of these reasons, I find that the respondent breached the Code by denying the applicant benefits to which she was otherwise entitled, treating her negatively due to her disability and ultimately laying her off from her employment.
remedy
50Section 45.2(1) of the Code provides that, if the Tribunal determines that a party to an application has infringed a right under Part 1 of another party to the application, it may make the following orders:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
51Having found that the respondent’s refusal to match the applicant’s RRSP contributions was a breach of the Code, I order the respondent to pay $766.73 into an RRSP of the applicant’s choice. I also award prejudgment interest on the $766.73 from the date of the Application, March 8, 2010, at the rate established under s.127 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
52The applicant testified that she was unable to get necessary dental work and eye wear due to her lack of benefits. She did not, however, testify to any expenses incurred due to the lack of benefits. Accordingly, I make no award in this regard.
53The Application does not request a specific amount as compensation for injury to dignity, feelings and self-respect (sometimes referred to as ‘general damages’). At the hearing, the applicant stated that “I can’t put a dollar amount on what all of this has done to me”.
54The lack of a quantified request for compensation for injury to dignity, feelings and self-respect does not prevent the Tribunal from making an award. Nor is the Tribunal limited to awarding an amount requested by an applicant. In recent years, the Tribunal has developed an analytical framework that builds on earlier case law and establishes both subjective and objective criteria to appropriately assess compensatory damages for injury to dignity, feelings and self-respect.
55In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON. S.C.D.C.), the court held that in awarding compensation, tribunals should consider subjective factors (humiliation, hurt feelings, the loss of self-respect, dignity and confidence of the applicant, the experience of victimization, vulnerability) and the objective seriousness of the offensive treatment (at para. 153). Further, in assessing the amount of the award, a tribunal must be mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a “license fee” to discriminate (at para. 152).
56In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent compensation awards and stated at paras. 52-54:
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, 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.
57In the case before me, an individual who had been employed by the respondent for over a decade was denied benefits to which she was otherwise entitled, rebuffed when she made reasonable inquiries about those benefits, subjected to other negative treatment because she had been absent due to a disability and because she continued to require accommodation in the workplace and was ultimately laid off from her job.
58There was convincing evidence from the applicant and her partner that the applicant experienced significant emotional distress due both to her treatment by the respondent after her return to work and to the eventual loss of her job, see for example the testimony at paras. 28, 30 and 31, above. The applicant was happy to return to work after her leave but quickly became aware that she was being treated differently than before her leave. She was a long term employee who had held her job for over a decade and expected to work with the respondent until her retirement. Even in the absence of subjective evidence with respect to impact, there is an objective basis to find that the loss of a job in these circumstances has a serious impact (see for example Reference Re Public Service Employees Relations Act (Alta), 1987 CanLII 88 (SCC), [1987] 1 SCR 313 at para 91 and the comments of Iacobucci J. for the majority in Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 SCR 986). I find that the applicant experienced significant injury to her dignity, feelings and self-respect as a result of the respondent’s actions.
59It is my view that a compensatory award for the impact on the applicant of the infringement of her rights by the respondent of $15,000.00 is appropriate.
60The respondent shall have twenty days following the date of this Decision to make the ordered payments to the applicant, failing which post-judgment interest shall be payable on both payments in accordance with the rate established under the Courts of Justice Act.
order
61The respondent, Stegg Ltd. shall deposit $766.73 (plus prejudgement interest at 0.5%, the rate specified under the Courts of Justice Act, R.S.O. 1990, c.C.43, from March 8, 2010 to the date of this Order) into an RRSP of the applicant’s choice. Postjudgement interest shall accrue at 3%, the rate specified under the Courts of Justice Act, commencing twenty days from the date of this Order.
62The respondent shall pay the applicant $15,000.00 as compensation for injury to dignity, feelings and self-respect. Postjudgement interest shall accrue at 3%, the rate specified under the Courts of Justice Act, commencing twenty days from the date of this Order.
Dated at Toronto, this 22nd day of April, 2013.
"Signed by"
Catherine Bickley Member