Lang v. Servisol Home Improvements Inc., 2013 HRTO 843

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew John Robert Lang

Applicant

-and-

Servisol Home Improvements Inc.

Respondent

DECISION

Adjudicator: Paul Aterman

Date: May 16, 2013

Citation: 2013 HRTO 843

Indexed as: Lang v. Servisol Home Improvements Inc.

APPEARANCES

Andrew Lang, Applicant

Self-represented

Servisol Home Improvements Inc., Respondent

No one appearing

Introduction

1The respondent is a corporation engaged in home renovation, largely in the Rosedale and Forest Hills neighbourhoods of Toronto. It hired the applicant as a painter in 2009. He was not salaried, but was paid $22 for every hour that the respondent billed clients for his work. In 2010 and 2011 the applicant was ill with a recurring stomach condition. This caused him to miss work sometimes. He kept the respondent apprised of his illness and the respondent gave him no indication his absences were a problem, until his employment was terminated on September 16, 2011. At that time the applicant was told that he was unreliable because he was often away sick and that customers had complained about his work.

2The applicant filed this Application under s. 34 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. On April 15, 2013 the respondent’s president notified the Tribunal in a brief email that the respondent was insolvent but provided no further information in that regard. Accordingly, through a Case Assessment Direction, the Tribunal then asked the parties and the respondent’s president to indicate whether proceedings had been initiated under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as this would have the effect of staying the Application.

3Because no information was put before the Tribunal to suggest that proceedings had been started under the Act, the hearing went ahead on May 6, 2013. Despite being given notice of the hearing, the respondent did not participate. The applicant testified and adopted as his evidence the narratives appended to his Application and Reply. He also introduced a doctor’s note that set out the dates of his treatment in 2011. For the reasons below I find that the applicant’s illness was a factor in the respondent’s decision to terminate his employment and that this was a violation of the Code.

background

4The respondent’s business is seasonal. When the applicant worked for it, the respondent employed a core group of about 15 employees, and the number could rise to between 30-40 in the summer. The applicant was supervised by a senior painter, Gianni Colantonio. The respondent’s administrative work was done by an office manager, George Hatzinikolaou.

5The applicant was hired in 2009 by Bruce Maisels, the then owner of the respondent, and someone whom the applicant describes as demanding, but a fair employer who treated workers reasonably. When he started work the applicant was led to believe that he would be employed at or near a full-time schedule, with the possibility of lay-offs when business dropped off in the winter. But the hours did not materialise and the applicant earned about $12,000 in 2009. He supplemented his income by doing jobs for some of his own clients.

6Despite the limited availability of work, the applicant described being called in at times on very short notice. He maintained that he was reliable in responding because he wanted to show his loyalty and dedication, in the hope of getting more work. The applicant’s supervisor was exacting and impatient, but the applicant testified that he worked hard and eventually Gianni Colantonio came to respect his work and his willingness to learn. He passed his probationary period. The applicant decided that if he proved his diligence he would eventually be able to replace Gianni, who was nearing retirement.

7In 2010 work continued to be sporadic and the applicant earned around $17,400. Up until he was fired in September of 2011, his earnings for that year were close to $9,000.

8In the fall of 2010 Bruce Maisels sold the respondent company to George Hatzinikolaou. The applicant’s evidence is that Mr. Hatzinikolaou suddenly went from doing administrative tasks, such as answering phones and booking work for employees, to making business decisions that would affect the future of the company and the livelihood of employees. He said that Mr. Hatzinikolaou did not rise to the task, and made bad decisions in bidding on expensive contracts. He also testified that Mr. Hatzinikolaou, who is physically imposing, had an aggressive and bullying manner. He claimed that workers, including himself, would often be yelled at and threatened with termination by the new owner.

9For a number of years the applicant has suffered from stomach problems that cause nausea, vomiting and diarrhoea. In 2010 these problems worsened in terms of both their frequency and severity. The problems were eventually relieved when, in July of 2011, the applicant underwent a gastroscopy that diagnosed a blockage in his intestine. He was prescribed drugs which initially had little effect, but proved to work over a period of 6-7 months following the gastroscopy. He still suffers from stomach problems, although they are less frequent and less severe when they occur.

10The applicant missed work because of his illness, particularly when his condition worsened in 2010 and through the spring and summer of 2011. When Bruce Maisels still owned the company the applicant advised him of his illness. He stated that Mr. Maisels was sympathetic, as he had suffered similar problems. The company saw no problem in the applicant being absent when he was not feeling well, and at times Mr. Maisels brought non-prescription stomach medications to work for the applicant to use.

11The applicant testified that when Mr. Hatzinikolaou took over the company he was equally accommodating of the applicant’s illness. He understood that the applicant’s illness could be debilitating at times, raised no concerns when the applicant called in sick, and on two occasions sent him home from work because he did not look well. The applicant told him in advance when he had appointments with his gastroenterologist, and on the day he underwent the gastroscopy Mr. Hatzinikolaou called to see how he was doing.

12Following the gastroscopy the applicant’s doctor told him that the course of medicine he was being prescribed would not produce an immediate effect and would take time to work. He was told to advise his employer of this so that the employer would not have expectations of a sudden improvement in his condition. The applicant stated that he did so. He also asked Mr. Hatzinikolaou if he needed a note from his doctor and was told that was not necessary.

13On September 16, 2011 the applicant drove in to work to pick up a cheque. He testified that Mr. Hatzinikolaou told him that he was being let go from his employment because he had missed work too often and because of two customer complaints about the quality of his work.

14The Response alleges that the applicant would call in sick on Thursdays and Fridays or Fridays and Mondays, implying that this was malingering in order to extend his weekends. It also alleges that the respondent requested doctor’s notes and the applicant refused to provide them.

15The applicant testified that he did not keep a complete record of his attendance, but listed a number of dates, mostly in May and August, that he worked on Thursdays, Fridays and Mondays. Moreover, he stated that when he was off work it was because he was genuinely ill. Contrary to the respondent’s allegation, the respondent did not ask for proof of his incapacity, despite his offers to provide doctor’s notes.

16In relation to the customer complaints, the applicant acknowledges that one customer was dissatisfied, but this was because the respondent had directed him to repaint an older home without first doing the sanding and replastering that is required to restore an older home. He testified that he acted on the instructions of his supervisor. In relation to the other complaint, he felt that this was manufactured by Mr. Hatzinikolaou as a pretext to terminate him, and he asked to speak to the customer to verify the concern but Mr. Hatzinikolaou refused to let him do so.

17The applicant’s evidence is that when he questioned the reasons for his termination Mr. Hatzinikolaou became aggressive and intimidating, bumping the applicant with his chest and raising his voice. The applicant felt that there was no point in trying to address any of the reasons given for letting him go, but he refused to leave the office until he could get his tools. He claimed that Mr. Hatzinikolaou eventually called the police and he left before they arrived. Gianni Colantonio later gave him his tools back.

18Following his termination the applicant earned some money through painting contracts with his own clients. When this work ended in the fall of 2011 he applied for Employment Insurance benefits, but was denied as he had received benefits for two weeks at the end of June and this had exhausted his entitlement. He began work again in January of 2012 as a set painter in the film industry and through contracts with his own clients.

19The applicant described the impact of his termination as shocking because the respondent’s conduct had led him to believe that his illness would be accommodated. He stated that although he saw this as unfair, it was impossible to communicate with Mr. Hatzinikolaou because he was irrational and aggressive. He filed this Application because he saw the Tribunal’s process as the only means of letting the respondent know that its conduct was wrong. He testified that he was not looking for money and would not expect to recover any remedy from the respondent in any event, given its apparent insolvency. The applicant stated that he requested compensation in lost earnings only because he was advised by an officer of the Tribunal that he needed to complete his Application and had to indicate something in the way of a requested remedy in order to file the Application.

analysis

20The Code prohibits discrimination in employment on the basis of disability. Sections 5(1) and 9 read:

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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

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

21The Code also provides that there is no discrimination on the basis of disability if it would cause undue hardship to accommodate the disability. Sections 17(1) and (2) read:

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

17(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

22The respondent’s duty to accommodate up to the point of undue hardship consists of two elements, one is procedural and the other is substantive (See, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868). The procedural element requires an individualized investigation of accommodation measures and an assessment of the applicant’s needs. The substantive element requires a consideration of the accommodation offered or a respondent’s reasons for not providing accommodation.

23The issues I need to determine in this Application are whether the applicant was disabled and, if so, whether he requested accommodation of his disability. If he made that request, I must then decide what efforts the respondent made to accommodate that request without undue hardship. If I find that it could have and failed to do so, then I must decide what remedy the applicant is entitled to.

Was the applicant disabled?

24“Disability” is defined in s. 10 of the Code in its relevant part as:

. . . 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 . . .

25The applicant’s unchallenged evidence is that he suffered from a blockage in his intestine until it was treated in 2011. The impact of this illness was a great deal of physical discomfort that prevented him from working when he suffered from episodes of nausea, vomiting and diarrhoea. Given the uncontested evidence regarding his physical condition and its impacts upon him, I find that he suffered from a disability as it is defined in the Code.

Did he request accommodation, and was he accommodated?

26The applicant ensured that both the previous and current owner knew of his illness and that it could cause him to miss work. To the extent that this issue was addressed explicitly, the applicant was given reassurances by both Mr. Maisels and Mr. Hatzinikolaou that his medically-related absences would not jeopardise his prospects of being called for future work. The applicant kept Mr. Hatzinikolaou apprised of how his treatment was progressing, and I find that this amounted to an implied and ongoing request for this type of accommodation. Essentially, the applicant was telling the respondent that until he was diagnosed and treated he would have to miss work from time to time.

27The respondent accommodated that request until the applicant was abruptly told that he would no longer be working for the respondent. The real reasons for the applicant’s termination remain unclear. The applicant argued that his absences and the alleged customer complaints were pretexts to end his employment. He speculated that Mr. Hatzinikolaou was trying to save money by terminating him, as the business was being mismanaged and was doing badly.

28It is not necessary for me to determine that the applicant’s disability was the sole or dominant reason for ending his employment. I simply need to decide whether his disability was a factor in that decision (See: Velenosi v. Dominion Management, (1997), 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.); Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.)).

29Based on the applicant’s unchallenged evidence I conclude that the respondent had accepted and accommodated his disability in 2010 and 2011. There was no event or change in circumstances that might justify the respondent’s sudden decision to use the applicant’s absences as a basis for ending his employment. In light of this I conclude that the existence of the applicant’s disability served as a pretext to terminate his employment. As there was no evidence that continuing to accommodate the applicant would have caused the respondent undue hardship, and as his illness was explicitly identified as a factor in the decision to terminate, I conclude that the respondent discriminated against the applicant on the basis of disability.

What is the appropriate remedy?

30Subsections 45.2(1) of the Code provides that:

… the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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

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

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

31The applicant claimed $1760 in lost income. Based on his earnings of under $9000 up to the time he was terminated in September of 2011, this amounts to slightly less than two months of earnings. He earned some money from contracts in the remainder of September and October. In November he made a claim for Employment Insurance, and then began working again more regularly in January of 2012. The amount claimed is reasonable as it roughly approximates the earnings he lost as a result of being terminated, and I conclude that he should be awarded this amount.

32During the hearing I explained the scope of the Tribunal’s remedial powers to the applicant. He indicated that he was not seeking a remedy beyond the amount he identified in his Application. Rather, his aim was to obtain a finding that he had been discriminated against because he feels that the respondent needs to be sent a message that it cannot act as it did. Accordingly, I am not awarding compensation for injury to dignity, feelings and self-respect.

order

33The Application is granted because the respondent breached the applicant’s human rights when it terminated his employment.

34The respondent is ordered to pay the applicant $1760 in lost earnings, plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c.43 at a rate of 1.3% from September 16, 2011 to the date of this Decision. The respondent is to pay this within 30 days of the date of this Decision. If it fails to do so, then post-judgment interest at the rate of 3% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date.