HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Hodkin
Applicant
-and-
SCM Supply Chain Management Inc.
Respondent
DECISION
Adjudicator: Leslie Reaume
Indexed as: Hodkin v. SCM Supply Chain Management Inc.
APPEARANCES
John Hodkin, Applicant
Kimberley Walsh, Counsel
SCM Supply Chain Management Inc., Respondent
Andrew Ashenhurst, Counsel
Introduction
1This Application was 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 with respect to employment because of disability.
2The respondent provides logistics for Walmart, coordinating the receipt of merchandise from vendors and processing the merchandise for distribution to Walmart stores. The applicant commenced work for the respondent in Calgary in 1997. In 1999 he accepted a job with the new facility in Cornwall, Ontario. The applicant’s role as a “421 clerk” was primarily clerical but it was not disputed that the applicant worked in a fast-paced environment where he was required to engage his problem-solving skills and actively assist his team-members whenever he was needed. At times this would involve walking, climbing stairs, other forms of physical labour and the operation of machinery. The applicant’s role was to ensure that the correct freight was sent to the correct Walmart store in a timely fashion.
3The applicant was terminated after 13 years of employment on June 11, 2010. Prior to his termination he was diagnosed with osteoarthritis in his knee. He also required time off for back surgery for a temporary abscess in his lower back. The applicant alleges that the respondent failed to accommodate him. The respondent alleges that the applicant was accommodated to the point of undue hardship.
Facts
4The basic facts of this case are not in dispute. I have not found it necessary to rely on any findings of credibility in determining the outcome of this Application. It was also of great assistance to me that the parties agreed on a timeline and summary of the events underlying the Application.
5I heard testimony from the applicant in support of his Application. For the respondent, I heard testimony from the applicant’s assistant manager, Diane Lauzon and a representative from human resources, Denise Paquette.
6The job description for the 421 clerk indicates that the skills required for the job included:
Excellent problem solving and analytical skills;
Communication skills – both verbal and written;
Prioritizing abilities;
Attention to detail;
Accuracy;
PC Skills;
A thorough knowledge and understanding of receiving procedures and reports;
And the personal characteristics required for the job included:
Good with numbers;
Detail-oriented;
Responsible;
Organized;
Team-player.
7The applicant filed his performance evaluations for the years 2004 to 2009 which praise his contribution to the workplace. In April 2006 he was selected “Most Valuable Team Member” and described in these words: “What makes John valuable to Dance is his consistent quality of work, his knowledge and experience of the business and honesty”.
8From 2000 to 2008 the applicant’s position involved largely the same tasks including activities which assisted other members of the team. In 2008 there were discussions between the applicant and his assistant manager, Ms. Lauzon, about changes to his position which would be coming in 2009. On October 13, 2009 the applicant was advised by Ms. Lauzon that the clerical elements of the 421 Clerk job functions would be reduced and replaced with physical labour. A work-hardening plan was proposed to gradually increase the physical components of the work.
9The applicant understood from that meeting that his clerical duties would eventually be reduced to 2 hours a day. The applicant admitted that he was very upset at the changes the respondent was imposing. He testified that he was concerned because he was over 50 years of age at the time and he had not worked in a position that required that level of physical exertion for many years. The applicant admits to telling Ms. Lauzon, out of frustration, that the company should just give him a severance package because his position was essentially being eliminated. The applicant refused to sign the work hardening plan and left the workplace shortly after the meeting because of stress.
10The applicant made a claim for short term disability for workplace stress which was not approved and on November 16, 2009, he returned to work without restrictions. There was no evidence to rebut the applicant’s testimony that he felt overwhelmed by stress and needed to take time off to recover. There was similarly no evidence that the applicant was disciplined in any way for unexpectedly taking time off work.
11After returning to work on November 16, 2009, the applicant worked eight normal shifts before the same work hardening plan was re-introduced on November 27, 2009. The applicant testified that during his time off he had over-come his stress and decided that he would do the work that he was assigned. The applicant was assigned to drive a “reach”, a machine which is operated in the standing position and used to retrieve product from high shelves in the warehouse. The applicant began to experience pain in his leg on the first day of his work hardening. He went to the hospital and was eventually sent to see an orthopaedic surgeon named Dr. Lemoine. The applicant was unaware at this time that he was suffering from osteoarthritis.
12The applicant filed a Workplace Safety and Insurance Board (“WSIB”) claim in relation to the knee issues he was experiencing on November 27, 2009. Ms. Paquette who was working in human resources at the time and responsible for issues of accommodation, testified that she first became aware at that point that the applicant was experiencing difficulties with his knee. The applicant worked light duties until he was assessed by Dr. Lemoine.
13On December 10, 2009, the applicant was diagnosed by Dr. Lemoine with osteoarthritis. The applicant continued to work on modified duties with a plan to return to regular duties January 3, 2010. Ms. Lauzon testified that no adaptations were made to the work hardening plan. I note that WSIB ultimately concluded that for its purposes, the work-related knee injury was resolved as of December 10, 2009.
14From December 24, 2009 until January 4, 2010, the applicant was off work on vacation and statutory holidays. On January 5, 2010, the applicant returned to work for 2 shifts on modified duties.
15And then suddenly a separate, temporary, medical issue arose. Over the holidays the applicant had discovered a large abscess in his lower back which required surgery. On January 7, 2010, the surgery took place and the applicant remained off work on short-term disability while his incision healed. The applicant was initially scheduled to return to work on February 19, 2010. That date was changed to March 22, 2010 with a full recovery expected by April 12, 2010.
16On March 15, 2010, Denise Paquette, from the human resources department, contacted the applicant to find out whether he was still experiencing problems with his knee. She was aware that he had been cleared to return to work on a gradual basis from the back surgery but she was unsure about the status of his knee. The applicant advised Ms. Paquette that he was still experiencing pain and was seeking further medical treatment. On March 17, 2010 the applicant was also advised by another human resources representative that he would need a new Functional Abilities Form before he could return to work on March 22, 2010.
17On March 22, 2010, the applicant returned to work with restrictions for both his right knee and his back surgery. He required a gradual return to work because he was still recovering from back surgery. The applicant was given the job of creating labels using blank white squares to which he added dates from 1 through 31 using a crayon. The applicant gradually increased his hours at work making labels. However, he was not returned to his position as a 421 clerk, no adaptations were made to the work-hardening plan and there was no discussion with the applicant about how his original position might be modified to meet both the applicant’s physical limitations and the employer’s needs.
18While the applicant’s expected date of full recovery from back surgery was April 12, 2010, on that date the applicant attended a medical appointment with Dr. Rainer for his knee. Dr. Rainer’s note indicates that the applicant will require light duty for the foreseeable future and that he cannot/should not resume physical labour.
19Ms. Paquette testified that in her view, this medical report ruled out the work hardening plan. It was at that point that she began considering what other positions there might be in the building that the applicant was capable of doing within his restrictions. Ms. Paquette testified that she looked for positions for the applicant and that she asked the various managers if there were parts of jobs that could be put together for the applicant. Ms. Paquette testified that there were 13 departments and that at morning operations meetings she asked the managers present if they had anything available. None of the managers got back to her to indicate that they had positions or tasks that could be bundled together for the applicant. There was no documentary evidence related to the search for alternative positions or bundling of tasks and Ms. Paquette did not recall the specifics of the conversations she had with managers.
20Ms. Paquette testified that while there were no positions available, she was able to identify a position that was likely to become available in the near future. The position was clerical in nature and also involved some handling of freight. She made inquiries and concluded that the position was likely outside the applicant’s restrictions and that the applicant should be sent for an independent medical assessment (“IME”) to see if he was capable of doing the job.
21Ms. Paquette testified that an email was sent to the company contracted to do the assessment. She testified that “we advised them of the job requirements so that he can be evaluated against it”. Ms. Paquette asked the HR staff not to award this job to the person who had been doing it on a temporary basis and not to post it. The human resources staff were instructed to hold off to see if the position was suitable for the applicant. The requirements of the job were not discussed with the applicant to obtain his perspective and the perspective of his physician on whether he could do the job. The applicant was not advised of the connection between the assessment and the position he was being considered for. Ms. Paquette testified that she thought the job was outside of his restrictions and wanted to ensure that it was a fit before she discussed it with him.
22On May 11, 2010, the applicant took the train to Toronto and completed the first day of his two-day assessment which included lifting weights, squats and other timed physical movements. On his way back to the hotel from the assessment, the applicant realized that the incision from his back surgery had opened. On May 12, 2010, the second day of his assessment, the applicant was referred to a local walk in clinic for medical treatment. The clinic physician recommended that the applicant not lift weights or do squats for 1 week. As a result, the applicant was unable to complete the second day of the assessment and he returned home.
23The next day, on May 13, 2010, the applicant returned to work on light duties and completed his scheduled work shift. The applicant handed in his medical form from the clinic in Toronto to Ms. Paquette. Ms. Paquette testified that if the IME had come back with a different result, the applicant would have been offered the position she had identified for him. It was not disputed that the applicant did not hear from Ms. Paquette again until he was terminated on June 11, 2010. There was similarly no dispute that the applicant was not approached by anyone to have a discussion about accommodation or returning to complete the IME - he simply continued to make labels.
24Ms. Paquette testified that her conclusion about the IME was that it did not confirm the applicant’s ability to do the job she had him assessed against. Based on the applicant’s previous restrictions and his inability to complete the IME, Ms. Paquette concluded that the applicant would not be able to do the job. When she was asked in cross-examination why the applicant was not sent back to complete the IME, Ms. Paquette responded that she did not think there would be a different result based on the other doctor’s notes she had received.
25On May 14, 2010, the applicant sought further medical attention for the incision that opened during the assessment. On May 15, 2010 the applicant returned to work. He was on bereavement leave on May 18, 2010 and then from May 19 to June 11, 2010, the applicant worked his scheduled shifts until he was terminated.
26On June 11, 2010, the applicant was called into a meeting with Ms. Paquette and a manager named Peter Collins, and he was informed that he was being terminated because of his knee and because he could not complete the IME in Toronto. The applicant was informed that because of these two issues, there was no suitable work for him.
27The termination letter dated June 11, 2010 includes the following statements which relate to the reason for termination:
This letter will confirm our meeting of today regarding your inability to successfully complete the Functional Abilities Evaluation (the “FAE”) at the Mobile Assessment Centre on May 11 and 12, 2010.
We scheduled you to attend the FAE in an attempt to better understand what physical restrictions you may have and to match those restrictions with available and suitable work at SCM. Our particular concern is that you have reported problems doing physical work due to your knee and surgery performed on your lower back in January 2010. While you completed Day 1 of the FAE, you were unable to complete Day 2 because you said the testing on Day 1 had opened scar tissue from your surgery. The fact that you reported this issue after only one day of testing suggests that work in our environment is not physically suitable for you.
As such, it is appropriate to end your employment….
28Ms. Paquette testified that she managed issues related to accommodation along with another human resources administrator at that time. She was not, however, responsible for the decision to terminate the applicant and no evidence was offered from the person or persons responsible for that decision. Ms. Paquette testified that she recommended termination because there was no position available that would match the applicant’s restrictions.
29There were several emails produced relating to the termination of the applicant which Ms. Paquette was copied on. The content of the emails was not disputed by the respondent. The primary emails are authored by Carolyn Gagnon, Area Human Resources Manager. Ms. Gagnon did not testify despite the fact that I provided the respondent with an opportunity to call Ms. Gagnon in relation to the emails and the decision to terminate the applicant.
30The emails establish that a number of individuals were engaged in discussions about how to deal with the applicant before April 12, 2010, the date on which the applicant received his note from Dr. Rayner advising him to undertake light duties for the foreseeable future.
31The first email is dated April 12, 2010 at 2:19 pm from Ms. Gagnon to a number of employees. The text reads as follows:
Further to last week’s discussions I would just like to check one more time for your thoughts on John’s termination.
We actually have 2 options to consider before rendering a final decision:
Option 1
John has less than 20% report clerk work left in his current position due to business changes. Based on this we can declare his position redundant and not having anywhere to put him terminate him without cause based on redundancy of his position.
RISKS:
John does not have a termination clause in his contract so when we terminate him with a package of approx. 18K he may be successful in getting another 18K if he goes to a lawyer and sues us. Depending on his representation, there could be a slim possibility that he could take us to Human Rights but this is highly unlikely because he doesn’t have a case.
Option 2
John stays and we continue to try to work harden him (which he is strenuously objecting to with doctor’s notes and such.) Two internal support businesses have been approached about taking John on a part time basis and both have expressed serious concerns about bringing him into their groups because of his attitudinal issues.
RISKS
Should John have a work related injury (high probability from our WSIB Coordinator) could cost the company in excess of $300K and we would be on the hook for him for another 3 years.
Please let me know which option you wish to proceed with as soon as possible.
32The applicant’s supervisor, Ms. Lauzon, responded to that email on the same day, April 12, 2010 at 3:39 pm recommending that the applicant be terminated for job redundancy. She states:
My concern after having a conversation with John Last Thursday, that when he is to return to regular duties and we begin the process of work hardening, he will get injured. I say this as he stated himself that he cannot perform the jobs of order filling and reach for 6hrs daily.
33The following day, April 13, 2010, Brenda Buiting responds by email at 6:40 am indicating her agreement with Ms. Lauzon: “I agree with Diane my concern is him returning to regular duties, I can see him being a WSIB case considering he states he cannot do the jobs of order filling.”
34The final email in the series is from Carolyn Gagnon dated April 13, 2010 at 9:38 am. Ms. Lauzon and Ms. Paquette are both copied on the email. The text reads as follows:
It appears that from all written and verbal responses everyone is agreement to declare John’s position redundant, which in effect it is already, and we will terminate.
As discussed last week I think that it is a good idea for Brenda and I to do the termination given the nature of this person.
Denise/Mark please prepare the redundancy letter and package for John with a date of Tuesday April 20, 2010. Brenda are you ok with this date. We will do it in the morning around 9 or 9:30. Please give him a gratuity that will equal to 18K when added to ESA and Severance
35There was no explanation provided as to why the original decision to terminate was changed and the decision was made to send the applicant on the IME on May 11.
36By the time of these discussions, the applicant had begun his gradual return to work from back surgery less than 3 weeks before. I note that the options suggested by Ms. Gagnon do not include the development of an accommodation plan for the applicant which would address both his recovery from back surgery and his ongoing problems with his right knee.
37The applicant testified that he would have considered a transfer with the company. Ms. Paquette testified that there were 3 warehouses in Canada the size of the one the applicant worked in and 4 other smaller distribution centres. She was asked in cross-examination whether she discussed a transfer with the applicant. She did not look for a position at the time, but to her knowledge, there were no jobs in any of the warehouses that would have fit the applicant`s restrictions. Ms. Paquette agreed that if the applicant had advised her of his interest in a transfer, she would have discussed it with him, however, she did not raise this issue with him.
38When he was terminated, the applicant was paid $15,272.00, representing 8 weeks of pay in lieu of notice, vacation pay and 9.75 weeks of statutory severance pay. He was offered a gratuitous payment of $3000.00 in exchange for a full and final release which he refused to accept.
39Prior to his termination the applicant had been approved for a day off on June 24, 2012 in order to see the doctor who had performed his back surgery for a follow-up. It was not disputed that it was Ms. Paquette who approved the day off. The applicant was terminated on June 11, 2010 before the respondent could receive information on how the applicant’s wound was healing from the injury he sustained during the IME. The applicant testified that by June 11, 2010, his incision was healing very well and that was the last follow-up appointment he required with his back surgeon. He testified at the hearing that his back is 100 percent recovered and “strong as an ox”. The applicant also testified that his knee continues to bother him and that he has been advised that eventually he will require surgery.
40The only other testimony which related to the accommodation issues was that of the applicant’s direct supervisor, Ms. Lauzon. She testified that she had more direct communication with the applicant over the work-hardening plan. She described the applicant as difficult and resistant to the changes she was introducing, however, her testimony did not assist in helping me understand the steps that were taken to develop an accommodation plan for the applicant. Ms. Lauzon testified that her hands were tied because of the applicant’s restrictions and that making labels was the best place for the applicant to be at the time.
Analysis
41It is well established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.
42Discrimination is not defined in the Code, however, it is found where a protected characteristic, in this case, disability, is connected to some form of adverse treatment experienced by the applicant. Where the applicant proves this connection and the respondent is unable to provide an appropriate justification, discrimination will be found to have occurred. See, Moore v. British Columbia (Education), 2012 SCC 61.
43There is no dispute that the applicant’s terminate was connected to his disabilities. The applicant was suffering from osteoarthritis in the knee and also recovering from back surgery and the incision in his back opening up during the IME. This evidence establishes the necessary connection between the disadvantage experienced by the applicant and the ground of disability. The respondent argues that the applicant was terminated because the respondent was unable to provide accommodation within his restrictions. The case therefore turns on whether the respondent is able to prove that the applicant was accommodated to the point of undue hardship.
44Accommodation is defined in section 17(2) of the Code
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.
45The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; 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, at paras. 22 and 42–45. The respondent must take adequate steps to explore what accommodation is needed, including obtaining the relevant information needed to effectively assess the accommodation options. The applicant’s role is to cooperate in the accommodation process which most often involves responding in a timely fashion to the respondent’s requests for information about the applicant’s limitations. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.).
46In my view, there is insufficient evidence to find that the respondent accommodated the applicant to the point of undue hardship. The applicant was presented with a plan to gradually phase out his clerical duties and replace them with tasks which required more physical exertion than the applicant was used to. When he started his work hardening program, the applicant was immediately injured because he had an underlying medical condition that he was not aware of until he was physically stressed in the workplace. There is no dispute that he was placed on light duties and that he was properly accommodated with light duties when his knee was first injured. The problem arises on March 22, 2010 when the applicant embarks on a graduated return to work from the back surgery and the employer learns that the applicant is still having difficulty with his knee.
47It is clear from the email chain that the applicant’s termination was underway before April 12, 2013. It is also clear that the applicant was viewed as a WSIB liability and a person who was using his doctor’s notes to push back against what the employer viewed as legitimate changes to his position, by the individuals involved in the decision to terminate him.
48In my view, the prudent course of action with a 13 year employee in his early 50’s would have been to conduct an IME or in some other way, determine the applicant’s capacity to undertake the physical demands of his changing position before the work hardening program was introduced.
49I agree that the limited text contained in Dr. Rayner’s note of April 12, 2010 is not particularly helpful to the applicant or his former employer:
The patient has been advised to: undertake light duties for the foreseeable future: Due to severe osteoarthritis in his right knee and that he cannot and should not resume physical labour
However, the appropriate step to take in those circumstances would have been to undertake an IME for the purpose of identifying in a more comprehensive way, what the applicant was physically capable of doing, so that the employer could undertake a more exhaustive search for a position or a bundle of tasks which would match the applicant’s restrictions.
50Ms. Paquette admitted that the IME was conducted in order to confirm the applicant’s ability to undertake the job she had identified for him. She did not believe that the IME would substantiate the applicant’s ability to do the job. The stated purpose of the IME was to measure the applicant against the requirements of an existing position. The focus was entirely on the applicant being able to perform all of the tasks of the new position and not on how this position, or any other, might be modified to meet the legitimate needs of the applicant and the employer.
51The applicant was in the early stages of his diagnosis of osteoarthritis when he returned to work from his back surgery. He was then injured in the course of the IME and he was not given an opportunity to heal and complete the second day. The explanation given by Ms. Paquette for not giving the applicant the opportunity to complete the IME was that she did not expect a different result. However, the reason he could not complete the IME was because he opened a surgical wound in his back, a situation which would have resolved in time and in fact was resolved by June 2010. On that basis alone I would find that the respondent failed to accommodate the applicant to the point of undue hardship.
52Apart from the circumstances of the IME, there was also no dialogue with the applicant. There was no dispute that the purpose of the IME was not discussed with him nor were there any discussions following his return from the IME. The accommodation process requires communication and collaboration between the employer and the employee in order to conduct an exhaustive search for positions or tasks that match what the applicant is capable of doing despite his restrictions.
53There was insufficient evidence to establish that serious consideration was given to how the applicant’s home position could be retained or modified to suit his restrictions. He was simply confronted with the same work hardening process each time he returned to work. Ms. Paquette testified that when she received news of his permanent restrictions, she simply ruled out the work hardening plan.
54There was also insufficient evidence to establish that the search for other positions or the bundling of tasks was conducted in a manner which was appropriate or exhaustive. Even if I accept that Ms. Paquette asked other managers to consider what they might have available for the applicant, this is insufficient to demonstrate that there was a coordinated effort to identify tasks that the applicant could do before the decision was made to terminate his employment. The email of April 12, 2010 confirms that two internal support businesses were approached about taking the applicant on in a part time capacity and both expressed serious concerns about bringing him into their groups because of his “attitudinal issues”. There was no explanation offered as to why these impressions about the applicant were not investigated by the employer in order to confirm whether or not they were legitimate or based on stereotypes about the applicant as a disabled worker.
55Finally, the email chain initiated by Ms. Gagnon suggests a serious lack of understanding about what constitutes the duty to accommodate. The first email in the series sets out two options, neither of which involved the search for an accommodation. The applicant was viewed through the very stereotypic lens that his “doctor’s notes and such”, including his WSIB claim, rendered him difficult and resistant to the changes the employer was attempting to bring into effect. This is a most unfortunate perspective to take on what should have been a positive, sensitive, compassionate, accommodation dialogue between a productive, long-serving employee and his employer.
56For all of those reasons I find that the respondent has failed to establish that the applicant was accommodated to the point of undue hardship. I turn now to the question of the appropriate remedy.
Remedy
57The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides the Tribunal with the discretion to order monetary compensation for injury to dignity, feelings and self-respect, to order restitution other than through monetary compensation and to direct any party to do anything to promote compliance with the Code.
58The Code is remedial and not punitive. Orders of the Tribunal should provide individuals who have been discriminated against with access to fair and effective remedies tailored to the facts of the case in order to achieve this remedial purpose. See, Heintz v. Christian Horizons, (2008) HRTO 22.
59In this case the applicant is seeking lost income equivalent to one year at his annual salary which the parties agreed was $38,000.00. He is also seeking $10,000.00 in compensation for injury to dignity, feelings and self-respect and training a policy development to promote future compliance with the Code.
60When he was asked why he filed an application with the Tribunal, the applicant responded that he had given the company 13 years of dedicated service and when he had a medical condition he was “kicked to the curb”. He testified that he had never been terminated from a job and as a man in his mid-50’s he was shocked and fearful about the prospect of starting over again. The applicant described himself as depressed, confused, shocked and unsure about how to deal with this dramatic change in his life.
61The applicant received employment insurance benefits and participated in an adult training program to update his computer skills. He also took an AZ driving course because he felt that work as a driver might be suitable for his knee restrictions. He graduated from that course but continues to have a difficult time finding employment because he does not have sufficient driving experience. In November, 2011 he started work as merchandiser with Coca Cola on a part-time basis, arranging pop in the aisles and on display. He continues to apply for jobs within and outside Ontario, for driving positions and more recently for a new warehouse located in Cornwall which was not yet open at the time of the hearing.
Injury to Dignity, Feelings and Self-Respect
62Prior to the coming into force of section 45.2, the Tribunal had developed relevant criteria for assessing damages to compensate for an applicant’s inherent right to be free from discrimination and for mental anguish. See, for example Ketola v. Value Propane Inc. (2000) O.H.R.B.I.D. No. 14 and Sanford v. Koop, 2005 HRTO 53,. Since the coming into force of section 45.2, the Tribunal has found the criteria developed in those previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See, Hughes v. 1308581 Ontario, 2009 HRTO 341.
63The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), at paragraph 153, held that the following are among the factors that the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. The Court also recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee”.
64In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents.
65I find that the applicant’s request for $10,000.00 for injury to dignity, feelings and self-respect is substantiated by both the objective seriousness of the respondent’s conduct toward him and the applicant’s own evidence about the effect that the experience of discrimination had and continues to have, on him.
Lost Income
66Subsection 45.2 (1)1 of the Code directs the Tribunal to consider what loss arose “out of the infringement” of the Code when considering the proper amount of monetary compensation. In Airport Taxicab (Malton) Assn. v. Piazza, (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.), the Court of Appeal for Ontario at para. 45017, stated that:
The purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred”. I find nothing in the language of the foregoing section which would import into it the limit on compensation which is imposed by the common law with respect to claims for wrongful dismissal.
67This is not to suggest that the claim for compensation for lost wages is unlimited. The Tribunal in Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 affirmed a limit which involves an evaluation of the impact of the respondent’s conduct on the complainant’s ability to earn a living. Compensation under the Code is the subject of a different analysis than the calculation of common law damages for wrongful dismissal. As a result, the period of compensation awarded under the Code may at times exceed, reflect or fall below the standard of reasonable notice. See: Osvald v. Videocomm Technologies, 2010 HRTO 770; Keele North Recycling v. Human Rights Tribunal of Ontario, (2013) ONSC 268 (Div. C.t.).
68To put the applicant in the position he would have been but for the discrimination, is to put him back at the point at which the changes were introduced to his position. Had the employer taken the prudent step of testing the applicant’s capacity for the physical work that would be required of him, that testing would have resulted in at least three possible options: the first is that a proper work hardening plan might have facilitated a successful transition into the applicant’s new role; the second is that the testing would have revealed the applicant’s inability to undertake his new role and the applicant would have been properly accommodated in another position; the third option is that after an exhaustive and bona fide search for a position that would accommodate the applicant’s restrictions, the applicant and the employer would have come to a fair arrangement regarding his termination. The applicant would then have received his severance package without regard to whether or not he earned other income going forward from that point.
69The applicant has requested a payment of $38,000.00, the equivalent of one year of lost wages. His claim is similar to the one he might have advanced in a claim for wrongful dismissal although that comparison is irrelevant to my analysis. My decision is based on remedying the losses experienced by the applicant as a result of the discrimination he experienced. The applicant’s own sense of what is fair and just in the circumstances is an important consideration in that analysis.
70The applicant’s claim is well within the range of loss that I would find attributable to the failure to accommodate given his age, the work he is qualified to do and his diligence in re-training and attempting to find other work. In addition, I would not make any deduction from this figure for his mitigation efforts. However, I would include a deduction for the sum of money that was paid to him by the respondent at the time of termination.
71I have made the decision not to include a deduction for the applicant’s mitigation efforts because of the discrete facts of this case. The applicant’s request was tied to his belief that the equivalent of one year of salary is what he would have found acceptable if his employment had come to an end where discrimination was not a factor. In addition, the evidence substantiates a finding that the effects of the termination on the applicant continued to reverberate in his life well beyond the first year. In my view, this is the remedy which most effectively puts the applicant back into the position he would have been in but for the discrimination he experienced.
72I also note that granting the applicant’s request for lost wages gives the respondent the benefit of the doubt that the termination would have taken place in any event, an inference which I would not have drawn from the evidence before me.
73For those reasons, I find that an additional payment of $22,798, subject to statutory deductions, representing the difference between $38,000.00 and the money paid to the applicant at termination, is appropriate in these circumstances.
74In his Application, the applicant asked for out-of-pocket expenses in the sum of $2000.00. I did not hear evidence from the applicant with respect to this loss and decline to make an order in relation to the request.
Promoting Future Compliance
75In Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789 at paragraph 109, the Tribunal states:
The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”.
76It is clear from the evidence that the respondent is not fully aware of the essential elements of the duty to accommodate. In these circumstances, I find that it is appropriate to direct the respondent to retain an expert in human rights, of its choosing, to review its human rights policies and to train all of its current employees holding the rank of manager or higher as well as the entire staff in human resources, with respect to the revised human rights policy, the Code, and the duty to accommodate.
Interest
77The applicant is entitled to interest on both monetary awards. I have calculated the interest in accordance with sections 127 and 128 of the Courts of Justice Act, R.S.O. c. C. 43, as amended (“CJA”).
78Pre-judgment interest runs from the date of the infringement to the date of this Decision. While entitlement to prejudgment interest runs from the date of infringement, the rate itself is based on when the application was commenced. Prejudgment interest rates are determined by the Ministry of the Attorney General in accordance with the formula set out in section 127 of the CJA. A chart is published by the Ministry showing the prejudgment interest rate for each quarter. (See also, O.Reg. 339/07, as amended)
79In this case, the Application was commenced on April 8, 2011. That date falls within the second quarter of 2011. The chart shows that the prejudgment interest rate in effect in the second quarter of 2011 was 1.3%. The applicant is therefore entitled to interest on the award of $10,000.00 for loss arising from the infringement of his rights under the Code to be calculated at a rate of 1.3% from the date of termination, June 11, 2010 to the date of this Decision.
80The CJA provides a different provision for the calculation of special damages like pre-hearing income loss. That formula recognizes that lost income generally accumulates over time. It would not be fair in those circumstances, to calculate interest on the full income loss as if it arose on the date of the infringement. However, in this case, I have calculated the income loss as a lump sum which arose at the point of the infringement rather than lost income which accumulated over time. The applicant is therefore entitled to prejudgment interest on the lost income award of $22,798.00 at a rate of 1.3% calculated from June 11, 2010 to the date of this Decision.
81Postjudgment interest runs on both monetary awards from the date of the Decision. This Decision falls in the second quarter of 2013. The interest rate in effect for that period is 3%.
Order
The respondents shall pay the applicant $10,000 for his losses arising from the infringement of his rights under the Code;
The respondents shall pay to the applicant the sum of $22,798.00 subject to statutory deductions for lost income arising from the infringement of his rights under the Code;
The respondent shall pay prejudgment and postjudgment interest in accordance with paragraphs 77 to 81 of this Decision.
Within 120 days from the date of this Decision, the respondent shall confirm to the applicant in writing that it has retained a human rights expert of its choosing who has;
(i) assisted with the review and revision of its human rights policies, and that a copy of the revised human rights policies has been distributed to all of its employees; and
(ii) trained all of its employees holding the rank of manager or higher, as well as the staff in human resources with respect to the revised human rights policy, the Code and the duty to accommodate.
Dated at Toronto, this 28th day of May, 2013.
“signed by”
Leslie Reaume
Vice-chair