Zaigh v. SB Towing Inc., 2014 HRTO 1010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Zaigh

Applicant

-and-

SB Towing Inc. and Brenda Schrans

Respondents

DECISION

Adjudicator: Dawn J. Kershaw
Date: July 10, 2014
Citation: 2014 HRTO 1010
Indexed as: Zaigh v. SB Towing Inc.

APPEARANCES

Samuel Zaigh, Applicant
Linda Vannucci, Counsel

SB Towing Inc. and Brenda Schrans, Respondents
Deborah Hudson, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing was held on February 26 and 27, 2014. The parties filed written closing arguments, with the last of these being submitted by the respondent on April 17, 2014 in response to the applicant’s reply submissions. The respondents took issue with the scope of the applicant’s reply, and the Tribunal has disregarded those reply submissions as well as the respondents’ additional submissions in response to those the Tribunal finds to be beyond the scope of reply submissions.

3The parties also agreed at the outset of the hearing to bifurcate this hearing and deal with remedy at a later date, if necessary.

4For the following reasons I find the respondents discriminated against the applicant and provide directions for the resumption of the hearing to address remedy.

background

5The applicant began working for the respondents as a battery technician on February 1, 2007.

6The respondents had a contract with CAA to provide services to CAA members. The applicant’s duties included driving a truck to provide assistance to motorists by delivering fuel, changing tires, replacing batteries and boosting and unlocking cars.

7The applicant alleges discrimination on the basis of disability because he was fired on August 8, 2011 when he advised the personal respondent, Brenda Schrans, that he was going to file a WSIB claim. The applicant had last worked on July 18, 2011.

8The respondents deny the applicant’s allegation and assert that the applicant abandoned his employment.

legal principles

9The relevant provisions of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of […] disability.

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,…….

(b) a mental disorder, or

(c) 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 Evidence

10The applicant testified that in January 2009, he had work restrictions and could not change tires. This was evidenced by Dr. Bruckschwaiger’s January 12, 2009 medical note, which provided he could otherwise work full-time and could return to full duties in two weeks.

11The applicant testified that there were no other medical issues until February 2011. The personal respondent confirmed there were no other medical documents on file for the applicant between 2009 and 2011. The applicant testified that in February 2011 he began to get more pain in his right neck and shoulder blade area from changing a lot of tires. He mentioned this to the personal respondent. The applicant testified that she replied that he was young and if he did not like it, he could quit.

12The personal respondent did not deny telling the applicant that if he did not like his job he could quit, but she believed it was in April 2011 when she and the applicant had a disagreement about money. She alleged he kept her work truck and refused to return it, and she got the police involved. Thereafter, the applicant was put on probation and had to sign a document for the personal respondent, dated April 30, 2011, in which he promised, among other things, not to withhold the truck again for any reason, to keep up his required CAA statistics (CAA requires certain installation and sales rates), keep up a professional look and keep the truck clean and organized.

13By May 2011, the applicant testified that his pain had decreased because of doing fewer tire changes. However, on June 13, 2011 he had to do four tire changes and his log sheets confirm this fact. This resulted in his telling the personal respondent that he had been having a lot of pain since February 2011 but had not told her until that day because of her reaction the year before. He testified that she reiterated what she had said in February 2011. The personal respondent denies that the applicant told her about pain on June 13, 2011.

14The applicant and personal respondent agree that the applicant worked on both June 14 and 15, 2011. The personal respondent testified that work records show the applicant did not take time off in June 2011.

15The applicant testified he told the personal respondent he was having pain on July 12, 2011. She denies this conversation occurred and states she was visiting family out of the province between July 12 and 18, 2011.

16The applicant testified he was off work from July 14 to 16, 2011 because of pain. He worked on July 17 and 18, 2011.

17The applicant went to his doctor during his shift on July 18, 2011. Dr. Bruckschwaiger gave him a medical note stating that he should be off work from July 18 to 24, 2011 for a muscle pull on the right side of the neck and shoulder, which is referred to as an “old injury”. The applicant assumed this was a reference to the pain being a recurrence of pain originally precipitated by his 2008 motor vehicle accident.

18On July 18, 2011, the personal respondent was away. The applicant called in to say he would not be in to work. He spoke to the personal respondent’s son-in-law, who also works at the corporate respondent, and told him he had hurt himself sleeping and had a stiff neck. He testified that he gave this version of his condition to the son-in-law to “brush him off” because he does not report to him.

19On July 24, 2011, the applicant texted the personal respondent and advised he would not be able to return to work on July 25, 2011. He got no response. He texted her again on July 25, 2011 and advised that the earliest he could get a doctor’s appointment was July 27, 2011. The applicant testified he received no response. The personal respondent denies this and testified that she called him on about July 25, 2011 because she had not heard from him and needed another medical note if he was not returning to work that day.

20The applicant testified that he believed he next attended with his doctor on July 27, 2011 although there was no medical note from that date.

21The personal respondent testified that she tried to call the applicant on August 1 or 2, 2011 but did not leave a message.

22The applicant testified that he left a phone message for the personal respondent on August 8, 2011 to advise he would be starting a WSIB claim. The personal respondent testified that she was shocked he was alleging this was work-related because 2 or 3 people had told her that he had reported his neck pain as being caused by sleeping on it “funny”. She testified she left him one message on August 8, 2011 saying she did not know what he was talking about because everyone else was saying that he had hurt himself sleeping, and further advised she would be calling WSIB to let them know that she had witnesses there that say he called in and said he hurt himself sleeping. The applicant provided an audio recording and transcript of the personal respondent’s voice mail message, which confirms this.

23The applicant testified that he called the personal respondent a couple of hours later. She told him he did not have a WSIB claim to make and he no longer worked for the respondent company. He testified she more or less just hung up and he was left speechless.

24The personal respondent denied terminating the applicant. She testified that she kept him on her insurance until December, 2011 because drivers come and go all the time. She testified that it is not her practice to fire people because it is hard to get drivers, particularly those who are trained. She testified that if he had asked to come back, she would have put him back in a truck.

25The personal respondent testified that she contacted WSIB on August 8, 2011 and was told that she did not have to file a Form 7. WSIB advised her that the applicant had not filed a claim. The applicant confirmed he did not file a claim until April 2012 because he did not know his rights in light of the personal respondent insisting he was an independent contractor. The applicant had signed a document on February 1, 2007 that set out his obligations as a contractor for the respondent, and also signed an Independent Contractor Agreement on May 13, 2011. Revenue Canada subsequently audited the corporate respondent and determined that the drivers were employees. The Tax Court of Canada confirmed this in November, 2013.

26The applicant saw his doctor again on August 9, 2011. The clinical note from that date states that it was a follow up for neck and back pain which the applicant felt was related to work performing tire and battery changes. It is noted he had not returned to work since July 18, 2011 and that his chronic musculoskeletal pain had a gradual onset over 7 prior motor vehicle accidents and then flared up at work in February, 2011. He was prescribed medication to address his condition. The doctor notes it will be very hard for him to make a credible WSIB claim.

27The applicant testified he next saw the personal respondent on August 20, 2011 when he was told to come and get his cheque. He brought the July 18, 2011 doctor’s note and his prescription, hoping that he was not fired as a result of the August 8, 2011 telephone conversation. He testified he was still in a lot of pain. He did not give the personal respondent any other medical notes after August 20, 2011 because he considered he was terminated.

28The personal respondent denied that the reason she did not call him after August 20, 2011 was because she had told him he was terminated. She testified that usually drivers will call her if and when they wish to return to work. The applicant testified that he did not ask for more shifts after August, 2011 because he was terminated. He further testified that by then he did not want to work for the personal respondent anymore anyway because she never once called him to see how he was doing or if his injury was work-related. He felt she had no respect for him.

29The applicant denies the personal respondent ever told him he could return to work when he was feeling better, or that she ever asked him when he was coming back. He has not returned to work since that time.

30In April 2012 when the applicant filed his WSIB claim, the eligibility assessor (“EA”) from WSIB contacted the personal respondent. She denied knowing anything about an injury to the applicant. The EA’s memo states that she advised the personal respondent that the applicant had a recorded voice mail message from her confirming the injury. The memo further states that the personal respondent then recanted and admitted to knowing about the injury but denied it was ever reported as work-related. However, when asked about the voice mail message she testified that she knew the applicant claimed the injury was work-related.

analysis and decision

31The applicant bears the onus of proving on a balance of probabilities that his rights under the Code have been infringed. A balance of probabilities means that it is more likely than not that the applicant’s rights have been infringed. It is also well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination.

32The applicant first must establish that he had a disability within the meaning set out in subsection 10(1) of the Code. I am satisfied that he had a disability as defined in subsection 10(1)(a) of the Code based on his doctor’s note confirming the existence of an injury and ongoing condition which causes pain and limits his function.

33With respect to the evidence, credibility or lack of it, was an overarching theme in this case. Both the applicant and personal respondent lacked credibility at times, which means that I could not rely on any of the evidence in its entirety. In order to resolve the credibility issues, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (“Faryna”), which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

34While others besides the personal respondent and applicant gave evidence, it was very limited and for the most part, except as noted below, did not assist me in determining the issues in this case.

35The respondents submitted that the applicant’s credibility was questionable because his family doctor stated in his clinical note of August 9, 2011 that the applicant’s WSIB claim was “not credible”. However, the clinical note actually states, after reciting the fact that his pain had a gradual onset over 7 different MVA’s and then flared at work in February, 2011, “[g]iven this hx [history] will be very hard to make a credible WSIB claim” which I find does not call into question the applicant’s credibility as much as it calls into question his ability to make a WSIB claim given the history of motor vehicle accidents and the gradual onset of the pain.

36The personal respondent’s credibility with respect to the WSIB claim, on the other hand, was undeniably in question. She denied knowing anything about an injury when the EA contacted her in April 2012. She recanted this once she was told the applicant had a voice mail message confirming the discussion. She then denied that the injury ever was reported as work-related. This contradicted her evidence. She testified, when asked about the voice mail message, that she knew only that he was claiming the injury was work-related.

37The personal respondent also testified that it is not her practice to terminate employees, especially those who are trained. However, she was not able to explain why there was no discussion with the applicant about a return to work when he attended on August 20, 2011 to pick up his cheque, which the dispatcher for the corporate respondent, testified was the applicant’s “last cheque”.

38The parties agreed that the personal respondent left two messages for the applicant between July 24 and August 8, 2011. The personal respondent testified that she called on July 25 to ask for more medical documentation and again on August 8 as detailed, above. The applicant produced only one of two voice mail messages, and the respondents asked that I draw an adverse inference. I find there is no basis on which I can draw an adverse interest because the applicant’s only evidence with respect to the July 25, 2011 voice mail was that she requested further medical documentation. She testified she did not leave a message on August 1 or 2, 2011.

39There was no dispute that the personal respondent did not contact the applicant after August 8, 2011, the day the applicant testified he was terminated. There also was no dispute that there was no discussion on August 20, 2011 about a return to work. This is consistent also with the dispatcher’s undisputed evidence that the applicant was coming to get his “last cheque”, and is consistent with the applicant’s testimony that he considered himself to have been terminated.

40The respondents asserted that the applicant’s credibility was questionable at times, for example when he denied that he signed certain employment documents even though the signature appeared to be his; when he asserted that he worked 6 days a week and 72 hours a week, which the log sheets did not bear out, at least for June and July 2011; that he appeared to have exaggerated somewhat the effect of his motor vehicle accident of December 2008; and that he testified that another employee, Jason Hubert, helped him change tires in January 2009, which was not possible given that Mr. Hubert did not begin working for the corporate respondent until October 2009.

41The applicant’s claim with respect to how many hours he worked was only disputed for June and July, 2011. The applicant’s evidence was that he worked 72 hours a week for the first three years he worked for the respondent company and this was not inconsistent with the available documentary evidence.

42Mr. Hubert also did not deny that he helped the applicant change some tires, although the applicant obviously was mistaken with respect to the time period.

43With respect to the 2008 motor vehicle accident, the respondents relied on the fact that the applicant was able to drive his vehicle from the scene to establish that it was not a serious accident. In my view, this is not sufficiently conclusive.

44Bearing in mind the principles set out in Faryna, I find that despite the credibility problems with respect to both parties that on the issue of whether or not the applicant was terminated because of his injury, I prefer the evidence of the applicant, having examined all of the circumstances and the preponderance of probabilities. I find that the preponderance of probabilities favours the applicant’s evidence that he was terminated on August 8, 2011 when he told the personal respondent he was going to commence a WSIB claim.

45After considering all of the evidence, I agree with the applicant’s submission that the personal respondent was upset by the fact that the applicant advised her he was going to file a WSIB claim.

46The respondents submitted that to date the applicant has not produced any medical evidence to support an inability to work after July 24, 2011. However, the applicant testified that he gave no further medicals to the respondents because he was terminated on August 8, 2011, and I accept that. The applicant attended at his family doctor on August 9, 2011, and the note makes it clear that the applicant continues to suffer from chronic musculoskeletal pain. The respondents had knowledge that the applicant had been off work for pain, regardless of the cause, and instead of asking for additional medical documentation, the personal respondent terminated the applicant.

47The respondents, however, correctly assert that there is no medical evidence to support ongoing restrictions after July 24, 2011, and that is a factor that will be addressed when determining remedy.

48I find that the respondents discriminated against the applicant on the basis of disability in employment. By advance agreement of the parties, a date will be set for the resumption of this hearing for the parties to give evidence and make submissions with respect to remedy.

next steps

49I have found that respondents violated the Code by terminating the applicant’s employment. As a result of my finding, I will need to hear evidence from the parties as to the appropriate remedy.

50The parties will be contacted regarding an appropriate date for their further attendance on the remedial portion of this hearing.