Elliott v. Can-Art Aluminum Extrusion Inc., 2014 HRTO 1574

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Elliott

Applicant

-and-

Can-Art Aluminum Extrusion Inc.

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: October 24, 2014

Citation: 2014 HRTO 1574

Indexed as: Elliott v. Can-Art

APPEARANCES

Anthony Elliott, Applicant

Christine Lundy, Representative

Can-Art Aluminum Extrusion Inc., Respondent

James Renaud, 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 is a privately owned company with plants in Brampton and Lakeshore, Ontario which employ approximately 230 people. The respondent provides aluminum extrusion products for a variety of customers in North America.

3The applicant commenced employment with the respondent as a general labourer in the packing department of the Lakeshore plant on July 20, 2009. Effective April 19, 2010 the applicant was placed in a position as a lead packer for a 60-day probationary period conditional on him improving his productivity (a target of 8000 kilograms per shift). Packers work in teams of two and are responsible for preparing customer orders for shipping.

4The applicant was injured at work on November 8, 2010. He returned to work with a doctor’s certificate which recommended that he take two days off to rest and take medication and then return to work with restrictions for 8 to 14 days. Instead of taking time off, the applicant was offered and accepted modified duties. He returned to work without losing time. The applicant was terminated on November 11, 2010 and alleges that his disability was a factor in his termination.

5The respondent denies that the applicant’s disability was a factor in his termination. The respondent alleges that there were ongoing problems with the packers which were resulting in mistakes in piece counts and weights. The respondent alleges that the applicant was terminated following a customer complaint about a short-shipment which occurred in October 2010 but came to a head the week the applicant was injured and on modified duties. The respondent alleges that this is simply a coincidence. The respondent argues that the applicant’s past performance justified termination and that it was time to do something “drastic” and send a message to the other lead packers about the serious consequences of making mistakes.

6The original Application filed by the applicant was replaced by Interim Decision of the Tribunal on December 12, 2011 (2011 HRTO 2231) with the Application signed November 19, 2011. Where I have referred to the Application, I am referring to this amended version.

7The applicant testified on his own behalf. I heard testimony for the respondent from a former employee, Ramez Kadri, and current employees Mark Lafreniere, Ramsay Fadel and Chris Werner.

8The testimony of Mr. Kadri, who worked for the respondent as a production supervisor from May 2010 until January 2011, was central to determining this Application because he was able to provide direct testimony on the following issues:

• his supervision of the packing department generally and his efforts to improve performance;
• his supervision of the applicant from May 2010 until the termination;
• his involvement in offering the applicant modified work;
• his involvement in the customer complaint which lead to the termination;
• his decision to terminate the applicant and the steps he took to execute that decision;

9Mark Lafreniere supervised staff in shipping and the packing department and was able to provide direct testimony with respect to the applicant’s work performance. Mr. Kadri also consulted Mr. Lafreniere when the decision was made to terminate the applicant.

10Chris Werner is the plant manager and has been with the respondent since 2004. He manages 75 to 80 employees on three shifts who are involved in production. Mr. Werner described himself as very involved in production. The employees report directly to supervisors who report to Mr. Werner. Mr. LeFreniere and Mr. Kadri both report to Mr. Werner while Mr. Werner reports directly to the General Manager, Mr. Ramsey.

11Mr. Werner did not have direct knowledge of the circumstances leading up to the applicant’s termination although he was directly involved in offering the applicant modified work following his injury. No one brought the issue of the short-shipment to his attention prior to the applicant’s termination. He was away from the office when the decision was made to terminate the applicant. However, he was familiar with the applicant’s performance and the fact that the packers in general were making mistakes.

12Ramsey Fadel, the General Manager, was not directly involved in the supervision of the applicant, the modified work or the customer complaint. He was consulted by Mr. Kadri and Mr. Lafreniere in advance of the termination at which point he was made aware of the customer complaint about the short-shipment. Mr. Fadel reviewed the applicant’s file and indicated his support for the termination decision. Mr. Fadel was clear in his testimony that he did not make the decision to terminate and that Mr. Kadri, like the other supervisors in the plant, had authority to discipline and terminate employees.

Decision

13For the reasons that follow, I find that the respondent breached the Code when it terminated the applicant.

Background

14The basic chronology associated with this Application is as follows:

• The applicant commenced work in July 2009 as a helper in the packing department. The applicant began to take on the role of a lead packer before he was formally moved to that position;
• The applicant was placed on a 60-day probation as a lead packer effective April 19, 2010;
• Mr. Kadri joined the respondent and began to supervise the applicant and other employees in the packing department in May 2010;
• While there are documented performance issues arising prior to the applicant being placed on probation as a lead packer, there was no evidence of any further issues related specifically to the applicant between April 2010 and his termination (apart from the short-shipment which occurred in October, 2010);
• Mr. Kadri held a meeting with all of the lead packers in August 2010 to discuss his expectations because mistakes continued to occur;
• Mr. Kadri was involved in a customer inquiry about a short-shipment in October, 2010;
• The applicant injured his shoulder at work on November 8, 2010. He sought immediate medical treatment. He returned to work with a completed Functional Abilities Form (FAF) which indicated that he was physically unable to return to work for 2 days and to take medication. He could then return to work with restrictions: no lifting, no pulling, no pushing, medication and physiotherapy. The report indicates that the applicant’s restrictions would likely apply for 8 to 14 days. He testified that his doctor advised him to take a muscle relaxant, Tylenol 3 and wear a sling to support his shoulder.
• The decision to terminate was made after the applicant was injured;
• The applicant was terminated on November 11, 2010.

Nature of the Business

15No one disputed Mr. Fadel’s testimony that the respondent’s business is entirely about weights and piece counts. The lead packer is the last person responsible for ensuring that the weights and piece counts match the customer’s order and as a result, it is vitally important that they pay attention to work orders and to the material they are packaging for transport to the customer.

16When a customer order comes in, a work order is created. The material is extruded, aged on a rack and transferred to the packing department. The packers work in pairs: a lead packer and a helper. One computer is shared between two teams of packers. Information is entered into a computer using the number assigned to each lead packer. Unless the packers inadvertently use a number not assigned to them, which happens from time to time, it is possible to tell which lead packer is responsible for each package.

17The lead packers are responsible for weighing and counting the material (at times it is also necessary to measure), building a transportation frame (u-frame), entering the weight and piece count into a computer and applying the appropriate ticket to the package for identification when the package is shipped.

18The original work order may be amended by hand as it travels through the plant. The piece count may vary somewhat from the original order. For example, when the customer asks for 100 pieces, it is understood that the order is “more or less” 100 pieces within a pre-determined range for both piece count and weight. The extrusion department notes on the work order how many pieces were actually extruded for the packers to cross-reference as they are preparing the material for transport.

19The lead packer is responsible for recording the actual piece count and weight in the computer and ensuring that they match the customer’s order within that acceptable range. The information goes into the computer which will not print a ticket for the package if the weight and piece count fall outside the acceptable range for that material. A packer can over-ride the system but this is not permitted by the respondent. The work order may also contain special packing instructions which go beyond the standard methods.

Problems with the Packers in General

20The packers are given a target to pack 8000 kilograms per shift. Achieving that target depends on the efficiency of the packer but also on the size and weights of material they receive and time lost in activities such as searching for missing work orders. There was no dispute that many of the lead packers (at least half according to Mr. Kadri), frequently fell short of that target. The documentary evidence indicates that the applicant at times fell short of this target although the respondent does not rely on this as one of the stated reasons for his termination. There was no evidence about his productivity at the time of his termination although he had completed his probation without any further discipline related to his target.

21The respondent witnesses, particularly Mr. Kadri, testified that apart from failing to meet targets, there were other ongoing performance issues with the lead packers as a group. In some cases packing mistakes were discovered before the materials left the plant – at other times they were discovered by customers. Mr. Fadel testified that there were likely mistakes and short-shipments that had not been caught at all. Mr. Lafreniere testified that there was no system for monitoring the packers and that he would not know what mistakes the packers were making unless it was discovered. Mr. Kadri testified that at times he would catch mistakes by randomly inspecting packages before they were shipped.

22When Mr. Kadri arrived he took on the job of improving performance in the packing department. He treated the packers as a group and did not single out any individual person. In August, 2010 Mr. Kadri held a meeting with the lead packers to reinforce the importance of paying attending to work orders. This meeting was variously referred to by Mr. Kadri as a “training session”, a “stand up meeting” and a “disciplinary meeting”. The meeting, which was estimated to have taken 5 or 10 minutes, involved Mr. Kadri reviewing his expectations for the performance of the lead packers. The form which the workers were required to sign to indicate their attendance is entitled “Training/Discussion/Review Form”.

23Mr. Kadri and Mr. Fadel testified that mistakes continued to occur after this meeting both before and after the applicant’s termination. Neither was aware of any of the other packers being disciplined as a result of any of those mistakes.

24The respondent witnesses testified to their impressions that there was a problem, but were not aware of the extent of the problem in the packing department, what those mistakes were costing the company, and how, if at all, relationships between the respondent and its customers were impaired by those mistakes. No records were kept and no investigations were conducted to determine whether one lead packer or a particular group of lead packers was responsible for the problem on an ongoing basis. Mr. Kadri testified to having an impression that there was a problem among the packers as a group as opposed to a single packer or team of packers.

25There was also some contradictory evidence on this point. Mr. Kadri testified that the problem was so significant that it required him to do something “drastic”. On the other hand, the plant manager, Chris Werner, testified that he did not know how many complaints the company had received about packing mistakes and that the issue, while important, was not high on his list of priorities. Mr. Werner was also not aware of how much this short-shipment had cost the company and he could not recall another packer being fired for a short-shipment. He also testified that he knew there were problems, that he had asked the supervisors to speak to the packers but he was not aware whether those discussions had any effect.

26In addition, when Mr. Lafreniere testified about how embarrassing the short-shipment was for the company, he indicated that it did not happen very often and that he could not recall another example.

27Mr. Fadel testified that this particular mistake cost the company $180.00.

The Applicant’s Injury

28The applicant was injured on November 8, 2010 on the midnight shift. He sought medical treatment and his doctor prepared a Functional Abilities Form (FAF) recommending 2 days rest and medication. He returned to work with the note and met with Mr. Kadri and Mr. Werner. The applicant testified that he wanted to take time off and take the medication prescribed to him. He testified that Mr. Kadri told him that he was a good packer and was needed at work.

29Mr. Werner testified that they discussed the issue of the applicant taking time off. He testified that he told the applicant “the facts”: the applicant could take two days off but there was no guarantee that WSIB would pay him. Alternatively, he could take the offer of modified duties and get paid to remain at work.

30The applicant accepted the modified work. His shift was changed to accommodate his need for physiotherapy. He was concerned about his medication making him dizzy so he decided not to take it. The respondent witnesses testified that they were aware of the doctor’s recommendation and Mr. Werner recalled that the applicant talked about taking time off. Each of the respondent witnesses testified that notwithstanding the doctor’s recommendation, they felt they were obligated to offer the applicant modified work.

31Mr. Werner testified that he followed standard procedures after the applicant was injured reviewing the circumstances of the injury, meeting with the applicant, and offering him suitable work within his restrictions. He testified that he tells every employee that if he has suitable work and they are willing to work, he can continue to pay them and that there is no guarantee that they will be paid by WSIB. He testified that the employee has a choice whether or not to work, but he has an obligation to offer modified duties and to report that he has done so to WSIB.

32When Mr. Werner was asked in cross-examination about the doctor’s recommendation he agreed that he always offers light duties no matter what the doctor recommends.

33Mr. Werner testified that he assumed that the applicant’s injury would be short-term and that he knew that a reassessment was coming. He testified that he was not sure what would happen after the applicant was reassessed but if the modified duties had to go on longer, he would have reassessed what was available at that time.

34Mr. Werner testified that if the applicant found the work more difficult than he could handle he would have told him that it was his choice whether or not he took time off, but that he may or may not be paid by WSIB. He acknowledged the possibility that if the applicant had taken time off work, depending on the length of time, it may have had an effect on the company’s WSIB premiums.

35Mr. Werner testified that every year the company has roughly 10 to 14 people who require light duties and that light duties are almost always available in the plant. He testified that offering modified duties prevents lost time, provides income to the employee and keeps costs down, including WSIB premiums. He testified that while a few workers have been on long term modified duties, the norm is to work light duties for a shorter period of time.

36There is no dispute that the applicant was told that if he returned to work without missing time he would continue to be paid by the company and that if he chose to remain off work, there was no guarantee that WSIB would pay him for that time. The applicant was aware that if he did not return to work on modified duties the employer would report to WSIB that modified duties had been offered and refused. The only distinction in the position of the parties is that the applicant alleges he felt pressure to accept the modified duties and would have preferred to take the time off recommended by his doctor. The position of the respondent is that the applicant willingly accepted the modified duties.

37I note that the applicant’s representative indicated that she was not pursuing a declaration that there was a failure to accommodate the applicant when he returned to work on modified duties. However, she argues that I should draw the inference that his disability was a factor in his termination in part because of how his return to work was handled.

Customer Complaint: Short-Shipment

38The respondent received an inquiry from a customer about a short-shipment in late October 2010. Mr. Kadri could not recall how he became involved however, the respondent did produce the following email exchanges which are related to the inquiry:

• October 26, 2010: From the customer to Ms. Godding (customer service representative who did not testify at the hearing) identifying the short-shipment problem. The customer indicated that they received 78 pieces while the ticket indicated that the package contained 94 pieces weighing 490 kilograms.
• October 27, 2010: From Mr. Kadri to Ms. Godding indicating that the records show that 94 pieces were extruded, packed and shipped but that he would look into the matter;
• October 28, 2010: From Ms. Godding to Mr. Kadri asking if he had anything to report;
• October 28, 2010: From Mr. Kadri to Ms. Godding indicating that he had not found the work order but that information in the system confirms that 94 pieces at 490 kgs were shipped and that the system would not have printed a packing slip for 78 pieces with a weight of 490kgs;
• October 28, 2010: From Ms. Godding to the customer advising that staff have looked for the missing pieces and the shipper has confirmed that 94 pieces were shipped with a weight of 1080 pounds (490 kilos). She requests that the customer double-check the shipment on their end;
• November 9, 2010: From the customer to Ms. Godding advising that the respondent has not been able to locate any missing pieces.
• November 9, 2010: From Ms. Godding to Mr. Kadri advising that the short-shipment issue has not gone away and asking whether he has found the work order;
• November 9, 2010: From Mr. Kadri to Ms. Godding indicating that he has tried to find the work order with no luck and confirming that the shipment contained one bundle with 94 pieces.

39Mr. Kadri testified that he assumed that the customer was incorrect. He had access to all the information about the shipment from the respondent’s computer system including the applicant’s packing number. He did not take any steps to investigate the short-shipment beyond attempting to find the work order. He assured Ms. Godding that the work order would not contain information which was different from the system. Despite the fact that mistakes continued to occur after his August 2010 meeting with the packers, Mr. Kadri testified that he was confident that there was no need to look further at whether a mistake had occurred prior to shipping.

40At some point the customer sent a picture of the package to the respondent. There was no evidence about when or by what method that picture was received (although it was agreed that it likely arrived by email) and there was nothing noted on the picture which connected the picture to the work order. Ms. Godding who was the primary contact between the respondent and the customer did not testify. Mr. Kadri, Mr. Lafreniere, Mr. Werner and Mr. Fadel all testified that they were shown the picture and told that it came from the customer complaining about the short-shipment.

41Mr. Kadri could not recall when or by what method he received the picture. He testified that when it was shown to him and identified as coming from the customer, he had no reason to question that representation. He came to the conclusion by looking at the picture and counting the pieces that a mistake had been made and that the customer had been short-shipped. Mr. Kadri did not conduct any further investigation to determine whether there was some explanation other than a mistake or deliberate act by a packer.

Decision to Terminate the Applicant

42Mr. Kadri testified that he spoke with Mark Lafreniere about the short-shipment. He felt that time had been wasted looking for the work order and he found this mistake personally embarrassing. Mr. Kadri testified that when he spoke with Mark Lafreniere he knew that he wanted to terminate the person responsible for the short-shipment. He wanted to do something “drastic” to send the message to the other packers that “we mean business”.

43Mr. Kadri testified that he suggested letting the applicant go to send a message to the other employees and that Mr. Lafreniere agreed. Mr. Kadri testified that he was embarrassed that he had argued with the customer about the short-shipment only to be proven incorrect.

44Mr. Kadri did not approach the applicant to discuss the inquiry from the customer. He did not speak with anyone else in the plant in order to determine, for example, why the system showed that 94 pieces were extruded. While he reviewed the applicant’s personnel file when he spoke with Mr. Lafreniere, he had already determined in his mind that the applicant would be terminated. He was aware that the applicant had been injured and was on modified duties.

45Mr. Lafreniere testified that on the morning of the termination that he and Mr. Kadri looked at the applicant’s file and he agreed with Mr. Kadri that termination was appropriate. They met with Mr. Fadel who asked to review the applicant’s file. Mr. Fadel also indicated his support for the decision. Mr. Lafreniere also testified that he could not recall anyone else being fired for a mistake of this nature.

46The applicant arrived for work that day. He was brought into the office, with Mr. Kadri and Mr. Lafreniere, shown a picture which he was told came from a customer and told that he was terminated because of the short-shipment. The applicant denied that he would have made such a mistake deliberately or inadvertently. The evidence from both the applicant and the respondent witnesses is that without the context of the customer complaint, the picture showed a properly packaged bundle of material. If the customer had not complained about the piece count, there would have been no reason to question how the bundle had been packed. The applicant could not understand why he was being accused of a short-shipment. He was then escorted from the property and given two weeks pay in lieu of notice.

47Mr. Kadri did not explain the circumstances of the applicant’s termination to the other packers nor did he advise them that they might be terminated, like the applicant, if their performance did not improve. When he was asked how he intended to use the applicant’s termination to improve the performance of the other packers, Mr. Kadri testified that the applicant had made a scene leaving the plant and that gossip about the termination would naturally circulate.

48Mr. Werner testified that he was on vacation when the applicant was terminated. He testified that he was at work on the 8th and likely the 9th but was not approached about either the customer complaint or a plan to terminate the applicant. He learned about the termination when he returned to work. He reviewed the applicant’s file and determined that the applicant had a “couple of prior incidents”. His understanding of the events is that Mr. Kadri had defended the company to the customer and then found out that he was not correct and terminated the applicant.

49Mr. Werner also testified that in general, supervisors would come to him if they had an issue and describe to him the actions they intended to take in response. Mr. Werner would then advise them if he was in agreement with their plan. He testified that supervisors are able to make a judgment call where there are safety issues or serious offences and that they could deal with disciplinary issues.

Applicant’s Performance Issues

50There is no question that the applicant had documented performance issues. However, there was no documentary evidence introduced to establish the applicant’s performance relative to the other lead packers. Mr. Kadri testified that the applicant was like the rest of the lead packers and an “ok” employee in general. He also testified that there were a lot of miscounted bundles. He held a meeting with the lead packers in August 2010, and despite that, mistakes were still being made. There was no evidence that anyone had been disciplined in relation to those mistakes before or after the applicant’s termination. Mr. Kadri testified that he never gave the applicant a warning or discipline and that he addressed the issue of mistakes in packing with the lead packers as a group.

51On the other hand, there was evidence from Mr. Lafreniere that despite the applicant’s interest in becoming a lead packer, Mr. Lafreniere had reservations because of the applicant’s performance. As a result, he was placed on probation for 60 days when he finally became a lead packer. Mr. Lafreniere testified that he still thought the applicant would develop into a good lead packer.

52A number of performance related documents were entered as exhibits in the hearing.

53In a one-page performance review dated October 20, 2009, the applicant scores “average” or “good” on the 8 items he is measured against. The comments indicate that the applicant is an “ok packer” who needs to follow work orders more closely and as a lead packer needs to “push” his partner and himself to meet production needs. At this point the applicant was unofficially performing some of the duties of a lead packer.

54In a one-page performance review dated March 15, 2010, the applicant scores “unsatisfactory” on following instructions; “need to improve” on job skills, productivity and quality of work; “average” on attendance, desire and teamwork; and “good” on work safety. The comments indicate that the applicant could become a good lead packer, but not at this time and that he “really needs to focus on following work instructions and get his average kilograms per shift up to where they should be.”

55Mr. Lafreniere testified that he conducted this review and that the applicant did not dispute the comments. He also testified that the applicant was still classified as a helper at this point and was working on becoming a lead packer.

56There is a second document dated the same day, March 15, 2010 which appears to relate to an event which occurred on March 8, 2010 and lead to a one-day suspension. The applicant testified that the incident referred to in this form never occurred. He indicated that he had been “written up” before but denied that he had ever been suspended without pay.

57Mark Lafreniere testified that he gave the applicant a one-day suspension for failing to follow packing instructions on the work order which resulted in damage to the parts. The documentary evidence, including the applicant’s pay records, indicate that a one day suspension took place. The pay record submitted by the respondent was a copy. The original was produced and the applicant’s representative was satisfied that the copy and the original matched. The disciplinary form indicates that any further incidents will result in further discipline up to and including discharge. The form indicates that the applicant has previously been warned about a similar incident.

58The applicant also did recall receiving and signing a one-page discipline form dated April 20, 2010. The applicant received a written warning for failing to reach the daily packing requirements of 8000kg. The form indicates that the applicant has previously received a verbal warning in relation to this issue.

59Mark Lafrieniere testified that he gave the applicant a written warning for failing to meet his targets rather than a further suspension or termination because the incident identified in April 20, 2010 was different in nature from the incident which triggered the suspension in March, 2010.

60Mr. Lafreniere also testified that at this point he still thought the applicant could be a decent lead packer. He had concerns, but his management approach is to give people opportunities to improve. Chris Werner testified that the applicant approached him a number of times about wanting to become a lead packer. While he was not directly involved in the decision, he confirmed his understanding that Mr. Lafreniere had some reservations.

61The last document is a one-page performance review dated June 30, 2010 which indicates that the applicant is moving from helper to lead packer backdated to an effective date of April 19, 2010. Mr. Lafreniere, indicates that he will place the applicant as a lead packer on 60-days probation. According to Mr. Lafreniere this review would normally have taken place the following year in March 2011 but the applicant was formally changing positions.

62When the applicant was placed in the role of lead packer he was placed on a 60-day probation. An “Employee Change Notice & Performance Review” for this period was filed as an Exhibit. The performance review section indicates the following ratings:

• Worksafety – good;
• Attendance – average;
• Job Skills – average;
• Productivity – need to improve;
• Quality of work – average;
• Desire – need to improve;
• Teamwork – good;
• Follows instruction – need to improve.

63In the comment section, Mr. Lafreniere, who conducted the review, indicates that he will place the applicant as a lead packer on probation for 60 days and that if his productivity does not improve to 8000 kgs per shift or higher, he will be terminated.

64The applicant acknowledged that he knew his job was in jeopardy when he started his 60-day probation in the role of lead packer. He testified that he did not believe that he was on the verge of being fired. He testified that his understanding of the probationary period was that he needed to increase his production. There are no further documents related to the applicant’s performance and his 60-day probationary period had passed by the time of his termination.

65The applicant recalled the meeting held by Mr. Kadri in August, 2010. He understood that the company was concerned because there were too many mistakes being made by the lead packers.

66The applicant testified that he considered himself a good packer and a good employee. He testified that the week before his termination Mr. Kadri came up to him while he was working and told him that he was one of the best packers. Mr. Kadri did not recall this exchange although he did testify that they spoke frequently and he found it easy to converse with the applicant. The applicant testified that the termination came as a shock to him in part because Mr. Kadri had just advised him that he was doing well. He was firmly of the view that the short-shipment issue was fabricated to justify his termination because he had been injured.

67It is difficult to assess the role that his previous performance issues played in the applicant’s termination. Mr. Kadri testified that the applicant was like the other packers and an “ok” employee in general. Mr. Kadri testified that he reviewed the applicant’s personnel file for the first time just prior to the termination. However, he also testified that when he saw the picture from the customer and realized that the error had likely originated with the packers, he had made up his mind that someone needed to be terminated. By his own admission, Mr. Kadri’s primary focus was that something “drastic” had to be done to send a message to the other packers that their jobs could be at risk if they continued to make mistakes.

68Mr. Lafreniere testified about the applicant’s past performance issues and his reluctance to promote him to lead packer. Mr. Lafreniere had given the applicant verbal and written warnings and one suspension before the applicant was officially named a lead packer, and even at that point, the applicant was put on probation for 60 days. Mr. Lafreniere testified that at the time the applicant was made a lead packer he was adding a new crew and that the applicant was the best of the helpers. He also testified that the applicant had been working with a lead packer who confirmed that the applicant was ready.

69Mr. Fadel specifically asked to see the applicant’s file before confirming that he was in agreement with Mr. Kadri’s decision. He testified that he was surprised that the applicant had not been terminated earlier, although he acknowledged that he was not involved in the day to day supervision of employees like the applicant.

70The respondent witnesses testified that the company engages in progressive discipline, however, there is no written discipline policy and Mr. Fadel confirmed that supervisors exercise considerable discretion. The documentary evidence does support the respondent’s argument that the applicant was given escalating verbal and written warnings and one suspension for issues related to his performance. On the other hand, there are no documented performance issues after he was placed on probation as a leader packer and by the time of his termination he had passed the 60-day probationary mark.

Analysis

71It 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.

72Section 5 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of disability.

73Discrimination 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.

74The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”) confirmed that the “balance of probabilities” standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”.

75The Decision of the Court of Appeal for Ontario in Peel Law Association vs. Pieters 2013 ONCA 396 (“Pieters”) contains a very helpful review of the evidential burdens on the parties in a human rights case. The reasoning is contained in paragraphs 64 through 74.

76In Pieters, the Court cited the decision in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 where the Supreme Court first described the evidential burden on the applicant to prove a prima facie case as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the applicant's favour in the absence of an answer from the respondent.”

77The Court of Appeal explained that the applicant’s evidential threshold is low, particularly in cases where the respondent is in possession of most of the evidence which relates to the applicant’s allegations. Where an applicant has met this threshold a respondent risks an adverse finding by not leading sufficient evidence to demonstrate that their actions were not discriminatory. The burden of proof remains on the applicant throughout but the evidential burden is a shifting one.

78At paragraphs 70 through 74, the Court of Appeal describes the concept of a shifting evidential burden:

The shifting of the evidential burden, as opposed to the burden of proof, is common in innumerable other legal contexts. For example, in criminal law, which is fastidious in maintaining the legal burden of proof on the Crown, accused confronted with evidence that they are in recent possession of stolen goods face the prospect of an inference of theft unless they explain how they came into possession of the goods. Only the evidential burden has shifted. The accused maintains the unquestioned right to remain silent. However, the accused faces the tactical choice of explaining or risking being found guilty.

Sopinka J. explained the difference between the burden of proof and the evidential burden in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, a medical malpractice case. Medical malpractice cases are an apt comparison to discrimination cases because as Sopinka observed at p. 322, “The physician is usually in a better position to know the cause of an injury than the patient”. At pp. 328-329 he said that in medical malpractice cases because “the facts lie particularly within the knowledge of the defendant…very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary”. He recognized that “[t]his has been expressed in terms of shifting the burden of proof” and went on to explain why that is not correct. At pp. 329-330 he said:

…It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted. [Citations omitted].

And so it is in discrimination cases. The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.

In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext.

79At paragraphs 59 and 60 of Pieters, the Court of Appeal confirms that what is required to establish the connection between adverse treatment and a prohibited ground is that “the ground must somehow be a “factor” in the adverse treatment.” An applicant is not required to establish that the ground was the only or predominant factor. The Court of Appeal also rejected the argument that the applicant was required to prove a “causal” connection between the two.

80In the case before me, I have determined that the applicant has established a prima facie case of discrimination. I have also determined that the respondent has not met the evidentiary burden to explain the termination.

Credibility

81In considering issues of credibility I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

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 carries 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 as reasonable in that place and in those conditions. [emphasis added]

82I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

83In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the Tribunal stated, at paragraph 54:

Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.

Findings

Prima Facie Case

84The applicant’s evidence is that he was injured, got immediate treatment and that when he met with his employer he felt pressure to return to work contrary to his doctor’s instructions. There is no dispute about what was said to the applicant. The respondent witnesses uniformly testified that they felt they were under an obligation to offer the applicant modified duties. They all testified that it was best for the company and best for the employee because the worker was paid and the company did not lose time. In my view it was reasonable for the applicant to feel pressure not to take time off.

85The applicant testified that although he was showing up to work, he was continuing to experience physical pain. The applicant testified that he made Mr. Kadri aware that his injury was not resolving. Mr. Kadri does not recall receiving any feedback from the applicant about his injury or modified duties. The applicant’s restrictions were expected to last 8 to 14 days at which point he would be reassessed. Very shortly after his injury the applicant was called to a termination meeting, presented with the accusation that he had short shipped a customer in October and dismissed. The applicant testified that he received very little information about the alleged short-shipment and from the picture, it was clear to him that the u-frame was a perfect fit for the pieces it contained.

86The applicant’s evidence with respect to his performance is that he had received verbal and written warnings. He did not recall the suspension although it is clear the suspension took place. The applicant knew when he was placed in the position of lead packer on a 60-day probation that his job was in jeopardy unless he increased his production. The applicant had passed his 60-day probation by the time of his termination and there was no evidence of discipline in the period between his suspension in April, 2010 and his termination. The applicant’s evidence is that just days before his termination he was told by Mr. Kadri that he was one of the best lead packers.

87It would not be sufficient to establish a prima facie case of discrimination for the applicant to simply allege that he had a disability, he was terminated and therefore there must be a connection between the two. However, in this case, there is sufficient evidence to draw the inference that his injury was more likely than not, a factor in his termination. The applicant is not required to prove that the injury was anything more than one factor in the termination.

88These facts provide a sufficient basis for drawing the inference that the applicant’s injury was a factor in his termination: The timing of the termination which took place following his decision to return to work without lost time but before he could be reassessed; the severity of his injury for which he produced medical evidence that he was rendered unfit to work and in need of medication and physical therapy; the lack of improvement in the injury which could ultimately have resulted in lost time; his move to permanent status as a lead packer despite past performance issues; the expiry of his 60-day probation as a permanent lead packer without incident; and the fact that he received scant information about the mistake which allegedly lead to his termination. If the respondent had chosen not to call evidence, I would have found in favour of the applicant on the standard established in O’Malley.

Respondent’s Explanation

89Unlike O’Malley, the respondent in this case chose to call evidence to explain the decision to terminate. However, I did not find the respondent’s explanation sufficiently coherent or compelling to dismiss the Application.

90There is no dispute that there were ongoing problems with mistakes being made in the packing department and that Mr. Kadri had been taking steps to improve the quality of work in that department. There was no dispute that Mr. Kadri was dealing with the packers as a group and that he had not, prior to the applicant’s termination, singled the applicant out for performance related issues.

91The evidence establishes that this decision was initiated and executed by Mr. Kadri. He had been advised of the customer complaint which is alleged to have resulted in the applicant’s termination, two weeks prior to the termination. The decision to terminate was made after Mr. Kadri became aware that the applicant was injured and after the applicant opted to return to work with no lost time. Mr. Kadri testified that he made the decision to terminate after receiving a picture of the bundle in question from the customer, however, he could not establish when or by what method he received the picture. Mr. Lafreniere and Mr. Ramsay agreed with the termination, but the decision originated with Mr. Kadri who testified that he was embarrassed by the outcome of the complaint involving the customer.

92The respondent’s position is that mistakes continued to be made despite Mr. Kadri’s meeting with the lead packers in August where he reminded them all of his expectations. There was insufficient evidence of the magnitude or frequency of those ongoing mistakes, how they were caught, whether they were affecting relationships with customers or whether the applicant himself was implicated in any of them. There was insufficient evidence to demonstrate that any other packer had been disciplined in any way in relation to those other mistakes.

93And yet, Mr. Kadri testified that the problem was so severe that he had to do something “drastic” at that very moment to send the message that he was serious about his expectations. He did not wait to conduct a more thorough investigation so that he could determine precisely how this mistake occurred. Even by the time of his testimony he was only able to speculate on the cause. He did not wait for the plant manager to return to obtain his input on a strategy which may have had significant consequences not just for the applicant but for the other packers.

94I cannot ignore the fact that one of the benefits to the company of Mr. Kadri moving so quickly to termination is that the applicant’s injury had not been reassessed and to that point, he had returned to work without lost time.

95Mr. Kadri is the person who made the decision to terminate the applicant’s employment and as a result, his credibility is critical to the respondent’s success. His explanation for the applicant’s termination was both insufficient and internally inconsistent. I have set out a number of examples below:

• Mr. Kadri testified that the short-shipment was the first mistake that he was aware of following the August 2010 meeting. At other points in his testimony he admitted that mistakes continued to be made after that meeting and also admitted that he did not keep track of the incidents;
• While Mr. Kadri stressed the importance of sending a message to the other workers he took no steps to ensure that they understood the connection between the applicant’s termination and the packing mistake;
• Mr. Kadri had a tendency to respond to questions in a manner which was overtly favourable to the respondent despite having no evidence to support his statements. He testified, for example, that he noticed improvements after the August 2010 meeting but had no evidence to support his impressions;
• Mr. Kadri also described the August 2010 meeting in various ways, from a training session to a disciplinary session. He speculated without actually recalling that he would have told the lead packers their jobs were at risk;
• Mr. Kadri testified that mistakes were a serious ongoing problem and yet his initial reaction to the customer’s complaint of a short-shipment was to deny that a problem had originated with his department;
• There was no evidence presented and none of the respondent witnesses, including Mr. Kadri, could recall how or when the photo from the customer was received;
• Mr. Kadri was quick to suggest that the problems had improved with the applicant’s termination, however, he had no evidence to support that statement.

96I also found that Mr. Fadel’s testimony about the implications of the short-shipment to be exaggerated. The actual cost of the short-shipment was $180.00. Mr. Fadel was not aware of the short-shipment until the morning of the termination. However, by the time of the hearing he had developed the hypothesis that if this $180.00 mistake was repeated in every shipment, the cost to the company would amount to more than $900,000.00 per year. There is no validity to this hypothesis since there was no evidence of the frequency with which mistakes were occurring either before or after the applicant’s termination. Mr. Fadel also testified that mistakes were reduced by 90 percent after the applicant’s termination, a figure which was also not supported by any evidence. Mr. Fadel testified that he signed off on mistakes which resulted in a dollar value to the company, however, he was not able to provide any insight into how frequently that was occurring or what the magnitude of those losses were.

97By contrast, when Mr. Werner testified he was not prone to exaggeration nor did he engage in speculation. His evidence was that short-shipments were not high on his list of priorities and he had no idea what they were costing the company. He had asked Mr. Kadri to hold the August discussion with the other packers and was candid that he did not know whether the discussions had any effect. This answer is congruent with the fact that no steps were taken to document the extent of the problem at various time periods before and after the applicant’s termination.

98In this case, the respondent is in possession of almost all of the evidence which relates to the applicant’s termination. The applicant’s credibility is not central to my findings on liability. I have considered the discrepancy between the evidence and the applicant’s failure to recall the one-day suspension which he received. On the other hand, he testified candidly that he had been given verbal and written warnings and was aware when he was placed in the role of lead packer that his job was at risk. I do not consider his failure to recall the suspension important to his credibility. However, it did not reflect well on the applicant’s credibility that he made a statement to the effect that everyone who gets injured in the plant, gets fired, and then could not recall the name of a single individual who had been terminated while they were injured.

99While I prefer the applicant’s recollection to Mr. Kadri’s that the applicant was working in pain and had indicated as much to Mr. Kadri, this finding is also not central to my decision. In my view, there is sufficient evidence to demonstrate that Mr. Kadri was well aware that the applicant’s injury would not resolve in a day or two, that his doctor had actually declared him unfit to work and that he was in need of medication and physiotherapy. He was also aware that the applicant would need to be reassessed. The effect of the termination was to relieve the respondent of responsibility for dealing with the effects of the injury going forward.

100Fundamentally, there is insufficient evidence to explain the termination which was carried out in haste. I am not convinced by the respondent’s evidence that the timing of the termination is merely a coincidence.

101The burden of proof remains on the applicant throughout. From an evidentiary perspective, I have found that the applicant is able to prove a prima facie case of discrimination. I have found that the respondent has not lead sufficient evidence to establish a credible, non-discriminatory explanation to rebut the applicant’s prima facie case. Accordingly, I find that the termination breached the Code.

102Mr. Kadri, who was primarily responsible for the termination, was acting within the course of his employment when he made the decision to terminate and therefore the respondent is liable under the Code for the damages that flow from the breach.

103For all of those reasons I find that the termination breached the Code and I turn now to the question of the appropriate remedy.

Remedy

104The applicant is seeking 2.5 years of lost wages; $45,000.00 in damages for injury to dignity, feelings and self-respect; compensation to permit him to receive 8 counselling sessions and a public interest remedy on the same terms as my Order in 2013 HRTO 923 (“Hodkin”).

105The 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.

106The 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.

Injury to Dignity, Feelings and Self-Respect

107Prior 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.

108The 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”.

109In 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.

110In Vallee v. Fairweather Ltd. 2012 HRTO 325, the Tribunal reviewed the purpose of compensation for injury to dignity, feelings, and self-respect and the leading cases most commonly relied on in quantifying an award (see paragraphs 29 to 32). I have considered the same principles including:

• the over-riding consideration that an award of compensation on these grounds recognizes the inherent value of the right to be free from discrimination and the experience of victimization;
• that among the factors to be considered are humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant;
• the dual considerations of the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination;
• the range of awards in disability-related discrimination cases in the context of employment which are from $10,000.00 to $45,000; and
• the factors which would apply in circumstances where the Tribunal would award less than $10,000.00, including performance issues that contributed to the termination, the short duration of the employment period, and the failure to present evidence of impact.

111The applicant testified that he was acutely vulnerable at the time of his termination. He was in pain while he was working and felt pressure to return to work without lost time.

112The applicant testified that the circumstances associated with the termination were humiliating. He described the termination meeting as confrontational especially when he was shown the picture supplied by the customer. The applicant was extremely upset at the suggestion that he would deliberately short-ship a customer. As noted above, the circumstances of the short-shipment were not fully explained to the applicant and as a result, he was convinced that the respondent was making up an excuse to fire him because of his injury. He testified that he experienced feelings of humiliation, loss of dignity, sleeplessness and symptoms of depression and anxiety. None of this is out of proportion with the objective seriousness of the conduct the applicant experienced.

113The applicant’s representative argued that I should make an award which is consistent with the Lane decision. In my view, the applicant’s circumstances are more closely aligned with the Decisions in Russell v. Indeka 2012 HRTO 926 (“Russell”), Osvald v. Videocomm Technologies 2010 HRTO 770 (“Osvald”) and Hodkin where the applicants were awarded $15,000.00, and $10,000 respectively. I note that in Hodkin, the applicant requested asked for the award of $10,000.00 which is not the case here.

114In all three cases the respondents were reckless in terminating employees with disabilities. While the applicant in the case before me had performance issues like the applicant in Osvald, there is insufficient evidence to conclude that the applicant would have been terminated at some point in the near future in any event. In fact, the evidence suggests the opposite which is that the applicant had passed his 60-day probation as a lead packer and had not been the subject of further discipline up to the point of his termination. With respect to the short-shipment at issue in this case, it would not be appropriate for me to speculate that the applicant would likely have been terminated for this mistake on the basis of his performance alone since there is insufficient evidence to establish the gravity of this mistake in comparison to others that were being made on an ongoing basis.

115In all of the circumstances, I consider an award of $15,000.00 for injury to the applicant’s 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

116Subsection 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.

117This 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.).

118There was very little evidence of mitigation. The applicant testified that the effects of his injury still persist, creating a significant barrier to him finding work. The applicant testified that the job market in Windsor, Ontario is depressed and that since his termination his wife has provided the primary financial support for the family. He testified that he has been forced to take any job he could find, which has exacerbated his injury.

119The applicant testified that his financial situation since the termination has been stressful and “up and down”. He testified that because of his injury sometimes his hand swells up and although he is trained as a welder, he is unable to do that work because he is unable to grind.

120He also testified that his experience of working with temporary employment agencies is that he works assignments of 8 or 9 days but not longer. He testified that he was working at a solar panel company where his cousin was the union president, but again, because of his physical condition, he could not do some of the lifting that was required of him.

121In this case, it is difficult to assess the impact of the respondent’s conduct on the applicant’s ability to earn a living because, as the applicant testified, his disability creates a significant impediment to him securing permanent work. The applicant speculates that even if he had not been terminated, he would likely have required time off, in which case, his lost wages would be the subject of adjudication by the Workplace Safety Insurance Board (WSIB).

122The difficulty with the applicant’s request for lost wages, which the applicant’s representative acknowledged, is that there was no medical evidence apart from the medical note he received when he was injured, to guide me in determining to what extent the applicant’s injury, as opposed to the actions of the respondent, affected his ability to work over the 2.5 year period for which he is claiming lost wages.

123The medical evidence at the time of his injury establishes that the damage to his shoulder rendered the applicant unfit to work for two days and that he was to engage in rehabilitation and return to work on light duties. Taking into consideration the nature of his work, his injured state at the time of the termination, the ensuing symptoms of depression and anxiety which would affect the applicant’s ability to conduct a job search and his testimony that he found it difficult to find work in a depressed economic environment, I find that the conduct of the respondent resulted in the loss of 3 months wages. To obtain an order beyond that, the applicant would have to provide medical evidence to establish what role his disability played in his inability to obtain work as compared to the conduct of the respondent.

124For those reasons, I find that an additional payment equivalent to 3 months of wages, calculated on the basis of the applicant’s average hours and wage rate in the 6 months preceding his termination, subject to statutory deductions, is appropriate in these circumstances.

125In his Application, the applicant asked for 8 sessions of counselling. Given the applicant’s testimony about his ongoing psychological issues which in his mind, flow from the proximity of his injury and termination, I am satisfied that this request is reasonable and sufficiently connected to the remedial purpose of the Code to grant the applicant’s request. The respondent will reimburse the applicant for 8 sessions with an accredited psychologist upon presentation of receipts. The sessions are to be completed within one year of the date of this Decision.

Promoting Future Compliance

126The applicant requested a public interest remedy on the same terms as the Decision in Hodkin.

127In 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”.

128The respondent’s conduct in dismissing the applicant was reckless. Leaving the other packers to speculate and gossip about the applicant’s termination could have the unintended result of causing them to fear that they may be terminated if they become injured. 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 supervisor or higher as well as the entire staff in human resources, with respect to the revised human rights policy and the Code.

Interest

129The applicant is entitled to interest on both monetary awards. The interest is to be calculated in accordance with sections 127 and 128 of the Courts of Justice Act, R.S.O. c. C. 43, as amended (“CJA”).

130Prejudgment 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)

131The 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.

132Postjudgment interest runs on both monetary awards from the date of the Decision.

133If the applicant and respondent cannot agree on the calculation of interest, they may request that I determine that issue.

Order

1. The respondent shall pay the applicant $15,000 for his losses arising from the infringement of his rights under the Code;

2. The respondent shall pay to the applicant the equivalent of 3 months wages as described in this Decision for lost income arising from the infringement of his rights under the Code;

3. The respondent shall reimburse the applicant for counselling sessions as described in this Decision;

4. The respondent shall pay prejudgment and postjudgment interest in as described in this Decision;

5. 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 supervisor or higher, as well as the staff in human resources with respect to the revised human rights policy and the Code.

Dated at Toronto, this 24th day of October, 2014.

“signed by”

Leslie Reaume

Vice-chair

CORRECTION

Please note, the Decision issued on October 24, 2014 contained an error on the appearance list on page 2. It should have noted that Christine Lundy was the representative for the applicant and James Renaud was counsel for the respondent. That error has now been corrected.