Wesley v. 2252466 Ontario Inc. o/a The Grounds Guys, 2014 HRTO 1591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darryl Wesley

Applicant

-and-

2252466 Ontario Inc. o/a The Grounds Guys

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: October 28, 2014

Citation: 2014 HRTO 1591

Indexed as: Wesley v. 2252466 Ontario Inc. o/a The Grounds Guys

APPEARANCES

Darryl Wesley, Applicant

Lori Mishibinijima, Counsel

Introduction

1The applicant is a gay Aboriginal man, who is also deaf. The respondent company hired him to perform landscaping work, and then terminated his employment after approximately six weeks of employment. The purpose of this Decision is to decide whether the applicant was subjected to harassment and a poisoned work environment during his employment, and had his employment terminated for discriminatory reasons.

BACKGROUND

2On November 23, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent company and its owner/operator, Shawn Wilson, had harassed and discriminated against him with respect to employment because of his race, colour, ancestry, ethnic origin, disability, sexual orientation, and sex. The applicant also named the franchisor, Ground Guys Landscape Management Inc., as a respondent, but did not name it in subsequent filings with the Tribunal.

3On May 1, 2012, the respondent company and Mr. Wilson filed a Response, which denied the allegations of harassment and discrimination.

4On September 20, 2012, the trustee in bankruptcy for the estate of Mr. Wilson filed a Notice of Stay of Proceedings with the Tribunal advising that Mr. Wilson had filed an assignment in bankruptcy, and that pursuant to s. 69 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”), all proceedings against him, including the Application at hand, were stayed.

5On November 21, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 2178, which decided that the Application against Mr. Wilson was statutorily stayed pursuant to s. 69 of the BIA, but that the applicant was permitted to continue his Application against the respondent company.

6On July 5, 2013, the applicant filed a letter with the Tribunal, which requested that the Application against the respondent company proceed to a hearing because there was no stay of proceedings against it, and, according to a corporate search conducted in May 2013, its status was still active.

7On July 12, 2013, Mr. Wilson filed a letter with the Tribunal, which stated that he had resigned as a director of the respondent company. The letter also stated that the respondent company had ceased operating as of April 30, 2012, and would not attend a hearing.

8On July 30, 2013, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing of the merits of the Application was scheduled for January 6, 2014.

9The respondent company failed to comply with its obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure to deliver to the applicant and file with the Tribunal a witness list, witness statements, and copies of documents that it intended to rely upon no later than 45 days prior to the hearing.

10On December 17, 2013, the Tribunal issued a Case Assessment Direction (“CAD”), which warned the respondent company that if it failed to comply with the Tribunal’s Rules on disclosure of documents and witnesses, the hearing would be converted into a half-day teleconference hearing, and it would not be allowed to present evidence. The respondent company did not respond to the CAD.

11On January 3, 2014, the Tribunal issued a letter to the parties, which informed them that the in-person hearing scheduled for January 6, 2014 was converted into a teleconference hearing.

12The hearing took place as scheduled on January 6, 2014. The applicant’s counsel called in, but the respondent company did not. The applicant’s counsel confirmed that the applicant was not pursuing an Application against the franchisor. I directed the applicant to file a sworn affidavit following the hearing, which he did, and which I have admitted into evidence. I have also admitted into evidence a corporate search record and communication notes between the applicant and Mr. Wilson. The applicant’s counsel also filed written submissions in support of the Application following the hearing.

13In view of the fact that the respondent company elected not to participate in the hearing and give evidence, the applicant’s evidence was uncontradicted.

EVIDENCE

14The applicant is a gay, Aboriginal man, who is also deaf. In approximately April 2011, he applied for a landscaping position with the respondent company in North Bay.

15Mr. Wilson, who was the owner/operator of the respondent company, interviewed the applicant for the position. The applicant attended the interview with an American Sign Language (“ASL”) interpreter. During the interview, the parties agreed that the applicant would communicate in the workplace with Mr. Wilson and his fellow employees by way of writing in a note pad.

16The respondent company hired the applicant for the position. He commenced work on May 2, 2011. He attended the work site with an ASL interpreter to assist him during his training. Mr. Wilson told them that an interpreter was not necessary, and told the interpreter to go home.

17The applicant worked on a team of approximately nine employees along with Mr. Wilson. He was the only Aboriginal person in the workplace. He did not disclose to Mr. Wilson or his co-workers that he was gay.

18In the beginning, the applicant felt that things were going well, and he was scheduled to work approximately 50 hours per week. However, after a few weeks, things changed. Mr. Wilson and some of the applicant’s co-workers appeared to be getting impatient that they had to communicate with him by way of writing in a note pad. Specifically, the applicant noticed that they would often swear and/or complain before providing him with written instructions.

19On May 27, 2011, Mr. Wilson made sexual gestures towards the applicant and sexual and homophobic comments to him in front of six other employees, who laughed. Specifically, he gestured that the applicant liked to perform blow jobs, called him a “cock sucker”, and wrote in the note pad that the applicant was “gay”, a “shitty worker”, and “must eat poop in a box.” The applicant felt ashamed and embarrassed.

20On May 30, 2011, the applicant was told to end his shift early, and was scheduled to work fewer shifts that week.

21On June 6, 2011, Mr. Wilson laid the applicant off. He wrote in the applicant’s note pad: “You are a good worker. I just have no work for you because of contract loss…. I have to lay off 6 people…. You and 5 others…”

22Shortly after the applicant was laid off, he walked by the job site, and saw that all of his co-workers were still employed.

23The applicant visited a crisis worker three to four times to deal with the negative impact of these adverse events on his emotional state and mental health. He was also unable to pay some of his bills, and some of his services were cut off, and the outstanding balances were referred to collections. He commenced a search for new employment, but was unable to secure a new job until September 25, 2011.

ANALYSIS

Applicable Law and Issues

24The Application relates to ss. 5, 7, 9, and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(...)

7. (2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

(...)

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

10. (1) In Part I and in this Part,

(...)

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

(...)

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

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

25The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

26In order to establish a case of discrimination, the applicant must prove that (1) he is, or was perceived to be, a member of a group protected by the Code; (2) he was subjected to adverse treatment; and a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155, and Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.

27In this case, the two main issues to be decided are the following:

1. Did Mr. Wilson harass the applicant and poison his work environment by making sexual and homophobic gestures and comments, and if he did, is the respondent company liable for his conduct and comments?

2. Were the applicant’s race, colour, ancestry, ethnic origin, disability, sexual orientation, and sex factors in Mr. Wilson’s decision to lay off the applicant, and if they were, is the respondent company liable for his decision?

Did Mr. Wilson harass the applicant and poison his work environment by making sexual and homophobic gestures and comments, and if he did, is the respondent company liable for his conduct and comments?

28In order to establish a case of harassment based on sexual orientation and sex, the onus is on the applicant to prove, on a balance of probabilities, that (1) Mr. Wilson was his employer, his employer’s agent, or another employee; (2) Mr. Wilson harassed him by engaging in a course of vexatious comment or conduct towards him that was known or ought reasonably to have been known to be unwelcome; (3) Mr. Wilson harassed him in the workplace; and (4) there was a connection between the harassment and the applicant’s sexual orientation and sex. See ss. 7(2) and 10(1) of the Code.

29With respect to the second part of the test, there is an objective standard to determine whether Mr. Wilson ought reasonably to have known that his impugned behaviour towards the applicant was unwelcome. The standard is what the perception of a “reasonable person” would be, considering the perspective of both a reasonable person in the applicant’s position, and a reasonable person in Mr. Wilson’s position. See Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paras. 43-48.

30In my view, the applicant established, on a balance of probabilities, that the respondent company subjected him to harassment based on sexual orientation and sex in the workplace. With respect to the first part of the test, I find that Mr. Wilson was the applicant’s employer because he was the owner/operator of the respondent company when the applicant worked there.

31With respect to the second part of the test, I find that Mr. Wilson harassed the applicant by engaging in a course of vexatious comment or conduct towards him that was known or ought reasonably to have been known to be unwelcome. Specifically, Mr. Wilson made sexual and homophobic gestures and comments by gesturing that the applicant liked to perform blow jobs, calling him a “cock sucker”, and writing in a note pad that he was “gay”. I accept that Mr. Wilson’s comments and conduct distressed the applicant. Furthermore, although there is no evidence that Mr. Wilson knew that the applicant was gay, a reasonable person would not assume that everyone around him is heterosexual, and would know that such comments and conduct are unwelcome to gay men.

32With respect to the third part of the test, I find that Mr. Wilson harassed the applicant in the workplace. Specifically, the comments and conduct all occurred at work.

33With respect to the fourth part of the test, I find that there was a connection between the harassment and the applicant’s sexual orientation and sex. Mr. Wilson’s comments and conduct were specifically disparaging towards gay men by characterizing being gay and sexual acts between men as insults, and reducing the identity of gay men to sexual acts.

34Section 46.3(1) of the Code provides that for the purposes of the Code, with certain exceptions, any act or thing done or omitted to be done in the course of one’s employment by an officer, official, employee or agent of a corporation shall be deemed to be an act or thing done or omitted to be done by the corporation. The exceptions include harassment under ss. 5(2) and 7(2) of the Code. However, the Ontario Divisional Court has held that if the individual responsible for the acts of harassment is a directing mind of the corporation, then the corporation can also be held liable for the individual’s acts. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 33.

35In view of the fact that Mr. Wilson was the owner/operator, and therefore a directing mind, of the respondent company when the applicant worked there, I find that the respondent company is liable for subjecting the applicant to harassment in the workplace based on sexual orientation and sex.

36I also find that the respondent company subjected the applicant to a poisoned work environment. The prohibition against discrimination in s. 5(1) of the Code affords employees the right to be free from a poisoned work environment in relation to Code-protected grounds. If sexually charged and homophobic comments and conduct contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment contrary to s. 5(1) of the Code. See Smith v. Menzies Chrysler, 2009 HRTO 1936 at para. 151.

37In view of the power differential between Mr. Wilson (the owner/operator of the respondent company) and the applicant (an employee) in the workplace, the egregious nature of the sexual and homophobic gestures and comments, and the fact that the gestures and comments were made in front of six of the applicant’s co-workers, who laughed, I accept that the work environment would have become poisoned for the applicant.

38Pursuant to s. 46.3(1) of the Code, the respondent company is liable for subjecting the applicant to a poisoned work environment.

39To sum up, I find that Mr. Wilson harassed the applicant and poisoned his work environment by making sexual and homophobic gestures and comments, and that the respondent company is liable for his conduct and comments.

Were the applicant’s race, colour, ancestry, ethnic origin, disability, sexual orientation, and sex factors in Mr. Wilson’s decision to lay off the applicant, and if they were, is the respondent company liable for his decision?

40In my view, the applicant established, on a balance of probabilities, that his hearing disability was the main factor in Mr. Wilson’s decision to lay him off. A few weeks after the applicant started work, Mr. Wilson and some of the applicant’s co-workers became impatient and would swear and/or complain that they had to communicate with him by way of writing in a note pad, and shortly thereafter, he was the only employee whom Mr. Wilson laid off. Given the proximity between the two events, and the fact that the applicant was the only employee whom Mr. Wilson laid off, I have drawn the inference that, rather than exploring options other than writing on a note pad to communicate with the applicant, Mr. Wilson decided to lay him off.

41Section 17 of the Code requires that an employer accommodate an employee’s disability-related needs, as they relate to performing the essential duties of the job, up to the point of undue hardship. In order to trigger the duty to accommodate, the employee should inform the employer that he has disability-related needs, and endeavour to provide as much information as possible to facilitate the search for accommodation. See Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at para. 35. The applicant did this by bringing an ASL interpreter to his job interview and training, and reaching an agreement with Mr. Wilson that he would communicate in the workplace with others by way of writing in a note pad.

42Once the duty to accommodate has been triggered, the employer must meet both its procedural and substantive obligations. The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. The term “undue hardship” requires that the employer seriously consider how the employee could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the procedural duty to accommodate. In assessing whether the employer has met the duty, its efforts will be assessed at the time of the alleged discrimination. The employer may not use after-acquired evidence to support its view that the employee could not be accommodated. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at paras. 106-107.

43The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee’s disability-related needs short of undue hardship. “Accommodation” refers to what is required in the circumstances to avoid discrimination. The factors causing “undue hardship” will depend on the particular circumstances of every case. The use of the term undue infers that some hardship is acceptable; it is only undue hardship that satisfies the test. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. See ADGA, above, at paras. 113 and 117-118. The employer has to present cogent evidence to support its position that it cannot accommodate the employee’s disability-related needs because of undue hardship. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at paras. 78-79.

44Although the respondent company initially met its procedural and substantive obligations to accommodate the applicant’s disability-related needs by communicating with him by way of writing in a note pad, when that mode of communication became frustrating and less effective, rather than exploring other options, such as bringing back the ASL interpreter (whom, I would note, Mr. Wilson sent home on the training day), Mr. Wilson simply laid off the applicant. This constituted a failure to accommodate the applicant’s disability-related needs up to the point of undue hardship, and was discriminatory.

45The applicant also alleged that Mr. Wilson laid him off because he is Aboriginal. Specifically, in his Application he stated that he was the only Aboriginal employee, and the only employee who was laid off. He also alleged that Mr. Wilson laid him off because he is a gay man. Specifically, in his written submissions, he stated that he felt that Mr. Wilson must have become aware that he was gay because of the homophobic gestures and comments that he made to him, and that he was laid off shortly after the gestures and comments were made. In my view, the applicant is merely speculating, and there is insufficient evidence to find that his race, colour, ancestry, ethnic origin, sexual orientation, and sex were factors in Mr. Wilson’s decision to lay him off.

46Pursuant to s. 46.3(1) of the Code, the respondent company is liable for Mr. Wilson’s discriminatory decision to lay off the applicant rather than accommodating his disability-related needs up to the point of undue hardship.

47To sum up, I find that the applicant’s hearing disability was the main factor in Mr. Wilson’s decision to lay him off, and that the respondent company is liable for his decision.

REMEDY

Applicable Law and Issues

48The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:

(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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

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

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

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

49Accordingly, the issues that I am required to determine are whether the applicant is entitled to monetary compensation and non-monetary restitution, and whether the Tribunal should order the respondent company to do anything further to promote compliance with the Code.

Monetary Compensation

Lost Income

50The applicant is seeking an award of compensation for lost income for the 16 week period between June 6 and September 25, 2011 when he did not have a job. Specifically, he is seeking $8,200 ($512.50 wages per week x 16 weeks).

51The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory acts not occurred. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.), and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).

52I find that the applicant’s request for an award of compensation for lost income in the amount of $8,200 should be granted because it will restore him as far as is reasonably possible to the position that he would have been in had the respondent company not discriminated against him. I also accept that the applicant mitigated his losses by commencing a search for new employment after the respondent company laid him off, but he was unable to find a new job until September 25, 2011.

53The Tribunal also has the jurisdiction to order the respondent company to pay interest in accordance with the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended (the “CJA”). See Quereshi v. Ontario (Human Rights Commission), 2006 CanLII 63686 (ON SC) at para. 55, and Impact Interiors Inc., above, at para. 1.

54Pursuant to s. 128 of the CJA, pre-judgment interest runs from the date the cause of action arose (June 6, 2011) to the date of this Decision. Pursuant to s. 129 of the CJA, post-judgment interest runs from the date of this Decision.

Injury to Dignity, Feelings and Self-Respect

55The applicant is also seeking an award of $40,000 compensation for injury to dignity, feelings and self-respect.

56An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA, above, at para. 152.

57The Divisional Court has also recognized that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA, above, at para. 153.

58In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:

(...) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

59I will start by addressing the applicant’s request for an award of monetary compensation for injury to dignity, feelings and self-respect resulting from being subjected to Code-related harassment and a poisoned work environment.

60I find that, objectively, Mr. Wilson’s conduct and comments, though short-term, were egregious, and a serious violation of the Code. I also find that the applicant was vulnerable because he is gay and deaf, and accept that the conduct and comments made him feel shame and embarrassment because of their degrading nature, and the fact they were made in front of six of the his co-workers, who laughed. I further accept that the conduct and comments had a negative impact on his emotional state and mental health.

61Tribunal decisions that have arisen from situations where a single harassing or discriminatory comment was made, or several such comments were made within a short period of time, in an employment context have typically made awards ranging from $1,000 to $7,000. See, for example, Romano v. 1577118 Ontario Inc., 2008 HRTO 9 (one comment - $1,000); Baisa v. Skills for Change, 2010 HRTO 2161 (two comments - $1,500); Brooks v. Total Credit Recovery (one comment but then repeated two more times - $2,500); Pardy v. Graham, 2012 HRTO 122 (one comment - $5,000); and Pleasant v. Mainline Manufacturing & Installing Inc., 2005 HRTO 34 (one comment - $7,000).

62In my view, the decision that is most analogous and relevant with respect to the appropriate quantum to be awarded is Pardy. In that decision, the Tribunal found that the respondent, who was the owner of a catering business, poisoned the work environment of a gay employee by directing angry comments at him, which included the word “faggot”, and that it was irrelevant whether or not the owner knew that the applicant was a gay.

63In my view, the facts in the case at hand are similar but more egregious because there was one comment, calling the applicant a “cock sucker”, which is comparable in seriousness to being called a “faggot”, but there was also a further comment, calling the applicant “gay”, and more seriously, a sexual and homophobic gesture, motioning that the applicant liked to perform blow jobs. It bears worth repeating my finding above that Mr. Wilson was characterizing being gay and sexual acts between men as insults, and reducing the identity of gay men to sexual acts. I find, overall, after considering the seriousness of the violation of the Code, the applicant’s individual circumstances, and this Tribunal’s case law, that $7,500 is an appropriate award of compensation for injury to dignity, feelings and self-respect.

64Pursuant to s. 128 of the CJA, pre-judgment interest runs from the date the cause of action arose (May 27, 2011) to the date of this Decision. Pursuant to s. 129 of the CJA, post-judgment interest runs from the date of this Decision.

65I now turn to the applicant’s request for an award of monetary compensation for injury to dignity, feelings and self-respect resulting from the discriminatory layoff from employment.

66I find that, objectively, the layoff, which resulted in a sudden loss of employment and income for the applicant, was a serious violation of the Code, though the seriousness is somewhat mitigated by the fact that the applicant had only worked for the respondent company for approximately six weeks when it occurred. I also find that the applicant was vulnerable because he is deaf and unable to communicate easily with hearing individuals, and I accept that the layoff had a negative impact on his emotional state and mental health, which resulted in him visiting a crisis worker three to four times.

67Tribunal decisions that have considered disability-related discrimination in the context of the termination of the applicant’s employment have generally made awards ranging from $10,000 to $45,000. See, for example, LeBlanc v. Syncreon, 2010 HRTO 2336 ($10,000); Coscina v. Halton School of Equitation, 2011 HRTO 1949 ($10,000); DeForest v. Brockton Farm Ltd., 2012 HRTO 1666 ($10,000); Schildt v. POINTTS Advisory Limited, 2014 HRTO 893 ($10,000); Davis v. Nordock Inc., 2012 HRTO 2218 ($12,000); Hébert v.1497422 Ontario Inc., 2013 HRTO 133 ($12,000); O’Brien v. Organic Works Inc., 2012 HRTO 457 ($13,000); Moore v. Curraghmore Farm Inc., 2013 HRTO 1586 ($13,000); Mirashrafi v. Circuit Centre, 2010 HRTO 512 ($15,000); Vetricek v. 642518 Canada, 2010 HRTO 757 ($15,000); Duliunas v. York-Med Systems, 2010 HRTO 1404 ($15,000); Defina v. Lithocolor Services Ltd., 2012 HRTO 1768 ($15,000); Maric v. National Millwork Inc., 2013 HRTO 425 ($15,000); Macan v. Strongco, 2013 HRTO 841 ($15,000); Lopetegui v. 680247 Ontario, 2009 HRTO 1248 ($20,000); Pilon v. Cornwall (City), 2012 HRTO 177 ($20,000); Chittle v. 1056263 Ontario Inc., 2013 HRTO 1261 ($30,000); Krieger v. Toronto Police Services Board, 2010 HRTO 1361 ($35,000); and Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 ($45,000).

68In my view, the decisions that are most analogous and relevant with respect to the appropriate quantum to be awarded are Moore and Defina.

69In Moore, the applicant, who had an arm injury, had worked for the respondent for approximately six weeks when his employment was terminated. The applicant testified that he became depressed following the termination, but did not present any medical documentation linking his termination to his depression. The Tribunal found that the applicant’s disability was a factor in the decision of the respondent to terminate his employment, and made an award of $13,000 for injury to dignity, feelings and self-respect

70In Defina, the applicant, who had a back injury, had worked for the respondents for less than two months when her employment was terminated. The applicant did not provide many details or any medical documentation about the impact of the termination on her, but the Tribunal accepted that it came as a shock to her. The Tribunal found that the applicant’s disability was a factor in the decision of the respondents to terminate her employment, and made an award of $15,000 for injury to dignity, feelings and self-respect.

71In my view, the facts in the case at hand are similar to those in Moore and Defina in that the applicant had a disability, had worked for the respondent company for less than two months when his employment was terminated, and testified that the termination had a negative impact on his emotional state and mental health, but did not present any medical documentation about the impact of the termination on him. The facts are also similar in that I have found that the applicant’s disability was the main factor in the decision to lay him off. However, I also find that the facts in the case at hand are somewhat more egregious because the applicant, as a deaf person who is unable to communicate easily with hearing individuals, was particularly vulnerable. I find, overall, after considering the seriousness of the violation of the Code, the applicant’s individual circumstances, and this Tribunal’s case law, that $18,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect.

72Pursuant to s. 128 of the CJA, pre-judgment interest runs from the date the cause of action arose (June 6, 2011) to the date of this Decision. Pursuant to s. 129 of the CJA, post-judgment interest runs from the date of this Decision.

Non-Monetary Restitution

73The applicant is seeking a positive letter of reference as non-monetary restitution.

74It is well established that the object of the Code is remedial. Where the Tribunal finds that a respondent has discriminated against an applicant, it has a broad authority to fashion a remedy that not only provides monetary compensation, but may also include non-monetary restitution that will put the applicant back in the position that he would have been in, but for the discrimination. See, for example, TA v. 60 Montclair, 2009 HRTO 369 at para. 20.

75In view of the fact that when Mr. Wilson was laying off the applicant, he wrote in the applicant’s note pad that he was a “good worker”, I find that ordering the respondent company to provide the applicant with a positive letter of reference will assist in putting him back in the position that he would have been in, but for the discrimination. Therefore, the applicant’s request for a positive letter of reference is granted. The letter shall (1) set out the applicant’s job title, the start and end dates of his job, and his duties and responsibilities; (2) state that the applicant was a good worker; and (3) be signed by Mr. Wilson or his replacement.

Compliance Remedies

76The applicant also requested that the Tribunal order that the respondent company’s management read the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, and complete the Commission’s online training module on human rights.

77Based on the evidence, I am not satisfied that the respondent company is aware of its obligations under the Code. I therefore find it appropriate to order that the respondent company’s management read the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, and complete the Commission’s online training module on human rights and provide copies of the certificates of completion to the applicant. The Policy and the online training module can be found at: http://www.ohrc.on.ca/en.

ORDER

78Accordingly, the Tribunal orders as follows:

1. The respondent company shall pay the applicant $8,200 as compensation for lost income. Pre-judgment and post-judgment interest are payable in accordance with the CJA.

2. The respondent company shall pay the applicant $25,500 as monetary compensation for injury to dignity, feelings and self-respect. Pre-judgment and post-judgment interest are payable in accordance with the CJA.

3. Within 14 days of the date of this Decision, the respondent company shall provide the applicant with a positive letter of reference based on the terms listed above.

4. Within 28 days of the date of this Decision, the respondent company’s management shall read the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, and complete the Commission’s online training module on human rights and provide copies of the certificates of completion to the applicant.