HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kujtim Emra
Applicant
-and-
Impression Bridal Ltd.
Respondent
DECISION
Adjudicator: Leslie Reaume
Indexed as: Emra v. Impression Bridal Ltd.
APPEARANCES
Kujtim Emra, Applicant Marisa Scotto di Luzio, Counsel
Impression Bridal Ltd., Respondent Ford Wong, 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 and perceived disability.
2The respondent is a wholesaler of wedding gowns and various other speciality event dresses. The Canadian company is owned by a company in Houston. Ms. Yvonne Yue is the manager of the Canadian operation and a shareholder in the company.
3The applicant commenced his employment on November 8, 2010, as the accounts receivable manager. He was hired by Ms. Yue and terminated effective February 15, 2013, also by Ms. Yue.
4The applicant alleges that he was terminated following a short period of absenteeism and that disability and perceived disability were factors in his termination. The applicant self-identifies as a person living with Generalized Anxiety Disorder and Panic Disorder. He was diagnosed in 2007. He alleges that at the time of the termination when he disclosed and explained his actual disabilities, Ms. Yue indicated to him that she felt he may be suffering from Attention Deficit Disorder (“ADD”) as well.
5The respondent denies that the applicant was terminated. The respondent alleges that the applicant told Ms. Yue that he found his position too stressful and that he needed to resign and look for a less stressful job. The respondent alleges that the applicant asked Ms. Yue to terminate him so that he could collect employment insurance benefits.
Decision
6For the reasons that follow, I find that the applicant was terminated and that disability and perceived disability were factors in his termination.
7The focus of this decision is on the events of February 11 and February 12, 2013, during which the applicant and Ms. Yue met in person to discuss the applicant’s employment. The applicant alleges that during the first meeting on February 11, 2013, he was terminated because of his disability and a perception on Ms. Yue’s part that he also had ADD. The applicant sought legal advice the next morning and sent Ms. Yue an email setting out his desire to maintain his employment and his concern that his termination violated the Human Rights Code. The applicant alleges that Ms. Yue called him to her office shortly thereafter to discuss the letter, but would not change her decision.
8Ms. Yue has a completely different recollection of the two meetings. She alleges that during the first meeting the applicant disclosed that the job was too stressful for him and that he wanted to resign. Ms. Yue agreed to indicate on the applicant’s Record of Employment (“ROE”) that he had been terminated so that he could collect employment insurance benefits. She gave the applicant the night to think about his decision. She denies ever receiving an email or letter from the applicant the morning of the second meeting. Ms. Yue alleges that the second meeting was held to confirm the applicant’s decision to leave his employment. Ms. Yue alleges that she never intended to terminate the applicant.
The applicant’s perspective
9The nature of the applicant’s disability, his diagnoses and the symptoms he has when he experiences anxiety were not disputed by the respondent. The applicant receives treatment from a psychiatrist, takes medication and engages in cognitive behavioural therapy on an as needed basis to manage his fluctuating symptoms. The applicant may go long periods of time without symptoms. At other times he experiences intrusive negative thoughts, worry that he is unable to control and physical symptoms such as nausea, sweaty palms, and butterflies in his stomach.
10When the applicant started work for the respondent he did not disclose his disability. He loved his job and experienced low levels of stress throughout his employment with the respondent as compared to the work he had done previously in collections. The applicant’s symptoms were less severe than they had been in past jobs and he was hoping at some point to come off his medications because he was doing so well.
11The applicant had approximately seven or eight years’ of experience in collections and customer service before he was hired by Ms. Yue. As the accounts receivable manager he worked in an office with five or six other people.
12The applicant’s position involved a number of activities: keeping accounts up to date; dealing with retailers on payment plans and complaints; calculating commission for the sales people and month-end statements. In addition, he would do anything else he was asked to do by Ms. Yue including: answering phones; taking in returned or damaged merchandise; helping with bridal shows; handling insurance claims and damage to the building. He was once asked to discipline an employee by giving them a written warning.
13There was no manual or job description for the accounts receivable position and no written policies on how to manage customer accounts. There was a manual on how to use the computer system. The applicant was trained for a week on the computer system and he took notes as people told him how things were done. He managed the accounts of approximately 80 customers.
14The applicant worked the hours of 10 a.m. to 6 p.m. as an hourly employee. As an hourly employee he did not receive pay for his sick days. Initially the applicant earned $14.00 per hour. By December 2013 he was earning $16.00 per hour. There was no increase after December 2013 because business had been slower than expected.
15The applicant perceived himself to be a good worker. He had informal, verbal, undocumented performance appraisals in December 2012 and 2013. During the review in 2013, Ms. Yue indicated that she had some concerns about the applicant’s attendance and asked him to work on improving his attendance. The applicant never received notice of any verbal or written discipline. The applicant’s perception was that Ms. Yue provided him with helpful advice from time to time about how to improve his performance. The applicant readily acknowledges that he enjoyed working for Ms. Yue.
16There were no human rights-related policies in effect at the time of the applicant’s employment.
17After the first six months of his employment, the applicant was frequently a few minutes late for work. The applicant raised this issue with Ms. Yue, explained to her the circumstances that caused him to be late and was under the impression that she did not have any concerns. He was also absent from work from time to time, mostly related to his disability.
18The applicant’s absenteeism began to increase in the months leading up to his termination. It did not appear that his absences were being monitored that closely until shortly before his termination and the applicant readily agreed that he had no difficulty obtaining time off when he was sick. The issue was mentioned in his review in December 2013 as something he could work on. Up until January 2013, the applicant had not disclosed that he had a disability, although Ms. Yue was aware that the applicant occasionally experienced anxiety.
19The applicant was off work for five days in January as a result of his anxiety. He was not asked to provide a doctor’s note but he did disclose in a text to Ms. Yue (dated January 30, 2013) the fact that the absences were attributable to his anxiety. He disclosed to Ms. Yue that he was taking medication and seeing a doctor for his anxiety. Ms. Yue indicated that she understood but urged him to make sure that he was in the office during her upcoming trip to Houston.
20Ms. Yue was in Houston in early February. There was an email exchange between the applicant and Ms. Yue on February 1, 2013, which they both described as unusual in what was otherwise a cordial working relationship. Ms. Yue accused the applicant of making an impulsive decision about a customer account. The applicant was offended and responded that he would check in with her before he made any decision of any kind. Ms. Yue was not due back until February 11, 2013.
21On February 4, 2013, the applicant could feel his anxiety building and by lunch he realized he was shaking, having difficulty concentrating and his palms were sweating. He spoke with Ms. Kwa, Ms. Yue’s long-time assistant, who noticed right away that he was having difficulty. The applicant explained the nature of his disability. Ms. Kwa was sympathetic and agreed that he should leave work. She also indicated that he should take a few days off if he needed.
22The applicant went directly to his doctor, who prescribed him enough meds for a period of two weeks. The applicant started to feel better on the medication and went back to work February 7 and 8 without any difficulty. There was a suggestion in one of the documents that the office may have been closed on February 8, 2013 because of a snow storm but this small discrepancy was inconsequential. The applicant saw his psychiatrist on February 7, he was doing well, and from his perspective, everything was returning to normal.
23This case turns on what happened when Ms. Yue returned from Houston. There were two meetings between the applicant and Ms. Yue, the first on February 11, 2013, and the second on February 12, 2013. The versions of those meetings advanced by the parties are entirely different. What follows is the applicant’s version of the events.
24On February 11, 2013, Ms. Yue returned to the office and roughly sometime after lunch, the applicant was paged to come to her office. Ms. Yue told the applicant that she had spoken with Ms. Kwa and learned about the applicant’s absenteeism and she asked the applicant how he was doing. The applicant explained his disabilities. Ms. Yue did not ask for further medical information or ask the applicant how he could be accommodated.
25Ms. Yue said that it was very important for the applicant to be at work because he has an important role. She also said that she needed someone more focussed and more reliable because the applicant’s job requires him to deal with credit cards, checks, deposits and private information. Ms. Yue indicated that she thought the applicant may have “ADD” because at times she has seen him staring out of the window and unfocussed.
26The applicant told Ms. Yue that he did not have ADD and that he wanted to keep his job. Ms. Yue told the applicant that she was sorry but she was going to have to terminate him. Ms. Yue asked the applicant to stay until the end of the week (February 15, 2013) to pass on information to Ms. Yue and Ms. Kwa and in return she would provide him with two weeks’ pay and a positive letter of reference.
27The next day, February 12, 2013, the applicant came into the office as usual. He called the Human Rights Legal Support Centre (“HRLSC”) for advice and explained what had happened the day before. The applicant was asked whether he wanted to keep his job and was advised to write a letter to his supervisor. He was told to explain how he felt in his own words and to reference the Code and accommodation. He composed the letter, called the HRLSC back a second time to ask further questions about the wording, sent the letter to the respondent’s private email address and forwarded a copy to himself.
28Shortly after the email was sent, the applicant was paged to Ms. Yue’s office. He cannot recall if Ms. Yue turned her computer screen toward him but it was apparent to him that his letter was on the screen. Ms. Yue asked “what is this – I thought we had an agreement?” The applicant told Ms. Yue that he did not agree with the decision to terminate and that he wanted to keep his job. Ms. Yue asked if the applicant could give her his word that things would change. The applicant said that he suffered from anxiety and that he could not give her his word that he would not suffer from anxiety again. Ms. Yue said that there was nothing to discuss, an agreement had been made and the applicant would stay until February 15, 2013. The applicant described this conversation as a little more “heated” than any other conversation he had had with Ms. Yue.
29When he was asked on cross-examination whether he had asked for accommodation, he responded that his request was contained in the letter and that during his second meeting with Ms. Yue he also asked if there was some other position in the company that he could do.
30The applicant called the HRLSC and explained what happened at the second meeting. It was apparent that he would not be getting his job back. The applicant was told that if he wanted to proceed he would have to fill out an application. He considered letting it go because Ms. Yue had offered him two weeks’ pay and a good reference.
31The HRLSC made notes of the applicant’s contacts with the HRLSC and the notes were produced by the HRLSC and authenticated by a witness. I discuss the notes in more detail below but they are consistent with the applicant’s testimony.
32During cross-examination the applicant admitted that he did not ask Ms. Yue for a reply to the letter nor did he write a second email to Ms. Yue confirming what had happened at the second meeting. The applicant testified that he had “pleaded” for his job twice and that nothing had changed.
33What transpired the rest of the week is not in dispute. The applicant worked until February 15, 2013. The days were uneventful. Interviews were being held for his replacement and he was passing on information to Ms. Kwa who would be taking his place until a replacement was found. He described the 13th and 14th as normal days. Although he advised Ms. Yue that it was unnecessary, Ms. Yue insisted on bringing in lunch and a cake to mark his departure. Ms. Yue gave the applicant a hug and wished him well before he left on February 15, 2013.
34On cross-examination, the applicant was asked whether he thought it was unusual that he was asked to stay and finish the week. The applicant responded that he took it as an act of sympathy on Ms. Yue’s part. He also recognized that Ms. Kwa and Ms. Yue needed him to show them the procedures. But most important was the fact that he could not afford to put his pay and positive reference in jeopardy.
35The applicant denied the allegation that he told Ms. Yue at the lunch on the 15th that he had another job driving a truck. The applicant only mentioned it as a possibility when he was asked “what happens now?” The applicant said that his uncle is in the trucking business but he had not spoken with his uncle at the time.
36The applicant was the sole support for his family. Following his termination, the applicant’s wife was successful in securing employment while the applicant remained unemployed up to the commencement of the hearing in February 2014. The applicant commenced receiving employment insurance benefits in March 2013. His benefits ended January 10, 2014. The applicant has not applied for sick benefits because he is of the view that he can work and is actively looking for a job to support his family. The details of the applicant’s job search are set out below in the section on lost income.
What evidence does the applicant have to support his perceptions?
37There is no dispute about the nature of the applicant’s disability or that his disability was the reason he was off work. The respondent alleges that there was no intention to terminate and is therefore not relying on any performance-related issues for the purpose of explaining the termination.
38The applicant’s Psychiatrist, Dr. Bakshi, testified and confirmed his clinical notes. There is a record of an appointment on February 7, 2013 and no indication that the applicant is stressed by his employment and is considering quitting his job. During the visit on February 21, 2013, Dr. Bakshi’s notes indicate that the applicant advised him that he had been terminated.
39Dr. Bakshi testified that it is difficult to establish cause and effect when it comes to the kind of anxiety the applicant experiences. The applicant has a disorder which can attach itself to any number of stressors, the termination being one of them. He testified that the applicant’s precarious financial situation was aggravating his symptoms. He also testified that there was a considerable increase in anxiety in February 2013 for which the termination of his employment was a stressor.
40Dr. Bakshi testified about the fluctuating nature of the applicant’s disability. For example, despite the termination, by March 26, 2013, the applicant was feeling better, but then by December 2013 the applicant’s anxiety was increasing again and he was stressed, in part, by his ongoing financial difficulties.
41It is clear that the applicant’s anxiety was manifesting prior to the termination and as Dr. Bakshi testified, there is no way to determine whether the termination alone had the effect of triggering further anxiety. However, I accept Dr. Bakshi’s conclusion that there was a considerable increase in the applicant’s anxiety in February 2013 and that his termination was a “stressor” at that time.
42Consuelo Rubio, who is the manager of client services at HRLSC, testified to authenticate the records from the HRLSC. The records are contemporaneous and based on self-reporting by clients and while some level of detail is expected, staff members are not expected to conduct in-depth interviews at this initial stage.
43The records are consistent with the applicant’s testimony. He first called the Centre on February 12, 2013, at 9:57 a.m., the morning after his first meeting with Ms. Yue. He reported to the HRLSC about the meeting he had with Ms. Yue the day before, including the comments that Ms. Yue needed someone reliable and focussed. The staff member explained the duty to accommodate to the applicant and advised him to speak to Ms. Yue to let her know that he wanted to continue working. The staff member also suggested a letter confirming his points.
44The second entry indicates that the applicant called the HRLSC back at 10:53 a.m. on the same day (February 12, 2013) indicating that he was writing a letter to his employer and had questions about the wording. The email to Ms. Yue indicates that it was sent to her personal email (which she confirmed was correct) at 11:00 a.m. that day.
45The text of the letter to Ms. Yue reads as follows:
Hi Yvonne,
I had thought about our meeting yesterday and find it hard to believe that you can terminate my employment due to my mental illness which in no ways has affected my work performance. Yes I have had to miss a couple of days here and there due to my illness but it has not come to the point where it was dramatic amount of time being missed and has not effected my work. In our meeting yesterday you stated that due to my illness you believe I cannot carry out my work duties and that for this reason I should be let go. I do not understand how prior to me breaking down to Lillian on Monday February 14th 2013 about my anxiety hitting me hard that month I was not told I was not doing my work duties to you approval. Then exactly a week later you pull me in your office and indicated that you cannot have someone in my condition working here due to my position requiring full attention and at which point you indicated that you will be terminating me as of Friday 15th 2013 due to me missing time off work and have this mental illness which you require someone with full concentration which again I have explained to you does not effect me at all.
I also do not believe you have the medical experience to assume/diagnose me with stating you believe I suffer with attention deficit disorder. I look at the human rights code of Ontario and it says employers have a duty to accommodate up to a point of hardship. Now I would like to discuss this matter further and would hope to speak to you today when you get in and have the free time.
The letter is signed “Tim Emra, Manager/Account Receivables, Impression Bridal, canada@impressionbridal.com”
46The third contact with the HRLSC took place on February 14, 2013, at 2:30 p.m. The applicant reported that he had a meeting with his manager and that she told him she could not accommodate him because of his need for days off as a result of his illness. The note does not make reference to the applicant having sent the email to Ms. Yue, however, the email is referenced in a more detailed note dated March 20, 2013.
47The notes from the HRLSC were made contemporaneously as the events of February 11, 2013 and February 12, 2013 unfolded and are consistent with the applicant’s version, which is that his disability was a factor in his termination.
48Separate and apart from the notes prepared by the HRLSC, there was a series of text messages between Ms. Yue and the applicant about his absences which are dated January 30, 2013. The applicant wrote to Ms. Yue that day to say that he was not well. Ms. Yue wrote back to say that she was “really concerned” about the applicant’s attendance this month and that he had already called in sick for five days. The applicant wrote back with the following message:
I know Yvonne I’m very sorry I do not mean to miss so much work as I do need the money! It has been a bad month for me as the most of the days except for today has been due to my anxiety which effects me from time to time! I am really sorry and will do my best to put January behind us and start fresh with February but again its my anxiety which I’m on meds for an am getting help but I will give you my word it will not let it effect me moving forward.
Ms. Yue responded:
Ok I understand, please take care and try to be at work when I am in Houston
The applicant responded:
I will Yvonne and I lucky to have a boss as understanding as you and I will keep my word that I will improve
The respondent’s perspective and evidence
49The respondent’s perspective on the applicant’s allegations arises mainly from the testimony of Ms. Yue, who started with the respondent in 2005 and is a part owner of the company. Ms. Yue described her role in the organization as predominantly creative. She spends approximately eighty percent of her time as a designer and creative director and significantly less time on management-related issues.
50Ms. Yue admitted that she did not know anything about the Human Rights Code and that the company had no policies related to human rights. She does have a basic understanding of discrimination in the sense that certain words and actions can be offensive to some people.
51Ms. Yue became aware that the applicant experienced anxiety from time to time by observing him as she walked past his office and occasionally asking if he was ok or needed to take some time off. She was not aware at the time that the applicant was hired that he had a disability. However, she testified that she would have hired him even if she had been aware. There is no dispute that the applicant was given time off for illness whenever he requested it and that the first time he described his anxiety disorder to Ms. Yue in any detail was in the text of January 30, 2013.
52While she was away in Houston, there were a series of emails between the applicant and Ms. Yue which I referenced above. Ms. Yue accused the applicant of making an impulsive decision about a customer account. The applicant was offended and responded to her that he would not make a decision without running it by her first, which she considered highly impractical.
53When she was back at work on February 11, 2013, Ms. Yue called the applicant into her office to discuss the email exchange. At one point in her testimony she said that she wanted to resolve any misunderstanding. At another point she said that she wanted to deal with the applicant’s unprofessional behaviour. The applicant asked her if she knew he had been ill while she was away. Ms. Yue responded that she had not heard anything about it. The applicant told Ms. Yue that he had been going through an anxiety attack and that Ms. Kwa had suggested that he take some time off. Ms. Yue indicated that she had no problem with him taking time off. The applicant told Ms. Yue that he was seeing his doctor and taking medication and that he felt that the job was too stressful for him. Ms. Yue asked the applicant what he wanted her to do. The applicant responded that maybe this job was too stressful for him and he might have to look for a less stressful job. Ms. Yue asked the applicant: “Tim, do you want to quit?” The applicant responded that he was not sure and Ms. Yue suggested that he think about it and discuss it with her the next day.
54Ms. Yue denies receiving the email of February 12, 2013. She testified that she was unaware of the email until her counsel provided her with copies of the applicant’s documents as the parties were preparing for hearing. While it is possible that this may have been overlooked, the email is mentioned in the Application as a document the applicant intends to rely on in support of his allegations. It is described as a document which will establish his plea to keep his job and that he raised his concerns about the Code with Ms. Yue. When she was told about the letter, Ms. Yue checked her personal email and the applicant’s computer but was unable to locate a copy in either the applicant’s sent or trash folders. Although she has access to IT support, Ms. Yue did not ask the IT staff to conduct a more extensive investigation to determine whether, for example, a copy of the email had been backed up in the respondent’s system.
55On this point, the applicant testified that he forwarded a copy to his personal email and deleted the copy he sent to Ms. Yue from both his sent folder and his trash. He also testified that he had never sent an email to Ms. Yue’s personal account before and wasn’t sure how he got her personal email. However, he testified that Ms. Yue confirmed that she received the email and the content was discussed in their second meeting, which Ms. Yue denies.
56Ms. Yue agrees that there was a second meeting on February 12, 2013. Ms. Yue asked the applicant what his decision was and he replied that he wanted to leave his job. The applicant was concerned that if he quit he would not be able to get employment insurance and he asked Ms. Yue if she could record on the ROE that he was terminated. Ms. Yue agreed to do that and agreed to a good letter of reference.
57The applicant told Ms. Yue that his is last day would be Friday, February 15, 2013, and that he would like to stay on to pass his duties on to Ms. Kwa and Ms. Yue. Ms. Yue told him that was very nice of him and agreed to the proposal.
58From Ms. Yue’s perspective, the applicant was accommodated with time off whenever he needed it. It was the applicant who raised concerns about how stressful his work was, the fact that this disability was affecting his ability to do his job, and that the solution was for him to resign. Ms. Yue denies that she ever had any intention of terminating the applicant or that she made any of the comments she is alleged to have made about ADD, focus and reliability.
59From Ms. Yue’s perspective, the tone of the working relationship on the following days, which was by all accounts normal, the “goodbye” lunch she arranged, and the fact that she gave him a hug and wished him well and asked about his future plans, all support her version that the applicant decided to leave his position and that he was not terminated.
60When she was asked why she paid the applicant two weeks’ pay if was quitting his job, she responded that the applicant had requested it.
61Lillian Kwa has been the assistant to Ms. Yue for 15 years. She testified about her discussion with the applicant on February 4, 2013, when he was experiencing symptoms of an anxiety attack. She described him as nervous and upset, talking about family financial issues, the fact that he was the only person in the family who was working and the feeling that he was “totally stressed out”. This was the first time Ms. Kwa had ever seen the applicant like this. From there, however, Ms. Kwa’s evidence was a bit confusing. She was in charge of the office while Ms. Yue was away. She could not recall telling Ms. Yue about the applicant’s absence but then stated that she likely told Ms. Yue that the applicant had been off sick. She made the comment that she likely did not tell Ms. Yue specifically what the applicant was going through because he was likely to be feeling shame about it.
62She was asked when she realized the applicant would not be working there any longer and again her evidence was confusing. At first she referred to the ROE and asking Ms. Yue what to put down as the reason for the applicant’s departure. Then she stated that she must have known the applicant was leaving by the time of the party. It did not makes sense that she was not told almost immediately that the applicant was leaving since she was the one who would be taking his place and the applicant was actively passing on information to her. However, she never clarified precisely how and when she was made aware of the applicant’s departure. I did not find Ms. Kwa’s testimony helpful on any of the issues in dispute between the parties.
63Ms. Yue argued that I should prefer her version of the events for a number of reasons. Apart from the fact that she never denied the applicant time off when he requested it, she also hired and worked with a number of employees in the same position as the applicant who also live with anxiety.
64Trina Reid testified that she worked for Ms. Yue from May 2007 to December 2010 in the same position occupied by the applicant. She has anxiety disorder and panic attacks and takes medication daily to manage her symptoms. She was seeing a doctor and taking medication during her employment. She disclosed her disability during her interview. Ms. Reid testified that she had many panic attacks in the workplace, one so severe that an ambulance was called. A couch was put into her office for times when she needed to relax. Ms. Reid also testified that Ms. Yue would take her home at times or have someone else drive her when she was experiencing symptoms. Ms. Reid took a full summer off in 2009 but then returned to her position. Ultimately she left for a higher-paying job.
65Krista Stein testified that she was employed by the respondent from February 2013 to August 2013 as the accounts receivable manager. Her employment followed directly after the applicant’s. She disclosed during her interview that she had left her previous employment because of her anxiety. She testified that her symptoms never manifested at work, that she only had anxiety attacks at home and that she barely took medication while she was employed. She described the position as very “low stress” but left shortly after she was hired for a better-paying position.
66The current accounts receivable manager, Kim Gilmore, testified that she started working for the respondent in September 2013 in the position once occupied by the applicant. She has an anxiety disorder and has taken medication for 17 years. She disclosed her disability during her interview. Ms. Gilmore testified that she loves her job and that her anxiety is well-managed through medication. She admitted that she could not compare herself to the applicant because she knows nothing about how his disability manifests.
67Ms. Gilmore also testified in relation to the respondent’s allegation that the applicant had performance issues. To be clear, the respondent does not rely on performance issues to justify the termination since Ms. Yue claims there was never an intention to terminate. Evidence of performance issues was advanced by the respondent for the purpose of raising doubts about the applicant’s credibility.
68Ms. Gilmore testified to investigating and uncovering mistakes which she attributed to the applicant’s mismanagement and which she alleges cost the company $70,000.00 in losses. The applicant testified that he thought he was doing well, he was told that he was doing well, and no issues about his performance were brought to his attention.
69I fail to see how these post-termination discoveries, which were never brought to his attention while he was employed, could undermine the applicant’s credibility. There was also another person in the applicant’s position from February 2013 to August 2013 who was not mentioned in the analysis. In addition, Ms. Gilmore did not produce sufficient documentary evidence, nor was she able to testify in relation to a host of issues which would have assisted in contextualizing her allegations. There was insufficient evidence to demonstrate, for example, what percentage of overall sales this loss represented; what losses had been sustained in previous years for comparative purposes; and what other reasons, apart from the applicant’s alleged “mismanagement” may have caused a customer to develop a debt which was ultimately written off.
70In addition, Ms. Yue’s testimony on these issues was contradictory: she testified that she had significant concerns about the applicant’s performance and that she did not think that the mistakes made by the applicant were at all significant. She also stated that in her view the alleged performance issues were not relevant to the issues of discrimination raised by the applicant. When she was asked about her impression of Ms. Gilmour’s findings, Ms. Yue stated that she really does not spend much time on management – she spends most of her time on design.
71In my view, the performance issues raised in the Response and via the testimony of Ms. Gilmore are not relevant to whether or not the applicant was terminated and whether his disability was a factor in his termination.
Analysis
72It 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.
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 respondent admits that the applicant’s evidence demonstrates a prima facie case of discrimination. However, the respondent argues that when the respondent’s evidence is considered, the respondent’s explanation that the applicant asked to be terminated is more credible than the applicant’s allegation that he was terminated because of his disability.
Credibility
75In 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]
76I 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.
77In 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.
78In my view the preponderance of evidence favours the applicant’s version of his termination. The applicant was summoned to Ms. Yue’s office on February 11, 2011. He did not initiate that meeting. At the time the applicant was the sole provider for his family. The applicant’s version is that he was told he would be terminated, sought legal advice, drafted an email in accordance with the advice he had been given, sent it to Ms. Yue and then was summoned a second time to her office to discuss the contents of the letter.
79I find this to be the case even if I completely discount Dr. Bakshi’s notes, which were based on the applicant’s self-reporting after the fact. With respect to the notes prepared by the HRLSC, they were made contemporaneously as the events of February 11, 2013 and February 12, 2013 unfolded. At minimum they establish that the applicant was calling for legal advice about how to prevent his termination by the respondent on the day after the February 11, 2013 meeting. They also establish that he received advice to write a letter setting out his position. In my view it strains credulity to accept that the applicant was asking to be terminated on February 11 – which is what the respondent maintains – and at the same time laying an elaborate foundation for a future claim against his employer by calling for legal advice on how to prevent the termination. On a balance of probabilities I find it was more likely that when he called the HRLSC for advice he was doing just that. I also specifically find, for similar reasons, that the applicant did draft and send a letter, as he was advised to and alleged he did, to Ms. Yue.
80Independent of this I find the exchange of text messages, which are not disputed, to be compelling evidence in support of the applicant’s version of events. These messages establish, apart from anything the applicant may have told the HRLSC or Dr. Bakshi, that Ms. Yue was very concerned about the applicant’s attendance and work and was specifically cautioning him that she wanted to make sure he was at work when she was out of the office in Houston. There is no dispute that in the text messages Ms. Yue is expressing concern for the applicant’s well-being and accommodating his need for time off. However, the timing of the February 11 and 12 meetings then follows directly after the applicant’s absence from the office (for disability-related reasons) during Ms. Yue’s trip to Houston.
81Ms. Yue’s response to the applicant in the text is also consistent with one other aspect of the applicant’s account of the February 11, 2013 meeting. Despite his disclosures in the text and in the meeting about his medical condition, Ms. Yue did not make any inquiries about the applicant’s disability or his need for accommodation. In the text, she emphasizes her concern about his absences and her need to have the applicant present in the workplace while she was in Houston.
82Even if I were to accept Ms. Yue’s account, she failed to make any inquiries about the applicant’s disability or take any action to accommodate him other than to ask the applicant if he wanted to quit his job. Ms. Yue also testified that at some point after the applicant’s first few months on the job, there was a “shortage of focus” and mistakes began to show up. She testified that the mistakes were minor, but her reference to concerns about the applicant’s focus is consistent with the applicant’s version of what was said in the meeting of February 11, 2013.
83I also found the applicant’s explanation, that he was receiving two weeks’ pay because he was terminated, a credible explanation for why he chose to remain at work and cooperate in the transition of his work to Ms. Kwa. I did not find Ms. Yue’s explanation credible that she gave the applicant two weeks’ pay for no other reason than because he requested it.
84Ms. Yue had no understanding of her obligations as an employer under the Code. When the applicant first disclosed his disability in the text exchange of January 30, 2013, she did not inquire further about his medical condition and any accommodations he might need. Ms. Yue urged the applicant to try to be at work while she was in Houston, which suggests a lack of understanding on her part that his absenteeism was connected to his disability.
85I also found that there were inconsistencies in Ms. Yue’s version of the events. She said both that she was seriously concerned about the applicant’s performance issues and that they were insignificant and irrelevant to the discrimination claim. She was questioned repeatedly about her interpretation of the texts of January 30, 2013, which clearly indicated that the applicant had been off for several days because of his anxiety. She insisted that the applicant was saying that he had only been off for one day because of anxiety and that the other days were unrelated to his disability. And with respect to the critical piece of evidence which would render her entirely incapable of raising a defence, namely, the email from the applicant, Ms. Yue says she never received it and never had the IT department investigate in order to confirm her version of the events.
86I did not find that the factors relied on by the respondent, including the tone of the relationship in the days leading up to the applicant’s last day, nor the fact that Ms. Yue has hired other individuals who have anxiety disorders, sufficient to rebut the evidence relied on by the applicant.
87For all of those reasons I find that the applicant was terminated and that his disability and perceived disability were factors in the termination.
88There is one further issue which I wish to address because it bears on the fairness of the hearing. There was a moment during Ms. Yue’s cross-examination when she was asked a question by counsel for the applicant which she found upsetting. It is not necessary to set out in detail what happened during the cross-examination; however, a counsel meeting was held where the matter was discussed and a resolution was reached. The parties and their counsel were generous and gracious in their efforts to resolve that matter. When we returned to complete her testimony, Ms. Yue indicated that while she found the experience upsetting, she was comfortable to proceed and that the issue had been resolved.
89I turn now to the question of the appropriate remedy.
Remedy
90The applicant requested $25,000.00 for compensation for injury to dignity, feelings and self-respect. He also requested income loss for the period from the termination to the first day of hearing, February 18, 2014, at a rate of $1280.00 bi-weekly, as well as public interest remedies.
91The 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.
92The 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 (“Heintz”).
Injury to Dignity, Feelings and Self-Respect
93Prior 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) OHRBID 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.
94The 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”.
95In 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.
96In Wesley v. 2252466 Ontario Inc. o/a The Grounds Guys, 2014 HRTO 1591, the Tribunal took note of a number of decisions related to employment and disability which fall within a range of $10,000.00 to $45,000.00 in compensation. (See paragraph 67 of the Decision).
97Having considered those authorities, I find that the applicant’s request for $25,000.00 for injury to dignity, feelings and self-respect is substantiated by both the objective seriousness of the respondent’s conduct toward him and the applicant’s own evidence about the effect that the experience of discrimination had, and continues to have, on him. The applicant was acutely vulnerable at the time of his termination. He was humiliated by the fact that his termination was tied directly to his disability. He had no human rights policies in the workplace to turn to guide him in understanding his rights. The termination had a significant impact on the applicant’s confidence, which has affected his ability to excel at job interviews as he has done in the past. Every aspect of his life has been affected by the termination. He also has significant financial stress. The applicant was extremely vulnerable at the time of his termination and although his termination did not cause the disability, I accept the applicant’s evidence and the evidence of Dr. Bakshi that termination was a stressor which resulted in a significant increase in the applicant’s symptoms in February, 2013.
Lost Income
98The respondent argues that there is no evidence that the applicant searched for work after the termination. The only documentary evidence of his job search was a copy of his resume and a cover letter. The applicant testified that he was not aware that he should keep copies of documents associated with his job search and that he has never done so in the past. The applicant testified that he did not recall the HRLSC advising him to retain records but he also was not in touch with them over every aspect of his case.
99While the respondent is correct that there was no documentary evidence the applicant did testify in relation to his job search as follows:
The applicant was suffering from anxiety for a couple of weeks following the termination;
He had found the position with the respondent by registering with Kijiji and Craigslist for job alerts. He did the same when he was terminated;
When he received a job alert, he applied directly from his cell phone with his résumé and cover letter;
He dressed with a tie, printed out his résumé and cover letter and left his résumé with the person in charge at a number of different retail stores including: Future Shop; Home Depot; Michaels; Winners; Silver City Cineplex Movie Theatres; SportChek; Canadian Tire; Walmart; Best Buy; Cash Money; and Lowes;
He applied online to Petsmart;
He was sent on two interviews for an employment agency called Nova Staffing – one for a receptionist at Clean Air Reliance and the other for a furniture wholesale factory;
He had a first and second interview with Costco and was told that they had been given a bad reference;
He recently had an interview with Cash Money for a supervisor position and a position in collections;
At the time of the hearing he had received word that he would be having an interview with a collection agency he had dealt with while he was working for the respondent;
He registered with Monster.ca and other job search sites;
He changed his Facebook status and Twitter account to indicate that he was looking for work; and
His experience is in customer service but he has not limited himself to customer service – he has applied for jobs hoping an employer will take a chance on him.
100The Supreme Court of Canada has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324). (cited with approval in Evans v. Teamsters Local Union No. 31, [2008] 1 SCR 661, 2008 SCC 20. See also Heintz supra)
101The respondent has not given me any evidence which would cause me to conclude that the applicant has stood idly or unreasonably by while job opportunities have been available to him.
102This 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. Ct.).
103To put the applicant in the position he would have been but for the discrimination, is to put him back at the point at which he was working and likely would have required some accommodation of his disability in the form of time off work going forward.
104For those reasons, I find that the lost income requested by the applicant is appropriate. Counsel for both parties will collaborate on the calculation of lost wages by using a bi-weekly rate of $1280.00 calculated over one full year for a total of $33,280.00. This sum will be subject to statutory deductions and deductions for income earned including his two week’s pay, but with the exception of income earned to which a repayment obligation may be attached, such as Employment Insurance Income.
Promoting Future Compliance
105In 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”.
106By her own admission, Ms. Yue is not aware of her responsibilities as an employer under the Code or of the essential elements of the duty to accommodate. In these circumstances, I find that it is appropriate to direct the respondent to retain an expert in human rights, of its choosing, to develop appropriate human rights policies and to train all of its current employees in Canada with respect to the human rights policy, the Code, and the duty to accommodate.
Interest
107The 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”).
108Pre-judgment interest runs from the date of the infringement to the date of this Decision. While entitlement to prejudgment interest runs from the date of infringement, the rate itself is based on when the Application was commenced. Prejudgment interest rates are determined by the Ministry of the Attorney General in accordance with the formula set out in section 127 of the CJA. A chart is published by the Ministry showing the prejudgment interest rate for each quarter. (See also, O.Reg. 339/07, as amended.)
109The 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.
110Postjudgment interest runs on both monetary awards from the date of the Decision.
111If counsel are unable to calculate the quantum of lost wages and interest, I will remain seized for that purpose for a period of 90 days following the date of the Decision.
Order
112The Tribunal orders the following:
The respondents shall pay the applicant $25,000 for injury to dignity, feelings and self-respect arising from the infringement of his rights under the Code;
The respondents shall pay to the applicant a sum for lost wages as set out in paragraph 104 of this Decision;
The respondent shall pay prejudgment and postjudgment interest in accordance with paragraphs 107 to 110 of this Decision.
Within 120 days from the date of this Decision, the respondent shall confirm to the applicant in writing that it has retained a human rights expert of its choosing who has;
(i) developed new human rights policies, and that a copy of the human rights policies has been distributed to all of its employees; and
(ii) trained all of its employees with respect to the new human rights policy, the Code and the duty to accommodate.
Dated at Toronto, this 1st day of December, 2014.
“Signed by”
Leslie Reaume
Vice-chair