HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Spence McCarthy
Applicant
-and-
Caesar’s Plumbing and Heating Ltd.
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: McCarthy v. Caesar’s Plumbing and Heating
APPEARANCES
Spence McCarthy, Applicant
Paul Champ and Christine Johnson, Counsel
Caesar’s Plumbing and Heating Ltd., Respondent
Andrew Lister and Grace Skowronski, Counsel
Introduction
1The respondent is a plumbing and heating contractor. The work that it performs includes cleaning out sewer networks for municipalities in the Ottawa area. Large trucks are used to do this work. They are called “combo trucks” and are equipped with powerful vacuum systems that draw debris and water into tanks on the backs of the trucks. A combo truck is crewed by two people, a driver and an assistant.
2The applicant was hired as a driver of a combo truck in April of 2009. On the morning of September 17 of that year he was at the municipal dump in Hawkesbury. He was washing out the tank of the combo truck, using a high-pressure hose that is mounted on the truck. He was holding the hose between his legs. The pressure in the hose is around 2000 pounds per square inch.
3The nozzle on the hose broke without warning. The hose flew out of control. It jerked the applicant’s left shoulder back, swung down on to each of his hips, shot up again and narrowly missed his face, and then hit him in the buttocks before the driver’s assistant brought it under control by shutting off the water pressure.
4The accident was reported to the Workplace Safety and Insurance Board (“WSIB”), and although the applicant initially tried to work through the injury, his supervisor told him to seek medical help. The applicant then went off work. With the exception of two limited periods when he returned to work, he has not been employed by the respondent since.
5A conflict has arisen between the parties about whether and the extent to which the applicant was disabled. Also in dispute is whether the respondent failed to accommodate the applicant’s disability. The dispute has led to the filing of this Application, which alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It has also resulted in appeals within the WSIB’s internal system of adjudication, culminating in a decision of a WSIB Appeals Resolution Officer (“ARO”) on May 16, 2012. The respondent intended to appeal that decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), but failed to do so. The applicant appealed part of the decision to the WSIAT, but later withdrew his appeal.
6This Application was heard over two days in April and two days in August of 2014. Written submissions were provided by the parties in September of 2014. The parties disagree on whether the applicant was disabled, but that is an issue I do not need to decide because I conclude that it was appropriately dealt with by the ARO’s decision. The parties agree that the applicant’s disability was initially accommodated through modified work, but that later no modified work was offered. In relation to the issue which I need to decide, I conclude that when the respondent refused to continue the accommodation it constructively dismissed the applicant. The dismissal was discriminatory. The reasons explaining these conclusions are set out below.
background
7In this section I outline the information that provides the context for this Application. These facts are either uncontested or, if in dispute, are not central to the issues that need to be determined in this case.
The work performed by the respondent’s teams of drivers and assistants
8There are two kinds of sewers under our streets, sanitary and storm sewers. The sanitary sewers capture waste from houses and commercial buildings. Once collected, the debris from sewers can only be disposed of in designated dump sites. This involves driving to those dump sites. The applicant was at the Hawkesbury dump when he was injured. The respondent uses that site because it charges much less than the dump sites run by the City of Ottawa.
9Apart from driving the truck, the tasks performed by the combo driver and the driver’s assistant are more or less shared. They include operating the hoses and vacuum systems and setting up a work site in order to clean out sewers and the catch basins of storm sewers. In order to prepare a work site, A-frame signs and road cones need to be set up so as to protect the workers from traffic on the street. In addition, manhole covers need to be removed using a pickaxe to lever up and move the covers, and aluminum sleeves need to be attached to the vacuum hose so that it can be introduced into sewers. These tasks involve lifting equipment up and down from the truck, and using force to pull off manhole covers. At times it is necessary to first bang the manhole cover with a sledgehammer to loosen it sufficiently to then be able to lever it out with a pickaxe.
10When cleaning out sanitary sewers, once the work site is ready, a vacuum is lowered into the sewer. Then a pressure hose that has a nozzle attached to it is also lowered into the sewer. The nozzle is shaped so that the water pressure simultaneously propels it forward in the sewer and sends the debris in the sewer back behind it as it progresses forward. As the debris is loosened and sent backwards, the vacuum sucks it into a large tank which is mounted on the back of the combo truck. Because it fills with debris, the tank has to be emptied and cleaned out periodically.
11Working on storm sewers is lighter work than cleaning out sanitary sewers. Unlike the sanitary sewers, the storm sewers capture run-off from rains and melting snow. It is easier to clean the catch basins of storm sewers than it is to clean the sanitary sewers because there is no need to use the pressure hose for the catch basins. Debris is simply sucked into the tank using the vacuum. In addition, less driving is involved because there is less need to fill up the water tank on the truck. Finally, removing the covers on storm sewer catch basins is lighter work than removing the heavier manhole covers for sanitary sewers.
12In addition to combo trucks used to clean sewers, the respondent now also owns two hydroexcavator trucks. At the time it employed the applicant, the respondent was in the process of acquiring a hydroexcavator. The hydroexcavator is used to expose gas and electrical lines by shooting a high pressure jet of water at targeted areas and then vacuuming up the loosened dirt (as opposed to digging out the lines mechanically, such as by using a backhoe). The hydroexcavator can be used to get into awkward areas that are difficult to reach with a backhoe.
13Many of the drivers prefer working on the hydroexcavator to working on combo trucks because the hydroexcavator work does not involve lifting manhole covers. Also, the debris that is vacuumed up is classified as cleanfill. That means it does not have to be dumped at designated dump sites, and thus there is less driving involved.
14The applicant wanted to move from being a combo driver to working on hydroexcavators.
The applicant’s job performance
15From the time the applicant was hired he was the most junior of the respondent’s drivers. After three months on the job his performance was evaluated as positive in all respects. His pay was raised from $17 to $18 per hour, which is the respondent’s normal practice for successful probationary employees. The employer provides a group insurance plan to its employees but the applicant was responsible for paying the premiums.
16The respondent introduced evidence that the applicant was involved in an accident on July 16, 2009 while driving a combo truck. He had not lowered the boom on the truck sufficiently before setting off, and it struck a power line. This in turn caused a fire that burned some of the vinyl siding on a nearby house. The homeowner sued the respondent and the lawsuit was settled. The applicant agrees this happened.
17It is not clear to me why the respondent introduced this evidence, because any negligence on the part of the applicant is irrelevant to the issues I have to determine. In any case, the applicant was not disciplined for this incident. In fact his performance evaluation took place a few days after it happened and the respondent was by then well aware of the incident. It had no impact on the respondent’s positive assessment of his performance up to that point.
18The applicant’s supervisor testified that he was satisfied with the applicant’s performance up to the time of the applicant’s injury. When the applicant sustained the injury he maintained that he would be fine and did not need to have it looked at by a doctor. His supervisor directed him to seek treatment.
19The respondent accommodated the applicant with modified duties when he returned to work at the end of November, 2009. The supervisor’s evidence is that he performed those duties acceptably. The applicant resumed his regular duties in April of 2010. With the exception of one incident – which is discussed below – when he refused to mow the lawn outside one of the respondent’s offices, his work was acceptable during the month that he did his regular duties.
20Despite the respondent’s reference to the July 2009 incident, I conclude from the performance evaluation and the evidence of the applicant’s supervisor that there were no issues with the quality of the applicant’s work while he was employed by the respondent.
the issues to be determined and the relevant law
21The questions that need to be answered in relation to this Application are:
Was the applicant disabled?
If so, did the respondent accommodate that disability up to the point of undue hardship?
Was disability a factor in the respondent’s decision to end the applicant’s employment?
If discrimination is established, what is the appropriate remedy?
22“Disability” is defined in s. 10 of the Code in its relevant part as follows:
. . . any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device . . .
23Discrimination in employment on the basis of disability is prohibited. The relevant provisions of the Code are set out in s. 5(1) and 17, which read as follows:
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.
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.
24However, in considering allegations of discrimination, the Tribunal’s process is not intended to be used to relitigate issues that have been appropriately dealt with in other proceedings. In s.45.1 the Code provides that the Tribunal “may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.”
25All of the above provisions come into play in this Application. In addition, there are issues in this case which require an assessment of the credibility of witnesses. The approach to assessing credibility is set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pp. 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
26The Tribunal has also noted that the following are factors in assessing credibility: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence. See Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
1. was the applicant disabled?
The accident and the applicant’s return to work
27The applicant reported the accident to his supervisor on the day that it occurred. The respondent’s internal accident report form, and both the applicant’s and respondent’s initial reports of the accident, state that the applicant was hit in the left arm and on both thighs. However, the initial report completed by a doctor the applicant saw on September 21, 2009 (WSIB Form 8) makes no mention of the applicant’s thighs being struck and focuses on the injury to the shoulder. The doctor states that the applicant is not able to do physical jobs involving the left arm. The doctor whom the applicant saw on that date was not his regular family physician, but all of the applicant’s subsequent visits were to his regular doctor.
28The applicant was approved for WSIB benefits. He was referred by his doctor to a physiotherapist. Payment of the physiotherapy treatment was covered by the WSIB.
29In the period from September through November of 2009 the physiotherapist treated his shoulder. He had no treatment for his thighs or groin. According to the applicant he did not raise the issue of his thighs or groin because, although his groin hurt, it did not hurt as much as his shoulder. Besides, he was embarrassed at raising the issue of groin pain with his then physiotherapist – who is a woman – because he has another chronic medical condition in that area of his body and did not want this known to her.
30The applicant returned to work on November 29, 2009. He was assigned modified duties because it was clear from the reports of the applicant’s doctor and physiotherapist that his shoulder was slow to recover and this prevented him from lifting, pulling, pushing or twisting his left arm. Both the doctor and the physiotherapist concluded that recovery was taking longer than each of them had initially predicted.
31The modified work consisted of filing paperwork, cleaning tools and driving errands to pick up spare parts for the respondent’s equipment.
32The respondent contacted the WSIB in January of 2010 and expressed concern that the applicant’s recovery was taking a long time. It requested what is described in the WSIB memo of January 21, 2010 as “a second opinion”. I infer from this that the respondent was questioning the assessments of the applicant’s health professionals, as these were the only opinions that the WSIB was receiving at that time.
33The WSIB then referred the applicant for an assessment at the WSIB’s Regional Evaluation Centre at the Montfort Hospital. The applicant was assessed on February 19, 2010 and a report was prepared. The report sets out the history of the injury and it notes that the applicant was injured in both the left shoulder and the lower abdominal area. It says that the applicant:
“…suffered an acute external rotation injury to the left shoulder when the nozzle of the device broke, sending the shoulder in a sudden external rotation on abduction. The other portion of the nozzle hit him in the lower abdominal area producing intense pain, but not as severe as the shoulder pain he felt immediately after the accident.”
34The report then focuses on the shoulder injury and diagnoses a left shoulder strain. It notes that the applicant’s own estimate is that his shoulder pain had improved by about 70% since his injury. The evaluation report states there has been a partial recovery of the shoulder and that a full recovery will take a further six to eight weeks. There is no further discussion of the groin pain.
35A few days later, on February 23, 2010, the applicant’s doctor submitted another Form 8 to the WSIB, this one reporting the groin injury as follows:
Further to previous report the patient failed to mention that the hose handle hit him in bilateral groins and then rubbed on scrotum. He has ongoing pain both groins. Has pain when sitting down too long or when walking or prolonged standing.
36The diagnosis on the Form 8 is a strain of bilateral hip flexors. The part of the form dealing with any limitations on work due to the diagnosis is left blank, and there is no indication that the applicant required any modified work as a result of the groin injury. A Progress Report from the applicant’s doctor to the WSIB on April 28, 2010 refers to groin pain only. It states that it is being treated with physiotherapy, but indicates there are no limitations on the work the applicant can do. Shoulder pain is not mentioned in that report.
37On February 23, 2010 the applicant’s doctor requested that the applicant’s then physiotherapist treat the applicant for groin pain. While the physiotherapist could not retrieve her treatment records of the applicant and had no independent recollection of treating him for groin pain, her agenda entry of February 24, 2010 indicates the applicant was treated for bilateral groin pain. Her testimony that if she made this agenda entry then she must have treated the applicant for groin pain was not challenged. She continued to treat him through to March 25, 2010.
38In accordance with the recommendations of the Regional Evaluation Centre, the WSIB sent the applicant a letter on February 23, 2010 indicating that he should begin resuming his regular duties as of March 29, 2010.
39The applicant returned to work. He recalled that he started as a combo truck driver right away. His supervisor’s evidence was that he worked for a week as an assistant on the truck and then resumed work as a driver. I do not think that anything turns on this discrepancy about what happened in the first week of his return to work, as the applicant performed the core tasks of cleaning sewer lines throughout April.
40The applicant testified that the resumption of regular duties caused him to experience pain in lifting equipment up and down from the truck and in removing manhole covers. Although he was taking medication to dull the pain every four hours, he did not report this to his supervisor.
41The first indication his supervisor had of any continuing disability was when the applicant was asked by his supervisor to use a gas powered lawnmower to cut the grass outside the respondent’s office. The supervisor asked him to do this because there was no other work to assign to the applicant at that time. The applicant testified that he laughed at his supervisor and said that he could not cut the grass at his own home. During the hearing the applicant stated that he said this because he felt that the vibration from the mower would hurt his shoulder, but that he did not provide this same explanation to his supervisor at the time.
42His supervisor’s evidence was that he asked the applicant for an explanation and that the applicant told him that he could not cut the grass because his thighs were sore. The supervisor testified that this came as a surprise to him as it was the first time that he had heard of any problem the applicant was having with his thighs. He stated that he did not know what to do with the applicant and decided to send him home.
43A few days after this incident the applicant and his supervisor had a discussion about the applicant’s interest in driving a hydroexcavator truck that the respondent had plans to buy. The respondent’s position is that the applicant wanted a pay raise and for the respondent to pay his benefits if he were assigned to the hydroexcavator. The respondent says that in exchange for this the applicant offered to drop any claim that he was still disabled. The applicant denies this. I will return to this issue below, as it has a bearing on how the applicant’s employment was terminated.
44On May 4, 2010 the respondent provided the applicant with a letter that requests medical evidence that the applicant is disabled because of an injury to his thighs. The letter states in part:
We were a little surprised to learn last week that your injury from last fall has not healed to the extent that we had all assumed. After all of the medical information that we received from Workers' Compensation, the independent assessment process, etc., we had understood that your medical restrictions were all behind us and you could return to full normal duties a few weeks ago. Learning that you may continue to require medical treatment and modified duties relating back to the workplace injury last fall came as a bit of a surprise to us because all of the attention over the last 8 months has been on your arm and there has been no mention of your thighs at all.
45The applicant’s last day of work was May 7, 2010. He saw his doctor on May 10 and the doctor completed a WSIB Functional Abilities Form (“FAF”). The FAF refers only to the applicant’s groin as a source of pain, yet it also sets out functional limitations related to the applicant’s shoulder. On the same date the doctor completed a different WSIB form (Form 26, Health Professional’s Progress Report). This report refers to both shoulder and groin pain, and says that both are being treated with physiotherapy and that there are work limitations. The form is unclear as to whether the work limitations are due to the shoulder, the groin or both.
46The applicant gave the FAF to the respondent around May 10. The respondent wrote to the applicant on May 13. That letter reads in part:
Thank you for the form which you gave us Monday. I must say that we are at a loss to understand it. A few short weeks ago, you were cleared to return to work with your arm all better (i.e. no restrictions). When we met with you to discuss a new position, you expressed no health related concerns about taking it on. In fact you said that you would agree to it if you received some additional money or benefits. When we tried to get you back into our workplace, all of a sudden your legs were a problem. This surprised us because during the many months that we worked with you (and WSIB) to get you better and work within your limitations so that you could come back to work with no restrictions, your legs were never mentioned as an issue, needing treatment of any kind, etc. When we wrote to you a week and a half ago letting you know our concerns about your changing health issues and requested that you go and see your doctor to seek clarification for us (and WSIB), you took some time off from work to do so (at our insistence). Imagine our surprise when we received the latest Functional Abilities Form, which refers only to your left arm again. While we were pleased to see that according to the FAF your legs are not injured in any way, all of the WSIB information from the fall and spring indicated that your arm injury had been treated and that you could return to work without limitations last month. We do not know when or how you have had this relapse given that you have not done any work which could have caused you to reinjure it (none that you reported to your supervisor at least).
Because we do not know what to do, we are going to refer this matter back to WSIB (as the type of work that your doctor has limited you to is not available at Ceasars at the moment).
47On June 1, 2010 the WSIB determined that the applicant was not entitled to any further benefits. The WSIB’s letter to the applicant states that he is not entitled to benefits for the groin injury because, while the initial accident report mentioned that the hose nozzle hit the applicant in the thighs, the applicant made no complaints of pain to his doctor for several months thereafter. The letter goes on to note that the applicant first raises the issue of groin pain several days after his evaluation at the Regional Evaluation Centre. On this issue the WSIB concludes that there is insufficient evidence that the applicant has an ongoing groin condition.
48In relation to the shoulder the WSIB determines that there is no explanation why the applicant’s doctor finds there are no limitations relating to the shoulder in his April 28 report, yet less than two weeks later the doctor outlines restrictions on the applicant’s shoulder movement. It determines that the shoulder injury should have resolved by now.
49The applicant sought a review of this decision by an ARO and, through his counsel, also wrote to the respondent on June 7, 2010. The letter to the respondent states that, quite apart from whether the applicant is entitled to WSIB benefits, the respondent is under a duty to accommodate the applicant under the Code regardless of the cause of the applicant’s disability. The letter requests that the applicant be allowed to return to work and be given modified duties.
50On June 9, 2010 the respondent replied, through counsel, and indicated its view that the applicant stopped being disabled after returning to regular duties in April, 2010. It further stated that the applicant went off work after unsuccessfully trying to bargain for a raise and better working conditions. In later correspondence the respondent took the position that the applicant could come back to work if he were to resume his regular duties.
51On June 25 the applicant’s counsel provided the respondent with a doctor’s note (dated June 7, 2010) that stated the applicant was fit for modified work. The letter from counsel also asked that the respondent issue the applicant with a Record of Employment (“RoE”) if it was not prepared to offer him modified work. The RoE was issued a few days later, with “illness or injury” marked as the reason for issuing it.
52Counsel for the applicant wrote to counsel for the respondent again in September of 2010. A medical note accompanied the letter and the applicant, through his counsel indicated that he was ready to perform modified work, but not his regular duties. The letter asked if it was still the respondent’s position that the applicant could only return if he resumed his regular duties. The respondent did not provide a substantive answer to this letter.
53The applicant filed this Application on August 11, 2010. The respondent requested the Application be deferred pending the outcome of the WSIB proceedings. Although the applicant opposed this request, the Tribunal decided to grant it.
What is the effect of the ARO decision on this Application?
54In deciding the impact of the ARO decision on this Application there are two issues to be determined: whether the proceedings before the ARO constituted proceedings within the meaning of s.45.1 and, if they did, whether the ARO decision appropriately dealt with the substance of the discrimination allegations in whole or in part.
Was the ARO appeal a proceeding for the purposes of [s.45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
55There are few Tribunal decisions which deal with the issue of whether a proceeding before an ARO is a proceeding within the meaning of s.45.1, because it is common for WSIB issues to be litigated at the final level of adjudication, namely before the WSIAT. Although both parties in this case intended to appeal the ARO decision to the WSIAT, neither party proceeded with an appeal. As a result the ARO decision is the final decision in relation to the applicant’s entitlement to WSIB benefits.
56In Campbell v. Toronto District School Board, 2008 HRTO 62 at para.66 the Tribunal established that, at a minimum, a proceeding includes an adjudicative process established under a statutory regime.
57In this case the ARO proceeding was an adjudicative process prescribed by statute in which both parties had an opportunity to participate. The ARO applied the law and WSIB policy to the evidence and produced a reasoned explanation of the decision. The proceeding before the ARO met the minimum requirements set out in Campbell. As a result I conclude that it was a proceeding within the meaning of s.45.1.
What did the ARO decide?
58In a May 16, 2012 decision the ARO upheld the decision to deny entitlement for the injury to the hips and groin. While accepting that the applicant had reported being hit on the hips by the hose at the time of the accident, the ARO also noted the absence of any reports of pain by the applicant in the hips or groin for five months following the injury. The ARO concluded that there was not a sufficient causal link between the original impact on the hips and the applicant’s groin pain to justify granting entitlement.
59The ARO reviewed the applicant’s medical history and determined that he was still suffering from left shoulder pain in May of 2010 and that this continued through December 2010. This is evident from the following paragraph in the ARO decision:
There was no mention of the shoulder until July 14, 2010, when the doctor provided the following findings: 170 degrees of left shoulder flexion and 90 degrees of left shoulder abduction with pain at end range. In August 2010 the family doctor provisionally diagnosed impingement. The worker underwent Depomedrol injection of the left shoulder in November 2010. Clinical notes support continuing left shoulder symptoms in December 2010.
60The ARO granted entitlement up to mid-May of 2010, but directed the WSIB to determine what job duties the applicant was capable of performing after mid-May 2010 and what suitable work was available at his workplace in order to assess entitlement to Loss of Earnings Benefits beyond May of 2010.
61The WSIB implemented the ARO decision and determined that the applicant was entitled to benefits up until February 23, 2011. The reasoning behind this conclusion was that the applicant continued to be partially disabled because of the injury to his shoulder, could not perform his regular duties and was not offered modified work by the respondent after May 10, 2010. The WSIB determined that benefits ended when the applicant started a different job as a security guard on February 23, 2011.
62In order to decide whether the applicant was entitled to WSIB benefits the ARO had to first be satisfied that the applicant had suffered an injury that arose out of and in the course of employment. The ARO then had to determine the impact of the injury on the applicant’s ability to perform his regular duties.
63The decision that the applicant could not perform his regular duties from the time of the accident to mid-May of 2010 and beyond because of the shoulder injury is the same issue that the respondent seeks to challenge in this Application. Despite the ARO’s decision to the contrary, the respondent maintains that the applicant’s shoulder injury had resolved by May 10, 2010 and it denies the applicant was disabled after that time. In my view it is not open to the respondent to try to relitigate this issue because it was appropriately determined by the ARO.
64The purpose of s.45.1 is to avoid litigation of the same issue in multiple proceedings and this purpose would be frustrated if the respondent were allowed to, in effect, use the hearing of this Application as a vehicle to challenge the ARO’s determination. The respondent requested that the Application be deferred in order for the ARO proceeding to go ahead, arguing that deferral would avoid the risk of inconsistent findings by the WSIB and the Tribunal on the question of whether the applicant was disabled. The respondent’s request was granted. Further, having obtained the deferral, it had the opportunity to both participate in the ARO proceeding and challenge its result through a WSIAT appeal, yet it did neither. It cannot now try to relitigate this issue. I conclude that the ARO decision that the applicant was disabled under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 (“the Act”) because of his shoulder injury has appropriately dealt with the question in this Application of whether the applicant was disabled for the purposes of the Code.
2. was the disability accommodated up to the point of undue hardship?
65Having determined that the applicant was disabled, the ARO decided that there was not enough evidence to decide whether the disability was permanent or whether the applicant could have performed available work for the respondent in the period after mid-May 2010. The ARO directed the WSIB to look into this.
66As part of the implementation of the ARO’s decision, the WSIB determined that the applicant continued to be disabled by the shoulder injury up until February 23, 2011, when he found a new job. The WSIB concluded that the applicant was not offered modified work after May of 2010 and was incapable of doing his regular job. As a result he was granted full Loss of Earnings Benefits up until February 23, 2011.
67I am of the view that the WSIB decision to grant full Loss of Earnings Benefits forms part of the ARO decision for the purposes of deciding the extent to which s.45.1 of the Code applies. The order of the ARO directs the WSIB to examine whether the applicant could have performed available work. This direction was predicated on the ARO’s underlying finding that the applicant had an ongoing disability. The WSIB’s conclusions that the applicant could not do his regular job and was not offered modified work were not challenged by either party through the WSIB’s review process. Furthermore, in the hearing of this Application both parties agree that the applicant was not offered modified work after May 10, 2010.
68The reason that this matters is because the applicant argues that the respondent failed to accommodate the applicant’s disability. He maintains that he is entitled to general damages for the failure of the respondent to offer him modified work from May 10, 2010 to February 22, 2011, as well as compensation for lost income in this period.
69Just as the effect of s.45.1 is to preclude the respondent from relitigating whether the applicant was disabled, it also precludes the applicant from recovering the remedies he seeks with respect to the respondent’s failure to offer him modified work from May 10, 2010 to February 22, 2011. The Tribunal has held in Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 1864 that the scope of s.45.1 is not limited to situations where an unsuccessful party in another proceeding seeks a more favourable result by bringing an application to the Tribunal. It can apply equally where a party succeeded in another proceeding and then comes before the Tribunal seeking additional remedies. Edwards also concludes that the fact that the two proceedings may offer different types of remedies is not determinative. What matters is whether the same issues are being relitigated before the Tribunal.
70In this case neither party is contesting what the WSIB already determined when implementing the ARO decision: that the applicant was not offered modified work in the period from May 10, 2010 to February 23, 2011. The WSIB paid the applicant full Loss of Earnings Benefits for this period. Applying the reasoning in Edwards, I conclude that s.45.1 of the Code precludes the applicant from now augmenting that compensation by seeking damages and restitution of lost income from the Tribunal for the respondent’s failure to accommodate him by offering modified work.
The issues the ARO did not determine
71The ARO decision did not determine whether the applicant was disabled by the groin injury. Rather, the ARO only made a finding of causality to conclude that the injury was not compensable under the Act.
72It is not necessary to determine whether the applicant was disabled by the groin injury because it has already been established through the decisions of the WSIB that the applicant was disabled by his shoulder injury for the entire relevant time frame. The Tribunal is only being called upon to determine whether the applicant was disabled and whether his disability was accommodated to the point of undue hardship. Having determined that the applicant was disabled by his shoulder injury for the relevant time period, it is not necessary in this case to decide whether there was another source of disability through the groin injury.
73The question of a second injury might have come into play if there were a dispute between the parties about the extent to which the applicant needed to be accommodated. Deciding that issue could have entailed looking at what modified work the applicant could have done if he had been disabled by both the shoulder and groin injuries, as opposed to only being disabled by the shoulder injury. However, it is not disputed that the applicant was not offered modified work at all after May 10, 2010. As a result that issue does not need to be adjudicated, and thus the underlying question of whether the applicant had a groin injury also does not need to be decided.
74The other issue which was not decided by the ARO was the effective termination of the applicant’s employment. Although there are provisions in the Act that govern an employer’s obligations regarding termination of the employment of an injured worker (s.41), these apply only when a worker has been employed continuously for a year prior to the accident. The applicant was employed for less than a year when the accident happened. In any event, the ARO did not consider this issue.
3. WAS DISABILITY A FACTOR IN THE DECISION TO END THE APPLICANT’S EMPLOYMENT?
75The inability of the parties to agree on the applicant’s return to work which is reflected in the correspondence between their lawyers from June through September of 2010 indicates that the applicant’s employment came to an effective end on May 7, 2010, when he was directed by the respondent in its May 13, 2010 letter to remain at home because there was no modified work available for him.
76The applicant’s position is that his disability was a factor in the respondent deciding to end his employment. The respondent’s position is that the applicant abandoned his job. It says he was malingering and feigning injury, and nothing stopped him from returning to his regular duties. It says that he offered to drop any requests for accommodation if he were to be given the job of driver of the hydroexcavator, along with a pay raise and company payment of the premiums for his benefits.
77How the applicant came to know of the respondent’s plan to buy a hydroexcavator is disputed but nothing turns on this. Rather, what matters are the exchanges between the parties regarding the applicant’s expression of interest in the position.
78The applicant’s evidence was that he talked to a more senior driver and was told that as a hydroexcavator driver he could be paid more than a combo truck driver, and that the respondent could also pay the premiums for his benefit package. The supervisor’s evidence is that although the hydroexcavator is billed to clients at a higher rate than combo trucks are, the drivers of both trucks are paid the same. He testified that drivers may well believe that hydroexcavator drivers are or should be paid more because the company charges more for the truck, but this is not how the respondent runs its business. I accept the supervisor’s evidence regarding the approach the company takes to paying hydroexcavator drivers because, as part of the respondent’s managerial team, he is in a better position to know this than the applicant is. Moreover, the applicant did not call any evidence to contradict this. I find that the applicant believed, wrongly, that he could try to bargain for a pay increase for taking on the job of hydroexcavator driver.
79The applicant’s evidence is that he told his supervisor that he was looking for a raise of $1 per hour and for the respondent to pay for his benefits. In cross-examination he denied that he had asked for a $2 raise and that he would drop his requests for accommodation of his injury.
80The spouse of the owner of the respondent gave evidence. She has no formal title in the company, but is responsible for a broad range of issues including compliance with employment standards, workplace safety, human resources, corporate, administrative and legal issues. For the purposes of these reasons I will refer to her as the general manager of the respondent.
81She stated that the applicant’s supervisor recounted to her the conversation he had with the applicant about becoming a hydroexcavator driver. The applicant raised the issue of his groin injury for the first time during this conversation and he claimed to still be disabled, but that his physical problems could disappear if he were given a raise of $2 per hour.
82She found this to be an attempt at blackmail by the applicant. How, she asked, can an injury disappear with a salary increase? She discussed this issue with her husband and they were firm in their resolve not to accept this kind of conduct. She was probably the one who decided that the May 4 letter should be sent to the applicant. The supervisor drafted the letter but she reviewed it before it was sent.
83The supervisor recalled having a conversation with the applicant about driving a hydroexcavator and this conversation took place at about the same time as the applicant first raised the issue of his groin injury. His recollection was vague as to what was decided regarding the groin injury. He thought that he had asked the owner and his wife about what to do about the groin injury, because the applicant had been consistently complaining of shoulder pain for months and the reference to the groin came as a complete surprise. His recollection was that it was decided to “ask the WSIB or the applicant about it, or something like that”.
84In his evidence the supervisor did not draw a connection between the applicant’s reporting of the groin injury and any discussion of the applicant becoming a hydroexcavator driver. While he recalled that the applicant was trying to bargain for more advantageous terms, he could not recall if the applicant was trying to obtain more money or payment of his benefits, or both. In any event he did not testify that the applicant proposed dropping his accommodation request or saying that his groin injury could “disappear” if he were given a new position as a hydroexcavator driver.
85The supervisor wrote both the May 4 and May 13, 2010 letters. These were reviewed and approved by the owner or the general manager.
86The May 4 letter makes reference to the applicant’s request to become a hydroexcavator driver in the following excerpt:
Following our meeting last Wednesday. I reviewed your WCB file documents over the weekend and noted that since the accident, all attention has been focussed on your shoulder and there does not appear to have been any treatment notes relating to your thighs. Not sure why that is. The Functional Abilities Form, your Health Professional’s Progress Reports only seem to refer to treatment and limitations relating to your shoulder. As a result, we would like to revisit with you the opportunity available to you in the hydroexcavating department (assuming that your doctor clears you for regular duties).
You should know that we have considered some of your requests relating to this position and are prepared to discuss one or two of them with you but only after we know that you can do the work (and you want to). If you continue to need modified duties for your thighs, we will adapt other work to suit your medical needs.
87As I read this excerpt, there is no suggestion that the applicant had offered to drop the claim that his groin was injured in exchange for the new job. If, as the general manager maintains, the respondent was so outraged by an attempt at blackmail by the applicant, I would expect that to be reflected in this letter. The letter certainly expresses doubt on the part of the respondent that the groin injury is genuine. If anything, that suspicion would be reinforced if the applicant had offered to bargain away his disability. Why would the respondent not then communicate its strong views on that point to the applicant?
88Instead, the letter suggests first, that working as a hydroexcavator is still open as a possibility and, second, that the respondent is “…prepared to discuss one or two” of the applicant’s requests (presumably for better terms of employment). If, as the owner’s spouse maintains, it was prepared to draw a line that cannot be crossed when it comes to blackmail, then why was it willing to negotiate these issues with the applicant?
89Similarly, the May 13, 2010 letter also expresses doubt about the genuineness of the groin injury. But it also does not support a conclusion that the applicant was offering to withdraw any request for accommodation if he could get a raise and better benefits. The relevant excerpt reads:
A few short weeks ago, you were cleared to return to work with your arm all better (i.e. no restrictions). When we met with you to discuss a new position, you expressed no health related concerns about taking it on. In fact, you said that you would agree to it if you received some additional money or benefits. When we tried to get you back into our workplace, all of a sudden your legs were a problem. This surprised us because during the many months that we worked with you (and WSIB) to get you better and work within your limitations so that you could come back to work with no restrictions, your legs were never mentioned as an issue, needing treatment of any kind, etc.
90It is clear from the letter that the applicant was trying to bargain for a raise. The applicant does not deny this. However, if - as the respondent maintains – the applicant explicitly offered to drop his accommodation request and if – as the respondent maintains – it was appalled by this tactic, then I would expect to see it clearly stated in this second letter as well. The supervisor was present when the applicant allegedly tried this tactic, but he made no mention of this in his testimony. While the general manager was adamant that the applicant did offer to drop his accommodation request and that the respondent was firm in refusing to accede to this, she was not privy to the conversation.
91I find that the evidence of the supervisor was credible in that he appeared to be trying to tell the truth. However, it was largely unreliable because he had a poor recollection of most events that involved the applicant’s employment, despite being the applicant’s primary point of contact in the hierarchy of the company. He could not recall how he dealt with the applicant after the accident for which the respondent was sued. Nor could he recall who decided that the applicant could move from modified work back to his regular duties. He could not remember whether the applicant was bargaining for a raise or more benefits or both.
92The general manager’s evidence on whether the applicant attempted to blackmail the respondent is more categorical and detailed than the supervisor’s, but it is all derived from what the supervisor allegedly told her at the time and is hearsay. Hearsay evidence is not inadmissible before the Tribunal, but it is important to examine how that evidence arises in deciding what weight to give it.
93Having asserted that the applicant tried blackmail, the respondent needs to prove this fact on a balance of probabilities. The best evidence of what was said ought to have come from the supervisor, yet he had no recollection of a blackmail attempt. As I have indicated above, the letters – which were written contemporaneously – do not make clear that this is what happened either. The applicant denies it. Considering all of the evidence on this point, I assign no weight to the general manager’s evidence and conclude that on a balance of probabilities the applicant did not offer to withdraw any accommodation requests in exchange for a better job.
94The position the respondent took on this issue reflects its view that the applicant was malingering. It was strengthened in this view by its decision to abide by the WSIB’s decision on the applicant’s disability, because at that time the WSIB had ruled that the applicant was able to return to regular duties.
95This may initially have been reasonable under the circumstances, but by the time the applicant’s counsel became involved the respondent was clearly put on notice that the applicant was claiming to be disabled, regardless of whether the disability was compensable under the workers’ compensation regime. The June 7, 2010 letter from the applicant’s counsel makes this clear.
96The respondent’s duty to accommodate a disability up to the point of undue hardship consists of two elements, one is procedural and the other is substantive (See, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868). The procedural element requires an individualized investigation of accommodation measures and an assessment of the applicant’s needs. The substantive element requires a consideration of the accommodation offered or a respondent’s reasons for not providing accommodation.
97Given its expressed doubts about whether the applicant was disabled, it certainly was open to the respondent to seek further medical information, and this could have included assessments from health professionals other than the ones treating the applicant. Doing so would have been consistent with the respondent’s obligation under the procedural component of the duty to accommodate. The May 4, 2010 letter to the applicant indicates the respondent was considering this as a possibility:
Finally, if we have concerns about the medical treatment that you have received in the past we may ask you to allow a doctor chosen by Ceasar's to examine you and review your medical file in order to try to better understand the nature of your medical limitations (especially in light of the fact that all of the attention has been paid to your shoulder and apparently little to your thigh(s) until after you came back to work full time with no further restrictions relating to your shoulder).
98However, the respondent did not follow through with this. This, along with the respondent’s insistence in its correspondence with the applicant’s counsel that the applicant could only resume work if he took on his regular duties, indicates that the respondent was not prepared to engage with the applicant in a dialogue about his disability, its extent or whether it could be accommodated.
99This conclusion is further supported by the fact that modified work could have been offered to the applicant. First, the applicant had been given modified work from the end of November, 2009 to the end of March, 2010. Although the May 13, 2010 letter states that there was no modified work available to the applicant, the respondent offered no evidence to indicate that its circumstances had changed since the end of March, 2010 such that it had no modified work to offer. Second, the general manager was adamant that the respondent always offers modified work when employees are injured. She stated that the respondent takes note of the medical reports setting out the need for modified work and that it consults the employee in establishing what tasks can be done. Her evidence was that employees normally are on modified duties for about two weeks. When she was asked why the applicant was not offered modified work in response to the June 7, 2010 letter from applicant’s counsel she stated that the respondent based its decision on the fact that the WSIB had determined the applicant was fit to return to regular duties. I conclude that the applicant was not offered modified work because the respondent believed he was not disabled, rather than because none was available.
100The procedural duty to accommodate was breached because the respondent believed that it was sufficient for it to abide by the WSIB’s determination about the applicant’s fitness for work. Although the applicant, through his counsel, maintained that he continued to be disabled and that the Code duty to accommodate required more than adhering to the WSIB decision, the respondent did not engage in the dialogue with the applicant that is required by the procedural component of the duty.
101The respondent’s decision to engage in no further discussion with the applicant led in turn to its decision to terminate his employment. This was a breach of the substantive duty to accommodate.
102The general manager said that the applicant had decided not to return to work, despite the fact that the respondent was awaiting his return. The applicant was called in late May or early June by his supervisor to see if he would return to work, but he did not return the call.
103The applicant denied receiving any calls asking him to go back to work. He testified that he owned an answering machine and had no messages to that effect either. The supervisor stated that he had no contact with the applicant after sending him the May 13, 2010 letter. After three months had passed without the applicant returning to work the supervisor hired a replacement.
104It is more likely than not that the applicant was not called to return to work. I am not inclined to accept the general manager’s evidence on this point when the supervisor himself did not testify to having called the applicant. More importantly, the positions of the parties are clearly set out in the letters between counsel: the applicant was asking for modified work and the respondent’s position was that the applicant could only come back to his regular duties. Even if I were to accept that the applicant had not returned a call, the respondent still knew what his position was on his fitness for regular duties.
105This impasse was resolved when the respondent issued a Record of Employment and terminated coverage of his employee benefits on July 21, 2010. The respondent could instead have maintained the employment relationship and, at the same time, challenged the assessment of the applicant’s health professionals. It could have sought further information from them or requested that he attend an independent medical examination. However, the respondent ceased engaging with the applicant on this issue.
106Taken together, its actions indicate that it decided to end the applicant’s employment because it felt that the applicant was not disabled and was pretending disability to try to leverage better terms of employment. In fact, and as reflected in the ARO decision and subsequent WSIB determination, the applicant continued to be disabled. The respondent knew that the applicant still claimed to be disabled. The applicant’s disability thus was a factor in the decision to end his employment. The applicant has established discrimination in the termination of his employment.
4. what is the appropriate remedy?
107The Tribunal’s remedial powers are set out in s. 45.2 of the Code:
(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:
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.
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.
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.
108The applicant requests an order that he be reinstated in his previous position. He also requests awards of $43,089.83 for loss of income; $598.67 for the cost of retraining to become a security guard and $45,000.00 as damages for injury to dignity, feelings and self-respect. Finally, he requests payment of pre- and post-judgement interest on those amounts.
109As an alternative to denying the Application in its entirety, the respondent argues that an order of reinstatement would be inappropriate here, given the breakdown of trust between the parties. It argues that the most that should be awarded for loss of income is $744.22 as any responsibility for loss of income ended when the applicant got a new job. It argues that the cost of retraining should not be a cost borne by the respondent, and it maintains that the short length of the applicant’s employment justifies an award for injury to dignity, feelings and self-respect at the low end of the range. It argues that the amount should not exceed $2,000.00.
Reinstatement
110The Tribunal has the power to order reinstatement as part of its remedial authority. It is not an order that is often made. When it is directed, it is usually in circumstances involving large employers who have the resources and sophistication to reintegrate an employee back into the workforce. In considering reinstatement the Tribunal is often guided by an assessment of whether a continued employment relationship is still viable (see: Krieger v. Toronto Police Services Board, 2010 HRTO 1361).
111While the applicant was employed by the respondent for just over a year, the time he spent working was about 6 months. That was now over four years ago. The respondent in this case is not a large employer. It is run by the owner and his spouse and has less than a hundred employees. The general manager, who is the owner’s spouse, is firm in her belief that the applicant is a malingerer who was trying to use a feigned disability to exact better terms from his employer. This has coloured the dealings between the parties since and was reflected in the antagonism between counsel throughout the hearing. In my view the relationship between the parties is poisoned largely, but not wholly, by the respondent’s treatment of the applicant. If the applicant were to be reinstated, he would not be directly supervised by the general manager, but the size of the company is such that a reinstatement order would risk creating further conflict.
112Given the short time the applicant worked for the respondent, the time that has passed since his employment ended, the size of the respondent’s operation and the bad relationship between the parties, I am of the view that the employment relationship is not viable and reinstatement should not be ordered. However, I am also of the view that the creation of a poisoned relationship between the parties – which effectively precludes reinstatement – needs to be reflected in the award of damages for injury to dignity, feelings and self-respect. This is addressed below.
Loss of income
113It is well established in the Tribunal’s decisions that the remedial power includes a power to compensate for loss of income arising out of discrimination, and that an applicant has an obligation to mitigate that loss by seeking out other income.
114Here the applicant lost income from his last day of work with the respondent (May 7, 2010) until February 27, 2011, his first day of work as a security guard. However, as indicated above, the applicant cannot recover compensation for loss of income for that period because that issue was appropriately dealt with by the WSIB’s decision to award him benefits up to the point he obtained a new job. The reasoning in Edwards precludes him from obtaining additional recovery through this Application for the period up to February 27, 2011.
115There is limited evidence on the duration of his work as a security guard. The applicant worked through March of 2011, as there are pay stubs for this period. He then quit this job as he decided that the pay was too low. The documentary evidence shows that he was next paid in early March of 2012 when he began work for a paper shredding company. The applicant then worked for various employers. Some of the work was seasonal, and he was laid off other jobs.
116The applicant is entitled to the difference between what he would have earned with the respondent and what he earned during the month he worked as a security guard. However, the respondent should not have to bear the cost of his decision to quit his work as a security guard and the period of unemployment that followed it. Any loss thereafter is too remote to justify awarding against the respondent.
117The difference in salary between the two positions amounts to $8 per hour ($19 with the respondent, as opposed to $11 as a security guard). Assuming a 35 hour work week and 4.3 weeks in that month, the applicant is entitled to recover a loss of earnings of $1204.00.
Cost of retraining
118The applicant paid $598.67 to take a course to become licenced as a security guard. The respondent maintains that a choice by the applicant to retrain is not a foreseeable consequence of any discrimination, and is not the kind of remedy the Tribunal orders. It cites deSousa v. Gauthier, 2002 CanLII 46506 (ON HRT) in support of its position.
119I disagree with the respondent’s assertion in its submissions that the Tribunal has taken a clear position in refusing to award compensation for retraining. Osvald v. Videocomm Technologies, 2010 HRTO 770 (at para. 71) is an example where the Tribunal has made such an order.
120The applicant’s decision to retrain as a security guard made sense, given his duty to mitigate, the fact that he had not recovered full function of his shoulder and his limited educational qualifications. It was a reasonable choice because he had limited options. This is not an instance where the applicant embarked on retraining that was expensive and overly optimistic in terms of his employment history and educational qualifications. I find it was a foreseeable result of being dismissed from his job. In that regard the facts here are distinguishable from deSousa. The respondent will pay $598.67 to cover the cost of retraining.
Injury to dignity, feelings and self-respect
121In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 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.
…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.
122In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed a number of factors to consider when awarding damages, including:
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment.
123The applicant maintains that the impact of the termination was hurtful and humiliating. He explained that he was a good worker, that he wanted to return to work and to progress in the respondent’s employment but that he was turned away by the respondent. His evidence is that the termination caused him a significant financial loss, and that this strained his common-law relationship of 16 years, leading eventually to his separation from his partner.
124There is little evidence of the impact of the termination on the applicant other than his oral testimony. His testimony on this issue was brief, and it seems to me that he is not inclined to describe the emotional impacts in much detail. I accept that his work performance was solid and that he wanted to stay with the respondent. I base this on his evidence and that of his supervisor as to the quality of his work. I also accept that he wanted to stay on with the respondent and progress. This is indicated by the fact that the parties agree that he was looking to become a hydroexcavator driver. I accept his evidence that the termination caused him financial hardship and that this in turn made him feel bad about being rejected from employment where he had performed well.
125I am not prepared to accept that the termination caused the breakup of his relationship. To decide that this is what caused a long-standing personal relationship to end, in the absence of any evidence other than the applicant’s simple assertion, would be speculative.
126In my view the respondent’s treatment of the applicant in labelling him a malingerer was dismissive and harsh. I understand that the respondent had some doubts about the validity of the injury to the applicant’s groin. The applicant made no complaints about it for some months after the accident. It only arises at the time he is seeking to negotiate better terms of employment. The respondent’s doubt may well have been compounded by inconsistencies in the reporting of the injury from the applicant’s own doctor, as there are times – after the applicant complained about groin pain to his doctor – when the doctor’s reports to the WSIB omit references to either the shoulder or the groin injury.
127However, the respondent had, at the very least, a duty to re-examine its assumptions when the applicant, through his counsel, clearly set out his position that he continued to be disabled, whether or not he was entitled to WSIB benefits. At that point the respondent refused to reconsider its position or to seek further clarification. It was fed up with the applicant and just wanted to see him gone. By becoming entrenched in its position and branding the applicant a liar, it foreclosed the possibility of the applicant returning to work at that time. It also had the effect of precluding reinstatement as a viable option now.
128In O’Brien v. Organic Works Inc., 2012 HRTO 457 at paras. 46-47, the Tribunal conducts an overview of its awards for disability-related discrimination involving a termination of employment. The range of awards is generally between $10,000 to $20,000. Awards at the higher end of the range (i.e. $15,000 to $20,000) have involved either multiple breaches, conduct occurring over a longer period of time, or evidence of significant psychological or emotional consequences.
129Here the applicant was not employed for a long period of time, nor did the discriminatory conduct take place over a prolonged period. While the termination of the applicant’s employment was hurtful and created stress in his life, I do not believe that it had significant psychological or emotional consequences. This would place an award at the lower end of the range. However, as I have indicated above, I think that there are factors that justify increasing the award. These are the respondent’s labelling of the applicant as a liar and a malingerer, its intransigence in the face of reasonable requests to reconsider its position and its refusal to consider the medical evidence of disability that were put before it. In my view it is appropriate to award $15,000 to compensate for injury to the applicant’s dignity, feelings and self-respect.
Policy on Code obligations
130As part of its remedial authority the Tribunal has the power to make orders to promote compliance with the Code, whether requested by the parties to do so or not. In filing its Response the respondent indicated that it has a policy that addresses the kinds of issues raised by this Application, but the policy was not appended to the Response, nor was it produced in evidence.
131Although the applicant did not request any public interest remedies, I am of the view that the respondent’s managers would benefit from a clear statement of the respective obligations of the respondent and its employees under the Code. This case demonstrates that questions of how to deal with disabilities – whether or not they are compensable under workers’ compensation legislation – and how the duty to accommodate works in practice are matters that should be addressed in a policy.
132The respondent is ordered to retain an independent expert in human rights at its own expense to draft an anti-discrimination policy in accordance with s.45.2(1) and (2) of the Code. The respondent is to provide the policy to all of its current managers and employees and to ensure that any new managers and employees are given the policy as well.
order
133The Tribunal orders that within 30 days of the date of this Decision the respondent shall pay the applicant:
a. $15,000 as monetary compensation for injury to his dignity, feelings and self-respect;
b. Loss of wages in the amount of $1204 and compensation for the cost of training as a security guard in the amount of $598.67. The respondent shall also pay the applicant pre-judgment interest on these two amounts from May 7, 2010 to the date of this decision at the rate of 0.5%, in accordance with s. 127 of the Courts of Justice Act, R.S.O. 1990, c.43; and
c. Post-judgment interest at the rate of 3% on any amounts that are unpaid after 30 days of the date of this Decision.
134The Tribunal orders that within 90 days of the date of this Decision the respondent shall retain an independent expert in human rights at its own expense to draft an anti-discrimination policy in accordance with the Code. The respondent is to provide the policy to all of its current managers and employees and to ensure that any new managers and employees are given the policy as well.
Dated at Toronto, this 17th day of December, 2014.
“Signed by”
Paul Aterman
Vice-chair