Rollick v. 1526597 Ontario Inc., 2014 HRTO 337

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sabrina Rollick

Applicant

-and-

1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533

Respondent

DECISION

Adjudicator: Kevin Cleghorn

Date: March 12, 2014

Citation: 2014 HRTO 337

Indexed as: Rollick v. 1526597 Ontario Inc.

APPEARANCES

)

Sabrina Rollick Applicant ) Jamie Lynne McGinnis, Counsel

)

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. The Application alleges that the applicant experienced discrimination when her employment was terminated due to her disability.

ISSUE FOR DETERMINATION

2I must determine the following after consideration of all of the evidence:

Was the applicant’s disability a factor in the decision by the respondent to terminate her from her employment?

FACTS AND BACKGROUND

3The respondent has not filed a response to this application nor has it participated in these proceedings in any way, shape or form. On April 12, 2013, the Tribunal issued an Interim Decision in which it ordered that the respondent is deemed (1) to have accepted all the allegations in the Application; and (2) to have waived all rights with respect to further notice or participation in the proceeding.

4At the hearing, I accepted into evidence as Exhibit One a witness statement of the applicant which states as follows:

“SABRINA ROLLICK WITNESS STATEMENT

1. The Applicant, Sabrina Rollick, (herein after Sabrina) will testify that she began working for Tim Horton’s as a cashier/store front employee on September 12^th, 2009. The majority of her duties consisted of taking orders, managing cash, food preparation at the sandwich bar, dishes, and busing tables.

2. Sabrina will testify that she worked at the Tim Horton’s store located on Oliver Road in Thunder Bay.

3. Sabrina will testify that on December 14th, 2010 she suffered a non-work related injury resulting in an acute fractured tailbone.

4. She will testify that she was off work from December 2010 until April 2011.

5. Sabrina will testify that Dr. Noy provided her with medical clearance to return to work under accommodation. She will testify the recommended accommodations included a gradual reintegration on modified hours.

6. Sabrina will testify that in April 2011, she called Ruby, the Manager, at Tim Horton's and informed her that she was able to return to work. Sabrina will testify that she was informed that she should call Greg because he would be able to put her on the work schedule. Sabrina will testify that she telephoned Greg and told him she has been medically cleared to return to work. Sabrina will testify that Greg advised Sabrina that he would put her on the schedule with the recommended modified hours.

7. Sabrina will testify that she went back to work several days later to see if she was on the schedule for the next week and she was not. She will testify that she asked to speak to Ruby. Sabrina will testify that Ruby told her, “We already have full time staff for days so you will have to talk to Kevin Matson.”

8. Sabrina will testify that she telephoned Kevin, Franchise owner, and told him that she was entitled to return to the same position she left. She will testify that Kevin explained that things changed in regards to having no dishwasher/busser. This meant all staff has to wash and bus tables as well as clean bathrooms. Sabrina will testify that she informed him of her restrictions and limitations that require her to not carry anything heavy and that she was not willing to clean the bathroom due to a customer that goes there and spreads her fecal matter all over the bathroom. She will testify that Kevin terminated Sabrina at this moment.

9. Sabrina will testify that she called Tim Horton's head office and explained her employer’s lack of accommodation resulting in her termination. She will testify that head office responded by reinstating her. Sabrina will testify that she returned to work on April 11, 2011 on a modified hours work plan. She will testify that she was returning to work on a 4 hours schedule meant to gradually increase over time. Sabrina will testify that she was expected to reach full capacity by August 2011.

10. Sabrina will testify that she miss some days of work due to her injury but she had diligently acted by telephoning Tim Horton’s and advising them of her absence prior to the scheduled shift. Sabrina will testify that she had brought in all the doctor's notes required of her to validate those absences.

11. Sabrina will testify that on May 3rd, 2012 she went into work to discover Kevin there early in the morning. Sabrina will testify that she did not even get a chance to take off her coat when Kevin stated he wanted to speak to her in his office. She will testify that when she entered the office, Greg was sitting there and told Sabrina to shut the door.

12. Sabrina will testify that the first words out of Kevin's mouth was, “You can take me to Head office, labour board or human rights but your services are no longer needed here!” Sabrina will testify how she stood there stunned and asked Kevin, “Why, on what grounds?” Kevin replied, “We are sick of this and it has gone on for too long, you have missed too many days and we are tired of this!” She will testify that she replied, “Yes, I missed days but that is due to my disability and I have always called in and if it was for a doctor’s appointment, I always booked it off in advance, so I don’t understand why you are doing this?”

13. Sabrina will testify that Kevin went on to say, “Like I said, we are tired of this and it has gone on too long and also we have had complaints against you.” She will testify that she asked, “What complaints? If there were complaints, I should have been told the moment the complaint happened by being pulled into the office not now when you are firing, where’s the proof?”

14. Sabrina will testify that Kevin told her, “we have a file and it is all in your file.” Sabrina will testify that she challenged Kevin on this and pointed out that Tim Horton’s policy is to discuss the complaint with the employee immediately by having a discussion in the office. Sabrina will testify that she was pulled into the office twice, out of the 2 ½ years of her employment with Tim Horton’s, one from Ruby and one from Shirley, and they were both verbal warnings. She will testify that she asked Kevin why he was not following Tim Horton’s policy i.e. three written warnings prior to being terminated. Sabrina will testify that Kevin’s only response was that everything was in her employee file.

15. Sabrina will testify that she was shocked, angry and embarrassed about being terminated by her employer. She will testify that she applied for employment insurance. Sabrina will testify that she was informed by Service Canada that the Respondent told them she was terminated for written warnings and gave Kevin two weeks to fax proof over. She will testify that Kevin did not do this and in any event, was ultimately denied employment insurance benefits because she was short 44 hours to meet the qualifications.

16. Sabrina will testify that she had difficulties making ends meet as a single mother. She will testify that her termination put her into a situation where she could not pay her full rent making her worry about being evicted, that she had difficulties finding funds to purchase school supplies for her son, and that she needed to strategize ways to feed herself and her son.

17. Sabrina will testify that she now suffers from high blood pressure and has experienced increased emotional and financial stress, since her termination from Tim Horton’s.

18. Sabrina will testify that she had difficulty finding alternative work. She will testify that she applied to various places without any job offers being extended. She will testify that she suspects her former employer may have had something to do with the fact that she was not receiving any job offers. Sabrina will testify that she went without employment until the fall of 2013 when she gained employment with Metro grocers on October 4th.”

5I accept the evidence of the applicant as presented in accordance with the above-mentioned witness statement. She has testified and confirmed the information in same (I have amended one typographical error in paragraph 9 of her statement- it now properly reads “April 11, 2011”, as opposed to “2012”). I note that all of the information in the witness statement is consistent with the contents of the Application itself. In the aftermath of her termination, she lost benefits coverage through employment and had essentially no income, living off of the child tax benefit and her GST/HST rebate. The applicant had commenced a law suit to seek damages for injuries sustained in her “slip and fall” accident. She testified that she had to compromise her claim due to extreme financial need (the settlement was for $73,000.00 all-inclusive in or about November, 2012 - a copy of her unexecuted release confirming that amount was filed as Exhibit Five).

6A bound set of documents was filed as Exhibit Two. It contains physiotherapy and medical reports that essentially confirm the functional limitations of the applicant in the course of her employment with the respondent post-accident. In addition, at Tab Seven therein, the report of Dr. D.V. Hoffman, orthopaedic specialist, dated December 14, 2011 notes (at page five) that the applicant “continues to be symptomatic”, that she was developing “myofascial symptoms” and that “her ongoing symptoms are producing a significant impairment to her continuing work”. I find that the conclusions and diagnoses in the physiotherapy and medical reports are consistent with the evidence provided by the applicant herself. At Tab Nine of Exhibit Two, the Record of Employment (“ROE”) issued by the respondent for the applicant confirms the reason for issuing the ROE as “Dismissal”. The applicant offered additional oral and documentary evidence that will be referred to in other parts of this decision.

THE LAW

7Section 5 of the Code provides 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, age, record of offences, marital status, family status or disability.

8Section 10 of the Code defines disability as follows:

(a) 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,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

9The first issue is whether the applicant was disabled at the time of her termination from employment. The applicant was able to return to work on a graduated basis in April, 2011. Her initial limitations permitted her to work four hours per day, five days per week. She increased her hours per day to five in June, 2011, to six in July, 2011, to seven in August, 2011 and then to full-time hours in September, 2011. The physical impact on her was such that she had to reduce her hours to six per day after the September long weekend in 2011. At the time of her dismissal from employment in May of 2012, she was working the reduced work day of six hours per day.

10The definition of disability extends to the actual or perceived possibility that an individual may develop a disability in the future: see Hinze v. Great Blue Heron Casino, 2011 HRTO 93. The overriding concern in human rights law is that a disability not eliminate or restrict full participation in society by an individual. Disability should be interpreted in a broad and contextual manner, consistent with the Canadian Charter of Rights and Freedoms as well as other provincial human rights legislation. The fact that a physical condition is of a temporary nature does not exclude it from coverage under the Code: see Hinze and Mississauga (City) v. A.T.U. Local 1572 (2005), L.A.C. (4^th) 84 (Ont. Arb. Bd.). Unfortunately, the applicant’s condition has not proven to be of a temporary nature. Her symptoms persist to this day.

11In determining whether the applicant did indeed have a disability at the time she was terminated from her employment, it is also helpful to be mindful of the general adoption by courts and tribunals in Canada of the social model of disability (the belief being that the issue is not the underlying physical or mental condition but rather society’s response to it). This model is useful in evaluating whether an individual is disabled within the meaning of the Code and, indeed, if there has been discrimination arising from that disability: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 and Hinze, supra, at paras. 14 to 22.

12It is not the precise nature of the disability or the duration of work absence which defines whether a disability is covered under the Code. A work injury may not be severe or long-term; yet the employer may think that it will interfere with business operations and profitability and, on that basis, dismiss the employee. It is this perception and consequent treatment which defines the injury as a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54. I find that this is precisely what has happened in this instance.

[13] The fact that the applicant may have been declared fit to work by her physician does not impact on whether she was disabled within the meaning of the Code; the reality for the applicant was the perception of the employer that she was disabled, and might have functional limitations, perceived or real. The health of the applicant, in the context of the workplace, was in fact well known and exhibited by her actual limitations and need for reduced hours. In fact, the applicant did have real functional limitations, particularly with respect to lifting heavy objects.

14I find that the applicant had a disability within the meaning of the Code, and therefore had a right to equal treatment from the respondent.

15Furthermore, since a disability has been found, the employer must accommodate that disability up to the point of undue, not just financial (see the criteria below) hardship. As the Code states at section 17:

17(2) No tribunal or court shall not 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.

The applicant must prove on a balance of probabilities that the respondent did indeed discriminate against her based on her disability. She has succeeded in doing so. The respondent, by not participating and failing to adduce any evidence in this matter, has failed to demonstrate that accommodating that disability would have caused undue hardship, or that the termination was based solely and exclusively on grounds not prohibited by the Code i.e. such as prevailing economic conditions.

16The sole issue is whether the applicant’s disability played any role or was at all a factor at the time of her termination from employment. The applicant must prove on the balance of probabilities that the respondent did indeed discriminate against her based on her disability.

17It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

18The respondent’s decision to terminate the applicant’s employment in the manner she describes appears to be primarily, if not exclusively, based upon her disability. If there were other bases for the decision to terminate (i.e. complaints from customers), these were not shared with the applicant in any appropriate manner. No documented complaints appear to have been shown to the applicant nor were any details of such complaints shared with her. I find that the issue of customer complaints was merely a veiled attempt to discredit the applicant and justify the termination, in whole or in part, on grounds other than her disability and her need for accommodation within the workplace.

19I find the testimony of the applicant to be credible and rely on the test established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357, against the evidence heard and presented, as follows:

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

I find that the evidence given by the applicant was straightforward and credible, and confirmed by all documentary evidence filed as exhibits at the hearing. I further find that the respondent made the decision to terminate the applicant because of her disability. The respondent has not provided any non-discriminatory explanation for why the applicant, in particular, was selected for termination. That is enough for the applicant to succeed on her application.

20The applicant has therefore met her onus to establish that a breach of the Code has occurred on the balance of probabilities. The decision to terminate her was based, at least in part, upon a prohibited ground of discrimination under the Code.

REMEDY

21Section 45.2 (1) of the Code reads as follows:

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

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

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

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

Damages for Injury to Dignity, Feelings and Self-Respect

22The applicant seeks $20,000 for injury to dignity, feelings and self-respect. She argues that the actions of the respondent were egregious. Specifically, the termination was done angrily and with full knowledge of it being in breach of the Code. It was the second such discriminatory termination of the applicant, the first of which was overruled by the respondent’s head office.

23I propose to award damages based upon my consideration of the evidence and the nature of the discrimination in this instance. The applicant provided considerable evidence about the impact of this matter upon her, particularly the embarrassment it engendered as well as the impact it had on lifestyle and on her ability to care for her son (she was also in danger at one point of being evicted from her apartment). She also testified that she was required to compromise her law suit involving the “slip and fall” accident that resulted in significant damage to her tailbone.

24The Divisional Court held in Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 at paras. 43-44 that there is an “intrinsic value” attached to the right to be free from discrimination, and that not only is there no ceiling on general damages awards, but that the awards should not be so low as to trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate.

25The applicant endured discrimination. It was significant and impactful to her. No evidence was offered by the applicant as to any significant, long-term psychological harm to her, or even short term harm for that matter, other than it caused financial hardship and social embarrassment. Although the applicant testifies that she now suffers from high blood pressure, I cannot find, in the absence of specific medical evidence, that this can be attributed in any way to her treatment by the respondent.

26The relevant principles on damages were summarized as follows in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 46 and 51-54:

Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects.

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled.

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

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

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

27In light of the foregoing, I am mindful that the conduct of the respondent was heavy handed and unjustifiable. The evidence suggests that the respondent found the applicant to be an inconvenience and, ultimately, expendable. The termination under these circumstances had a significant impact on her and her family. Notwithstanding all of that, the Code is remedial, not punitive.

28In Valley v. Fairweather, 2012 HRTO 325, this Tribunal stated (at para. 31-33):

Recent Tribunal decisions that have considered disability-related discrimination in the context of the termination of an applicant’s employment have generally made awards ranging from $10,000 to $45,000. See, for example, Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, 2007 HRTO 34 ($45,000); Krieger v. Toronto Police Services Board, 2010 HRTO 1361, 2010 HRTO 1361 ($35,000); Lopetegui v. 680247 Ontario, 2009 HRTO 1248, 2009 HRTO 1248 ($20,000); Mirashrafi v. Circuit Centre, 2010 HRTO 512, 2010 HRTO 512 ($15,000); Vetricek v. 642518 Canada, 2010 HRTO 757, 2010 HRTO 757 ($15,000); Duliunas v. York-Med Systems, 2010 HRTO 1404, 2010 HRTO 1404 ($15,000); LeBlanc v. Syncreon, 2010 HRTO 2336, 2010 HRTO 2336 ($10,000); and Coscina v. Halton School of Equitation, 2011 HRTO 1949, 2011 HRTO 1949 ($10,000).

In the cases where awards less than $10,000 have been made, the Tribunal found the applicant had work performance issues that contributed to the termination, only worked for the respondent for a short period of time, and/or failed to present evidence of the impact of discriminatory termination on him or her. See, for example, Quattroci v. Boz Electric Supply, 2009 HRTO 1082, 2009 HRTO 1082; Garcia v. Tri-Krete, 2009 HRTO 2181, 2009 HRTO 2181; and Buckingham-Vanderlei v. Walker, 2010 HRTO 1338, 2010 HRTO 1338.

I have considered the Tribunal’s caselaw and the applicant’s circumstances, including the impact of the discrimination on her. I find that $15,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect in this matter.

29I find that, in this instance, $15,000.00 is also an appropriate award for injury to the applicant’s dignity, feelings and self-respect. The actions of the respondent, although deserving of sanction, do not rise to the level of the compensation sought by the applicant. See also Hebert v. 1497422 Ontario Inc., 2013 HRTO 133 and Defina v. Lithocolor Services Ltd., 2012 HRTO 1768.

Lost Wages

30The Code allows the Tribunal to make the applicant “financially whole”, which in this instance, represents recovery of some lost wages. The applicant seeks loss of wages from the date of termination (in May, 2012) to the date of hire at her new job at the Metro Grocery Store (in October, 2013), being 30 hours per week at $11.35 per hour (or $340.50 per week) for a period of 74.3 weeks (thus 74.3 weeks multiplied by $340.50 per week), or a total of $25,299.15

31I find that it is appropriate in this instance to award lost wages for the period from May, 2012 to October, 2013, at which time she successfully obtained alternate employment. That would amount to $340.50 per week for 74.3 weeks, or a total of $25,299.15. I cannot conclude, in the absence of any contradictory evidence, that the applicant received any compensation for wage loss from her accident settlement. Her new job, however, pays her a lower wage than she received from the respondent. She receives $10.25 per hour at Metro (see Exhibit Four) as opposed to the $11.35 per hour that she was paid by the respondent at the time of termination. I am prepared to award further lost wages in the form of $94.50 per week for 22 weeks (the length of time from the date of hire to the date when this decision is rendered), or a total of $2,079.00. Counsel for the applicant requested in her submissions that the wage loss differential be paid to the date of the decision. I am satisfied that the applicant made consistent and conscientious efforts to mitigate her damages from the date of her termination to October, 2013, which are detailed at tab Fourteen of Exhibit Two.

32The over-all wage loss award amounts to ($25,299.15 plus $2,079.00), or a total of $27,378.15. The amount is payable less statutory deductions.

Pre- and Post-Judgment Interest

33The applicant has been denied access to this money during the course of this process. She shall have pre- judgment interest, in accordance with section 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Since her application is dated November 30, 2012, pre-judgment interest is awarded at 1.3 percent per annum, from January 1, 2013, to allow time for service. See: Hom v. Impact Interiors Inc. (1993), 1993 CanLII 16449 (ON HRT), 23 C.H.R.R. D/345 at para. 17 (Ont. Bd. Inq.); rev’d (1995) 1995 CanLII 18145 (ON CTGDDC), 23 C.H.R.R. D/348 (Ont. Div. Ct.); rev’d (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont.C.A.).

34She shall also have post-judgment interest, in accordance with section 127 of the Courts of Justice Act, supra. It is hereby awarded from thirty days after the date of this Order, at 3.0 percent per annum.

Public Interest/Future Compliance Remedies

35In the Application, the applicant sought human rights training for the respondent, focused specifically on the duty to accommodate. This was not formally requested at the hearing. As such, I decline to make any order of this nature.

ORDER

36The respondent, 1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533, is ordered to pay to the applicant, Sabrina Lynn Rollick, the following amounts within thirty days of this Order:

(a) $15,000.00 for injury to dignity, feelings and self-respect;

(b) $27,378.15, less statutory deductions, as compensation for her wage loss; and

(c) Pre-judgment interest on these awards, commencing on January 1, 2013, fixed at 1.3 percent per annum, and post-judgment interest on all of the above under section 127 of the Courts of Justice Act, supra, fixed at 3.0 percent per annum, commencing thirty days from the date of this Order.