Russell Sears v. Honda of Canada Mfg., a division of Honda Canada Inc. and Jim Proper, 2014 HRTO 45

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Russell Sears

Applicant

-and-

Honda of Canada Mfg., a division of Honda Canada Inc.

and Jim Proper

Respondents

DECISION

Adjudicator: Judith Keene

Date: January 13, 2014

Citation: 2014 HRTO 45

Indexed as: Sears v. Honda of Canada Mfg.

APPEARANCES

Russell Sears, Applicant

Self-represented

Honda of Canada Mfg., a division of Honda Canada Inc. and Jim Proper, Respondents

Jayson Ryder, Counsel

Introduction

1This is a Decision in respect of an Application filed on April 21, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2This Decision is necessarily lengthy; a brief initial summary of the circumstances that gave rise to the Application is in order. The applicant, who had been employed with the corporate respondent since 2001, had throughout his employment several vision-related issues, including being severely myopic. He is also colour blind; he has difficulty seeing red, green and sometimes yellow. He has considerable difficulty seeing print in certain circumstances. His work, at the time relevant to this Application, mainly involved dealing with cars as they moved down a production/assembly line, completing brief and time-limited processes related among other things to spotting any defects, with the assistance of a computer display. In 2010, the corporate respondent changed the colours used on software with which the applicant worked, including a switch from black lettering on a yellow background to black lettering on a red background. The applicant left work in early December of that year, and attempted to obtain a stress leave. The applicant returned to work on modified duties on June 20, 2011 pending accommodation measures to enable him to meet various requirements of the job. Accommodation measures, which included changes to the computers, training for the applicant on how to adjust the screen presentation, special lighting and a magnifying glass on a stand, were put in place by were put in place by the end of November, 2011.

3The applicant’s employment was terminated on February 16, 2012, and he alleged that his dismissal contravened the Code. His request to amend his April 2011 Application to deal with this issue was granted.

The scope and procedural history of the hearing

4The original Application referred to a number of incidents occurring between 2001 and November 2010. Shortly after receiving the Application, the respondents objected to the timeliness of a number of the allegations, and the Tribunal requested the parties’ submissions on whether they were untimely and whether the applicant could seek a remedy for them. In the applicant’s submissions, he agreed that items 3-9 of the narrative in his Application are untimely allegations of discrimination. He stated that he did not seek a monetary remedy with respect to those events, but that they showed a pattern of harassment and demonstrated what he did to try to resolve the issues. In an Interim Decision, 2011 HRTO 2246, dated December 14, 2011, the Tribunal directed that the respondents need not respond to the allegations in items 3-9 of the Application, ruling that any determination as to the relevance and admissibility of this background evidence would be left to the Vice-chair at the hearing.

5Upon being assigned the hearing of this matter, I acknowledged, in Interim Decision 2012 HRTO 1479, that there would be no hearing into the respondents’ liability under the Code in respect of the allegations identified as items 3-9 of the narrative in the pre-amendment Application; the applicant’s agreement that they are untimely having been incorporated into a previous Interim Decision. However, in their Response, the respondents had said that they were unaware of any specific restrictions or limitations imposed by the applicant's condition, and that the applicant did not raise any specific requests for accommodation, prior to December 3, 2010. In items 3-9 of the narrative in his Application, the applicant says he spoke to managerial staff, including managers and people in “Foreman” positions, concerning his disability-related difficulties in the workplace on several occasions prior to December 3, 2010. I concluded that, in view of the respondents’ position concerning their knowledge prior to December 3, 2010 of the applicant's disability-related issues, the recollections of the persons with whom the applicant allegedly raised his concerns related to his allegations in items 3-9 were relevant to the applicant's timely allegations, to which the hearing of the Application would be confined. Accordingly, I ordered the respondents to disclose and file any evidence they wish to call related to the applicant’s allegations pertaining to the respondents’ knowledge of the applicant’s disabilities.

6Pursuant to Interim Decision 2012 HRTO 1479, the applicant was also permitted to amend his Application to add allegations that necessary accommodation measures were not put in place after his return to work in 2011 from a disability leave, that he was asked to do work that his disability made difficult or impossible, that his employment was terminated on February 16, 2012, and that the termination was a reprisal for the purposes of the Code. Finally, the applicant asked and was permitted to amend his request for compensation.

7A number of procedural matters were raised by the parties before and during the hearing on the merits. The applicant filed a Request for an Order During Proceedings (“Request”) on December 17, 2012. Appended to the Request were three summons forms with the names of three witnesses, each of whom was employed by the corporate respondent. The letter attached to the Request made it clear that the applicant wished to ensure that these witnesses are called to testify at the hearing, but that he did not have the addresses and telephone numbers of the prospective witnesses, and wished to obtain this information from the respondents. The respondents filed a Response opposing the Request. On January 4, 2013, I issued a Case Assessment Direction (“CAD”) in which the respondents were directed to send the applicant the addresses and telephone numbers at which the individuals named in the Request could be reached, within five days of the date of the Case Assessment Direction.

8The respondents did not comply with the direction. On January 13, 2013, the respondents sent the Tribunal a letter in which they undertook to serve the subpoenas on the witnesses. The applicant filed a Request asking that the respondents be required to comply with the direction given in the CAD. By Interim Order dated January 17, 2013, 2013 HRTO 90, the corporate respondent was directed to send the applicant the addresses and telephone numbers at which the individuals named in the applicant’s Request of December 17, 2012 could be reached, within five days of the date of the Interim Decision. The respondents did not comply with the Interim Order.

9On the first day set aside for the hearing, I initiated a discussion with the parties about how, in the circumstances, I could ensure a fair process for all parties and be sure I heard all necessary and relevant evidence, given that the named individuals appeared likely to have relevant information and to require subpoenas. The applicant submitted that the respondents should be dealt with through contempt proceedings, but conceded that the time taken by this process might be considerable. I pointed out that I could, under the Tribunal’s Rules of Procedure, order the respondent to call these witnesses and give the applicant a chance to cross-examine (Rule 1.7(k)), or simply proceed to hear the evidence and draw whatever inferences seemed appropriate. In the end, the respondents undertook to call the witnesses the applicant had wished to call, and to produce a brief statement of their expected evidence just prior to their appearance. While this was hardly the ideal solution, the applicant consented to this proposal and I allowed it.

10After the applicant had given his evidence in chief, the respondents filed a Request asking that I decline to hear the matter further and dismiss the Application, because the respondents were willing to pay the applicant the full amount of financial compensation requested in the Application. The respondents requested an order that is somewhat similar in wording to a “consent order” that is in certain circumstances available in court proceedings. The difference here was that the consent of the applicant had not been given. The respondents did not offer to admit liability under the Code, but suggested that, because they have agreed to pay the full amount of the applicant's claim for monetary compensation, I decide that “no useful purpose would be served by further proceedings”, and order the payment of the specified amounts.

11In responding to the Request, the applicant acknowledged that, at the end of the hearing process, he might receive less monetary compensation through an order of the Tribunal than the respondents offered, but stated that the money was less important than “the principles”. His brief written Response to the respondents’ Request stated that he believes that the senior management of the corporate respondent “has not been informed to the full extent of the abuse of power by lower and middle management”. In addition, while he is no longer employed with the corporate respondent, he stated a wish to make the corporate respondent a better place to work for people with disabilities. He urged that the Tribunal continue with the hearing so that the respondents “can use the decision and recommendations [which] will assist Honda in addressing similar issues in the future”.

12The respondents’ Request was denied by Interim Decision, 2013 HRTO 14, dated January 4, 2013.

The hearing on the merits

13The allegations dealt with in this Decision are the following:

a) That the applicant’s working conditions between April 21, 2010 and the end of November, 2011 breached the Code in the following ways: the applicant was required to perform job functions that were more difficult for him, as a person with visual disabilities, than for non-disabled individuals, the corporate respondent failed to accommodate the applicant, and the corporate respondent failed to take appropriate action when the applicant complained of disability-related harassment and discrimination at work;

b) That the personal respondent had harassed the applicant; and

c) That the termination of the applicant’s employment on February 16, 2012, violated the Code.

14I asked the applicant to identify what he considered “harassment“. He indicated that he had heard verbal abuse from a team leader but did not specify what had been said, and he mentioned both an incident in which Allan Arsenault, his team leader, had called him a “blind dog” in 2009, and an incident in which the personal respondent, Mr. Proper, a co-worker, had “poked [him] in the ribs with a T-jig” in late August of 2010. Generally, the applicant’s definition of harassment was more congruent with allegations of discriminatory behaviour that might breach the Code than with to the Code’s definition of harassment. I will deal with the issue of harassment below in respect of incidents that might be considered to correspond to the definition given in the Code.

15The evidence concerning the period prior to April 21, 2010 relating to notice of disability indicates that the applicant had disability-related difficulty from early on in his employment; he had difficulty reading print in some conditions and there were colours he could not distinguish; on occasion he needed and requested help. His position is that his supervisors knew that he required assistance from his team leader or sub-leader, but initiated no accommodation measures at that time. I have not made specific findings relating to accommodation prior to April 21, 2010, as the evidence dating from that period was heard only in order to deal with the respondents’ claim that they were unaware of any specific restrictions or limitations imposed by the applicant's disabilities prior to December 3, 2010.

16I have concluded that the corporate respondent breached s.5 of the Code because, despite having information sufficient to trigger the procedural duty to accommodate, it did not initiate inquiries that could have resulted in accommodation measures until after the applicant had left his work because he could no longer perform it with his disabilities. I have also concluded that the corporate respondent, on two occasions, did not meet its duty to investigate complaints of behaviour that could amount to a breach of the Code. The respondents did eventually accommodate the applicant. However, I have also found that the termination of the applicant’s employment was in part because of his efforts to assert his rights under the Code.

17In respect of the personal respondent, I have concluded that there is some evidence that he poked the respondent with a T-jig as alleged. However, the evidence of conduct that corresponds to the definition of harassment for the purposes of the Code was not sufficiently convincing and cogent to satisfy the “balance of probabilities” test.

18The relevant findings of fact and the reasons for my decision are set out below.

RELEVANT LAW

19The Code provisions relevant to the breaches of the Code alleged by the applicant provide 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.

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

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

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

“disability” means,

(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

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

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member 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.

20The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 119, Peel Law Association v. Pieters, 2013 ONCA 396). In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (S.C.C.) at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. More recently, in Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court stated at para. 33:

…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the [area]; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

21In cases in which discrimination in employment is alleged, the applicant must establish an adverse impact in respect of employment. An adverse impact may arise because of different treatment, or because of identical treatment that has a disproportionate impact on a group of which the applicant is a member (see s.11 of the Code), and in either case, the applicant must also establish that the adverse impact was related to a personal characteristic listed in the Code.

22Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence, to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination (see Moore and Pieters above, and Chau v. Olymel S.E.C.\L.P., 2009 HRTO 1386). Even if valid and non-discriminatory reasons exist for an adverse decision affecting employment, if one of the reasons for a decision involves a prohibited ground of discrimination, that decision infringes the Code. It 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 for example Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, and Filion v. Capers Restaurant, 2010 HRTO 264.

23Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence, which may include evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. However, as noted at para. 46 of that decision:

…there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision…

24In F.H. v. McDougall, above, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence.

The Hearing

25I heard evidence from the applicant, and from Ron Leigh, Senior Administrator of Associate Relations in the corporate respondent's human resources department; Guy Bruce, who was employed in 2001 as a Group Leader in the part of the plant in which the applicant worked; Rafal Bulgarski, a non-supervisor employee of the corporate respondent responsible for quality control; the personal respondent, Jim Proper; Claudette Pilon, a co-worker of the applicant; John Moulding, Administration Coordinator in Associates Services (the corporate respondent’s human resources department); Cal Potts, the Department Manager in the Engine Plant in which the applicant worked at the relevant times and Mr. Moulding's direct supervisor; Amy Maxim-Redfern, Disability Management Facilitator; and from Jeff McClenaghan, Production Team Leader. All witnesses gave evidence under affirmation, and adopted their witness statements, and, in the applicant’s case, his written submissions to the date of the hearing.

26The applicant, who was not represented, appeared to have considerable difficulty in keeping track of the relevant details in the hearing, and was unfamiliar with the limits imposed on questions in cross-examination. Where necessary, I intervened in his cross-examination. I also occasionally posed further questions to both the applicant and the respondents’ witnesses, having at the outset of the hearing explained that I would do so as necessary, and requested counsel for the respondents to raise any issue that he might have with any question of mine.

27The applicant’s oral evidence added some detail to his adopted written submissions.

Preliminary Issue: Notice to corporate respondent of applicant’s disabilities

28The applicant gave evidence of events prior to April 21, 2010, on the understanding that the evidence from this period was relevant solely to an issue raised by the respondents as to notice of the applicant's disability as it related to his work. As noted above, in their Response the respondents had said that they were unaware of any specific restrictions or limitations imposed by the applicant's disabilities, and that the applicant did not raise any specific requests for accommodation, prior to December 3, 2010. The question of requests for accommodation will be dealt with below. In respect of notice of disability, the evidence establishes that the corporate respondent had notice of the applicant’s disabilities as early as 2001, both through documents within the applicant’s employment records and via the experience of persons in the workplace that included management.

29By the time of the hearing, the respondents agreed that the applicant had disclosed his colour blindness and other disabilities on his pre-employment medical examination, the record of which is dated July 30, 2001 (Exhibit 2). The applicant’s 2001 employment medical examination form, which indicates that the applicant’s eyesight, even with correction, was 20/40 and that the applicant had some loss of high-frequency hearing in his left ear, was signed by a doctor employed by the respondent. That record does not elaborate on the type of colour blindness at issue; during the hearing there was uncontested evidence that the applicant has red-green colour blindness, and on occasion also had problems with yellow.

30The applicant testified that the supervisor who conducted his initial performance review, Steve Virzak, was aware of his nearsightedness, and told him to write something about that on his performance review. The applicant’s initial performance review (Exhibit 1) contains a paragraph at the end that states “at the start I had a problem with my eyesight and the angle of the gun on final tor (sic). But now I have a (sic) the angle, and find that I am not cross threading.”

31The applicant testified that at the time of his initial performance review he also had a general conversation with Mr. Virzak about his need for better lighting.

32There is also relevant non-documentary evidence that corroborates the evidence related to notice of disability. The applicant testified that “everyone at work” was aware of his nearsightedness, since he often had to remove his glasses to read some things, stand close to writing, or ask for assistance relating to his visual acuity. The applicant’s testimony on this latter point was confirmed in the testimony of a number of the respondent’s witnesses, some of whom mentioned the applicant’s need on occasion to move print very close to his eyes or to move his face close to the print, something the applicant frequently did during the hearing.

33Mr. Bruce, who as noted above was employed in 2001 as a Group Leader in the part of the plant in which the applicant worked, testified that he was “pretty sure” that the applicant had told him about his colour blindness sometime in 2001.

34The applicant stated that in the autumn of 2001 he went to Mr. Bruce to complain that Kathy Stoddard, a supervisor, had gone to the on-site medical Department, filled out a prescription eyeglass form in applicant’s name, and took the form to an off-site contractor. The respondent denied that this had occurred.

35The applicant stated that he had discussed “harassment” with his department manager, Mr. McClenaghan, in late December 2005 or early 2006. Mr. McClenaghan, who was employed in zone 4 of plant 2 as a Production Team Leader in 2005, gave evidence. Mr. McClenaghan testified that he left zone 4 in December of 2005, and that therefore his interaction with the applicant was in 2005. Mr. McClenaghan testified that the applicant had “some issues with his sight”, because the applicant would often put his face inches from anything he had to read.

36Mr. McClenaghan testified that he became aware of the applicant’s colourblindness when the applicant approached him with problems he was having with the scanner used to scan “VIN numbers” on cars on the assembly line. He testified that the applicant told him that he was unable to see a red line emitted by the scanner. On investigation, he found that the applicant was also holding the scanner too close to the bar code. Mr. McClenaghan stated that he devised “a way to deal with the problem”; he instructed the applicant on the technique for using with the scanner. He indicated that the red line was not the only way to identify when there was a problem such that the scanner needed to be used; there was apparently a number at the top left corner of the computer screen used by the applicant. Mr. McClenaghan did not recall the applicant having problems with anything other than the scanner before he left zone 4 in December of 2005.

37The applicant testified that, in the autumn of 2006, he went to Darren Vogin (apparently a supervisor) to discuss a problem he was having with colour (yellow) which was “related to angle”. The applicant stated that Mr. Vogin had suggested possibly putting “a jig on the scanner” but that solution did not work well because it would be easy for the jig to get lost or misplaced when others used the scanner. Mr. Vogin suggested that the applicant speak to Jeff McClenaghan, Production Team Leader, and devise a solution. However, the applicant stated that Mr. McClenaghan “never got back to me” and that he himself devised a different solution that worked for him so that he could be placed back on that job.

38John Moulding of the corporate respondent’s human resources department was aware of the applicant’s visual disabilities because he dealt with complaints by the applicant of disability-related harassment. The applicant stated that, on two occasions in August 2009, he was called “his blind dog” by Alan, his team leader. The applicant sent a letter, dated August 19, 2009, to Gilles Madore, the plant manager and to Doug Wilson (this latter individual was not among the witnesses). The respondents agree that the letter was received, although Mr. Moulding’s evidence was that he received the letter on September 14, 2009.

39The applicant’s letter gave rise to a meeting with Cal Potts, the Department Manager in the corporate respondent’s Engine Plant, and Mr. Moulding, apparently called by Mr. Moulding. Mr. Moulding testified that the meeting was held on September 14, 2009. Notes from that meeting submitted in evidence (Exhibits 19-21) by the respondents indicate that the applicant told Mr. Potts and Mr. Moulding that he is badly nearsighted and colour blind, and Mr. Moulding confirmed this in his testimony. Mr. Moulding’s witness statement, which he adopted, indicated that he interviewed Mr. Arsenault, who did not recall making the alleged comments, although he did recall saying something to the applicant like “what, are you blind?” at some point. In addition, Mr. Moulding’s adopted witness statement indicated that “Arsenault said that he had not realised he’d offended Sears and promised to apologise if this was the case… I advised Arsenault of the need to be careful about what we say to people and that offhand comments about personal characteristics that are not intended to cause upset or heard often have the effect of doing so.”

40Mr. Moulding’s evidence was that he met again with the applicant to advise him of the outcome of his investigation. His adopted witness statement indicated that

We advised Sears that Arsenault did not recall calling him a “blind dog”, but that Arsenault was sorry if something he said upset Sears. We also told Sears that Arsenault had been spoken to about being more considerate and sensitive to the feelings of others. Sears was also advised that he should report any future issues immediately and that he should make it clear to the person making the statement that it was not welcome. At the end of the meeting, Sears told us that Arsenault had approached him earlier in the day and apologised.

41The applicant stated that management had tried to solve his problems by moving him to new zones in the factory. The respondents did not dispute that the applicant had been moved, but indicated that this was not unusual and disputed that this was an attempt to respond to conditions that were difficult for the applicant. The applicant stated that the moves did not solve his difficulties. He still had to ask others for help and tried to “find a way around” using “a light, a magnifying glass” or other aids. He states that after the move of February 2009, he had to deal with fewer colours and so his work was easier that way.

42It appears that the corporate respondent had still other documentary evidence relevant to its knowledge of the applicant’s disabilities that it did not disclose before or during the hearing. There are two items of undisclosed relevant evidence that came to light in the course of the hearing. The first is a doctor’s letter apparently dated July 20, 2003. A notation dated June 2, 2011 located in Tab 20 of the respondents’ “Relevant Documents and Witness Statements” (Exhibit 37) refers to a letter in the applicant’s “medical chart” from a doctor, dated July 20, 2003, confirming a diagnosis of “myopic degeneration and high myopia.”

43The second is another letter from a doctor, seemingly from the same time period. On a number of occasions during the hearing, the parties referred to a disability leave, apparently occasioned by “stress”, taken by the applicant in 2003. At one point in his cross-examination of the applicant, counsel for the respondent referred to a letter, which he indicated was signed by a Dr. Tibor Herrety, referring to the applicant as having “a delusional disorder” in 2002 and 2003. I asked whether this letter had been filed with the other relevant documents. It had not been filed. Counsel indicated that this information “came into his possession as he was preparing his cross-examination”, and maintained that he had no obligation to provide the document to which he referred to the applicant or to file it.

44The position taken by counsel for the respondents as to the respondents’ duty to disclose is of course inconsistent with Rule 16 of the Tribunal’s Rules of Procedure. As noted in C.D. v. Wal-Mart Canada, 2010 HRTO 426 at para 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing

45In numerous decisions, the Tribunal has noted that parties have an ongoing duty pursuant to the Tribunal’s Rules of Procedure to disclose all documents in their possession that are arguably relevant to the matters raised. See for example Steele v. Ontario (Minister of Community Safety and Correctional Services), 2010 HRTO 1019, Arzem v. Ontario (Community and Social Services), 2005 HRTO 14.

46A failure to honour this duty is particularly egregious in cases in which the party who has not received proper disclosure is unrepresented, as s/he may not be aware of the law relating to prejudice and fairness, and may be unable to make appropriate submissions to the adjudicator.

47The documentary evidence submitted for the hearing also includes documents relevant to the time of the events dealt with in this Application (April 21, 2010 to February 16, 2012). In early December of 2010 the applicant tried to obtain a paid leave to deal with stress which he claimed was work-related. On December 6, 2010, he filed a claim for Workers’ Compensation for “work related stress”. In March of 2011, he filed a claim for short-term disability benefits with his workplace insurance plan. Exhibit 7 is a Workers’ Compensation Health Professional’s Report dated December 15, 2010, which contains a diagnosis of “mental stress secondary to verbal abuse” and a treatment plan for psychiatric counselling. In Exhibit 6, another Health Professional’s Report dated November 6, 2011, the doctor noted symptoms of anxiety, depression, insomnia, anhedonia and diminished appetite. The Exhibit 6 Report contains a diagnosis of “adjustment reaction” and indicates that an antianxiety drug and an antidepressant were prescribed. There was no indication from the corporate respondent that it had not received these documents in the course of the applicant’s WCB claim. In addition, the Physician’s Statement filed with his March 2011 application for short-term disability benefits (Exhibit 8) contains a diagnosis of “adjustment reaction”, and indicates “moderately severe” restrictions in respect of “ability to respond appropriately to usual daily pressure/stressors”, “ability to interact with others”, and “ability to relate to co-workers and team leaders”. “Moderately severe” is defined as “impairment significantly affects ability to function”.

48While the applicant included frequent references to the stress and anxiety he suffered during the time relevant to the Application in his filed written statements and during his testimony, he did not identify himself as having a mental disability at the relevant times. However, it is clear from the evidence of the corporate respondent that the corporate respondent had reason to believe that the applicant had a mental disability of some nature, given its possession of the letter from Dr. Herrety that referred to the applicant as having “a delusional disorder” in 2002 and 2003, and the above-noted medical documents from December of 2010 and November of 2011.

49The fact that the corporate respondent had reason to believe that the applicant might have a mental disability at the time of the events relevant to this Application can be significant in two ways. First, the definition of disability is interpreted in a broad manner and extends to the perceived possibility that an individual has a disability: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665, so that if the evidence establishes that perceived disability was a reason for adverse treatment by the respondent, this would indicate a breach of the Code. Secondly, notice to the corporate respondent that the applicant might be dealing with a mental disability can be relevant to the corporate respondent’s duty to accommodate. This is further discussed later in this decision.

50It is clear to me, and I find as a fact, that the applicant’s colour blindness, nearsightedness, myopic degeneration and loss of high-frequency hearing in his left ear are disabilities for the purpose of the Code. It is also clear on the evidence that the corporate respondent had notice of these disabilities as early as 2001, and was clearly on notice at the time relevant to this Application, between April 21, 2010, and February 16, 2012.

51The applicant’s myopic degeneration and colour blindness were most recently confirmed in a letter from his optometrist dated June 9, 2011 (Exhibit 10), and filed with the applicant’s materials. The letter indicates that the applicant has been a patient of the doctor's office since 1992 and that “during the entire duration his vision has been stable, without any marked deterioration, or improvement, in visual acuity. …He suffers from myopic degeneration…[and] colourblindness.” The letter states that the myopic degeneration condition results from the applicant's extreme nearsightedness. The letter gives the applicant's corrected visual acuity figures and states that these acuities “are consistent over the last 20 years.”

52In addition to the evidence of vision-related disabilities, documentary evidence in the possession of the respondents indicated that representatives of the corporate respondent had a belief, seemingly based on records some of which were not produced in evidence, that the applicant had “a delusional disorder” for some period of time in 2002 and 2003. Further, from December of 2010 the corporate respondent had documentary evidence that indicated the possibility that the applicant might be dealing with mental disability related to anxiety and depression.

I. Allegations of discrimination prior to termination of employment

53The applicant was a “production associate” employed by the respondent from August of 2001 until February 16, 2012. My understanding of the evidence given by the parties is that during the relevant time, the applicant’s job mainly involved dealing with cars as they move down a production/assembly line, completing brief and time-limited processes related among other things to spotting any defects, with the assistance of a computer display.

54As noted above, the applicant’s allegations related to the period between April 21, 2010, and February 16, 2012, are that the corporate respondent failed to accommodate the applicant, whose visual disabilities made it difficult for him to do his job without accommodation, and in fact added a requirement to the applicant’s work that made it more difficult to perform with his disabilities, and failed to provide accommodation after the requirement was added. The applicant also alleges that the personal respondent harassed him, and that the corporate respondent failed to take appropriate action when the applicant complained of disability-related “harassment”, both by the personal respondent and in respect of difficulties he experienced during the accommodation process.

Difficulties relating to myopia

55The applicant’s evidence in respect of this issue was relatively brief; he largely focussed on the changes to the computer display, which I conclude he regarded as the culminating incident that triggered his departure from work in early December 2010.

56There is no evidence that, during the relevant time period, the applicant made any formal request of the type recognised by the corporate respondent’s system for dealing with accommodation (which is further discussed below) for accommodation of difficulties caused by his myopia.

57As noted above, I have concluded that the corporate respondent had notice of the applicant’s myopia since 2001. The evidence of the applicant was that at the time relevant to this Application “everyone at work” was aware of his nearsightedness, and that he often had to remove his glasses to read some things, stand close to writing, or ask for assistance relating to his visual acuity. The applicant’s testimony on this latter point was confirmed in the testimony of a number of the respondent’s witnesses, some of whom mentioned the applicant’s need on occasion to move print very close to his eyes, and his need for assistance with his work.

58It is uncontested that accommodation related to the applicant’s myopia, such as special lighting and a magnifying glass, was not put in place until the end of November, 2011.

Difficulties related to colour blindness: colour changes to the computer display

59The applicant stated that, in August of 2010, he was informed that there would be changes on the “Dunnage computer” (the computer that affected his work). The changes would be to the colours used on software with which he worked, including a switch from black lettering on a yellow background to black lettering on a red background. Rafal Bulgarski, a non-supervisor employee of the corporate respondent responsible for quality control, gave evidence that this was done because the associates were having difficulty identifying defects on the computer screen and taking the appropriate action. It was decided that the letters or numbers that indicated defects would be underlined in red, because it was understood that “red is for defects”. He also noted that the use of red to denote a problem was “based on standards across the board”. This understanding was reiterated in the evidence of Claudette Pilon, a co-worker of the applicant.

60The applicant also stated that, during a meeting in August 2010, he told Mr. Bulgarski, whom he identified as “the quality control supervisor”, that if the software program was changed, he would not be able to read it because of his colour blindness. He stated that he asked Mr. Bulgarski not to change the display. He states that at this time the personal respondent, Mr. Proper (also a co-worker) said that they wouldn't change the program just because one person out of six couldn’t see it. When asked what Mr. Bulgarski replied, the applicant stated that Mr. Bulgarski had no chance to respond because that was when the personal respondent said “it's not going to be changed just for one person” or words to that effect. When asked if he responded to the personal respondent’s remark, the applicant said he had not done so; he had just walked away and went to his workstation. He reiterated that Mr. Bulgarski and Ms. Pilon had been there when the personal respondent made that statement. The applicant testified that, after hearing this remark repeated by the personal respondent, he went to the washroom and cried.

61The applicant also alleged that, during that same shift and shortly after the meeting, the personal respondent walked up behind him and poked him in the ribs with a T-jig and that he turned around and asked “what's going on?” The personal respondent had stepped back and said “there are too many people in maching” (this is evidently a reference to the area in which both worked) “--some are going to have to leave”.

62The applicant identified these incidents as having occurred on August 24, 2010, but also stated that they may have been in September, 2010.

63The evidence of Mr. Bulgarski and Ms. Pilon did not support the applicant’s version of these events.

64Mr. Bulgarski was referred by counsel to the question of the discussion as described by the applicant in August or September of 2010. He could not recall any such discussion nor could he recall the applicant asking him not to change the colour to red. He did not believe that the applicant had done so, as he would have followed up had he heard about this problem. His evidence was that the first time he was aware that the applicant was colour blind was when he was called into a meeting with Mr. Moulding in March of 2011. He stated that he had no conflicts with the applicant, and no reason to ignore any complaint he made.

65Ms. Pilon had no recollection of a conversation between herself, Mr. Bulgarski, the personal respondent and the applicant. She did not recall the applicant raising objections to the change to the computer or mentioning colour blindness. She had no recollection of the personal respondent saying anything to the applicant. She was aware that the applicant had “vision issues”. She stated that she did not know the applicant was colour blind. She testified in cross-examination that she had had some conversation with Mr. Arsenault, the applicant’s supervisor, at some point about the applicant’s poor vision but that Mr. Arsenault never told her that the applicant was colour blind. Ms. Pilon did not recall witnessing any physical contact between the applicant and the personal respondent.

66The personal respondent’s witness statement, which he adopted, indicated that on or about August 24, 2010, he himself had a conversation with Mr. Bulgarski about the upgrade to the Dunnage computer. He noticed the applicant in the area and “he seemed to be listening to the conversation”. He testified that he did not hear the applicant say anything about difficulties with the Dunnage computer. He did not recall mentioning the applicant “or anything about him” and he specifically denied making the comment about colourblindness and the corporate respondent not changing the screen because one person out of six could not see it.

67The personal respondent did not appear to be a reliable witness. His oral testimony was contradictory, he was somewhat evasive, and he appeared to answer questions selectively, stressing particular aspects of a question and appearing to avoid conveying the whole truth.

68The personal respondent at first stated that there were never any meetings involving maching employees. On further questioning he changed that position to acknowledge that there are some regular meetings, including pre-shift meetings that might be attended by personnel from quality control. His recollection was that there was never any meeting in respect of the 2010 changes to the computer display, but “quality people come onto the floor”.

69The personal respondent denied poking the applicant with a T-jig. However, he admitted to Mr. Moulding, in an interview in March of 2011 (further discussed below in the paragraphs dealing with investigation by the corporate respondent of the applicant’s complaints) that he “may” have done so. I asked him about this. He became flustered and stated that he did not recall saying that. Counsel for the respondents did not raise this with the personal respondent on re-direct.

70The personal respondent testified that he was aware that the applicant had problems with his vision; he stated “everybody knew.” He denied that he knew that the applicant was colour blind, and said that the applicant had never mentioned it. He stated “I don’t even know what colour blindness means.”

71Mr. Bulgarski stated that it was the team leaders who actually decided when the computer needed to be rebooted to make the change. His recollection was that the team leaders at the time were Alan Arsenault and Jason Overland. Neither of these individuals raised any concerns with him.

72There is disagreement between the evidence given by the applicant and that given by Mr. Bulgarski as to precisely when the change in highlighting words on the computer came into effect. The applicant’s evidence was that the changes to the software were effected on November 29, 2010. Mr. Bulgarski’s evidence was that the change “went live” in the first week of October, although he could not pinpoint the exact date. Ms. Pilon had no recollection of the date the change went into effect. I do not find that there is any particular significance in the date the change was effected; I accept that it was sometime between the first week of October and the end of November 2010.

73In cross-examination, respondent counsel indicated that Mr. Bulgarski would testify that he did not hear any objection to the change from the applicant, and that Ms. Pilon would testify that she overheard no such thing. When asked why they would say that now, the applicant indicated that he did not know why they would deny what happened. He said he had no previous history of problems with Mr. Bulgarski. He agreed with the suggestion that Mr. Bulgarski deals with process improvements but when asked why he would ignore a request the applicant said he did not know why Mr. Bulgarski would ignore the request.

74The change from black writing on a yellow background to black writing on red background added to the difficulties caused by the applicant’s myopia, and left the applicant unable accurately to read the computer screen. He gave uncontradicted evidence that he asked co-workers to help him read the computer screen until he was “rotated” to another job. He testified that the other job was difficult for him, given his myopia, because of lighting problems, but it was not affected by the colour change. From November 29, 2010 to December 3, 2010, the applicant was on three other workstations at which he testified he could cope with little or no difficulty.

75It appears to me on the evidence that the applicant regarded the colour change as the culminating incident that triggered his departure from work. He stated that, by December, 2010, “I'd had enough, crying, sorrow--I had raised the issue and nothing had been done-- I called the [Human Rights Legal Support Centre].”

76The applicant left work on or about December 3, 2010. He felt that he was “on the verge of a nervous breakdown”. On December 6, 2010, he filed a claim for Workers’ Compensation for “work related stress”. Because his own doctor was away at the time he needed to file a medical report for Workers Compensation, he attended a walk-in clinic. The doctor there completed a form (Exhibit 6), indicating that the applicant complained of stress at work, ongoing harassment, anxiety, depression, insomnia and lack of appetite, and prescribed Ativan and Sertraline, respectively antianxiety and antidepressant medication. A form (Exhibit 8) completed by the applicant's own doctor on December 15, 2010 contains a “diagnosis/working diagnosis” of “mental stress secondary to verbal abuse” and a treatment plan for psychiatric counselling.

77On December 17, 2010, the applicant attended a meeting with Ellen Purchase, the corporate respondent’s “WSIB specialist”, and Sharon Doran (described by the respondents only as “from the Engine Plant”). At that meeting the applicant complained about the remarks allegedly made by the personal respondent in August of 2010, about the personal respondent poking him in the ribs with a T-jig and about the change to the Dunnage computer involving a red background, which the applicant could not read. He also contacted the corporate respondent’s Employee Assistance Program. He attended a day hospital program, receiving group therapy, for a two-week period in late January to early February of 2011.

78The applicant’s Workers’ Compensation claim, characterized by the Workplace Safety and Insurance Board (“WSIB”) as “traumatic mental stress” was denied by letter of March 10, 2011 (Exhibit 5). The letter indicated that “[w]orkers are not entitled to benefits for traumatic mental stress that is a result of the employer’s employment decisions or actions. Workers who develop mental stress gradually over time, due to general workplace conditions, are not entitled to benefits.” The reason given for the denial of the claim was that the WSIB officer was “unable to establish proof… that a certain and unexpected traumatic event occurred.”

79After he was refused Workers’ Compensation, the applicant filed a claim with the corporate respondent’s insurer for short-term disability benefits dated March 28, 2011. The form, Exhibit 8, contains a section filled out by the applicant’s doctor. In the section relevant to diagnosis, the applicant’s doctor wrote “adjustment reaction” and “stress”, as well as “bullying at work” and “work environment permits verbal abuse”.

80Ms. Maxim-Redfern, a Disability Management Facilitator for the respondent, met with the applicant in March of 2011 when he contacted her to discuss submitting his claim for short-term disability benefits. Ms. Maxim-Redfern took contemporaneous notes of her interactions with the applicant, which she referred to during her testimony as an aid to her memory, and which the respondent submitted in evidence (Exhibit 37). These notes refer to the applicant as “emotional teary eyed at times”, or “agitated”, “hands shaky” and indicate that the applicant discussed “issues of colour blind at start of hire, citing numerous times he has dealt with this at [work] and shouldn’t have to keep dealing with it”. Exhibit 37 also indicates that the applicant discussed the allegation of being poked in the ribs with a jig. With the permission of the applicant, Ms. Redfern reviewed the applicant’s claims for Workers’ Compensation and short-term disability; Ms. Maxim-Redfern noted, and Exhibit 37 reflects the relevant medical reports of “bullying at work” and “work environment permits verbal abuse”, as well as “moderately (sic) to severe limitations with ability to respond appropriately to usual daily pressures/stressors, and ability to interact with others, ability to relate to co-workers and team leaders”.

81Ms. Maxim-Redfern at first understood the applicant to have stress at work, but he also notified her concerning his colour blindness in their second conversation. She stated that she told him she would need clear information about his limitations and restrictions pertaining to work, and asked him to obtain a specialist’s report in regard to his eyesight. She got this report a few weeks later (Exhibit 10). She then arranged that the applicant met with the company physician, who produced a Health Status Report. Ms. Maxim-Redfern attended this interview.

Investigation of the applicant’s December, 2010 complaints

82In January of 2011, Mr. Moulding contacted the applicant to ask him to come in to discuss his absence from work. The applicant advised him that he was in therapy and would be prepared to come in when his therapy was complete. At some point after this, Mr. Moulding was informed about the meeting of December 17, 2010 between the applicant, Ms. Purchase and Ms. Doran. He reviewed Ms. Doran’s notes of the meeting and in this way became aware of the applicant’s allegations concerning his difficulty with the change to the Dunnage computer, and the personal respondent’s alleged remarks and assault with the T-jig.

83Mr. Moulding met with the applicant in the middle of February 2011, and investigated these allegations during March 2011. Mr. Moulding interviewed Ms. Pilon, Mr. Bulgarski and the personal respondent concerning the applicant’s allegations.

84Mr. Moulding stated that his notes of this investigation, submitted in evidence by the respondent (Exhibit 24), accurately reflected his investigation.

85Mr. Moulding interviewed Ms. Pilon on March 20, 2011. Mr. Moulding’s testimony and his notes from the interview indicate that Ms. Pilon was asked if she recalled the discussions surrounding new software being added to the computers on the block line:

specifically regarding the colours that were displayed on the computer monitors. Claudette said that she did recall some discussion regarding colours, said that when the screen was scrolled associates could not see the red rejections…she did not recall Allan S saying anything specific...Claudette was asked if she had ever seen any inappropriate comments being made towards Allan S—she said no, said that she has not seen anything inappropriate being said to anyone, stated that everyone she works with is pretty respectful and they do not cross the line… Commented that Allan S has a hard time seeing and people usually jump in to help him out.

86Mr. Moulding interviewed the personal respondent on March 22, 2011. Mr. Moulding’s interview notes contain the following entries:

Jim did not recall Alan S raising any concerns or difficulties with the colours, says that Allan S may have said something, but he did not recall anything specifically nor did Jim recall making any comments towards Allan S. Jim was asked if he would have ever poked Allan S with a jig. Jim responded by saying that at some point he may have poked Allan S., but it would have been in a joking manner. Jim does not recall poking Allan S.

87I asked Mr. Moulding if he had considered the personal respondent’s remark that the applicant “may” have said something and that he “may” have poked the applicant. He indicated that he understood the personal respondent to have been stating that while he may have poked the applicant, it had not been at the time that the applicant had brought to his attention as a complaint. He stated that he was focused on the allegation about the remarks and the alleged incident with the T-jig on August 24, 2010.

88Mr. Moulding interviewed Mr. Bulgarski on March 22, 2011. Mr. Moulding’s testimony and interview notes indicate, among others points, that Mr. Bulgarski did not recall “Allan S” raising any specific concerns about the colour change on the computer.

89On March 24, 2011, Mr. Moulding interviewed Bill Penwarden, an individual whom he identified in testimony as a co-worker of the applicant who was part of the “block line” on which the applicant worked. Mr. Moulding’s interview notes indicate that Mr. Penwarden stated that “in general all associates on the block line are respectful to each other”, but “from time to time some comments may be made, but they are not meant to be hurtful”… “does not recall seeing anyone picked on.” Mr. Moulding’s notes indicate that Mr. Penwarden stated that he had never seen “Allan S being treated with disrespect”. In cross-examination, he stated that he did not ask for details about the “comments” mentioned by Mr. Penwarden, because Mr. Penwarden had stated that he had never seen the applicant being treated with disrespect.

90Mr. Moulding’s evidence was that, having completed his investigation he “determined that the applicant’s complaints about [the personal respondent] could not be substantiated”. He also “concluded that Sears had not raised any concerns to Bulgarski or HCM management” in respect of the changes to the Dunnage computer, “nor had he ever requested any accommodation with his reading”.

The accommodation process

91The applicant’s claim for short-term disability benefits was denied by letter dated May 17, 2011 (Exhibit 9). The letter indicates that the terms and conditions of the corporate respondent’s group policy confine eligibility for benefits to situations in which an employee “is considered totally disabled… to do the essential duties of his/her own occupation”, and is “following appropriate treatment for the disabling condition since the onset of the illness”. The letter indicates that the respondent’s insurer was “unclear as to the extent/severity of [the applicant’s] symptoms and how they would prevent you from working while continuing treatment. The information provided does not indicate details of the treatment regime which would to address (sic) your condition and is insufficient to provide a description of symptoms that would preclude your ability to perform the essential duties of your occupation as a production associate.”

92The applicant admitted that he refused permission for the representative of his workplace’s insurer to speak to his doctor. The applicant said that the doctor would just have affirmed what he had already told them. He also admitted that he had failed to follow up on the refusal of benefits: he did not ask his doctor to put certain requested information in writing because he had decided to start the process of going back to work. He stated that, at that point he had been assured that “the harassment would stop” and that he would be accommodated, referring to conversation with Ms. Maxim-Redfern. He also stated that he did not appeal because “Rafeena” (the signatory of the denial letter) had stated that an appeal would take six months, and he had no money coming in.

93Ms. Maxim-Redfern testified that the corporate respondent’s practices with regard to accommodation is that there is a preference to return the individual to his or her own job with accommodation. If this is not possible, a suitable job is sought outside that area, with the search extending plant-wide if necessary, and with the possibility of retraining if no position is found.

94Ms. Maxim-Redfern stated that the applicant indicated that there were 3 out of the 5 functions he performed in his current job that he could do and that 2 functions needed accommodation. She attended at the applicant’s work area with the applicant, the relevant health and safety representative, and the applicant’s Department Manager (Mr. Potts), and prepared a report (Exhibit 39), which was completed by August 18, 2011.

95The applicant returned to work on modified duties on June 20, 2011, pending accommodation measures to enable him to meet various requirements of the job.

96The applicant stated that, on July 15, 2011, he asked Ian Schepers, Engine Plant health and safety representative, when the improved lighting that he had requested would be installed. The applicant alleged that Schepers stated that “it was not going to happen.” The parties agree that applicant sent a letter dated September 20, 2011, to Mr. Schepers and Ms. Maxim-Redfern about this. When Mr. Potts approached Schepers, Schepers told him that he had never said that. Mr. Potts testified that the responsibility for authorizing the accommodation measures was his, not Mr. Schepers. Mr. Potts told the applicant that the lighting changes were going to go forward as planned.

97The applicant gave uncontradicted testimony that, on July 25, 2011, the applicant was asked by his team leader, Jason Overland, to cover the lunch break on the Dunnage computer. He stated that he told Mr. Overland about his work restrictions and said that he could cover lunch as long as he would have support if he had a “nonconforming block”. He was told that an individual named Jim McKenzie would be available if this happened. When a nonconforming block came in at about 12:10 PM, Mr. McKenzie was about 25 feet away and the applicant called him and waved him over. Mr. McKenzie put his arm up and walked away to converse with an employee named Steve Bendo for approximately 10 minutes. When he finally came back, applicant called him again. The applicant stated that Mr. McKenzie looked at him, turned his back and proceeded to do other work. Later, another machinist came over and assisted.

98The applicant gave uncontradicted evidence that, on July 26, he spoke about the incident of July 25 with Mr. Moulding and Mr. Wilson. He testified that Mr. Moulding never got back to him. Mr. Moulding testified that the applicant told him about this incident and that he advised the applicant not work outside his restrictions. I asked Mr. Moulding if he had followed up with anyone involved in asking the applicant to work outside of his restrictions. He indicated that he “may have spoken to Amy Maxim-Redfern about the event”, but had not spoken to anyone whom the applicant had identified as being involved. Mr. Potts testified that he had no recollection of the applicant being asked to work outside his restrictions.

99Ms. Maxim-Redfern confirmed that the applicant had complained about the incident of July 25, 2011, and had indicated that he was not willing to attempt this function again, as he had not received the assistance he needed.

100Mr. Moulding and Mr. Potts met with the applicant on August 16, 2011, to advise him of the outcome of the investigation into his allegation concerning the personal respondent. Mr. Moulding indicated that the applicant requested that he not have to work with the personal respondent again. Mr. Moulding referred to his notes, which state that “Sears was advised that we could not accommodate this request, however, Sears was provided the opportunity to change to the opposite shift and remain in the same work area. Sears indicated that he would consider the change but did not make a decision at that time.” Later in cross-examination, Mr. Moulding clarified that “change to the opposite shift” meant being assigned to work with a different group of individuals that did not include the personal respondent.

101Accommodation measures eventually included changes to the computers, training for the applicant on how to adjust the screen presentation, special lighting and a magnifying glass on a stand. Mr. Potts testified that the applicant approved all the changes. He indicated that the cost of the changes totalled approximately $10,000. All of the changes were in place by the end of November, 2011. Mr. Potts stated that, in the course of making the changes, light that had been ordered came in with the wrong voltage and the replacement lights did not arrive until approximately November 18, 2011.

102Ms. Maxim-Redfern indicated that she did not hear of the applicant having further difficulties after November, 2011.

Conclusions in respect of allegations of discrimination prior to termination of employment

Discriminatory working conditions

103Part 1 of the Code, which includes s.5, sets out the basic right to equal treatment and the right to be free of discrimination. Section 11 expands upon the term “discrimination” as used in Part 1 by setting out a definition of and a prohibition against “constructive discrimination” that pertains to all areas and grounds set out in Part 1. Section 11 focuses on situations “where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination” (emphasis added). A breach of s.11 can occur regardless of the intention of the respondent.

104Subsections 11(1)(a) and (b) set out the defences available to the respondent. Subsection 11(1)(b) provides a defence where a specific provision of the Code indicates “that to discriminate because of such ground is not an infringement of a [Part 1] right”. Subsection 11(1)(a) provides for a more complicated inquiry; the respondent may establish that the relevant “requirement, qualification or factor” is "reasonable and bona fide in the circumstances”.

105When dealing with s. 11(1)(a), it is important to note that, although the terms “reasonable” and “bona fide” are often linked with each other and with “accommodation to the point of undue hardship”, the three terms are distinct and the language is conjunctive. The wording of s.11 indicates that if a respondent cannot establish “reasonableness” the inquiry stops there; the respondent has failed to establish a defence.

106If reasonableness is established, the inquiry goes on to examine bona fides. If bona fides cannot be established, the inquiry stops there; the respondent has failed to establish a defence. The duty to accommodate is set out as the final consideration, in s. 11(2). Only if reasonableness and bona fides, considered independently, are established does the inquiry move on to look at whether the respondent has offered accommodation to the point of “undue hardship” for the purposes of s. 11(2).

107There is considerable appellate jurisprudence that defines both “reasonable” and “bona fide” for Code purposes (see for example Ontario (Human Rights Commission) v. Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 at pp. 208-09, Caldwell v. Stuart, 1984 CanLII 128 (SCC), [1984] 2 S.C.R. 603 at pp. 622-23, Brossard (Ville) v. Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279 at pp. 310-12, Central Alberta School District # 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, British Columbia (Public Service Employee Relations Commission v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”)).

108The main source of the applicant’s difficulty with his employment during the time period at issue in this Application was his difficulty in accurately reading small print and his inability to discern flaws indicated on the computer screen by use of the colour red. In the words of s.11, the “requirement” that he read accurately in these circumstances was “not discrimination on a prohibited ground but result[ed] in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination”.

109In this case, a number of matters important to the s.11 analysis are not disputed. There is no dispute that the requirement to read the computer screen accurately in these conditions existed, and that it disadvantaged the applicant because of his myopia and colour blindness, reasons connected to a ground of discrimination under the Code. There is therefore a prima facie breach of s.5 of the Code, subject to the establishment by the respondent of a defence as noted in s.11.

110The applicant has not taken issue with the respondent’s position that the change in colour was undertaken to respond to difficulties with the display experienced by his co-workers and was therefore reasonable and bona fide to that extent. The applicant’s position focuses on the final aspect of “reasonable and bona fide” for the purposes of s.11; he maintains that the corporate respondent did not, until the end of November, 2011, offer accommodation to the point of “undue hardship” for the purposes of s. 11(2).

111The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see Meiorin, above, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, at paras. 22 and 42-45. More recently, the Divisional Court in Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 at paras. 106, 107 and 112, applied this approach in a decision under the Code.

112Successful accommodation of disability in employment requires knowledge of the requirements of the job and knowledge of the effect of the disability on the worker’s ability to perform that job. Clearly, the employer has the most knowledge of the job requirements. The worker also has knowledge of the job requirements when he or she has actually performed it. This knowledge complements that of the employer, and in fact may add practical detail, derived from actually performing the job in the relevant conditions, of which the employer is unaware. The worker who has a disability has the most knowledge of how the particular disability affects him or her, and affects his or her performance of the job. The employer may also have knowledge of how the particular disability appears to affect the worker’s performance of the job, and in some circumstances this may involve facts of which the worker is unaware. Finally, the knowledge of the employer, the worker, and in some cases other individuals (such as doctors, nurses, ergonomists, providers of ameliorative devices, etc.) may be required to devise an appropriate accommodation. These are among the reasons why appropriate accommodation of disability in employment is often described as a collaborative process.

113In an ideal employment world, the employee understands that s/he has a right to accommodation, and the employer understands its responsibilities under the Code. The employee makes a clear request for accommodation to an individual charged with this management responsibility, and this starts a cooperative process by which accommodation, to the point of undue hardship, is devised. There is no guarantee, however, that conditions will be ideal in all cases. The situation may be complicated by unclear communication on the part of the employee (which may itself be a function of disability) by an employer’s limited understanding of its responsibility, and by particular aspects of the employer’s system of delegated responsibility in respect of accommodation. In my view, the evidence establishes that all of these complications were at play in this situation.

114The evidence shows that the applicant did not formally request accommodation. However, the procedural duty to accommodate indicates that an employer cannot passively wait for an employee to request accommodation where it is aware of facts that indicate that the employee may be having difficulties because of disability; there is a duty to take the initiative to inquire in these circumstances.

115A number of decisions of this Tribunal, as well as other tribunals applying human rights legislation, have considered when a respondent can be said to have enough knowledge of an applicant’s disability to trigger responsibilities under human rights legislation. Most of these decisions have arisen in the context of identifying when the employer has a duty to accommodate. Most decisions indicate that the claimant will not be held to a high standard of clarity in communication. This approach is in keeping with the principles enunciated by the Supreme Court of Canada in respect of the need to interpret human rights legislation generously and purposively. Liability has been found when an employer had no knowledge of the disability. See, for example, Re Ottawa Civic Hospital, (1995) 1995 CanLII 18382 (ON LA), 48 LAC (4th) 388, [1995] O.L.A.A. No. 60 (QL), at p. 398, in which an arbitrator concluded that there can be a breach of the Code if an employer fires an employee in ignorance of the disability that caused problems, and refuses to reinstate a disabled employee once the disability becomes known to the employer. Also see Willems-Wilson v. Allbright Drycleaners, (1998) 1997 CanLII 24821 (BC HRT), 32 C.H.R.R. D/71 (B.C. Trib.). There are several decisions in which the employee gave little or no information about the disability, beyond an indication that a disability existed. See Bielecky v. Young, Macnamara (1992), 1992 CanLII 14291 (ON HRT), 20 C.H.R.R. D/215, 12 L.W. 1237-003 (QL) (Ont. Bd.Inq.); Belliveau v. Steel Co. of Canada (1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250 (Ont. Bd.Inq.); Koeppel v. Canada (1997), 32 C.H.R.R. D/107, 1997 CanLII 1443 (Can. Trib.); and Conte v. Rogers Cablesystems Ltd. (1999), 36 C.H.R.R. D/403, 1999 CanLII 1022 (Can. Trib.)

116In Wall v. Lippé Group, 2008 HRTO 50, the respondent employer had knowledge of an event which had occurred in the workplace which was traumatic to the applicant, knew that she was upset and had sought medical attention, and knew that she had requested three months’ leave on the advice of her doctor. The Tribunal concluded that the respondents had a duty to inquire further in these circumstances:

If this was not sufficient to put them on actual notice that Ms. Wall was suffering from a disability, at the very least, it placed on them the onus to inquire further and precluded any defence based on ignorance of Ms. Wall’s condition: Davis v. 1041433 Ontario Ltd. (No. 2), 2005 HRTO 37, at paras. 67-68; Allan v. Singh (1993), C.H.R.R. D/337 (Ont. Bd. Inq.) at paras. 25-27 and 32. As stated in other cases dealing with the test for establishing a prima facie case of discrimination, the question is whether the respondents knew or ought reasonably to have known that the complainant was suffering from a disability. For those purposes, there is no absolute requirement that a complainant communicate the nature of the disability to her or his employer: Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse (2002), 2002 BCHRT 14, 43 C.H.R.R. D/55; 2002 BCHRT 14, at para. 35 (summarizing the authorities). In those terms, the respondents should reasonably have known that Ms. Wall was suffering from a disability.

117The evidence indicates that workplace accommodation by the corporate respondent is triggered by an indication from the company physician that there is a “permanent impairment” (“PI”). Ms. Maxim-Redfern confirmed that the term is confined to situations in which a disability is acknowledged to affect the work situation of the employee, so that while a disability may be “permanent” in any usual sense of the word, there is no official recognition of the existence of the disability unless the corporate respondent acknowledges that it affects the employee’s work situation. The PI process can be triggered by an employee requesting accommodation, by the respondent’s insurance carrier when it brings a disability to the corporate respondent’s attention, or by a third person such as a supervisor, who has noted the need for accommodation.

118The applicant repeatedly stated that “management knew” about his difficulties in reading small print, and also knew that changing the colour display on the monitor in 2010 would cause him further difficulties with his work. The applicant’s belief was based in part on the facts of his history with the corporate respondent. He knew that the corporate respondent had notice of his vision-related disabilities, including colour blindness, dating from 2001. He had in the past (2009) complained about harassment by his immediate supervisor, Mr. Arsenault, based on his visual disabilities, and the corporate respondent had records of this. (Although it did not find that the alleged harassment had occurred, there can be no question that the corporate respondent was aware of the existence of the disabilities.)

119In part, the applicant’s belief was also based on his erroneous assumptions about the “management” status of Ms. Pilon, who, as noted above, was aware that the applicant had “vision issues”. The applicant understood Ms. Pilon to be a subforeman, but Ms. Pilon’s evidence was that she did not have formal supervisory position (for example, she was never involved in discipline) although she occasionally worked as a “sub leader” and went to management with employees’ concerns.

120While I believe that the applicant was sincere in stating his recollection about raising his concern with Mr. Bulgarski, it appears to me to be more likely than not that, he is mistaken in his recollection. Taking the evidence as a whole, including that of the corporate respondent’s practices as discussed below, I have no reason to doubt Mr. Bulgarski’s statement that he was unaware of the applicant’s colour blindness until March of 2011. Without a clear objection from the applicant, Mr. Bulgarski was unaware of the difficulties the change would impose.

121When asked why he did not report his difficulty with the colour change to anyone other than Mr. Bulgarski, the applicant said that nothing would be done. He referred to the 2009 investigation undertaken in respect of the remarks by his supervisor, Mr. Arsenault - the “blind dog” incident. To respondent counsel's indication that Mr. Arsenault had apologized, he responded to the effect that an apology is meaningless when Mr. Arsenault denied having made the remark in the first place.

122The applicant also gave uncontradicted evidence that he often had to bring print close to his eyes, and had to ask for help with his work (as noted above, this evidence was supported by Ms. Pilon and Mr. McClenaghan). When asked again why he would not flag the problem with his team leader, Mr. Arsenault, he stated “they were aware.”

123It appears to me that the applicant was and remains angry and resentful. I accept that he did and does in fact believe that the corporate respondent knew that changing the colour display would cause difficulties for a colour blind employee such as himself, but that they did not care.

124I note parenthetically that the applicant has submitted some evidence, set out in detail above, that by mid-December, physicians involved in his care had diagnosed “mental stress secondary to verbal abuse” and recommended psychiatric counselling. However, the applicant did not claim that his mental state reduced his ability to request accommodation in 2010, and submitted no medical evidence that indicated that this was the case.

125I find that, while he had given information about his disabilities to the corporate respondent during his employment and therefore sincerely believed that he had brought his difficulties to the attention of management employees, the applicant did not in fact report his difficulties with respect to the colour changes to the Dunnage computer through any of the official channels (such as an Associate Concern form) that were part of the corporate respondent’s system for requesting accommodation of disability. He did not report his difficulties directly to medical staff. His earliest communication about the problem with the Dunnage computer through the official channels maintained by the respondent occurred shortly after he left his employment on December 3, 2010.

126The evidence indicates that the colour changes to the Dunnage computer were put in place sometime between the first week of October and the end of November 2010. The evidence of Mr. Bulgarski is that the changes were discussed during the late summer of 2010. The corporate respondent did not initiate an accommodation process for the applicant until June of 2011.

127At what point did the corporate respondent have a responsibility to address disability-related accommodation?

128Based on the above-noted jurisprudence, it is fair to say that the procedural duty to accommodate, including the duty to inquire into the situation of the person needing accommodation, can arise without a specific request for accommodation by the individual in circumstances in which there is reason to believe that the individual is having difficulty in an area included in Part 1, because of personal characteristics protected by the Code. In respect of the events at issue in this Application, the procedural duty arose when the corporate respondent had reason to believe that the applicant was having difficulties reading the print on his computer. When did the corporate respondent know enough to have a duty to inquire into the possibility that the applicant might require accommodation?

129The corporate respondent had written notice of the applicant’s colour blindness, nearsightedness and myopic degeneration, as well as his loss of high-frequency hearing in his left ear, as early as 2001. Further written confirmation in respect of visual disabilities, which was not disclosed by the corporate respondent but which is noted in the respondents’ disclosed evidence (Exhibit 37), was apparently had via a doctor’s letter of July 20, 2003, confirming a diagnosis of “myopic degeneration and high myopia”. The evidence also indicates that the applicant’s difficulties caused by myopia were clearly apparent and demonstrated by work habits that included bringing his face very close to print (or vice versa) and asking for help with his work. The evidence indicates that this behaviour was evident throughout the relevant period. I conclude that the procedural duty to accommodate the applicant’s myopia existed from the beginning of the period relevant to this Application.

130A number of individuals within the structure of the corporate respondent had full information about the applicant’s disabilities. Ms. Maxim-Redfern testified that she had full access to the applicant’s medical records, as did the company physician. Mr. Moulding of Human Resources knew about the applicant’s visual disabilities, including colour blindness, from at least 2009. Mr. Moulding’s testimony indicated that, while it was part of his job to deal with performance issues and possible discipline, he did not understand it the part of his duties to deal with accommodation. If so, this aspect of the corporate respondent’s system creates a potential problem with addressing issues related to accommodation within this workplace. In the workplace, a need for accommodation may manifest at first as a difficulty that an employee is having with the requirements of the job or with other employees, a situation that may lead to discipline-related inquiries as it did in this case. It is predictable that an individual such as Mr. Moulding who deals with complaints that may lead to discipline may be presented with information that indicates that accommodation is required, or has not been adequately provided.

131Having said the above, it is not clear that Ms. Maxim-Redfern or Mr. Moulding had knowledge of the colour change to the Dunnage computer. However, I find it more likely than not on the evidence that two individuals within the corporate respondent’s management structure were aware of both the Dunnage computer changes and the applicant’s visual disabilities.

132The applicant’s visual disabilities, including his myopia and colour blindness, were known to Mr. Potts, the applicant’s Department Manager, in 2009, according to Mr. Moulding’s testimony and to Mr. Moulding’s notes of a meeting held with Mr. Potts and the applicant on September 14, 2009 (Exhibits 19-21). There was no evidence directly on point concerning Mr. Pott’s advance notice of changes to the Dunnage computer, but I conclude from the evidence, including the evidence of Mr. Bulgarski, that these changes were discussed in the department in 2010, and that Mr. Potts was aware of the change before it was implemented. There is no evidence that Mr. Potts initiated any inquiry into whether the applicant might require accommodation, either in 2009 or later in 2010 when colour changes to the Dunnage computer were discussed and implemented.

133The person who was in the best position to ensure that the corporate respondent met the requirements of the procedural duty to accommodate was Mr. Arsenault, the applicant’s immediate supervisor at the time relevant to this Application. Mr. Arsenault was not called as a witness.

134The corporate respondent’s evidence concerning knowledge on the part of Mr. Arsenault of the applicant’s visual disabilities is somewhat less than clear. Mr. Moulding’s written summary of a meeting with Allen Arsenault and Doug Wilson, dated January 11, 2011 (Exhibit 22), which he discussed in giving his testimony, states “neither of you were aware of any requests for accommodation”. The summary also states “you were not aware of any specific vision problems”, which is difficult to reconcile with the subsequent acknowledgment that Mr. Arsenault, against whom the applicant had filed a complaint of harassment related to his visual disabilities in 2009, was aware of a “sight issue”, had “heard about” the applicant’s colour blindness and had “observed that he wears thick glasses”. Mr. Moulding’s adopted witness statement in fact states that Mr. Arsenault admitted to him in September of 2009 that he (Arsenault) knew that the applicant was “near sighted”.

135Mr. Arsenault was not called as a witness, and therefore there is no testimony from him as to what he knew about the applicant’s disabilities. In my view, the fact that the respondent did not call Mr. Arsenault, together with the evidence available to me, warrants an adverse inference with respect to his knowledge of the applicant’s situation. Exhibit 22, while not clearly worded, appears to acknowledge that Mr. Arsenault had been aware of the applicant’s visual disabilities, which included colour blindness, since 2009. The September 2009 meeting referenced in Exhibits 19-21 was occasioned by a complaint by the applicant against Mr. Arsenault of harassment related to visual disability. I find it more likely than not that Mr. Arsenault was informed about the nature of the applicant’s visual disabilities, including colour blindness, as early as September of 2009.

136There is uncontradicted evidence from the applicant and from several of the corporate respondent’s witnesses that the applicant received help with his work when his visual problems gave him difficulty, both before and after the colour change to the Dunnage computer. This, and the applicant’s habit of raising his glasses and holding his face close to print he was required to read, should have prompted Mr. Arsenault to make inquiries as to whether the applicant needed accommodation. Further, as the applicant’s immediate supervisor, Mr. Arsenault should have realized that the colour changes to the Dunnage computer were very likely to have caused difficulties for the colour blind applicant, at the time the changes were discussed in the late summer of 2010, and should have made inquiries about the need for accommodation at that time. However, there is no evidence that he initiated any inquiry.

137The corporate respondent has no written policy specifically directed to identifying and dealing with the need for accommodation related to personal characteristics protected by the Code. There were two documents referred to by the parties as comprising the corporate respondent’s written policy relevant to the accommodation of disability. The first is a document entitled “Honda Philosophy” (Exhibit 27), parts of which the respondent requested be labelled as Exhibits (28 and 29). There is also a brief “Discrimination and Harassment Policy Statement”, produced in evidence by the applicant, among the corporate respondent’s “General Plant Policies”.

138“Honda Philosophy” (Exhibit 27) is very generally worded. It is clearly not specifically directed to discrimination as defined by the Code. It does contain instructions for “Associates” who wish to discuss “concerns of a sensitive or confidential nature that you do not feel comfortable discussing with your Team leader”, and sets out an “Associate concerns process”, and a “Compliance and Ethics process” to be followed by employees at the applicant’s level. The “Discrimination and Harassment Policy Statement”, which is less than a page in length, is incorporated into this document. It indicates that harassment or discrimination based on most of the grounds listed in the Code (the document omits gender identity and gender expression, and refers to disability as “handicap”) “is strictly forbidden”. The Statement provides very brief definitions of the terms discrimination and harassment. Employees are instructed that they should “tell the individual who is doing the harassing, very clearly, that the behaviour is not welcome”, keep notes about what happened and report the problem to their “Team Leader or to Associate Services”. The Statement is clearly not directed to management employees in that it does not address the responsibilities of management employees in relation to the procedural duty to accommodate.

139The accommodation system described in the course of the hearing appeared to be focused on only “permanent impairment”. The evidence indicates that, in most situations, the onus for identifying a need for accommodation rests entirely on the employee, who is expected to use the “Associate Concern” process or to approach a supervisor or medical staff. The evidence discloses no clear written information for employees or management personnel about accommodation. The system used by the corporate respondent to deal with employee health issues also features a number of information silos of which employees may be unaware. This complicates the onus on the employee, and compromises the potential for adequate response by the corporate respondent. The evidence in this Application illustrates some of the predictable problems with the corporate respondent’s system.

140As noted above, the applicant’s 2001 employment medical examination form, which indicates that the applicant’s eyesight, even with correction, was 20/40 and that the applicant had some loss of high-frequency hearing in his left ear, was signed by a doctor employed by the respondent. The form (Exhibit 2), concludes with a heading, “Patient Disposition”, that has several statements preceded by boxes to check off. Exhibit 2 contains a check mark beside a statement that “the examination is essentially normal and no further action is necessary”. Ms. Maxim-Redfern testified that when this statement is checked, there is no follow-up by the respondent in respect of possible accommodation needs, regardless of the disabilities that might be indicated in the previous part of the form.

141Mr. Leigh of the corporate respondent's human resources department testified that it is the doctor who makes the determination as to whether accommodation is required— “assigning a permanent restriction is up to the medical department”. Leaving this determination to the doctor alone can cause predictable difficulties with identifying a need for accommodation early in employment. Except in the most obvious cases, a candidate for employment is not in a position to know in advance whether s/he will require accommodation, as s/he would predictably lack knowledge of the detailed requirements of the job. The candidate may, like most people, be unaware of the concept of accommodation, and unfamiliar with how to arrange it. Communications difficulties, which can range from simple diffidence to language barriers, can further complicate the situation. On the other side of the desk, the company’s doctor cannot possibly be familiar and up-to-date with all of the requirements of all the jobs in the organisation.

142In response to the question as to whether colour blindness would be considered something that would have an impact on work, Mr. Leigh indicated that a new employee would never be placed in a position in which colour blindness would cause difficulties - he indicated that the ability to distinguish colours was only required at the final inspection stage, and since this is a position that must be applied for and requires experience with the corporate respondent, a new employee would not be placed into that position. Mr. Leigh also indicated that a form that indicated that the medical examination was “essentially normal”, as was the case with the applicant, “means the associate can be placed anywhere we have a vacancy”.

143Whether or not Mr. Leigh was correct in his understanding that colour blindness would have no impact in jobs other than the final inspection stage, the evidence shows that the corporate respondent used red in its computer system to indicate defects in parts. As noted above, witnesses involved with the applicant’s area of work understood that “red is for defects”.

144Later in an individual’s employment with the corporate respondent, responsibility for raising the need for accommodation rested on the employee or on his or her supervisor.

145Mr. Leigh and Mr. Moulding testified that employees’ medical records are stored separately from their work records in recognition of the confidentiality of that information, and that only the company physician and “nurses who work in that area” have access to that information. Mr. Leigh indicated that no one else in any department had any knowledge of the contents of these medical records. He indicated that if an employee encounters problems with work related to a medical condition, he or she is expected to report the medical department and seek an accommodation.

146Both Ms. Maxim-Redfern’s and Mr. Moulding’s evidence was that, because of privacy concerns, the corporate respondent keeps information relevant to employees’ disabilities in more than one place, and that access to this information varies according to job function. Ms. Maxim-Redfern testified that no one outside of the respondent’s Health Department had access to the medical records from the hiring process. Supervisory employees, or employees of the respondent’s human resources Department such as Mr. Moulding, did not have access to these records.

147While maintaining the privacy of employee health information is an important concern, and is required by law, the corporate respondent’s system creates some predictable problems where an employee who needs accommodation does not make a formal request. Some of these problems could have been avoided if the corporate respondent’s system had allowed for suitable disclosure to relevant supervisors with employee consent.

148As noted above, the corporate respondent has no policy dealing with its responsibility to accommodate and setting out expected roles for supervisory and other staff. There is also no evidence that the corporate respondent has briefed supervisors (or, indeed, other staff such as Mr. Moulding) about their duty to inquire when a need for accommodation comes to their attention.

149To initiate accommodation relating to disability, an employee must of course be prepared to disclose information about the relevant disability to someone in authority. An employee who has already disclosed his or her disabilities to the employer may not be aware that s/he must do so again. In this case, the applicant had reason to believe that his employer knew that he had disabilities that made his job more difficult, and he did believe this. While he has given no evidence of disability-related inability to initiate effective communication, and I have therefore found that he should have been more active in his own behalf, his belief that his employer simply declined to do anything about his disability-related difficulties was not unreasonable in the circumstances.

150I conclude that the corporate respondent initially failed in its procedural duty to accommodate in that, despite knowledge of the nature of the applicant’s disabilities, his attempts to work around problems caused by his myopia and his requests for assistance with his work, the applicant’s supervisors did not initiate any inquiry as to whether the applicant needed accommodation. I accept that the applicant left work as a direct result of the corporate respondent’s failure to meet its procedural duty.

151Inquiries relevant to accommodation were not initiated by the corporate respondent until several months after the applicant left work in distress in December of 2010. Actual accommodation of the applicant’s visual disabilities was not commenced until June of 2011. How much of that delay arose from the corporate respondent’s initial failure in respect of the procedural duty to accommodate?

152I accept the corporate respondent’s evidence that, when the applicant met with Ms. Purchase on December 17, 2010, she offered to have him meet with Dr. Brennan, the corporate respondent’s occupational medicine specialist. However, the applicant’s evidence, which is undisputed, was that he was receiving psychiatric treatment at that point, and he understandably declined the meeting until his mental state was more stable. Part of his treatment involved attendance at a day hospital program, receiving group therapy, for a two-week period in late January to early February of 2011. In January of 2011, Mr. Moulding contacted the applicant to ask him to come in to discuss his absence from work, but the applicant advised him that he was in therapy and would be prepared to come in when his therapy was complete. I find this reasonable in the circumstances, and there was no evidence that Mr. Moulding took issue with the applicant’s postponement of the meeting. There is no evidence that the corporate respondent approached the applicant after January of 2011. The applicant initiated a meeting with Ms. Maxim-Redfern in March of 2011 when he contacted her to discuss submitting his claim for short-term disability benefits. Ms. Maxim-Redfern took contemporaneous notes of her interactions with the applicant, which she referred to during her testimony as an aid to her memory, and which were submitted in evidence (Exhibit 37). These notes refer to the applicant as “emotional teary eyed at times”, or “agitated”, “hands shaky”.

153Given the health information already available to the corporate respondent, it appears to me that the accommodation process could have been commenced in March of 2011, but Ms. Maxim-Redfern’s decision to require the applicant to obtain a further specialist’s report in regard to his eyesight further delayed the process. The report (Exhibit 10) was dated June 9, 2011, so this is the earliest it would have been available to Ms. Maxim-Redfern. She then arranged that the applicant met with the company physician, who produced a Health Status Report dated June 15, 2011 (Exhibit 38).

154The applicant was off work without income from December 3, 2010 to June 20, 2011. He returned to work on June 20, 2011. Initial accommodation measures involved an investigation into what parts of his current job the applicant could not do, and a modification of those requirements, pending other accommodation measures to enable him to handle all of the requirements of the job.

155As noted above, the modified duties plan was not adhered to by the applicant’s team leader, Mr. Overland. The applicant gave uncontradicted testimony that, on July 25, 2011, he was asked by Mr. Overland to cover the lunch break and was placed on the Dunnage computer. The applicant reminded Mr. Overland about his work restrictions, but said that he could cover lunch as long as he would have support if he had a “nonconforming block”. He was told that an individual named Jim McKenzie would be available if this happened. When a nonconforming block came in at about 12:10 PM, Mr. McKenzie was about 25 feet away and the applicant called him and waved him over. Mr. McKenzie ignored this and walked away to converse with another employee for approximately 10 minutes. When he finally came back, the applicant called him again. The applicant testified that Mr. McKenzie looked at him, turned his back and proceeded to do other work. Later, another machinist came over and assisted.

156This time, the applicant did request assistance directly. The applicant gave uncontradicted evidence that, on July 26, he complained about the incident of July 25 to Mr. Moulding and Mr. Wilson. He testified that Mr. Moulding never got back to him. Mr. Moulding testified that the applicant told him about this incident and that he advised the applicant not work outside his restrictions. I asked Mr. Moulding if he had followed up with anyone involved in asking the applicant to work outside of his restrictions. He indicated that he “may have spoken to Amy Maxim-Redfern about the event”, but had not spoken to anyone whom the applicant had identified as being involved. Ms. Maxim-Redfern confirmed that the applicant had complained about the incident of July 25, 2011, and had indicated that he was not willing to attempt this function again, as he had not received the assistance he needed.

157The corporate respondent gave no evidence that anything was done to investigate this incident to see if any instruction or discipline was warranted. As noted in his adopted witness statement, Mr. Moulding felt that “no further action was required” beyond advising the applicant to “stick to work within his restrictions and to speak to me if he had any difficulty doing so.” There was no evidence that the applicant’s immediate supervisors were even informed that the incident had occurred. The relevant Manager, Mr. Potts, was apparently not informed; he testified that he had no recollection of the applicant being asked to work outside his restrictions.

158It appears to me that this absence of follow-up further reinforced the applicant’s impression that complaining would not result in any effective action by the corporate respondent.

159As indicated above, both his medical records and his interviews with Ms. Maxim-Redfern indicated that the applicant might be having mental health problems when he left work and in early 2011. Thus the respondent had information that should have triggered an inquiry into the nature of these problems and whether they might have affected the applicant’s ability to cope with the job or to clearly communicate needs for accommodation (see Wall v. Lippé Group, above). However, Ms. Maxim-Redfern did not divulge this information to anyone, nor did the applicant’s accommodation documents make any mention of stress or of any possible mental disability.

160The parties agree that, by the end of November of 2011, the corporate respondent met its duty to accommodate the applicant’s visual disabilities; it had put in place a number of changes to the computers, as well as ameliorative devices and training for the applicant on how to adjust the screen presentation.

Inadequate investigation of the applicant’s discrimination and harassment complaints

161It is well-established in the Tribunal’s jurisprudence that the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination.

162In the circumstances of this case, there are two instances of complaints of discrimination by the applicant. One complaint was investigated; the other was not subject to any investigation.

163As noted above, the applicant complained on December 17, 2010, at his meeting with Ms. Purchase and Ms. Doran about the remarks allegedly made by the personal respondent in reaction to the applicant’s complaint about the colour change on the Dunnage computer, and about the personal respondent poking him in the ribs with a T-jig, in August of 2010.

164At some point in January, Mr. Moulding was informed about the meeting of December 17, 2010 between the applicant, Ms. Purchase and Ms. Doran. He reviewed Ms. Doran’s notes of the meeting and in this way became aware of the applicant’s allegations concerning his difficulty with the change to the Dunnage computer, and the personal respondent’s alleged remarks and assault with the T-jig.

165As noted above, Mr. Moulding met with the applicant in the middle of February 2011, and investigated these allegations during March 2011. Mr. Moulding also interviewed Ms. Pilon and Mr. Bulgarski, neither of whom indicated that they had seen the incident alleged. He also spoke to a Mr. Penwarden, a co-worker who stated generally that he had never seen the applicant being treated with disrespect. Finally, he interviewed the personal respondent.

166Mr. Moulding’s evidence was that, having completed his investigation, he “determined that the applicant’s complaints about Proper could not be substantiated”.

167The second instance in which the applicant complained of behaviour amounting to discrimination was in July of 2011, when he approached Mr. Moulding and Mr. Wilson about the failure of his team leader, Mr. Overland, to adhere to the restrictions that comprised the corporate respondent’s initial efforts to accommodate the applicant.

168As noted above, the corporate respondent gave no evidence that anything was done to investigate this incident to see if any discipline was warranted. As noted in his adopted witness statement, Mr. Moulding felt that “no further action was required” beyond advising the applicant to “stick to work within his restrictions and to speak to me if he had any difficulty doing so”. There was no evidence that the applicant’s immediate supervisors were even informed that the incident had occurred. The relevant Manager, Mr. Potts, was apparently not informed; he testified that he had no recollection of the applicant being asked to work outside his restrictions. Mr. Moulding did not investigate or follow up with anyone involved in asking the applicant to work outside of his restrictions. He indicated that he “may have spoken to Amy Maxim-Redfern about the event”, but had not spoken to anyone the applicant had identified as being involved. Ms. Maxim-Redfern confirmed that the applicant had complained about the incident of July 25, 2011. There is no evidence that she took any investigatory or follow-up action. The applicant gave uncontradicted evidence that Mr. Moulding never got back to him.

169It is well-established in the Tribunal’s jurisprudence that the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination. See, for example, Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743; Olarte v. Commodore Business Machines Ltd. (No. 2) (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705; Persaud v. Consumers Distributing Ltd. (No. 1) (1990), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, Murchie v. JB's Mongolian Grill, 2006 HRTO 33, Bekele v. Cierpich, 2008 HRTO 7, Nelson v. Lakehead University, 2008 HRTO 41, Payette v. Alarm Guard Security Service, 2011 HRTO 109.

170In Laskowska, above, the Tribunal noted that the investigation is not held to a standard of perfection, and adapted (at para. 59) a version of the criteria used in Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44, to determine whether the corporate respondent had “reasonably and adequately” responded to an alleged incident of discrimination:

Awareness of issues of discrimination/harassment, policy, complaint mechanism and training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

Post-complaint: seriousness, promptness, taking care of its employee, investigation and action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

Resolution of the complaint (including providing the complainant with a healthy work environment) and communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

(emphasis present in original)

171As noted above, Mr. Moulding undertook an investigation in respect of the applicant’s first complaint. His interview notes indicated that the personal respondent admitted that “at some point he may have poked Allan S., but it would have been in a joking manner. Jim does not recall poking Allan S.” When I asked Mr. Moulding about the significance to him of the personal respondent’s remark, he indicated that he understood the personal respondent to have been stating that while he may have poked the applicant, it had not been at the time that the applicant had brought to his attention as a complaint. He stated that he was focused on the allegation about the remarks and the alleged incident with the T-jig on August 24, 2010. Mr. Moulding did not indicate whether he questioned the personal respondent about when this possible other incident with a T-jig might have been, and there was therefore no evidence to clarify whether Mr. Moulding might have understood it to be at a different time on August 24, on a different day in August or in a different month. I find this lack of follow-up difficult to understand, and difficult to square with a conscientious attempt to determine what had occurred.

172Mr. Moulding also “concluded that Sears had not raised any concerns to Bulgarski or HCM management” in respect of the changes to the Dunnage computer, “nor had he ever requested any accommodation with his reading”. He came to this latter conclusion without having interviewed the applicant’s immediate supervisor, Mr. Arsenault, and despite Ms. Pilon’s comment, reflected in his note, “that Allan S has a hard time seeing and people usually jump in to help him out”. In the light of Ms. Pilon’s evidence that “people” know that the applicant needed assistance, it is difficult to understand why he would not have interviewed Mr. Arsenault.

173The corporate respondent’s witnesses admitted that there was no investigation in respect of the applicant’s second complaint. It appears that they accepted the truth of the applicant’s allegation, but apart from placing the onus on him to resist any requests to go beyond his restrictions, they did no follow-up. They therefore passed up the opportunity to investigate whether supervisory employees involved in the applicant’s accommodation fully understood their responsibilities (or took them seriously), and to take appropriate action to prevent a repetition of the problem.

174Applying the criteria set out in Laskowska, above, to the circumstances of this case, I find that the corporate respondent did not have an adequate anti-discrimination/harassment policy, and a proper complaint mechanism; that is, one that adequately addressed common circumstances that might arise in cases of discrimination. The corporate respondent adduced its policies in evidence, but there is no evidence that adequate training was given to management and employees. I find that Mr. Moulding’s investigation of the applicant’s first complaint was inadequate, and did not meet the “reasonableness” standard. It is uncontested that the second complaint was not investigated, and there was no follow-up.

The applicant’s claim of harassment against the personal respondent

175The applicant alleges that the personal respondent, a co-worker, stated at a meeting said that the employer wouldn't alter the proposed change to the Dunnage computer just because one person out of six couldn’t see it. The applicant also alleged that, during that same shift and shortly after the meeting, the personal respondent walked up behind him and poked him in the ribs with a T-jig, and said “there are too many people in maching” (the area in which both worked) “--some are going to have to leave”.

176The personal respondent denied both making the alleged remarks and assaulting the applicant. As noted above, the personal respondent did not appear to me to be a reliable witness. However, there was no corroborating evidence; the witnesses identified by the applicant as being in the vicinity did not recall hearing the alleged remarks or seeing the incident with the T-jig.

177I do not think that in respect of these allegations the evidence concerning the alleged remarks was sufficiently convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall (above). In respect of the assault with the T-jig, the evidence is somewhat stronger, but it is not clear to me that there is sufficient evidence to link this behaviour with the applicant’s disabilities. As noted above, harassment in the workplace for the purposes of the Code is defined as “a course of vexatious comment or conduct … because of… disability”.

178In the circumstances I cannot conclude that the personal respondent harassed the applicant, as that term is defined in the Code.

II. Allegations of discrimination in respect of termination of employment

179On January 20, 2011, the applicant approached the Ontario Provincial Police (OPP) to file a complaint of assault against the personal respondent. He spoke to an officer, who, he testified, instructed him to contact witnesses and have them get in touch with the OPP. The applicant agreed in cross-examination that he went around to speak to other associates while they were working, although not while he was working.

180Mr. Moulding stated that the applicant asked him for a meeting and told him that he had filed an assault charge against the personal respondent as a result of “the alleged jig poking incident”, and that other incidents had occurred since December of 2010. Both the applicant and Mr. Moulding agree that the applicant declined to give details of the other allegations; the applicant testified that this was because Mr. Moulding had done nothing about his previous complaints.

181At a meeting (which occurred on February 3, 2012), the applicant asked the corporate respondent's assistance in contacting employees who were possible witnesses. Mr. Moulding denied any assistance. In his witness statement, which he adopted, Mr. Moulding stated that that the subject matter of the criminal complaint was “not an HCM matter”.

182Mr. Leigh, Mr. Moulding's direct supervisor, testified that he was advised by Mr. Moulding of the meeting of February 3, 2012. “Sears had requested Honda’s assistance in getting witnesses for a complaint he had made to the OPP” and had been told that he would be given no assistance. In his testimony, Mr. Leigh indicated that he did not know any detail about what the OPP investigation was about, and further indicated that he was neither told nor had he asked what the investigation was about. He did not contact the OPP to enquire about the investigation. This contrasts with Mr. Moulding’s testimony; he stated that he told Mr. Leigh what the investigation was about. Mr. Leigh stated that the applicant attempting to get witnesses to come forward was “strange behaviour” and that he concluded that it was not a workplace matter.

183The corporate respondent’s witnesses gave somewhat conflicting evidence about the effect on other employees of the applicant’s requests. Mr. Potts testified that Mr. Moulding contacted him and said that associates had complained about the applicant approaching them concerning the OPP investigation. He had not mentioned this in his witness statement, drafted when recollection was presumably freshest. Mr. Moulding did not mention this in his witness statement, drafted when recollection was presumably freshest, nor in his testimony.

184Mr. Bruce was the only witness who could speak to having been approached by the applicant to give information to the OPP. He stated that the applicant’s request was “odd”, but did not elaborate.

185At one point in his testimony, Mr. Leigh testified that he was advised by Mr. Moulding that he had told the applicant not to approach his co-workers and ask them to call the OPP, and that Mr. Moulding later told him that that the applicant was continuing to approach co-workers. However, the suggestion that the applicant disobeyed an order not to contact co-workers was not part of Mr. Moulding’s testimony or adopted witness statement. Nor does Mr. Leigh’s own adopted witness statement support this suggestion. Mr. Moulding’s statement and testimony did not indicate that he told the applicant not to contact co-workers. Mr. Leigh’s statement indicates that he and Mr. Potts gave the applicant this direction at a meeting of February 14, 2012 (noted below). There is no evidence that the applicant approached any co-worker for this purpose after that date.

186Mr. Leigh testified that he called a brief meeting with John Moulding, Mr. Potts, the corporate respondent’s corporate counsel, and Matt Ward, the divisional manager, to discuss what steps to take. He stated that he was concerned “that Allen had returned from a medical leave and that the associates were uncomfortable with his approach”. He decided that he and Mr. Potts would meet with the applicant “and tell him not to contact associates and that we were concerned about his behavior and that we wanted him to meet with Dr. Brennan to assess his fitness for work”. The meeting was held on February 14. The applicant agreed not to contact co-workers and also agreed to meet with Dr. Brennan, which he did that day.

187The applicant’s uncontradicted evidence concerning the February 14 meeting was that Mr. Leigh and Mr. Potts told him to stop approaching co-workers at work about the OPP. The applicant said they accused him of threatening co-workers. Mr. Potts testified that he and Mr. Moulding told the applicant that they were concerned for his well-being and that they wanted him to get cleared in regard to his fitness to work with Dr. Brennan. He explained that his concern arose because the applicant had been “off on stress leave in 2010” and was now “bothering associates”.

188The applicant agreed to meet with Dr. Brennan and did so immediately. The parties agree that, after the meeting Dr. Brennan advised them that there were no concerns and that the applicant was fit to work (see Exhibit 14). The corporate respondent produced no evidence as to what had been discussed between Dr. Brennan and the applicant.

189Mr. Leigh testified that, on February 15, 2012, he received a voicemail from the applicant “proposing a compromise”. He stated that the applicant wanted a monetary package and mentioned discontinuing complaints with the Ministry of Labour and this Application. He called the applicant back and asked if he meant that he was requesting a monetary package in exchange for leaving. The applicant confirmed that he was.

190On February 16, 2012, Mr. Leigh met with “Kevin Mulholland, Cal Potts, Matt Ward, corporate counsel, Gilles Madore and John Moulding to discuss the applicant's request for a severance package. The decision was made to terminate Sears’ employment with an appropriate compensation package.”

191Mr. Leigh gave the applicant a letter terminating his employment. He testified that the applicant was very upset and said it was not enough money. He stated that the applicant indicated that he would withdraw his request for a severance package and return to work. “I told him that the decision to terminate was final and that he should go away and think about our offer and consult a lawyer”.

192In cross-examination, the applicant admitted that he initiated a discussion with Mr. Leigh on the 15^th about obtaining a resignation package: “they said they would look into it.” On February 16 they met again and at that point they handed him the termination papers. He admitted that he indicated that the offer was not high enough but denied that he was upset.

193When asked why the decision was made to terminate the applicant’s employment, Mr. Leigh gave several reasons. He stated that “there were concerns about the way he was dealing with fellow associates” in regard to “a computer terminal with which Sears had difficulty”, that the applicant had made allegations against another associate (he confirmed that he was referring to the OPP complaint against the personal respondent). Finally, Mr. Leigh noted that despite the efforts made to accommodate the applicant’s disability-related needs, “he kept on bringing up more concerns.” He stated that he did not allow the applicant to retract his request for a package because a decision “had been made that this relationship was no longer viable”. In cross-examination, he denied that the applicant having filed this Application was one of the reasons for the decision, noted that the applicant had asked for a severance package, indicated that, regardless of being advised not to contact associates, the applicant had done so and made them uncomfortable. In respect of this point, he indicated that the corporate respondent did not have a policy on non-workplace discussions during working hours, and in any event, I have accepted that there is no evidence that the applicant contacted co-workers after being instructed not to.

194In response to a question from respondent’s counsel, Mr. Leigh indicated that he was aware that the applicant had been away from work, but he had not been involved in his return to work.

195Mr. Potts’ recollection of the reasons for the termination were that the applicant had “laid unfounded complaints”, that he was “bothering associates to get involved in an OPP investigation”, that associates were upset and that despite the fact that “we had done a lot of accommodation, he wanted a package”. He said that he himself was disappointed that the applicant wanted to leave despite the resources and time spent on accommodation measures. He stated that at that point he had no interest in continuing to work with the applicant. He also stated that he believed that if the OPP had truly been concerned with the applicant’s complaint they would have come themselves to investigate. I asked Mr. Potts whether he checked this perception with the OPP, and he said that he had not.

196Mr. Potts attended the meeting on February 16, 2012, at which the applicant was presented with a severance package. His evidence was that he walked the applicant to his locker and then to his car following the meeting. The applicant told him that he was upset and disappointed with the size of the severance he was offered.

Conclusions in respect of allegations of discrimination in respect of termination of employment

197I conclude from the evidence above that the applicant did not simply resign from his employment, but rather attempted to settle his differences with his employer by offering to arrive at a settlement package that would involve his resignation. The corporate respondent did not accept this idea; Mr. Leigh declined to enter into a discussion and simply terminated the applicant’s employment along with a final offer of a sum of money as a severance package.

198It 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: Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, Filion v. Capers Restaurant, 2010 HRTO 264.

199I accept that part of the reason for the termination of the applicant’s employment on February 16, 2012 was his assertion of rights under the Code. As noted above, Mr. Leigh denied that the applicant having filed this Application was one of the reasons for the decision to terminate, but admitted that among the reasons was “the way [the applicant] was dealing with fellow associates”, in respect of his disability-related difficulties with a computer terminal, the applicant’s allegations to the OPP against the personal respondent, and his understanding that, despite the efforts made to accommodate the applicant, “he kept on bringing up more concerns”. Mr. Potts’ evidence as to the reasons for the termination were that the applicant had “laid unfounded complaints”, that he was “bothering associates to get involved in an OPP investigation”, that associates were upset and that despite the fact that “we had done a lot of accommodation, he wanted a package”. All of these behaviours were occasioned by the applicant attempting to get accommodation for his disability-related needs, and to deal with disability-related harassment (as he saw it) by the personal respondent.

200Had the evidence shown that the sole reason for the termination of the applicant’s employment was that he had approached co-workers to get in touch with the police, the decision might have been less than fair given the lack of warning and progressive discipline, but it would not have breached the Code. However, I conclude from the above evidence that part of the reason for the abrupt decision to terminate the applicant’s employment was dissatisfaction with the way the applicant had pursued his rights under the Code, and the perception, which was not confirmed by any further discussion with the applicant, that he was not satisfied with the accommodation that had been arranged some two and a half months earlier. This constitutes a breach of s.8 of the Code.

REMEDIES

201Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

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.

Compensation for wage loss

202Pursuant to section 45.2(1), above, the Tribunal may order monetary compensation for actual losses arising out of an infringement of the Code. An applicant who proves a breach of section 5 of the Code may receive compensation for wage loss (defined to include all elements of the relevant employment compensation scheme) arising out of discriminatory acts. The purpose of compensation is to restore the applicant as far as reasonably possible to the position that he or she would have been in had the discriminatory acts not occurred

203In determining compensation for lost wages, any award is subject to an applicant’s duty to mitigate his losses by making reasonable efforts to obtain suitable employment. The onus of proving a failure to mitigate is on a respondent.

204In this case, there are two instances of wage loss to be dealt with. The first took place between the time the applicant left work on December 3, 2010, and the date of his return to work on June 20, 2011. As noted above, when the applicant left work, he felt that he was “on the verge of a nervous breakdown”. He filed a claim for Workers’ Compensation for “work related stress”. It is uncontested that a doctor who assessed him for this purpose indicated that the applicant complained of stress at work, ongoing harassment, anxiety, depression, insomnia and lack of appetite. The doctor appears to have agreed with the applicant’s report that he was anxious and depressed to the extent that he prescribed Ativan and Sertraline, respectively antianxiety and antidepressant medication. Another Workers’ Compensation form completed by the applicant’s own doctor on December 15, 2010 contains a “diagnosis/working diagnosis” of “mental stress secondary to verbal abuse” and a treatment plan for psychiatric counselling.

205The applicant attended a day hospital program, receiving group therapy, for a two-week period in late January to early February of 2011.

206The applicant filed a claim with the corporate respondent’s insurer for short-term disability benefits dated March 28, 2011. A form used for this purpose, Exhibit 8, contains a section filled out by the applicant’s doctor with a diagnosis of “adjustment reaction” and “stress”, as well as “moderately (sic) to severe limitations with ability to respond appropriately to usual daily pressures/stressors, and ability to interact with others, ability to relate to co-workers and team leaders”.

207When Ms. Maxim-Redfern met with the applicant in March of 2011, she took notes that refer to the applicant as “emotional teary eyed at times”, or “agitated”, “hands shaky”.

208I conclude from the above-noted evidence that the applicant’s reaction to the situation in which he required but did not receive disability-related accommodation was such that he was unable to come back to work until June 2011.

209It is uncontested that the applicant received no employment income for this period. The applicant’s claim for short-term disability benefits was denied; the respondent’s insurer was “unclear as to the extent/severity of [the applicant’s] symptoms and how they would prevent you from working while continuing treatment. The information provided does not indicate details of the treatment regime which would to address (sic) your condition and is insufficient to provide a description of symptoms that would preclude your ability to perform the essential duties of your occupation as a production associate”.

210The applicant admitted that he refused permission for the representative of his workplace’s insurer to speak to his doctor. The applicant said that the doctor would just have affirmed what he had already told his employer. He also admitted that he had failed to follow up on the refusal of benefits; he did not ask his doctor to put certain requested information in writing because he had decided to start the process of going back to work. He stated that, at that point he stated that he had been assured that “the harassment would stop” and that he would be accommodated, referring to conversation with Ms. Maxim-Redfern. He also stated that he did not appeal because “Rafeena” (the signatory of the denial letter) had stated that an appeal would take six months, and he had no money coming in.

211It is clearly possible that the applicant’s refusal to allow the representative of his workplace’s insurer to speak to his doctor and his failure to appeal was an intervening cause of his failure to obtain benefits from his employer’s insurer. However, it is also not certain that he would have obtained these benefits had he cooperated or appealed. It is also clear that the applicant would not have left his work in the first place but for the corporate respondent’s failure to accommodate his myopia throughout the period relevant to this Application, coupled with the failure of the corporate respondent to change its plan for the colour display on the Dunnage computer, or initiate other accommodation measures in the late summer and early autumn of 2010. Taking all of the foregoing into consideration, it appears to me that while the applicant is not entitled to 100 percent of the value of his lost salary and benefits for the period between December 3, 2010 and June 20, 2011, an award of 50 percent of that value would be fair.

212I have insufficient evidence before me as to the value of the applicant’s salary and benefits for the period between December 3, 2010 and June 20, 2011. The amount that corresponds to 50 percent of that value can and should be worked out between the parties.

213The second period at issue in which wage loss might be claimed runs from the date of the termination of the applicant’s employment on February 16, 2012, to the date of the hearing.

214The applicant’s entitlement to wage loss for this period must be assessed in the light of the respondents’ arguments concerning mitigation. The applicant’s evidence was that he was limited in what he could do because of his visual disability. However, he admitted that he has not even finished updating his résumé, and has not actively looked for work since he was dismissed.

215The applicant gave no evidence that would link his failure to seek employment with disability. The evidence does indicate, however, that the applicant was extremely upset about the termination, which is justifiable both from a subjective and an objective perspective, since his dismissal breached the Code. In these circumstances, it appears to me reasonable that the applicant might have needed as much as a month to compose himself sufficiently to effect a search for employment. However, in the light of his admitted failure to mitigate, I conclude that he is not entitled to compensation for lost wages and benefits after March 16, 2012.

Compensation for intangible loss

216When a breach of the Code is established, the Tribunal may also order monetary compensation to address the effect of the respondent’s breach of the Code on his or her dignity, feelings and self-respect. Section 45.2(1)1 encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.

217Quantifying intangible loss and distress is a difficult exercise. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents. The Tribunal has applied a degree of objectivity in assessing the amount of compensation; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. At the same time it has recognized that the actual impact of the discrimination on the applicant is an important consideration in assessing compensation. In addition, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).

218In Sanford v. Koop, 2005 HRTO 53, the Tribunal summarized the following factors (not a closed list) frequently used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:

• 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.

219As noted in Tulul v. King Travel Can, 2011 HRTO 438 at para. 104:

It is well established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator. When it comes time to determine a just and appropriate amount, the focus is on the experience of the applicant and not on the party responsible for infringing his or her rights. See Heintz v. Christian Horizons, (2008) HRTO 22; reversed on other grounds Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105, Osvald v. Videocomm Technologies, 2010 HRTO 770, and Hughes v. 1308581 Ontario, 2009 HRTO 341.

220In addition to his testimony, the applicant submitted some medical evidence about the effect upon him of discriminatory workplace conditions upon him; as noted above, he required antidepressant and antianxiety medication, and was advised to, and did, seek psychiatric counselling, even before his employment was terminated. As noted above, Ms. Maxim-Redfern’s notes of her interactions with the applicant in March 2011 refer to the applicant as “emotional teary eyed at times”, or “agitated”, “hands shaky”.

221On a review of all the evidence, I conclude that the applicant suffered humiliation, hurt feelings, anxiety and loss of self-respect. The corporate respondent’s failure to adequately investigate his complaints obviously led to a lack of confidence and was not compatible with respect for the applicant’s dignity as a human being. While it is difficult to judge how much of the applicant’s humiliation, loss of self-respect and anxiety can be attributed to the corporate respondent’s failure to adequately address his complaints of discrimination, this failure clearly exacerbated his distress.

222In the circumstances of this Application, which include a lengthy period of failure to accommodate and medical evidence of related depression and anxiety for which the applicant required treatment, I conclude that an appropriate order for compensation for intangible loss is $35,000.

Interest

223The Tribunal has the jurisdiction to award both pre- and post-judgement interest.

224Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the “date the cause of action arose”. Based on the evidence, this cause of action may be seen to have arisen when the corporate respondent failed to change its plan for the colour display on the Dunnage computer, or initiate other accommodation measures, in the late summer and early autumn of 2010. For the purposes of calculation of pre-judgement interest, the evidence warrants a date no later than October 1, 2010.

225With respect to the applicant’s compensation for loss of wages, I award pre-judgment interest on the full amount of wage loss assessed above. I award post-judgment interest in accordance with the Courts of Justice Act, above, from the date that is 30 days from the date of this Decision.

Remedy for future compliance.

226Finally, a remedy under section 45.2(1)3 of the Code to “promote compliance with this Act” is appropriate in this case.

227As noted above, the evidence reveals that the corporate respondent’s system is inadequate to support its ongoing duty to accommodate employees throughout their career with the corporate respondent, as is illustrated by the difficulties experienced by the applicant. The respondent adduced no evidence that employees were given clear information a) that they may have entitlement to workplace accommodation, short or long term, for reasons related to personal characteristics protected by the Code, which can include in respect of disability both disability that results in “permanent impairments” and disability that gives rise to short-term needs; b) that an accommodation process may be initiated by the employee him or herself, or by a supervisor who believes that a personal characteristic protected by the Code may be the source of workplace difficulties experienced by the individual employee; and c) clear information on precisely who should be contacted to discuss accommodation. There was no evidence that supervisory or other management employees were informed about the shared, corporate nature of the procedural duty to accommodate, and instructed as to how to fulfil that duty in the course of their work. As noted above, the corporate respondent’s system features “information silos”. Some of the silo problem could obviously be eliminated with clear instructions to management employees as to how appropriately to follow up in respect of any accommodation-related information that comes to their attention. In respect of medical information, privacy must of course be maintained, but further silo problems can be reduced by presenting employees with an opportunity to give informed consent to any strictly necessary disclosure of medical information to personnel involved with the achievement of accommodation for the purposes of the Code.

228Public interest remedies should (i) promote compliance with the Code; (ii) reflect the facts of the case and the violation of the Code that the Tribunal has found; and (iii) be remedial, not punitive: Pchelkina v. Tomsons, 2007 HRTO 42 at paras. 33 and 34; Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 91.

229In my view, the remedial purpose of the Code is best served by directing the respondents to hire a trained human rights professional to draft a policy or policies to address and reflect the corporate respondent’s procedural and substantive duty to accommodate employment difficulties related to personal characteristics listed in the Code, with the roles of all management employees clearly delineated. The policies published by the Ontario Human Rights Commission should be of considerable assistance in this exercise.

ORDER

230The Tribunal makes the following order:

a) Within 30 days of this Decision, the corporate respondent shall pay a sum corresponding to the value of 50% of the value of the applicant’s salary and benefits for the period between December 3, 2010 and June 20, 2011, and one full month’s salary and benefits for the period between February 16, 2012 and March 16, 2012, less statutory deductions, to the applicant to compensate for loss of income.

b) The respondents shall pay the applicant pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (a), above, from March 15, 2011.

c) Within 30 days of this Decision, the corporate respondent shall pay $35,000 to the applicant to compensate for violation of his inherent right to be free from discrimination, for injury to his dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

d) The respondents shall pay the applicant pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (c), above, from October 1, 2010.

e) In the event that the respondents fail to make the payments described in paragraphs (a) through (d) above within 30 days of the date of this Decision, the respondents shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision.

f) Within 30 days of the date of this Decision, the respondent shall post Human Rights Code cards, available from the Ontario Human Rights Commission, at the entranceway to its premises and in the kitchen. These Human Rights Code cards shall be posted in visually prominent places.

g) Within 90 days of the date of this Decision, the respondents will retain a human rights professional to produce a human rights policy or policies that reflect the corporate respondent’s procedural and substantive duty to accommodate employment difficulties related to personal characteristics listed in the Code, with the roles of all management employees clearly delineated. That work must be completed no later than 90 days after the consultant is retained. The respondents will provide notice to the applicant when the consultant is retained. When the work is completed, the respondents will provide the applicant with a letter setting out a summary of the consultant's work and attaching copies of the organization's new policy or policies.

231I will remain seized in respect of any disputes concerning the implementation of the above Order.