Schildt v. POINTTS Advisory Limited, 2014 HRTO 893

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ann Schildt Applicant

-and-

POINTTS Advisory Limited Respondent

DECISION

Adjudicator: Douglas Sanderson Date: June 17, 2014 Citation: 2014 HRTO 893 Indexed as: Schildt v. POINTTS Advisory Limited

APPEARANCES

Ann Schildt, Applicant Bruce Detlor, Representative

POINTTS Advisory Limited, Respondent Patrick Martin, Counsel

1This is an Application filed on October 20, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and sex.

Background

2This Application arises out of incidents that occurred in the last several months of the applicant's employment with the respondent. The applicant began employment with the respondent in August of 2004. It is common ground that the respondent is in the business of selling franchises and that the business of the franchises is to represent individuals in court with respect to traffic related infractions. The applicant alleges that the first incident of discrimination occurred on March 26, 2009 when the respondent informed her that she would not receive a raise or bonus, that certain changes were to be made in her daily schedule that she was required to use her accrued vacation by the end of August 2009. The applicant alleges that the respondent took these actions because it learned that she was using fertility drugs that raised the respondent's benefit costs, which she asserts amounts to discrimination because of sex. On April 2, 2009, the applicant injured her knee and ankle at work, an injury that caused her to be absent from work. The applicant returned to work for the week of April 20, 2009, but was directed by the respondent's president and co-owner, Brian Lawrie, to use her outstanding vacation to recover. The applicant made claims under the respondent's short-term disability ("STD") insurance plan and also made a claim to the Workplace Safety and Insurance Board ("WSIB") for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”). The applicant alleges that the respondent discriminated against her by intentionally delaying the processing of her claims.

3The applicant attempted to return to work in September and October 2009. The applicant alleges that the respondent did not permit her to return to work because of her disability, refused her request for accommodation and then terminated her employment on October 21, 2009 when she indicated that she was able to return to work without restrictions. The applicant alleges that she was entitled to have her health benefits continued during the five-week notice the respondent provided to her, but alleges that the respondent immediately discontinued them to prevent her from being reimbursed for expensive fertility drugs. The applicant seeks damages to compensate her for the cost of the fertility drugs she claimed during the notice period.

4The hearing of this matter took place on May 3 and 4, 2013 and November 13 and 14, 2013. I heard evidence from the applicant; Brian Lawrie, the president and co-owner of the respondent; and, Greg Greenham, who is the respondent's benefits advisor. Bruce Detlor, the applicant’s husband also testified, but his testimony was restricted to repeating the applicant’s accounts of her interactions with the respondent and to his involvement in the applicant’s WSIB claim. Mr. Detlor’s evidence was not material to any issue in dispute and I have not recorded it. The parties adduced several dozen exhibits, most of which arose out of the applicant's STD and WSIB claims.

Preliminary Issues

5At the commencement of the hearing, the parties made submissions regarding whether all or part of the Application should be dismissed for delay and whether the personal respondents, Mr. Lawrie and Penelope Gane, should be removed from the application. I rendered oral rulings during the hearing on these issues and indicated that I would include reasons in this decision. The following are my reasons.

Delay

6Section 34 of the Code sets out one-year time limit for filing an application, as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7The applicant filed the Application on October 20, 2010; therefore, the only alleged incidents of discrimination that come within the one-year time limit are the termination of the applicant's employment, the post-dismissal cancellation of the applicant's health benefits and the management of the applicant's WSIB claim.

8The applicant submitted that the incidents that occurred outside of the one-year time were part of a series of incidents connected to the timely incidents. To form a series under the Tribunal's jurisprudence must be a factual nexus between the timely allegations and the incidents alleged to have occurred more than one year before the filing of the application. Incidents separated by a year or more generally will not form a series. See Baisa v. Skills for Change 2010 HRTO 1621, Polihronakos v. Mississauga (City) 2010 HRTO 1433, Chintaman v. Toronto District School Board 2009 HRTO 1225 and Savage v. Toronto Transit Commission 2010 HRTO 1360.

9The theme of the Application is that the respondent discriminated against the applicant because of her use of fertility drugs, her workplace injury and with respect to her benefits and WSIB claims in the months leading up to the termination of employment. The applicant alleges that the respondent terminated her employment on October 20, 2009 and shortly thereafter improperly canceled her drug and healthcare benefits - both of which are timely complaints. The applicant alleges the respondent terminated her employment because of her disability and breached its duty to accommodate her following her injury and canceled her benefits because of the cost of the fertility drug she was taking.

10In my view, there was sufficient factual connection to the events occurring between March 26, 2009 and the termination of the applicant employment and benefits in October 2009 to amount to a series. The events obviously occurred less than one year before the incidents alleged to have occurred within one year of the filing date of the Application. Accordingly, I found that the applicant’s allegations formed part of a series of incidents of which the last alleged incident occurred within one year of the filing date of the Application.

Removal of Individual Respondents

11The respondents requested removal of the individual respondents, Brian Lawrie and Penelope Gane, and I granted that request.

12Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors to consider in assessing whether a personal respondent should be removed, as follows, at paragraph 5:

Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

13The respondents submitted that there was a corporate respondent in the matter and that the corporate respondent accepted responsibility for the actions of the individual respondents. The respondent submitted that there was no issue of the organizational respondent's ability to respond to or remedy the alleged Code infringements. The respondent submitted that the applicant does not allege anything that would require the individual respondents to bear personal responsibility and submitted that the individual respondents were acting within their respective capacities as employees. The respondents submitted that the applicant included the individual respondents to make vexatious comments about them and that including them would lengthen and confuse the process.

14The applicant submitted that the individual respondents were the owners and officers of the organizational respondent. The applicant submitted that, while the organizational respondent may be vicariously liable, the individual respondents should not be allowed to avoid penalties for their actions.

15In this case, there is an organizational respondent that has accepted vicarious liability for the individual respondents' actions and the applicant raised no issue regarding the organizational respondent's ability to affect any remedy the Tribunal might order. More importantly, there was no compelling reason to keep the individual respondents in the Application. All corporate entities operate through the people that run them, but there is no indication in the pleadings and prehearing materials filed that that remedies would be required as against individual respondents personally. In these circumstances, removal of individual respondents was appropriate and the style of cause was amended accordingly.

No reasonable prospect of success

16The respondent made a motion for "non-suit" after the applicant, Mr. Detlor and Mr. Greenham testified. In terms of Tribunal procedure, this amounts to a request to determine whether the Application has a reasonable prospect of success, following hearing some, but not all, of the proposed evidence, as discussed in the Tribunal's decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

17In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments with respect to summary hearings at paragraphs 8-9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

18The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319.

19Following submissions for the parties, I ruled that some of the applicant allegations had no reasonable prospect of success and the following are my reasons for my rulings.

Change in Working Conditions

20Mr. Greenham was permitted to testify first to ensure that he would not be required to attend on continuation dates. Mr. Greenham is the CEO of Greg Greenham Annuity and Insurance Agency Ltd. His evidence was that he assumed management of the respondent's group benefits plan in April 2010 and that this benefits plan had existed as it did at the time of his testimony since 1995. Mr. Greenham testified that, pursuant to privacy laws, the respondent does not receive information about individual claims made under the plan, i.e., what individual employees claim and how much their claims cost. Rather, the respondent receives only aggregate information regarding the amount spent on drugs and the drugs claimed, not who claimed them.

21Mr. Greenham also explained the concept of "pooling out". According to Mr. Greenham, "pooling out" defrays the impact that a large claim by an individual will have on the premium costs for group insurance. Mr. Greenham stated that the first $5,000.00 claimed by an individual goes against the client’s experience and affects the price of the plan for the next year. The balance is "pooled out" or spread out amongst the client base and does not affect the cost of the plan on renewal. Mr. Greenham noted that the respondent's plan covered everyone in the respondent's organization and the franchises, which he estimated to be about 30 offices/locations.

22The applicant's evidence was that she was required to attend a meeting with Mr. Lawrie and Penelope Gane, a co-owner and senior officer of the respondent on March 26, 2009. The applicant stated that she expected the meeting to address her inquiry, made by e-mail some weeks prior, regarding whether she and another employee, Ileana Miranda, would receive pay raises and/or bonuses. The applicant testified that, in the event, Mr. Lawrie questioned her closely about the request and angrily demanded to know why she would ask about raises and bonuses when she knew that the business was in litigation and not doing well. The applicant indicated that she responded to the effect that the company had always been in litigation and did not understand that this would preclude raises. The applicant also explained that she supervised Ms. Miranda and was also responsible for inquiring on her behalf.

23The applicant stated that during the meeting Mr. Lawrie advised her that he was planning to contact Employment Standards to determine what he was and was not required to provide regarding sick days and would report back to her. The applicant's evidence was also that Mr. Lawrie stated that sick leave would be better documented than it had been in the past. According to the applicant, Mr. Lawrie also required her to change her lunch hours from 1 p.m. to 2 p.m. to noon to 1 p.m. and to take her accrued vacation by August 2009 or lose it. The applicant stated that she had 8 to 10 weeks of outstanding vacation at that point that Mr. Lawrie directed her to expend it by alternating two weeks of vacation with one week in the office. The applicant stated that Mr. Lawrie repeatedly called her selfish throughout the meeting and stated that she "would pay" for what she did, although he declined to clarify this comment.

24The applicant referred to Ms. Gane's notes of the meeting that largely confirm the applicant’s account of the meeting, but also indicate that Mr. Lawrie was interested in the amount of work the applicant was performing and would use her absences on vacation to evaluate her contribution to the respondent.

25The applicant's evidence was that the respondent implemented these changes to her working conditions to punish her for using fertility drugs. In this respect, the applicant pointed to documents setting out the drugs paid for under the respondent's health insurance plan. These documents show that fertility drugs accounted for a high percentage of the drugs covered by the plan over several years, but do not show which employees used them. The applicant confirmed that she had been using fertility drugs, at significant cost, and had been reimbursed for them through the respondent's drug plan. The applicant pointed to a memorandum dated April 7, 2008 from the respondent's benefits consultant at the time. The memorandum noted that claims under the plan for drugs were very high and that the insurer had requested a significant increase in monthly premiums, but the consultant negotiated an increase of only 3.2%. The memorandum also noted that premiums for Head Office (where the applicant worked) would be billed separately. The applicant stated that this meant the respondent could see the breakdown of drugs used by employees in Head Office and he would be readily able to deduce that she was the person using fertility drugs, as apart from Mr. Lawrie, Ms. Gane and the applicant there was only one other employee in Head Office, Ms. Miranda, who was a single mother who apparently could not have more children. The applicant also pointed to a memorandum from the same consultant, dated March 24, 2010. This memorandum indicated that increased claims caused the insurance carrier to request the premium increase of 21.7%, but that an increase of 15.7% was negotiated with the removal of fertility drugs. The memorandum also noted that there had been no increase in premiums in April 2009 and only a 3.2% increase in April 2008.

26In cross-examination, counsel for the respondent asked the applicant if she, in light of the evidence that there was no increase in premium costs in 2009 and a small increase, 3.2%, in 2008, continued to believe that her use of fertility drugs caused increases to the respondent's premium costs. The applicant was quite argumentative and evasive on this point, but eventually conceded that she may have been mistaken. Counsel suggested to her that if she was wrong about the effect her use of fertility drugs had on the respondent's premiums then she was also wrong about her conclusion that the respondent discriminated against her because of sex, i.e., taking fertility drugs. The applicant responded that, in retrospect, she initially thought the discrimination was because she was using fertility drugs, but now attributed to the alleged discrimination to the fact that the respondent did not want her to go on maternity leave. The applicant based this conclusion on a statement attributed to Ms. Gane to the effect that in a small office it is difficult to find employees to fill in for employees who go on maternity leave.

27Counsel for the respondent noted to the applicant that she appeared to be changing her complaint. The applicant stated that she did not have the documents regarding insurance premiums when she drafted the Application. She stated that she first thought increases to insurance premiums explained the respondent's actions, but stated that it could "very well be" because the respondent did not want her to take maternity leave or both because of premium increases and the prospect of her going on maternity leave. At this point, the applicant admitted that she was speculating. The applicant acknowledged that the respondent directed her to take vacation for an extended period, but stated that this was for her to recover from an injury.

28Also in cross examination, the applicant agreed that she did not receive pay increases every year, but had normally received a bonus. She agreed that the respondent was not required to pay her a bonus. The applicant stated that it was not uncommon for Mr. Lawrie to lose his temper and that “tantrums” and aggressive behaviour from him was not uncommon. In this regard, the applicant acknowledged that Mr. Lawrie did not treat her differently after he found out about her use of fertility drugs and after she injured herself at work.

29In my view, the applicant failed to connect the respondent's actions, i.e., the changes in her working conditions, to a prohibited ground of discrimination. The applicant's initial theory was that the respondent discriminated against her because it discovered she was taking fertility drugs, which cause the respondent's benefit premiums to rise. Assuming, without deciding, that differential treatment because applicant used fertility drugs amounts to discrimination because of sex on the basis that only women can become pregnant, the applicant provided no evidence of either element of her theory. First, the applicant admitted in cross-examination that her fertility medication did not cause premiums to increase. The applicant abandoned her theory related to fertility drugs and indicated that the respondent did not want her to go on maternity leave. The foundation for this allegation was that Ms. Gane stated that in a small office it was difficult to replace employees who go on maternity leave. Assuming Ms. Gane made the statement, it does not provide a sufficient basis to find that the respondent discriminated against her because she might become pregnant. Second, the applicant indicated that the only avenue through which the respondent could have known she wished to become pregnant was by discovering she was using fertility medication. At its highest, the applicant's evidence was speculative in that she stated the respondent could have deduced that she was using such medication. The applicant submitted that several of the documents disclosed by the respondent, taken together, show that the respondent could have requested a report showing the drugs used by the employees in Head Office, where she worked. The linchpin to this argument was the memorandum dated April 7, 2008 from the respondent's benefits advisor at the time that, amongst other things, advised that arrangements had been made for separate billing for each office and that payment through the Head Office was no longer necessary. The memorandum says nothing about providing a breakdown of the drugs used in each office. Consequently, I find that the applicant did not establish that the respondent could discover her use of fertility drugs, much less that it did. I also accept Mr. Greenham's evidence, which was not contradicted or shaken in cross-examination, that the respondent was not given information about individual claims and that individual claims in any event have limited effect on premium costs due to pooling out.

30The applicant's evidence was speculative and provided no proper basis for concluding that either her use of fertility drugs or her desire to become pregnant was a factor in the changes the respondent made to her working conditions on March 26, 2009. Her evidence was also contradicted by Mr. Greenham's. In these circumstances I found that the applicant's allegations regarding a change to her working conditions had no reasonable prospect of success. Accordingly, I dismissed this part of the Application and did not require the respondent to lead further evidence on it.

Disability Claims

31As noted above, the applicant injured her leg and ankle at work on or about April 2, 2009. After a brief return to work for the week of April 20, 2009 the applicant remained off work until September 29, 2010. The applicant filed a claim for STD benefits under the respondent's group insurance plan as well as a claim for benefits under the WSIA. The applicant alleged that the respondent purposely delayed the processing of both her claims to avoid increased premiums under its STD policy and WSIB costs, which amounted to discrimination because of disability.

32Under section 10 of the Code the definition of disability includes "an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997". Accordingly, the applicant's injury, for which she claimed benefits under the WSIA, comes within the definition of disability in the Code. The applicant did not, however, produce any evidence linking the respondent's impugned behaviour regarding her disability claims to her disability.

STD Claim

33The applicant filed her claim for STD benefits with the insurer on April 29, 2009. By letter dated April 30, 2009 addressed to Ms. Gane, the insurer requested that the respondent complete the "Employer's Statement", which was required to begin assessment of the claim. There is no doubt that the respondent's response to this letter was somewhat delayed, as the documentary record includes a follow-up letter to Ms. Gane, dated May 14, 2009 and to the applicant dated June 4, 2009. However, the record also shows that the respondent's benefits consultant at the time forwarded a letter from Ms. Gane to the insurer, dated May 29, 2009, in which she informed the insurer that the applicant's salary was $50,000.00. This evidence contradicts the applicant's assertion that the respondent refused to correct the insurer's understanding that the applicant's salary was $46,000.00. The documentary record also contains a completed Employer's Statement, signed by Ms. Gane and dated May 29, 2009. This document is stamped "Received" on June 16, 2009. There is no dispute that the insurer received the Employer's Statement on or about June 16, 2009.

34The record also contains correspondence from the insurer to Ms. Gane seeking further information regarding the applicant's claim. The correspondence indicates that the insurer attempted to contact Ms. Gane several times in July and August 2009 and put its request in writing when she did not respond. The insurer sent Ms. Gane letters dated July 9, July 23 and August 10, 2009 in this regard. The documentary record includes a draft letter proposed by the respondent's benefits consultant to respond to the insurer's inquiries. The covering memorandum for that letter was dated July 25, 2009. When Ms. Gane did not respond to the insurer, the insurer informed the applicant by letter dated August 25, 2009 that the information from the respondent remained outstanding and that if it was not submitted by September 25, 2009 the insurer would not be liable for any benefits. The documentary record contains an e-mail message, dated September 2, 2009 from the applicant to Mr. Lawrie in which she advised him of the delay in processing her claim and of the September 25, 2009 deadline. The documentary record indicates that Ms. Gane sent a letter to the insurer containing the required information by facsimile on September 2, 2009. The letter, dated August 30, 2009 is essentially the same as the letter proposed by the benefits consultant in July 2009. On September 9, 2009, the applicant received a letter from the insurer confirming that her claim for STD benefits had been approved. Later correspondence from the insurer, dated October 7, 2009, confirm that the applicant qualified for the maximum amount of STD benefits. The record also indicates that the applicant received long-term disability benefits until December 3, 2009, after the expiry of STD benefits. In cross-examination, the applicant stated that in her view Ms. Gane was often lax in dealing with administrative matters.

35In my view, it is fair to say that the respondent did not address the applicant's claim with a great deal of diligence or dispatch, but the evidence does not support the allegation that the respondent tried to prevent the applicant from receiving benefits. The respondent, through Ms. Gane, sent correspondence to the insurer correcting the applicant's salary and completed the Employer's Statement after a reminder. When prompted to provide further information, the respondent's benefits advisor provided Ms. Gane a draft response within a few days. It is true that Ms. Gane did not send this response until after the applicant contacted Mr. Lawrie, but the applicant's own evidence was that such dilatory behaviour was typical of Ms. Gane. Ms. Gane sent the needed information to the insurer immediately after the applicant sought Mr. Lawrie’s assistance. In these circumstances, I find the evidence does not support the conclusion that the respondent intentionally attempted to prevent the applicant from receiving STD benefits.

36Even if such an inference were available on the evidence, the applicant did not present any evidence that would connect the delay to her disability. The applicant's speculation and bare assertions are not a proper basis for inferring such a connection. Moreover, the applicant received her full entitlement to STD benefits. I appreciate that receipt of these benefits was delayed, but the applicant ultimately suffered no loss.

37For these reasons, I found that the applicant's allegations regarding STD benefits had no reasonable prospect of success and I dismissed them.

WSIB Claim

38The applicant also filed a great deal of material taken from her WSIB file. These documents, along with the applicant's testimony established that the WSIB was informed of the applicant's injury through a Physicians First Report for a work-related injury. In May 2009, the WSIB indicated that the applicant was not entitled to benefits because the respondent was not registered with the WSIB and was not in a compulsory business activity. The applicant provided the WSIB with information indicating that the respondent had been misclassified and should in fact be subject to compulsory coverage. In early August 2009, the WSIB directed the respondent to complete a "Classification Questionnaire" to clarify the respondent's business activity. A memorandum prepared by the WSIB, dated November 18, 2009, indicates that the respondent did not return the questionnaire until on or about November 18, 2009. Based on information provided by the applicant and respondent, the WSIB concluded that the respondent was subject to compulsory coverage. As a result, the WSIB required the respondent to take certain steps to meet its obligations and opened a claim for the applicant.

39In early January 2010, the WSIB directed the respondent to file a Form 7 (Employer's Report of Injury/Disease) regarding the applicant's injury in April 2009. Despite several calls from the WSIB, the respondent did not return a completed Form 7 and was charged a penalty of $250.00 on January 15, 2010. At about the same time, the WSIB allowed to the applicant's claim for benefits.

40The decision regarding the applicant's claim entitled her to retroactive loss of earnings benefits ("LOE") and the WSIB calculated she was entitled to over $16,000.00 in LOE benefits and interest between April 25, 2009 and October 2, 2009. This amount was "over limit" pursuant to the WSIB protocols, which triggered a review of the applicant's file. Following this review, the WSIB concluded that she was not entitled to LOE benefits because her job was sedentary and her physician deemed her to be capable of such duties. The applicant appealed this decision and the appeal is apparently ongoing.

41The applicant submitted that the respondent intentionally delayed the processing of for her WSIB claim. The applicant submitted that the respondent had many opportunities to cooperate with the WSIB and harmed her claim by failing to do so. The applicant submitted that the applicant's WSIB claim, if accepted, would increase expense to the respondent and was contributing factor in her dismissal.

42The WSIB file establishes that the respondent did not respond to the WSIB Classification Questionnaire for several months. The respondent also did not provide a Form 7 in early January 2010, but the WSIB proceeded to grant LOE benefits to the applicant after a short delay in the absence of the Form 7, for which the respondent was penalized.

43Because the applicant claimed and received benefits under the WSIA for her injury, her injury comes within the definition of "disability" under the Code. To succeed before the Tribunal, however, the applicant must present evidence that shows that her disability was a factor in the respondent's actions. Instead, the applicant again offered only speculation and bare assertions, which are not sufficient. However improper the respondent's actions may have been, they do not amount to a violation of the Code without some evidence connecting them to one or more of the prohibited grounds of discrimination. Further, the applicant's essential position seems to be that the WSIB would not have reviewed her file because of an over limit payment if the respondent did not delay the processing of her file. First, it would seem that a significant retroactive payment would have been forthcoming in respect of the period from the end of April until sometime in late August or September 2009 even if the respondent replied to the Classification Questionnaire as directed in August 2009. More importantly, the applicant seems to be asking the Tribunal to find that she was entitled to WSIB benefits based on an alleged breach of the Code. The applicant’s entitlement to WSIB benefits was, and apparently remains, a matter for the WSIB to decide.

44In my view, the applicant presented no evidence that her disability was a factor in the respondent’s treatment of her WSIB claim. Accordingly, I found that this allegation had no reasonable prospect of success and I did not require the respondent to lead evidence on this issue.

Accommodation/termination of employment

45As noted above, the applicant injured her knee and ankle at work on April 2, 2009. The applicant's evidence was that her doctor prescribed anti-inflammatories and ice and advised her to remain off of work for two weeks.

Return to Work April 20, 2009

46The applicant's evidence was that, following her doctor's advice, she returned to work on Monday, April 20, 2009, although she was not fully recovered from her injury. The applicant stated that she was in pain and found it extremely difficult to manage at work. The applicant needed to elevate her leg and she could not sit for long periods of time. The applicant stated that when she returned to work Mr. Lawrie asked her how she was, but did not request a doctor's note. According to the applicant, she informed him that she was in pain, but he made no attempt to accommodate her. The applicant stated that she worked throughout the week, but left work on Friday, April 25, 2009 because Mr. Lawrie directed her to use her vacation time to recover.

47The applicant's evidence was that she saw her family doctor the following Monday, April 27, 2009, who advised the applicant not to return to work because of her condition. The applicant stated that her knee remained swollen and bruised and she could not put weight on it. Despite tests performed on her ankle and knee, her doctor was not at that point able to determine the nature of her injury. The applicant stated that about five months passed before her doctor recommended she try to return to work.

48In cross-examination, the applicant denied, at least initially, that she left work because of her injury and maintained that she left work because Mr. Lawrie directed her to go home. Counsel for the respondent put a letter she wrote to a WSIB Eligibility Adjudicator seeking reconsideration of the decision to end her LOE benefits, dated August 20, 2010. In the letter, the applicant sets out the history of her injury, including her attempt to return to work in the week of April 20, 2009. The applicant states in the letter that she "could not continue because of my injuries" and that her employer "recommended that she take more time off to recover". The applicant also states that “[N]o one at this early stage of my recovery presented the opinion that I was able to perform even sedentary duties on a full time basis”. The applicant explained that Mr. Lawrie saw that she was in difficulty and sent her home. Accordingly, the applicant stated that did not leave work voluntarily. However, the applicant eventually acknowledged that her statement to the WSIB to the effect that she was unable to work in April 2009 was truthful. The applicant also acknowledged that she would not have been able to keep working because of her injury, regardless of Mr. Lawrie's direction. The applicant also stated that she was not offered modified work, which, when asked, she stated could have included part-time work or transferring some work to Ms. Miranda, her subordinate. The applicant acknowledged she did not request modified work and that she returned to work without giving notice to the respondent.

49Mr. Lawrie's evidence was that he understood that the applicant injured herself at work on April 2, 2009 and returned to work on April 20, 2009, without giving prior notice. Mr. Lawrie stated that he was not in the office on April 20, 2009, but recalled that he did speak with the applicant because he wanted to find out how she hurt herself. Mr. Lawrie stated that when he spoke to the applicant he asked her for a doctor's note, but she did not have one. He also asked the applicant to go home.

50In cross-examination, Mr. Lawrie stated that he had noticed that the applicant had a cane and had difficulty walking. He agreed that he did not suggest any measures to accommodate the applicant, but stated that she did not ask for any. Mr. Lawrie confirmed that he asked the applicant to provide a doctor's note when returning to work to verify that she was able to work.

Return to Work September 2009

51There is no dispute that the applicant returned to work for one day on September 29, 2009 and that she did not notify the respondent in advance that she was coming to work that day. At approximately 9:50 a.m., the applicant sent an e-mail message to Mr. Lawrie advising him that she had returned to work and invited him to identify any issues that he needed addressed. Mr. Lawrie responded by e-mail message at 10:14 a.m., in which he advised that he would be in the office in the afternoon and directed the applicant prepare written report regarding her disability claim and her use of her vacation entitlement. The applicant responded by e-mail message at 1:51 p.m., in which she advised that she was not fully recovered and may need surgery, provided some details about her STD claim, that she had not taken any vacation time and that she needed to come back to work because she had no income.

52The applicant's evidence was that Mr. Lawrie came in to the office later that day and proceeded into his office where he met with Ms. Gane and another employee. According to the applicant, Mr. Lawrie met with the applicant in his office sometime between 30 and 60 minutes after he arrived at the office. The applicant states that she was directed to close the door, not to speak and to read a letter he prepared for her. The letter is brief and states as follows:

Ann,

It is obvious from your e-mail of today's date that you are not able to function efficiently within the office. Rather than risk you being exposed to any further injury, I require that you go home and keep me advised of your condition and progress with Great West Life or Employment Insurance and that you give advance notice before you return to work.

Brian Lawrie

President

53The applicant stated that after she read the letter Mr. Lawrie told her to go home immediately. The applicant stated that she wanted to discuss her income, but that Mr. Lawrie was not prepared to discuss anything and became livid and was shaking so much that she was concerned for her safety. The applicant stated that she had a note from her doctor, dated September 25, 2009, indicating that the applicant was able to return to work with accommodation. The accommodation required included: not walking more than a few steps, no prolonged standing, keeping her injured leg elevated and changing position every 15 minutes. The applicant stated that she did not give this note to Mr. Lawrie during the meeting because she was not given the opportunity to speak, because Mr. Lawrie became so angry that it was the last thing on her mind and, in any event, because he did not ask her for one. The applicant's evidence was that she made notes about this meeting later that day. The notes indicate that Mr. Lawrie "threw" her out of the office at 3:50 p.m. The notes also indicate that she asked Mr. Lawrie who would be paying her to which he responded that he would not be paying her, that he would not speak to her about anything and stated that if she had anything to say to put it in writing, and directed her to give advance notice before returning to work.

54The applicant's evidence was that she sent Mr. Lawrie an e-mail message on October 2, 2009. In the message, the applicant stated that there were a number of issues that she had intended to discuss with Mr. Lawrie on September 29, 2009, but was unable to because he demanded that she leave the office immediately and requested that their communication be in writing. Among these issues, the applicant explained that she had a doctor's note with her on September 29, 2009 and described her doctor's advice. The message indicates that the note was attached and the applicant asked Mr. Lawrie to reconsider her return to work, which she hoped to do on October 7, 2009. Mr. Lawrie responded to the applicant in an e-mail message later on October 2, 2009. In the message, Mr. Lawrie stated that “…it was apparent that you (the applicant) will not be able to properly carry out your duties or respond appropriately to any emergency which would require rapid movement". Mr. Lawrie went on to state that the applicant had to wait until she was sufficiently mobile and could provide medical evidence from her doctor confirming this.

55On October 20, 2009, the applicant sent an e-mail message to Mr. Lawrie in which she requested to return to work on October 22, 2009. The applicant attached a note from her doctor, dated October 19, 2009, that confirmed that she was able to perform routine office duties, such as computer work, use of telephones, fax, photocopy and filing and that she was capable of exiting the office in emergency situations without assistance.

56Mr. Lawrie responded by e-mail message, dated October 21, 2009, in which he terminated the applicant's employment. The message stated that since the applicant had been absent it became apparent that the respondent did not have sufficient work for her and, as a result, no longer required her services.

57In cross-examination, the applicant agreed that it would have been prudent to advise the respondent of her intention to return to work. The applicant also agreed that she did not advise the respondent of her accommodation needs because she did not believe she would require assistance to implement them. For example, she stated she could use a stool to elevate her foot as needed, and could manage how much standing she did and the need to change positions on her own. She also indicated that she might ask Ms. Miranda to assist her more, but again, this was something she could arrange with her without assistance. The applicant stated that Mr. Lawrie’s purported concerns about her ability to react in an emergency situation were ridiculous because she sat near the exit. The applicant stated that there had been a situation where she smelled smoke and asked Ms. Miranda to speak to the property manager about it when the smell continued.

58The applicant stated that elevating her foot made working more difficult, but not impossible. Counsel for the respondent again put the applicant's letter to the WSIB of August 10, 2010 to her. In particular, counsel pointed out that she stated in a letter that her treating physician maintains that she should keep her ankle elevated while seated, which, the applicant stated "was impossible to perform while in the workplace". The applicant testified that working with her foot elevated was impossible and that when she had done it was for only part of one day. When asked by counsel to clarify what she meant by "impossible" she stated that one cannot expect a person to work months on end with a leg elevated. She agreed it was impossible to work in those conditions and that there was nothing the respondent could do to make it possible. At this point, I asked the applicant if she needed to elevate her foot 100% of the time. She responded that she did not and that she would elevate her foot for about 10 minutes and change positions at her desk.

59Counsel for the respondent then asked her if she felt that it would have been impossible in the long term to work given her restrictions. The applicant responded that she could not say as she was only able to return for a few hours. Counsel again asked her if it would have been impossible to work with restrictions, leg elevation in particular, and she replied that it would have been very difficult.

60Counsel also questioned the applicant about her e-mail message of September 29, 2009 at 1:51 p.m. The applicant agreed that the import of the letter was that she was not recovered enough to return to work, but returned to work, at least in part, because she needed income. The applicant stated that her doctor recommended that she return to work, but the applicant did not feel she was ready. The applicant agreed that her position with the WSIB was that she was too injured to return to work in September 2009 and that this was the same position she was taking before this Tribunal. However, the applicant maintained that she was able to function, albeit not as efficiently as before her injury or in the same manner. The applicant stated that her question to Mr. Lawrie about income was the only thing she was able to say before being shouted down.

61Mr. Lawrie's evidence was that he was not aware of the applicant's intention to return to work until he received the applicant's e-mail message on September 29, 2009 advising him of her return. Mr. Lawrie stated that he responded to the applicant and asked her to prepare a report regarding her disability claim and vacation usage. According to Mr. Lawrie, he came into the office in the afternoon of September 29, 2009 and met with the applicant. Mr. Lawrie's evidence was that he asked the applicant if she had a doctor's note regarding her return to work, but she did not. Accordingly, Mr. Lawrie asked the applicant to go home and return with a doctor's note. Mr. Lawrie stated that the applicant did not ask for anything to assist her in returning to work.

62Mr. Lawrie's evidence was that the applicant began working for the respondent in 2004. Her duties at the time were to administer communications with franchises, to manage his calendar, to monitor staff in the Bracebridge office and to ensure the smooth operation of the office. Mr. Lawrie stated that there were between 36 and 38 franchises in 2003-04. However, as franchises came up for review in the 2002-2005/6 period disputes arose and about 18 franchises formed an association to present a united front in negotiations with the respondent. There was a single point of contact with the association, which resulted in reduced communication with franchises on a day-to-day basis. Eventually, 18 franchises left the respondent altogether in 2007/2008 leaving only 12 or 13. Mr. Lawrie stated that his impression was that the workload for the office staff had reduced considerably and he wanted to get an idea of what the office staff were doing. Accordingly, he asked the applicant and Ms. Miranda, the other office employee, to prepare job descriptions in February or March 2009.

63Mr. Lawrie stated that the applicant's job description contained many activities that were performed infrequently, e.g., dealing with office equipment malfunctions and activities that were not her responsibility at all, e.g., e-mail management. Mr. Lawrie stated that he found the applicant's job description "light" for a full-time job. At about the same time, i.e., February/March 2009, he learned that the applicant had accrued 44 days of unused vacation. Mr. Lawrie's evidence was that this surprised him, but decided to require the applicant to use this accrued vacation, which would give him the opportunity to assess whether there was enough work for her. Mr. Lawrie directed the applicant to take her accrued vacation at the meeting on March 26, 2009. Mr. Lawrie stated that his intention was to terminate the applicant's employment if he concluded that there was insufficient work for her.

64Mr. Lawrie's evidence was that the office operated extremely well in the applicant’s absence and that Ms. Miranda had no difficulty coping with the workload. Mr. Lawrie stated that he concluded after the applicant had been away for a couple of months that there really was not any work for her and decided to terminate her employment because her position was redundant. Mr. Lawrie stated that he delayed notifying the applicant of this decision because he did not want to dismiss her while she was injured. Accordingly, he informed the applicant of the termination of employment when she indicated that she could return to work.

65In cross-examination, Mr. Lawrie agreed that he did not suggest any workplace modifications to accommodate the applicant in April 2009, but stated that the applicant did not ask for any. Mr. Lawrie did not recall whether he and the applicant discussed her condition on September 29, 2009 before he gave her the letter and asked her to leave. Mr. Lawrie's evidence was that the applicant was in obvious discomfort and wanted to go home to get medical attention. He agreed that the letter he presented to the applicant September 29, 2009 did not request a doctor's note and he did not recall if he asked for a doctor’s note before presenting the letter to her. Mr. Lawrie stated that the applicant could have presented him with a doctor's note and denied that he prevented the applicant for speaking during the meeting.

66Mr. Lawrie stated that there was no way to accommodate the applicant's restrictions set out in her e-mail message of October 2, 2009 to him, but also stated that she did not ask for accommodation. When asked how he evaluated whether the respondent could accommodate the applicant's restrictions, Mr. Lawrie stated he could not evaluate a doctor's opinion and also stated that the restrictions were so general that he did not know what to do. Finally, Mr. Lawrie stated that the applicant's restrictions were such that she would not be able to respond in an emergency.

Analysis and decision

67The relevant sections of the Code are as follows:

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

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

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

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.

68The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent failed to accommodate her disability and terminated her employment because of her disability. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. Direct evidence of discrimination is also unnecessary, as discrimination will more often be proven by circumstantial evidence and inference. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

69In assessing credibility and reliability, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

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

Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

70I also had regard to the Ontario Court of Appeal’s comments in R. v. Morrissey, 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

71The duty to accommodate is a central issue in this Application. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination. The Supreme Court of Canada noted in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. In other words, the duty to accommodate arises only where an applicant has been subject to discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship. In this case, the duty to accommodate arises under section 17 because, as described below, the respondent took the position that the applicant was unable to perform the functions of her position because of her disability.

April 2009

72The evidence was that the applicant injured herself at work on April 2, 2009 and returned to work on April 20, 2009. The applicant did not advise the respondent that she was returning to work and it was apparent that she was not expected. The applicant remained at work for the week and there is no evidence that she ever requested accommodation. There is no dispute that Mr. Lawrie directed the applicant to go home and use her accrued vacation while she recovered. There was no discussion of whether the applicant was able to work or whether she required any accommodation to be able to work. Rather, I find that the evidence establishes that Mr. Lawrie concluded that the applicant was unable to work because of her injury. In my view, he was justified in that assessment. The applicant’s evidence was that she was in pain and found it difficult to work. She saw her doctor the following Monday, April 27, 2009, who advised her against returning to work because of her condition. The applicant took the position with the WSIB that she could not work in April 2009 because of her injury. After giving a great deal of evasive and argumentative evidence about why she stopped working after April 25, 2009, the applicant acknowledged that she would not have been able to continue working because of her injury. The applicant applied for and received STD benefits following her injury, which also indicates that she considered herself to be unable to work. I appreciate that the WSIB later found that the applicant was not totally disabled from working. However, in circumstances where the applicant took the position that her disability prevented her from working, I am unable to find that the respondent’s decision to send her home was discriminatory.

September and October 2009

73The applicant attempted to return to work on September 29, 2009, again without prior notification to the respondent. Returning to work without notice was not reasonable or prudent, which the applicant acknowledged. The applicant informed Mr. Lawrie of her return to work that day somewhat belatedly by e-mail. In a subsequent message to Mr. Lawrie, the applicant indicated that she was not completely recovered and may require surgery. She also stated that she needed to work because she had no income. The applicant’s evidence was again contradictory regarding her ability to return to work in part because she had also taken the position with the WSIB that she was unable to work because of her injury. It was also her evidence that she was attempting to return to work on the advice of her doctor, although the applicant herself was not sure she was ready to return. Regardless, the fact remains that the applicant did attempt to return to work and in my view there was nothing in her e-mail messages to Mr. Lawrie on September 29, 2009 that indicated that she was unable to function. This, however, was the conclusion the respondent arrived at, which Mr. Lawrie conveyed in the letter he presented to the applicant when they met later that day.

74The applicant’s and Mr. Lawrie’s accounts of that meeting diverge sharply and I prefer the applicant’s evidence of it. The applicant's evidence was detailed and internally consistent and was also consistent with the notes she took of the meeting shortly afterward. The applicant's account was also consistent with her e-mail message to Mr. Lawrie on October 2, 2009 in which she noted that Mr. Lawrie demanded that she leave the office immediately, which prevented her from raising issues and that he required her to communicate in writing. The message also indicated that she had a doctor's note with her on September 29, 2009 and proceeded to indicate her restrictions. In her e-mail message to Mr. Lawrie of October 6, 2009 she again confirmed that she had the doctor’s note with her on September 29, 2009, but that Mr. Lawrie did not give her an opportunity to present it. In that regard, the doctor's note was dated September 25, 2009 and set out the accommodations the applicant required to return to work. Accordingly I find it more probable than not that the applicant had the note with her on September 29, 2009. As a result, I do not accept Mr. Lawrie's evidence that he asked the applicant for a doctor's note because I find it more likely than not that the applicant would have presented it to him had she been asked. Mr. Lawrie's evidence also lacked detail and was contradictory, as he stated at one point in his testimony that he did ask for a doctor's note, but later stated that he did not recall whether he asked for a doctor's note during the meeting. There is no mention of a doctor's note in the letter he presented to the applicant on September 29, 2009 and he did not give any indication that he asked for such a note in the subsequent e-mail exchange with the applicant. Consequently, I found the applicant's evidence to be more credible on this point. As a result, I find that when the applicant met with Mr. Lawrie he presented her with a letter sent out at paragraph 52, above, refused to discuss any of the applicant's concerns and sent her home. Accordingly, I find that Mr. Lawrie’s sent the applicant home because of her disability and that this decision was prima facie discriminatory.

75In my view, it was reasonable for Mr. Lawrie to have questions or concerns about the applicant's ability to work, since she had confirmed that she was not fully recovered. It was not reasonable or appropriate, however, to simply deny the applicant the opportunity to return to work without exploring the validity of these concerns. Pursuant to the respondent's procedural duty to accommodate, Mr. Lawrie should have explored the nature of the applicant limitations and any accommodation she may require. Of course, this information was readily available if only he had given the applicant an opportunity to present it.

76In any event, the applicant sent an e-mail message to Mr. Lawrie on October 2, 2009 in which she explicitly request to return to work and set out her restrictions/required accommodations and attached her doctor's note supporting this request. The accommodations the applicant required - limited walking, no prolonged standing, elevation of the injured leg while sitting, and position changes every 15 minutes - would have, in my view, required very little in the way of workplace modifications given that the applicant worked in an office and performed sedentary duties. The applicant’s evidence, which I accept, was that she was able to implement these modifications herself, without assistance, during her brief return to work on September 29, 2009. Mr. Lawrie responded by e-mail later on October 2, 2009 and he refused the applicant's request to return to work because her restrictions prevented her from carrying out her duties properly or responding to an emergency requiring rapid movement. Mr. Lawrie gave no evidence explaining how the applicant's restrictions would have prevented her from performing her duties in a sedentary job. The applicant’s evidence in cross examination was that on one occasion she smelled smoke in the office and instructed Ms. Miranda to investigate this with the property manager when the smoke persisted. There was no evidence of any adverse effect to anyone. Mr. Lawrie stated that he was concerned that the applicant would not be able to exit without assistance and that there was only one exit. The applicant stated that she sat right beside the door and found the supposed concern to be ridiculous.

77In Pantoliano v. Metropolitan Condominium Corporation No. 570, 2011 HRTO 738, the Tribunal considered how risks should be measured when assessing whether accommodation will cause undue hardship. The Tribunal adopted the methodology for measuring risk set out in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, as follows (at paragraph 100):

In determining the serious or significance of a risk, the following factors should be considered:

• the nature of the risk

o what could happen that would be harmful?

• the severity of the risk

o how serious would the harm be if it occurred?

• the probability of the risk

o how likely is it that the potential harm will actually occur?

• is it a real risk, or merely hypothetical or speculative?

o could it occur frequently?

• the scope of the risk

o who will be affected by the event if it occurs?

The seriousness of the risk is to be determined after accommodation and on the assumption that suitable precautions have been taken to reduce the risk.

78In this case, there was absolutely no evidence the respondent undertook any kind of risk analysis regarding the applicant's restrictions. There was some evidence, from the applicant, that there had been an incident when she detected the smell of smoke in the office. The evidence indicated that it was a very minor incident that did not require evacuation of the office. There was no evidence that such an incident was likely in the future or that there was a heightened risk of an incident that would require evacuation of the office. There was also no evidence that the applicant would have been unable to evacuate the office safely. The applicant was able to walk and her evidence was that her work area was near the exit. Mr. Lawrie's evidence indicated that he made no inquiries about the applicant's limitations and simply concluded that she could not return to work for safety reasons.

79The same is true regarding Mr. Lawrie’s statement that the applicant would not be able to carry out her duties. The applicant performed sedentary duties in an office and the respondent presented no explanation regarding Mr. Lawrie's conclusion that the applicant would be unable to work. The applicant's evidence was that she was able to implement the required accommodations on her own on September 29, 2009. The applicant's evidence, in retrospect, was also that she may have had difficulty if the need for accommodation persisted indefinitely. However, I find that that respondent did not establish that it could not meet the applicant’s request for accommodation in late September and early October 2009 and failed to meet both its procedural and substantive obligations to accommodate the applicant. This failure amounts to a violation of the applicants rights under section 5 (1) of the Code.

Termination of employment

80On October 20, 2009, the applicant sent Mr. Lawrie an e-mail message to which she attached an updated doctor's note confirming that she was able to perform her job functions and that she was capable of exiting the office without assistance in an emergency. Mr. Lawrie responded the next day by e-mail message in which he informed the applicant of the termination of her employment because there was insufficient work for her. The respondent's evidence was that over half of its franchises had in effect revolted against it and eventually left the respondent, which was not challenged by the applicant. This departure reduced the amount of communication with the franchises, which was one of the applicant's main activities. The respondent's evidence was that Mr. Lawrie began to suspect that there was not enough work for both office employees. I accept this evidence as it is consistent with his subsequent actions, i.e., to direct the applicant and Ms. Miranda to draft job descriptions setting out their duties and directing the applicant to use her accrued vacation to assess whether there was enough work for her. Accordingly, I find that Mr. Lawrie was considering the termination of the applicant's employment in March 2009 and there is no evidence at that point that would indicate a link between his actions and a prohibited ground of discrimination.

81Mr. Lawrie's evidence was that the office functioned well in the applicant's absence and that the decision was taken to dismiss her once she recovered from her injuries. Mr. Lawrie also noted that Ms. Miranda became proficient at assisting with court proceedings. Mr. Lawrie's evidence was that he did not consider keeping the applicant over Ms. Miranda after the applicant was able to return to work or whether the applicant may have also been able to acquire these skills.

82The evidence was that the applicant had accrued 44 days or roughly 9 weeks of vacation. The evidence was that Mr. Lawrie directed the applicant to alternate two weeks off and one week at work until she had used her accrued vacation, which would have taken 13 weeks to complete. There is no dispute that the applicant never took any of her accrued vacation because she injured herself at work in early April 29, 2009 and applied for short-term disability benefits. With the exception of the week at work later in April 2009, the applicant did not attempt to return to work until September 29, 2009, approximately 6 months or 26 weeks later.

83Mr. Lawrie’s testimony was that he decided to terminate the applicant’s evidence after she had been absent for about two months, but his actions when the applicant attempted to return to work contradict that assertion. The applicant attempted to return to work on September 29, 2009 and Mr. Lawrie sent her home because of her disability, as noted above. When he sent the applicant home, he gave no indication that he had decided to terminate the applicant’s employment. Rather, he directed the applicant to advise him in advance before she returned to work. Similarly, the respondent refused the applicant’s request to return to work on October 2, 2009, again because he concluded that the applicant’s disability related restrictions prevented her from performing her duties and presented a safety risk. Mr. Lawrie advised that the applicant could not return to work until her mobility improved and could provide medical confirmation of her ability to work. Again, Mr. Lawrie did not indicate that the applicant’s employment was in jeopardy. On October 20, 2009, the applicant confirmed that her restrictions did not prevent her performing her job duties and proposed a return to work date. Only then, three weeks after was able to return to work, did Mr. Lawrie address the issue of the applicant’s employment status by terminating her employment. In these circumstances, I find it unlikely that the respondent had decided to terminate the applicant’s employment prior to her attempted return to work on September 29, 2009.

84The respondent resisted the applicant’s return to work because Mr. Lawrie concluded, incorrectly, that the applicant could not do her job because of her disability and could not be accommodated. The respondent dismissed the applicant when she produced a doctor’s note that confirmed that her disability did not prevent her from performing her duties or exiting the office in an emergency. While I accept that the respondent had been considering the applicant’s employment status for some time, I find that the respondent did not actually take the decision to dismiss her until it became clear that her disability was not a proper basis for preventing her from returning to work. In these circumstances, I find that the applicant’s disability was a factor in the respondent’s decision to terminate her employment. Consequently, the termination of the applicant’s employment also amounts to a violation of the applicants rights under section 5 (1) of the Code.

Post-dismissal benefits/section 45.1

85Following the completion of their evidence, the parties agreed to make their arguments by written submissions, which they filed and delivered in accordance with the Tribunal's directions.

86In its submissions, the respondent argued that the Application should be dismissed as an abuse of process because the applicant filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) that dealt with some of the same issues raised in this Application. The respondent noted that an Employment Standards Officer (“ESO”) dismissed the complaint and the applicant filed an Application for Review to the Ontario Labour Relations Board (the “OLRB”), which she later withdrew. In her reply submissions, the applicant made brief submissions to the effect that the Application was not an abuse of process. The issue of the proceeding under the ESA had not been previously raised by the parties.

87In my view, the issue of the ESO decision was more properly framed in terms of section 45.1 of the Code which states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

Accordingly, I directed the parties to file and deliver submissions regarding whether the ESO's investigation was a proceeding that appropriately dealt with the substance of this Application in whole or part. The parties again filed their submissions as directed by the Tribunal.

The Complaint

88The applicant filed a claim to the Employment Standards Branch of the Ministry of Labour, dated March 17, 2010. The applicant claimed that the respondent did not follow employment standards regarding unpaid wages, vacation pay/vacation time and termination pay. The applicant provided the following additional details regarding her claim for termination pay:

My notice period was 5 weeks. My notice of termination should have continued until November 25, 2009. My employer ended my benefits on October 31, 2009. Section 60(1)(c) of the Employment Standards Act says "benefit plan contributions" are required to be made "until the end of the notice." I am requesting my employer to instruct Great West Life to extend my benefit claims for the period of October 31, 2009 to November 25, 2009.

89An ESO investigated the applicant's claim and dismissed it in a decision dated December 20, 2010. The ESO summarized the applicant's claim, including the allegation that the respondent canceled her health benefits before the notice period ended. The ESO found that the applicant had in fact been overpaid in April 2009 and was not entitled to vacation pay. The ESO made the following determination regarding termination pay/benefits payments under sections 60 and 61 of the ESA:

Officer determined that the Claimant would have been entitled to a benefit portion amount of $47.27 for a five-week notice period being paid by the Employer; however, because she was overpaid when the Employer continued to pay her benefits while she was off sick, the Employer can re-coup the amount of the previous overpayment and not pay for the final month. Therefore, the Claimant is not entitled to any additional payments.

The applicant filed an Application for Review, i.e., an appeal, of the ESO’s decision to the Ontario Labour Relations Board (the “OLRB”). Amongst the grounds for review, the applicant stated that the ESO “failed to address whether the employer is responsible to direct the benefit company to accept benefit claims from the claimant for the full notice period to allow the claimant to submit medical costs during that time”. The applicant requested withdrawal of the Application for Review, which the OLRB granted in a decision dated April 1, 2011.

Analysis and Decision

90The Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code (the “B.C. Code”), which is nearly identical to section 45.1 of the Code.

91The Supreme Court of Canada found that section 27(1)(f) of the B.C. Code was intended to ensure finality in decision making and to avoid re-litigation of issues. The section did not confer upon the B.C. Human Rights Tribunal the authority to review the processes and decisions of other Tribunals. In assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, the Court stated that a Tribunal should ask itself two questions:

“…whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself…” (at paragraph 37).

92The Tribunal has found that the analysis adopted in Figliola, above, applies in Ontario and binds the Tribunal. See: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at paragraph 25.

93The Tribunal has found that an investigation by an ESO amounts to a proceeding under section 45.1. See Reid v. Advantage Personnel Limited, 2012 HRTO 1742; Pinheiro v. Maritz Canada, 2012 HRTO 540; Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443; and Cristiano v. Grand National Apparel Inc., 2012 HRTO 991. Anti-discriminatory legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers. See: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; and Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458.

94The Tribunal may consider whether the Application arises from the same facts as the other proceeding, whether the substance of the issues raised in each forum was substantially the same and whether the matter was appropriately dealt with in the other proceeding. In Paterno v. Salvation Army, 2011 HRTO 2298, the Tribunal stated as follows at paragraph 25:

This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an Application or part of an Application to succeed, the Application or part must be dismissed.

95In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”), the Tribunal applied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 and found that in deciding whether a human rights claim ought to be dismissed pursuant to section 45.1, the Tribunal must consider not only whether the issue in before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding. The Tribunal stated that this analysis involves taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights.

96I agree with the applicant’s submissions that the ESO’s decision did not deal with her allegations in this Application that the respondent did not accommodate her disability or that the termination of her employment was improper. The ESO did, however address the issue of the applicant’s benefit entitlement in the notice period. The facts regarding the applicant’s claim for benefits in the notice period are the same in this proceeding as in the ESO’s investigation. In both the complaint to the Ministry of Labour and in this Application, the applicant seeks to recover the costs she incurred for fertility drugs during the five week notice period the respondent provided to her. In my view, however, the ESO’s decision finding that the applicant had no entitlement regarding benefits in the notice period makes it impossible for this aspect of the Application to succeed, unless the Tribunal were to make contrary findings. The Tribunal has no authority to review ESO decisions; that is within jurisdiction of the OLRB.

97The applicant’s stake in the complaint to the Ministry of Labour was the same as in this Application and she had an opportunity to make her case to the ESO and also to have the ESO’s decision reviewed by the OLRB. In these circumstances, it would not in my view be within the reasonable expectation of the parties that the applicant would be able to withdraw from the process under the ESA designed to deal with employment standards issues to re-litigate the issue before this Tribunal. Consequently, I find that the ESO proceeding appropriately dealt with the issue of the applicant's entitlement to benefits in the notice period and that it would not be unfair to exercise my discretion under section 45.1. Accordingly, the allegations that the respondent cancelled her benefits during the notice period are dismissed.

remedy

98The applicant is entitled to a remedy for breach of her Code rights. The Tribunal’s remedial authority is set out in section 45.2 of the Code as follows:

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

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

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

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

99An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.

100In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 52-54:

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

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

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

Wage Loss

101The applicant requested damages in respect of wage loss of $50,000.00, the equivalent one year’s gross pay. I have found that the applicant’s disability was a factor in the termination of her employment, but it was not the only factor. I accepted Mr. Lawrie’s evidence that the respondent’s disputes with and ultimate rupture with several of its franchises reduced the amount of work for the office staff. I also accepted Mr. Lawrie’s evidence that he wanted to evaluate whether there was enough work for the applicant and was considering terminating her employment prior to her injury in April 2009. During the applicant’s absence, the respondent concluded that the applicant’s position was redundant because the office operated smoothly without the applicant. The respondent’s uncontradicted evidence was that it did not replace the applicant. As noted above, I found that the respondent did not decide to dismiss the applicant until she attempted to return to work in September and October 2009. In these circumstances, however, I find that it was more likely than not that the respondent would have eventually terminated the applicant’s employment in any event.

102This finding leads to the question of when the respondent would have terminated the applicant’s employment had her attempted return to work not triggered the decision. In my view, the evidence supports the respondent’s assertion that it concluded the applicant’s position was redundant. Consequently, I find it likely that the applicant would not have remained in the respondent’s employ for long, regardless of her disability, and I am not prepared to make a significant award in respect of wage loss for that reason. The applicant attempted to return to work on September 29, 2009 and in my view the respondent should have allowed her to work until it had taken its decision regarding her employment status. Accordingly, I find that the applicant is entitled to damages in respect of loss wages between September 29, 2009 and October 20, 2009, a three week period. There is no dispute that the applicant’s annual salary was $50,000.00 or $961.54 per week ($50,000.00 ÷ 52 = $961.54). Three weeks’ pay for the applicant was therefore $2,884.62, before deductions.

Damages for Injury to Dignity, Feelings and Self-Respect

103The applicant requested $50,000.00 in compensation for injury to dignity, feelings and self-respect. Objectively, loss of employment and the failure to accommodate disability related needs are serious matters. The applicant’s evidence regarding the effect of the violation of her Code rights on her, however, was not extensive. The applicant stated that she has experienced stress and anxiety and has developed high blood pressure. The applicant testified that the loss of her job left her dependent on her husband financially. The applicant stated that her doctor recommended that she cease fertility treatments due to the stress she is experiencing. She also stated that she cannot pursue fertility treatment as aggressively as she would like because of her financial circumstances following the loss of her job. The applicant’s evidence was that she has been prescribed medication for high blood pressure and to assist her with anxiety and to sleep. The applicant tendered a letter from her doctor dated April 27, 2012 as evidence of the effect the respondent’s conduct has had on her. The respondent objected to the document because it was hearsay and merely reflected what the applicant said to her doctor. I admitted the document subject to the weight I would place on it and I have decided that I will place no weight on it. First, the document is hearsay and the respondent had no opportunity to explore it with the author. Second, the document was drafted in August 2012, approximately three years after the events at issue in this Application. I note, however, that the letter states that the applicant’s high blood pressure was a recent development. Third, the document speaks to the effects, including stress, caused by the applicant’s injury, not the respondent’s actions and therefore has little probative value.

104I accept that the applicant experienced significant stress when she attempted to return to work in September and October 2009 and when the respondent terminated her employment on October 21, 2009. The applicant testified that she required medication to assist her with dealing with the stress she was experiencing and developed high blood pressure and I accept this evidence. However, the evidence before me provides no detail about the reasons for which her stress medication was prescribed and there is simply insufficient evidence to infer that the respondent’s actions led to her high blood pressure. The loss of her job left the applicant dependant on her husband financially. There was no evidence that the applicant and her husband were unable to meet financial obligations, but the loss of her income was significant and undoubtedly stressful for her. Without the income and benefits provided by her employment with the respondent, she was unable to pursue fertility treatments as aggressively as she wished and eventually ceased treatments because of the stress she was under. On the other hand, I have found that it is more probable than not that the applicant’s employment would have been terminated regardless of her disability, which in my view reduces the objective gravity of the termination of the applicant’s employment.

105The respondent refused to allow the applicant to return to work because of her disability, repeatedly breached its obligation to accommodate her and terminated her employment, in part, because of her disability. I find that the respondent’s actions caused the application humiliation and were an affront to her dignity and self-respect. In my view, damages of $10,000.00 are appropriate compensation in the circumstances of this case.

Non-Monetary Remedies

106The applicant submitted that the Tribunal should order the respondent to provide a written apology to the applicant and to provide her with a letter of reference. The Tribunal has generally declined to order parties to provide an apology because such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns. See Abdallah v. Thames Valley District School Board, 2008 HRTO 230 and Turnbull v. Famous Players, 2001 CanLII 26228 (ON HRT). The Tribunal has found that the same issues arise regarding a letter of reference. See Moore v. Curraghmore Farm Inc., 2013 HRTO 1586. I agree with the concerns described in the jurisprudence and I decline both requests.

Remedies for Future Compliance

107The applicant requested that the Tribunal order the respondent to train all staff and franchises on human rights policies. I do not believe there is a proper basis for me to require training for the respondent’s franchises. The circumstances of this case, however, indicate that the senior management for the respondent, Mr. Lawrie in particular, lacked an appreciation of their obligations under the Code. The respondent filed an anti-harassment policy with its Response, but there is no indication that the respondent has a general human rights policy addressing workplace rights and obligations under the Code, including the duty to accommodate. In my view, the respondent would benefit from human rights training and that a workplace human rights policy would also be beneficial. Accordingly, I find it appropriate to order the respondent to have its managerial employees complete the Human Rights 101 course, found on the Ontario Human Rights Commission website, and to develop a workplace human rights policy with the assistance of a third party expert.

108The Tribunal orders as follows:

a. Within 30 days of the date of this Decision, the respondent shall to pay the applicant $2,884.62, less deductions required by law, as compensation for lost employment income;

b. Within 30 days of the date of this Decision, the respondent shall to pay the applicant $10,000.00 as monetary compensation for injury to dignity, feelings and self-respect;

c. The respondent shall pay pre-judgment interest on the amounts described in paragraphs a. and b., above, from October 21, 2009 to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43. In the event that the respondent fails to make the payment described above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 the Courts of Justice Act, R.S.O 1990, c. C.43;

d. Brian Lawrie and all of the respondent’s employees who perform supervisory or management functions shall take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to the applicant within 90 days of the date of this Decision;

e. Within six months of the date of this Decision, the respondent shall develop, with the assistance of a third party expert in human rights retained at its expense, a workplace human rights policy, addressing, amongst other things, the rights of employees with disabilities and the duty to accommodate, and shall disseminate the policy to its employees and shall provide a copy of the policy to the applicant.