HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sharon Winning
Applicant
-and-
J.A. Kaytor Holdings Inc.
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Winning v. J.A. Kaytor Holdings Inc.
APPEARANCES
Sharon Winning, Applicant
Wade Poziomka, Counsel
J.A. Kaytor Holdings Inc., Respondent
Jim Kaytor, Representative
1This Application was filed on August 11, 2014 and alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent filed a Response denying the allegations against it.
3The applicant worked at the respondent, which is a Service Ontario license renewal establishment, as a part-time cashier from July 1, 2011 until her termination on November 20, 2013. Her supervisor was Karen Bobiash, who reported to Jim Kaytor, the respondent’s owner.
4An in-person hearing was held on May 1, 2015 and the Tribunal heard evidence from the applicant, Mr. Kaytor, and Ms. Bobiash, who was called as a witness by the respondent. All of the witnesses affirmed their evidence. The applicant adapted a witness statement for most of her examination-in-chief, along with supplementary evidence. The witness statement was marked as an exhibit. Mr. Kaytor was able to cross-examine the applicant on her witness statement along with the oral evidence that she gave. Based upon the consent of the parties, Ms. Bobiash was excluded from the hearing only during Mr. Kaytor’s evidence. At the time of her testimony, Ms. Bobiash was no longer an employee of the respondent.
5A conference call hearing was held on May 25, 2015 to hear the parties’ final submissions.
6The parties agree that the applicant was absent from work on November 18 and 19, 2013 as she was hospitalized due to medical issues pertaining to her heart, for which she had a number of tests. She returned to work on November 20. The applicant alleges that she was terminated at the end of her shift on November 20 because of her disability or perceived disability. The respondent denies that the applicant was terminated because of disability or perceived disability. It submits that she was terminated because of her disrespectful and insubordinate responses to Mr. Kaytor who raised concerns about a broken arm of a chair with her at the end of her shift on November 20, 2013. The respondent requests that the Application be dismissed.
the evidence
7On November 17, 2013, the applicant experienced severe and prolonged chest pains. She was taken to St. Joseph’s Hospital, in Hamilton, where she was assessed, admitted and treated. She was released on November 19, 2013. She has since been diagnosed with Chronic Obstructive Pulmonary Disease (“COPD”). The respondent does not dispute this diagnosis, but states that it was not aware of this on November 20, 2013.
8On November 18, 2013, while in the hospital, the applicant called the respondent and spoke with Ms. Bobiash. The applicant said that she would not be at work because she was hospitalized because of her heart. She did not speak with Mr. Kaytor.
9Ms. Bobiash, in her examination-in-chief, testified that the applicant never disclosed that she had a physical disability, a medical disability, or anything that would affect her job. She testified, in cross-examination, that Mr. Kaytor prepared her witness statement while she was still an employee and reported to him, and that she agreed with its contents, and signed it. She had not read the Application at the time that her witness statement was prepared.
10In cross-examination, Ms. Bobiash testified that she knew that the applicant had been hospitalized for two nights, had chest pains and medical issues, about which she told Mr. Kaytor, but at no time did the applicant say that she had a physical disability. She did not know if the applicant had a disability because the applicant was off only for a couple of days. A person could have medical issues and still work “fine” with no problem with their work. She agreed that a person could have a disability and still work. Ms. Bobiash testified that she was not sure that the applicant had a disability because she did not think that tests on the heart while in the hospital means that there has to be a disability, although it could be. She agreed that because of the applicant’s medical issues, and being in the hospital, it impacted the applicant’s work in that she missed some days of work.
11In his cross-examination, Mr. Kaytor confirmed that it was probably on November 18 that he learned the applicant was having some heart tests at the hospital, although he was not sure if he knew that she had been hospitalized. He thought that he learned this information from Ms. Bobiash, although he was not entirely sure if it was her or another employee. He did not know that he applicant had a disability based upon being in the hospital and having tests conducted.
12Up to this date, the parties agree that the applicant’s attendance had been very good. Mr. Kaytor introduced, during his examination-in-chief, earnings information for the applicant which, he testified, indicated that her attendance had been very good. In cross-examination, he agreed that the applicant’s attendance was amongst the best of his employees. The applicant was the only part-time employee and part of her job function was to provide lunch time relief to the full-time employees. The applicant would cover for other employees who were absent due to sickness or vacation, and would come into work early to cover such absences.
13Ms. Bobiash testified that the applicant’s attendance was the same, if not better, than other employees.
14Prior to November 20, 2013, Mr. Kaytor agreed, in cross-examination, that he had not given the applicant any formal discipline, reprimands, or verbal warnings, although he did not like some of her previous responses during their interactions. He had spoken to her on previous occasions, as did Ms. Bobiash, to clarify office procedures, but had never really entertained the thought of terminating her. He could not recall any specific examples about corrections that were warranted. He did testify that when correcting the applicant, she would get easily upset, which he interpreted as being part of her disposition, but he did not think she was insubordinate or disrespectful.
15Ms. Bobiash testified that the applicant could get her back up and could be hard to talk to at times. She confirmed that the applicant had never been previously disciplined.
16The applicant returned to work on November 20, 2013. She testified during her examination-in-chief that she was nervous about returning to work because she believed that Mr. Kaytor would give her a hard time about being away from work. She had heard from other employees that they had been given a hard time by him when they missed work due to pregnancy, illness, or bereavement. The applicant testified about examples where this occurred. In cross-examination, she admitted that she did not know if one employee, who had been sick, had asked for time off. She just knew that the employee reported to work and had been sick while at work.
17In his examination-in-chief, Mr. Kaytor testified that he is not a stern and exacting employer. He understands that people get sick and they need to take time off work when sick. He denied threatening employees with termination if they took too much time off work. He did not know that the applicant had a disability based upon being in the hospital and having heart tests. Ms. Bobiash, during her cross-examination, testified that she had heard Mr. Kaytor yell at customers, but not at employees.
18In cross-examination, Mr. Kaytor confirmed that he told a newly hired employee, who was pregnant, that it would be difficult to find a replacement for her during her pregnancy leave. He confirmed that he may have asked another pregnant employee to commence her pregnancy leave early as he had to hire a French speaking employee.
19Ms. Bobiash testified that another employee, who had not worked for very long, had been fired because she was absent from work for a couple of days due to issues pertaining to her children.
20The applicant was scheduled to work at 11:45 a.m. on November 20, 2013, but started working at 11:30 a.m. because she received a text from Ms. Bobiash asking if she could start work early because another employee was off work. That text was not produced during the proceedings. The applicant said that the earliest that she could start work was 11:30 a.m.
21Prior to receiving the text, the applicant testified during her examination-in-chief that Mr. Kaytor called her at approximately 10:00 a.m. to inquire about the status of her situation. When the applicant arrived at work, Mr. Kaytor was not present. He arrived later in the afternoon, at approximately 2:00 p.m., then left and returned at approximately 5:00 p.m. In his cross-examination, Mr. Kaytor testified that he did not recall calling the applicant that morning, although he could have. If he did call her, he testified in cross-examination, he would have asked if she was coming into work that day.
22Mr. Kaytor testified, in examination-in-chief, that sometime between 11:30 a.m. and 2:00 p.m., he arrived at the office and saw the applicant. He asked how she was doing as he had been told by Ms. Bobiash that the applicant had been in the hospital and doing tests. The applicant told him that things were okay. Mr. Kaytor admitted, during cross-examination, and after being referred to the Response, that he was aware that the applicant had some tests done on her at the hospital and that the tests pertained to her heart. He did not agree that he knew that the applicant had been hospitalized, but knew that she had been at the hospital for these tests. He assumed that the testing continued on November 19 as she had not returned to work at this point. He did not make any inquiries about this.
23Ms. Bobiash did not see the applicant and Mr. Kaytor talking together sometime between 11:30 a.m. and 2:00 p.m. Mr. Kaytor comes in and out of the workplace during the day.
24At the end of her shift, at 5:00 p.m., the applicant testified in examination-in-chief, she went to punch out of her shift and to speak with Ms. Bobiash. Mr. Kaytor was not present. He then arrived and asked the applicant how her “heart irregularity” was. The applicant told him that she did not have heart irregularity but another medical condition and Mr. Kaytor told her that was not what he had been told. The applicant testified that she told him that someone had given him the wrong information. This discussion took place out of the office and Ms. Bobiash was not present as she was in the office.
25Mr. Kaytor, in his examination-in-chief, denied saying anything to the applicant about her situation in the hospital and denied saying anything about an irregular heart. He was only concerned about the broken chair, which is discussed below. During his cross-examination, he testified that it never crossed his mind that the applicant would have future absences as a result of the testing she had.
26The applicant testified that at this point Mr. Kaytor told her that he wanted to show her something and he led her to the chair at the last station at the service counter. Ms. Bobiash was not with them, the applicant testified in cross-examination. Mr. Kaytor asked her if she had broken the chair, and the applicant told him that she had. It had broken sometime in October 2013 while she was making a telephone call. She had leaned against the arm of the chair and it bent while she had done this. During her examination-in-chief, the applicant estimated that it had broken approximately 15 shifts before November 20, 2013. Mr. Kaytor did not dispute that the chair was broken up to two weeks prior to the time that he found out about it, although he did not know the time frame of when the applicant bent it.
27The applicant testified that Mr. Kaytor was angry while speaking to her about the broken chair. He told her that he had spoken with a chair specialist and demonstrated how she must have gotten up and off the chair to break it and must have put all of her weight on it to break it. He alleged that this amounted to “chair abuse” and said that she was useless. The applicant testified that Mr. Kaytor would not listen to her explanation, and she asked him “are you for real” and asked if he was calling her fat. The applicant testified that between November 20, 2013 to the date of the hearing she had lost weight. She denied, in cross-examination, that Mr. Kaytor was calm and reasonable during their exchange. She asked Mr. Kaytor if she should pay for the chair, and then, testified that she said “no, I’m not going to pay”. Mr. Kaytor, she testified, did not have a response.
28The applicant testified, in examination-in-chief, that she could not believe that Mr. Kaytor was picking on her, just after she was released from the hospital, and after her work hours. She was scared and she wanted to go home as she had punched out. She started to walk away. She did raise her voice to ask if he was calling her fat, but denied stomping her feet or yelling. Further, she denied ranting and raving, or waving her arms, as alleged in the Response, as she did not think that her lungs would allow her to do this.
29Mr. Kaytor testified, during his examination-in-chief, that at approximately 5:00 p.m., the applicant and Ms. Bobiash were in the back office discussing something. He told the applicant that there was a situation with the chair, with damage done to it. He asked the applicant to come to the station with him, which they did. Ms. Bobiash was with them. He speculated, in cross-examination, that Ms. Bobiash came with them because she was interested and curious and wanted to know how the chair’s arm got bent.
30Mr. Kaytor testified that he had not previously asked the applicant about the broken chair because he did not know that it was broken until November 19 when the applicant was off work. It was the chair located at the end of the service counter, at the seventh station, and he does not usually go that far down the service counter. He found out that it was broken from one of the full-time employees who was sitting at that station. He could not recall that employee’s name during the hearing.
31In cross-examination, and after being asked what caused him to raise the broken chair issue with the applicant at this time on November 20, Mr. Kaytor testified that “all of a sudden” the broken chair “popped” into his head. It was at the end of the day, while the applicant was cashing out, and the crowds had gone. He denied, in cross-examination, that he asked the applicant about the broken chair because she had just been released from the hospital. Instead, he raised it because they needed some resolution on the cause of the breakage and a solution to correct it so it did not happen again.
32Mr. Kaytor, in his examination-in-chief, denied being upset or yelling at the applicant. He did not immediately accuse her of breaking the chair, but instead questioned her about the chair. He denied telling the applicant that she was useless and did not make any comments to imply that she was fat. In his experience of dealing with the applicant, he stated, she would become easily upset over discussions and questions pertaining to business operations. He testified that because of this, he tried to be careful and did not want to get her upset.
33The chair was a heavy gauge steel arm chair, Mr. Kaytor testified. Because of this structure, it would be difficult to bend the arm and he was curious about why it became bent. He did not suggest that the applicant pay for the chair, but wanted to come to a solution about why it was bent so that he would not have to buy arms to the chairs in the future. He and the applicant had a discussion where he was reasonable and calm. After approximately three to four minutes, Ms. Bobiash went back to her office. After Ms. Bobiash left, the applicant started to get visibly upset and started to yell. Mr. Kaytor testified that he could not talk to her at all, and because she was rambling, could only make out certain things like “you don’t believe me”. The applicant was having a tantrum or fit and was not listening to what he was saying. She stomped off past the row of stations and as she did that, Mr. Kaytor testified that he did raise his voice at her so that she could hear him. He told her that he did not “need this”. He considered her conduct to be abusive and contrary to the harassment policy and thought that he would terminate her.
34In cross-examination, Mr. Kaytor testified that initially the applicant was calm and she explained that she put her feet on the chair rung and then pushed herself onto the chair using her weight. They spoke for about two to three minute about how it happened and what they could do to not have this happen again. He denied consulting with a chair specialist.
35Mr. Kaytor testified that if the applicant had remained calm and discussed the chair with him rationally, or stated that she had difficulty getting up on the chair, or had a disability, or had a disability that prevented her from getting on the chair, he would have worked with her, like he works with other employees, and done everything possible to ensure that she could continue working. They could have remedied the situation, including having a step stool to assist her in getting onto the chair. In cross-examination, Mr. Kaytor testified that the chair cost between $250 and $300, but the cost did not matter because the chair was under warranty.
36In examination-in-chief, Mr. Kaytor testified that as soon as the applicant “started going off the wall”, and yelling at him, he thought this was disrespectful and decided, as she started to walk to the back, to let her go. He did not “need this” and did not need to “take this form of harassment”. In cross-examination, he testified that the applicant was visibly upset, ranting, raving and hysterical. She was walking around, waving her arms in the air, and yelling. He did not think that she was crying. He confirmed, in cross-examination, that she was having a fit after calmly telling him how the chair was broken. She was yelling, saying things like “you don’t believe me” and her tone was disrespectful. He could not recall everything that she was yelling. He confirmed, in cross-examination, that he did not ask the applicant why she was reacting this way and agreed that he had never previously addressed her behaviour towards him on other issues when she was combative, tense or upset.
37In cross-examination, Mr. Kaytor testified that the applicant’s comments and behaviour to him were discriminatory. They were disrespectful. He read from the harassment policy that they were vexatious. He confirmed, later in his cross-examination, that she did not make a discriminatory comment to him, although her comments were unwelcome, in tone, and through her body language.
38During his cross-examination, Mr. Kaytor confirmed that he terminated the applicant because of her behaviour, but denied thinking that her behaviour could be related to her disability. He maintained that at this point he did not know about her disability, thought that she had been to the hospital for tests and that she “seemed normal”. In cross-examination, he conceded that the applicant’s two day absence, while she was in the hospital, interfered with her ability to perform her job.
39After this exchange, Mr. Kaytor followed the applicant into the back room, where he asked for her keys and then he told her that she was fired. He did not give a reason why she was fired. She gave her keys to the till, as well as, her “stickers”. She did not have keys to the office. She testified that she told Mr. Kaytor “I’m going to charge you”, which meant take him to court. In cross-examination, she testified that Mr. Kaytor responded with, “good luck with that”.
40Mr. Kaytor, during his examination-in-chief, testified that he almost felt like calling the applicant back to work, except for the fact that she threatened to sue him. That did not sit right with him.
41Ms. Bobiash testified, during her examination-in-chief, that the three of them went to the back to look at the chair. In cross-examination she testified that she was “pretty sure, but not 100% sure” that she was present. She testified that she was not aware of the broken chair at this point, and had not been told previously about it. She testified, in cross-examination, about a chair that she used that had broken wheels, and that Mr. Kaytor had replaced the wheels. She also testified that Mr. Kaytor, by replacing the broken wheels, disregarded her suggestion to place a plastic mat under the chair so that the wheels would not break over the floor tiles.
42In examination-in-chief, Ms. Bobiash testified that she did not believe that Mr. Kaytor started screaming at the applicant, “not instantly no”, and that she was only there at the beginning. She did not recall him using the word “useless” towards the applicant, but thought that maybe he used the words “chair abuse”. In cross-examination, she testified that she thought the use of those words was a “little weird”. She did not recall Mr. Kaytor telling the applicant that she was fat, but recalled the applicant asking Mr. Kaytor if he thought she was fat. When she returned to her office, she heard their voices, which were elevated. In cross-examination, she testified that the applicant was upset that Mr. Kaytor told her that she must have put her weight onto the chair.
43In cross-examination, the applicant testified that she believed she was terminated because Mr. Kaytor thought that she would have to take time off due to her medical condition.
44Ms. Bobiash, in her examination-in-chief, testified that she went to the back again after hearing the voices getting louder to find out what was going on. The applicant was on her way out to the lunchroom and Mr. Kaytor said something like “I can’t do this anymore” and that he had had enough. He asked the applicant for her key and told her that he was going to let her go. She believed, in examination-in-chief, that he told the applicant that she was terminated before he asked for her key.
45In her cross-examination, Ms. Bobiash testified that she did not remember seeing the applicant pacing, having a fit, or stomping. She returned to her office and after a few minutes heard elevated voices coming from both of them. Mr. Kaytor and the applicant were at the opposite end of the building from where she was located.
46The applicant denied, in her cross-examination, that the respondent’s workplace harassment and violence policy was in the office while she was employed. She denied receiving a copy or being told about it. Mr. Kaytor testified, during his examination-in-chief, that he believed that the applicant was present when he told the other employees at a staff meeting about the harassment policy at the beginning or middle of September 2013. The policy was posted on the bulletin board. Mr. Kaytor testified that despite the policy, he expects interactions between employees with each other and with their employer to one of mutual respect and courtesy to one another.
47Ms. Bobiash testified that she was not positive if the applicant received the harassment policy because she is a part-time employee. The policy was posted on the bulletin board behind the work stations.
48Mr. Kaytor denied that he terminated the applicant because of a disability or because of a medical condition that made it difficult for her to continue working. He terminated the applicant because she demeaned him and did not give him mutual respect or communicate with him reasonably.
49During her examination-in-chief, Ms. Bobiash testified that she thought that the applicant was terminated because of what happened on November 20, 2013 between the applicant and Mr. Kaytor. The situation became elevated and their tempers flared and he told the applicant that she was fired. The applicant had never been previously disciplined and there is not much discipline that occurs at the respondent. She confirmed, in cross-examination, that only Mr. Kaytor makes the decision to terminate someone, not her.
the law
50The relevant sections of the Code are sections 5(1), 10(1) definition of disability, and 10(3). They state:
5(1) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
10(1)…. “disability” means,
(a)Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness, and without limiting the generality of the foregoing, diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.
onus of proof
51The initial evidentiary burden is on the applicant to establish on a balance of probabilities that a prima facie case of discrimination exists. See Shaw v. Phipps, 2012 ONCA at paras. 11 to 12, and Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”) at para. 56. A prima facie case is described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.
52Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence to demonstrate, on a balance of probabilities that the applicant’s allegations do not amount to discrimination. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground. See Pieters, above, at paras. 73 – 74.
53The Tribunal has consistently held that an applicant must prove his or her allegations against a respondent on a balance of probabilities and that to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. See F.H. v. McDougall, 2008 SCC 53 at para. 46. The Court held that courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah v. George Brown College, 2009 HRTO 920 at para. 23.
54Furthermore, the Tribunal and the courts have recognized that discrimination can be proven by direct evidence or circumstantial evidence. The applicant may rely upon circumstantial evidence. That is, evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to support such an inference. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. See Mangal v. Molson Toronto Brewery, 2011 HRTO 575 at para. 8. There is recognition that in some types of cases a respondent is uniquely positioned to know why they refused an applicant employment or asked a person for identification, such that a respondent’s evidence is often essential for determining what happened and what the reasons for a decision or action were. See Shaw, above at para. 72.
55In proving discrimination, an applicant must prove:
a. That she is a member of a group protected by the Code;
b. That she has been subjected to adverse treatment in the workplace or in respect of her employment; and
c. That this adverse treatment occurred as a result of the applicant’s membership in that protected group
See Pieters, above, at para. 56.
credibility of witnesses
56The Tribunal is often required to decide issues of credibility between the parties and their witnesses. In this case, I have had to make such findings of credibility given the divergent evidence I have heard in this case.
57In making those findings, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v.Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed. It held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
58Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors that have been considered by the Tribunal in assessing reliability and credibility, including:
The internal consistency or inconsistency of evidence;
The witness’ ability and/or capacity to apprehend and recollect;
The witness’ opportunity and/or inclination to tailor evidence;
The witness’ opportunity and/or confirmatory evidence;
The existence of corroborative and/or confirmatory evidence;
The motives of the witnesses and/or their relationship with the parties;
The failure to call or produce material evidence.
See, Shah v. George Brown College, 2009 HRTO 920 (“Shah”) at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.
59A conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as, findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, as discussed in Shah, above, a finding of lack of credibility with respect to one aspect of a witness’ testimony does not automatically render the entirety of the witness’ evidence as non-credible.
60I find that the applicant was generally credible. Her evidence was internally consistent and consistent between the Application, her witness statement, which was adapted as part of her examination-in-chief, and her cross-examination. She did make some admissions against her interest, such as admitting that she raised her voice during her discussion with Mr. Kaytor and walking away from him. My findings with respect to her credibility are set out below.
61I find that Ms. Bobiash was generally credible. At the time of her testimony, while she came voluntarily as a witness for the respondent, she was no longer an employee of the respondent and had no personal gain in the outcome of the Application. She was responsive to questions asked by both parties and provided answers that did not always assist the respondent.
62I found that Ms. Bobiash’s understanding of “disability” as defined by the Code was very limited, given the focus in her evidence that the applicant did not have a “physical disability”. During her cross-examination, it became apparent that the witness statement that she signed in September 24, 2014 was drafted by Mr. Kaytor, although she agreed with its contents, and she had not been given the Application to read before signing her witness statement. She only knew that the applicant had a charge against the respondent based upon the respondent knowing that she had a disability. This limited Code knowledge did not affect my finding that she was generally credible.
63I did not find Mr. Kaytor to be a credible witness. I found that his evidence was, at times, inconsistent, vague, and forgetful. For example, he could not provide any examples of the times, and/or dates for which he had concerns with the applicant’s response to performance issues that he raised with her. He did not cross-examine her on this point. He could not recall the name of the full-time employee who told him about the broken chair, and did not identify it in the Response. His lack of recall on this point was somewhat strange given that he had recently learned of the damaged chair. His voice became raised and loud during his cross-examination, which was vigorous, in contrast to his examination-in-chief, and he sometimes placed his hand over his mouth. His evidence was inconsistent within his testimony itself and the Response about what knowledge he had about the applicant being hospitalized and having tests conducted on her heart. At the beginning of his examination-in-chief, he testified that he knew that the applicant had been hospitalized with tests being conducted because he had been told this by Ms. Bobiash. However, in cross-examination, he testified that he did not know that the applicant had been hospitalized, but thought she could have been attending on a daily basis, and did not recall who told him about the applicant. In the Response, he did not mention the hospital at all, and claims, at one part of it, that he knew nothing about the applicant’s medical condition.
64Finally, I find his evidence about the applicant’s response to the broken chair to be exaggerated and not supported by the evidence of his own witness, Ms. Bobiash, as well as the assertions in the Response that the applicant “broke several rules” of the harassment policy when he admitted, in cross-examination, that the applicant did not make any discriminatory remarks.
did the applicant have a disability?
65The applicant now has Chronic Obstructive Pulmonary Disease (“COPD”). The respondent does not dispute that this constitutes a disability under the Code, however, it submits that it did not know that she had this as of the time of her termination. The question before the Tribunal is whether the applicant had a disability or perceived disability at the time of her termination and if so whether that was the basis for, or a factor in, her termination.
66The definition of “disability” as set out above, is very broad. It also includes “perceived disability” under section 10(3) of the Code. See McLean v. DY 4 Systems, 2010 HRTO 1107 at para. 49 (“McLean”) and Quebec v. Montreal; Quebec v. Boisbriand, 2000 SCC 27 at para. 81.
67At set out in McLean, above, at para. 49:
The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de law personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, [2000] 1 S.C.R. 665. For example, if an employer believes that an employee’s condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.
68While the applicant did not have a diagnosis of COPD until after her termination, I find that the respondent perceived the applicant to have a disability or a medical condition that would interfere with her work, and/or her ability to attend work as of November 20, 2013.
69I accept Ms. Bobiash’s evidence that she and Mr. Kaytor knew that the applicant had been hospitalized for two nights and was undergoing heart tests. In my view, having an employee hospitalized and undergoing heart tests is not something to be treated lightly. It gives rise to the possibility that there is possibly a serious medical condition and/or a medical condition which could cause future absences from work.
70There was a lot of focus on the applicant’s medical condition on November 20, 2013 by the respondent. The applicant testified that Mr. Kaytor called her at home that morning to ask how she was. Mr. Kaytor did not recall calling her but said that he may have. It seems probable that the respondent was trying to ensure that she attended work this day. In the Response, Mr. Kaytor wrote that employees who were not coming into work “would usually inform my assistant manager who would then inform me later that day”. Therefore, it is unusual that Mr. Kaytor called the applicant. It is more surprising that Mr. Kaytor called her given that Ms. Bobiash, separately, was communicating with the applicant about coming into work early.
71The evidence of the applicant, agreed to by Ms. Bobiash, was that Ms. Bobiash had contacted the applicant to see if she could come into work early because two employees were absent that day. The applicant said that she could come in early, but only 15 minutes before the start of her shift. It is not clear from the evidence if the applicant’s medical condition contributed to her not coming in early (some of the evidence was that she had to shower), but she did not come into work as early as when Ms. Bobiash wanted her to start.
72There were certainly efforts being made by the respondent before the applicant attended work on November 20 to find out about her medical situation, and to see if she could arrive before her regularly scheduled shift. The fact that the applicant was a reliable employee who worked lots of additional hours in the past, but could not on her first day back to work after being released from the hospital, contributed to a finding that the respondent perceived her to have a disability, and one that negatively impacted its business operations.
73The applicant testified that later in the day Mr. Kaytor asked her about her “heart irregularity” to which she told him that she had another medical condition and then he immediately told her that he wanted to speak to her about the broken chair. I accept the applicant’s evidence on this point over Mr. Kaytor’s denial, in light of the inconsistencies he presented during his testimony about his knowledge of the applicant’s medical situation. As the hearing progressed, Mr. Kaytor’s knowledge became more and more limited from what he had acknowledged knowing in the Response and at the start of his examination-in-chief.
74Finally, Mr. Kaytor testified, during his examination-in-chief, that the applicant, at the end of her shift, “seemed normal”.
75Against this medical information was the evidence that the applicant had good attendance, and that her attendance was amongst the best of the respondent’s employees. The respondent needed the applicant, as its only part-time employee, whose job duties included providing lunch time relief for the full-time employees, and providing back up when full-time employees were absent for vacations and other absences. She had a two day absence, which negatively impacted her job, and the absence had occurred unexpectedly. If the applicant was going to be unexpectedly absent again, presumably, this would create some difficulty for the respondent’s business operations.
76A “disability” or “perceived disability” under the Code does not have to be a physical disability. There was a lot of focus in the examination-in-chief of Mr. Kaytor and Ms. Bobiash, as well as Ms. Bobiash’s witness statement, that the applicant did not have, or tell the respondent, that she had a physical disability.
77Based upon the above, I find that the respondent perceived the applicant to have a disability or a medical condition that was going to negatively impact on either her work performance, by missing work, or creating difficulties in covering her absences.
was disability the reason for termination or a factor in decision to terminate her?
78While I heard evidence about the respondent’s alleged treatment towards other employees, including those who were pregnant and or who had children, ultimately that evidence is not helpful for me, although it does confirm that attendance of employees, or difficulties replacing them, are a concern for the respondent. The issue I have to determine is whether the applicant was terminated because of disability or perceived disability, or whether it was a factor in her termination.
79This case is not based upon a direct comment amounting to discrimination. Instead, it is based upon circumstantial evidence. In reviewing the pleadings and the evidence presented at the hearing, I find that the applicant was terminated, by Mr. Kaytor, because of perceived disability.
80The timing of her termination is suspect. The applicant, who had no previous warnings or discipline about performance, is terminated at the end of her shift on her first day back from work after being hospitalized. Mr. Kaytor knew, or ought to have known, that by being hospitalized, with testing done to the applicant’s heart, there was a possibility that the applicant had a significant medical condition.
81The respondent attempted to learn more about the applicant’s medical condition when it contacted her in the morning of November 20. The applicant testified that she was contacted by both Mr. Kaytor and Ms. Bobiash that morning. Mr. Kaytor wanted to find out how she was feeling and if she was coming to work. While he did not recall calling her that morning, he testified that he could have.
82Ms. Bobiash contacted the applicant about coming in for work early because two employees were not at work this day. The applicant testified that she could not come in as early as Ms. Bobiash wanted her to come in, because she needed to shower and do other tasks, but she did arrive 15 minutes before her shift was scheduled.
83Mr. Kaytor knew, by November 20, that the applicant had been hospitalized, had heart tests, and that she missed work because of this. He knew that she had the best attendance amongst all of his employees and that as a part-time employee whose regular function was to fill in for full-time employees during their lunch break and work additional hours when employees were absent for sickness, vacation or other reasons. She was the only part-time employee and he needed her best attendance to continue so as to meet the respondent’s operational needs. He knew that she had been contacted on November 20 to come into work early, but that she had arrived only 15 minutes before the start of her shift.
84The applicant worked her entire shift without incident. Then, after she cashes out and is talking to Ms. Bobiash, Mr. Kaytor suddenly remembers about the broken arm chair and decides that it is urgent enough to discuss with the applicant even though she has punched out of her shift.
85I accept the applicant’s evidence, over Mr. Kaytor’s, that he asked her about her heart “irregularity”. I accept that the applicant told Mr. Kaytor that she did not have heart irregularity, but another medical condition, and then he immediately told her he wanted to speak with her about something and took her to the broken chair. I accept her evidence over Mr. Kaytor’s evidence for several reasons. The applicant’s evidence on this point has been consistent between her Application, her witness statement and her viva voce evidence.
86Mr. Kaytor’s evidence was also consistent between the Response and his evidence. However, I have found him not to be a credible witness. His evidence was, at times, inconsistent, vague and forgetful. His voice became raised during cross-examination, and he would sometimes put his hand over his mouth. He could not remember issues that he had raised with the applicant where she had gotten upset, and could not recall the name of the full-time employee who told him about the damaged chair. As I have found above, Mr. Kaytor’s knowledge about the applicant being in the hospital, the testing on her heart, changed during the hearing and became more limited.
87The urgency to speak with the applicant is surprising, and Mr. Kaytor did not really address this in his evidence apart from saying that it just “popped” into his head. The applicant had already punched out and ended her shift, it was the day after she had been released from the hospital. The chair had been broken for some time, and Mr. Kaytor learned about the breakage before November 20. Ms. Bobiash, the manager, did not know that the chair was broken. Furthermore, while Mr. Kaytor could not remember the name of the full-time employee who told him it was broken (which is surprising given he was told this a few days earlier), he remembered that it was under warranty.
88I accept Ms. Bobiash’s evidence that she initially attended the seventh work station at the customer counter along with Mr. Kaytor and the applicant, despite the applicant testifying that she did not recall Ms. Bobiash being present. Ms. Bobiash was no longer an employee of the respondent at the time of the hearing, and there was no motive suggested about why her evidence would not be credible on this point. I accept her evidence that she was there initially, and then she went back to her office, leaving Mr. Kaytor and the applicant alone.
89I do not accept Mr. Kaytor’s evidence that he remained calm during his discussion with applicant, and treated the applicant with “kindness and respect”. While initially, Mr. Kaytor and the applicant may have been calm with one another, their discussion escalated into a heated exchange after Ms. Bobiash left the area. The Response indicates, at para. 9, that he raised his voice to the applicant, albeit as she walked away. The applicant testified that Mr. Kaytor was yelling so she had to raise her voice to be heard. Ms. Bobiash testified that they were at the opposite end of the building from where she was located, but she could hear that both of their voices were elevated.
90I accept the applicant’s evidence that she felt that Mr. Kaytor was picking on her in his discussions about the broken chair. Upon reviewing the evidence, it appears that Mr. Kaytor was trying to provoke a strong reaction from the applicant about the broken chair, particularly as the parties agree that the applicant agreed that she damaged the chair. Both Mr. Kaytor and Ms. Bobiash testified that the applicant would get her back up and could be difficult to speak to about issues. Mr. Kaytor testified that he thought this was part of the applicant’s disposition, but was not insubordinate or disrespectful in the past.
91I do not accept Mr. Kaytor’s denial to using the words “chair abuse” or alleging or inferring that the applicant was fat. Instead I accept the evidence that the applicant and Ms. Bobiash gave on these issues that Mr. Kaytor alleged that the applicant engaged in “chair abuse” to break the arm of the chair, and either said or implied that the applicant was “fat”. Ms. Bobiash testified that she heard Mr. Kaytor use the words “chair abuse”, which she thought was a weird choice of words to use. She also heard the applicant ask Mr. Kaytor if he was calling her fat, which supports the applicant’s evidence that Mr. Kaytor either said or implied that the applicant was fat.
92I also do not accept Mr. Kaytor’s position, as set out in the Response and in his evidence, that he wanted to discuss the broken chair with the applicant to find out not only how the damage occurred, but to come to a solution on how to avoid similar damage to other chairs in the future. His accusation that the applicant engaged in “chair abuse” undermines the explanation that she provided about how the damage was done, and implies that she deliberately damaged the chair. This allegation was unnecessary given that the chair was under warranty.
93I do not accept the respondent’s position that the applicant threw a fit, stomped about, and waved her arms, although I find that the applicant did raise her voice and did walk away from Mr. Kaytor and the broken chair after he alleged that she deliberately broke it either through her conduct or her weight. The applicant concedes that her voice was raised and she walked away from him, which is supported by Ms. Bobiash’s evidence.
94Mr. Kaytor determined that the applicant’s conduct was disrespectful, discriminatory, violated the respondent’s workplace harassment policy, and decided to terminate her. Whereas he had accepted at other times that this was part of her disposition and was not insubordinate or disrespectful, on her first day back to work after having a series of medical tests in the hospital, he decided that her conduct violated the respondent’s workplace harassment policy, was disrespectful and demeaning, and he terminated her. He made this decision without asking the applicant why she was responding this way and without asking if her response was related to her medical condition.
95The respondent’s workplace harassment policy, which was entered as an exhibit, is brief and worded very generally. It defines “workplace harassment” as:
Engaging in a course of vexatious comment or conduct against a worker in a workplace – a comment or conduct that it known or ought reasonable [sic] to be known to be unwelcome. This includes but is not limited to: Yelling, swearing, verbal intimidation, and remarks that are racist and discriminatory in nature.
96The respondent’s workplace violence policy was also introduced as an exhibit. It too is briefly worded. It contains the following:
Violent behaviour in the workplace is unacceptable from anyone. This policy applies to fellow employees, management, visitors and customers we serve, delivery persons, and volunteers, etc.
97During his cross-examination, Mr. Kaytor conceded that the applicant did not make a discriminatory comment to him during their exchange about the chair, despite his assertion in the Response and his examination-in-chief that she did. Broadly interpreting the harassment policy to include non-Code related grounds, this leaves “yelling” as a possible breach of the harassment policy which the applicant may have triggered when she raised her voice to speak with Mr. Kaytor. (Mr. Kaytor may also have triggered the harassment policy when his voice was elevated too).
98In neither policy is there mention of discipline that could be imposed upon an employee if a breach of that respective policy is found. The parties agree that the applicant had no disciplinary record. She had never been warned about her reactions to previous issues raised with her, and Mr. Kaytor was extremely vague in his evidence about what those previous issues could have been. The evidence is that Mr. Kaytor did not give the applicant a reason for her termination. This is supported by the Record of Employment which lists a code “M”, “dismissal” without providing any further details. There is no letter of termination setting out the reason. It is more probable than not for an employer to tell an employee, at the time of termination, that the termination is based upon her disrespectful behaviour. Accordingly, it is difficult to accept, as the respondent suggests, that the applicant’s conduct on this day was so significant that was a breach of either policy and warranted immediate termination.
99Instead, for the reasons set out above, I find that the respondent perceived the applicant to have a disability and that this was the basis her termination from the respondent.
remedies
100Having found that the respondent breached the Code, I turn now to the question of the appropriate remedy in the circumstances. The Tribunal’s remedial jurisdiction is based on sections 45.2(1) and (2) of the Code.
101The applicant is now seeking $30,000 for general damages, this amount reduced from the $75,000 claimed in the Application, $11,433.50 as loss of wages, $83.78 as out-of-pocket losses, pre-judgment and post-judgment interest, and an order that the respondent be required to undergo human rights training by a part-time member of the Tribunal, as well as, Human Rights 101 training.
102It is well-established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator. Intention to discriminate is not a governing factor in construing human rights legislation. See Ontario Human Rights Commission v. Simpsons-Sears 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. It is the result or effect of the alleged discriminatory action that is significant. See also Nemati v. Women’s Support Network of York Region, 2010 HRTO 328 at para. 112.
103The applicant testified that she was very upset about being terminated. She was at a vulnerable stage, having just been released from the hospital, for undergoing a series of tests related to her heart, and was unsure what her medical situation was. She was terminated at the end of her first shift back to work. She is a widow, with a daughter in university, and did not know how she was going to pay for her mortgage and look after her daughter. The termination did not make any sense and she could not believe what had happened to her. She borrowed money to pay her mortgage until she received Employment Insurance (“EI”) benefits.
104In cross-examination she agreed that her termination did not have an impact on whether she obtained full-time or part-time employment and that she started searching for alternative employment right away. In fact, Exhibit 1.5, which detailed her job search efforts, reveals that the applicant started her job search the day after she was terminated.
105Her evidence is that following her termination, she accepted temporary assignments through two temporary employment agencies, and earned a total of $4,231.75. On or about June 23, 2014, she found employment with Randstad Canada, another temporary agency, and was placed at Maple Leaf Canada. She was paid $15.00 per hour and worked approximately 40 hours per week.
106She worked continuously for Randstad Canada until on or about January 19, 2015 at which time she obtained full-time employment directly with Maple Leaf Canada, where she continued to be employed as of the dates of the hearing.
107Her loss of wages during this relevant time is, she submitted, $11,433.50 for the period November 20, 2013 to June 23, 2014. She provided documentation in support of her loss of wages claim, which was filed as exhibits. She also provided documentation establishing that she incurred out of pocket benefit expenses in the amount of $83.78, for which she would have been covered by the respondent.
108Furthermore, she received Employment Insurance (“EI”) benefits following her termination from the respondent. She understands that a loss of wages award will trigger an EI overpayment.
Damages for Injury to Dignity, Feelings and Self-Respect
109In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal, at paras. 52-54, summarized the principles on which damages under section 45.2(1) 1 are awarded:
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 941 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.
110This case is about the termination of a part-time employee with two years and four -months’ worth of service. I have found that the respondent perceived the applicant to have a disability and terminated her on that basis. She was terminated while she was in a vulnerable state, having just been released from the hospital, with an uncertain medical condition. She is a widow, and was supporting a daughter whose education was not yet completed.
111The applicant urged me to follow Chittle v. 1056265 Ontario Inc. 2013 HRTO 1261 (“Chittle”), in awarding $30,000 to the applicant as compensation for injury to dignity, feelings and self-respect. In Chittle, above, the applicant was a widower who was terminated after being hospitalized for concerns with his heart. He was a short term employee, with approximately four months of employment, and was only able to manage because his son moved in with him to help him pay his expenses.
112I decline to award $30,000, as I find that such higher amount in more in line with what has been awarded in case involving longer term employees. Instead, I find that $15,000 is appropriate as compensation for injury to dignity, feelings and self-respect, given the fact that the applicant was a short term, part-time employee, and was in a very vulnerable situation having been just released from the hospital where she underwent testing of her heart. However, her medical condition did not impact her ability to look for alternate work, which commenced the day after she was terminated, and that she started in early January 2014. This $15,000 payment is similar to general damages in that no deductions are to be made from it.
113Pre-judgment interest, in the amount of 1.3% as set out in section 128 of the Courts of Justice Act (“CJA”), is also awarded as of August 28, 2014, the date the Tribunal sent the Application to the respondent.
114Post-judgment interest is ordered on any amounts that remain outstanding after 30 days after the Decision is dated at the rate of 3.0% pursuant to section 129 of the CJA.
Loss of Wages
115Pursuant to section 45.2 (1), above, an applicant who proves a breach of section 5 of the Code is entitled to compensation for wage loss arising out of the discriminatory act. The purpose of the compensation is to place the applicant in the position that she would have been had the discrimination not occurred. See Ontario Human Rights Commission v. Impact Interiors Inc. 1998 CanLII 17685 (ON CA) at para. 2, and Whale v. Keele North Recycling, 2011 HRTO at para. 58, judicial review dismissed, Keele North Recycling v. Human Rights Tribunal of Ontario, 2013 ONSC 268 (Div. Ct.).
116The Courts have made it clear that the power of the Tribunal to order compensation under the Code is not subject to the limits on compensation which is imposed by the common law with respect to claims for wrongful dismissal. See Piazza v. Airport Taxicab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 (C.A.), recently confirmed by the Divisional Court in Systemgroup Consulting Inc. v. Mcconaghie, 2015 ONSC 2213 at para. 7.
117There was no evidence that the applicant’s employment would otherwise have been terminated had she continued to be employed by the respondent. The respondent did not challenge the applicant’s mitigation efforts, which, as I noted above, were commenced the day after she was terminated.
118Accordingly, I find that it is appropriate to award the applicant $11,433.50 for loss of wages from the date of her termination until the date that she obtained full-time employment on January 19, 2015. This amount is less statutory deductions.
119Pre-judgment interest on the loss of wages, at the rate of 1.3% under section 128 of the CJA, shall run from March 5, 2014, which is an approximate mid-point in the period for which compensation for wages is being ordered, to the date of the Decision. See Budd v. 783720 Ontario Inc., 2015 HRTO 825.
120Post-judgment interest is ordered on any amounts that remain outstanding after 30 days after the Decision is dated at the rate of 3.0% pursuant to section 129 of the CJA.
121I also order the respondent to pay the applicant $83.78 for out-of-pocket benefit expenses.
Future Compliance Orders
122Subsection 45.2(2) of the Code confirms that 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 may be made “even if no order under that paragraph was requested”. In the circumstances of this case, I am of the opinion that a public interest order that promotes future compliance is appropriate.
123The applicant has requested that the respondent, including Mr. Kaytor and the respondent’s management, receive human rights training from a part-time Tribunal member, as well as take the Ontario Human Rights Commission’s (“the Commission’s”) e-learning course, Human Rights 101. During his final submissions, Mr. Kaytor stated that the respondent received training in 2014 as Service Ontario required all employees to be informed.
124Notwithstanding some training that Mr. Kaytor commented about, I find that it is appropriate for the respondent to receive human rights training, focussed on employment, from an expert in human rights, not specifically a part-time member of the Tribunal, within 90 days of the date of this Decision. While not requested, I also find it appropriate for the respondent to draft a human rights harassment and discrimination policy which reflects the enumerated grounds in the Code, and have the human rights expert review such policy, also within 90 days of the date of this Decision.
125I also find it appropriate for Mr. Kaytor to take the Commission’s e-learning course, Human Rights 101, which is found on the Commission’s website at www.ohrc.on.ca/en/learning/elearning, within 90 days of the date of this Decision.
126Within 90 days of the date of this Decision, Mr. Kaytor is directed to provide proof that the respondent has received human rights training and drafted a human rights harassment and discrimination policy to the applicant’s counsel, and to provide proof to the applicant’s counsel that he has taken the Commission’s e-learning course, Human Rights 101.
order
127The Tribunal orders the following:
Within 30 days of the date of this Decision, the respondent shall pay the applicant the amount of $15,000 as monetary compensation for injury to dignity, feelings and self-respect, along with pre-judgment interest from August 28, 2014 at the rate of 1.3% in accordance with section 128 of the Courts of Justice Act;
Within 30 days of the date of this Decision, the respondent shall pay the applicant the amount of $11,433.50, less deductions required by law, as loss of wages, along with pre-judgment interest at the rate of 1.3% pursuant to section 128 of the Courts of Justice Act on any amounts;
Within 30 days of the date of this Decision, the respondent shall pay the applicant the amount of $83.78, less deductions required by law, as out-of-pocket expenses;
The respondent shall pay the applicant post-judgment interest in accordance with section 129 of the Courts of Justice Act on any amounts in paras. 1 to 3 that have not been paid within 30 days from the date of this Decision;
Within 90 days from the date of this Decision, the respondent shall receive human rights training from an expert in human rights and provide proof of such training to the applicant’s counsel;
Within 90 days from the date of this Decision, the respondent shall draft a human rights harassment and discrimination policy, pertaining to employment and provide proof to the applicant’s counsel; and,
Within 90 days from the date of this Decision, Jim Kaytor shall take the Commission’s e-learning course Human Rights 101, and shall provide proof of such training to the applicant’s counsel.
Dated at Toronto, this 21st day of August, 2015.
“Signed by”
Alison Renton
Vice-chair