HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dianne Flynn
Applicant
-and-
DGN Marketing Services Ltd.
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Flynn v. DGN Marketing Services Ltd.
APPEARANCES
Dianne Flynn, Applicant
Self-represented
DGN Marketing Services Ltd., Respondent
Paul Valtas, Representative
Introduction
1This is an Application filed under section 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.
2Specifically, the applicant alleges that although the respondent accommodated her disability for eighteen months, one of the reasons for their choosing to terminate her employment was her disability. The respondent takes the position that the reasons for terminating the applicant’s employment were totally unrelated to her disability and deny that their actions amount to an infringement of the applicant’s rights under the Code.
3A hearing into this Application was held in Toronto. I heard from the applicant on her own behalf and from Paul Valtas, the director of the respondent’s human resources department at the material time.
4For the reasons that follow, this Application is dismissed.
the law
5The relevant sections of the Code are as follows:
(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.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
10.(1) In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
the facts
6The applicant was employed by the respondent company from September, 1989 to the time of the termination of her employment without cause in January, 2009. The respondent is a warehouse and distribution company that warehouses and distributes promotional products for various customers such as General Motors, Shell, CIBC and others.
7The applicant’s initial job was that of a “picker” in the warehouse and at the time of her departure, she was employed as a distribution co-ordinator, an administrative position involving processing distribution orders and coordinating jobs to be executed on the warehouse floor.
8The applicant describes three occasions on which she suffered some injury while at the respondent workplace. She first injured herself in June, 2007, when a metal rod fell off some boxes and hit her on her head, upper back and shoulder. She also described an incident in December 2008, while outside during a break, when some snow fell off a tree and onto her head. Finally, she alleges that on January 26, 2009, while outside during another break, she fell backwards into a snow bank.
9The first incident in 2007 resulted in the applicant applying for and receiving Workplace Safety and Insurance Board (“WSIB”) benefits for a time. She sought and received accommodation in the form of ergonomic devices such as: a specially designed chair, document holder, foot rest, wrist support, telephone head set and a screen dimmer on the computer. She also occasionally work dark glasses indoors, her hours of work were modified to allow her to avoid driving during rush hour traffic, adjustments were made to her workload, and she was able to take time off to attend medical appointments with pay.
10The parties agree that the applicant was able to successfully perform the duties of her position with the accommodations in place for the following eighteen months until her employment was terminated.
11The respondent also acknowledges that the company had heard about snow falling off a tree onto the applicant’s head in December 2008 but deny knowing she had been hurt during this event. The applicant alleges that she suffered a concussion as a result of the snow falling onto her head on this occasion but did not indicate that she had either told the employer about a concussion or requested any specific accommodation connected to this event.
12Although the applicant gave evidence that she had told the company’s health and safety representative two days after the incident, on January 26, 2009, that she had fallen backwards into a snow bank and hurt herself while out smoking during her break, the company indicates they had no knowledge of this incident. In any event, Paul Valtas, who was the Director of Human Resources at the time, says that the decision to terminate the applicant had already been made.
13The applicant testified that she was caught off guard by the termination. She had never had any performance related concerns relayed to her and she wanted to keep working.
14After she was let go, she tried to find other work. She went to an employment agency, which found her a temporary job in April, 2009 at a soap company. Unfortunately, she developed a skin condition from the chemicals in the soap and could not do the job.
15She then found another job in a warehouse in August, 2009 doing inventory. That job only lasted four weeks and she was let go. After that, the agency did not send her to any other jobs.
16The respondent company paid her until August, 2009. She then applied for unemployment insurance benefits in October, 2009. She began receiving benefits in December, 2009 and her claim ran for approximately 48 to 50 weeks.
17As her health deteriorated, she applied for Canada Pension Plan disability benefits in 2010 and after appealing an initial denial, was granted disability benefits.
18The applicant believes that she was let go by the respondent company because of her disability. The General Motors (“GM”) account, which was the primary account that she worked on, was not cancelled and some of her work continued to be done by co-workers who had not been let go.
19The evidence given by Paul Valtas did not diverge from that provided by the applicant on most issues relating to the applicant’s history with the company. He testified that she was a good employee, that the company was aware of the workplace accident in June, 2007 and that it provided the necessary accommodation to facilitate the applicant successfully continuing in her job.
20He testified that the company knew some snow had fallen on the applicant in December, 2008 but did not know she had been hurt in the incident and he denied any knowledge within the company of the fall in January, 2009.
21He gave evidence that the applicant worked predominantly on the GM account, which, at that time, represented 40% of their business and was their largest single account. In 2008, due to a downturn in the economy, the respondent company’s account with GM was cut significantly. They went from supporting approximately 1500 dealerships to about 490. An account worth 5 million dollars of business was reduced to 2.5 million dollars. As a result, the respondent company made a decision to cut costs as work would be curtailed dramatically. The team making the decisions about which costs, including labour costs, to cut and the manner in which the cuts would be implemented included the president of the company, the COO, an account manager (who was consulted on a limited basis), the owner of company and Paul Valtas, who was the Director of Human Resources at the time. The team worked collaboratively and a joint decision was made as to which staff would be retained and which personnel would be let go.
22The decisions were made six to eight weeks prior to January 30, 2009. Paul Valtas testified that the key question asked by the team was where the business was going and then using that answer to determine which personnel would be retained to further those goals. Another consideration was to retain personnel who were trained to work on numerous accounts, criteria the applicant did not meet, in the opinion of the team. Seniority was not a consideration.
23He confirmed that the applicant was a good employee, that there were no performance issues and that she was seen as a committed and loyal employee. They were aware of her health concerns and had been pleased to accommodate her and ensure that she was able to keep working. When the decision was made to let the applicant go, it was a decision to terminate her employment without cause and for business reasons as she was primarily engaged in working on the GM account which was greatly reduced in volume of work.
24According to Mr. Valtas, while the decision to terminate the applicant’s employment was a difficult one, it was necessary for the business to meet the targeted reductions in costs that had been decided upon by the team.
25He testified that her disability played no role in the decision and other employees with disabilities were retained during the restructuring and lay-offs.
26His evidence was that the downsizing exercise impacted the company quite seriously. Morale suffered. The remaining work had to be spread out and reassigned and divided amongst those left in the workplace.
decision
27The applicant argues that she is a person with a disability as defined in the Code and that she experienced a disadvantage in respect of her employment for reasons relating to her disability. She does not assert that the respondent failed to accommodate her disability. She argues that one of the reasons the respondent company decided to terminate her employment while retaining other staff was her disability.
28There is no issue with respect to whether the applicant is a person with a disability as defined in s.10 (1) of the Code. She did suffer “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997”.
29The applicant believes that she was selected for termination of employment because of her disability, but she was unable to provide me with any cogent evidence to support her belief.
30The onus is on the applicant to establish, on a balance of probabilities, that the respondent infringed her rights under the Code. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test: F.H. v. McDougall, 2008 SCC 53. Mere supposition or belief is not sufficient for the applicant to meet the burden of proof required of her.
31Although the applicant clearly believes that her disability played a part in the termination decision, her belief alone is not persuasive. The respondent has provided an uncontradicted explanation of the circumstances that resulted in its need to restructure the business and reduce its workforce. It has explained the criteria used to make decisions regarding which employees to retain and, in support of its argument that the criteria used were non-discriminatory, has pointed out that other employees with disabilities were retained. I find that the respondent has provided me with a non-discriminatory explanation for the termination of the applicant’s employment.
32It is not apparent from the evidence before me, nor can an inference be drawn from it, that the applicant experienced disadvantage in the manner in the reason for her layoff for reasons related to her disability, as there is no evidence before me that her disability played any role in the respondent’s decision.
33Accordingly, this Application is dismissed.
Dated at Toronto, this 15th day of September, 2015
“Signed by”
Jay Sengupta
Vice-chair