Cronier v. Securitas Canada Ltd., 2015 HRTO 1563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leo Cronier

Applicant

-and-

Securitas Canada Ltd.

Respondents

DECISION

Adjudicator: Eli Fellman Date: November 18, 2015 Citation: 2015 HRTO 1563 Indexed as: Cronier v. Securitas Canada Ltd.

APPEARANCES

Leo Cronier, Applicant Bradley Truax, Daniel Greanya Licensed Paralegal

Securitas Canada Ltd., Respondent Daniel McDonald, Counsel

Introduction

1This is an Application filed 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, sexual orientation and association. The applicant pursued only the allegations with respect to disability at the hearing.

2The hearing took place over six days between January and August 2015. As an accommodation to one of the representatives, hearings were scheduled as half-days. Written submissions on remedy were provided in September, 2015.

3The respondent is a provider of security services to client organizations. The applicant was employed as a Mobile Security Guard with the respondent’s GTA Mobile Division from January 25, 2012 until his employment was terminated on October 28, 2013. As a Mobile Security Guard, he was assigned a patrol vehicle and provided patrol and alarm response services to clients’ houses and businesses.

4In October 2013 the applicant told his direct Supervisor, Michael Liao, and the respondent’s Payroll Administrator, Crystal Berry, that he would need time off from work because of surgery. The issue I need to decide is whether this information was communicated to Cliff Sampogna, the respondent’s Division Manager, and whether the applicant’s need for time off from work because of surgery was a factor in Mr. Sampogna’s decision to terminate the applicant’s employment.

5The respondent contends that the GTA Mobile Division underwent restructuring resulting in the elimination of four positions. The applicant was chosen for lay-off because his relatively short length of service, a poor attendance record, and lack of professionalism and commitment to the job. The Division Manager was solely responsible for determining who should be laid-off and was not aware that the applicant had requested time off for surgery prior to his termination.

6For the reasons which follow, I find the Division Manager was likely aware that the applicant had requested time off for surgery prior to the termination, and that this was a factor in the respondent’s decision to terminate the applicant’s employment. The respondent’s decision to terminate the applicant’s employment was tainted by discrimination and in breach of the Code.

Absences and Performance

7The applicant testified that he had a good attendance record during his first year of employment and had a positive relationship with his then manager. He sometimes volunteered or agreed to cover additional shifts.

8The applicant acknowledged that his absences increased around the spring of 2013. Beginning in May 2013 the applicant began to experience intermittent pain which he attributed to a sciatica condition. On May 4, 2013, he advised his then manager by email that he needed to book off four days due to pain. He reported that his doctors have given him a possible diagnosis of sciatica and advised him to do as little as possible. He also provided a copy of a medical chart dated April 30, 2013 prepared by a medical clinic stating that he needed a week off from work. His request for sick days was approved.

9The applicant’s emails to the respondent respecting his other medical absences do not identify the nature of his illness. On June 2, 2013, he advised his then manager that he has been in hospital all afternoon but did not specify why. On June 29, 2013 he advised the respondent that he would be unable to fill his upcoming weekend shifts because he was still recovering from an unspecified illness for which he had sought urgent medical care. He told the respondent that he would be unable to report to work for an assigned shift on September 17-20, 2013 for medical reasons relating to his stomach. Medical notes from several different walk-in clinics were submitted to the respondent for most of these absences. These notes did not indicate the nature of the applicant’s illness, but merely stated that he is unable to work for medical reasons.

10Mr. Sampogna received an anonymous voice mail message from someone claiming to have seen the applicant partying at a bar during the September 17-20, 2013 weekend he claimed to be sick. Mr. Sampogna had the applicant listen to the voicemail and asked for an explanation. The applicant asserted that the message was false and left by a disgruntled former partner. He submitted notes from two different walk-in medical clinics to establish that he was ill and unable to work during that period. Mr. Sampogna was suspicious of the applicant after this incident.

11The respondent’s attendance records are incomplete and not entirely accurate, but it seems that, in addition to the dates set out above, the applicant had approximately eight additional sick days during the period April to October 2013. The applicant did not recall the specific dates he was absent.

12In response to his June 29, 2013 email indicating that he would be unable to fulfill his assigned shifts on the upcoming weekend, Mr. Liao asked why the applicant books off every weekend that he is assigned. He also asked for a medical note. The medical note supplied by the applicant did not specify the nature of the applicant’s illness.

13On September 10, 2013, Mr. Liao advised the applicant in response to a request to book-off several more days (unrelated to illness) that he had almost exceeded the allowable annual book-off limit of 10 days.

14The applicant acknowledged he was unable to fulfill his assigned shifts for several weeks in August 2013 because his security guard license had lapsed and he was awaiting the renewal. The applicant testified that he was not responsible for the fact that it took so long for his license to be renewed by the responsible licensing agency.

15Mr. Liao testified that it was irresponsible of the applicant to let his security guard license expire and he should have applied for renewal earlier. The applicant was the only employee who could not work due to an expired security guard license. He advised Mr. Sampogna of the situation. Mr. Liao did not express any concerns about this issue directly to the applicant and there were no disciplinary measures taken. Mr. Sampogna testified that having a current license is a condition of employment at Securitas, and the applicant could have been fired for this reason alone.

16The applicant testified that he does not recall being subject to any formal discipline or meetings about his job performance at any point during his employment, but may have had informal discussions with management about how to improve certain things.

17While Mr. Liao asserted that the applicant’s attendance record was of concern to the management, he also acknowledged that other than his June 29, 2013 and September 10, 2013 emails, the respondent did not inform the applicant that it had concerns about his attendance. Mr. Liao agreed that while all employees are entitled to 10 book-off days per year, in addition to 10 paid vacation days per year, the respondent prefers that its guards not use their entire book-off allocation because it can create scheduling difficulties and lead to over-time expenses.

18The applicant acknowledged that he never asked his employer for modified work duties or any form of accommodation and never told the respondent that he has a disability. He acknowledged that right until his termination he continued to perform all of his assigned duties without modification.

19I do not find that the applicant’s pattern of absences or the nature of the medical notes submitted by the applicant should have suggested to the respondent that the applicant had a disability or triggered the respondent’s obligation to inquire whether the applicant required some form of accommodation. Further, the applicant did not provide any direct medical evidence during the hearing that would support a finding that his pre-termination absences were related to a disability, with the possible exception of the absence in May 2013 that may have been related to sciatica.

20During his testimony-in-chief, Mr. Liao testified that the applicant failed to attend a mandatory staff meeting on July 16, 2013, and that this reflected negatively upon the applicant. Under cross-examination he conceded that the meeting was not mandatory, as the meeting notice stated that employees are “encouraged” to attend. He also conceded that his witness statement erroneously claims that attending this staff meeting was mandatory.

21Mr. Sampogna testified that he intended the staff meeting to be mandatory, but acknowledged that that the wording on the notice does not state that attendance was required. Meeting attendance was recorded at Mr. Sampogna’s direction, and he took the applicant’s failure to attend as an indication that he does not take his job seriously.

22Mr. Liao testified that he had heard that the applicant had a second job at another security company, and he shared this information with Mr. Sampogna. Under cross-examination he acknowledged that there was nothing preventing the applicant from working for another security company in addition to working for the respondent. The applicant acknowledged that he had a second job as a security guard while employed with the respondent but asserted that he only worked at this second job on days he was not assigned to work for the respondent.

Applicant’s Surgery

23The applicant testified that he verbally told Mr. Liao sometime in August 2013 that he may need time off for the surgery. The applicant did not know at that time when his surgery would take place or how long he would be off work. Mr. Liao told him to keep him posted once it was scheduled.

24After a consultation with a surgeon in early October 2013 respecting his worsening pain, the applicant was diagnosed with a medical condition. He was presented with the option of either doing nothing or having a surgery which may reduce the pain. The applicant decided to have surgery. Around October 17, 2013 he learned that his surgery was scheduled for November 4, 2013 and it would take him at least two weeks to recover, and he may then be restricted to “light duty” work for a further 6 to 10 weeks. As discussed below, the respondent contends that the applicant’s condition does not constitute a disability.

25Around October 17, 2013, the applicant left a voice mail message for Ms Berry, asking about sick leave benefits. In the course of their email exchange, not copied to anyone else, during the period October 21-23, 2013, the applicant disclosed that he would be requesting time off from work due to surgery and wanted to know if the group insurance plan covers lost wages in that circumstance.

26Ms Berry agreed she received the applicant’s October 21 email and responded with some details about the respondent’s long-term and short-term disability benefits and the need to obtain a Record of Employment (ROE) in order to apply for Employment Insurance (EI). She asked the applicant what kind of surgery he was having, but did not receive a reply or any details about when the surgery would take place or how long the applicant would be off work. Ms Berry testified that she routinely addresses such questions and requests from the mobile guards working in the GTA Mobile Division and did not mention the applicant’s inquiry to either Mr. Liao or Mr. Sampogna.

27The applicant testified that around October 21, 2013 he verbally told Mr. Liao that the surgery had been scheduled. He believes he told Mr. Liao that it was scheduled for November 4, 2013.

28Mr. Liao testified in chief that the applicant told him sometime in October 2013 that he would need to take time off for surgery and did not specify a date, and this was the only occasion that the applicant mentioned his medical condition. Confronted with his witness statement in which he admits the applicant told him in August 2013 that he was seeking medical care and may require surgery, Mr. Liao testified that he could not remember if the applicant told him this in August or October 2013.

Termination of Employment

29The applicant was in New York City for vacation during the period October 23, 2013 to October 25, 2013. On October 24, 2013 he received a phone call asking him to attend a meeting with Mr. Sampogna and Mr. Liao. He arranged to hold the meeting on October 28, 2013 upon his return from vacation.

30The applicant was suspicious about the meeting as it was uncommon not to be told the purpose of a meeting in advance. Therefore, without telling Mr. Sampogna and Mr. Liao, the applicant recorded the October 28, 2013 meeting. The recording and a professionally prepared transcript were entered into evidence and played during the hearing.

31During the meeting the applicant was told his position was being eliminated due to restructuring effective immediately and was provided with a termination letter dated October 24, 2013. The applicant was not told that that his termination was related to his job performance. The applicant asked Mr. Sampogna if he was being terminated because he needed to go off on medical leave. Mr. Sampogna denied having any knowledge of the applicant’s medical issues and assured him the termination had nothing to do with that.

32The copy of the termination letter entered into evidence by the respondent has a hand-written notation prepared by Mr. Sampogna stating that the applicant refused to sign the letter. The applicant testified that he was never asked to sign the letter and there is no place on the letter for his signature. Review of the hearing recording and the transcript confirms the applicant’s testimony – he was not asked to sign the termination letter.

Did the Division Manager make the decision to terminate without knowing about the applicant’s surgery?

33Mr. Sampogna became the Manager for the GTA Mobile Division and its 80 employees in June 2013. He had worked for the respondent at different locations in a managerial capacity for six years previously. The GTA Mobile Division had been losing money regularly and he was mandated to find ways to reduce costs. Therefore, shortly after he became the manager he began auditing the “run sheets” for each of the patrol routes within the GTA region in order to obtain greater efficiencies. Greater efficiencies meant consolidating less busy patrol routes, thus reducing the required number of employees and vehicles.

34Mr. Sampogna created a document setting out various steps and dates in his efficiency plan. The plan indicates that during the period October 1-4, 2013, the management team (Cliff Sampogna, Michael Liao and Crystal Berry) would meet to discuss the run sheets and make sure they are the most efficient. Mr. Sampogna testified that he did not discuss the elimination of any guard positions with Mr. Liao and Ms Berry during these meetings, and their only role was to provide him with information.

35Having completed his audit of the patrol route run-sheets, Mr. Sampogna determined that four patrol guard positions should be eliminated, meaning four employees would be laid off. He testified that he chose the four employees for lay-off based upon his impression of their attendance record, reliability, efficiency and length of service. As the terminations were to be done on a “without cause” basis, employees with less seniority would be entitled to a lower amount of severance under the Employment Standards Act. With respect to the applicant in particular, he also considered his failure to attend the staff meeting, his lapsed security guard license and his tendency to request book-off dates when assigned weekend shifts. No documents were created respecting the determination of who should be terminated.

36Mr. Sampogna testified that the decision to terminate the employment of four selected employees was made in late September 2013. One of the four resigned shortly before he was to be terminated. However, due to the sensitive nature of a mobile guard’s work, no advance notice of the termination was provided to applicant prior to the October 28, 2013 meeting.

37Mr. Sampogna testified that he alone made the decision to reduce employment levels after conducting his audit. He did not discuss who should be selected with Mr. Liao or Ms. Berry because he had just moved to the Mobile Division and was not certain that they could keep such sensitive decisions in confidence.

38Mr. Sampogna denied having any knowledge of the applicant’s request for time off for surgery prior to the termination meeting on October 28, 2013. Mr. Sampogna testified that he would have granted the applicant time off for surgery had he received the request prior to the termination meeting. He suggested that modified work duties are available but the applicant never informed him that he had a disability, required time off from work for surgery or required modified work duties. He testified that, over the past several years, three employees at the GTA Mobile Division had extended medical absences, including Mr. Liao. He denied the suggestion that granting the applicant time off for surgery would have resulted in additional overtime expenses for the respondent as temporary employees could have been hired.

39As discussed above, Ms Berry testified that she routinely addresses questions and requests about disability leave and insurance from the employees working in the GTA mobile division. She denied mentioning the applicant’s inquiry to either Mr. Liao or Mr. Sampogna.

40Mr. Liao testified that he had no role in the decision to terminate the applicant’s employment as that decision was made solely by Mr. Sampogna. He also testified that at no time did he provide Mr. Sampogna with any input in the termination process and was not consulted by Mr. Sampogna. He understood that some positions were being eliminated to save money and gain efficiencies, but does not know why certain employees were selected. He is not certain when the decision was made to terminate the applicant’s employment, but believes it was sometime in August 2013.

Analysis

41Having considered all of the circumstances, including the credibility of the witnesses, I find it more likely than not that Mr. Sampogna was aware of the applicant’s need for time off for surgery prior to the October 28, 2013 termination meeting.

42Mr. Liao acknowledged that he was aware of the applicant’s need for surgery before the termination. Mr. Liao acknowledged informing Mr. Sampogna about other issues relating to the applicant’s employment, such as the fact that the applicant was unable to work for several weeks due to his license expiring and his belief that the applicant had a second job. Having made a point of providing this information to Mr. Sampogna, I find it more likely than not that he would have also told Mr. Sampogna that the applicant was going to be off work for an extended period of time due to his impending surgery and his subsequent need for light duties upon his return to work. Given Mr. Liao’s pattern of passing along information about the applicant’s job performance to Mr. Sampogna, it is highly implausible that he would not have mentioned such a significant issue. I also note that Mr. Liao did not offer an explanation as to why he did not inform Mr. Sampogna of the applicant’s intention to take an extended medical absence from work.

43Mr. Sampogna became the GTA Mobile Division Manager just several months prior to the applicant’s termination, while Mr. Liao was the applicant’s direct supervisor and had known the applicant since he began his employment with the respondent. Given this circumstance, it is difficult to believe that Mr. Sampogna would not have consulted with Mr. Liao about the applicant before deciding to terminate his employment. The document setting out the various steps in the efficiency plan created by Mr. Sampogna states that he held meetings with the “management team”, including Mr. Liao, to discuss the run sheets and make sure they are the most efficient. I find it likely that these discussions would have included which employees should be chosen for lay-off.

44Perhaps more significant was the fact that Mr. Liao was present at the applicant’s termination meeting on October 28, 2013. I would not have expected him to be present at that meeting if he had no involvement in the decision to terminate the applicant’s employment. His role as the applicant’s direct supervisor and his presence at the termination meeting creates a strong inference that he likely had some involvement in the termination decision.

45I acknowledge that Mr. Sampogna testified that he was not aware of the applicant’s need for surgery prior to the termination and Mr. Liao testified that he did not tell Mr. Sampogna about the applicant’s request for time off from work. In order to determine the appropriate weight to give to their testimony, I must assess the credibility of these two witnesses.

46In considering credibility I am guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 356-357:

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 (…)

47I am also guided by the decision of the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. The Court ruled that, where proof is on a balance of probabilities, there is no rule as to when inconsistencies in the evidence of a witness will cause a trier of fact to conclude that the witness’ evidence is not credible or reliable. The trier of fact must not consider the witness’ evidence in isolation, but should consider the totality of the evidence in the case, and assess the impact of any inconsistencies on questions of credibility and reliability pertaining to the core issue in the case.

48With respect to Mr. Sampogna, he acknowledged that he had written on a copy of the letter of termination that the applicant refused to sign it during the termination meeting. He did not contest the applicant’s assertion that the recording of the meeting reveals that he did not ask the applicant to sign the letter. He was unable to provide an explanation for his notation on the letter. In light of Mr. Sampogna’s failure to offer a reasonable explanation for his conduct, I find that it is likely that this notation was a fabrication intended to discredit the applicant. The fact that Mr. Sampogna fabricated evidence related to the termination does not automatically result in a finding that all of his testimony respecting the termination was untruthful. However, it does cause me to question the veracity of his testimony and assign less weight to his assertion that he was unaware of the applicant’s request for time off for surgery prior to the termination.

49There were other inconsistencies in Mr. Sampogna’s testimony respecting his decision to terminate the applicant’s employment. He testified that he made this decision in late September 2013. However, the document he created which sets out the steps in his plan to improve the efficiency of the GTA Mobile Division indicates that he first met with Mr. Liao and Ms. Berry in early October to discuss ways of ensuring that the routes are as efficient as possible. It seems unlikely that Mr. Sampogna would have determined whose employment should be terminated as a result of his restructuring plan prior to having these discussions with the rest of the management team. This inconsistency is significant because the applicant told both Mr. Liao and Ms. Berry in October 2013 that he would need time off for surgery.

50I also had significant concerns about the reliability of Mr. Liao’s testimony. He provided inconsistent and contradictory evidence about when the applicant first told him he might need time off for surgery. As discussed above, this is a key issue in this matter. In addition, in his witness statement and examination-in-chief, Mr. Liao erroneously claimed that the applicant failed to attend a mandatory staff meeting. While this staff meeting is not a particularly significant issue, this pattern of inconsistent and erroneous evidence causes me to assign less weight to his assertion that he did not tell Mr. Sampogna about the applicant’s request for time of for surgery prior to the termination.

RELEVANT CODE PROVISIONS AND LEGAL TEST

51Sections 5(1) and 9 of the Code state 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.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

52“Disability” is defined in s. 10(1)(a) of the Code, in part, as follows:

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…

53The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent terminated the applicant’s employment because he had a disability or was perceived as having a disability. Thus, he must establish a connection between his termination from employment and his disability. See, for example, Valmassoi v. Canadian Electrocoating Inc., 2014 HRTO 701 at para 31, Dixon v. Mississauga (City), 2012 HRTO 1383 at para. 26.

54Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test: F.H. v. McDougall, para. 46, above.

55It is also well-established in human rights law that the protected ground need only be one factor in the respondent’s decision; it does not have to be the only or primary reason: Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC).

56The 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, 2010 ONSC 3884 at para. 47, and Peel Law Association v. Pieters, 2013 ONCA 396 at para. 56. A prima facie case 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.

57Upon 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

ANALYSIS AND DECISION

Disability

58The respondent takes the position that the applicant’s medical condition of multiple pilonidal sinuses is not a “disability”, as defined in the s. 10(1)(a) of the Code.

59The 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 la personne & des droits de la jeunesse) v. Montreal (City), [2000] 1. S.C.R. 665, 2000 SCC 27. For example, if an employer believes that an employee’s condition will interfere with business operations or profitability and for that reason dismisses an employee, this perception may result in a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.

60The applicant’s testimony and submitted medical documentation establish that he was to undergo surgery to treat his medical condition and would require at least two weeks off from work to recover, and he may then be restricted to “light duty” work for a further 6 to 10 weeks. The respondent argued that the applicant’s medical condition should not be considered a disability. I am satisfied that a medical condition requiring surgery and an extended recovery time constitutes a disability within the meaning of the Code: Pritchard v. Commissionaires Great Lakes, 2012 HRTO 1466: para. 32. In the alternative, I am satisfied that the applicant’s need to be absent from for a period of time and his possible need for modified work duties on return to work would be a perceived disability.

61Having found that the applicant was at the relevant time a person with a “disability” as that term is defined in the Code, I must next consider whether the termination of his employment constitutes discrimination contrary to sections 5(1) and 9 of the Code.

Prima Facie Discrimination

62The applicant’s primary argument is that his employment was terminated because his need for an absence from work due to surgery would cause the respondent to experience inconvenience and incur additional expense. The applicant would have to reassign his shifts, and/or possibly incur some overtime expenses or hire temporary employees.

63The termination occurred less than a week after the applicant told Mr. Liao about his need for time off for the surgery and asked Ms Berry questions about claiming benefits while absent from work due to his surgery. As I found above, it is likely that Mr. Sampogna knew about the applicant’s need for time off for surgery prior to his decision to terminate the applicant’s employment.

64I acknowledge that these circumstances do not constitute direct evidence that the applicant’s disability was a factor in the termination of his employment. However, direct evidence of discrimination is unnecessary, as discrimination will more often be proven by circumstantial evidence and an inference of discrimination may arise from the conduct of an individual or individuals. See Phipps v. Toronto Police Services Board, 2009 HRTO 877. It is not unusual in termination cases in which an applicant has a disability that there is no direct evidence supporting an applicant’s assertion that his or her termination was based upon disability. The Court of Appeal in Pieters also explained that relatively little affirmative evidence is required before an inference of discrimination is permitted, and the standard of proof requires only that the inference be more probable than not.

65In my view, the circumstantial evidence described above is sufficient to result in an inference that it is more probable than not the applicant’s request for an absence from work due to his surgery factored into the decision to terminate his employment.

66The applicant also argued that some of the applicant`s pre-termination absences were related to his disability. Therefore, according to the applicant, the respondent discriminated against him by terminating his employment, in part, due to his high level of absenteeism.

67However, as submitted by the respondent, there was insufficient medical evidence provided by the applicant to establish that his pre-termination absences were in fact related to an alleged disability. Aside from his four day absence in May 2013 for which he provided a medical chart, the applicant did not submit any medical evidence establishing a connection between his absences and an alleged disability. The applicant did not inform the respondent that he had a disability or required accommodation. Neither the applicant’s pattern of absences nor the medical notes he submitted in respect of those absences are suggestive of a disability or should have triggered the respondent to inquire as to whether the applicant had a disability.

68As the applicant has provided sufficient evidence to establish a prima facie case of discrimination, the evidential burden now shifts to the respondent to establish a non-discriminatory explanation for the decision to terminate his employment. I must determine, based upon circumstantial evidence, whether the inference of discrimination is more probable than the respondent’s non-discriminatory explanation. However, the onus of proving discrimination on a balance of probabilities remains on the applicant. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 109-119, and Pieters at paras. 70-74.

Respondent’s Explanation

69The respondent’s position is that the applicant’s employment was terminated for entirely non-discriminatory reasons.

70The evidence establishes that the respondent engaged in a genuine restructuring exercise shortly after Mr. Sampogna became the Manager of the GTA Mobile Division. The restructuring resulted in several patrol routes being consolidated and four patrol guard positions being eliminated during the month of October 2013. I am satisfied that there were a number of non-discriminatory reasons why the respondent selected the applicant’s employment for termination. These include: his relatively short length of service; his failure to attend a staff meeting where attendance was encouraged; his inability to work for several weeks because his security guard license had expired; suspicions that the applicant was not really sick as he claimed during the period September 17-20; his high rate of non-disability related absenteeism; and tendency to book-off when assigned weekend shifts.

71The applicant took issue with some of these stated reasons for his termination. He asserted that: employees were not told that they were required to attend the staff meeting; it was not his fault that it took so long for his license to be renewed; the anonymous phone call was made by a disgruntled former partner; and he did not exceed the maximum permitted number of book-off days. While the applicant may very well believe that it was unfair that the respondent considered these non-discriminatory factors, the Tribunal does not have the general power to decide whether the respondent treated the applicant fairly and appropriately: see Tubquabo v. University of Ottawa, 2010 HRTO 477, at para. 6.

72I am satisfied that the respondent’s stated non-discriminatory reasons described above were all factors in its decision to select the applicant’s employment for termination. At the same time, I find that the applicant’s need for time off due to surgery was also likely a factor in this decision. The applicant’s request for an extended absence would have likely negatively affected Mr. Sampogna’s efforts to improve efficiency and lower costs at the GTA mobile division. As discussed above, I have found that Mr. Sampogna knew about the applicant’s need for surgery prior to the termination meeting held on October 28, 2013, yet denied having this knowledge when asked directly by the applicant during the meeting about whether his termination was related to his upcoming surgery. If the applicant’s need for surgery genuinely played no role in the respondent’s decision to terminate the applicant’s employment I would have expected Mr. Sampogna to state this during the meeting when asked by the applicant if this was the reason for termination. Instead, Mr. Sampogna claimed to have no knowledge of the applicant’s discussion of his surgery with the two other members of the management team.

73As set out above, in order to amount to a violation of the Code, a discriminatory ground need only be one factor in a decision that negatively impacts an applicant, and need not be the only reason. As a result of my determination that the applicant’s request for time off for surgery was a factor in the respondent’s decision, I find that the respondent violated the Code when the applicant’s employment was terminated on October 28, 2013.

74Having said that, I found above that there were also a number of non-discriminatory factors related to the termination of the applicant’s employment. Given these factors, I find it likely that the applicant’s employment would have been terminated in any event during the course of the respondent’s restructuring, even if he had not requested time for surgery. As a result, I will not make an award of lost income to the applicant arising from the discrimination he experienced. See: Safdari v. Avant Garden Services, 2013 HRTO 644 at para 30-31 and Braun v. Sunshine Landscaping, 2012 HRTO 2236 at para 27.

Monetary Compensation

75The applicant is however entitled to monetary compensation for the injury to his dignity, feelings, and self-respect arising from the breach of his right to be free from discrimination due to his disability pursuant to section 45.2(1) of the Code. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The effect on the victim, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

76In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal, at para. 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 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.

77The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate: see ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC).

78I have concluded the applicant’s disability was a factor in the decision to terminate his employment and was a violation of the Code. I am satisfied that the respondent’s termination caused injury to the applicant’s dignity and feelings. The applicant spoke of the significant emotional and financial stress caused by his termination. The applicant has not been able to obtain full-time employment since his termination and intends to obtain additional education in the hopes of becoming a mechanic. The applicant’s former partner testified that their relationship ended in part because the applicant was unable to financially support himself after the termination.

79In assessing the appropriate amount of monetary compensation (general damages) owed for the infringement and injury to dignity, feelings and self-respect, I have taken into account the breach of the Code, and the applicant’s evidence of the significant impact it had upon him.

ORDER

80I make the following order:

1. The respondent shall pay the applicant the sum of $7,000.00 as compensation for the violation of his right to be free from discrimination under the Code.

2. Post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 is ordered if the respondent does not make the payment within 30 days of the date of this Decision.