HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Laurence Pelletier Applicant
-and-
Veolia Transportation/York BRT Services LP Respondent
DECISION
Adjudicator: Alison Renton Date: March 16, 2015 Citation: 2015 HRTO 323 Indexed as: Pelletier v. Veolia Transportation
APPEARANCES
Laurence Pelletier, Applicant Kirkor Apel, Counsel
Veolia Transportation/York BRT Services LP, Respondent Thomas Agnew, Counsel
1This Application, filed on March 21, 2012, alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was a transit operator who had been employed for almost six years until his termination on April 25, 2011. He drove a bus, which is approximately 40 feet long. He was represented, in the workplace, by Amalgamated Transit Union (“the union”).
2The respondent is operated by Veolia Transportation Services and has a transit contract with York Region to provide transit services to York Region. It has a bargaining relationship with the union. The respondent was the applicant’s employer.
3The union received notice of the Application, but did not file a request to intervene. Cliff Piggott, the union representative to whom the Application was sent, testified as a witness for the respondent.
the hearing
4A hearing in this matter was held over 8.5 days from August 14, 2013 to May 6, 2014. The Tribunal heard from the applicant and the respondent’s witnesses. There was an exclusion of witnesses. The applicant testified in examination-in-chief, cross-examination, and re-examination. A letter was filed confirming that the applicant would be testifying consistent with what was in his pleadings. After the respondent produced missing pages from notes taken at an April 25, 2011 meeting, which is addressed below, the applicant had further testimony in examination-in-chief and cross-examination.
5The respondent’s witnesses were Dru Betts, former human resources manager; Randall French, former operations manager; Roy Rice, former general manager; Robichand Durbajhai, former supervisor; David Clarke, transit operator and former shop steward; and Clifford Piggot, an elected executive board member for the union. At the time they testified, Ms. Betts, Mr. French, Mr. Rice and Mr. Durbajhai were no longer employed by the respondent. Mr. French and Mr. Durbajhai are now employed by York Region. Witness statements were filed for the respondent’s witnesses.
6It was unfortunate that the hearing of this matter was unnecessarily prolonged by a number of procedural issues, including the repeated late arrival of the applicant’s counsel due to personal issues and being double-booked in criminal court. An adjournment was granted on one such occasion.
7On the first day of hearing, after opening submissions, the Tribunal heard submissions addressing the respondent’s request that the Application be dismissed for abuse of process, namely the applicant’s failure to comply with his disclosure obligations. After hearing the parties’ submissions, the Tribunal issued an oral ruling dismissing the respondent’s request, noting that the applicant’s evidence would be restricted to what was contained in the Application, and permitting the applicant’s four documents to be filed. This ruling was made after the applicant stated that he did not intend to call his doctor as a witness.
8After the evidence concluded, the applicant’s counsel advised that he had documentation pertaining the applicant’s post-employment income, including EI benefits, which he wanted to file with the Tribunal. However, he did not have the documentation with him and had not previously sent it to respondent counsel. The respondent objected to the introduction of this new documentation. I directed the parties to file written submissions addressing this issue.
9In an Interim Decision dated May 2, 2014, 2014 HRTO 630, I ruled that the documents would not be admitted and that the applicant could not testify about them. I noted that the issue of the applicant not producing or filing documentation had been raised before the hearing started and during his evidence, and that the documents had been in the possession of the applicant and his counsel for many months before the final hearing dates were selected with the parties. Furthermore, I found that the respondent would be prejudiced as all the witnesses had finished their evidence and additional hearing dates would be required to hear this new evidence.
10In a Case Assessment Direction dated May 2, 2014, issued before the final hearing date, the Tribunal stated that it would be asking the parties to address the following during their final submissions:
Should an adverse inference be drawn against a party for failing to request or failing to disclose:
Videotapes from the applicant’s bus; and/or
Computer data from the applicant’s bus.
11The parties spent a full day making final submissions. This included the applicant’s final submissions, the respondent’s final submissions, and the applicant’s reply submissions to the respondent’s submissions.
12The respondent had a book of authorities that it brought to the hearing and to which both parties referred during their submissions. The applicant’s counsel referred to case law, but he did not have a copy of the decisions with him. At the end of the day, which was after 6:00 p.m., the Tribunal directed the applicant’s counsel to email the case citations to the respondent’s counsel. The next day, the applicant’s counsel sent in a one-page document with cases listed and submissions or points about these cases. The respondent’s counsel then wrote to the Tribunal objecting to the applicant’s counsel making submissions and requesting an opportunity to respond to the new submissions. The applicant’s counsel responded by stating that he ran out of time while making his reply submissions, noting that his further points were contained in one page, and objecting to the respondent getting the ability to respond to his points.
13In their final submissions, both parties asked the Tribunal to draw an adverse inference from the other party failing to produce something. The applicant submitted that an adverse inference should be drawn against the respondent because it failed to produce and disclose videos and data pertaining to the applicant’s conduct and performance. He also submitted that there should be an adverse inference drawn against the respondent for its failure to call any witnesses who reviewed the videos. The respondent asked that the Tribunal draw an adverse inference against the applicant for his failure to call his family physician to testify about the applicant’s medical condition, his medications, and the side effects of those medications. These are addressed in the analysis section set out below.
summary
14This case is about the applicant, a bus driver, urinating in front of his bus at 10:30 p.m. on April 20, 2011, during the course of his employment, and whether this was a factor in his subsequent termination. The respondent determined that this was offensive conduct and terminated the applicant for this, as well as other performance issues, set out below.
15The applicant claimed that the medication, a diuretic, that he takes for a medical condition, high blood pressure, caused him to urinate frequently and urgently, such that he urinated in front of his bus. He alleged that he told management about this in a pre-termination meeting on April 25, 2011, but that they disregarded this information and terminated him on the same date for just cause. The applicant testified that he only told this information to management and the union at the April 25 meeting. He did not raise it again during the Step One or Step Two meetings.
16The applicant’s termination was based upon performance issues on April 20, 2011 including urinating in front of his bus; going through a red light and failing to stop at a stop sign; and a customer complaint dated April 14, 2011 relating to incidents taking place on April 14, 2011 and which was the subject of CARE Ticket 68992 (“CARE Ticket 68992”). Another customer complaint, dated April 26 relating to incidents on April 19, 2011, which was the subject of CARE Ticket 69212, was also subsequently relied upon as a ground for the termination.
17The applicant, along with a union representative, met with the respondent on three occasions: on April 25, 2011, at which the applicant was terminated; (“the April 25 meeting”); a Step One grievance meeting on April 27, 2011 (“the Step One meeting”); and a Step Two grievance meeting on May 3, 2011 (“the Step Two meeting”).
18Until partway through the hearing, the respondent disputed that the applicant told it that he was taking medication. After missing pages from notes taken on April 25, 2011 were produced (an issue I address below in more detail), and after the applicant’s cross-examination was completed, the respondent changed its position and agreed that the applicant told it that he was on a diuretic. The missing pages from the April 25 meeting confirmed this. However, while the respondent conceded it had been made aware the applicant was on a diuretic, it continued to maintain that the applicant did not tell anyone about his specific medical condition.
19The Application is upheld in part. I find that the respondent knew that the applicant was taking a diuretic and knew that the applicant had a medical condition before it terminated the applicant. I find that the applicant has a disability with the meaning of the Code and that it was a factor in his termination. I do not find that he was reprised against within the meaning of the Code.
20This case is not about the union’s representation of the applicant. Although some union representatives testified for the respondent at the hearing, the union was not named as a respondent. Although the applicant sought to put this in issue, whether the union fairly and competently represented the applicant is not relevant to the issues before me.
missing pages of the notes from the april 25, 2011 meeting
21In its Response, witness statements, and opening submissions, the respondent denied knowing that the applicant had a medical condition for which he was taking medication, specifically a diuretic, and denied that the applicant told anyone this.
22Attached to its Response, and produced as part of its disclosure requirements, was one page of notes taken at the April 25 meeting by the human resources manager, Ms. Dru Betts.
23On the first day of hearing, during the respondent’s opening submissions, I observed that my copy of the respondent’s notes from the April 25 meeting appeared to be missing a page since the applicant’s urination did not appear in the notes.
24After I raised this, the respondent confirmed that it only had one page of notes from this meeting. It undertook to search its records to locate other pages of notes from this meeting, noting that Ms. Betts no longer worked for the respondent. However, the respondent continued to maintain that Ms. Betts’ evidence would be that at no time during the meeting prior to the applicant’s termination, or after, did he mention to anyone, including his union representative, that he was on medication or had a medical condition.
25The applicant’s evidence, including his cross-examination and re-examination, ended on the second day of the hearing. Prior to the third day of hearing, the respondent produced additional pages of notes from the April 25 meeting. On one of the additional pages, the applicant noted that he is on medication which caused him to urinate more frequently. The respondent submitted, at the hearing, that Ms. Betts would address this new information in her evidence. It did not object to the applicant’s examination being opened up so that his counsel could ask questions about the additional pages of notes. The applicant then testified further in examination-in-chief and in cross-examination.
26Ms. Betts testified that she took the notes on April 25 as well as at Step One and Step Two. The notes from these three meetings were introduced as exhibits during the hearing. Ms. Betts testified about her practice of taking notes. She takes handwritten notes during a meeting which she later types out, exactly the same as the handwritten notes, into her computer. She discards the handwritten notes into the confidential waste. She testified that her notes are “verbatim”, and “word for word”, like a transcript. If she cannot keep up with what is being said at the meeting, she would stop the meeting to catch up. When I asked whether she meant her handwritten or typed notes, she replied, “Handwritten and then typed”. As for the notes of the April 25 meeting, she typed them the same day as the meeting based upon her handwritten notes.
27Ms. Betts testified that she was involved in assisting respondent counsel with preparing the Response that was filed and reviewed it before it was filed. She also provided respondent counsel with the relevant documentation that was attached to the Response. She scanned and sent the documents and only pages 2 and 3 of the April 25 notes were missing. The only explanation that she provided was that they were reversed so they were blank when she scanned them. She did not notice that the pages were missing.
28When pages 2 and 3 of the April 25 notes were produced, most of it was typed in black ink. The information about the applicant taking a diuretic was typed in blue ink, as was a summary of the meeting on page 3. Ms. Betts testified that the blue ink was used to indicate that the applicant made an admission or was providing new information of which management was not previously aware.
29Ms. Betts also took handwritten notes for the Step One and Step Two meetings, which she subsequently typed out and destroyed the handwritten notes. Those notes were also introduced as exhibits.
30Her practice is to not take notes of meetings of only management because they are private. When there are statements attributed to a person on more than one line, Ms. Betts testified that it was because the person made those statements without anyone making comments or questions between the statements. It would have been helpful to have the handwritten notes to compare, Ms. Betts confirmed in her cross-examination, given the typographical errors in her notes, but claimed, again, that her notes were accurate. The notes are not recorded as being in first person.
31The applicant’s counsel questioned the integrity of Ms. Betts with the missing April 25 notes, but submitted that he was not questioning respondent counsel’s integrity.
The evidence
32The applicant has high blood pressure, or hypertension, for which he takes diuretic medication prescribed by his physician. He entered, as an exhibit, a letter from his family doctor, Dr. Small, confirming the medications he is taking for hypertension, and which states that one of the possible side effects of one of his medications is increased urination. He also introduced his prescription history for one of his medications, Shoppers healthwatch documentation about the medication, and a pamphlet about hypertension.
33The applicant testified that he experiences increased frequency and urgency of urination as a result of taking this medication. He was not asked any questions during his cross-examination about his medical condition, the medication that he takes for it, or Dr. Small’s letter.
The Applicant’s Disciplinary Record
34It was essentially agreed that the applicant had a disciplinary record prior to his termination. This included:
March 11, 2009: verbal warning because he exited a bus stop without signalling or looking which resulted in a near collision;
May 7, 2009: a one-day suspension and retraining for speeding, driving erratically, and being relieved from driving by his supervisor;
February 23, 2011: a verbal warning for using a private TTC road and claiming he had authorization to use it;
April 11, 2011: a written warning for incidents that occurred on March 7 and 8, 2011, for using a TTC shortcut, being off route, claiming that the supervisor said he could use it, and then admitting that no supervisor said he could use it.
35The applicant testified that it was his understanding that the respondent applied progressive discipline to its operators. This started with a verbal warning, then progressed to a written warning, a one-day suspension, and a three-day suspension before being terminated. In cross-examination, he testified that he did not know if the respondent could discipline an employee in a different sequence.
36Mr. French and Mr. Rice testified that the respondent has discretion to issue discipline based upon the individual circumstances of the offence. The union can file a grievance if it objects to the level of discipline issued.
37The respondent counsel did not address the “sunset clause” in the collective agreement with its witnesses, Mr. French and Mr. Rice, or whether any parts of the applicant’s disciplinary record could not be used in deciding to terminate him. In their cross-examination, both Mr. French and Mr. Rice testified that there is a two-year sunset clause in the collective agreement, which means that the respondent cannot rely upon any discipline that was more than two years prior for the purpose of imposing discipline. Mr. French confirmed in cross that the March 2009 discipline would have expired by the time of the April 20 incidents, but the other discipline was still on the applicant’s file.
The Respondent’s Washroom Break Policy
38The parties agree that operators are permitted to take a washroom break whenever it is needed even if this results in a service delay. They agree that there is a code that the operator inputs into the bus’ system, called the “INIT system” to indicate the start and completion of a washroom break. Mr. French testified that he believed, but was not sure, that there is a written policy, which would be located in the driver’s handbook. This was not produced during the hearing. He was not aware of an operator being disciplined for taking a washroom break. There is not, to Mr. French’s knowledge, a policy or rule prohibiting operators from urinating in public, but it was not allowed. Mr. Rice testified that if it is 2:00 a.m., businesses along the bus route are not open, and if “nature calls”, an operator would not be disciplined if he or she was discreet. It was not, however, an unwritten rule and operators are not generally permitted to urinate in public even if no one is around.
39The applicant testified that he used washroom facilities at the respondent’s terminals, or at public washroom facilities along his route, as he needed to. He also urinated in discreet places, including in the bushes close to the hospital, when he had an urgent need. He testified that he was not aware of the respondent having a written policy for when a person needs a washroom break, but felt that it was discriminatory because he was fired despite the respondent knowing of his disability.
The Incidents of April 20, 2011
40On April 20, 2011, the applicant was assigned the purple bus route. This required him to drive between York University and the Markham Stouffville Hospital (“the hospital”).
41The applicant arrived at the hospital at approximately 10:30 p.m. and his passengers departed the bus. The applicant sat on the bus and ate his dinner. After that, he got off the bus, walked around a little and then urinated in front of his bus. The bus was facing away from the hospital’s entrance and there was no one around.
42He testified that after he ate his dinner, he had an urgent need to urinate because of the diuretic he was taking. He would not have been able to walk the several minute walk into the hospital to use its washroom, which he agreed he could use, before he soiled himself because of the urgency of his need and because it would have made his bus even later in departing. He thought about urinating into nearby bushes, but had an encounter with a racoon on a previous occasion, so he chose not to use those. Instead, he urinated in front of his bus, which was facing away from the hospital’s entrance. He looked around first, did not see anyone, and then urinated. He did not “drop his pants” to his ankles but undid his zipper.
43However, unbeknownst to the applicant, his supervisor, Robichand Durbajhai, observed him. Mr. Durbajhai had followed him, in a marked supervisor’s car, to the hospital as an audit of the applicant’s movements. Mr. Durbajhai observed the applicant arrive at the hospital early, sit on his bus for an extended period of time, then leave the bus and urinate in front of it. Mr. Durbajhai had a clear view of the applicant from where he was located, but he did not see the applicant pull down his pants when he urinated. Mr. Durbajhai was not disgusted by what he observed.
44Mr. Durbajhai followed the applicant after his bus left the hospital. While following him, he observed the applicant turn on a red light and run a stop sign. He approached the applicant about these observations when the bus arrived at the bus terminal, issued him a verbal warning and stated that the applicant admitted to these allegations. At the hearing, the applicant denied that he admitted to the allegations and testified that he provided an explanation to Mr. Durbajhai for his actions. He did not tell Mr. Durbajhai about his medical condition or the medication he was taking for it.
45The applicant testified that he believed that he would not have been followed any further by Mr. Durbajhai had he not been observed urinating in front of his bus. The applicant believes that Mr. Durbajhai followed him to question him about urinating, but instead of asking him questions immediately, he chose to wait until the bus arrived at the Richmond Hill Centre. The level of scrutiny increased after he observed the applicant urinating, and resulted in Mr. Durbajhai observing two other things.
46An observation report was completed by Mr. Durbajhai from notes he had taken at the time and left on the lead supervisor’s desk. It was introduced as an exhibit. When Mr. Durbajhai left the employment of the respondent in March 2013, he shredded his notes. After leaving the observation report, no one contacted or communicated with Mr. Durbajhai about the applicant’s conduct on April 20 until well after the Application was filed. He was not asked to produce his notes and the notes were not produced during the hearing.
47Mr. French testified that despite being issued a verbal warning, the observation report indicated that “lead supervisors to follow up”.
48The applicant was relieved from duty with pay pending further investigation on April 21, 2011. Mr. French testified that he did not have any role in relieving the applicant from duty as that is a decision made by either the lead supervisor or front line supervisor. He understood that the applicant was removed from duty based upon the observation report, as well the CARE Ticket 68992.
49Mr. French testified that after the applicant was relieved from duty, he, Mr. Scott and Ms. Betts met to review the applicant’s human resources file for past discipline. He did not recall exactly when the decision to terminate the applicant was made, but it was his decision, it was made before the April 25 meeting, and before the applicant had an opportunity to respond to the CARE Ticket 68992. In deciding to terminate the applicant, Mr. French testified in examination-in-chief, he took into consideration the applicant’s disciplinary record. Mr. Scott had the right to change that decision, but he required Mr. French’s authorization to do so. As noted below, there was potentially video evidence that could be obtained from the bus the applicant was driving that might have been relevant to the incidents of April 20, 2011 as well as the two CARE Ticket complaints. In response to one of my questions, he testified that while he reviewed written commentary about two of the available bus videos (specifically relating to the April 21 incidents and relating to the CARE Ticket 69212 complaint arising from events on April 19), he only did so after the termination.
50Mr. Rice testified that he was not involved in the decision to terminate the applicant, although he was told that the termination had occurred.
The Video Evidence and Operating Data from the Applicant’s Bus
51The buses that the respondent’s transit operators operate belong to York Region. The buses have cameras on them, from which videos can be pulled, as well as operating data. The operating data can reveal the speed at which the bus is operating, and whether a bus comes to a stop, even though this data is not in real time.
52The respondent does not have direct access to the video evidence or the operating data. For this, it has to request access from York Region.
53The respondent did not request the applicant’s bus’ operating data as part of its assessment of the applicant’s performance issues. Mr. French testified that a bus’ operating data is requested all the time when customer complaints are made, but he did not know if it was requested in this situation.
54The respondent did request information from the bus’ camera. Two York Region employees both sent emails to the respondent describing contents of the videos that recorded the applicant’s bus’ activities on April 20, 2011 and on April 19 (relevant to the CARE Ticket 69212 complaint). The email describing the video for April 20 was sent to Mr. Rice, with a copy to Mr. French, on April 27. A second email, describing the video for April 19 (CARE Ticket 69212) was sent to Mr. Rice on May 3. Mr. Rice testified that he only reviewed these emails after the termination and Step One grievance meetings, but before the Step Two meeting. As noted elsewhere, Mr. French testified that he saw both these emails, but only after the Step One meeting. The respondent did not call as a witness either York Region employee who viewed the video footage of the bus’ activities for these dates, nor did it produce the emails sent to Mr. Rice and Mr. French.
The April 25, 2011 meeting
55The applicant attended this meeting along with David Clarke, his union representative, and they met with the respondent’s representatives, Ms. Betts and Neil Scott, lead supervisor. Mr. Scott has passed away. Ms. Betts testified that the purpose of the meeting was to discuss the observation report with the applicant, along with CARE Ticket 68992, find out the applicant’s responses to these, and then management could determine whether he would be returned to work or not. Ms. Betts took notes of this meeting and they were introduced as an exhibit during the hearing. As set out above, the missing pages from these notes were produced after the applicant’s cross-examination had concluded.
56Customers who have concerns or complaints about one of the respondent’s operators contact York Region. The respondent does not receive a customer complaint directly or know the customer’s identity. York Region generates a CARE Ticket, with an assigned number, which is passed along to the respondent for information, response, action or follow up. The respondent reports back to York Region after it investigates into the complaint.
57Mr. French, who was not in the April 25 meeting, testified that in situations where a customer complains about an operator’s driving, “we would use the computer systems available to us to determine if the bus was going the posted speed limit”. No evidence was produced before or during the hearing about what the computer system information revealed. It is possible, he stated in re-examination, that the data was not reviewed. He confirmed that where the operator disputes the customer’s complaint, the best evidence to resolve the difference would be to consult the on board system.
58Further, Mr. French confirmed that the respondent is required to report back to York Region after a customer complaint is investigated. A failure to do so will result in a fine or other disincentive to the respondent by York Region.
59This was the first time that the applicant was told about CARE Ticket 68992. The customer alleged that the operator, identified as the applicant, drove at an alarming speed, made very abrupt stops, and turned corners very quickly. The customer did not feel safe. A copy of an email from what appears to be individuals associated with York Region, containing CARE Ticket 68992, was entered as an exhibit. No video was produced and no onboard data was produced.
60With respect to CARE Ticket 68992, the applicant testified that he recalled the woman who filed the complaint. She asked to be let off in front of the Parish church, not a stop on his route, and he told her that he had to take her to an authorized stop, which was Goldworthy. She indicated that she was going to report that he went through a red light.
61Ms. Betts testified that “they” are capable of identifying the bus and the route in order to determine who the operator was. She confirmed that the route was not provided, but that it was determined it was the purple route, not the blue route as indicated on the CARE Ticket. Jennifer King, the respondent’s customer service manager, looked up the route and determined that it was the applicant driving.
62Mr. French testified that he did not have the facts in front of him, “but in situations like this, we would use the computer systems available to us to determine if the bus was going the posted speed limit” as well as data about stopping abruptly or not. There is a tracking system on the bus. No information from the computer system was produced before or during the hearing and Mr. French testified in cross that he did not know if it still exists. He testified, in cross, that it is proper procedure to let off a customer at a proper stop, not between stops, for safety and scheduling reasons. He stated, in cross, that it was possible that the applicant was not speeding and not stopping abruptly as he did not have the data in front of him from the systems. CARE Ticket 68992 would not, by itself, he testified, form the reason for the applicant’s termination, but it was part of the reason to terminate the applicant. Mr. French testified that he had information about CARE Ticket 68992 prior to finding out that the applicant urinated in front of his bus, and that it would have been soon after April 14.
63Mr. French was not aware if the respondent responded to York Region about CARE Ticket 68992. No response was produced by the respondent.
64With respect to Mr. Durbajhai’s observations about running a red light and going through a stop sign, the applicant testified that he told Mr. Scott and Ms. Betts that Mr. Durbajhai would not have been able to see whether or not the light was red or green given his location behind the bus. The applicant inched the bus into the intersection while both street lights were red as there is a two-second delay when both street lights are red before one turns green.
65The applicant denied going through the stop sign. He testified that he did a “rolling” stop, rather than a complete stop when he came to the stop sign. Further, he stated that because the road was not assumed by the Town of Markham, he was not required to comply with it anyway.
66It was after the applicant’s evidence concluded that the respondent produced the missing pages from the April 25 meeting. As set out in para. 25 above, the notes confirm that the applicant said that he was on medication which caused him to urinate frequently, although the applicant and the respondent dispute whether the applicant said the medication caused him to experience an urgent need to urinate. The notes were introduced as an exhibit during the applicant’s examination-in-chief with the later pages added to the exhibit after they were produced.
67The applicant testified again after the missing pages were produced. He found that they contained errors, including identifying himself as PL, rather than as LP (his initials), Mr. Scott claiming that the respondent would be fined if “we leave early”. The notes were not complete, he asserted, as Mr. Scott’s response that he also was taking a diuretic is not contained in the notes, as well as being asked why he did not use the hospital’s washroom and the explanation that he provided in response to that question. The applicant testified that he did not leave the hospital early, but instead, left late. He testified that the notes were incomplete about some of his responses, for example, “LP stated: I did not make a full stop at the stop sign”. He claimed to have given a fuller explanation.
68The applicant admitted during the meeting that he urinated in front of his bus. He testified that he told Mr. Scott and Ms. Betts, with his union representative present, that he was taking diuretic medication prescribed by his doctor for his high blood pressure which caused an urgent and frequent need to urinate. He maintained this answer during cross-examination despite being told by respondent counsel that Mr. Clarke and Ms. Betts would both testify that he did not disclose either his medical condition or that he was on medication.
69The applicant testified that Mr. Scott asked him why he did not go into the hospital to use its washroom, and he told Mr. Scott it was after his departure time and if he had attempted to walk that far, he would have probably soiled his pants. Because of the medication, he had an urgent need to void and he chose to urinate in front of his bus. He testified that Mr. Scott told him that he was on the same medication and the applicant thought that he would be understanding of the applicant’s situation and would lenient of any disciplinary action that was taken. The assertion that the applicant told management that he was on a diuretic and that Mr. Scott said that he also was on it was alleged in the Application. The applicant did not ask for any accommodation because, he testified, he had been able to use washroom facilities along his route or urinate in places where he had not been seen. The respondent did not explore whether or not he required any accommodation.
70Mr. Clarke did not recall the applicant saying that he was on a diuretic or that he had a medical condition. If the applicant had raised it, Mr. Clarke testified, “It would have been a different story” and he would have told Mr. Piggott that the applicant was terminated for medical reasons. He recalled the applicant telling him, during the break out and during the meeting, that he urinated in front of his bus after he ate and because he did not think he would be observed as it was nighttime and dark.
71Ms. Betts testified that the applicant did not say anything further about his medical condition, other than what was recorded in the April 25 notes, that being “LP reported that he was taking a diuretic which was causing him to urinate more frequently”. She denied that the applicant told them that he had a medical condition, a disability or a diagnosed disability. She denied that the applicant told them that the diuretic caused him to urinate more urgently, but agreed that he said it caused him to urinate more frequently. She denied that the applicant told them that he had a medical condition. The only information they had was that he was taking a diuretic, which she admitted in cross-examination is a medication which makes you urinate. He did not explain why he was taking a diuretic, and admitted that no one asked him why he was taking a diuretic. At this point in her cross-examination, she believed that the information about the applicant being on a diuretic was after he was terminated. She did not recall Mr. Scott saying that he was also taking a diuretic, and maintained that if he said it, it would be in her notes.
72He did not tell them, she testified in chief, why he could not follow the proper protocol of using the hospital’s washroom.
73As for why the Response indicated that the respondent denied that the applicant told it that he was on medication, Ms. Betts testified in examination-in-chief that it was an error on her part and “It’s not correct”. It was an “honest oversight on my part”, she said.
74Not surprisingly, Ms. Betts was vigorously cross-examined on the missing pages from the April 25 notes, and the omission from the Response about the applicant telling her and Mr. Scott that he was taking a diuretic. In cross-examination, she testified that she should have been aware when the Response was drafted that the applicant told them that he was taking a diuretic, it was “obvious” to her because she read her notes, and it was an oversight that it was not mentioned in the Response. She testified that the Response was prepared by counsel and reviewed by herself and Mr. Rice before it was submitted. Respondent counsel objected, on the basis of privilege, about any emails that she sent to him about the Response, which was not pursued by applicant counsel.
75Ms. Betts could not answer, in cross-examination, how many meetings or discussions she had with respondent counsel before the Response was filed. She said that she could not answer if it was financially viable to the respondent to have the Response contain this oversight. She testified that she did not think it was relevant that the applicant was taking a diuretic. She paused before answering this, and said that there were many opportunities for the applicant to use the washroom, or to notify control that he was taking a washroom break. There was no explanation given about why the applicant did not access the hospital’s washroom.
76When it was pointed out in cross-examination that the information about taking a diuretic was in blue ink, rather than black ink like the majority of the April 25 notes, Ms. Betts said that it was bold because it was new information that she was not aware of before the meeting. They had not received any medical information from a physician indicating that the applicant had a medical condition that required accommodation. She conceded that they did not ask for such documentation, testified that they did not ask this because the applicant did not say that he had a medical condition or disability, and testified that she did not know why they did not ask why he was taking a diuretic. She claimed not to know how to answer the question “Would it be fair to say that you didn’t ask [why he was taking the diuretic] because you didn’t care?” Mr. Scott, the other management person, did not explore why the applicant was taking a diuretic. As a human resources person, she would have expected more information about why he was taking a diuretic. She acknowledged that there was discussion about the applicant urinating in front of his bus, although this is not in her notes.
77After being examined on this, as set out above, Ms. Betts then testified that she thought that the information about the applicant being on a diuretic came out at the end of the meeting and after the decision to terminate had been issued, although her notes did not reflect this. She conceded that they probably should have asked why he was taking the diuretic and that “normally we would have done that”. Later, when she was asked if it was a mistake not to explore more about the applicant taking a diuretic, she indicated that it was not reflected in her notes, but she thought that the applicant told them about the diuretic after he was terminated.
78The decision to terminate would have been made with the operations manager, Mr. French, according to Ms. Betts. She testified that after she and Mr. Scott reviewed with Mr. French what the applicant told them during the meeting and during the break away meeting, the decision was made to terminate the applicant. Ms. Betts testified that she did not recall what Mr. Scott said to Mr. French during the break away, nor did she recall what discussion took place about the diuretic, or whether any discussion at all took place about the diuretic. She confirmed that she did not take notes of the break out meeting. She could not remember what happened because the meeting took place two years previously and she did not have any notes about what was said. In re-examination, she agreed that management would be relying upon Mr. Durbajhai’s eyewitness account as reflected in the observation report.
79Furthermore, she testified that she did not believe that she had seen her witness statement before the date of her testimony. She was not involved with the drafting of her witness statement.
80After the applicant told Mr. Scott and Ms. Betts this information, Mr. Scott said he needed to speak with Randall French, the operations manager. He left the room, consulted with Mr. French, and came back into the room about five minutes later and told the applicant that he was terminated. The applicant was shocked. The applicant recalled Ms. Betts remaining in the room with the applicant and Mr. Clarke.
81Mr. Clarke recalled Ms. Betts telling them that management needed a minute and he and the applicant stepped outside for some fresh air. During this break, he and the applicant talked about the possible outcomes from the meeting. Mr. Clarke was shocked, during the break, about the applicant urinating in front of his bus. He recalled the applicant telling him that he did not use the washroom because he did not think anyone would see him because it was dark and night. When they returned to the meeting, Mr. Scott told the applicant that he was terminated.
82Mr. French testified in chief that he did not recall a breakaway meeting with Mr. Scott and Ms. Betts, although it was possible. He is involved in a lot of disciplinary meetings. Mr. French denied, in chief, that he was told about the applicant having a potential disability, that he was on a diuretic or that he was on any medication. In cross-examination, he testified it was not brought forward to his attention, “… and if it was brought forward we would consider that and I don’t know whether taking diuretic would address the operating irregularities”. Later he testified that it would require further follow up. He questioned why the operator would not have first brought this to the respondent’s attention. Later in his cross-examination, Mr. French testified that he had no idea prior to attending the hearing that the applicant was taking a prescription drug and he had not seen Ms. Betts’ notes until they were provided to him during the hearing.
83When an employee has a medical condition, it is generally dealt with by the human resources department and kept confidential, Mr. French testified. Human resources’ responsibility would be to get the information and deal with it appropriately.
84The April 25 notes indicate that Mr. Scott told the applicant that he was being terminated because he violated corporate policies and procedures and the Highway Traffic Act, and had demonstrated unprofessional conduct. Ms. Betts could not recall, in her examination-in-chief, what corporate policies and procedures were being referred to, but testified that going through the red light, speeding, and not stopping at the stop sign were violations of the Highway Traffic Act. The reference to unprofessional conduct was the applicant urinating in public.
85Mr. French testified in cross-examination that the bus’ video would confirm whether or not the applicant turned left on a red light. He has not seen that video. He did not know if the applicant’s responses about running the red light were taking into consideration on April 25.
86With respect to the allegation that the applicant failed to stop at a stop sign, Mr. French testified that he relied upon Mr. Durbajhai’s report, notwithstanding that the email from the York Region employee describing the bus’ footage from April 20 stated that the failure to stop was not observed. However, I also note that Mr. French testified that he did not review this email until after the termination decision (see para. 54, above). There is a difference, he testified, between saying that it was not observed and that it did not happen. He conceded that the bus would have monitoring equipment to determine whether or not it stopped at the stop sign, but did not recall if it was used in this case. He “supposed” that such information would have been helpful. He conceded that the Highway Traffic Act does not apply to unassumed roads, but disagreed with the assertion that there is a difference between a rolling stop versus going through the stop sign at full speed, such as 60 km/hour. “Violating a stop sign is violating a stop sign”, he testified, although the latter may be more dangerous.
87At the April 25 meeting, the applicant signed the observation report and dated it. He did not agree that by signing it he was acknowledging that the statements were accurate. Ms. Betts testified that she was not present when the applicant signed the observation report at the April 25 meeting.
88Ms. Betts, in her examination-in-chief, confirmed that there were some errors in the April 25 notes. This included the date of CARE Ticket 68992, which should have been April 14, not April 20 as written in her notes. The fact that there was a breakaway meeting with Mr. Scott, Mr. French and herself was also not mentioned in the notes.
89The applicant was handed a termination letter after Ms. Betts and Mr. Scott returned from their breakaway meeting with Mr. French. Ms. Betts testified that she usually types out termination letters and assumed that she typed out the applicant’s letter. Since it is dated April 25, she assumed that she typed it out that day. The summary of meeting, as reflected on her April 25 notes, was shared with the applicant and then he was handed his termination letter.
90Mr. French testified in his examination-in-chief that he had not seen Ms. Betts’ April 25 notes. They are in a file and available if needed. The only information that he had at the time of the termination was the observation report.
91Only one page of the termination letter was produced by the respondent, despite me stating several times during the hearing that a page was missing. It is unclear who signed the termination letter since that page is missing. Ms. Betts testified that either Mr. Scott, Mr. French or Mr. Rice signed the termination letter.
92Mr. Rice testified that he was not involved with the decision to terminate the applicant. No one should go into the meeting with a preconceived notion of termination, he stated in his cross.
93The reason for the applicant’s termination is set out in the first paragraph of the letter. It states:
This letter will serve to inform you that your employment as a Transit Operator with York BRT Services LP/Veolia Transportation is being terminated effective April 25, 2011. This decision was based on you violating corporate policies and procedures, the Highway Traffic Act, and for demonstrating unprofessional conduct.
94Ms. Betts’ understanding, she testified, was that the applicant was terminated for violating the training and code of conduct because he urinated in front of his bus; for violating the Highway Traffic Act by running a red light and stop sign and driving erratically; and for unprofessional conduct for exposing himself and urinating in public.
95Ms. Betts testified that she could not recall having a discussion with anyone about the applicant’s employment between April 25 and April 27, although she would have had one with Mr. French to give him the applicant’s file.
96Mr. Clarke testified in chief that after the termination meeting, he and the applicant spoke. Mr. Clarke recalls the applicant asking if he could resign instead of being fired. Mr. Clarke was not sure of the answer to that question. He went back and asked Ms. Betts who told him that it was an option, but the applicant would have a hard time getting employment insurance benefits. Mr. Clarke went back and told the applicant this information, that it would not be on his record and he could use the respondent as a reference. The applicant told him that he would think about it and that he wanted to work in the transit industry and had applied to other positions a couple of weeks before this, including GO transit. This additional information about what was discussed after the applicant was terminated was not put to the applicant or Ms. Betts during their evidence, although it was in Mr. Clarke’s witness statement. Later in his evidence, Mr. Clarke said that he did not think the applicant told him that he had applied to GO transit.
97From Mr. Clarke’s perspective, the fact the applicant urinated in front of his bus was one of the key reasons why he was terminated. He was told that there was video footage, but was not shown the video itself.
Step One Grievance Meeting – April 27, 2011
98The union filed a grievance about the applicant’s termination. The grievance, which was filed as an exhibit, is very brief. It identifies the article in dispute as being “termination” and says “reinstatement” as the grievance statement. It was signed by Mr. Piggott.
99The grievance advanced to a Step One Grievance Meeting on April 27, 2011 (“the Step One meeting”). In attendance were the applicant; Cliff Piggott, the union representative; Ms. Betts; and Mr. French. Notes that Ms. Betts took were entered as an exhibit. Mr. French testified that he had not seen these notes prior to his testimony.
100The purpose of the Step One meeting was to see if new information was available to determine whether the decision made at the previous step would be upheld or overturned. Mr. French testified about this.
101The applicant met privately with Mr. Piggott before the April 27 meeting commenced. He did not tell Mr. Piggott that he was on medication or had a medical condition. He believed that Mr. Piggott met privately with management before the meeting started, but was not sure.
102At this meeting, the respondent informed the applicant about a new CARE Ticket, 69212. The ticket was dated April 26. The customer complained about the applicant’s driving on April 19, and alleged that the operator was speeding, accelerated very hard and drove through a red light, drove in right hand lanes not affiliated with bus stops, while the road conditions were wet and slippery and it was dark. The customer alleged that they wanted to get off at a red light, but the operator did not permit it. The bus involved was identified as being 5417 or 5147.
103Mr. French testified that the respondent also relied upon CARE Ticket 69212 in further support of the applicant’s termination and in its decision to uphold the termination. It would not have been discussed if this were not the case, Ms. Betts testified in re-examination. At no time did the applicant take the position that the CARE Ticket 69212 was not about him.
104Mr. French testified that he received an email on April 27 from the operations manager at York Region, containing observations from the April 20 video about the applicant’s bus. He did not read the email prior to the Step Two meeting. The email observations, he testified, were consistent with Mr. Durbajhai’s observation report.
105Ms. Betts acknowledged that there were some mistakes in the notes from the Step One meeting, including the date. The applicant would not have been provided with a copy of CARE Ticket 69212, but Mr. French would have summarized it. There would also have been an email summary from customer service or York Region, but this was not disclosed. The applicant was not initially terminated because of this complaint because it was not known as of April 25.
106Mr. French reviewed the reasons why the applicant was terminated. They were set out in the April 27 minutes, taken by Ms. Betts, which were introduced as an exhibit, and state:
not following corporate policies and procedures. CARE tickets and arrive and departure times at Hospital;
violation of the Highway Traffic Act; turning left on red light and going through stop sign; and,
demonstrating unprofessional behaviour unbecoming to a Transit Operator, urinating on street in open area.
107Mr. French testified that the first two reasons, together, would have been sufficient grounds upon which to terminate the applicant. He had been involved in a termination of another employee for red light violations. He did not provide further details about this. An operator is required to stop at a stop sign even if the road is not assumed, according to the Highway Traffic Act and the respondent’s policies.
108The applicant testified that he recalled these reasons being provided to him during the April 27 meeting. At the hearing he agreed that at the April 27 meeting he said he did go through the red light because he chose to accelerate rather than making a hard stop because it was raining. He disagreed that he went through a stop sign, but conceded he did a rolling stop. He agreed that he urinated in front of the bus. Mr. Piggott confirmed the applicant’s evidence when he testified.
109The applicant testified that he did not tell management at the April 27 meeting that he had a medical condition or was on medication. The reason for this, he testified during his cross-examination, was because he had already told management this during the April 25 meeting. He did not know if Mr. French was aware of his medical condition or his medication, unless Mr. Scott told him on April 25. He thought that Mr. Scott would tell Mr. French this since it was a key issue during the April 25 meeting.
110Ms. Betts confirmed, in her cross-examination, that there was no discussion about the applicant urinating, apart from the observation report being reviewed.
111The union requested a last chance agreement for the applicant. Mr. French denied that, saying that he did not think that further training would change the inappropriate conduct. This was based upon the applicant’s past record, irrespective of him urinating in public and is a subjective determination based upon objective factors. Those factors are not codified.
112Mr. French upheld the termination for the three reasons set out above, the observation report and the CARE Tickets, as well as the urination. During his examination-in-chief, Mr. French testified that he did not think that the decision to terminate would have changed had he known that the applicant was taking a diuretic as it would not have had an impact on the applicant driving through stop signs or a red light or operating the bus in an unsafe manner.
113After the meeting, the applicant met with Mr. Piggott, who said that the grievance would proceed to Step Two of the grievance procedure. The applicant did not tell him at this time that he had a medical condition or was taking medication.
114Mr. French testified that he believed that he updated Mr. Rice about the meeting and the fact that the grievance would be forwarded to Step Two of the grievance procedure. Ms. Betts did not recall telling anyone in management that the applicant said he was taking a diuretic at the April 25 meeting.
Step Two Grievance Meeting – May 3, 2011
115The Step Two grievance meeting was held on May 3, 2011 (“the Step Two meeting”). The applicant attended along with Mr. Piggott and Carmen Lint, another union representative. Ms. Betts attended this meeting too, along with Roy Rice, the respondent’s then general manager. Notes that Ms. Betts took were entered as an exhibit. Although the notes do not list the applicant as an attendee, the parties agree that he was present. Mr. Rice testified that he could not recall whether or not he reviewed Ms. Betts’ notes before he testified.
116The applicant met with Mr. Piggott and Ms. Lint before the meeting occurred. He did not tell them that he had a medical condition or was taking medication for it. The applicant testified, during cross-examination, that he assumed that they knew because it had been raised at the April 25 meeting.
117Before attending the May 3 meeting, Mr. Rice testified that he must have reviewed the applicant’s file because his practice is to review an employee’s file before attending a Step Two grievance meeting. He emphatically denied knowing that the applicant was on medication before the Step Two meeting. He testified, “absolutely not” and “we were always very careful about operators and medications that they were taking as it could affect their driving”.
118As for the April 25 meeting notes and whether he reviewed those before the Step Two meeting, Mr. Rice testified, “I can honestly say that I would normally review the file and if this was in the file I reviewed it and much of the information in it is familiar to me”. If the notes were not in the file, he would have questioned this. In cross-examination, he said that he thought that they were in the file. However, he did not recall a diuretic being mentioned at the Step Two meeting and did not recall that being told to him in advance of the meeting. Upon reviewing the April 25 notes during his evidence, he thought it was odd that he did not see them. He did not recall being told that the applicant had a medical condition.
119Mr. Rice testified that if he had learned that the applicant was on medication that caused more frequent or urgent urination, it would have altered his view of how disgusted he was with the applicant’s conduct and it would have been taken into consideration. Mr. Rice would have asked the applicant for medical information to substantiate this assertion, there would have been discussion about how to accommodate the condition, and this would have occurred before he made his decision about the Step Two meeting. He would not have ignored it.
120However, he also testified that the applicant should have been a responsible employee, brought in medical documentation and raised it with management. He also would have expected the union to do the same.
121Prior to the Step Two meeting, Mr. Rice also reviewed emails dated April 27 and May 3 from York Region employees who reviewed the videotapes for the April 20 incidents and the issues raised in CARE Ticket 69212. Mr. French was copied on the April 27 email. Mr. Rice never personally reviewed the videos. He confirmed during his testimony that the bus’ onboard system can produce data about its speed, acceleration and deceleration, and GPS location. The issues raised in CARE Ticket 69212 could have been verified from this objective data. Normally, the respondent’s lead supervisor, along with the lead supervisor, would pull this data from the INIT system and do a report on that information. He did not know if it was done for CARE Ticket 69212, but testified, in cross-examination, “I can’t imagine that it wasn’t because it was a regular occurrence when tickets came in and one of [the customer service manager’s] and the lead supervisor’s jobs to do”. In many cases, operators are exonerated because of the information pulled from the bus. Mr. Rice could not recall if he knew the applicant’s explanations about turning on the red light and doing a rolling stop rather than a complete stop.
122Ms. Betts testified that she did not recall discussing the applicant with anyone before the Step Two meeting. She had no recollection of telling Mr. Rice that the applicant was taking a diuretic as it was not in her notes. She did not do any research about diuretics between April 25 and the Step Two meeting.
123The applicant testified that at the Step Two meeting, Mr. Rice upheld his termination, telling the applicant that he ran red lights, ran stop signs and dropped his pants to urinate and that this was very disturbing. Mr. Rice confirmed in his evidence that he said this. Mr. Rice testified, “I find it absolutely disgusting that he felt the need to urinate in front of the bus when there was a washroom right inside the hospital door which they all know about and they all use”.
124Further, Mr. Rice testified, there were three illegal acts done on a public vehicle in a public space for which the applicant needed to take ownership for his actions. Mr. Rice was appalled that a professional employee would not follow the rules, would do these acts in the care and control of an expensive vehicle, wearing his uniform, and compromise the public’s safety. He conceded that the video summary did not show people walking around. He wanted the applicant to stop working for the respondent before he killed someone.
125The applicant testified that he did not dispute the allegations against him because he had limited opportunity to speak during the Step Two meeting. The applicant disputed the allegations during the hearing. He also disputed “dropping his pants” to urinate. Instead, he testified that he unzipped his pants and undid them, but they were not dropped to his ankles. He did not again inform management that he was on a diuretic as there would be a record of him saying this at the April 25 meeting.
126The applicant was informed, for the first time, that the respondent had video evidence of him urinating. The video was not played for him. The applicant was embarrassed. Mr. Rice called the applicant’s behaviour “disgusting”, spoke to him in a stern voice and told him that if he proceeded to arbitration with his grievance, the video of him urinating in front of his bus would become public knowledge and the respondent would disclose it to the police.
127Despite the applicant admitting to his actions, Mr. Rice testified that the respondent had other people to answer to like York Region, and York Region had concerns about what had taken place and how the respondent was dealing with the matter. He denied that there was pressure from York Region, but testified that he knew what the next steps would be. York Region would contact its police force and this would not reflect well on the respondent as it would demonstrate that it was not taking appropriate action. Further, Mr. Rice was concerned that the applicant was driving through stop signs and traffic lights.
128The applicant testified that he was led to believe that the police would charge him with indecent exposure. Mr. Rice told the applicant that his only option was to resign rather than pursuing his grievance to arbitration. Mr. Rice confirmed that he said this during his examination-in-chief; however, he testified that he was not prepared to allow the applicant to resign, but the union raised it as an option after it left the meeting with the applicant and then returned. The union leaving the meeting is not reflected in the notes. He agreed to allow the applicant to resign, as a favour to the applicant’s mother, who had called Mr. Rice about the termination. Beyond this assertion, there was no explanation about why the applicant’s mother was a factor for Mr. Rice to consider.
129The applicant also understood that he would get a bad reference from the respondent if he pursued his grievance to arbitration, even though this is not set out in the Step Two notes.
130Ms. Betts testified that Mr. Rice’s demeanour was very professional and matter-of-fact during the meeting. Mr. Rice’s comments about the applicant’s behaviour being disgusting and that his only option was to resign were made towards the end of the meeting. Mr. Rice suggested that the applicant resign, which was an option, she testified, but not a threat. She confirmed that Mr. Rice told the applicant that he was prepared to tell the police that the applicant exposed himself on the video and was prepared to disclose that to the police. She understood Mr. Rice’s comment about it becoming public knowledge as it would become public if he proceeded to arbitration and the video would be disclosed. She testified that Mr. Rice did not report him to the police.
131She admitted, during cross-examination, that there was no discussion about the applicant urinating, apart from reviewing the observation report. The reference to the applicant dropping his pants, as stated by Mr. Rice, was from the email summarizing the video.
132Mr. Piggott testified that Mr. Rice was very abrupt in his summation of the events. Mr. Rice did not paint a pretty picture of what the evidence was or the evidence that they would have if they went to arbitration. Mr. Rice did not show the video and Mr. Piggott knew from past experiences that the respondent would not disclose the video to the union. They might eventually be subpoenaed by the union, but Mr. Piggott is not a lawyer and did not know what that process would be.
133As for the applicant’s resignation, Mr. Piggott testified that the applicant’s resignation was voluntary as he could not make the applicant resign. But he agreed, in cross-examination, that as far as the grievance procedure went, resignation was the only option to avoid public knowledge and public airing of the videotape which showed the applicant urinating and to avoid the respondent going to the police with this information. He also agreed that the applicant was persuaded to resign with the incentive that his job search efforts would be improved by going that route, but that after the resignation, he, as the union representative, had no control over what the respondent said about the applicant.
134The applicant did not want to resign, but felt pressured by the respondent into signing a letter of resignation because of what Mr. Rice told him. He also felt pressure from the union. In his cross-examination, the applicant testified that the union representatives told him that he had the option to proceed to arbitration, but they felt that the case was weak because of the video management had of the applicant urinating. They told the applicant that the union’s executive would have to vote to decide whether or not to pursue his grievance to arbitration. He assumed, he stated during cross-examination, that the union representatives were aware of his being on medication. They did not raise this as a possible defence. Mr. Piggott testified that the membership would vote on whether the grievance proceeded to arbitration and he explained that there was a 50/50 chance about being successful at arbitration.
135After Mr. Rice suggested that the applicant resign, and he had an opportunity to speak privately with his union representatives, the applicant agreed to resign. He testified, in re-examination, that he does not feel that his resignation was voluntary.
136The applicant did not know who prepared the resignation letter, dated May 3, for his signature. Ms. Betts testified that she believed she did in her office. Mr. Piggott agreed with this. She did not recall seeing the applicant sign it. The letter says that the applicant was resigning for personal reasons. The applicant testified that he did not have personal reasons to resign, and before the Step Two meeting was not considering resigning. The letter of resignation was entered as an exhibit.
137The respondent sent the applicant a letter accepting his resignation, which was signed by Mr. Rice. This was prepared by Ms. Betts. The resignation resolved the grievance. The applicant received another letter from Ms. Betts, addressed “To Whom It May Concern” and confirming the dates of his employment and the fact that he resigned for personal reasons, which the applicant felt was dishonest. Both of these letters were entered as exhibits. Mr. Rice’s letter includes the sentence, “This will serve to confirm that your employee file will remain sealed and no further action will be taken”. Ms. Betts testified that she did not know why that sentence was included in this letter as it was not something that normally is included. It could have been something that legal, Mr. Rice, or the union wanted included in the letter, she testified. Mr. Piggott did not recall why that sentence was included in the letter.
138Mr. Rice testified that it was included to indicate that they were not pursuing charges and were not going to report it to the police. The applicant’s urinating was reportable to the police, Mr. Rice stated, like indecent exposure. Mr. Rice did not want the applicant, his mother or the respondent to be embarrassed if the respondent reported it to the police. According to the observation report, the applicant was not discreet as he “dropped his pants”.
139The applicant testified that after the threat of the respondent contacting the police was removed, he felt relieved.
140Mr. French testified that he was not involved with the applicant’s resignation, but agreed that upon Mr. Rice’s request he signed the employee profile change form profile which indicated that the applicant resigned. The fact that the form says that the applicant is not “rehireable” is because of the applicant’s past driving record, which included what was discussed at the Step Two meeting as well as his previous record. Mr. Rice testified that it was included so that he applicant would not hired for another location with the respondent.
141Some time later, the applicant filed his Application.
onus of proof
142The 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 was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.
143Upon 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.
credibility of witnesses
144The 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.
145In 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.
146Underlying 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 inclination to embellish 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.
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.
147Thus, evaluating the reliability and veracity of a witness’ evidence is a multi-faceted exercise, where a 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.
issues
148The issues that I have to determine are the following:
a. Does the applicant have a disability as defined by the Code?
b. Is there a link between the applicant’s disability and his misconduct, namely urinating in front his bus?
c. Was the respondent aware that the applicant was taking a diuretic?
d. Was the applicant’s disability the reason for his termination or a factor in his termination?
e. What remedies should be awarded?
does the applicant have a disability
149Section 10 of the Code provides a definition of “disability”. It states:
“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
(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.
150I agree with the respondent that because an individual has been prescribed medication does not mean that the individual has a disability within the meaning of the Code. The Tribunal has recognized that not every medical condition is a disability for the purposes of the Code. See, for example, C.M. v. York Region District School Board, 2010 HRTO 1494 at paras. 13-15. Everyday illnesses or normal ailments are not generally disabilities under human rights legislation, including colds, flu, or conditions such as lice. See, for example, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 SCR 665 (“Montréal”) at para. 82, Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 CHRR D/19 at para. 67, and C.M., above at para. 15.
151Section 10(1) of the Code sets out an expansive definition of “disability” which, the Tribunal has recognized, is to be broadly, not narrowly, interpreted. See, Montréal, above. Perceived disability is also a Code ground under section 10(3).
152The threshold for establishing a disability is not high. Unlike Roseblade v. Randy River, 2011 HRTO 363, a case the respondent submitted during its final submissions, where the applicant presented a letter from her doctor which said that she was absent “for medical reasons”, which the Tribunal found did not establish a disability within the meaning of the Code, the applicant in this case has presented some evidence about his medical condition.
153The applicant testified that he has high blood pressure, also known as hypertension, and that his doctor prescribed medication, a diuretic, for him to take for his medical condition. He had been taking this for about five years before April 21, 2011. Dr. Small’s letter confirms this. The applicant entered as an exhibit some prescription history from Shoppers Drug Mart (“prescription history”), confirming that his prescription refills, under Dr. Small’s direction, were June 22, 2010 until the date of print out, August 9, 2013, including 2011. The healthcare watch information is about the diuretic.
154The healthcare watch information does not list frequent or urgent urination as a possible side effect, although it does identify diarrhea as a possible side effect. The hypertension pamphlet provides a description for diuretics. It says, “Often called water pills, these medications help you eliminate excess fluid through urination”. Dr. Small’s letter says that one of the possible side effects of the diuretic is increased urination.
155In the hypertension pamphlet, it states that hypertension can result in “damage to the heart, such as heart failure or a heart attack. High blood pressure can cause strokes or mini-strokes” as well as other problems.
156The respondent did not cross-examine the applicant on Dr. Small’s letter, the prescription history, healthwatch document, or the pamphlet.
157Based upon the evidence that the applicant has submitted, I find that his hypertension, or high blood pressure, is a disability within the meaning of the Code.
Is there a connection between the applicant’s disability and his conduct?
158Having a Code disability does not mean that an applicant is not accountable for misconduct in the workplace. It is up to an applicant to establish a link between his or her disability and the misconduct in question. In this situation, the applicant does not claim that his disability was responsible for any conduct, apart from urinating in front of the bus.
159The applicant testified in detail in his examination-in-chief and his cross-examination that the diuretic he was taking caused him to experience frequent and urgent urination and, more specifically, that he urinated in front of his bus because the diuretic he was taking created a sudden need for him to urinate that was unexpected. During the hearing, he testified that he would not have been able to make the several minute walk to the washroom in the hospital without soiling himself because of the urgent need to urinate. I accept that there is a subjective component to assessing one’s need to urinate on an urgent basis or otherwise.
160I also accept that having an urgent need to urinate impacted on the location of where the applicant decided to urinate. He had had an encounter with a racoon in or around the bushes on a previous occasion and did not want to repeat that experience. I accept that he acted discreetly, or as discreetly as he could, in urinating in front of his bus, which was faced away from the hospital entrance, that his passengers had left the bus and there did not seem to be anyone else around. I also accept that he did not “drop his pants” to his ankles, given the evidence of both the applicant and Mr. Durbajhai.
161However, the applicant’s evidence about urgency being a side effect for taking a diuretic is based solely on his own testimony. There is nothing in the documentation filed by him as exhibits that lends support to that position. There is nothing in Dr. Small’s letter that suggests that this is a possibility. Dr. Small’s note confirms the existence of a medical condition, states that there can be “increased urination”, but says nothing about “urgency” or unpredictability. Dr. Small did not testify during the hearing.
162The healthcare watch information that was entered as an exhibit about the diuretic lists a number of possible side effects for taking the medication. Increased or urgent urination is not identified as a possible side effect. The pamphlet about hypertension, which was also introduced as an exhibit, says that diuretics are often called water pills, and can “help you eliminate excess fluid through urination”. It says nothing about urgency being a potential side effect.
163In Dixon v. Mississauga (City), 2012 HRTO 1383, the applicant asserted that her performance issues and her termination were related to menorrhagia, a menstrual disorder causing excessive bleeding during menstruation. The medical documentation confirmed that the applicant suffered from menorrhagia, and had problems with loud noises, but the adjudicator held it fell far short of the sort of evidence required to prove the disadvantageous treatment she alleged she experienced. At para. 27 of that decision, the Tribunal found that apart from her assertion that all of her conduct for which she received discipline or discharge resulted from symptoms of menorrhagia, the applicant provided no evidence, medical or otherwise, that the conduct in question was in fact related to or caused by menorrhagia.
164In Walton Enterprises v. Lombardi, 2013 ONSC 4218, Divisional Court granted a judicial review application (“the JR”) and set aside a Tribunal decision (“Lombardi”) which found a connection between an applicant’s disability and misconduct, fighting, in which he participated. The JR critiqued this finding in the absence of evidence, particularly medical evidence, which connected the disability and the misconduct. See paragraph 48. The Divisional Court contrasted Lombardi with other Tribunal decisions to which the adjudicator referred in which significant medical documentation and medical evidence had been tendered during those hearings.
165By contrast, in Krieger v. Toronto Police Services Board, 2010 HRTO 1361, as cited in the JR, a probationary police constable was involved in a confrontation with a suspect that resulted in the development of post-traumatic stress disorder, although he was not diagnosed with the condition immediately. He subsequently engaged in a confrontation with another suspect that ultimately led to the termination of his employment. The Tribunal found the release to be discriminatory on the basis of disability, finding that the employer had good reason to suspect the individual was suffering from mental health problems around the time of the second incident. The employer was subsequently given information about the medical condition after the complainant obtained treatment, but before the dismissal occurred. The Tribunal found that the dismissal was a result of the disability, and the employer failed to meet its duty to accommodate.
166In the case before me, I accept that the applicant had an urgent need to urinate, but I find that the applicant has failed to establish a link, on a balance of probabilities, taking into account all of the evidence before the Tribunal, that his urgent need to urinate in front of his bus was related to a side effect of the diuretic that he was taking. The explanation about a sudden and urgent need to urinate because of the diuretic is not supported by the medical evidence that the applicant entered as exhibits. There is other evidence, such as the applicant extending his break on the bus and consuming his meal, which contribute to his urgent need to urinate.
Was the respondent aware that the applicant was taking a diuretic?
167The applicant concedes that he did not tell Mr. Durbajhai about taking a diuretic or his medical condition when Mr. Durbajhai stopped him during his shift on April 20 and raised concerns about his performance, as noted in the observation report.
168The applicant told the respondent that he was taking a diuretic because of his medical condition, high blood pressure, and that it caused him to urinate more frequently and urgently, on April 25 in his meeting with Mr. Scott and Ms. Betts when he was represented by Mr. Clarke. He offered this information as justification to urinating in front of his bus, but not in relation to the other performance issues that were raised with him at this meeting. He testified that Mr. Scott told him that he understood because he also was on the same medication. The applicant testified that he was not asked any questions about the diuretic, or his medical condition.
169After the applicant told Mr. Scott and Ms. Betts this information, there was a breakaway meeting so that they could meet with Mr. French (who was not in the April 25 meeting) and review what the applicant’s responses to the performance issues that had been raised had been.
170The fact that the applicant recalled Ms. Betts remained in the room with Mr. Clarke and himself, Mr. Clarke recalled going outside with the applicant, and Ms. Betts recalled being in the breakaway meeting with Mr. Scott and Mr. French is not significant.
171What is significant is that following the breakaway meeting, the meeting with the applicant resumed and he was told, at that time, that he was terminated.
172I find the applicant to be credible in his evidence about disclosing on April 25 that he was taking a diuretic, that it was because he had high blood pressure, and that it caused him to urinate more frequently and urgently. His evidence was internally consistent, from the narratives that he provided in his Application to his examination-in-chief and his cross-examination. He continued to maintain this position despite being told in cross-examination that the respondent’s evidence, as set out in its Response and in its witness statements, would be that he never disclosed that he was taking a diuretic or had a medical condition. Furthermore, he testified about this point before the missing pages of the respondent’s notes were produced by the respondent. When produced, the notes confirmed that at a minimum the applicant told the attendees at the April 25 meeting that he was taking a diuretic as an explanation for urinating in front of his bus. I also find it reasonable that he would have, even if briefly, explained why he was on a diuretic.
173Once the missing pages of the April 25 notes were produced, the respondent conceded that at least Ms. Betts knew that the applicant was taking a diuretic before he was terminated. It continued to deny that the applicant told anyone that he had a medical condition. However, I find that Ms. Betts was not a credible witness with respect to this issue and why her notes were not produced in the first place.
174I found Ms. Betts prone to exaggeration. Her claim during her evidence that she took her notes “verbatim” and “word for word” and “like a transcript” was inconsistent with her later admissions about errors and missing information in the notes. This included any reference to the breakaway meeting on April 25, referring to everyone in third person, and not listing the applicant as an attendee at the Step Two meeting. It is inconsistent with the notes themselves, which do not identify any questions asked, and have the applicant providing responses line after line without being able to know what has been asked of him. It is unfortunate that her handwritten notes were not produced and therefore could not be compared against the typed versions. She testified that she had discarded them in the confidential recycling after she reproduced them on the computer.
175I find it incredulous that pages of the April 25 notes were missing in the first place and that this was not detected by the respondent on its own. I cannot accept that this was an oversight or mistake. One page of notes from the April 25 meeting was attached to the Response, and later produced as part of the documents upon which the respondent intended to rely at the hearing. The sole page that was initially produced addressed the CARE Ticket 68992, about which the applicant was unaware prior to the April 25 meeting, and the issue about the applicant allegedly driving through the red light on April 20. The other two issues reflected in the observation report, the failure to stop at the stop sign and, most importantly, urinating in front of the bus, were not referenced at all on the first page.
176When the missing pages were finally produced, more than two months after the Tribunal directed the respondent to search its records, the notes confirmed at least part of the applicant’s position, that he told the respondent that he was taking a diuretic. The missing pages that were handed to the Tribunal during the hearing as part of the exhibit had this information in a different coloured ink, blue, from the majority of the notes, which was in black ink. The difference in colour left me with the impression that this information was significant for the respondent. This is not inconsistent with Ms. Betts’ evidence, that the text in blue ink was information that was newly available to the respondent.
177What is even more incredulous is Ms. Betts’ explanation that she did not notice that pages were missing from the April 25 notes. She testified that she was the one who scanned the documentation to respondent counsel, and out of the all the documentation that she scanned, somehow the key information from the April 25 meeting, that she attended, was not properly sent. She testified that she had discussions with counsel while the Response was being drafted and that she, along with Mr. Rice, approved the Response before it was filed with the Tribunal. Mr. Rice was not asked about his involvement in the Response when he testified. The Response denies the applicant advising that he was taking a diuretic. As Ms. Betts was present at April 25 meeting, and testified that she knew that he said this, it is remarkable that she approved a Response which denied this information.
178I appreciate that Ms. Betts’ witness statement indicates that it was prepared without her review and contains what her anticipated evidence would be, and that her subsequent testimony is inconsistent with it, but, for the reasons stated above, I cannot accept that her failure to send the April 25 notes to respondent counsel, or her failure to point out in the Response that the applicant, at a minimum, told management he was taking a diuretic, to be an oversight.
179Further, I accept the evidence of the applicant, over Ms. Betts and Mr. Clarke, that he told the attendees on April 25 about his medical condition, high blood pressure, and that he told them this before the breakaway meeting. As set out above, Ms. Betts’ notes contain errors. They are not “word for word” transcripts of what was said. However, most significantly, Ms. Betts’ failure to previously disclose the notes and her failure to notice that the notes were missing, leads me to conclude that I can give very little credibility or reliability to her evidence when it comes to disputed issues about what was discussed at the meeting, including that the applicant did not disclose his medical condition. It is more likely than not that Ms. Betts did not want to confirm information which was omitted from her notes and I do not find her credible or reliable on this point.
180Ms. Betts was inconsistent in her evidence about when the applicant disclosed that he was on a diuretic. During part of her testimony, she stated that the applicant disclosed the diuretic before the breakaway meeting. Later, in cross-examination, she testified that he disclosed it after the breakaway meeting and after he was told he was terminated. She also testified that this was raised despite the chronology of her notes, which suggested that the applicant disclosed his medication before he responded about some of his other performance issues and before a summary of the events upon which he was terminated was listed.
181I do not find Mr. Clarke to be a reliable witness in relation to the April 25 meeting. I do not make any findings about his credibility. I am puzzled why Mr. Clarke did not hear the applicant say at least that he was taking a diuretic at the meeting when this was later conceded by the respondent. Mr. Clarke was the second last witness to testify, and he testified after the missing pages from the April 25 meeting were produced. However, I accept that he was not shown the missing pages prior to his evidence, and the April 25 meeting took place several years before he testified.
182The respondent suggested during final submissions that Mr. Clarke not hearing the applicant say that he was on a diuretic suggests that the applicant said it in passing or that it was a minor point. I do not accept this explanation as it is inconsistent with the respondent’s own documentary evidence, through Ms. Betts’ notes, that the information was important or new. When the notes were produced, this information was in blue ink, rather than the predominant black ink used for the notes.
183It is highly probable, in my view, that Mr. French was told that the applicant was taking a diuretic and/or had high blood pressure both before the applicant was terminated and before the decision had been made to fire him.
184Ms. Betts testified that the decision to terminate was made during the breakaway meeting. For the reasons above I have found her not to be credible in her evidence regarding disputed issues during the termination meeting, so I place little weight on Ms. Betts’ testimony that the decision to terminate was made during the breakaway during the April 25 meeting. However, I also find Mr. French not to be credible in his assertion that the decision to terminate was made before the April 25 meeting. Mr. French’s evidence is inconsistent with his witness statement which, at paras. 8-10, said:
At no time following that meeting [April 25] was I advised by any of the people in attendance at that meeting that the Applicant stated that he had a medical condition of any kind.
At the time the meeting was held, I worked closely with Neil Scott, who was the Lead Operations Supervisor for York BRT at that time. Mr. Scott was in attendance at the April 25, 2011 meeting with the Applicant. In my role as Operations Manager, Mr. Scott would provide me with a full update of the meeting, as this information would be required to assess the appropriate penalty. At no time did Mr. Scott, or anyone else who was in attendance at that meeting, advise me that the Applicant stated at the April 25, 2011 meeting that he allegedly had a medical condition that caused him to urinate on a frequent or urgent basis. Mr. Scott is now deceased.
As a result of that information, York BRT decided to terminate the Applicant’s employment.
185However, his evidence during the hearing was that the decision to terminate was made before the April 25 meeting. The inconsistency between his witness statement and his evidence was not addressed by the respondent during its final submissions.
186The applicant, Mr. Clarke and Ms. Betts testified that there was a breakaway meeting during the April 25 meeting before the applicant was told that he was terminated. Mr. French could not recall if Mr. Scott and Ms. Betts met with him on April 25 to discuss the information they learned during the meeting with the applicant. The breakaway meeting took place after the applicant provided an explanation for his actions on April 20 and a response to CARE Ticket 68992, about which he was not aware before the April 25 meeting. Based upon the evidence of the applicant, whom I find credible, I accept that there was a breakaway meeting during which time Mr. Scott and Ms. Betts went to speak with Mr. French and it was at this point that the decision to terminate was made.
187While Mr. French testified that he had not seen Ms. Betts’ notes from the April 25 meeting until the hearing, there was no explanation offered about why he was not shown them.
188I find that it was more plausible than not that Mr. French was told that the applicant was taking a diuretic. Ms. Betts’ notes show this information in blue ink. As I have previously found, the fact that it is written in different coloured ink demonstrates to me that the respondent attached significance to this information, or was aware that it was new information. The respondent conceded that the applicant revealed this during the April 25 meeting.
189Accordingly, I find that the respondent was aware that the applicant was taking a diuretic and had high blood pressure before he was terminated.
was the applicant’s disability the reason for his termination or a factor in his termination?
190It is well established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason. See Macan v. Strongco, 2013 HRTO 841 at para. 100; Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, McLean v. DY 4 Systems, 2010 HRTO 1107 at para. 62 and Dominion Mangement v. Velenosi, 1997 CanLII 14482 (ON CA).
191It 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 his or her disability. The applicant may rely upon circumstantial evidence that raises an inference that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. See Shaw v. George Brown College, 2009 HRTO 920 at para. 13, and F.H. v. McDougall, [2008] 3 SCC 53 at para. 46.
192In the facts of this Application, I find it more probable than not that the applicant’s disability, or even a perceived disability, was a factor in his termination, but not the main reason for it. The main reason, as I see it, is the applicant’s urination in front of his bus. As I have set out above, I find that the applicant has failed to prove on a balance of probabilities that his medical condition was a factor in his urinating in front of a bus.
193My conclusion that the applicant’s disability was a factor in the respondent’s decision to terminate him is because of the respondent’s conduct about the missing pages of the April 25 notes. It appears that there was an attempt, at least by Ms. Betts, to conceal the pages of the April 25 meeting which contained key information which would be damaging to the respondent. Even when the missing pages were produced, after the applicant’s cross-examination was finished, Ms. Betts would not agree that the applicant disclosed his medical condition, which I have found is not credible. The notes were not shown to the respondent’s witnesses, Mr. Clarke and Mr. French, before they actually testified, even in preparation for their testimony. Mr. Rice testified that he did not recall seeing these notes before the May 3 meeting, and did not recall seeing them before the date he started his evidence.
194I find that once the respondent learned about the applicant’s medical condition, or even his medication, it decided that it did not want to know anything further about the applicant’s disability. It did not ask the applicant any questions about the medication, it did not request medical documentation confirming its existence, and it did not assess whether the diuretic was a factor in his urinating in front of his bus. This is in contrast to the evidence given by the respondent’s witnesses, including Mr. French and Mr. Rice, that the respondent does routinely request such information. Instead, the respondent sought to conceal from the Tribunal that it knew about the applicant’s medication and his medical condition. This concealment leads me to the inference that the applicant’s medication and/or his medical condition played a factor in the respondent’s decision to terminate the applicant.
195However, it was not the main reason for the termination. As stated above, after hearing all the evidence, I am persuaded that the main reason for the termination is because the applicant urinated in front of the bus. I have found that the applicant’s conduct in urinating in front of his bus was not connected to his disability. The performance issues of running a stop sign and turning on a red light on April 20 are serious infractions for a bus driver, which the applicant conceded doing, with an explanation about why, raise safety issues regardless of being a violation of the Highway Traffic Act, and could have resulted in the applicant’s termination by themselves. The performance issue of running a red light, which was raised in CARE Ticket 69212 and substantiated by the video summary, could have resulted in the applicant’s termination. It is unclear whether the issues raised in CARE Ticket 68992, in the absence of supporting documentation, could have resulted in discipline or discharge to the applicant by itself.
196In coming to the conclusion that the main reason for the applicant’s termination is because he urinated in front of his bus, which is not Code-related, I do not make any adverse findings from the respondent’s failure to produce the videos and/or computer data from the bus, or from not calling the York Region employees who viewed the videos as witnesses.
197Based upon this, I find that there were other performance issues, in addition to urinating in front of his bus, which would likely have resulted in the applicant’s termination.
was the applicant reprised against?
198Reprisal has a specific definition under the Code, as set out in section 8. It states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
199The applicant was not reprised against. In addition to proving intention to reprise, an applicant must prove that he or she claimed or enforced, or attempted to do so, his or her rights under the Code. See Noble v. York University, 2010 HRTO 878 at para. 31.
200The applicant cannot prove that he was claiming or enforcing his Code rights at the Step Two meeting on May 3, the date on which he asserts that he was reprised against. The grievance that was filed on his behalf by the union merely says “termination” and “reinstatement”. There are no allegations of harassment or discrimination on the grievance form; there are no Code references. The applicant conceded during his evidence that apart from the April 25 meeting, he did not tell management, or the union, again, that he was taking a diuretic or of his medical condition. While the applicant was asserting rights, those rights arose from the collective agreement. Neither he, Mr. Rice nor Mr. Piggott testified that the respondent was told that the applicant was asserting his Code rights, or was making allegations that the Code was violated. Accordingly, this part of the Application is dismissed.
remedies
201Having found that the applicant’s disability was a factor in the respondent’s decision to terminate him, and thus contrary to the Code, I turn now to the question of the appropriate remedies to be awarded. The Tribunal’s remedial jurisdiction is based on sections 45.2(1) and (2) of the Code.
202It is well established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an application is an attempt to restore the applicant to the position that he or she would have been in had the discrimination not occurred. Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (ON CA), Krieger v. Toronto Police Services Board, 2010 HRTO 1361 at para. 182, and Whale v. Keele North Recycling, 2011 HRTO 1724 at para. 58, upheld on judicial review, Keele North Recycling v. Human Rights Tribunal of Ontario, 2013 ONSC 268 (Div. Ct.).
203An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator. Intention to discrimination is not a governing factor in construing human rights legislation. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at para. 18.
204The applicant is seeking $15,000 as damages for dignity, feelings and self-respect, loss of wages from the time of termination until the Decision, and reinstatement to his former position as a transit operator, with full seniority. These remedies will be assessed separately.
Damages for Injury to Dignity, Feelings and Self-Respect
205The Tribunal has considered both subjective and objective criteria in assessing damages for injury to dignity, feelings and self-respect. In the oft-quoted decision of Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 53-54, the Tribunal stated:
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 that 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 particularly circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2009 HRTO 53 at paras. 34-38.
206From an objective perspective, the fact that the applicant was terminated, in part, because of a disability is serious. Mr. Rice conceded that the applicant’s urination situation would have been addressed differently had he known about the applicant’s disability or medication. The applicant was a six-year employee. From a subjective perspective, the evidence that the applicant gave about the impact of his termination was limited and was in relation to his termination as a whole. As an applicant in a human rights proceeding, he is entitled to compensation for only the part of the overall injury to dignity, feelings and self-respect that he experienced as a result of the termination that was attributable to the infringement of his Code related rights. See Ko-Csonka v. TDL Group Corporation, 2014 HRTO 1247 at paras. 150-151.
207In Macan, above, the applicant was a two-year employee who was terminated, in part, because of her disability. The Tribunal awarded $15,000 in that case.
208In these circumstances, I award $15,000, as monetary compensation for damages for his injury to his dignity, feelings and self-respect.
Loss of wages
209Pursuant to s. 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.
210As I have found that the applicant’s disability was a factor, but not the main reason for his termination and that he would have been terminated in any event, loss of wages are not being awarded. See, for example, Safdari v. Avant Garden Services, 2013 HRTO 644 at para. 31.
Reinstatement
211The Tribunal has the jurisdiction to reinstate an applicant, but this is rarely requested by an applicant or ordered by the Tribunal. See Krieger at para. 192.
212As I have determined that the applicant would have been terminated notwithstanding the Code breach, this is not an appropriate case for reinstatement.
order
213The Tribunal orders that:
The respondent pay the applicant $15,000 as monetary compensation for damages to his dignity, feelings and self-respect within 30 days of the date of this Decision.
Pre-judgment interest shall be at the rate of 1.3% from March 21, 2012, the date the Application was filed, until the date of the Decision.
Post-judgment interest shall be at the rate of 3.0% if the above amounts are not paid within 30 days of the date of the Decision.
Dated at Toronto, this 16th day of March, 2015.
“Signed by”
Alison Renton
Vice-chair