HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Whyte Applicant
-and-
1080847 Ontario Ltd. o/a Baycon Construction Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Whyte v. 1080847 Ontario Ltd. o/a Baycon Construction
APPEARANCES
Joseph Whyte, Applicant Christine Lundy, Paralegal
1080847 Ontario Ltd. o/a Baycon Construction, Respondent No one appearing
1This Application alleges discrimination and harassment with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The Application was heard on March 11, 2015. At the hearing, the applicant and his representative appeared. The respondent did not appear.
3The Application alleges that the respondent harassed the applicant following work-related injuries in August 2010, and failed in its duty to accommodate the applicant. The applicant also alleges that his employment was effectively terminated by the respondent in October 2011, even though the respondent has not formally terminated his employment.
The respondent’s failure to attend the hearing
4The Tribunal issued a Notice of Hearing on October 16, 2014. The Notice was sent to the applicant and to the lawyer who was then on the record as the respondent’s representative. The Notice advised the parties that the Application was scheduled for hearing on March 11, 2015. It explained the obligations of the parties including how to request an adjournment. The Notice stated:
If you do not attend the hearing after receiving proper notice, the HRTO may proceed in your absence (if you are a respondent or intervenor) or dismiss the Application as abandoned (if you are the applicant).
5On October 21, 2014, the Tribunal received a letter from the respondent’s counsel advising that he was no longer representing the respondent. He provided the respondent’s contact information. The Tribunal forwarded a copy of the Notice of Hearing to the respondent by email on October 21, 2014, and also sent a paper copy of the Notice my regular mail. Neither of these communications were returned to the Tribunal as not delivered.
6At the hearing, Ms. Lundy, the applicant’s representative advised that she had received an email from the owner of the respondent’s business, asking her about an adjournment of the hearing as he no longer had a lawyer. Ms. Lundy correctly advised the respondent that he should send any request for an adjournment to the Tribunal. The Tribunal received no communication from the respondent and has not heard anything from the respondent since the hearing.
7Rule 3.13 of the Tribunal’s Rules of Procedure provides:
3.13 Where a party has been notified of a hearing and fails to attend, the Tribunal may:
i. proceed in the party’s absence;
ii. determine that the party is not entitled to further notice of the proceedings;
iii. determine that the party is not entitled to present evidence or make submissions to the Tribunal;
iv. decide the Application based solely on the materials before it;
v. take any other action it considers appropriate.
8After reviewing the history, I was satisfied that the respondent had received proper notice of the hearing and determined that it was appropriate to proceed with the hearing in the respondent’s absence.
9I heard evidence from the applicant and submissions from his representative.
Clarification of the compensation sought and problems with the evidence
10At the outset of the hearing, the applicant and his representative clarified that the applicant is not seeking compensation for loss of earnings as a result of the alleged discrimination. He is instead pursuing his entitlement to loss of earnings benefits at the Workplace Safety and Insurance Board (“WSIB”) and the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).
11The applicant and Ms. Lundy clarified that the applicant is only seeking compensation under the Code for injury to dignity, feelings, and self-respect.
12The parties had filed extensive documents with the Tribunal, including the relevant claim file with the WSIB. Those documents help document the history of this matter up to 2011, and are clearly relevant to the issues in the Application.
13In 2011, the WSIB determined that the applicant had fully recovered from the effects of his work-related injury. As a result, there were no documents generated in the claim file after that determination. In 2013, a WSIB Appeals Resolution Officer concluded that the applicant had not fully recovered from the effects of the injury. This led to further adjudication at the WSIB. However, neither the applicant nor his representative had a clear understanding of what benefits have been paid and what the Board has determined about the nature and extent of the applicant’s entitlement to benefits. Ms. Lundy advised that a colleague of hers is handling the applicant's WSIB case. I found that it was not necessary to clarify the WSIB situation further because the applicant is not seeking entitlement to loss of earnings under the Code.
14Although the applicant had difficulty recalling when some of the alleged incidents occurred, and also about the overall history of his employment, I attribute this to the fact that the history of the employment is somewhat complex and it can be hard for anyone to recall the specific details of events that may have happened some years in the past. The applicant was able to provide clear evidence about the specific incidents of harassment and discrimination that he alleges occurred, and I found the applicant's evidence about the specific incidents to be reliable and credible.
Background
15The respondent is a construction company. The applicant was hired in 2007. The applicant testified that he was initially hired as a supervisor. His duties included supervising crews, visiting job sites in advance of the work, and speaking with potential clients. The applicant testified that his duties gradually changed and that he began to do more construction work which often was physically demanding.
16The applicant reported a work-related eye injury in 2008 and injuries to both wrists in two different work-related injuries in 2009. None of these injuries resulted in lost time from work. In the Application, the applicant alleged that these injuries were not reported to the WSIB, although this was denied in the Response.
17On August 25, 2010, the applicant suffered a left knee injury in the course of his employment when he missed a step on a ladder and fell about three feet to the ground. This injury resulted in significant disability and is the basis for the applicant’s claim of discrimination on the basis of disability.
The applicant’s knee disability
18The applicant had a history of knee problems prior to the August 2010 injury. He has been treated for these problems by Dr. Wayne Marshall, an orthopaedic surgeon. In a report dated February 14, 2012, Dr. Marshall provided information about the history. This report is addressed to the paralegal who is assisting the applicant with his claim at the WSIB and WSIAT. Dr. Marshall advised that in 1998, there was arthroscopic evidence of early degenerative changes in the applicant’s left knee. After that, the applicant did “relatively well” until 2004 when he presented with significant left knee pain requiring arthroscopy which again showed degenerative change. Dr. Marshall saw the applicant again in December 2010, following the August 25, 2010 injury. Dr. Marshall reviewed a recent MRI that showed a torn medial meniscus with osteoarthritic changes. On January 4, 2011, Dr. Marshall performed arthroscopic surgery.
19The applicant testified that up to the time of the work-related knee injury in August 2010, his pre-existing knee disability did not interfere with his ability to perform his work duties with the respondent.
20Dr. Marshall provided the following information about the applicant’s situation subsequent to January 4, 2011 surgery and up to the time he wrote the report in February 2012:
Subsequent to the injury and arthroscopy, he has had a very rocky course with continuing pain, swelling and weakness in the left knee. He has had anti-inflammatory medication, corticosteroid injections, physiotherapy and a series of Synivisc injections. Despite this he continued to be significantly disabled and we obtained a medical unloading brace. He continued to do poorly despite the addition of the brace and we therefore undertook another arthroscopy on November 1, 2011. At the second arthroscopy there had been a significant worsening of the degenerative articular cartilage and meniscal changes in his left knee compared to the arthroscopy carried out some ten months previously. Mr. Whyte continues to struggle with pain, swelling and weakness and I am concerned about his long-term prognosis.
21The applicant testified that he had further surgery in January 2015 from which he was still recovering.
The events following the August 25, 2010 injury
22Following the August 25, 2010 injury the applicant was off work for about one week. He then returned to modified duties. The applicant testified that these duties were similar to the more supervisory work that he had done when he was first hired and did not include construction work. Despite this, his knee symptoms worsened. As noted above, the applicant saw Dr. Marshall in December 2010, at which time the meniscus tear was diagnosed and surgically repaired in January 2011.
23The applicant alleges that the respondent began to fail to appropriately accommodate his knee condition following the January 2011 surgery. He testified that in February 2011, he was told to replace a heavy door closer. This required work on a ladder and some heavy work. The applicant testified that he was still using crutches following the surgery. He objected to the assignment. He testified that Mr. DeVincentis said “if you can’t do this job what use are you?” or words to that effect, and said that the applicant was required to do the assignment. The applicant testified that when he got to the store location to do the repair the assistant store manager expressed surprise that a person on crutches had been assigned to the task and ended up assisting the applicant to do the repair.
24On March 2, 2011, the applicant and another worker were assigned to assess and repair a bathroom wall. The wall was bowed and water damaged and the plywood and tile had to be removed. The applicant testified that the wood and tile were very heavy and had to be carried down stairs. As they carried a piece down the stairs, his knee gave way and he experienced severe pain. He then drove the truck with the debris. On the way, he stopped and called Mr. DeVincentis and reported the injury. He testified that Mr. DeVincentis said that the problem could not be too bad as the applicant was able to drive and commented that the applicant should ensure that he got to the dump before it closed.
25The applicant testified that in April 2011, he was assaulted by a co-worker. The applicant testified that the co-worker made a sarcastic comment about the applicant’s continuing disability and the fact he was still using crutches. He testified that the co-worker then grabbed him in a head lock and punched him in the head. The applicant testified that this incident ended when he grabbed the co-worker and threw him through a doorway.
26This incident was captured on the security camera system. The applicant testified that he complained to Mr. DeVincentis about it. Mr. DeVincentis told the applicant that he had watched the video. The applicant testified that Mr. DeVincentis chuckled about the incident and said he would look into it further. However, nothing was done.
27The applicant testified that in addition to these incidents of discrimination and harassment, he was also required to turn in the keys to his truck. He alleges that when he started his employment, he was told that he would be able to keep the truck for the duration of his employment. He said that he felt betrayed and humiliated when he was told to turn in the keys to the truck. In its Response to the Application, the respondent agreed that the applicant was required to turn in the truck keys but that this only happened when he was unable to do the duties for which he required a truck.
28From the documents, it is difficult to determine when the applicant worked in 2011 and what the nature of his work actually was. As noted, the applicant had difficulty recalling the details of this history in his testimony.
29A Functional Abilities Form dated April 1, 2011 indicates that the applicant was experiencing “recurrent pain/re-aggravation of left knee with work responsibilities” and advised that the applicant be off work for two weeks. There are then a series of notes from Dr. Marshall and the applicant’s family doctor, stating that the applicant should be off work due to disability for intervals of one month. There are such notes for most of the period from April 1, 2011 to November 2011, when the applicant underwent further knee surgery. After that, the applicant was totally disabled and receiving therapy for many months.
30The applicant was not really sure if he worked at all after April 2011. It appears that if he did, it was for short periods only. The WSIB claim file indicates that the applicant was in receipt of full loss of earnings benefits for at least extended periods up until October 2011.
31A memo dated July 19, 2011 from the Claims Manager indicates that the applicant called to report that he had asked the respondent about a return to work and had been told that he could only return to work if he was “100 % fit”.
32On August 9, 2011, a return to work meeting was held at the workplace, involving the applicant, Mr. DeVincentis and a WSIB Return to Work (RTW) Specialist. The RTW Specialist reviewed the applicant’s pre-injury job and determined that it was not suitable for the applicant. Mr. DeVincentis advised that the employer had no other suitable work available. According to her report, the applicant told the RTW Specialist that he was not sure he could return to any type of work. The RTW Specialist noted that a knee brace had been prescribed, but not yet obtained and suggested that the applicant's disability level could be looked at again after he got the brace.
33The RTW Specialist convened another return to work meeting at the workplace on October 13, 2011. In her report following this meeting, the RTW Specialist described the pre-injury job rather differently than she had done in the August report. The job as described in August report suggests a more physically demanding job than the job described in the October report. This is odd as the job itself was the same.
34According to the October report, the employer was prepared to temporarily modify the applicant's pre-injury job. The accommodations included having the applicant work with a crew so that he did not have to work on his own and a graduated return to work.
35The RTW Specialist determined that with these accommodations, the pre-injury job was suitable for the applicant.
36In the same period of time as the October return to work meeting was arranged, the Claims Manager determined that the applicant had fully recovered from the effects of the work-related injury and that any ongoing disability was due to the pre-existing condition. On this basis, the applicant’s entitlement to loss of earnings ended as of October 11, 2011. In March 2013, this determination was reversed by an Appeals Resolution Officer.
37The applicant testified that in October 2011, he did not agree that he was capable of returning to his pre-injury job, even with the accommodations identified. He believed that he was capable of doing the job he did when he was first hired and that he was given immediately after the August 25, 2010 injury. As noted, according to the applicant’s testimony, that work involved no heavy physical activity and primarily involved supervisory duties and meeting with clients.
38The situation in October 2011 then was as follows:
The WSIB had determined that the applicant no longer had a compensable disability. This determination was reversed, but not until March 2013;
The WSIB determined that the applicant was physically capable of returning to his pre-injury job with accommodations. This determination included a determination that the pre-injury job was less physically demanding than the same job was found to be in August 2011;
The applicant did not agree that he could do the pre-injury job, but did believe that he could do light duty work. The applicant believed that such work was available because he had done it in the past;
The applicant had provided notes from his family doctor and Dr. Marshall stating that he was medically not able to work for several months. Dr. Marshall provided a note dated October 20, 2011, one week after the return to work meeting, stating that the applicant was “unable to work pending surgery.”; and
The applicant underwent surgery on November 1, 2011, about three weeks after the return to work meeting.
39The applicant testified that he had no further contact with the respondent after the October 13, 2011 return to work meeting. The respondent did not contact him and he did not contact the respondent. The applicant testified that he believed that he had essentially been fired at the time of that meeting because the respondent was not prepared to give him work that he was capable of doing.
40On October 28, 2011, Ms. Lundy wrote to the respondent. She referred the respondent to the Code and asked what the respondent intended to do to accommodate the applicant.
41In the Response to the Application, the respondent’s counsel pointed out that at the time, the applicant had been told to remain off work pending surgery. He submitted that the respondent was entitled to rely on that information and to assume that the applicant could not return to any work. In the Response, the respondent also submitted that the respondent did offer to accommodate the applicant by offering modified work at the October 11, 2011 meeting, and the accommodations were approved by the WSIB RTW Specialist at that time. As well, four days after Ms. Lundy’s letter the applicant underwent surgery.
Discrimination and harassment before August 2011
42Section 5 of the Code provide as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
43“harassment” is defined in section 10 of the Code:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
44In the period before the August 2011 return to work meeting (the first meeting with the RTW Specialist), the applicant alleges that he was subject to comments that were unwelcome about his disability. He alleges that he was assaulted by a co-worker in an incident that started when the co-worker made insulting and disparaging comments about the applicant's disability, and that Mr. DeVincentis laughed about the incident and took no action. He alleges that he was assigned to do jobs that he clearly was not physically capable of doing. These included being sent alone to do a job that involved relatively heavy work on a ladder at a time that he was using crutches and being sent to a job that involved carrying heavy debris downstairs, work that was clearly outside his physical restrictions. He alleges that while doing the latter job, he re-injured and significantly aggravated his knee condition. He alleges that when he reported this to his employer, Mr. DeVincentis made light of the matter and indicated that the applicant had not really suffered any further injury.
45The applicant testified to these things under oath. As I have indicated, I found his testimony about these events to be credible. Since the respondent did not participate in the hearing, I heard no evidence to contradict the applicant's evidence on these allegations. I accordingly accept as a fact that these things occurred.
46The applicant’s evidence is that the respondent treated him differently because of his disability, subjected him to comments which the respondent knew or ought to have known were unwelcome and which related to the applicant’s disability, and failed to accommodate the applicant by requiring him to do work tasks that were outside his physical restrictions. In the absence of an explanation from the respondent, the applicant has established that he experience harassment and discrimination contrary to section 5 of the Code.
47The applicant suggested that the fact that he was told to turn in the keys to his truck was another example of discrimination or harassment. However, according to the Application, he was asked to turn in the keys to the truck at the time of the October 11, 2011 meeting. As discussed in more detail below, at that time, the medical information provided by the applicant was that he was not able to work. The applicant was not working for the respondent at that time and it does not seem unreasonable that the respondent would want the keys to the truck. I therefore find that being asked to turn in the truck keys was not discrimination or harassment under the Code.
The August 2011 meeting
48The applicant alleges that suitable light duty work was available at the time of the August 2011 meeting with the RTW Specialist and also in the time before that meeting. He testified that in the initial period following the knee injury, in February 2011, he was given light duty work that was similar to the work that he did when he was first hired by the respondent. This involved supervisory work and visiting job sites and potential job sites, but did not involve heavy physical construction work. The applicant testified that Mr. DeVincentis refused to offer this work beyond the first few months following the knee injury. He testified that Mr. DeVincentis told him that he could only return to work when he was “100% fit”. The applicant reported this same information to the WSIB. According to the report of the RTW Specialist, at the August 9, 2011 return to work meeting, Mr. DeVincentis stated that he had no light duty work available. He explained that his business is a small business and that this limited his ability to offer alternative work.
49An employer is not required to accommodate a disabled employee if the accommodation would result in undue hardship. The question of whether accommodating the applicant by allowing him to do the sort of job that he had previously done would have resulted in undue hardship was not explored at the August 2011 return to work meeting. The RTW Specialist only asked if suitable work was available. Mr. DeVincentis said that it was not available and the RTW Specialist accepted this information. The applicant’s continuing loss of earnings was compensated by the WSIB.
50The undue hardship issue was not addressed in the Response or any of the other submissions the Tribunal. Since the respondent did not appear at the hearing, there is no evidence from the respondent to show that offering the applicant work that was similar to the work the applicant had done earlier would have resulted in undue hardship. The applicant testified that he did not think that undue hardship would have resulted because subsequent to the applicant's knee injury, two other employees had been hired.
51There is no indication that the RTW Specialist asked if the respondent could accommodate the applicant's disability so that the applicant could do modified work that may have been available. The RTW Specialist could have asked the respondent about this, because, in certain circumstances, including the circumstances as they were in 2011, the Code-related duty to accommodate forms part of an employer’s duty to offer to re-employ a worker under the Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended (“WSIA”). (see sections 41(6) and (8) and WSIB Operational Policy Manual Document Nos. 19-05-01 – 04).
52Instead of asking the Code-related question of whether the employer could accommodate the applicant, the RTW Specialist asked whether the employer had suitable work available and simply accepted the information from the employer that there was no suitable work available.
53However, another important part of the context of the August 2011 meeting is that the medical information that the applicant provided stated that he could not work at all because of his disability. Ms. Lundy submitted that those medical notes need to be understood on the basis that the respondent had only offered the applicant's regular job. The information in the medical note that the applicant could not work at all meant that he could not do his regular job and does not mean that he could not have done light duty work.
54While this interpretation of the notes may be correct, it is not obvious from the notes themselves. A note from Dr. Marshall dated July 7, 2011 stated: “Disabled for work due to ongoing knee problems”. In addition, according to the report from the RTW Specialist, the RTW Specialist expressed concerns about the applicant’s medical status:
The worker is concerned he may not be fit for return to work at this time. It was recommended by worker’s surgeon that the worker have a brace and the brace has not yet been provided to the worker.
55Under the Code, and employer is not obliged to accommodate an employee who is totally disabled and unable to work. In this case, it appears to me that if the applicant felt that he was capable of light duty work, he should have been clearer about this and provided medical information that identified his actual restrictions.
56Accordingly, while I agree with Ms. Lundy that the fact that the respondent may have satisfied its obligations under the WSIA does not mean that the respondent necessarily met its obligations under the Code, it does not follow that the respondent discriminated against the applicant on the basis of disability in respect of the August 2011 meeting and subsequently. This is because the medical information the applicant provided indicated that he could not work at all and because it appears that he also was doubtful that he could do any work. There is no indication that the applicant provided any different information subsequent to the August 2011 meeting.
The October 2011 meeting
57As noted, at the October 13, 2011 meeting, the RTW Specialist came to a different conclusion about the nature of the pre-injury job which was identified as a lighter duty job than the same job was found to be in August. As well, she determined that the job was now suitable with accommodations, which consisted of working with a crew and a graduated return to work.
58Meanwhile, the applicant’s medical situation had not improved and may have worsened as Dr. Marshall recommended surgery. In a note dated October 20, 2011, Dr. Marshall stated: “unable to work pending surgery”.
59These circumstances indicate to me that it cannot be said that the employer discriminated against the applicant because of disability at the time of the October 2011 meeting. First, while the RTW Specialist may well have been wrong about the nature of the pre-injury job and whether it really was suitable with the accommodations identified, this was her determination and the respondent was entitled to make decisions based on that determination. Second, even if the applicant is correct that the respondent should have ignored the determination of the RTW Specialist and offered different work, the medical information provided by the applicant indicated that in fact he was totally disabled and unable to work pending surgery.
60The applicant feels that his employment was in effect terminated at the time of the October 2011 meeting. This is based on his view that he could have done the lighter duty work that he had done previously and that he believes was available. While I understand the basis for the applicant’s feeling, based on the determinations of the RTW Specialist and the medical information the applicant provided, I cannot find that the applicant's employment was in effect terminated.
61A few weeks after the October 2011 meeting, the applicant underwent surgery and was then recovering for an extended period. The applicant testified that the respondent has never contacted him. However, he has also never contacted the respondent to engage with the respondent with respect to returning to work. In these circumstances, it is possible that the employment relationship has been frustrated and that it could be terminated on that basis. However, I cannot conclude that the employer has discriminated against the applicant on the basis of disability with respect to the situation after the October 2011 meeting.
Conclusions
62As noted, in this case, the applicant is seeking only compensation for injury to dignity, feelings, and self-respect for the alleged discrimination and is not seeking compensation for any loss of earnings.
63I have found that the applicant experienced discrimination on the basis of disability in the periods that he worked following the August 2010 knee injury. This discrimination was summarized in paragraph 41 of this Decision.
64In assessing how to award an appropriate level of compensation for injury to dignity, feelings, and self-respect, the Tribunal typically considers two criteria: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination.
65As noted in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paragraphs 53 and 54:
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
In the present case, the discrimination was limited to comments and things that occurred during the employment which I accept were hurtful to the applicant.
66I have found that the applicant did not experience discrimination with respect to the discussions about a return to work in 2011, and in particular with respect to the meetings with the WSIB RTW Specialist in August and October 2011.
67I have also found that the applicant's employment was not terminated by the respondent and the fact that he has not returned to work with the respondent is not discriminatory.
68I find that the applicant is entitled to compensation for injury to dignity, feelings, and self-respect for that discrimination.
69In this case, the applicant's experience in respect of the period of employment following his injury was very difficult. For the reasons I have explained in this Decision, however, I have found that only a piece of the applicant’s overall experience resulted in discrimination or harassment contrary to the Code. I accept that this part of the overall experience was hurtful to the applicant and resulted in injury to dignity, feelings, and self-respect. The applicant is entitled to compensation for that, but is not entitled to compensation for the rest of the overall experience, which I have found was not discriminatory. On the basis of the considerations identified in Arunachalam, above, I conclude that $5,000 is an appropriate amount of compensation for this discrimination.
DECISION
70The applicant is entitled to monetary compensation of $5,000 for injury to dignity, feelings, and self-respect. The respondent is directed to pay this amount by May 15, 2015. The applicant is entitled to post-judgement interest at the rate of 3% under the Courts of Justice Act on any of the compensation not paid by May 15, 2015.
Dated at Toronto, this 16th day of April, 2015.
“Signed by”
Brian Cook
Vice-chair