Budd v. 783720 Ontario Inc., 2015 HRTO 825

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcia Budd

Applicant

-and-

783720 Ontario Inc. o/a Birchmere Retirement Residence

Respondent

DECISION

Adjudicator: Ruth Carey

Date: June 19, 2015

Citation: 2015 HRTO 825

Indexed as: Budd v. 783720 Ontario Inc.

APPEARANCES

Marcia Budd, Applicant

Nicole Simes, Counsel

783720 Ontario Inc. o/a Birchmere Retirement Residence, Respondent

Steven F. Wilson, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. It is about what happened when the applicant failed to attend at work one day. She says she could not work because of an episode of acute anxiety and depression; she provided her employer with doctor’s notes in support of her need to be absent and in response she was fired. The respondent says the applicant quit her job, partly because the employer denied her a requested vacation leave starting that same day. Further, the respondent says the applicant should not be believed; it asserts the evidence is insufficient to establish she had a disability on the day she failed to show up for work.

2The questions to be addressed here are:

• Was the applicant a person with a disability during the relevant period?

• Did the respondent discriminate against the applicant because of her disability contrary to section 5 of the Code by failing to accept or respond appropriately to her doctor’s medical notes saying she needed to be absent from the workplace?

• If the answers to the questions above are yes, what remedy is the applicant entitled to?

3For the reasons stated below I am satisfied that the applicant had a disability as defined under the Code during the relevant period; the respondent breached section 5 when it deemed the applicant to have quit after receiving her doctor’s certificate without taking any steps to investigate or explore her disability-related needs. This amounted to both a breach of its procedural obligations with respect to accommodation of disability and also a substantive breach because it effectively terminated the applicant’s employment on the basis of disability. The applicant is awarded as remedies losses arising out of the respondent’s infringement of the Code for lost wages and benefits of $5,760.38 less statutory deductions and $25,000 for compensation for injury to dignity, feelings and self-respect.

4The hearing of this Application took place in Toronto on January 23, and 24, 2014, and on July 7, and 8, 2014. The applicant testified on her own behalf and called as witnesses: her family doctor, Dr. Marek A. Szelag, and the applicant’s husband, Ian Budd. The respondent called as witnesses a number its employees: Sandra Fowler, June Dean, Christie Whetham, Louise Foster, and Jacqueline Payne.

Preliminary and Procedural Issues

Removal of Jacqueline Payne as a Named Party

5This Application names as respondents both the corporate respondent and Jacqueline Payne. She is the administrator of three retirement homes owned or operated by the respondent or its affiliates. In its Response to the Application, the respondent submits she should be removed as a personal respondent to the Application. The respondent did not file a Request for Order During Proceedings (“RFOP”) seeking an interim decision removing her as a party; the applicant did not file a Reply to the Response. Neither party’s final written submissions address this issue.

6Having heard all of the evidence of the parties I am satisfied that Jacqueline Payne should be removed as a personal respondent, based on the factors set out in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and Persaud v. Toronto District School Board, 2008 HRTO 31. I also order that the style of cause be amended accordingly.

7I say this because there is a corporate respondent potentially liable for the same conduct able to respond to and remedy any breaches of the Code found, the personally named respondent was at all times acting within the scope of her employment with the respondent, the Application does not allege harassment in employment by Jacqueline Payne and it does not seek a remedy as against her personally, and the applicant did not file a Reply objecting to the request.

The Respondent’s Damage Claim

8Paragraph 34 of the Response says in part:

The Respondents respectfully invites (sic) the [Tribunal] to order damages against Ms Budd pursuant to its powers under subsection 45.2(1) clause 3 for abusing the purposes of the Human Rights Code and respectfully submit that an Order of damages equal to those Ms Budd improperly sought will promote compliance with the Human Rights Code.

9At the beginning of the hearing before the Tribunal the respondent indicated it was not going to be pursuing this request.

Admissibility of Evidence

10As of the start date of the hearing there was an outstanding RFOP filed by the applicant seeking to add to the applicant’s documents to be relied on. The documents in question were pay stubs for income earned by the applicant after her employment with the respondent ended. On January 15, 2014, the Tribunal issued a Case Assessment Direction (“CAD”) indicating the RFOP would be addressed at the hearing as it was scheduled to begin in less than 14 days. At the hearing I granted the applicant’s RFOP as the respondent was not prejudiced by the request, had adequate time to prepare, and did not object.

11However, during the course of the hearing both parties either proffered or referred to additional documents not produced to the Tribunal in advance. These additional materials were not accepted into evidence save and except where the parties consented.

FINDINGS OF FACT

12Although the parties interpret the events that occurred very differently and ascribe different motives to various behaviours, their evidence with respect to the factual allegations as regards their interactions with one another is fairly consistent. I note in these reasons those instances where material disputes arise. The major conflict between them with respect to the facts concerns what the applicant and her witnesses say happened when none of the respondent’s witnesses were present to observe. The respondent challenges the credibility of the applicant and her husband with respect to most if not all of that evidence, and the reliability of the evidence of their family doctor.

13The applicant is a food service professional. She was 57 years old when the relevant events here occurred. She and her husband, Ian Budd, have three adult children; their two daughters both live in the United States.

14Mr. Budd is a senior millwright employed by a large manufacturer in a non-unionised shop. He works long hours on night shifts: Wednesday, Thursday, and Friday from 6:30 p.m. to 6:30 a.m. and every second Saturday.

15The respondent owns and operates retirement homes; Birchmere Retirement Residence (“Birchmere”) in Orillia is one of them. There are at least two other retirement homes also operated by the respondent or its affiliate: Champlain Manor in Orillia; and Granite Ridge Retirement Residence in Gravenhurst.

16Birchmere is home to about 74 residents whose average age is 88 years old. A lot of its residents have cognitive issues but there is a multiplicity of different medical diagnoses. Some have catheters, colostomy bags, or need oxygen; a large number are dependent on walkers and wheelchairs for mobility and some are not mobile at all. The residents’ dietary needs vary significantly. Some are diabetic, some require low sodium or low potassium or a gluten-free diet; quite a few need minced or pureed food because of swallowing issues.

17Jacqueline Payne is the administrator of all three retirement residences; she is also a registered nurse. She splits her time between the three facilities. She spends two to six hours a day at each of Birchmere and Champlain Manor; but is at Granite Ridge Retirement Residence only once a week. Louise Foster is her assistant.

18June Dean and Sandra Fowler are senior cooks at Birchmere; Christie Whetham is a dietary aide there. At all relevant times they reported to the applicant.

The Applicant’s Employment

19On January 16, 2007, the applicant started working for the respondent at Birchmere as its food service supervisor. Hers was a management position; she had approximately 20 employees reporting to her. So she was not a party to the collective agreement between Birchmere and the Employees Association.

20That being said, some of the terms of the collective agreement were accepted by the parties as setting a benchmark for expectations with respect to management employees like the applicant. Of particular relevance here is paragraph 19.02 of the collective agreement which says:

Any employee absenting herself on account of personal illness must notify management prior to the start of the shift on the first day of illness. Before the employee is ready to return to work, the employee is to notify management. Should the length of illness be different than originally reported, the employee is to keep the Home so advised.

21At the time the applicant was initially hired the respondent had a job description for her position in place that described her duties as follows:

1. Establish, implement and enforce Dietary Department policies and procedures.

2. Plan, organize, direct and supervise the activities of the Dietary Department to ensure the provision of high quality food service.

3. Plan regular, therapeutic and alternate menus based on Canada’s Food Guide to Healthy Eating, current resident population and special seasonal events.

4. Purchase and receive all supplies necessary for daily meal preparation, nourishments and special events.

5. Develop and ensure the use of standardized receipts. Oversee meal preparation and, if necessary, participate in its preparation. Supervise meal service to ensure appropriate portion control and resident acceptance.

6. Hire, terminate, schedule, and train all Dietary employees. Establish and monitor workflow, evaluate performance and production making necessary changes to maintain quality service.

7. Interview new residents regarding dietary restrictions, allergies and food preferences recording pertinent information in resident’s chart.

8. Ensure sanitation regulations pertaining to food preparation and food premises are followed.

9. Co-ordinate Dietary services with other departments as required.

10. Participate in budget preparation.

11. Be knowledgeable of and practice facility’s fire and safety programs.

12. Adhere to established policies and procedures.

13. At the request of the Residents’ Council, attends Residents’ Council Meetings…

14. Maintain accurate records pertaining to each resident’s nutritional care.

15. Ensure all Public Health Reports are communicated to staff and acted upon.

[Emphasis added.]

22Despite the fact that this job description indicates participation in meal preparation was only a part of the applicant’s duties “if necessary”, it is accepted by all involved that the applicant was required to work at least two cooking shifts every week. This is reflected in her most recent employment contract which says in part: “Your hours of work will include a minimum of two cooking shifts per week.”

23I would also note at this point that although the job description says the applicant is responsible for scheduling, she says that Jacqueline Payne did the scheduling for the cooks.

24Typically the applicant was expected to work Monday through Friday. Her cooking shifts were usually but not always Tuesdays and Thursdays. On those days she says she worked 10:30 a.m. to 6:30 p.m. The parties refer to the applicant’s other work days as “paper days”; on those days the applicant says she would usually work 8 a.m. to 4 p.m.

25At the time the applicant’s employment ended, her annual salary was $42,032. Her employment contract says she was also entitled to 4% on top of that in the form of RRSP contributions if the applicant made equal matching RRSP contributions. She was entitled to three weeks of vacation annually. The applicant says she also had some extended health, life and disability benefits that required her to pay a co-payment.

26In addition to paid vacation, the applicant was entitled to time off in lieu of extra hours worked and one float day.

27The applicant entered into evidence five typed notes she gave to Jacqueline Payne during the period April 28, 2010, to October 26, 2011, which are about scheduling her vacations and taking lieu time earned. In these notes the applicant does not ask permission for planned time off; rather, she simply informs the respondent of days she will be absent from work and whether those days are vacation days or being taken in lieu. At the end of each note she writes “thank you” and her name. The applicant says this phrasing was not meant to express gratitude in advance of being granted vacation; rather, it was simply a pleasantry.

28All of the notes that reference lieu days identify a Saturday, Sunday or public holiday when the applicant worked on top of her regular work hours. The notes dated April 28, 2010, and March 28, 2011, both say the applicant was using lieu days earned in order to attend chef conferences.

29The applicant says that until October 26, 2011, there was never any difficulty, interference with, or objection to the applicant taking or managing her vacation entitlement or lieu days in this manner. Jacqueline Payne says there was one request the respondent could not do but she cannot remember when that was and there is no question the applicant was entitled to the time off. What happened on October 26, 2011, is discussed more fully below.

30The parties entered into evidence two performance evaluations that Jacqueline Payne did with the applicant. One is from January, 2010 and the other is dated February 8, 2011. The latter is the last evaluation done with respect to the applicant’s performance prior to the end of her employment in November, 2011.

31Both performance evaluations were done using the same form. It requires the respondent to rank various aspects of the applicant’s performance from 1 to 5 (where 1 is excellent; 2 is very good; 3 is good; 4 is average; and 5 means needs improvement). The aspects of performance rated include:

1. Supervision of Staff Duties

2. Development and Implementation of Policy

3. Staff Training

4. Interaction with Subordinates

5. Planning

6. Organization Skills

7. Upward Reporting of Information and Relationship with Supervision

8. Problem Solving

9. Discipline of Staff

32There is space for additional brief remarks with respect to each of these aspects of the applicant’s performance and at the end of the form there is additional space for narrative comments from both the applicant and the respondent.

33The 2010 performance evaluation ranks the applicant as excellent in four categories and very good in the other five.

34The February 8, 2011 evaluation is unsigned by the applicant; it ranks her as excellent in two categories, very good in six, and mid-way between good and average with respect to Interaction with Subordinates. In the space for brief remarks in that category Jacqueline Payne writes: “Some concerns earlier with cook staff – appear to be resolved”. In the narrative comments section at the end of the February, 2011 performance evaluation Jacqueline Payne writes:

Marcia continues to run an excellent dining room. Good choices, residents overall satisfaction is high. Able to cope with sudden changes and crisis. Keeps staff organized and on track. Recent review with staff on communication seems to be working. Overall an efficient department with high quality meals/dining experience.

35In summary, the performance evaluations indicate the applicant performed well in her job and was a valued employee; but they also show that in the period between January, 2010 and February, 2011, there was some erosion in the respondent’s assessment of her overall performance.

Events at Work Prior to November 28, 2011

36At some point in 2010, the number of residents at Birchmere decreased. This may have been related to a number of deaths, but it also may have been related to the fact that the respondent opened a new facility, Granite Ridge Retirement Residence in Gravenhurst. Ian Budd says his impression was the opening of the new facility meant Jacqueline Payne was busier and that put more pressure on lower management like the applicant. Whatever the reason for the decrease in residents, the respondent told the applicant to reduce the personnel budget for her department by cutting one hour a day from the dietary aides and half an hour a day out of the cooks’ schedule. The applicant says as a result of these cuts the number of hours she worked increased.

37Sometime in 2011, work was done on the sprinkler system at Birchmere and there was a leak or burst pipe in the room or closet next to the applicant’s office. As a result cupboards had to be cleared out and things moved around. The applicant says this created more work for her.

38On June 7, 2011, the applicant gave the respondent a note about her plans to take vacation in August, 2011. Those plans were tied to her daughter’s wedding and ended up being cancelled. One of the applicant’s daughters was getting married in the United States. She applied for a fiancée visa – if granted it would give her the right to enter and remain in the United States but only if she married within 90 days. The applicant says the plan with respect to August fell through when her daughter’s documents were lost and had to be redone. Some of the requested August, 2011 vacation dates were cancelled. The respondent’s records show the applicant took the planned vacation days of August 2 to August 5 and August 29 to 31, but she worked rather than go on vacation from August 15 to 26, 2011.

39In anticipation of the visa finally coming through in the fall, the applicant made a similar request for vacation commencing November 28, 2011 and ending December 11, 2011. That request is discussed more fully below.

40In the period leading up to September, 2011, there were five people sharing cooking duties at Birchmere. June Dean and Sandra Fowler were the two primary cooks. In August of 2011, a cook was hired who shall be referred to here as J; he worked mostly at Champlain Manor but was available on a casual basis for Birchmere. A dietary aide was trained to help out with breakfasts every other weekend. And the applicant did cooking shifts as described above.

41There are two cooking shifts a day at Birchmere; in a two-week cycle this means 28 shifts must be covered. Sandra Fowler and June Dean were each assigned to either 8 to 10 shifts every two weeks; the applicant did 4 to 6. The dietary aide was trained to do one weekend early shift every second week. This means that with June Dean, Sandra Fowler, and the applicant working the maximum amount of cooking shifts they normally would be scheduled for, only 27 shifts out of the 28 were covered. At a minimum J had to be pulled from Champlain Manor for at least one cooking shift every other week just to cover. Sandra Fowler says he did not cook very often – maybe every second weekend.

42Based on this evidence of both parties I am satisfied that in terms of the number of cooking staff available to be scheduled, Birchmere was running a lean operation and finding people to work cooking shifts was a challenge. Both the applicant and Sandra Fowler say they felt over worked.

43The applicant says that during the period leading up to September, 2011, a dietary aide was off work because her husband was seriously ill and another dietary aide quit; so the applicant was spending time hiring and training new people and picking up shifts originally scheduled for someone else. At the same time the applicant was expected to create the new fall and winter menus, an accreditation process was either starting or on-going, and the way food was ordering was changing. The new food ordering system was on-line which meant the applicant needed to be trained on the new system.

44The applicant says she started to feel pressure; there was too much on her plate. She says Louise Foster, Jacqueline Payne’s assistant, would come into the kitchen and say you have to work this weekend; the applicant would reply if I can find someone can they cover for me – that was fine for the respondent but problematic for the applicant, because finding people to cover was difficult. One day Louise Foster came in when the applicant was interviewing job candidates and left a sticky note on her desk saying “menus when?” The applicant describes feeling a constant pressure caused by having too much to do.

45The applicant’s husband says the applicant was tired; she was not at home as much. During September, 2011 she became irritable; she was snacking more for food release, causing additional weight problems; and she was having interrupted sleep – there was always something on her mind.

46On September 16, 2011, Sandra Fowler started a leave of absence. She was the most senior cook at Birchmere, having been there for about a decade. Prior to taking leave, Ms. Fowler had actually tried to quit; she gave notice. When Jacqueline Payne received her notice, she told Ms. Fowler she was a valued employee and suggested she see her doctor and take time off instead. So she reconsidered quitting, saw her doctor and took leave from work due to stress from September 16 to December 3, 2011. She returned for a few hours on November 29, 2011, prior to her scheduled return date, for reasons that are discussed more fully below. Ms. Fowler says part of the reason for her stress was personal, but part of it was related to the heavy workload at Birchmere. She also says she did not get along with the applicant at work.

47Shortly after Sandra Fowler went on leave on September 16, 2011, Christie Whetham, one of the dietary aides, saw the applicant crying at work and some conversation occurred. The applicant does not remember when this happened but Christie Whetham says it was a few days after Sandra Fowler went on her leave of absence, so I accept her evidence on that point due to its specificity.

48Their memories of this conversation differ somewhat and Christie Whetham acknowledges that a written statement she provided the respondent dated December 6, 2012 conflates this conversation with another that occurred later. That written statement is discussed more fully below. However, they both say the applicant told Christie Whetham something to the effect of “I don’t know how much more of this I can take”; and that she had spoken to her husband about quitting but he encouraged her not to because their daughter was going to be getting married once her visa came through – they had a wedding to pay for.

49The applicant says it was unusual for her to be crying in the workplace. Prior to the fall of 2011, it had only happened once before, when a long-term employee was fired.

50On this occasion in the latter part of September, 2011, the applicant says she said to Christie Whetham “why is [Jacqueline Payne] picking on me like this” and Ms. Whetham replied to the effect that “this is the worst I have ever seen her”. Ms. Whetham does not remember having any discussion with the applicant about Jacqueline Payne and says she never saw her picking on any employees. During the course of the hearing the respondent correctly pointed out that these alleged statements are not contained in the narrative in the Application nor in the applicant’s witness statement. Given this lack of consistency and Ms. Whetham’s failure to corroborate the applicant’s evidence with respect to these statements, I am not prepared to find that it is more likely than not that these particular remarks were made.

51I would note at this point that the applicant says she felt bullied at work by Jacqueline Payne; Ian Budd says the applicant told him she felt micromanaged. During the course of the hearing she was asked to give specific incidents that made her feel this way. Her responses were somewhat vague. Further, it appears these alleged bullying incidents occurred prior to September, 2011, so I do not believe they are material to the issues in this Application. Rather I have simply considered them as part of the applicant’s version of the background leading up to the material events.

52Christie Whetham says that after her first conversation with the applicant (described above at paragraph 48), she went to Jacqueline Payne and told her the applicant is done, she is leaving, and she is loading her car with stuff.

53June Dean, the other senior cook on staff in the fall of 2011, also recalls having a conversation with the applicant after Sandra Fowler went on leave. She says she found out about the leave from the applicant, who was visibly upset relaying this news. According to June Dean, the applicant said something to the effect of “when you quit, you quit – you don’t turn around and get a leave of absence”; Ms. Dean replied by suggesting that the leave was a good thing; the applicant then said maybe that is what the applicant should do as well.

54June Dean’s evidence in this regard was uncontested by the applicant so I accept that this conversation occurred as described. But the evidence is insufficient to determine whether this event occurred before or after the applicant visited her doctor on September 20, 2011.

55On September 20, 2011, the applicant went to see her doctor, Dr. Marek A. Szelag. He has been the applicant’s family physician for about a decade. In addition to his family practice, Dr. Szelag has hospital privileges at a local hospital in Barrie. Ian Budd is also a patient in his practice. On September 20, 2011, Ian Budd went with the applicant to her appointment with Dr. Szelag. He says he did this because he was concerned about her condition.

56Dr. Szelag says that in the eight years of treating the applicant prior to September 20, 2011, he saw her in his practice maybe twice a year. Before then she was always a happy person to him; previous to that she had never had problems with depression or anxiety. But on September 20, 2011, he diagnosed her as having a “depressive episode with anxiety” and prescribed Lorazepam as needed for acute attacks of anxiety.

57The applicant entered into evidence the clinical notes from her visits to Dr. Szelag during the period September 20, 2011, to December 20, 2011. They follow a standard format; each note is divided into four sections identified as “S” for subjective observations, “O” for objective observations, “A” for assessment, and “P” for plan. The one dated September 20, 2011 reads as follows:

S: Here with husband. Feels very distracted and very tearful. Over the last few months, she has been having a lot of difficulties at work. She works as a cook at a residential nursing home. She is being pressed by her boss to take extra shifts and not to be paid overtime. She is also scheduled over the weekends so she does not have any time off over the weekends. Her mood is very low. She is losing her motivation, concentration and interests. She has very poor sleep. She wakes up every morning tired and not rested. She has no history of previous problems with her mood or anxiety. She feels like she is very committed to work for the nursing home residence and she is very afraid to ask for time off. She denies having any problems with alcohol or with drugs.

O: She is very tearful. Her affect is very flat. She answers questions appropriately. Blood pressure 142/90. Lungs clear. Heart normal.

A: Depressive episode with anxiety.

P: Options discussed. Patient prefers to take some time off. LORAZEPAM given for acute attacks of anxiety. She is going to think about taking her medications if she is not getting better within the next few days. Follow-up appointment in four weeks.

58Dr. Szelag says that during this visit he discussed with the applicant the possibility of prescribing anti-depressants but she opted not to take any at that time.

59Dr. Szelag gave the applicant an off work note or third party report that day that says merely: “Period of Absence: 30 DAYS FROM TODAY” and “Comments: DUE TO A MEDICAL REASON”. He says he gave her this note because he did not believe she was capable of doing the work because of her low concentration, motivation, energy level and poor sleep. The 30-day period set out in this note would have ended on October 20, 2011, which is two days after the scheduled follow-up visit of October 18, 2011.

60The applicant never gave this note to the respondent. She says she kept working and did not take leave as recommended because there was too much to do at work; she always puts everything else ahead of herself. She says she did take the medication he prescribed.

61Dr. Szelag was cross-examined extensively at the hearing about his clinical notes, with the goal I believe of establishing two things: everything he recorded as subjective observations are statements reported to him by the applicant and therefore subject to her wilful manipulation; further, the subjective statements contain inaccuracies which support the conclusions that the applicant lied to Dr. Szelag and his diagnosis is questionable as he relied in part on her lies in making that diagnosis.

62For my purposes here I would make two observations with respect to the subjective observations section of Dr. Szelag’s clinical notes from September 20, 2011.

63First, the applicant did not in fact work “as a cook”. She was the food services supervisor; her cooking duties were “as necessary” according to her job description, and in lived reality, occupied about half of her time.

64Second, the statement about being scheduled to work weekends resulting in not having any time off over the weekend is not true and particularly so with respect to the immediate preceding period of August 22 to September 20, 2011.

65Unfortunately, the respondent’s work schedules are somewhat difficult to read and in places contradict the employment records entered by the respondent. For example, the work schedules filed by the respondent and the applicant’s note about vacation and lieu time dated October 26, 2011 all indicate she did not work any weekend shifts during the one month time frame prior to her visit to Dr. Szelag on September 20, 2011. However, the respondent’s record of hours worked by the applicant indicates she did a 6-hour shift on Sunday, September 19, 2011.

66That being said, both the applicant’s note of March 28, 2011 concerning time off taken in June, 2011 and the respondent’s employment records indicate that between January 15, 2011 and March 20, 2011, she cooked on 6 out of 20 Saturdays and Sundays.

67What I take from both the applicant’s and respondent’s evidence about the applicant’s work hours is that she was not routinely working weekends in 2011, but neither was it unusual for her to do so; and in the one month period prior to her first visit to Dr. Szelag during the relevant time period here, she worked one day on a weekend at most.

68The applicant acknowledges that she told Dr. Szelag she was working weekends all the time on September 20, 2011, when she was not. She says that at that point she felt like work was never-ending, that she was working all the time; that was her perception, her state of mind.

69After this first visit to see Dr. Szelag, the applicant says she told the activation supervisor at work that her doctor had told her to take time off, but she did not want to do that because she did not have the time. She says she did not tell anyone else at Birchmere this because she felt they were part of the problem and she could not face it. The activation supervisor was originally on the applicant’s witness list for the hearing but she was not called to testify.

70On September 22, 2011, two new cooks were hired; one quit after two weeks. The applicant says that the one who stayed on was specifically hired by her because he had prior experience with the on-line food ordering system. She brought him into her office a couple of times to show him how she ordered food on-line; she says she did not really have to train him as he was already well aware of how to do it. Prior to going on leave on September 16, 2011, Sandra Fowler was the other person at Birchmere who knew how to order food on-line. The importance of the on-line food ordering system is discussed more fully below.

71On October 6, 2011, J became unavailable to cook as he had to be off for 11 days due to surgery.

72On October 18, 2011, the applicant saw Dr. Szelag again as scheduled for follow-up with respect to the work-related stress and anxiety. His clinical notes indicate her condition was improved: under “A” for assessment he writes “Anxiety diminished”. With respect to objective observations her blood pressure is 132/72, her lungs are clear, her heart is normal, she is alert and oriented, making good eye contact. Under “P” for plan he writes in part that the plan was to offer reassurance and he “strongly advised [her] to find another job”. He says that on October 18, 2011, the applicant told him she was looking for another job and he told her he thought that was a good idea. No follow up was planned; her next appointment was to be her regular physical in January, 2012. With respect to subjective observations his clinical notes state:

She continues to do the same job. She feels better. She has less panic attacks. She tries to accommodate herself. She avoids stressful situations. She is looking for another job. Sleep and concentration are better.

73Dr. Szelag explains that “tries to accommodate herself” means to avoid stressful situations.

74The applicant confirms she told Dr. Szelag she was looking for another job and she did in fact do so. She says that if she had found one, she would have given 4 weeks’ working notice as she had worked for the respondent for 4 years.

75There is one discrepancy in the evidence between the applicant and Dr. Szelag with respect to this visit that deserves noting. The applicant says she told Dr. Szelag that she had not taken the leave he had recommended for the period September 20 to October, 2011. This may or may not be supported by the clinical notes indicating “she continues to do the same job”. But in response to a leading question put to him on cross-examination, Dr. Szelag confirmed that his impression on October 18, 2011 was that the applicant felt better, had taken the time off he had recommended and given her an absence note for, and that doing so had helped her condition.

76When pressed, Dr. Szelag confirmed that even if he had known it was not true the applicant had been forced to work weekends and even if he had been aware she had not taken the 30 days off recommended in September, his diagnosis of her condition would not be different.

77A few days after this second visit to Dr. Szelag, June Dean fell and suffered a back injury which resulted in her needing to be on a leave of absence starting October 21, 2011.

78The applicant says that as a result of June Dean’s leave her condition worsened because she now had both senior cooks off on leaves. The applicant hired yet another cook who quit after one day, which meant she had to hire yet another new person.

79By October 26, 2011, the paperwork related to the fiancée visa for the applicant’s daughter to marry in the United States had been sorted out so the applicant wrote to the respondent giving dates she planned to be away. Her note says in part:

I will be taking my two week vacation that I cancelled in the summer starting on:

Monday November 28 till Sunday December 11-2011

I will be back to work on Monday December 12-2011.

80The following day Louise Foster returned this note to the applicant. Jacqueline Payne had written on it:

This will be fine as long as Sandra + June are back or new cooks hired. Otherwise we do not have coverage.

Please let me know what develops.

81Louise Foster says that when she delivered this handwritten note to the applicant the applicant told her she had tickets booked to travel and would not be at Birchmere. Louise Foster and Jacqueline Payne both say Ms. Foster repeated this to Ms. Payne who responded that if there were no cooks available the applicant would have to rearrange her plans. The applicant was not asked to confirm or deny whether she told Louise Foster she had tickets booked to travel. In light of the rule in Browne v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67, H.L., and given this allegation was not put to the applicant on cross-examination, I would not draw any adverse inference with respect to the applicant’s credibility on this point. However, she also did not address the allegation in her direct evidence, so I accept that this statement was made.

82The applicant says that about a week after this Louise Foster came to her and said not to shoot the messenger, but the respondent had denied her vacation as the applicant had used up all her holidays and had no vacation days left. The applicant told her this was not true because the August planned vacation had been cancelled. According to the applicant, Louise Foster said, “I know you’re very meticulous but I am just telling you what I have been told”. This evidence of the applicant’s is not contested and was not explained by the respondent.

83Based on the evidence of both parties I am satisfied that in fact the applicant had not used up all of her vacation days, as a result of cancelling some of the planned days off in August, 2011. Jacqueline Payne says she believed the applicant had no vacation days left; she took that position later with the Ministry of Labour’s Employment Standards Branch after the applicant’s employment ended – it disagreed and determined the applicant was entitled to some outstanding vacation pay. Jacqueline Payne says she calculated vacation days based on a different yearly entitlement cycle then the Ministry applies. This explanation makes little sense in light of the fact that on November 22, 2011, Jacqueline Payne told the applicant she could take some of the requested vacation days off after all, albeit not all of them. That conversation is discussed more fully below.

84During the first week of November, 2011, June Dean was scheduled to return to work. On November 2, 2011, she attempted the return but was unable to complete her shift. She spoke to Jacqueline Payne and revisited her doctor. Bending and lifting restrictions were put in place. The respondent accommodated her restrictions by giving her an assistant to do lifting and a stool. The accommodation plan was unsuccessful; on November 20, 2011, June Dean went back on leave to finish recovering following the advice of her doctor. Jacqueline Payne says her scheduled return date was December 10, 2011.

85One other thing that was happening in November, 2011 at Birchmere was the applicant was being trained on the new on-line food ordering system. She says there were problems using it. The food services supervisor from one of the other retirement homes came to Birchmere twice to work with her on learning it and the applicant went to the other facility once. The applicant says that both this other food services supervisor and the cook she hired who had prior experience with on-line food ordering learned to use this system. Sandra Fowler, the other person at Birchmere who used to do the on-line ordering, did not learn the new system because she was still on leave.

86The respondent’s employment records show that the applicant worked twelve days in a row from Monday, November 7 to Friday, November 18, 2011.

87During this same period when June Dean was unsuccessfully attempting to return to work, Ian Budd says he was looking to make travel arrangements to go to the United States to help their daughter make her wedding arrangements. He says the main purpose was to put deposits on things like the venue. On November 10, 2011, he purchased two airline tickets on-line. The confirmation record filed into evidence indicates he and the applicant were to fly out of Buffalo, New York on Sunday, December 4, 2011 for Atlanta, Georgia, and return via Buffalo on Tuesday, December 13, 2011. The total cost of these two tickets was $546.80.

88There is no dispute between the parties that at the time Ian Budd was looking to book these tickets, the applicant had been told she had no vacation dates left to use in December, 2011. However, the applicant knew that was untrue and in her entire work history at Birchmere she had exercised control over when she took vacation dates. Both Ian Budd and the applicant say that they believed the applicant might still be able to take the vacation she had asked for. Given Jacqueline Payne’s written response to the vacation request on October 27, 2011, the applicant’s prior work history, the fact she had vacation days owed to her, and Jacqueline Payne’s subsequent granting of some days off discussed more fully below, I am satisfied this was not an unreasonable belief on their parts. They essentially believed Jacqueline Payne’s written response on October 27, 2011 was true - her vacation request was “fine” if there were cooks to cover. The reasonableness of this expectation and evidence on their part is also supported by the testimony of June Dean, who stated that after she went on leave again on November 20, 2011, she received more than one call from the applicant asking about her expected return date.

89Both the applicant and Ian Budd say that their plan was that he would travel to Atlanta without the applicant if it turned out she could not go with him. According to them this was an acceptable plan as the purpose of the trip was primarily to put down deposits for the wedding arrangements; their second daughter lived in the United States and could help her sister organise the wedding as well.

90They also both say that Ian Budd was always the one to book their travel arrangements and that the dates selected for this particular trip were chosen to match his days off from work. As stated above Ian Budd works night shifts: Wednesday, Thursday, and Friday from 6:30 p.m. to 6:30 a.m. and every other Saturday. So the planned dates of Sunday, December 4, 2011 to Tuesday, December 13, 2011 mean he was only losing three days from work and returning in time to start his next four-day shift cycle starting Wednesday, December 14, 2011.

91I would note at this point that if the applicant’s vacation request of October 26, 2011 had been approved, it would not have covered the entirety of the period on these tickets. Her request for vacation says she was returning to work on Monday, December 12, 2011 whereas the tickets Ian Budd purchased had a return date of December 13, 2011. As a result I accept the statements of both the applicant and her husband that the dates for these tickets were chosen to suit Ian Budd’s work schedule.

92Ian Budd says that he makes travel arrangements on-line and runs multiple searches to get the best price. When he was doing this for the trip to Atlanta all of a sudden AirTran Airways popped up as a possibility; he could book two tickets flying out of Buffalo for less money than it cost for one to fly out of Toronto. He says when you search on the internet, little 24-hour windows pop up and once you break into a 30-day window, the price goes up or there are fewer and fewer deals; you have to buy it then or it’s gone, so he made the decision then to buy the cheap tickets without knowing if the applicant would be able to go with him or not. He says if there was even a 10 percent chance she could go it was worth it.

93On November 21, 2011, the day after June Dean went back onto medical leave, the applicant went with her husband to see Dr. Szelag again. His clinical notes say his objective observations were that she was tearful, crying constantly, with a very flat affect but alert and oriented, and able to answer questions. Her blood pressure was 146/80, pulse regular, lungs clear, and heart normal. Under subjective observations he writes:

Very tearful. Looks in very bad shape. She returned to work. She developed increasing low mood, concentration and motivation. She cries a lot at home. She has lost interest in doing things. She feels very anxious most of the time. She has unprovoked attacks of anxiety. She wants to sleep a lot. She drinks no alcohol, takes no drugs. She finds it very difficult to get up in the morning and to move around.

94With respect to these subjective observations and the respondent’s position that the applicant misled Dr. Szelag, I note that this clinical record says: “She returned to work.” On the face of it this is consistent with Dr. Szelag’s mistaken belief that the applicant took time off following her September 20, 2011 visit to him; but it is arguably also consistent with the applicant’s statement that she told him she did not take time off but instead returned to work.

95Dr. Szelag diagnosed the applicant as having a depressive episode with anxiety and prescribed Zoloft at 25 mgs daily with instructions to double the dose in 10 to 14 days if there was only a partial response. Under “P” for plan he indicates he planned a follow up visit in three weeks and he writes:

I strongly recommended her to take time off for 30 days. I strongly recommended her to contact the Employer Assistant Program for counselling.

96This reference to the Employer Assistant Program was to a benefit available through Ian Budd’s work. He and the applicant both say they immediately accessed this benefit and went to counselling for the next six months. Initially the sessions were twice weekly; after a month or two they were once weekly. Although the counselling was for the applicant to help with her condition, Ian Budd says he accompanied her to each session for additional support and to learn more about how to help her.

97On November 21, 2011, Dr. Szelag again issued an absence note. This one says nothing about a medical condition and reads only: “Period of absence: NOV 21 – DEC 20/ 2011”.

98The applicant did not give this note to the respondent at that time; instead she returned to Birchmere and worked out the rest of the week. Friday, November 25, 2011 was the last day she worked there.

99On Tuesday, November 22, 2011, there was a management meeting at Birchmere attended by the applicant, Jacqueline Payne, Louise Foster, the activation supervisor and the nursing supervisor. According to Jacqueline Payne she felt bad about denying the applicant the requested vacation in December, 2011, so during the course of this meeting she told the applicant that as Sandra Fowler was due back on December 3 and June Dean on December 10, Birchmere could manage with her absent the week of December 5 to December 11, 2011.

100The applicant agrees that at this meeting Jacqueline Payne told her she could take some vacation. However, she says she was initially given a choice and could take as vacation one of two weeks; but later it was narrowed to December 5 to 9, 2011. According to Jacqueline Payne the applicant said “okay” to this, but the applicant does not remember doing so. Following the meeting Jacqueline Payne changed the schedule to show the applicant on vacation for those dates.

101Jacqueline Payne says that during this time period the applicant completed all her duties and showed no signs of distress; she did not appear to be under the influence of medication, nor did she have a flat affect, slurred speech, or pinpoint pupils; and from a nursing point of view she responded as normal.

102Christie Whetham says that sometime near the end of November, 2011, she saw the applicant upset at Birchmere a second time. This is the second of the two incidents that she says she conflated when she gave a written statement to the respondent at its request on December 6, 2012. That statement reads as follows:

I had recently come back from mat leave and one of are (sic) cooks Sandra had just left on stress leave. It was the end of Sept. beginning of Oct. One day in the morning I seen (sic) Marcia walking down the hall with two big bags in her heads (sic) headings towards her car, the bags were full of her personal belongings. I asked her what she was doing. She told me she was denied her holiday time to go help her daughter plan her wedding in the USA and she had had enough and couldn’t do this anymore and walked to put the stuff in her car. I went into the kitchen and told the cook on shift (June) that it looks like we’re going to be down Marcia as well as Sandra. About an hour later I seen (sic) her sitting in her office crying I asked if she was ok and she told me she had called her husband (Ian) and he said she couldn’t quit they had a wedding to pay for so she had to tough it out for a bit longer.

103This statement clearly contains impossible allegations. For example, it is impossible that the applicant would have said to Christie Whetham she had been denied her vacation time just after Sandra Fowler left on leave. This is because the vacation issue did not arise until October 27, 2011, and Sandra Fowler went on leave on September 16, 2011. Further, June Dean went on leave October 21, 2011, so she was not even in the workplace at the time the applicant’s vacation issue arose.

104Christie Whetham explained that she conflated two separate incidents in her mind when she wrote this statement and did not realise she had done so until a year later, just before the hearing was scheduled to begin. In my experience this kind of error by witnesses is quite common and I accept that Ms. Whetham is telling the truth when she says she conflated two incidents into one when she was writing the above. That being said, I am not prepared to accept Ms. Whetham’s evidence in its entirety for the reasons stated below.

105With respect to the latter of the two admittedly conflated conversations, Christie Whetham says that at the end of November, 2011, the applicant told her she had been denied requested time off but was going anyway; she had seen her doctor, he told her to take a stress leave, and this was as good a time as any to take it. With respect to this particular evidence on the part of Christie Whetham, I am not satisfied that it is more likely than not that this statement was actually made by the applicant. I say this for a number of reasons.

106First, nowhere in the written statement provided by Christie Whetham to the respondent on December 6, 2012 is there any mention of this statement being made. Second, it is also not mentioned in the very detailed amended Response to the Application filed by the respondent; that Response was so detailed that the respondent relied on it as constituting its witnesses’ statements. Third, this allegation was not put to the applicant at the hearing to confirm or deny. Rather, during cross-examination of the applicant, respondent’s counsel put to her the opposite proposition; namely, would she agree or disagree with Christie Whetham that the applicant never told her about having a doctor’s note; to which the applicant replied that if that is what Christie Whetham says it is probably correct. Finally, I would observe that although the kind of conflation described above is common and I accept two conversations occurred, the problems with Christie Whetham’s prior written statement do lend support to the proposition that her memory is somewhat malleable. While Christie Whetham may have honestly attempted to recall what happened, her memory is clearly not reliable. In other words, for the reasons stated above I find that Christie Whetham’s evidence is not reliable where it conflicts with other evidence.

107That being said I note there is a reference in the respondent’s letter of November 30, 2011 that might be corroborative of Christie Whetham’s testimony. It says in part:

We were also informed by your co-worker that when your request for vacation from November 28, 2011 to November (sic) 14, 2011 was denied approximately two weeks ago you stated “It’s booked, I have tickets and I am going.”

108The difficulty here is that Jacqueline Payne was not asked if this is a reference to Christie Whetham telling her this or to Louise Foster’s conversation with the applicant on October 27, 2011; nor was the applicant asked what she understood this statement to mean.

109Given all of the above I do not believe the evidence is sufficient to make a finding that it is more likely than not that the applicant told Christie Whetham her doctor told her to take stress leave and this was as good a time as any to take it so she could go on the planned vacation after all. But the evidence is sufficient to establish Christie Whetham saw the applicant very upset in the workplace a second time sometime in the latter part of November, 2011.

The Removal of Personal Belongings and the Applicant’s Computer

110The respondent takes the position that when the applicant did not attend work on November 28, 2011, it was because she intended never to return; she quit her job and was heading out for the planned vacation that had been denied. The respondent argues that the evidence supports this conclusion in part because the applicant removed all of her personal belongings from Birchmere and deleted all the files on the computer in her office. The applicant says she did neither of these things, so the evidence with respect to the removal of personal belongings and the state of her computer is discussed more fully here. For the reasons stated below, I find that the evidence is insufficient to establish that the applicant removed a significant number of her personal possessions just prior to November 28, 2011, or that she deliberately wiped files from her computer in anticipation of quitting.

Removal of Personal Belongings

111In response to my questions at the hearing the parties kindly provided me with two maps of the interior of Birchmere so I could better understand their evidence about the applicant’s office; one was hand-drawn for me at the hearing, while the other appears to be from Birchmere’s web site. They do not really correspond to one another very well but what I took from the parties’ evidence is that the food supervisor’s office is located near both the kitchen and the dining room. When dietary aides go from the kitchen to the dining room to serve, they pass by or at least close to the applicant’s office depending on which door out of the kitchen is used.

112Whether or not they can see into the office when serving depends on a couple of things. The office itself has two interior glass windows on different walls fitted with blinds. Christie Whetham says one of these blinds was typically drawn and one was typically open. Chairs are placed against one of these window walls; residents wait there to see the nurse.

113The most that I can conclude from this evidence with respect to the office is that sometimes staff members could see into the office and sometimes they could not.

114The applicant says she was repeatedly and routinely removing and bringing things to the office. There were several reasons for this.

115She did menu planning twice a year and when doing it needed her cookbooks so she would bring them to the office and take them home again when she was done.

116The applicant also says that for special occasions she would go to the party store; for example, for a Mexican theme she bought sombreros; on Canada Day she bought ties for the girls and guys to wear. Every time Birchmere had a function she would bring things from home and take them back.

117She says she also stored recyclables in her office from the liquor store that she would occasionally take back to the Beer Store for reimbursement.

118With respect to this evidence of the applicant’s about removing and returning things to her office, the respondent’s witnesses did not disagree except with respect to the issue of recyclables being returned to the Beer Store.

119With respect to the recyclables in her office, the applicant says that every Sunday and for special occasions residents would be offered wine at dinner. She purchased the wine herself at the liquor store with a credit card belonging to Birchmere. The wine came in cardboard boxes; inside was a plastic bladder holding the wine. The purchase price for the boxes included a $0.20 deposit; this deposit is recoverable if the plastic bladder is returned to the Beer Store. The applicant says the task of returning these plastic bladders was not something she had always done; rather it was done by another individual who was let go. She only did it after he left. Her practice was to store the boxes in her office; then, when the empty bladders started to pile up she would place them in the trunk of her car and collect them there for a time. At most she says she went to the Beer Store with these bladders maybe 8 to 10 times a year. When she purchased the wine she bought 38 boxes at a time which she did maybe three times a year. The deposit money totalled maybe $22.00 a year, which she kept on her desk until it was stolen. Ian Budd says he had heard from someone other than the applicant that things were being stolen around Birchmere.

120In contrast to the applicant’s testimony about recycling, Christie Whetham says the dietary aides would put the boxes and bladders in with the regular recyclables. Louise Foster says the practice was to recycle them but she was not asked during her testimony and did not say how they were recycled; rather she simply confirmed she never received any of the deposit money back from the applicant.

121Given the problems mentioned above with respect to Christie Whetham’s memory and the amount of detail about this issue in the applicant’s testimony, I accept her evidence that she saved the bladders from the wine boxes and made trips out to her car to store them in the trunk before taking them to the Beer Store.

122According to the applicant, she used to have two certificates hanging in her office. The applicant says one of them was knocked down as a result of the work being done on the other side of the wall; the frame was damaged. The applicant took both certificates home. Ian Budd says fixing the damaged frame was one of his projects but he never got around to it. The applicant says she does not recall when she did this but she thinks it may have been September or October, 2011.

123The applicant also says she removed a photograph from her office. She believes that was in August, 2011. The photograph was of her family at a friend’s wedding. She says she took the photograph home with her because it was no longer a happy memory; her friend and her husband split up in August, 2011. Ian Budd confirms this family photograph was taken at a wedding of a friend whose marriage subsequently crumbled.

124With respect to the respondent’s evidence, both June Dean and Christie Whetham say they saw the applicant remove things from her office in bags and put them in the trunk of her car in September, 2011; the respondent acknowledges June Dean and Christie Whetham have no knowledge of what was in the bags. The applicant does not deny any of this evidence. She says the bags contained the recyclables described above.

125I would note at this point that it appears from Christie Whetham’s testimony and written statement of December 6, 2012 that she erroneously came to the conclusion that the applicant was quitting in September, 2011 and reported this observation to both June Dean and Jacqueline Payne. There is no dispute the applicant did not quit her employment in September, 2011.

126The applicant also says that in the last week of November, 2011, she did not remove from her office anything of a personal nature but she did remove recyclables. None of the respondent’s witnesses say they saw the applicant removing possessions from Birchmere at any time other than in September, 2011.

127Christie Whetham says that she was not present at Birchmere on November 28, 2011. On November 29, 2011, she went into the applicant’s office and for the first time saw no personal effects there at all. She did not say what personal items she thinks were removed and neither party asked her to elaborate during her testimony.

128Louise Foster says that on the morning of November 28, 2011, one of the dietary aides came to her and said that the applicant had not appeared for work as scheduled. She says she immediately went into the applicant’s office and noticed it was completely cleaned out. There was nothing on the walls or on the desk; there were no personal items; the applicant usually had a uniform on the back of the door that was not there. She says that was the first time she had seen the office like that. She says that the desk was completely clear except for a stack of papers in one corner that she went through looking for the password for the food ordering system.

129But Louise Foster also says that at that time she did not see items which were subsequently returned to the applicant including a fan, extension cord, the applicant’s eye glasses and a dictionary. The fan was in the corner beside the buffet, the extension cord under the desk, and the applicant’s eye glasses and dictionary were discovered when she was looking through the stack of papers for the password.

130Louise Foster further says that when she first saw the fan she thought it might belong to Birchmere so she asked maintenance staff about it and was told it did not belong to the home, so she assumed it was the applicant’s.

131Louise Foster says that when Ian Budd subsequently attended at Birchmere on December 19, 2011, after the applicant received her record of employment indicating she had quit, he did not ask for the applicant’s things but she gave them to him and he did not recognise the fan as belonging to the applicant. However, Ian Budd says he told Louise Foster that he was there to pick up stuff and he wanted it documented – she gave him a note confirming the items he collected. The applicant says picking up her belongings that day was one of the reasons he went to Birchmere. She says before he left he asked her what was in her office to be retrieved and she gave him a list but the list was incomplete.

132Jacqueline Payne was not present at Birchmere the morning of November 28, 2011. She was at Champlain Manor doing payroll. Louise Foster says she called Ms. Payne and told her the applicant had not appeared for work. Jacqueline Payne showed up at Birchmere shortly after that and went with Louise Foster to the applicant’s office.

133With respect to the personal items in the office belonging to the applicant, Jacqueline Payne says the respondent did not find anything until the following week when they were ripping the office apart and cleaning it up. The dictionary was buried and the glasses were down behind it. She says the applicant had a copy of every dietary report going back three years; there was a pile of them in the bottom drawers, and that is when they found the personal items.

134Jacqueline Payne also says that when she spoke with Ian Budd on November 30, 2011, she remembers saying to him the applicant’s uniforms, diploma and certificates were gone, there were no extra shoes, family photos were gone, the walls were bare, and there were no knickknacks. She says the applicant used to have some cute things; there was always some personal reading material, it was gone; and the desk was empty except for a stack of old menu papers on one corner.

135Jacqueline Payne acknowledged on cross-examination that it is logical to assume the applicant would have a better idea of what personal items were in her office than Jacqueline Payne.

136The respondent’s detailed Response which substituted as its witness statements says nothing about the applicant keeping uniforms, knickknacks, or shoes in her office; rather the response specifically and only refers to family pictures, diplomas and certificates. The applicant was never asked at the hearing if she kept in her office or removed from it uniforms, shoes or knickknacks.

137I should say at this point that I have no doubt whatsoever that the respondent genuinely believed personal items had been removed from the applicant’s office just prior to November 28, 2011. I say this because on November 30, 2011, Jacqueline Payne wrote a letter to the applicant about her failure to attend work. This letter summarises events and with respect to this issue of the removal of possessions says:

During these two days [November 28 and 29, 2011] it was noted that your office has been “cleaned”. All of your personal certificates, diplomas, family pictures etc have been removed…

Today Wednesday, November 30, 2011… we received a call from your husband… I explained it was extremely important and I was very concerned about the situation, the removal of personal items from your office and your failure to contact us.

138However, the finding the respondent urges on me is not that the respondent genuinely believes the applicant removed possessions from her office just prior to November 28, 2011; rather, the conclusion it wishes the Tribunal to draw is that she did in fact remove her personal possessions from the office at that time. Given the totality of the evidence I am not satisfied it is more likely than not that just prior to November 28, 2011, the applicant stripped her office of personal possessions.

139Essentially the evidence with respect to the removal of personal possessions indicates the applicant and the respondent agree that the applicant removed at least two certificates from her office and at least one family photograph. Their only disagreement with respect to those items is timing; the applicant says they were taken home in September and August, 2011 respectively. The respondent’s witnesses say they noticed these items were missing on November 28, 2011, but Jacqueline Payne acknowledges the applicant would have a better idea of what was in her office than she does.

140Further, the parties also agree that as of November 28, 2011, a number of personal items belonging to the applicant were in her office, including a fan, an extension cord, her eyeglasses and a dictionary. In other words the applicant did not in fact strip her office of all personal possessions.

141Given that the applicant’s office was not in fact stripped of all personal possessions; that Ms. Payne acknowledges the applicant would know what was in her office better than she would; that both Louise Foster and Jacqueline Payne refer to items allegedly missing from the applicant’s office that are not mentioned in the letter of November 30, 2011 or in their witness statements, and the applicant was never asked to confirm or deny she actually kept such items in her office; that the only evidence of the applicant actually being seen removing items from her office was from September, 2011; and the fact that Christie Whetham was not even in the office on November 28, 2011; I am not prepared to find that it is more likely than not that prior to November 28, 2011, the applicant stripped her office of personal possessions because she was quitting.

The Computer

142The applicant says she was not the only person with access to the computer located in her office. Louise Foster and an unknown number of staff did; it was available for use for others on her cooking days. She says the computer normally used by the activation supervisor was down so staff members needing to do on-line training for things like elder abuse had access to the computer in her office.

143The applicant says she stored personal information about staff and residents on the computer under her name as well as medical information about residents. When she did menu planning she put those files on a memory stick for Louise Foster to work on; but, because Louise Foster told her she did not know how to use the memory stick, she would e-mail the menus to Ms. Foster and left the memory stick in a basket on her desk. She says Louise Foster knew the applicant had this memory stick but not where it was kept. Louise Foster did not contradict this evidence of the applicant’s about the memory stick; rather, she merely says she did not see it in the applicant’s office on November 28, 2011.

144As far as I can tell from the evidence of both parties there were at least two passwords and probably a third being used by the applicant as of November 28, 2011.

145There was the password for the new on-line food ordering system. According to her this password was written down on a white plastic board or pad stuck to the edge of the credenza in her office; this plastic board had the name or logo of the food ordering company on it. Because the on-line system had just changed this was a new password. She says she kept it on the credenza beside the desk because it was the practice at Birchmere for Sandra Fowler to do the food ordering when the applicant was away.

146The applicant also says the password for her computer was written down on a piece of paper stuck to her desk and Louise Foster had this password in her files. Louise Foster says she had two passwords for the applicant in the safe: one for her computer and one for the applicant’s e-mail.

147Louise Foster says that on November 28, 2011, she saw the applicant’s office was empty and she immediately went to access the applicant’s computer. She collected the passwords she had and booted up the computer. She says there was nothing on the computer at all. It was completely empty. There were no files at all and nothing in the recycle box. However, at a different point in her testimony she also indicated she saw an icon that said food ordering system or something like that and she clicked on that but it required a password which she did not have. She says she also checked for e-mails and looked in the in folder, the sent folder, the trash folder, and drafts. There was no note or plastic board with a password written on it nor was there a visible hard drive or flash drive. Jacqueline Payne also says she did not see anything like a white plastic board or pad.

148After the applicant failed to attend work on November 28, 2011, the respondent asked Sandra Fowler if she would come into Birchmere while she was on leave for the purpose of doing the food ordering. She agreed and came in the next day, November 29, 2011. She says that when she arrived she could not get on the computer as she was missing the password; but when asked if she meant the computer did not work at all, she said it turned on but there was nothing there. She and Louise Foster say the password Sandra Fowler had from before the start of her leave did not work on the new system.

149There are a number of difficulties with respect to the respondent’s evidence about the applicant’s computer. None of the parties led evidence as to whether or not the applicant’s computer was networked, whether or not there were shared drives, what the backup protocols were, or how maintenance and servicing were done. The statements by the respondent’s witnesses that there was nothing on the computer is clearly not true – both Sandra Fowler and Louise Foster indicate the food ordering system was on the computer; they simply could not access it. The applicant was never asked if she used the same e-mail program as the one Louise Foster says she looked at. No evidence was led to indicate a computer technician examined the computer and determined that data was deleted just prior to November 28, 2011.

150The best that can be said of the parties’ evidence about the computer in the applicant’s office is that it is insufficient to establish that it is more likely than not that the applicant deliberately deleted her files just prior to November 28, 2011.

151That being said, as with the issue of possessions being removed from the applicant’s office, I have no doubt whatsoever that the respondent genuinely believed the applicant removed files from the computer. As with the issue of personal possessions, the respondent’s letter of November 30, 2011 explicitly states: “The computer has been wiped clean including all emails, trash memos, files etc.”

The Further Events of November 28, 2011 to December 20, 2011

152The applicant and her husband say that the applicant did not sleep well, and on the morning of Monday, November 28, 2011, she was so anxiety-ridden and depressed that she literally could not get out of bed to go to work. Mr. Budd calls it a “melt down”. The applicant says that if she had gotten into her car and driven up to Birchmere that day she would have just closed her eyes and ended it by killing herself. The respondent argues that the applicant’s evidence in this regard should not be accepted as credible; it states in its written submissions that based on the evidence before the Tribunal, it is just as likely that the applicant was lying on a beach in Tampa, Florida on November 28, 2011, and that she has not met her burden of proof.

153On November 28, 2011, the applicant was scheduled to be at Birchmere for a paper day. Paper days usually began at 8 a.m.

154The applicant says on the morning of November 28, 2011, she could not get out of bed, nor could she face the task of phoning the respondent and telling it she was too sick to come to work. She says that Louise Foster would have been the one to answer the phone and she was part of the problem. She just could not motivate herself to do it; she was like a baby curled up in bed.

155Ian Budd was home the morning of November 28, 2011. It was a Monday so it was one of his regular days off. He and the applicant both say he removed the phone from the bedroom so no one could call and distress her further. The applicant says that when he did this she was not even aware it was happening.

156Ian Budd says that when he woke up that morning the applicant was crying and shaking. He tried to console her, gave her tea, hugged her as any husband would do. He says that she literally could not stand; she was not coherent and it took him some time to calm her down. She finally fell into a deep sleep around 10 a.m. He says he told her that when he could he would deliver Dr. Szelag’s note of November 21, 2011 to Birchmere, so after she was deeply asleep he left her alone and went to Birchmere. He got there around 11:20 a.m. and delivered the note to Louise Foster who was at the front desk.

157Ian Budd’s testimony about what happened next is a little confused and he corrected himself on cross-examination. Initially he stated that after he left Birchmere and went home he got a call from Jacqueline Payne about the fact that Dr. Szelag’s note was for an absence beginning on November 21, 2011 and not November 28, 2011. On cross-examination he corrected himself and said he spoke to Jacqueline Payne that morning but it was about her desire to talk to the applicant which he would not let her do, and not about the note. Rather, on cross-examination he said he received a voice mail message that day from her about the date on the note.

158Louise Foster says that when Ian Budd delivered the note dated November 21, 2011, she pointed out the date to him but nothing further was said about it; he just laughed. Ian Budd says he does not remember Louise Foster saying anything about the date; it was in an envelope and all he recalls is her telling him she would contact Jacqueline Payne. He was not asked to confirm or deny Louise Foster’s statement that he laughed.

159Regardless of how or when the date on the note was raised with Ian Budd by the respondent, he says he immediately contacted the receptionist at Dr. Szelag’s office to ask her if Dr. Szelag would re-issue the note with November 28, 2011 on it as the start date rather than November 21, 2011. He then went to Dr. Szelag’s office and picked it up. The Application says the applicant visited her doctor again and got this second note; she says that is a mistake in the Application. Like the two previous ones the November 28, 2011 note contains very little information. It says in its entirety:

Period of Absence: November 28-December 20/ 2011.

Comments: DUE TO MEDICAL CONDITION.

160The only observation I would make about this note is that the end date for the period of absence is the same as the one issued on November 21, 2011 – namely, December 20, 2011.

161After picking up this note from Dr. Szelag’s office Ian Budd drove back to Birchmere to deliver it. By the time he arrived the night receptionist was on duty and he left it with her.

162Ian Budd says he stayed home with the applicant the rest of that day and the following day, which was a Tuesday so he was not required to be at work. He says he returned to work for his regular shift on Wednesday, November 30, 2011 at 6:30 p.m. because the applicant said she felt well enough for him to do that. He says that he arranged a backup plan; if she did not pick up the phone when he checked on her he had someone on call locally who could go to the house.

163Meanwhile, the respondent was scrambling to cope with the applicant’s failure to appear for work the morning of November 28, 2011.

164When a dietary aide told Louise Foster the applicant had not arrived on time, she checked the applicant’s office and automatically came to the conclusion the applicant had quit. She immediately called Jacqueline Payne at Champlain Manor and told her something to the effect of: “Guess what? [The applicant] has not shown up. I told you so.” Jacqueline Payne swore and a short time later returned to Birchmere. After looking in the applicant’s office, Louise Foster says Jacqueline Payne said, “I think she’s quit.”

165Louise Foster says they discussed the issue of ordering food that day. The food order would normally be put in the next day, Tuesday, for delivery on Wednesday. They did not know how to use the new food ordering system nor did they know or find the password for it so they called the contacts they had with the supplier and discounter and explained what was going on. The discounter immediately advised them that the applicant’s password should be deleted if she was no longer there to prevent her from accessing the food ordering system from off-site. Jacqueline Payne called Sandra Fowler because to her knowledge Sandra Fowler was the only other person who knew how to order food. Ms. Payne was never asked during her testimony if she inquired of the other cooks if any of them knew how to use the system. Despite being on a medical leave, Sandra Fowler agreed to come in which she did the next day, November 29, 2011.

166When Sandra Fowler came in on November 29, 2011, the respondent discovered that her old password did not work and in Louise Foster’s words, they panicked. They had to put in the food order so the residents could be fed. The supplier told them the order would have to be done through a customer service representative over the phone; so that is what Sandra Fowler did. She says it took her about three hours compared to the two hours it normally took.

167Louise Foster says that when she arrived at work on November 29, 2011, she found the note from Dr. Szelag dated November 28, 2011 waiting for her on her desk.

168Jacqueline Payne says that she called the applicant’s home repeatedly all day Monday, November 28, 2011, and again on Tuesday, November 29, 2011. She thinks she also tried calling on Wednesday morning, November 30, 2011. She says she phoned so many times she thought she might get charged with harassment if she did not stop. However, her letter of November 30, 2011 says she left only two voice mail messages for the applicant on Monday, November 28, 2011, and Tuesday, November 29, 2011.

169On November 30, 2011, Ian Budd called Jacqueline Payne back. She repeatedly asked to speak to the applicant. Ian Budd told her she could not. He said he had removed the phone from her bedroom to prevent her from being disturbed because she was on complete bed rest on doctor’s orders. She asked him to take a cell phone into her and he refused. He said he had her password but Jacqueline Payne told him it was no longer needed.

170During this conversation Louise Foster was in the room with Jacqueline Payne. She says she heard Jacqueline Payne ask repeatedly to speak to the applicant and she heard her ask Ian Budd to take a cell phone into the applicant. That is all she remembers. Jacqueline Payne remembers those details but she also says she discussed the conflicting dates on the two notes and said they did not make sense given that the applicant was able to work the entire week of November 21, 2011. She also says she told him the applicant’s office had been cleaned out because she was not sure if he knew that. She says she thinks he questioned her about that.

171According to Jacqueline Payne, at this point in time she had come to the conclusion the applicant had gone on vacation. She did not believe the applicant had a medical condition which prevented her from working. She came to this conclusion because the first doctor’s note said the applicant could not work the week of November 21, 2011, but the applicant clearly could and did work that week; she believed the applicant had wiped her computer clean and removed all of her personal possessions; it was unusual for the applicant not to talk to the respondent and it was a third party who was saying she was not available; the applicant had seemed fine the previous week; and she remembered Louise Foster telling her the applicant had said on October 27, 2011, that she was taking the denied vacation anyway because she already had tickets.

172After her conversation with Ian Budd, Jacqueline Payne consulted with the owner of the respondent and wrote the applicant a letter. It summarises the respondent’s perception of events leading up to that point in time. With respect to the telephone conversation between Jacqueline Payne and Ian Budd on November 30, 2011, it says:

Today Wednesday, November 30, 2011 at approximately 11:15 am we received a call from your husband. He stated he had just gotten the two messages we left on Monday and Tuesday and had the password for the food order. I asked to speak to you and he refused stating you were on complete bed rest and he had removed all phones from your room. I asked him to take a cell phone in to you and he again refused. I explained it was extremely important and I was very concerned about the situation, the removal of all personal items from your office and your failure to contact us.

173There is no dispute that nowhere in this letter does the respondent ask the applicant for additional information about her medical condition. Rather it describes the applicant’s failure to contact the respondent on Monday and Tuesday as “unacceptable”. The last paragraph of this letter says:

As you are aware our two regular cooks are off work on medical leaves and not due back until next week, thus your refusal to contact us and your actions to date leave us no choice but to accept that you have effectively resigned your position as Food Services Supervisor. Due to our critical staffing shortage we will be filling this position as soon as possible. The record of employment and any monies owing will be processed on the payroll of Monday December 12, 2011.

174There is also no dispute between the parties that the respondent never asked for additional medical information or for permission to contact the applicant’s physician.

175When the date arrived for the flight out of Buffalo, which was Sunday, December 4, 2011, Ian Budd and the applicant say they drove across the border and went on the trip. Ian Budd says that without the stress of work the applicant was better and he thought going would be uplifting for her; that was his goal. The applicant says it was a total change of scenery because it had nothing to do with work. Her eldest daughter would not let her do anything but cooked for them and her husband drove them around.

176The applicant and Ian Budd returned home on Tuesday, December 13, 2011. The next day he went back to work for his regular rotation.

177Although the applicant and Ian Budd returned from the United States on December 13, 2011, they say they did not receive the respondent’s letter of November 30, 2011 until sometime later. This is because they do not have home mail delivery; rather, they have a mailbox in a super box down the road in the opposite direction from the way Ian Budd normally travels when he goes to work. He says that he receives all their bills on-line so he does not check the mailbox often. Their son lost the second key to the box so they have only one; it is on his key chain so he is usually the one to collect mail.

178On December 15, 2011, the respondent issued and mailed to the applicant a Record of Employment which indicates the applicant quit her position and was paid for the period ending November 27, 2011.

179After returning home from Buffalo, Ian Budd immediately went back to work the following day so he did not check the mailbox until the end of that work rotation which would have been either December 17 or 18, 2011, depending on whether he worked the Saturday shift or not.

180The applicant says that when she read the letter from the respondent she was devastated. She took the paragraph quoted above at paragraph 173 to mean that her employment had been terminated; they were hiring to replace her. She says she could not respond to it as it was like being kicked in the gut. She loved her job and the residents; she enjoyed her work.

181Ian Budd says the applicant’s reaction to the letter was one of shock. They discussed it and decided he would go to Birchmere and return her keys and the respondent’s credit card and pick up her possessions. That occurred on December 19, 2011.

182During this visit to Birchmere Louise Foster prepared handwritten notes acknowledging what had been dropped off and picked up. Both Ian Budd and Jacqueline Payne say that during this visit he spoke to her about outstanding vacation credits and was told the applicant did not have any. Ian Budd says that during this conversation about vacation credits he told Jacqueline Payne that the applicant had not quit; rather, she was off on a doctor’s note and incapable of being there.

183Jacqueline Payne remembers this conversation differently. She says she asked how the applicant was doing, which Ian Budd categorically denies; he says the respondent never asked after the applicant’s well-being. Jacqueline Payne also says he told her that the applicant would never work in management again because it is too stressful. He does not recall saying this but agrees he might have. Jacqueline Payne says Ian Budd never denied the applicant had quit. She interprets his statement that the applicant would never work in management again to be the equivalent of acknowledging the applicant quit. Given Ian Budd’s admission that he might have said something to the effect that the applicant would never work in management again, I accept Ms. Payne’s evidence with respect to this statement.

184However, given the evidence of Jacqueline Payne I am not satisfied that Ian Budd said the applicant quit her job. Telling her the applicant would never work in management again is not the equivalent of saying she quit; rather, it is consistent with the applicant’s testimony that the way her employment ended resulted in a loss of self-confidence in her abilities.

185On December 20, 2011, the applicant saw Dr. Szelag for follow up. His clinical notes say his assessment is her depression and anxiety are stable; she is to continue with 50 mgs daily of Zoloft; continue with counselling; and follow up with him in three to four weeks. With respect to objective observations his clinical notes say: her blood pressure is 122/70; she is alert and oriented; and “She looks calmer today. She is not crying during the visit.” Under subjective observations he writes:

She was apparently fired by her boss and told to leave now. She has been taking Zoloft 50 mgs daily. She feels better. Her mood and concentration are increased. She is not crying that much. She is attending counselling through Employee Assistance Program. She claims it helps her very much.

186The applicant says she continued to take the Zoloft Dr. Szelag prescribed. When the prescription ran out in March, 2012 she did not get it renewed. She says the reason she decided to stop taking it was because it can be addictive.

187According to the applicant during this period she could not do anything at home; her husband had to do everything. He had to cook and clean and do laundry and because she had no income coming in he had to bear the financial burden. The applicant says she was always wanting to stay in bed, and he was always trying to get her out of bed and doing stuff. They had no social life because the applicant did not want to go out and be around people. Their children would telephone upset because the applicant was not calling them every Sunday night as usual.

188Ian Budd says in addition to the financial impact on them of the job loss, emotionally the applicant was not the same person – her self-confidence was gone. She did not believe in herself, and felt she had failed, which is very hard to accept. Ian Budd says he declined a lot of overtime even though he needed it. He did not want to take that time away from home time and he was going to counselling with the applicant as well; he says he went to counselling with her because he loves his wife deeply and he wanted to know what he could do to help her.

189Since leaving Birchmere the applicant has not worked full-time or in management again. She works part-time as a cook. She says she has applied for many better jobs but been unsuccessful; she attributes this lack of success to a loss of self-confidence brought on by what happened with the respondent.

190The applicant subsequently made a claim to the Employment Standards Branch of the Ministry of Labour. The respondent was directed to pay the applicant four weeks’ termination pay and seven days’ vacation.

ANALYSIS

191This Application is based on the right set out in subsection 5(1) of the Code which states:

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.

192The behaviour or discriminatory treatment the applicant complains of in this Application is essentially the respondent’s failure to accept the content of, or respond in a different manner to, her doctor’s medical notes delivered on November 28, 2011 saying she needs to be absent from the workplace; from that flowed the decision to send the letter of November 30, 2011 enunciating the respondent’s position that the applicant had quit her job.

193The definition of “disability” in subsection 10(1) of the Code says it includes any degree of physical disability, a condition of mental impairment, or a mental disorder.

194The respondent does not take the position that depression or anxiety disorders should not be considered to be disabilities under the Code and I am satisfied that they are. Dr. Szelag confirmed in his testimony that they appear in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). Further, the Divisional Court has accepted “anxio-depression state” is a disability as defined under the Code. (See: Ottawa (City) v. Ottawa-Carleton Public Employees' Union, Local 503, 2007 CanLII 5524 (ON SCDC).)

195Rather, the respondent submits the applicant has not met her burden of proof and has failed to establish that she had a disability on November 28, 2011.

Was the Applicant a Person with a Disability?

196I find the applicant was a person with a disability as defined under the Code during the relevant period for a number of reasons as set out below.

197First and foremost, the medical evidence supports the conclusion that the applicant was a person with a disability throughout the relevant period. Dr. Szelag testified that on September 20, 2011, he diagnosed the applicant as having a depressive episode with anxiety. He prescribed Lorazepam and recommended the applicant take 30 days off work. On October 18, 2011, he saw her again and her condition was improved. Her anxiety had diminished but he recommended she seek a different job. On November 21, 2011, he saw her again and again diagnosed her as having a depressive episode with anxiety and prescribed Zoloft at 25 mgs daily with instructions to double the dose in 10 to 14 days if there was only a partial response. On December 20, 2011, the applicant saw Dr. Szelag for follow up. Her depression and anxiety were stable at that time but he recommended she continue with 50 mgs daily of Zoloft and counselling.

198Dr. Szelag was repeatedly pressed on cross-examination to revisit his diagnosis on the basis that the applicant made subjective statements during her visits that were not true and her behaviour was inconsistent with his diagnosis. It was put to him that the applicant was not truthful about working weekends all the time, it was not true that she had taken 30 days off work from September 20 to October 20, 2011 as he believed, and as soon as she left his office on September 20 and again on November 21, she returned to work. His response to this proposition was to confirm his diagnosis was correct; he says everybody reacts differently to a mental condition – some people still work even when you recommend them not to – but he has no doubt that his observations were correct.

199The respondent provided the Tribunal with five decisions of labour arbitrators in support of the proposition that it is well-established law that a doctor’s note which provides for time off when an employee has had an application for leave denied should be carefully scrutinized; and this is particularly so where the employee has not been forthright with her doctor and the doctor’s note is based on subjective findings. (See: Re Ford Motor Co. of Canada Ltd. and United Automobile Workers, Local 1520, 1975 CanLII 2127 (ON LA), [1975] O.L.A.A. No. 69, 8 L.A.C. (2d) 149; Johnson Matthey Ltd. v. United Steelworkers of America Local 9046, 2004 CanLII 55276 (ON LA); Teck Cominco Metals Ltd. v. United Steelworkers of America, Local 480 (Goodie Grievance), 2005 CanLII 94151 (BC LA), [2005] B.C.C.A.A.A. No. 140, 141 L.A.C. (4th) 97; Petro-Canada v. Communications, Energy and Paperworkers Union of Canada, Local 593 (Bulleid Grievance), 2006 CanLII 93311 (ON LA), [2006] O.L.A.A. No. 25, 146 L.A.C. (4th) 275; and Kohler Ltd. v. Hytec Employees Assn. (Funk Grievance), [2007] B.C.A.A.A. No. 246, 168 L.A.C. (4th) 167.)

200These arbitration cases are not helpful with respect to the situation here. They all involve instances where the employer received medical information from the employee which it then investigated. That did not occur here. The respondent acknowledges it did not ask for clarification of the applicant’s limitations, seek consent to speak to her doctor, nor did it ask for an independent medical examination or ask the applicant to get her physician to complete a functional limitation assessment. Instead the evidence supports the conclusion that the respondent automatically assumed the applicant had quit without taking any steps to investigate at all.

201I would also note that unlike the situation here, the medical evidence proffered at the hearing of these arbitration cases did not include a physician standing by his or her diagnosis when confronted by the relevant facts. For example, in Teck Cominco Metals Ltd. v. United Steelworkers of America, Local 480 (Goodie Grievance), the physician expressly and unequivocally withdrew his opinion of the Grievor’s condition (at paragraph 45). In Kohler Ltd. v. Hytec Employees Assn. (Funk Grievance), the Grievor’s physician worked at a walk in clinic and testified that “a weakness of a walk in clinic like his is that there is no history of a patient being credible or not credible” (at para. 64) and after hearing the relevant facts “revised his estimate of the patient’s credibility from ‘70/30’ to ‘50/50’” (at para. 66). Here, the applicant’s physician treated her in his family practice for eight years prior to November, 2011, and at the hearing he did not revise his assessment of her credibility.

202In Petro-Canada v. Communications, Energy and Paperworkers Union of Canada, Local 593 (Bulleid Grievance), the Grievor’s physician provided medical certificates authorising absence from work based on the mistaken belief that the job duties involved physical labour and the duties could not be modified (at paragraph 42). That is not akin to the situation here.

203In the rest of the arbitration cases cited above it does not appear that the physician involved was called to testify.

204Second, two of the respondent’s witnesses testified that in the fall of 2011 they saw the applicant at Birchmere crying or very upset. This evidence is consistent with the applicant’s evidence and Dr. Szelag’s diagnosis. Christie Whetham saw her crying in the latter half of September, 2011 after Sandra Fowler went on leave; June Dean confirms the applicant was upset in front of her around the same time for the same reason. Both Christie Whetham and the applicant say she was so distraught at that point in time that she wanted to quit her job but felt like she could not. Christie Whetham saw her upset a second time, sometime near the end of November, 2011.

205In contrast to these two witnesses, the respondent points to the evidence of Jacqueline Payne, with emphasis on the fact that she is a registered nurse; she says that during the week of November 21, 2011, she saw none of the symptoms associated with depression described by Dr. Szelag. The applicant argues that Jacqueline Payne was present at Birchmere only part-time as she split her time between three retirement homes; Jacqueline Payne says she saw the applicant every day that last week.

206I have no reason to doubt Jacqueline Payne with respect to her evidence; it is not contradicted by the applicant. That being said I do not believe her evidence should be given more weight because she is a registered nurse as nurses are not diagnosticians. More importantly her evidence is of a negative – it is about things she did not observe; she cannot say what the applicant did or said during that period when she was not present to observe her. As Dr. Szelag says, everybody reacts differently to a mental health condition; the fact that Jacqueline Payne saw the applicant being functional at work some of the time during the week of November 21, 2011 is not inconsistent with Dr. Szelag’s medical opinion, observations or diagnosis.

207Third, it cannot be denied that the fall of 2011 was an extremely stressful time for the cooking staff at Birchmere. Scheduling was so tight there was no room for illness or absence and the workload was so heavy that it was a contributing factor in the stress leave of a cooking member of staff other than the applicant, Sandra Fowler. In other words, the environment at Birchmere at that time is consistent with the applicant’s overall evidence of increasing stress and anxiety leading to clinical depression.

208Fourth, I am not persuaded by the submissions of the respondent that the evidence of disablement is insufficient to meet the applicant’s burden of proof. The respondent’s written submission points to the following in support of this proposition:

• On October 27, 2011, the applicant told Louise Foster she had tickets booked to travel and would not be at Birchmere during the requested period of vacation. An adverse inference should be drawn because the applicant refused to disclose her passport and/or the tickets she was referring to on October 27, 2011; and weighty corroborative evidence is required to dislodge the inference that on November 28, 2011 the applicant was absent from work because she was taking an unauthorised leave.

• The Tribunal should draw an adverse inference from the failure of the applicant to call the activation supervisor as a witness as originally planned.

209With respect to the latter of these two points the applicant’s hearing materials filed with the Tribunal indicate she planned to call the activation supervisor as a witness to: the stress of the job on the applicant; seeing the applicant upset, stressed and crying; bullying and harassment by Jacqueline Payne; and knowing the applicant had seen her doctor and been instructed to take time off work.

210But the respondent’s submissions ask the Tribunal to take an adverse inference because the activation supervisor’s testimony would have corroborated Jacqueline Payne’s evidence as to the applicant’s “state of health at the Supervisor’s meeting and during the week of November 21, 2011.” [Emphasis in original.] As stated above, I accept Jacqueline Payne’s evidence in its entirety with respect to this topic as the applicant does not dispute it and it is not inconsistent with Dr. Szelag’s diagnosis. As a result there is no adverse inference to be drawn.

211With respect to the former of these two points, the respondent’s written submission says that the fact the applicant had a ticket as of November 10, 2011 for a December flight in no way precludes that she also had a ticket as of October 27, 2011 for a period which included November 28, 2011 just as she said she had; and that the onus is on the applicant to demonstrate that she did not just use the ticket she said she had on October 27, 2011. Although I agree with the first of these two propositions, I do not agree with the second.

212It is true that just because the applicant’s husband purchased tickets on November 10, 2011 that does not mean that on October 27, 2011 the applicant did not have a ticket to travel for the same or a different date.

213But the onus on the applicant is to establish the underlying facts in support of her claim of discrimination; that claim is with respect to what the respondent did or did not do on November 28, 2011 and in the days that followed. The supposition that the applicant had already purchased tickets to travel as of October 27, 2011 is part of the respondent’s defense. From the applicant’s perspective it is also asking her to prove a negative – she did not have tickets on October 27, 2011; she was not lying on a beach in Tampa, Florida, on November 28, 2011 as the respondent speculates. I would also observe that the respondent never put to either the applicant or her husband on cross-examination the proposition that on November 28, 2011, the applicant was in Tampa, Florida, or travelling elsewhere. In fact, respondent’s counsel never asked the applicant or Ian Budd to confirm or deny that either of them had purchased tickets earlier than November 10, 2011.

214With respect to the invitation to draw an adverse inference, the respondent’s written submission refers to its unsuccessful efforts prior to the hearing to obtain additional disclosure from the applicant concerning the alleged tickets that may or may not have existed on October 27, 2011 when the applicant spoke about them to Louise Foster. (See: Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, 2013 HRTO 1812 and 2013 HRTO 1984.)

215The respondent argues that the applicant’s failure to produce phone records, visa records and a notarized copy of her passport should result in the Tribunal drawing an adverse inference; namely, that if those documents had been produced they would establish the applicant was perhaps lying on a beach in Tampa, Florida, on November 28, 2011, and not having a meltdown in bed in Barrie as claimed by the applicant and Ian Budd. Therefore, she cannot now rely on their uncorroborated evidence as to her whereabouts on November 28, 2011.

216There are two difficulties with respect to this argument of the respondent: first, the RFOPs referred to do not reflect the respondent’s current submission and the Tribunal’s responses to them speak for themselves (but also see below); and second, the respondent failed to put to the applicant and her witnesses the proposition it now invites the Tribunal to accept.

217With respect to the respondent’s first RFOP referred to above, in it the respondent does not put forth the suggestion it is now making; namely, that the applicant had tickets on October 27, 2011 and used them on November 28, 2011, and was not in Barrie on that date. In fact, the Interim Decision, 2013 HRTO 1812, explicitly states (at paragraph 10) that the RFOP does not say this and speculates that it might be why the respondent was seeking production. In the absence of a stated rationale for the production request, the Tribunal denies the first RFOP but invites the respondent to renew the request and explain how the production sought is relevant to an issue or fact in dispute.

218In the second RFOP request, the respondent withdraws the request for a notarized copy of the applicant’s passport and asks for production of financial statements showing payments to travel carriers or a travel agency for any cancelled flights. There is no time frame to this request. The RFOP also requests telephone records prior to October 27, 2011 related to ordering or confirming passage to Atlanta or any other destination during a period that includes October 27, 2011. Again the RFOP fails to actually explain how the productions sought are relevant to an issue or fact in dispute between the parties and the Tribunal again speculates (in Interim Decision, 2013 HRTO 1984, at paragraph 19) as to what the relevance might be.

219Neither of the RFOPs put forward the proposition that the applicant was travelling on November 28, 2011, and not in Barrie as she claims.

220As stated above, during the cross-examination of the applicant and Ian Budd, the respondent did not ask if either of them had purchased travel tickets prior to October 27, 2011 for the period starting November 28, 2011, or any tickets at all prior to November 10, 2011, when they admit they did. The respondent did not ask the applicant to confirm she told Louise Foster on October 27, 2011 that she had such tickets nor did the respondent ask the applicant if she was somewhere other than at home on November 28, 2011.

221Given all of the above it is not open to the Tribunal to draw the adverse inference the respondent now wants it to. Doing so would be the equivalent of accepting sheer speculation in the absence of any evidence at all. It would also be contrary to the rule in Browne v. Dunn, above, which requires a party who intends to impeach an opponent’s witnesses to direct the witnesses’ attention to that fact by asking him or her appropriate questions in cross-examination.

222Fifth and finally, the respondent’s theory of events is illogical. The applicant was diagnosed with depression and an anxiety disorder on September 20, 2011, more than a month prior to the denial of her vacation request on October 27, 2011. So it cannot be said she lied to Dr. Szelag and invented a disability for the purpose of being able to take a planned but denied vacation.

223Given all of the above I find that during the relevant period the applicant was a person with a disability as defined under the Code.

Discrimination, Accommodation, and the End of the Applicant’s Employment

224In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation.

225In Chen v. Ingenierie Electro-Optique Exfo, 2009 HRTO 1641 at para. 22, the Tribunal states:

When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. The Lippé Group, 2008 HRTO 50 and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68.

226The respondent argues that if the Tribunal accepts the applicant was a person with a disability then in the alternative it submits that it was correct for the respondent to understand that the applicant quit on November 28, 2011. Its submission details the employment law principles concerning the subjective and objective elements of an intention to quit and applies those principles to the facts it argues exist here.

227This submission on the part of the respondent is not responsive to the issue before the Tribunal. The issue for the Tribunal is: did the respondent breach s. 5(1) of the Code by taking the position that the applicant quit without taking meaningful steps to investigate and assess whether her absence was disability-related? Whether the applicant quit or was terminated cannot be determined in the absence of an analysis of the respondent’s Code obligations and whether or not it met them in the circumstances. Here the medical notes provided contained minimal information, so it was incumbent on the respondent to explore whether the applicant had a disability and whether it was required to accommodate her through a temporary leave of absence before concluding the applicant had quit.

228The evidence establishes that prior to the delivery of the first note from Dr. Szelag at 11:20 a.m. on November 28, 2011, Louise Foster had already concluded the applicant had quit her job and communicated that to Jacqueline Payne. After Ms. Payne arrived at Birchmere she and Louise Foster admittedly went into panic mode for good reason; all of their experienced and primary cooks were now unavailable to cook and they had one day to figure out how to order food for the residents. As Ms. Payne put it in her testimony, they were in “deep doo-doo”. When she looked at the first of the two doctor’s notes she simply did not believe the applicant was ill and unable to work; to her the note made no sense as it was for a leave commencing November 21, 2011, and the applicant had worked the entire week of November 21, 2011 and displayed no distress that she could see.

229The evidence supports the conclusion that the phone calls made by Jacqueline Payne on November 28 and 29, 2011 were primarily about getting the password for the food ordering system. The conversation with Ian Budd occurred because he returned the respondent’s two phone messages in order to tell them the password. His refusal to let Jacqueline Payne speak to the applicant is consistent with the evidence of his care and concern for the applicant; for example, there can be no dispute he accompanied the applicant to see Dr. Szelag on November 21, 2011. Jacqueline Payne does not say she asked to speak to the applicant repeatedly because she wanted to inquire into her disability-related needs, although she does say she wanted to review the doctor’s notes with the applicant because they made no sense. Rather, the balance of the conversation that day was about the underlying reasons behind Jacqueline Payne’s belief that the applicant had gone on vacation or quit. In other words, like Louise Foster, she had already made up her mind.

230The respondent argues in its written submission that it is the applicant who breached her obligation under the Code; namely, the duty to cooperate reasonably with the accommodation process.

231It states that Ms. Payne tried to review the issue of disability and accommodation with the applicant but was prevented from doing so by either the applicant or Ian Budd. (The submission actually states that she was prevented from doing so by “Ms. Budd”. Given the context I believe this is a typographical error, but it may not be so I have read into the submission both of them.)

232I do not agree with the respondent that the evidence supports the factual assertion that Ms. Payne tried to review the issue of disability and accommodation with the applicant. Jacqueline Payne testified that she phoned the applicant “hundreds” of times on November 28 and November 29, 2011, but her own letter of November 30, 2011 says she left two messages. Neither Jacqueline Payne nor Ian Budd testified those messages were about anything except the password to the on-line food ordering system.

233Assuming without finding that it is true that Ms. Payne wanted to ask questions about the notes as part of an investigation into whether the applicant was legitimately on medical leave and if so what the applicant’s disability related needs were, there is no dispute that she was explicitly told by Ian Budd that the applicant was on bed rest as a result of her medical condition. On its face this response supported and confirmed the medical nature of the applicant’s absence from work. It may well have been open and even reasonable for the respondent to make additional formal inquiries of the applicant to better understand what her medical situation was, and if it was legitimate whether a temporary leave was necessary. However, given that was the response to the respondent’s attempts to speak to her over the phone, it cannot be said that the respondent’s phone calls were sufficient to fulfill its obligation with respect to the procedural duty to accommodate.

234The respondent also argues that even if there was a legitimate basis for accommodation, the applicant’s absence created a situation of undue hardship and left the respondent with no opportunity to consider options such as having the applicant do administrative duties from her own home.

235Although I would agree that the applicant’s absence created a difficult situation for the respondent, the evidence does not support the conclusion that the respondent accommodated the applicant up to the point of undue hardship. For example, no evidence was led that the respondent was unable to feed the residents of Birchmere on or after November 28, 2011; and no evidence was led to indicate that the respondent had to or did fill the applicant’s position prior to December 20, 2011, her scheduled date of return. In other words, there is no evidence before the Tribunal in support of the proposition that the respondent was unable to give the applicant the leave her doctor’s note indicated she needed, or that doing so would cause the respondent undue hardship. If anything, given that there is no evidence that there was a full-time replacement in place prior to December 20, 2011, it is difficult to understand how it would have been more of a hardship on the respondent not to allow the applicant to return to work after December 20, 2011 (which is when the medical note indicated she could return), or November 30, 2011 (which is when the respondent indicated her absence required them to hire a replacement). Put another way, if the applicant had been in a car accident on November 28 and unable to attend work that would have put the respondent in a very difficult position, but that difficulty would not necessarily have established that it would have been an undue hardship to accommodate a temporary absence from the workplace such that they were entitled to terminate her (or conclude the absence amounted to a “resignation”). It is also noteworthy that the applicant was not the only employee temporarily absent from work for medical reasons, yet the respondent did not find it necessary to terminate other employees on the basis that their absence amounted to undue hardship. No doubt the timing of the applicant’s departure was exceptionally difficult for the respondent, but once one accepts that she had not resigned her employment, from an organizational perspective it is difficult to understand how her absence created an undue hardship while the absence of the two full-time cooks did not.

236As for the applicant’s behaviour leaving the respondent with no opportunity to consider accommodation options, I would agree that it is well-established that the person seeking accommodation has an obligation to reasonably cooperate and participate in the accommodation dialogue. (See: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, 1992 CanLII 81 (SCC) (“Renaud”).) But here the facts are that the applicant made a request for accommodation in the form of a leave from work and was not asked for additional information nor offered alternative accommodation. The obligations of the applicant in this process are outlined at paragraph 44 of Renaud as follows:

This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable… and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation…. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

237I find it was reasonably clear that as early as November 28, 2011 (and more so by November 30, 2011), the applicant was asserting she could not be present at work for medical or disability-related reasons and was taking the position she required a temporary leave because of this. This was sufficient to engage the respondent’s own procedural and substantive obligations under the Code. It cannot be said here that the applicant failed to bring the facts relating to the discrimination to the respondent’s attention; while the information provided may not have been ideal, on the facts of this case I have found it was sufficient to engage the respondent’s obligation to make further inquiries and I am not satisfied that the applicant failed to fulfill her obligations in the accommodation process in this respect. The situation might have been different had I accepted or found evidence that the respondent attempted to engage with the applicant regarding ongoing concerns about the legitimacy of her medical condition after it received the revised doctor’s note for November 28, 2011. Additionally, it can hardly be said that the applicant failed in her obligations to consider or facilitate alternate forms of accommodation when the respondent was not attempting to engage in any such discussion because it had concluded she was not under a disability.

238The respondent’s submission also directs the Tribunal’s attention to its Case Resolution Conference Decision in McIlravey v. Vincent Salon & Spa, 2009 HRTO 246, and urges the Tribunal to come to the same conclusion as reached in that instance. As here, the applicant employee in McIlravey was denied vacation and then failed to show up for work on the date the denied vacation was to start. The result in McIlravey also turns on findings of fact and credibility; the Tribunal finds as a fact that the respondents did not know the applicant was claiming to be disabled prior to terminating her employment, so the duty to accommodate was never triggered, and that the decision to terminate employment was non-discriminatory as the employer had a believable alternative explanation for the termination.

239McIlravey is not helpful to this situation. Here, the respondent knew the applicant was claiming to be disabled; she presented a doctor’s certificate prior to the respondent’s decision to deem her to have quit. Additionally, there were at least two other factors that the respondent was aware of that might reasonably have supported the conclusion that the applicant had been struggling in the workplace for some time. First, Christie Whetham told Jacqueline Payne as early as the end of September, 2011 that the applicant is done, she is leaving, and she is loading her car with stuff. Second, one experienced food services employee had already gone on stress-related leave and the applicant had objectively been bearing the load of even greater staff shortages immediately prior to her submission of the medical note. The duty to accommodate was clearly triggered here unlike in McIlravey. Further, for the reasons stated above, I am satisfied that the applicant was in fact disabled during the relevant period. That was not the case in McIlravey.

240The respondent also submits that the evidence is insufficient to establish that the applicant’s medical condition is connected to her failure to attend work on November 28, 2011. It points to the evidence that it was Ian Budd and not the applicant who provided medical notes to the respondent on November 28, 2011; contrary to the statement in the Application, it was Ian Budd who obtained the note dated November 28, 2011; it is undisputed that the applicant wanted to quit, but Ian Budd told her not to because they had a wedding to pay for; there is no corroboration of the evidence of the applicant and Ian Budd to the effect that the applicant was even in Barrie on November 28, 2011; there is a discrepancy between Ian Budd’s evidence and his will-say statement with respect to who he spoke to on November 28, 2011 to obtain the second note; and the applicant’s statement on October 27, 2011 to Louise Foster that she had a ticket and was going on vacation anyway.

241It cannot be disputed that it was Ian Budd and not the applicant who provided the notes to the respondent and it was Mr. Budd and not the applicant who contacted the doctor’s office on November 28, 2011 to get the note reissued with a different date on it. However, those behaviours on the part of Ian Budd are equally consistent with the applicant’s evidence and narrative; namely, that she was unable to get out of bed on November 28, 2011. He had to do those things for her.

242There is also no dispute that the Application erroneously indicates the applicant visited her doctor again and got this second note on November 28, 2011. The applicant says this was a mistake. Similarly, there is no dispute there is a discrepancy between Ian Budd’s evidence and his will-say statement with respect to who he spoke to on November 28, 2011 to obtain the second note. He says he spoke to the receptionist; the will-say indicates he spoke to the doctor. Dr. Szelag says in all probability Mr. Budd spoke to the receptionist and the receptionist spoke to Dr. Szelag about it, which I accept as the likely truth as it is consistent with both Ian Budd’s sworn evidence and my understanding of how these things are usually done.

243Although I accept that it is open to the Tribunal to make adverse findings of credibility in part because of discrepancies between an applicant’s written documents and his or her testimony, I do not believe these minor discrepancies are a basis for doing so. See for example: Prado Pereda v. Trustworthy Services Inc., 2014 HRTO 383 at paragraph 98. The situation in Prado Pereda involved an applicant who could not explain substantial discrepancies within her own testimony which is not the case here.

244More importantly, credibility assessment should be done in the context of an examination of the consistency of testimony against all of the probabilities. As stated in the oft-cited Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at paragraph 11:

… 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.

245Here the applicant’s narrative as to what happened is logical and consistent with the medical evidence and the evidence of some of the respondent’s own witnesses. The workload was heavy, it caused the applicant increasing stress in the workplace, she developed an anxiety disorder and depression and when the workplace became even more stressful, she experienced an acute anxiety attack and could not get out of bed.

246In contrast, the respondent’s theory of events is illogical. It cannot be said the applicant invented a disability for the purpose of being able to take a planned but denied vacation as her diagnosis predates October 26, 2011, when her vacation was denied. If the applicant genuinely intended to quit it is something of a mystery as to why her husband would bother to drop off the sick notes.

247Essentially that leaves only the evidence with respect to the applicant telling Louise Foster on October 27, 2011 that she had a ticket and was going on vacation as planned anyway. As the applicant was not asked to refute, corroborate or explain this statement, I can only speculate as to why she said this. It may be as the respondent asserts that she did indeed have a different ticket for travel at that point in time; but it also may not be. Given the balance of the evidence detailed above and the rule in Browne v. Dunn, above, I am not prepared to find that the applicant and Ian Budd are not credible with respect to what happened on November 28, 2011, or that the applicant has failed to establish her absence from work is connected to her disability.

248I am satisfied that the applicant was a person with a disability, she requested accommodation from her employer in the form of a leave from work recommended by her doctor, and the respondent breached the procedural component of the duty to accommodate under the Code by failing to reasonably investigate or assess the applicant’s disability-related needs. I am further satisfied the applicant’s absence from work was connected to her disability. The respondent breached its substantive duty to accommodate the applicant’s disability by way of its letter of November 30, 2011 informing the applicant her position would be filled by someone else and its subsequent issuance of a record of employment prior to the end of the requested leave period saying she quit. I find that the respondent effectively terminated the applicant’s employment on November 30, 2011.

REMEDIES

249The relief claimed in the Application differs from the remedies sought in the applicant’s written submissions. In her written submissions, the applicant seeks $30,000 for compensation for injury to dignity, feelings and self-respect pursuant to s. 45.2(1)1 of the Code and $76,141.94 for losses arising out of the infringement of the Code by the respondent for lost wages and benefits for the period November 30, 2011 to January 23, 2014.

250Section 45.2(1)1 of the Code says:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

251The general principle is that the remedies awarded should put the applicant in the position she would have been in but for the respondent’s breach of the Code.

252With respect to the claim for losses arising out of the infringement, I agree with the respondent that the applicant is not entitled to lost wages and benefits for the period after March 31, 2012. I calculate her losses arising out of the infringement up to March 31, 2012 to be $5,760.38 less statutory deductions. The applicant is also awarded $25,000 for compensation for injury to dignity, feelings and self-respect. My reasons follow.

The Claim for Losses Arising from the Infringement

253On December 23, 2011, the applicant found a part-time job as a cook in Barrie. She was hired and started work early in January of 2012. That job ended in March of 2012 when the applicant’s employment was terminated.

254It is not uncommon for a claim for lost wages to end at the point where the applicant succeeds in finding equivalent alternative employment. The difficulty here is that this part-time job in Barrie was not equivalent employment. The evidence does not indicate that the applicant had available to her equivalent alternative full-time employment when she accepted this part-time position. As a result I am satisfied that the applicant is entitled to the difference between what she would have earned at Birchmere and what she did in fact earn up to March 31, 2012.

255With respect to the loss of this new job the applicant says she had a problem with hours; she had to work extra hours to get all of the jobs done. One day she was supposed to leave at 2:30 p.m. but the afternoon cook required her to stay so she did. She says she went to the union and lodged a complaint and the next day management told her it was not working out. The applicant did not file into evidence her record of employment from this position so it is unclear if the employer took the position she was terminated for cause or otherwise. The applicant says that the union steward told her she could grieve the termination but the applicant chose not to because of the additional stress involved. In 2012, the applicant earned $4,251.86 at this job.

256The difficulty with the applicant’s claim for wage losses after March 31, 2012 is that we do not know what would have happened if the applicant had grieved her job loss as the union recommended; more importantly, the applicant was suffering from major depression and an anxiety disorder prior to the respondent’s breach of the Code, so her desire to avoid the stress involved in grieving may not be related to the respondent’s breach – it may very well be related to her pre-existing medical condition.

257The language of the Code is clear; the loss must arise out of the infringement. The evidence here is simply insufficient to determine that the applicant’s wage loss after March 31, 2012 flows from the respondent’s breach.

258As a result of unemployment and underemployment the applicant received Employment Insurance Benefits in 2012 totalling $17,441.00. However, the weight of case law in this area supports the conclusion that unemployment insurance benefits received by the applicant must not be deducted from compensation for lost wages. (See: Liu v. Everlink Services Inc., 2014 HRTO 202 at para. 105.)

259The other source of income the applicant had in 2012 was from the respondent. The applicant made a claim to the Employment Standards Branch of the Ministry of Labour and the respondent was directed to pay the applicant four weeks’ termination pay and seven days’ vacation. In 2012 she received $4,558.85 from Birchmere.

260If the applicant’s employment at Birchmere had continued she would have earned $14,010.67 in salary less statutory deductions and received an RRSP contribution of $560.42. Subtracting the applicant’s earnings up to March 31, 2012 and the amount received from Birchmere after the end of her employment results in an amount for losses arising out of the infringement of $5,760.38 less statutory deductions.

261Pre-judgment interest shall run on the compensation for lost wages from February 1, 2012, which is an approximate mid-point in the period for which compensation for wages is being ordered, to the date of this decision. (See: Richards v. 905950 Ontario Ltd. o/a Storybook Childcare Centre, 2015 HRTO 517 at paragraph 30.)

Compensation for Injury to Dignity, Feelings and Self-Respect

262As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. As stated above, the intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory conduct. (See: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) (“Lane”) at para. 150.)

263Lane, above, also says (at para. 153):

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

264In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (“Arunachalam”), the Tribunal expanded on the factors to consider as follows (at paras. 51-54):

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

The Tribunal’s jurisprudence … has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination…

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.

265As is indicated in Lane, above, there is no fixed formula for the Tribunal to follow to assess a monetary compensation award (at para. 157), there is no limit to the amount that can be awarded, and the quantum must not be set too low because that would “trivialize the social importance of the Code” (at para. 152).

266With respect to the objective seriousness of the conduct complained of, here the applicant’s employment was terminated. That employment was relatively long-term; she worked for the respondent for five years less a month and a half.

267With respect to the particular impact on the applicant of the discriminatory conduct I would note here some of the factors I have considered:

• First, although the applicant continued in counselling for six months after she began, that counselling started not as a result of the respondent’s discriminatory conduct, but rather it was in response to the applicant’s anxiety and depression which pre-dated the respondent’s breach of the Code. The evidence is insufficient to establish it is more likely than not that but for the loss of employment that counselling would have ended earlier than it did.

• Second, although the applicant and Ian Budd say the applicant was devastated or shocked by the termination, Dr. Szelag’s clinical notes of her visit of December 20, 2011 indicate the applicant was feeling better. Her mood and concentration had increased. She was not crying as much. This was two or three days after the applicant received the November 30, 2011 letter saying she was deemed to have quit.

• Third, there is no dispute that the applicant wanted to quit her employment as early as late September, 2011.

• Fourth, although I am satisfied that Ian Budd said something to the effect that the applicant would never work in management again, the applicant’s evidence with respect to mitigation indicates she has continued to look for management positions.

• Fifth, I would observe that during the hearing before the Tribunal, the respondent’s continued belief and assertion that the applicant was inventing her disability and lying repeatedly triggered tears and upset on the part of the applicant.

268With respect to the principle enunciated in Arunachalam that equivalent facts should give rise to equivalent results, taking into account the unique circumstances of each case, neither party referred me to any decisions of the Tribunal in an effort to establish an equivalency argument.

269In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, the applicant was awarded $10,000 for compensation for injury to dignity, feelings and self-respect where the respondent failed to properly consider the applicant’s need for disability-related accommodation. But in Simpson, the applicant continued in her employment with the respondent.

270In Krieger v. Toronto Police Services Board, 2010 HRTO 1361, the Tribunal awarded $35,000 for compensation for injury to dignity, feelings and self-respect where the respondent failed to accommodate the applicant’s post-traumatic stress disorder and terminated his employment for reasons connected to his disability. However, that case involved a lengthy discriminatory period of suspension from work which exacerbated the impact on the applicant.

271In Lopetegui v. 680247 Ontario, 2009 HRTO 1248, the Tribunal awarded $20,000 where the applicant was unable to work as a result of injuries sustained in a car accident. He provided the respondent with medical documentation indicating he was temporarily unable to work and requested modified duties. The respondent refused to provide modified work and subsequently terminated his employment in part because he had taken a leave of absence without permission.

272Taking into account all of the above I find that an appropriate amount to award the applicant for compensation for injury to dignity, feelings and self-respect is $25,000.

273Pursuant to section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the applicant is entitled to pre-judgement interest on this amount from the date the cause of action arose which here is November 30, 2011, the date the respondent sent its letter informing the applicant it was deeming her to have quit her employment.

DECISION

274The Tribunal makes the following order:

a. Jacqueline Payne is removed as a personal respondent and shall be removed from the style of cause.

b. The respondent shall pay to the applicant $25,000 for injury to dignity, feelings and self-respect related to the respondent's infringement of s. 5(1) of the Code and pre-judgement interest on this amount for the period between November 30, 2011 and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.

c. The respondent shall also pay to the applicant $5,760.38 less statutory deductions for losses arising from the respondent's infringement of the Code plus pre-judgement interest on this amount for the period between February 1, 2012, and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.

d. The respondent shall also pay to the applicant post-judgment interest on the above awarded amounts from the date of this Decision calculated pursuant to s. 129 of the Courts of Justice Act.