HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joel Huard
Applicant
-and-
NCR Leasing Inc. o/a Aaron’s Stores
Respondent
DECISION
Adjudicator: Bruce Best
Indexed as: Huard v. NCR Leasing Inc. o/a Aaron’s Stores
APPEARANCES
Joel Huard, Applicant
Self-represented
NCR Leasing Inc. o/a Aaron’s Stores, Respondent
Jordan Lester, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).
Background
2The respondent operates a chain of retail stores that sell and lease furniture and appliances, largely on a “lease to own” basis. The applicant worked at the respondent’s store in Sudbury as a manager trainee.
3The applicant was off work for medical reasons starting in April 2014. He claims he kept his manager up to date on his status and provided medical notes, but that when he came to the store just prior to his expected return date he was told that his manager was no longer employed by the respondent, that the applicant was considered to have abandoned his job, and that his position had been filled. He also claims he was told he could reapply, but that given his previous injury the employer would be unlikely to rehire him.
4The respondent maintains that the applicant had abandoned his job, and denies the applicant was told he would not be rehired because of his injury. The respondent also took the position that the applicant had not established that he had a disability, and that he had refused appropriate accommodated work.
5The applicant testified on his own behalf. He also called Tammy Jette, a co-worker at the store, as a witness. The respondents called three witnesses; Tim Harris who was the human resources contact for the respondent at its home office in Thunder Bay; Al Pacan who was the applicant’s manager at most of the relevant times, and Ronny Mason, who was the director of operations for Ontario, and the person who the applicant met with on July 31, 2014, the day he learned that he had been terminated.
Preliminary Issues
6A case management conference call was held on January 4, 2016 in advance of the scheduled hearing date to address several procedural issues.
7First, the applicant had only checked off “Record of Offences” as the ground for his allegations of discrimination. However, from the narrative it was clear that the allegations were related to disability. The applicant indicated that the ground selected was an error, and the respondent did not oppose amending the ground to “disability”. The grounds of the Application were correspondingly amended.
8The applicant had indicated in his Application that he wanted to call Al Pacan, his manager during the relevant times, as a witness, but believed that he could not do so because he had learned that Mr. Pacan had been re-hired by the respondent. The applicant assumed Mr. Pacan would therefore be in a conflict of interest. The respondent had not indicated that it was intending to call Mr. Pacan as a witness.
9By Case Assessment Direction (“CAD”) dated December 30, 2015, I indicated that in my view Mr. Pacan’s evidence was central to the Application, as he was the applicant’s manager and appeared to be the applicant’s primary contact with the respondent at most of the relevant times. At the case management conference call, I directed that if the respondent did not intend to call Mr. Pacan, that it provide Mr. Pacan’s contact information to the applicant should he wish to summons him. Following the conference call, the respondent indicated that it would be calling Mr. Pacan as a witness.
Issues
10The issues in this case are as follows:
Did the applicant have a disability?
Did the applicant refuse modified work?
Was the applicant’s termination discriminatory?
Was the applicant told he would not be hired back because of a past or presumed disability?
11For the reasons that follow, I find that the respondent discriminated against the applicant by terminating his employment while he was on a disability leave, and by refusing to re-hire him because of a past or presumed disability. I also find that the applicant had not refused modified work.
Evidence AND findings
Beginning of Leave
12The applicant testified that he was hired by the respondent in November 2013 as a manager trainee. He was expected to be following in the general manager’s footsteps, and to perform other work as directed as it arose, including sales on the floor and working with customers, telephoning customers whose accounts were past due, and road calls and repossessions. He indicates that about 75% of this work was on the phone.
13On April 5, 2014, the applicant testified that he woke up in pain, and had trouble walking. He went to a walk-in clinic and was told he likely had a pulled muscle and obtained a note from a doctor excusing him from work until April 9, 2014. He assumed at the time that the problems with his leg would only last a few days. On April 9, however, his condition had not improved, and he again obtained a note from a walk-in clinic indicating he would be “off work for medical reasons” until April 16. On April 15, the applicant went to his family doctor, as his symptoms had still not improved, and that he was pretty much bedridden. She provided him with a further note dated April 15, 2016, which stated “The above patient has been assessed today. He has a medical issue which has prevented him from working. I suspect he will be able to return to work by May 5, 2014. If not, he should check back with me.” The applicant testified that his family doctor diagnosed the cause of his pain as a pinched nerve rather than a pulled muscle.
14Mr. Pacan was the general manager of the store, and the applicant’s direct supervisor and contact. Mr. Pacan testified that, when the applicant came in with the first note, he knew the medical issue was something to do with the applicant’s upper leg/groin. He testified that he asked whether the applicant needed the time off or whether he could do “light duty”, and that the applicant replied that he needed the time off to get better. Mr. Pacan described “light duty” as including floor sales, filing, and phone calls, but excluding road/repossession work.
15In cross examination, the applicant denied that he was ever offered light duties. He indicated that he would not be able to do work that involved walking or standing, including sales work at the store, but indicated that if he had been offered just phone work he could have done it. He also indicated that the culture of the store was such that employees were expected to be able to do 100% of their job.
16Mr. Pacan recalled only receiving medical notes on April 5 and 9, which covered the leave to April 15, 2014. Though he testified that he did not recall the note of April 15, which extended the applicant’s leave to May 5, he did make it clear that he continued to consider the applicant to be on a sick leave.
17The applicant testified that, just prior to May 5, 2014, he was in contact with Mr. Pacan and advised him that he was not yet recovered and was not able to return to work as planned. He testified that Mr. Pacan then told him that he would need to get a medical certificate from his doctor. He also testified that he spoke with Mr. Pacan in the second week of June 2014, who advised him to bring the medical certificate in to the store when he received it. Mr. Pacan agreed that he had spoken with the applicant several times in May and June, and that he would have told him he required a medical certificate in order to justify continuing the leave of absence.
18Mr. Harris testified that he was the de facto contact for human resources for the respondent’s stores in Ontario. His responsibilities included payroll, which included keeping track of employee absences. Decisions respecting hiring and/or termination would be made at the store level, but he would be notified in the case of a termination, as he would be responsible for issuing a record of employment. If an employee was going to be off for medical reasons, a doctor’s notes would normally be emailed to him by the general manager of a store. Mr. Harris recalled receiving the first three medical notes of April 5, April 9, and April 15, which justified the applicant’s absence up until May 5, 2014.
19He also recalled that at one point he noticed that the applicant was not on payroll, and contacted Mr. Pacan to find out his status. Mr. Pacan told him the applicant was not gone for good, and was expected to return within a month. Mr. Harris did not indicate when this conversation took place. The applicant testified that he was on payroll up until May 3, 2014, which was not disputed by the respondent, so the conversation between Mr. Pacan and Mr. Harris would have occurred sometime after this point.
20The only real inconsistency in the evidence respecting this period of time is Mr. Pacan’s testimony that he did not recall receiving the April 15, 2014 note. However, as Mr. Harris did recall receiving it, I find that it was in fact provided by the applicant, and was sent from the store to Mr. Harris. In any case, I accept that the applicant was keeping in contact with his manager, Mr. Pacan, and as such keeping the respondent up to date on his status.
Medical Certificate
21The applicant testifies that, following Mr Pacan’s instructions, he had a Service Canada Employment Insurance medical certificate filled out by his physician, which extended his leave to August 2, 2014. He testified that he brought the certificate to the store and gave it to Tammy Jette on June 17, 2014. He also testified that he subsequently submitted the medical certificate to Service Canada; the certificate submitted in evidence was date stamped by Service Canada on July 20, 2014. The respondent acknowledged in closing submissions that the certificate was obtained and submitted to Service Canada by the applicant; the only dispute is whether it was provided to the respondent.
22Ms. Jette testified that she had received a document from the applicant, which she claims to have scanned and sent to Mr. Pacan. Mr. Pacan, however, testified that he never received the June 17, 2014 medical certificate. Mr. Harris also testified that he had no recollection of having received it.
23The respondent made a significant issue of Ms. Jette’s credibility, based on the fact that she was engaged in separate legal proceedings with the respondent. Much of her testimony involved details of what happened with medical notes after the applicant dropped them off at the store. I find, however, that I do not need to rely on any of her evidence in order to determine the issues in this case.
24Mr. Pacan’s evidence is clear that he told the applicant that he needed to get a medical certificate. It is also clear from the documentary evidence, and acknowledged by the respondent, that the applicant did, in fact, obtain the certificate and submit it to Service Canada. The applicant had, as I found above, ensured that he kept Mr. Pacan up to date on his status, and in his cross examination he specifically noted that he recognized the importance of doing so. Given my findings that the applicant had been diligent in keeping the respondent informed of the status of his disability, whether by providing notes or keeping in contact with Mr. Pacan, it is, in my view, more likely than not that having obtained the medical certificate he would have provided it to the respondent. I accept the applicant’s testimony that he dropped the medical certificate off at the store with Ms. Jette on June 17, 2014. I do not need to rely on Ms. Jette’s evidence for this finding.
25I also accept that the medical certificate never made it to Mr. Harris in Thunder Bay; his evidence was forthright, and he did specifically recall seeing other documents, including several documents that Mr. Pacan could not recall. I have no reason to question his evidence. However, the fact that the certificate did not make it from the store to Thunder Bay does not mean the applicant did not drop it off at the store.
26In the end, I find that little turns on whether the respondent actually received the medical certificate. No specific action was taken against the applicant by Mr. Pacan because he did not receive the certificate. The evidence around the certificate was, nonetheless, significant in that it showed the applicant did follow up on Mr. Pacan’s request, and was continuing to take steps to keep the respondent informed of his status.
July 17, 2014 Return to Work Note
27The applicant testified that he had a text message conversation with Mr. Pacan on July 9, 2014, extracts of which were submitted as evidence, where he indicated that he would be returning on August 5. Mr. Pacan confirmed that he contacted the applicant by text message to inquire about his return, and further that he told the applicant that the respondent would need a note from his doctor indicating he was medically cleared before he could return to work.
28The applicant submitted a note from his family doctor, dated July 17, 2014, stating “The above patient is felt to be ready to return to work as of August 5, 2014.” The return date in this note was August 5, not August 2 as in the medical certificate, simply because August 2-4 was a long weekend when the applicant would not be working in any case. The applicant testified that he gave this note to Mr. Pacan on or about July 17, 2014.
29As with the April 15, 2014 note, the evidence again is inconsistent between Mr. Pacan, who denies receiving the note, and Mr. Harris, who recalled seeing it. Mr. Harris, being in Thunder Bay, would only receive documents sent to him by someone at the store. He also specifically indicated that he thought it came from Mr. Mason after he “took over”. Mr. Mason, however, denied having received any note from the applicant. Though it is not clear how the note got to Mr. Harris, I accept that the applicant provided the note to the respondent, and that the note was sent to Mr. Harris.
Termination of Employment
July 31, 2014 Meeting
30The parties agree that the applicant came into the store on July 31, 2014 and met with Mr. Mason.
31Mr. Mason started work for the respondent at the end of June 2014, when he became the director of operations for all the Ontario stores. He was at the Sudbury store for a routine visit at the end of July, and was told by Tammy Jette that applicant used to work at the store and wanted to come and see him. He contacted human resources in Thunder Bay, and learned that the applicant had been away from work for an extended period of time. The applicant claimed that he was contacted by Tammy Jette who told him Mr. Mason wanted to see him. Though the parties disagree as to whether it was Mr. Mason or the applicant who asked for the meeting, in my view nothing turns on this issue.
32The applicant testified that Mr. Mason started the meeting by asking him what his intentions were. The applicant told Mr. Mason that he was ready to return to work the following week, and that he was cleared for all duties by his doctor. Mr. Mason then told the applicant that Mr. Pacan had already released him in July and replaced with another employee, as they had nothing on file justifying his absence after May 5 and considered him to have abandoned his job. He also told the applicant that Mr. Pacan no longer worked for the company. Mr. Mason told him he could re-apply for a job if he wanted to, but that neither he nor the respondent would be prepared to have him back on the chance that he might re-injure himself.
33Mr. Mason’s version of the meeting was essentially the same, except that he maintains that the applicant told him at the meeting that he was not cleared medically to return to work. He testified that he told the applicant it wouldn’t be right for the company or for the applicant, to take him back, as if he was not healed he could get hurt again. He also claims that he told the applicant he could reapply for a position once he obtained medical clearance.
34There are two key issues in dispute with respect to what occurred at the meeting. First is whether the respondent was correct in maintaining that the applicant had abandoned his job. Second is whether the respondent told the applicant he would not be re-hired out of concerns that he might re-injure himself.
35With respect to the first issue, there is no question in my mind that the respondent had not terminated the applicant’s employment and had not considered him to have abandoned his position prior to July 31, 2014. This is clear from the evidence of Mr. Pacan, who testified that the applicant had not been terminated and that “he was still on the books” right up until the day Mr. Pacan stopped working for the respondent, which was only days before the July 31 meeting. It is also clear that, even if the respondent is correct that there was no medical note on file justifying the applicant’s absence past May 5, that the respondent had received other information from the applicant after that date, primarily through his contact with Mr. Pacan, which it accepted to justify his continued absence.
36Second, I do not accept Mr. Mason’s testimony that the applicant said he did not have medical clearance. Mr. Pacan confirmed that he told the applicant he would need a note from his doctor clearing him to return to work. The applicant obtained such a note. Mr. Harris recalled receiving the July 17 note. The applicant had already obtained the medical clearance requested, and had given it to the respondent. It does not make any sense that he would then tell Mr. Mason that he was not cleared to return or did not have a note. I accept the applicant’s testimony that he told Mr. Mason on July 31 that he was cleared to come back to work.
37The conversation about his injury was, therefore, more likely than not about the respondent’s reluctance to re-hire him because of his prior injury, and not about obtaining medical clearance. I also accept the applicant’s evidence that Mr. Mason told him he would not be rehired because of the possibility that his injury might recur.
38In light of the circumstances described above in paragraphs 35 and 36, I prefer the applicant’s evidence over that of Mr. Mason. I accept that the respondent was aware that the applicant was cleared to return to work, and that nonetheless the respondent refused to permit him to do so, instead telling him that he had in fact been terminated a month earlier.
Analysis and Decision
39In order to establish a breach of the Code, the applicant must be able to establish a prima facie case of discrimination, at which point it turns to the respondent to provide a non-discriminatory explanation for its actions.
40In order to establish a prima facie case, the applicant must show that
a) he is a member of a group protected by the Code;
b) he was subject to adverse treatment, and
c) there is a connection between the adverse treatment and the ground of discrimination.
See, Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, and Peel Law Association v. Pieters, 2013 ONCA 396, at paras 55-59.
Did the applicant have a disability?
41The respondent disputes that the applicant has established that he had a “disability” for the purposes of the Code. The definition of disability in s.10(1) of the Code states:
“disability” means,
any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
42Section 10(3) of the Code further states:
Past and presumed disabilities
(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.
43The applicant did not call any doctor as a witness, and the only evidence respecting the medical reasons for his not going to work from April 2014 forward was through his own testimony and the medical notes provided.
44The applicant testified that the first two doctors from the walk-in clinics diagnosed his condition as simply a “pulled muscle”, and that his family doctor subsequently diagnosed it as a “pinched nerve”. The respondent argued that given the lack of evidence as to the extent of the injury, the applicant has not been able to establish that his injury was sufficiently serious to amount to a “disability” under the Code. It further argued that the medical notes were insufficient to establish a disability, in that they provided no information about the nature of his disability or restrictions beyond stating he needed to be off work for “medical reasons”.
45The respondent relied on Roseblade v. Randy River, 2011 HRTO 363 (“Roseblade”), at para 50, for the proposition that a note saying “medical reasons” was insufficient to establish that the applicant had a disability. I note, however, that in Roseblade, the Tribunal nonetheless held that the applicant did have a perceived disability for the purposes of the Code, given that the employer indicated that it understood the nature of the reason for the leave, never questioned the legitimacy of the reason for the leave, and required a doctor’s note before it would permit the employee to return to work. See Roseblade, paras 55-56.
46In Hill v. Spectrum Telecom Group Ltd., 2012 HRTO 133, the Tribunal stated at para 25:
It is not the precise nature of the disability or the duration of work absence which defines whether a disability is covered under the Code. A work injury may not be severe or long-term; yet the employer may think that it will interfere with business operations and profitability and, on that basis, dismiss the employee. It is this perception and consequent treatment which defines the injury as a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.
47I accept the applicant’s evidence that the injury effectively kept him from working at any job which would require him to be walking or standing, and, as the restrictions continued for several months, this was clearly more than a minor ailment. Though his doctor did not testify, the documentary evidence indicates that she was prepared to recommend that he be off work for an extended period of time, and was prepared to sign a medical certificate so he could apply for employment insurance sickness benefits.
48As of July 31, the applicant had recovered, and was cleared to return to work. The respondent, however, indicated that they would not have him back because of the risk that he may reinjure himself. As s.10(3) of the Code indicates, discrimination on the basis of a past or presumed disability is also contrary to the Code. Even if the respondent accepted that the applicant had a disability prior to August 5, its refusal to take him back after that date was based on an assumption that the disability may recur in the future, and as such would still be discriminatory.
49The definition above includes “any degree of physical disability…caused by bodily injury.” I am satisfied that the applicant has established that he had a disability for the purposes of the Code which justified his leave of absence. I further find that the respondent’s refusal to allow him to return to work was based on a past or presumed disability for the purposes of s.10(3) of the Code.
Did the applicant refuse modified work?
50The respondent also takes the position that, even if he had a disability, the applicant failed to meet his obligations under the accommodation process by refusing modified work when Mr. Pacan offered him “light duty”. It notes that the applicant acknowledged that his injury would not have prevented him from doing phone work.
51There are several difficulties with the respondent’s position. Even accepting Mr. Pacan’s evidence that he offered the applicant light duties, he also indicated that he nonetheless agreed to accommodate the applicant by permitting him to go on a medical leave. Also, though the applicant may have felt he could do some work, the medical notes clearly indicated that he should be off work altogether.
52The respondent would have been entitled to require additional medical information or details of the applicant’s restrictions at the time, or at any time during the applicant’s leave. If it had done so, and the applicant had not complied, there would have been a basis to argue that he had not co-operated in the accommodation process. This, however, did not happen. There was a request for accommodation, which was granted. The applicant met his obligations in the accommodation process. I find that the respondent cannot justify the applicant’s termination on this basis.
Was the applicant’s termination discriminatory?
53It is clear from the evidence of Mr. Pacan that he considered the applicant to be on a sick leave from April 5, 2014 until August 5, 2014. Mr. Pacan was the applicant’s manager and point of contact with the respondent right until he stopped working for the respondent, which, as noted, was only days before the applicant’s meeting with Mr. Mason. Though there was some dispute between Mr. Pacan and the applicant as to the frequency of their communication, or whether the notes were received, Mr. Pacan’s evidence was unequivocal that the applicant had kept him up to date on his status, that he had not been terminated, and that he had not abandoned his position. The respondent’s evidence was that staffing issues, including issues around a leave of absence, were the responsibility of Mr. Pacan as the general manager of the store.
54Given Mr. Pacan’s evidence, the respondent’s position that the applicant had failed to keep the respondent up to date on his status and abandoned his job cannot succeed, and also cannot provide a non-discriminatory basis for the decision to terminate his employment.
55The termination occurred because Mr. Mason concluded, wrongly, that the applicant had abandoned his position, and because the respondent was unprepared to take him back due to his prior injury and the risk of future risk to the respondent. Such a termination constitutes discrimination for the purposes of s.5 of the Code both directly on the basis of disability, and on the basis of past or presumed disability under s.10(3) of the Code.
56The applicant has a disability. He was subject to adverse treatment in being terminated from his employment, and there is a clear link between his termination and his disability. The respondent has not been able to establish a non-discriminatory basis for its actions. For these reasons, I find that the applicant has established that his termination and the unwillingness to re-hire him were contrary to the Code.
Remedy
57The applicant seeks $40,000 as a remedy, including both lost earnings and damages for the pain and suffering caused by the respondent’s actions.
Lost Earnings
58The applicant’s evidence, which I have accepted, is that he was medically cleared and available to return to work with the respondent the week of August 5, 2014. He also indicated that, for reasons unrelated to this Application, he would have been unable to work after February 28, 2015.
59The respondent submitted that any lost wages owing in the circumstances of this case be limited. It notes that he had only been an employee for a short period of time. It also suggested that the applicant may have been dismissed for other reasons, noting that he had been subject to discipline during his employment.
60Though, as noted in Pilon v. Cornwall (City), 2012 HRTO 177 at para. 30, it may be appropriate to recognize the consequences of losing a long-term job in assessing damages, the fact that the employee was only employed for a short period is not a relevant factor in determining the amount of lost income under the Code. Rather, the purpose is to put the applicant into the position he would have been if the discriminatory actions had not occurred. See Piazza v. Airport Taxicab (Malton) Assn., 69 O.R. (2d) 281, 1989 CanLII 4071 (ON CA), and Ontario Human Rights Commission v. Impact Interiors Inc., 1998 CanLII 17685 (ON CA), and Whale v. Keele North Recycling, 2011 HRTO 1724 at para. 58, judicial review dismissed, Keele North Recycling v. Human Rights Tribunal of Ontario, 2013 ONSC 268 (Div. Ct.).
61With respect to discipline, the applicant acknowledged that he had been given “counselling” in February 2014, once after a dispute with a co-worker with whom he admitted he had ‘butted heads’, and a second for being late for work. These counselling incidents, however, were several months before the applicant began his disability leave, and there was no evidence from the respondent that it was considering terminating the applicant based on these incidents. I find that there is no evidence to support the suggestion that the applicant’s employment would have been terminated for these or any other non-discriminatory reasons.
62If he had not been terminated, the applicant would have returned to work for the respondent for the 30 weeks from August 5, 2014 to February 28, 2015, and is entitled to compensation for lost earnings for that period. The applicant was paid $613 per week. The respondent has already paid the applicant one week’s termination pay. The respondent is therefore required to pay to the applicant an additional 29 weeks wages, which I calculate as $17,777, plus 4% vacation pay, less applicable statutory deductions. The applicant is also entitled to pre-judgment interest of 0.5% in accordance with s.128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, calculated from November 17, 2014, the mid-point between August 5, 2014 and February 28, 2015.
Compensation for Injury to Dignity, Feelings and Self-respect
63The Court of Appeal has recently considered the compensation for a discriminatory termination in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (“Strudwick”), at paras. 52-77, adopting the principles set out by the Tribunal in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (“Arunachalam”) at paras 52-54:
The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
64Strudwick set out, at para 62, some of the relevant factors noted in Sanford:
the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
the ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
the complainant’s vulnerability;
objections to the offensive conduct;
the respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;
the degree of anxiety the conduct caused; and
the frequency and intensity of the conduct.
65Objectively it is always serious for an employee to lose their job because of a discriminatory reason. The applicant had done what he had been asked during his leave in terms of providing notes and keeping the company up to date on his status, but was nonetheless terminated, with minimal notice, just prior to his return.
66Subjectively, the applicant testified that he expected to move into management and stay with the company for a long time. He felt betrayed by the company when, at the end of the leave, he was terminated. He also felt that it was unfair was told that he could not return to work because the respondent thought he might reinjure himself. Being on a disability leave put him in a more vulnerable position. The applicant also testified that the termination caused him anguish, and that he hit “rock bottom”.
67Some Tribunal decisions have provided a higher award of compensation where the impact on the applicant was more significant because of events leading up to a discriminatory termination. See Budd v. 783720 Ontario Inc., 2015 HRTO 825 (“Budd”), referred to with approval by the Court of Appeal in Strudwick at para 73 where the Tribunal ordered $25,000, and Lopetegui v. 680247 Ontario, 2009 HRTO 1248 where the Tribunal ordered $20,000.
68In other cases, the Tribunal has ordered a higher amount of compensation based on the particular vulnerability of the applicant at the time of termination and the ongoing impact. In Torrejon v. 1147335 Ontario, 2010 HRTO 1513 (“Torrejon”), judicial review dismissed, 1147335 Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978 (Div. Ct.)), the Tribunal ordered $20,000 for an employee who was terminated when she told the respondents she had just been diagnosed with cancer, and where the medical evidence established the devastating impact of being told she was not being allowed back to work, and the lasting impact that the termination had in contributing to her ongoing anxiety and depression.
69In Vetricek v. 642518 Canada, 2010 HRTO 757, the Tribunal awarded $15,000 as compensation in a similar situation where the Tribunal found the employer terminated the employee out of concerns that he may reinjure himself; see para. 65.
70In the present case, I find that most of the Sanford factors did not arise. Unlike Lopetegui, there was no earlier discriminatory conduct by the respondent, who acted appropriately and in accordance with the duty to accommodate during the applicant’s leave. This was a single, though significant incident. Though the applicant did indicate he was upset and felt betrayed, the evidence also did not support compensation in the range of a case such as Torrejon. Though he did testify as to the ongoing impact, his evidence on this point was brief and lacking in specifics. The compensation awarded, therefore, are based primarily on the objective impact that an individual would face following a discriminatory termination.
71I also note that many of the decisions on which I am relying on for guidance are a number of years old, and take notice of the fact that a $20,000 award in 2009 is not the same as a $20,000 award in 2016. To ensure that “cases with equivalent facts lead to an equivalent range of compensation”, as noted in Arunachalam at para. 51, it is also appropriate to take into account the effect of inflation as a factor in determining the appropriate award.
72I find that $17,000 is an appropriate amount to award for having been terminated while on an approved disability leave of absence, and for being told that he would not be hired back because of the chance that he may become injured again.
Order
73The respondent shall, within 30 days of the date of this decision, pay to the applicant:
$17,777.00 in respect of lost earnings, plus 4% vacation pay, less statutory deductions. Prejudgment interest on this amount is payable at the rate of 0.5% pursuant to section 128 of the Courts of Justice Act, from November 17, 2014 to the date of this Decision. Post-judgment interest shall be payable on this amount at the rate of 3.0% pursuant to section 129 of the Courts of Justice Act, commencing 30 days from the date of this Decision.
$17,000.00 as compensation for injury to the applicant’s dignity, feelings, and self-respect. Post-judgment interest shall be payable on this amount at the rate of 3.0% in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, commencing 30 days from the date of this Decision.
Dated at Toronto, this 25th day of August, 2016.
“Signed By”
Bruce Best
Vice-chair