HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Prothero
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services o/a the Ontario Provincial Police, Fred Bertucca, Laura Young and Ted Clark
Respondents
DECISION
Adjudicator: Jay Sengupta
Indexed as: Prothero v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Timothy Prothero, Applicant
John Yach, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services o/a the Ontario Provincial Police, Fred Bertucca, Laura Young, and Ted Clark, Respondents
Christopher Diana, Counsel
Introduction
1This Application alleges discrimination and harassment with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant also alleges that he experienced reprisal contrary to the Code. The respondents deny discrimination and seek dismissal of the Application.
2During the course of the hearing into this matter held over a number of days, the Tribunal heard from the following witnesses on behalf of the applicant:
Timothy Prothero;
Troy Bishop, an employee of Great West Life;
Dr. Wendy McComb, the applicant’s family physician;
Kevin Adams, co-worker;
Chuck Baird, co-worker;
Troy Fernandez, an employee of Great West Life.
3The respondents called the following witnesses:
Rick Ameloot, sergeant and occasional supervisor of the applicant;
James Briggs, staff sergeant who conducted the Workplace Discrimination and Harassment Policy (“WDHP”) investigation;
Kathryn Ogiltree;
Lee-Anne McFarlane;
Ted Clark, personal respondent, sergeant and former direct supervisor of the applicant;
Michael Guilfoyle, inspector at the Alcohol and Gaming Commission of Ontario (“AGCO”);
Fred Bertucca, personal respondent and chief superintendent of the ACGO;
Laura Young, personal respondent and human resources advisor.
4The Applicant also called the following reply witnesses:
Stanley David Crane, former chief superintendent of the AGCO;
Silva Minassian;
Laura Young, personal respondent and human resources advisor;
Patricia Farrington.
5For the reasons outlined below, this Application is granted, in part, as against Ted Clark and the respondent employer. The Application is dismissed as against Laura Young and Fred Bertucca.
the law
6The relevant sections of the Code are reproduced below:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
10.(1) In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
11.(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
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:
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.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
the facts
7The parties led a great deal of evidence. I have not reproduced all of it and have indicated where the parties disagree about key events that are of relevance to my decision. I have, however, considered all of the evidence tendered by the parties in allowing this Application, in part.
8The respondent organization is the applicant’s employer. The applicant is currently an inactive employee of the respondent organization. He has been away from the workplace since December, 2010. He has been employed by the Ontario Provincial Police (the “OPP”), part of the Ministry of Community Safety and Correctional Services (the “Ministry”) in a variety of roles since 1989.
9Just prior to his departure from the workplace, he worked as a network administrator in the Investigation and Enforcement Bureau of the AGCO, where he was responsible for network and computer systems used by the Bureau.
10The personal respondent, Ted Clark, is a sergeant with the OPP and the manager to whom the applicant was reporting when he left the workplace in December, 2010.
11The personal respondent, Laura Young, is a human resources advisor employed by the respondent organization who provided support and advice to managers involved in the applicant’s case.
12The personal respondent, Fred Bertucca, is the chief superintendent of the Bureau; formerly superintendent. At the material time, he was responsible for all aspects of the administration of the Bureau and, in that capacity, was involved in the management of the applicant’s case.
13The applicant was engaged in a large project involving the replacement of a number of IT resources within the Bureau in the latter part of 2010, which he described as a “refresh” of IT equipment. He testified that during that time he was also concerned about an audit being conducted, which he viewed as a possible attempt to undermine him.
14The respondents agree that the applicant had a large project underway at that time. They do, however, dispute that the audit was anything other than a routine one designed to ensure that the Bureau could withstand a true audit.
15The applicant testified that at the time he was working on the refresh of equipment, he had been experiencing the return of medical problems he had occasionally dealt with in the past. He described having problems with digestion, frequent panic attacks and sleeplessness. He says he translated every pain in his chest area as a heart attack and said the pain was intense enough to lose his breath. He did not know with certainty what was causing the return of the problems, but speculated that it could have been personal issues he was dealing with at home or overwork associated with the refresh project.
16On December 22, 2010, when he was close to completing the project, the applicant met with his supervisors. He says he was already in a bad state that morning as he had not slept the night before and had come into the office early.
17One of the supervisors involved in that meeting, Inspector Guilfoyle, testified that the applicant was reassured during that meeting that the audit was not related to his job performance. The applicant says that he, feeling overwhelmed, broke down during that meeting. He left work that day hoping the Christmas break would improve things. As his health did not improve, he met with his physician shortly afterwards and her advice was to take some time off work to recover before he returned to the workplace.
18To that end, the applicant’s physician, Dr. Wendy McComb, provided him with a note for his employer, dated December 29, 2010. The note indicated that:
Due to illness, Mr. Prothero will be off work for the next month, to be reassessed at that time.
19The applicant provided that note to his manager, the personal respondent, Ted Clark, on December 30, 2010.
20The respondents testified that they took the view that the medical note did not provide any information relating to the applicant’s limitations or restrictions. Consequently, Ted Clark sent him a request on the same day asking for additional information by January 7, 2011.
21The applicant received the letter on January 5, 2011, and given the holiday season, he could not meet the deadline set out in the letter. He got an extension of time by speaking to Ted Clark. The applicant sent a further note from his doctor dated January 12, 2011. It read as follows:
Mr. Prothero will continue to be off work for health reasons – to be reassessed in 4 weeks.
22At the same time, Dr. McComb also filled out the form sent out by the respondent employer. In that document, in response to a question about the applicant’s limitations and restrictions and his prognosis for return to work to his position, she answered that he was “limited by decreased concentration, should improve with treatment.” In response to a question about whether she could identify any accommodations that could assist her patient in returning to work, she provided the following response:
Right now – no accommodations available, however in the future, the situation could probably be improved if he didn’t have to spend so much time commuting daily.
She provided an anticipated return to work timeline as ”aiming for mid-Feb 2011.”
23In the meantime, Ted Clark sent the applicant a further letter dated January 10, 2011, in which he stated that a letter dated December 30, 2010 had been sent to him and the attached form had not been returned by January 7, 2011, as requested. It went on to say that the information was “essential to managing (your) STSP benefits” and that “medical information is required to manage (your) sickness benefits.” The letter provided a new deadline of January 20, 2011, and stated that “without medical documentation to support your absence STSP benefits may be terminated.”
24Following submission of the materials from his doctor, the applicant had a conversation with Ted Clark which caused him great upset. The applicant testified that the personal respondent Ted Clark told him that he had discussed the applicant’s situation with Fred Bertucca and Laura Young, and that they could not see anything wrong with him.
25The applicant further testified that Ted Clark asked him “what this decreased concentration thing was” and that “maybe (the applicant’s) doctor did not know how to fill out forms.” He said Ted Clark told him he wanted him to come back to work on January 24, 2011, that he could possibly extend the time off to the January 31, 2011, but after that would have to cut his pay off.
26He said the impact of this conversation on him was devastating. He was extremely concerned about losing his income and had a panic attack while on the phone. When Ted Clark pressed him for an answer, he cut the conversation short and hung up. The applicant’s evidence was that the stress caused by the letter and conversation caused significant and immediate health consequences for both him and his wife.
27Ted Clark denied this version of events and disputes that he threatened the applicant with loss of income. His evidence is that the initial note provided was insufficient as it provided no indication of the applicant’s limitations or restrictions.
28The applicant testified that after the troubling phone call, he immediately phoned Laura Young. When he connected with her, he told her about what had been said to him. She tried to reassure him that his income was not in jeopardy and asked that he get his doctor to fill out the form sent to him and return it. He recalled her saying that the information from the doctor needed to be more detailed.
29Laura Young’s evidence was that when the applicant sent the first medical note, she was approached by Ted Clark for assistance in managing the applicant’s absence. She described him as “insistent” and intent on setting shorter timelines for document delivery than she was comfortable with.
30She testified that it was the practice of the organization to send out requests for additional information about limitations and restrictions if a person was absent for more than just a few days, so she did not disagree with Ted Clark’s decision to send the forms out for the applicant’s doctor to fill out.
31She explained her view that the employer sought to have information about the limitations and restrictions in order to plan for an employee’s eventual reintegration into the workplace.
32When asked about the January 10, 2011 letter, she testified that she had assisted Ted Clark with the original draft and he had subsequently made additions to her draft. She had not seen the letter in its final form before it went out. She did not agree with the statement in the letter that without the additional documents the applicant’s pay (STSP benefits) could be terminated.
33She also recalled having a conversation with the applicant shortly after that date and sending an email recommending that his pay not be cut off. She spoke to Mike Guilfoyle, as she was concerned about the way in which events were unfolding and, given the applicant’s positive employment history and record, to urge a more collaborative approach to ensure he would recover and return to work.
34The applicant continued to provide notes and forms from his doctor. In total, Dr. McComb provided six handwritten notes between December 29, 2010 and March 30, 2011. In addition, she provided three completed forms between January 12, 2011 and June 12, 2011 at the request of the respondents. All of the latter were in response to requests sent by the respondent employer’s staff.
35The applicant understood Ted Clark to say that his employers did not believe he was off work due to illness. He believes that the respondents’ unwillingness to accept that he had a medical problem that was keeping him away from work worsened his illness and made recovery harder.
36He gave evidence that he heard from friends and colleagues that Ted Clark was making cryptic and disparaging remarks about him when people asked where he was and when he would be returning. The applicant’s co-workers, Chuck Baird and Kevin Adams, both testified that when they enquired after him, were told by Ted Clark that “Tim needs some Tim-time”, a comment that one of them described as “not flattering.”
37The applicant filed a WDHP complaint in which he alleged that he had experienced harassment. In his view, the investigation into the complaint was badly handled and did not resolve any issues and returning to work in an environment where he would have to deal with Ted Clark was impossible for him.
38The WDHP complaint was found not to be substantiated in May, 2011. The applicant was upset by the results and took issue with the fact that the investigator did not interview key witnesses such as Laura Young and Fred Bertucca. The applicant filed subsequent WDHP complaints concerning others in the Bureau, which were also found not to be substantiated.
39While the WDHP complaint was being investigated, Mike Guilfoyle took over the management of the applicant’s sick leave issues. At around the same time, Ted Clark transferred to another location and the applicant was told he would not be reporting to him upon his return to work.
40The respondents point out that by the time the WDHP investigation concerning Ted Clark had concluded, the applicant had been told he was not reporting to Ted Clark any longer. The reporting relationship had been changed and his new supervisor would be someone who had been involved in managing the applicant’s disability related leave.
41Laura Young, in her testimony, indicated that if some of the references to interpersonal conflict in the medical forms regarding limitations and restrictions were in respect of Ted Clark, his departure from the workplace was seen by the respondent employer as relevant to the applicant’s willingness and ability to return to the workplace.
42By this time, the applicant and his physician had suggested the possibility of him working from a location closer to home. Initially, the language used to describe his limitations was involving “concentration” or “concentration impairment” and “difficulty managing interpersonal conflicts” and “difficulty managing conflict/stress.” The suggestion made by Dr. McComb was that the applicant “work locally, i.e. either at home or at headquarters” (Orillia) or “at the local office” (Orillia), and then “with Orillia as his home base”, rather than in Toronto at the Bureau’s main location.
43None of these proposals were met with agreement. The respondent employer took the view then and over the next few years that the applicant’s job was at a particular location. Given his job, the respondent employer said that it was necessary that he be present most of the time where the server and its users are located, which is in Toronto.
44Further, the respondent employer took the position that in order to provide IT assistance to people in the Bureau, the applicant would need to be in the main office location where most employees from the field would come for assistance. Finally, the applicant’s job also required travel to locations around the province to address IT issues, which could not be done if he needed to remain at a location close to his home.
45By approximately July of 2011, the applicant had exhausted his short term sick leave. By August 10, 2011, his doctor pronounced him unable to return to work at that time and requested psychiatric consultation and follow-up. She also later referred him to a psychologist to continue to receive treatment.
46Following difficulties with initially receiving additional income support from the respondent employer when he applied for and was denied a leave of absence with pay, but granted a leave of absence without pay, the applicant began receiving LTIP benefits from Great West Life (the “insurer”), effective June 30, 2011. These benefits were approved by the insurer to continue until January 22, 2012.
47In January, 2012, there were difficulties with the return to work process, following which LTIP benefits continued to be paid on an administrative basis at the request of the respondent employer until an IME conducted in April 2012 resulted in the termination of the applicant’s LTIP benefits effective April 25, 2012.
48According to the documentary record, the insurer took the view that the applicant was able to perform his own occupation and, therefore, no longer qualified for benefits under the plan.
49The insurer indicates that although the IME supports the applicant’s contention that he is unable to perform his own job due to an “unresolved workplace situation”, in its view, he is able to perform within his occupational field in an alternative environment. He is engaged in separate litigation on that issue with the long term insurance provider in a different forum.
50The respondent employer has sent a number of communications to the applicant indicating that, since that time, he is considered to be absent from the workplace without approved leave. The respondent employer has also requested by way of letters dated February 5, 2013 and February 7, 2013 that the applicant take part in an independent medical assessment (“IME”), which the applicant declined at the time, and has continued to decline to participate in.
51He points out that earlier in the process, in June 2011, he had suggested, with the assistance of his union, that he undergo an IME and the documentary evidence shows that Laura Young declined to order one on the basis that it may support the applicant’s request that he be permitted to work from a location closer to his home. As a result, he takes the view that he should not now be required to undergo an IME.
52He has submitted a report from his psychologist that he is unable to return to work in any capacity.
53The situation with his employer has reached and remained at an impasse and, as indicated above, the applicant also has litigation pending against the insurer in a separate forum.
decision
Credibility
54In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the 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…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added].
55The applicant bears the onus of establishing on a balance of probabilities that he is a person with a disability as defined in the Code, that he disclosed a disability-related need for accommodation, that the respondent failed in its duty to take steps to ascertain what accommodation was necessary to accommodate him and to accommodate him to the point of undue hardship, and, finally, that he experienced harassment for reasons relating to his disability and reprisal contrary to the Code.
56I will address the allegations of harassment and reprisal first.
57In his pleadings and during the course of the hearing, the applicant argued both that he experienced harassment when he first went off work and that he was reprised against contrary to the Code. He makes allegations of harassment and reprisal against all three personal respondents and the respondent employer.
Harassment
58Harassment is described under the Code as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. While I conclude that aspects of Ted Clark’s conduct in this matter amount to harassment and that the respondent employer’s actions incur liability in this regard, I find that the applicant has not met his burden in establishing that either Laura Young or Fred Bertucca engaged in harassment against him.
59I accept the applicant’s version of what transpired between him and his supervisor, Ted Clark, in January 2011 at the beginning of his leave for the reasons set out below.
60It is not at all clear to me that a plain reading of the policies of the respondent employer required that additional information or clarification was necessary at the time it was requested, on the very day the initial note from Dr. McComb was given to the respondents saying that he would be away from the workplace for 30 days for medical reasons and reassessed at that time.
61I note that the respondent employer’s human resources advisor testified that clear and detailed information about “limitations and restrictions” was necessary and it was considered useful to manage time off work due to illness and facilitate an eventual accommodation process upon an employee’s return to the workplace. The Tribunal has held in the past that it is open to an employer to make such inquiries in the face of unclear information.
62However, assuming without finding that such clarification was necessary and given that it was being sought in accordance with established human resources policy in the particular workplace, the manner in which Ted Clark conducted his inquiries amounted, in my view, to harassment.
63An unnecessary number of letters were sent immediately upon the commencement of the applicant’s leave, with unreasonable deadlines set for compliance not in accordance with the employer’s own policies, including one which threatened to interrupt the applicant’s income source, despite clear documentation that showed he was clearly off work for medical reasons and under a doctor’s care, as well as advice to the contrary from Laura Young.
64I prefer the applicant’s version of events as to the conversation that he says took place between him and Ted Clark. The conduct he described was clearly also concerning enough to Laura Young, the human resources adviser, that she took the step of consulting with others in the Bureau to ensure that they were made aware of the situation and asking them to consider whether to have someone other than Ted Clark manage the applicant’s leave from work. It is also clear that Ted Clark sent a further letter after Laura Young urged a less aggressive approach.
65Adding to the flurry of correspondence containing requests for documents within shorter timelines than provided for in the employer’s own policies immediately upon the request for leave, and what I have found to be a threat to terminate the applicant’s pay while on sick leave, the applicant alleges that Ted Clark also made disparaging remarks about him to his co-workers.
66Although Ted Clark denies having done so, I accept the accounts of Chuck Baird and Kevin Adams, neither of whom were particularly close friends of the applicant’s or had conflict themselves with Ted Clark, either before or since the events in question. They gave clear and cogent evidence of the statements made to them that were, in my view, demeaning to the applicant and minimizing the legitimacy of his having taken time off work to deal with an illness.
67All of this leads me to conclude that the applicant was subjected to a course of comment and conduct by Ted Clark that was known or ought reasonably to be known to be unwelcome during the first few months he was away from work in early 2011.
68In addition, I also find that the respondent employer bears some responsibility in this regard. It had knowledge at the time that the events were occurring that the requests being made of the applicant were exceeding those required in its policies and a human resources advisor was informing senior managers of her concerns regarding the non-compliance with the policy as well as the conduct being reported to her by the applicant. As a result of its failure to take meaningful and timely action despite having knowledge that ought to have prompted action, the respondent employer effectively condoned the conduct that I find amounted to harassment.
69The purpose of the exception in section 46.3(1) is only to exempt an employer from the deemed liability set out in the provision itself. It does not exempt an employer from liability for the conduct of its managerial personnel, including any failure to respond adequately to harassment that it knows is ongoing. See Goodyear Canada Inc. v. U.S.W.A., Local 189 (2002), 107 L.A.C. (4th) 289 (Ont. Arb. Bd.)
70In addition, the Tribunal has held that the question of whether an employee is a directing mind of a corporation does not depend solely on his or her relative rank within the organization. It is sufficient that the harassing employee is in a position to make decisions on behalf of the company seriously affecting the complainant at the time the harassment occurs. See McKinnon v. Ontario (Correctional Services) (1998), 1998 CanLII 29849 (ON HRT), 32 C.H.R.R. D/1 (Bd. Inq.) and Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Bd. Inq.)
71Although both personal respondents were involved in those discussions and each had some knowledge of Ted Clark’s actions, I do not find that their conduct leads to a finding of personal liability against them.
72In making a finding that the applicant experienced harassment, I am clearly not accepting the results of the WDHP process undertaken by the respondent employer in respect of the applicant’s first complaint, primarily against Ted Clark.
73I note that although a WDHP investigation took place, when confronted with conflicting versions of what took place during critical interactions between the applicant and Ted Clark, the investigator appears merely to have noted the difference between the two versions and then declined to make an assessment as to which of them he accepted as credible.
74In respect of the applicant’s allegations of harassment at the hands of the remaining two personal respondents and his other WDHP complaints or inquiries about making WDHP complaints against Laura Young and Mike Guilfoyle, I am not persuaded that the actions of the personal respondents, Laura Young and Fred Bertucca, in their numerous interactions with the applicant meet the definition of harassment.
75While there was disagreement between them as to how his disability leave was being managed and other employment-related issues, there is no evidence that either Laura Young’s or Fred Bertucca’s words or actions were vexatious in nature and were known or ought to have been known to be unwelcome.
Reprisal
76I am also unable to conclude that the applicant experienced reprisal as defined in the Code. To successfully make out a claim of reprisal, the applicant must demonstrate that he experienced reprisal for:
claiming or enforcing a right under the Code;
instituting or participating in proceedings under the Code; or
refusing to infringe the right of another person.
77In addition, unlike other protections in the Code, in order to prove on a balance of probabilities that the respondents reprised against the applicant, the applicant must show that the respondents “intended” to reprise against him: Jones v. Amway of Canada, Ltd., [2002] O.J. No. 1504 (Ont. Sup. Ct.).
78On the basis of the evidence led, I am unable to conclude that the actions of the respondent employer or any of the personal respondents amount to reprisal. There is simply no credible evidence before me to establish that any of the respondent’s employees interacting with the applicant since he left active employment intended to reprise against him for claiming or enforcing his rights under the Code.
79Although the applicant has pointed to his interactions with Ted Clark and subsequent interactions involving managers and human resources personnel during the accommodation process and leading up to the litigation in this matter and that involving his long term disability insurer as evidence of reprisal, nothing in those encounters or in the documentation presented over the course of the hearing persuade me that the applicant has established any intent to reprise against him on the part of the respondents.
80In particular, the applicant focussed on an email exchange involving Fred Bertucca about the possible adverse tax consequences to the applicant of the car assigned to him being classified in a different way. The applicant argues use of the phrase “let’s keep that in our back pocket” in that email exchange implies that the parties to the email exchange are considering ways to cause him a disadvantage and retaliate against him for reasons relating to his disability and that the email is proof of intention.
81I do not agree with the applicant’s position on this point. The email exchange simply amounts to a decision not to raise the issue at that time. It also appears no negative consequences associated with the use of the car in question were ever visited upon the applicant. As such, it undermines his theory and I find it does not constitute proof of an intention to reprise against him.
82In addition, the applicant has, in some of his materials, attempted to characterize the respondents’ unwillingness to accept his assertions as to the extent and nature of his disability and the necessary accommodations he has sought as harassing behaviour or reprisal contrary to the Code.
83He has also suggested that some of the more recent attempts to retrieve equipment or question whether he has improperly accessed information from the employer’s IT network for personal purposes are evidence of reprisal.
84I do not accept this characterization. There were valid explanations provided for steps taken to recover equipment and to follow up on unauthorized access to the IT network that are not related to the applicant’s attempts to enforce Code-protected rights.
85Accordingly, I find that the applicant has not established on the evidence provided that he was subjected to reprisal or the threat of reprisal as defined under the Code.
Person with a Disability
86I have no difficulty concluding on the evidence before me, including the information from the applicant’s doctors, that he was a person with a disability as defined by the Code. During the material time he has established that during the material time he had a “mental disorder”.
87It is also clear that the applicant made several requests for accommodation to the respondent employer. Initially the accommodation sought was time off work to recuperate from his illness. He subsequently sought to work from a different location; initially full-time and later on a temporary basis to begin his transition from long-term disability leave back to work.
Accommodation
88The duty to accommodate in respect of employment is not a free-standing obligation under the Code. It arises only pursuant to sections 11, 17 or 24 of the Code where an employee is disadvantaged because of a prohibited ground of discrimination under the Code.
89Section 4.2 of the Ontario Human Rights Commission’s Policy And Guidelines On Disability And The Duty To Accommodate succinctly explains how the duty to accommodate disability-related needs arises under the Code:
Section 11 of the Code, combined with section 9, prohibits discrimination that results from requirements, qualifications, or factors that may appear neutral but which have an adverse effect on persons with disabilities. This is often called “adverse effect,” or “constructive” discrimination. Section 11 allows the person responsible for accommodation to demonstrate that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship.
Section 17 also creates an obligation to accommodate, specifically under the ground of disability. Section 17 states that a right is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right. However, this defence is not available unless it can be shown that the needs of the person cannot be accommodated without undue hardship.
90The Code prohibits both direct and adverse effect discrimination. It does not require accommodation in the absence of discrimination. Thus, an applicant who claims that his employer has breached its duty to accommodate him is really claiming that he has experienced direct or adverse effect discrimination because of disability, and that his employer cannot justify the discrimination by showing that the applicant could not be accommodated without undue hardship.
91As is always the case under the Code, the applicant bears the initial onus of establishing a prima facie case of discrimination. Only at that point does the inquiry shift to whether the respondent employer fulfilled its duty to accommodate the applicant to the point of undue hardship: Ontario Human Rights Commission v. Simpsons-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28.
92Once the duty to accommodate has been triggered, the respondent employer has both procedural and substantive obligations. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship.
93However, the duty to accommodate places obligations on the employee seeking accommodation as well. An employee who seeks workplace accommodation has a duty to cooperate in the accommodation process by providing his employer with a reasonable amount of information about his physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship. As the Supreme Court of Canada stated in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (S.C.C.), [1992] 2 S.C.R. 970 at p. 31:
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
(…) When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill 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.
94In the circumstances of the present case, the applicant’s arguments change depending on the time period in question.
95For the time period immediately following his departure from the workplace, in early 2011, his argument appears to be that for reasons related to his disability he could not attend at his workplace in Toronto. His argument is that the requirement that he attend at the workplace, a neutral rule, caused him to be disadvantaged for reasons relating to his disability. I find, therefore, that he has made out a prima facie case of discrimination that that triggers the accommodation process.
96The suggestions from Dr. McComb in early 2011 when he was contemplating a return to work within the first few months following his departure from the workplace were that the situation could “probably be improved if he did not have to spend so much time commuting daily”, that he should work “locally”, from his home in Orillia or from the headquarters or local OPP office in Orillia. The limitations and restrictions necessitating the above were difficulties in concentration, managing interpersonal conflict and managing conflict or stress.
97The psychiatrist with whom the applicant consulted in October 2011, Dr. Rodway-Norman, opined that he should be able to recover and that when he did, it would be “ill-advised for him to return to the same administrative niche/workplace environment” and suggested “an alternative placement.” Although he did not provide evidence at the hearing, his report appears to suggest that the issue concerning him was not an inability to travel to the workplace but the damaging effect of the particular work environment on the applicant’s health.
98The difficulty in the position adopted by the applicant is that key aspects of the applicant’s work required his presence in the Toronto office where the server is located and where the people requiring IT assistance came for assistance.
99In addition, if the applicant’s difficulty was that he was unable to travel due to problems with concentration or experiencing panic or anxiety symptoms while driving, the applicant’s inability to travel would also impact on his ability to function in the other major task he is tasked with; namely, travelling to various locations within the province to assist with the IT needs of parts of the Bureau operating outside Toronto.
100If the applicant’s inability to attend at the workplace was the result of the difficulties he was experiencing with Ted Clark, the fact is that he had been permanently transferred by the time the applicant was in a position to return.
101The Code provides that a person’s right not to be discriminated against on the basis of disability is not infringed by reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
102Before finding that a person is incapable of performing the essential duties or requirements attending the exercise of a right because of disability, the Tribunal must be satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs.
103Although the applicant argued that he could do many of the tasks that are essential to his job remotely given the nature of the enterprise, I am satisfied that proximity to the servers and being available for day-to-day interactions in person with the users of the IT system were critical, and it would not have been possible for the applicant to perform those essential tasks relating to his job while working from a location other than the Bureau’s main office. I am satisfied on the evidence that his stated inability to drive or travel safely would have made it impossible for him to conduct the tasks central to the job.
104There is no suggestion that the Code would require that the respondent employer remove or alter the essential tasks associated with the job. To require that it do so would amount to undue hardship.
105Accordingly, I find that the applicant has not established that the respondents discriminated against him on the basis of disability by failing to accommodate him in 2011 when he still contemplated a return to work but requested the ability to do so remotely.
106Subsequently, following his application for LTIP benefits and then termination from same, the applicant has clearly stated that he is now unable to return to work in any capacity. The applicant is not suggesting that he could return to work with accommodation. Given this assertion, it is difficult to see how an accommodation process is triggered.
107Accordingly, I find that the applicant has not established that the respondents discriminated against him on the basis of disability by failing to accommodate him.
Remedy
108It follows from the findings outlined above that the applicant is entitled to a remedy as against the personal respondent, Ted Clark, and the respondent employer on whose behalf Ted Clark was acting at the material time for breach of his Code rights in respect of the harassment he has suffered.
109The Tribunal’s remedial authority is set out in section 45.2 of the Code as follows:
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:
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.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the Application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
110An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of compensation include humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.
111In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 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.
112The harassment the applicant experienced had a severe impact on him given when it occurred and his emotionally fragile state at the time that it took place. The harassment extended beyond the physical workplace and caused the applicant to be fearful and apprehensive about losing his family’s sole source of income even though he had provided medical support for not being at work for reasons relating to his disability.
113The applicant was dealing with the complications arising out of his own, as well as his wife’s, medical issues at the time the harassment occurred. His description of having to be seen on an emergency basis at the hospital as a result of the turmoil and his wife’s medical difficulties are an indication of how deeply affected he was by the treatment. I find it reasonable that the respondent’s actions caused him a high level of anxiety, upset and trauma.
114The applicant has requested that the Tribunal award punitive damages and legal costs. The Tribunal’s remedial authority is not exercised in a punitive manner but rather with a view to making the person who has experienced discrimination whole to the extent possible. With respect to the latter request, the Tribunal has not made Rules regarding the awarding of costs and, accordingly, I have no authority to make such an award.
115Although the applicant has alleged that the conduct of the respondents is the cause of his present level of disability as support for a request for significant amounts of general and special damages, he has not established that the conduct that has amounted to an infringement of his rights under the Code is the sole cause of all his difficulties and warrants the relief he seeks.
116There is also no basis in the circumstances of this case for the broad systemic remedies for future compliance that he seeks. However, in the circumstances of this case, I find it appropriate to order the personal respondent, Ted Clark to complete the human rights online course offered by the Ontario Human Rights Commission.
117In my view, the type of discrimination the applicant has experienced falls closer to the high end of the spectrum with respect to seriousness. The Human Rights Tribunal of Ontario’s awards in the middle to high end of the spectrum for all cases have ranged from $10,000 to $50,000 based on the criteria and factors set out in Arunachalam, ADGA Group Consultants Inc., and Sanford, above. I find that the facts of this case support an award of monetary compensation for injury to dignity, feelings and self-respect of $25,000, to be payable by the organizational respondent. I also find it appropriate to order compensation as against the personal respondent, Ted Clark, in the amount of $2,500.
118In the result, I order:
a. The Application is dismissed as against the personal respondents Laura Young and Fred Bertucca.
b. The Application is allowed in part as against Ted Clark and the respondent employer, the Ontario Provincial Police.
c. Within 60 days of the date of this Decision, the personal respondent, Ted Clark, shall pay the applicant $2,500 and the respondent employer, the Ontario Provincial Police, shall pay the applicant $25,000 as monetary compensation for injury to dignity, feelings and self-respect, along with pre-judgment interest, at the rate of 1.3%, calculated from the time of filing the Application, in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
d. In the event that the respondents fail to make the payment described above within 60 days of the date of this Decision, the respondents shall pay post-judgment interest at the rate of 3.0%, in accordance with section 129 the Courts of Justice Act.
e. Within 60 days of this Decision, the respondent Ted Clark will complete the online Human Rights training module offered on the website of the Ontario Human Rights Commission.
Dated at Toronto, this 18th day of November, 2016
“Signed by”
Jay Sengupta
Vice-chair