Budd v. McDougall, 2016 HRTO 984

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Budd

Applicant

-and-

Celia McDougall and the Estate of Roy McDougall

Respondents

DECISION

Adjudicator: Kathleen Martin Date: July 26, 2016 Citation: 2016 HRTO 984 Indexed as: Budd v. McDougall

APPEARANCES

Elaine Budd, Applicant Self-represented

Celia McDougall, Respondent Self-represented

The Estate of Roy McDougall, Respondent Celia McDougall, Representative

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of disability and age. Originally, the Application also alleged reprisal but the applicant withdrew that claim. See 2013 HRTO 93 at para. 13.

2The applicant alleges that she was discriminated against on the basis of disability when she was not accommodated by the respondents in accordance with recommendations made by an ergonomist from the Workplace Safety and Insurance Board (WSIB). The applicant also alleges that she was discriminated against on the basis of age when she was told by the respondent, Ms. McDougall, that if old people can’t do the work, it’s time for “young blood” to come in.

3The Application had a lengthy procedural history before the hearing on the merits began. This history is set out in a series of interim decisions and case assessment directions. For purposes of this decision, a brief overview of some of that history is provided where relevant to the issues to be determined.

4Initially, the Application was filed against the applicant’s employer, Craiglee Nursing Home (“Craiglee”), and two individuals: Roy McDougall, an administrator of the nursing home and one of the two owners of Craiglee; and Celia McDougall, the daughter of Mr. McDougall, who was also an administrator of the nursing home during the relevant time and secretary of the corporation. Craiglee did not file a response. Instead, the Court-appointed Receiver of Craiglee filed documentation indicating that Craiglee had gone into receivership and that a Court-ordered stay was operative. The applicant then sought to withdraw the Application against Craiglee and on November 2, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 1978, granting the applicant’s request to withdraw the Application against Craiglee, finding that the stay did not apply to the individual respondents and issuing various directions regarding the continuation of the proceeding against the individuals.

5A hearing was held to determine whether the Application should continue against the individual respondents. By Interim Decision 2013 HRTO 93, I determined that the Application would continue to be processed against both respondents although indicated that my decision to continue the Application against both respondents was not a final decision as to whether or not either is liable for the alleged discrimination should discrimination be proven, or whether if found liable, will result in a remedy against them.

6In the lead up to the commencement of the hearing on the merits, the issue of the respondents’ access to documents was addressed given that the McDougalls were no longer employed by and/or owned Craiglee (the home having been purchased by a different company). The respondents submitted that they did not have documents in their possession.

7In Interim Decision 2014 HRTO 172, the Tribunal ordered Craiglee to produce documents or information contained in the employee file of the applicant concerning her injury and any accommodation and certain payroll records during the period requested by the McDougalls. The then current administrator of Craiglee advised the Tribunal that no documentation could be located with respect to this period.

8In a conference call on February 27, 2014, the Tribunal canvassed with the parties whether the documentation ordered may be available from other third parties or otherwise. The respondents indicated they intended to contact the Receiver to ascertain whether it could produce any relevant documents. At the same time, the respondents stated that they did not believe the WSIB file would assist them and therefore were not asking that it be produced by the applicant. The Tribunal reminded the respondents that they may request a further production order from the Tribunal to assist in obtaining documents.

9No request for documentation was made until the hearing on the merits. During the hearing, Ms. McDougall sought access to the WSIB file the applicant had in her possession. The hearing was adjourned to provide the respondents with access to the WSIB file and ultimately, the respondents produced various documents from the file as exhibits.

10Ms. McDougall was the only respondent in attendance during the hearing and made representations on behalf of both herself and Mr. McDougall. In the course of the proceeding, Mr. McDougall died. As a result the title of this proceeding was amended to include the Estate of Roy McDougall instead of Mr. McDougall.

11In responding to the merits of the Application, Ms. McDougall denied the allegations. While acknowledging that the applicant had a disability and was unable to perform her full range of duties, Ms. McDougall submitted that the applicant was accommodated by being provided with two chair(s) and a tilt board as recommended by the WSIB. Ms. McDougall disputed that the age-related comment was made.

12The issues in this case are:

i. Was the applicant discriminated against because of disability and/or age.

ii. If the applicant was discriminated against, should either of the respondents be liable.

iii. If liable, what remedy should be ordered against the respondents.

13I have concluded that the applicant was discriminated against based on age and disability (the latter during the period June 9, 2008 to March 31, 2009). I find that Ms. McDougall is liable for the discrimination found and a remedy is ordered against her.

The Hearing on the Merits

14The hearing on the merits commenced on March 18, 2014. There were six days of hearing that took place on various agreed to dates in 2014 and 2015. The applicant and Ms. McDougall testified. In addition, the applicant called three co-workers and her union representative as witnesses and Ms. McDougall called the environmental manager of Craiglee as a witness for the respondents.

15Ms. McDougall had indicated her intention to call a number of additional witnesses but at the hearing only called the environmental manager. Ms. McDougall sought to rely on written statements in lieu of calling certain of the proposed witnesses. I address my consideration of her requests below.

16There were 89 exhibits filed consisting in large part of documents from the applicant’s related WSIB file. The applicant filed some documents from the file and Ms. McDougall filed a number of other documents from the WSIB file after her review of it. For the most part, both parties agreed that the chronology of events as represented in the various memos to file was consistent with their recall of events.

17With respect to the documentary material there were certain anomalies that warrant mention. The applicant submitted an extract from the ergonomist report and Ms. McDougall submitted a copy of the entire report that she obtained from the disclosure from the applicant’s WSIB file. In addressing the report below, I have had regard to the latter version, which was marked as Exhibit 53. Another anomaly is that the various Functional Abilities Forms exhibited appeared incomplete insofar as although the forms appeared to reflect the applicant’s abilities and restrictions, only two pages were filed of what appeared to be four-page documents in each case. Notwithstanding the form of the documents, no party suggested that this was materially significant for the issues in this case.

18It was apparent from the evidence that there was animosity between the applicant and Ms. McDougall and both tended to stray in their evidence from the relevant issues to other disputes such as their interactions over union issues. I only address the relevant evidence in this decision.

The Evidence

19Much of the evidence was not in dispute including the basic chronology of events. Where the evidence differed was in respect of whether or not the respondents provided any accommodation in the applicable period and whether the reason the applicant was kept out of the workplace for the over seven-month period prior to her return to work in April 2009 stemmed from a refusal to accommodate (the applicant’s position) or alternatively, the applicant’s failure to cooperate in accepting what the respondents viewed as reasonable accommodation coupled with performance concerns (the respondents’ position). The parties also differed in their evidence as to whether or not Ms. McDougall made a negative comment related to the applicant’s age.

20I accept the following summary of the evidence as my findings unless indicated otherwise. The contested evidence is addressed in the findings and analysis section below.

Background

21At the time of the hearing, the applicant has been employed by Craiglee since February 4, 1977 as a full time registered practical nurse (“RPN”). Craiglee is a long-term care facility offering different levels of care to its resident population.

22At the time of the allegations underlying the Application, Craiglee was owned and operated by Roy McDougall and his wife. The respondent Celia McDougall is the daughter of the owners and at the relevant time was an administrator of the Craiglee. While the respondent Mr. McDougall was also identified as an administrator on some of the documents in the early part of the relevant period, Ms. McDougall testified that his role was limited. Ms. McDougall testified that her father had a knee injury and did not return to Craiglee after January 2008. Ms. McDougall stated, she was “hands on” and her father as owner and operator was limited to doing some consulting administration in the period following January 2008.

23Prior to being injured, the applicant’s regular shifts were 12 hours per day commencing either at 7:00 a.m. or 7:00 p.m. The applicant earned $22.59 per hour. The applicant worked 78.7 hours every two weeks. The applicant’s duties included administering medication, changing dressings, documenting medical care and going on doctor’s rounds.

The Applicant’s Injury

24On December 17, 2007, the applicant injured her neck and left shoulder at work. While the parties gave evidence about how the injury occurred, I do not find it relevant for purposes of this decision. There is no dispute that the injury, however sustained, occurred at work and resulted in a claim for and entitlement to loss of earnings benefits being paid by the WSIB. The injury also led to the applicant having restrictions when she returned to work.

25The applicant remained off work and unable to work until March 2008. During this period, the applicant was in receipt of loss of earnings benefits from the WSIB.

The Applicant’s First Return to Work

26The applicant was cleared for a return to work with restrictions (depending on the form, the proposed start date was March 10 or 14, 2008). The latter Functional Abilities Form identified restrictions in lifting, bending related to the neck and shoulders and pushing. In the additional comments section, the health professional stated:

Ms. Budd should avoid prolonged flexion of her neck and a stretch break should be provided every 15 - 30 min. She should also avoid any lifting/carrying/pushing /pulling more than 5 kg currently. The hours at work can be progressed to 6 hrs/day starting on March 24th for 3 weeks and we will reassess at that time.

27Apart from some minor changes, these restrictions continued to be reflected in the various FAF’s for the relevant period of the allegations.

28The applicant and the then assistant director of care signed an agreement on modified hours of four hours per day and modified duties for the weeks of March 10, 2008 and March 17, 2008. The correspondence submitted in the hearing indicated that the applicant would increase her hours to six hours per day in the weeks of March 24 and March 31, 2008.

29The applicant returned to work with the reduced schedule and modified duties. The applicant’s duties included processing physician orders, answering the telephone, feeding residents in the dining room and doing computer care plans and assessments.

30The applicant testified about various difficulties that she encountered following her return to work. The applicant stated that when she was going through the charts she had to stand for a long time. The applicant stated that she developed problems with her legs and that they were swelling.

31The applicant also testified that on one occasion, Ms. McDougall made a comment about her age. The applicant testified that she was working on the first floor east wing standing at the desk going through charts, and Ms. McDougall was coming down the hall. The applicant asked Ms. McDougall about finding her a place to sit as she was having to stand a long time. As Ms. McDougall walked away she commented: “if old people can’t do the work, it’s time for young blood to come and do the work.” The applicant testified that two “PSWs” (I presume they are personal support workers) overheard the comment as when Ms. McDougall left, they asked her how old she was and they laughed and said that the applicant could not work there. The applicant stated that they were making fun of the situation. Based on the Application, the applicant would have been 57 years old at the time.

32The applicant also testified that she experienced headaches and nausea which she attributed to her head having to be tilted downward while doing charting. The applicant testified that on a couple of occasions, she had to leave work and go to her doctor because she was throwing up. The applicant testified that her doctor stated that she could not hang her head down because of the injury to her neck and shoulders.

33The applicant also testified that when she was doing charting, the then assistant director of care, Ms. Myles, would say that because the applicant was only there for four hours she needed to work, which the applicant interpreted as suggesting that she was taking too many breaks.

34Finally, the applicant testified that she received complaints when she took the charts from the west side to the east side to work (which she did because the bell ringing that she heard from the desk on the west side was also giving her headaches). Ms. Myles called her to direct the applicant to the west side, saying that she was sorry but Ms. McDougall wanted her to work on the west side. The applicant states that she now thinks that the headaches she got from the bell ringing were connected to her injury.

35Ms. McDougall did not challenge this evidence about the difficulties the applicant experienced with the exception of the age-related comment. Ms. McDougall denied this occurred.

36On April 1, 2008, a mediation was held with a mediator of the WSIB. Neither party offered evidence about the reasons for the mediation. The applicant and Ms. McDougall signed a Return to Work Mediation Agreement. Among other things, the agreement outlined Craiglee’s agreement to continue to accommodate the applicant’s condition by offering the modified duties and to have an ergonomist review the duties and review the applicant’s workstation and duties and make any necessary recommendations to accommodate her restrictions. As well, the agreement included the following provisions:

• The accident employer agrees to allow Ms. Budd to take rest breaks as needed.

• The accident employer agrees to make any necessary changes to Ms. Budd’s workstation and duties as recommended by the WSIB Ergonomist.

• The accident employer agrees to accommodate Ms. Budd on modified duties for 6 hours per day as recommended by her treating physician in her medical note dated March 31, 2008.

37A few days later, on April 4, 2008, the applicant was told to stay off work until the assessment was completed. In a telephone message, Catherine Myles, the then assistant director of care, advised the applicant that Craiglee had decided that in order to prevent further injury or place the applicant at risk of harm, she should remain at home pending the assessment. The information was confirmed by letter to the applicant which also stated that the WSIB was in agreement with the decision and would pay the applicant loss of earnings until she is able to return to work. The letter was copied to Ms. McDougall and the WSIB.

38In her evidence, the applicant did not appear to dispute the legitimacy of this decision. When asked why this decision was made, the applicant testified that she did not know the concern but acknowledged that she had difficulty doing the job and was getting headaches and vomiting.

39Ms. McDougall testified that she was consulted about the decision to put the applicant off work on April 4, 2008 and that she agreed that it was a very good idea to get an ergonomist assessment.

40The applicant’s last day of work was April 4, 2008.

The Ergonomist’s Assessment

41The WSIB ergonomist conducted a site visit on April 29, 2008 for the purpose of addressing whether the physical demands of the current modified duties exceeded the applicant’s medical precautions and/or could aggravate her neck and left shoulder injuries and, if necessary, to provide accommodation instructions. The ergonomist met with the applicant and Ms. Myles. On May 1, 2008, the ergonomist issued a report concluding as follows:

It is the opinion of this Ergonomist that accommodations are required in the Modified Duties job to ensure it is suitable. Without accommodation, the physical demands of the job (mainly reaching and neck flexion while completing paperwork and feeding) exceed the worker’s respective medical precautions and could contribute to an aggravation of her neck and/or left shoulder injuries. The recommendations section of this report provides accommodation suggestions.

It is the opinion of this Ergonomist that the pre-injury job of Registered Practical Nurse is not entirely suitable based on the current medical precautions. The main task of concern is dressing changes and treatments, as well as reaching, potentially high forces, and neck flexion associated with the job. The Recommendations section of this report provides accommodation suggestions to help improve the RPN job.

42The ergonomist made six recommendations. For purposes of this decision three are relevant given the applicant’s claim in the Application. The recommendations state in part:

1. Provide height-adjustable stools in the dining room. This will allow the worker to adjust the stool to the proper height based on the resident they are feeding….It may also be beneficial to have castors on the stool…Another possibility is to feed certain residents while standing (mainly those in geri chairs or higher wheelchairs). This would also greatly reduce or even eliminate any reaching required.

2. Provide adjustable chairs at the work stations. An adjustable chair will allow Ms. Budd to adjust it to the optimal height in order to ensure that her shoulders are maintained in neutral working postures. Some chair examples are shown in the table below.

It is important that Ms. Budd properly adjust the chair for her body. This includes adjusting it the appropriate height and adjusting the back rest height so the lumbar part of the backrest is supporting her low back. The armrests should also be properly adjusted. The chair will come with an instruction booklet which will provide guidance on how to adjust the chair…

Since Ms. Budd works at a variety of workstations (East or West wing, on either the first, second, or third floors), chairs could be provided at each work station, or a chair on each floor (and then the worker would move it to the assigned workstation as needed). The employer and Ms. Budd should discuss which option would be best. …

4. Provide a “tilt board”. Paperwork, charts, and other hardcopy documents can be placed on this board. Since the board is tilted forward, the amount of neck flexion required by working will be reduced. This in turn may help to alleviate some of Ms. Budd’s neck symptoms since she indicated that looking down aggravates her neck. Some examples of such boards are provided in the table below.

43In the report, the ergonomist gave examples of the type of equipment being recommended along with the costs. The cost of the stools was $210.00 or $349.00; the chair examples were $475.00 or $530.00; and the tilt board examples were $129.00 or $250.00.

44The ergonomist report was forwarded to Catherine Myles, the then assistant director of care for the respondent, on May 2, 2008.

45The applicant was away on a vacation from late April until the first week of June 2008.

The Response to the Report

46Ms. McDougall testified that she recalled the ergonomist’s report and was familiar with the recommendations. Initially, Ms. McDougall stated that she believed that the applicant returned to work in late May and that she offered the applicant a black chair at this time which was adjustable and came from behind Ms. McDougall’s desk (although she conceded she could not remember specifically). At a later point in her evidence, after reviewing documents, Ms. McDougall testified that the applicant was on holiday at the time the report came out and was not scheduled to return to work until June 9, 2008.

47This latter evidence is consistent with the documentation exhibited in the hearing. A memo dated June 3, 2008 in the WSIB file reflects that the “accident employer” was informed that the applicant was going to return to work on June 9, 2008, but stated that the accident employer wanted a recent “FAF” clearing the applicant or giving restrictions. The memo reflects that the accident employer would be giving the worker an FAF to be completed and setting up a return to work meeting. When reviewing the document, Ms. McDougall testified that this memo was consistent with her recall of what transpired although she did not recall if a return to work meeting was scheduled.

48The applicant testified that she received no communication from Craiglee until a letter dated June 5, 2008. The letter authored by the Assistant Director of Care of Craiglee stated in part:

I have received your current Functional Abilities Form dated July 2008, as per my request on Tuesday June 3, 2008. The restrictions remain the same as the Functional Abilities Form dated March 28, 2008.

Upon comparing the Ergonomics Report dated May 1, 2008 with your current restrictions; Craiglee Nursing Home Ltd. is unable to meet the requirements for you to return to modified duties.

Should your physical status improve please contact me to arrange your return to regular duties.

49The letter was copied to the two individual respondents, as well as the applicant’s union representative and the WSIB adjudicator.

50When asked about the letter dated June 5, 2008, Ms. McDougall testified that what was problematic was that Ms. Budd wanted a new chair and not an existing chair.

51I address my findings in respect of this period below.

The Applicant’s Second Return to Work

52The applicant returned to work in late July.

53According to the applicant, she received a telephone call from Mr. McDougall asking her to return to work. The applicant testified that Mr. McDougall advised the applicant that he wanted her to come back to work and that she should go to her doctor and obtain the form that says what her limitations are. After the applicant hung up from her call with Mr. McDougall, the applicant received another telephone call from Celia McDougall. Ms. McDougall advised the applicant that all of the registered staff had walked out of the building and that she wanted the applicant to return to work and that if she would return to work she would get her a “chair”. The applicant stated that she told Ms. McDougall about the call with her father, Mr. McDougall, and that she would be going to her doctor.

54Ms. McDougall did not recall speaking to the applicant but neither did she dispute the applicant’s evidence. While not being able to recall the specific conversation, Ms. McDougall testified that she was “definitely involved” in getting the applicant back to work as the administrator needs to be directly involved in a return to work.

55The terms applicable to the applicant’s return to work were set out in a letter dated July 29, 2008, signed by Mr. McDougall. The letter stated that the applicant would return for six hours per day based on the “Functional Abilities Form for Safe Return to work provided on July 28, 2008”. The applicant agreed to the terms of the letter by signing it on July 29, 2008.

56The applicant initially testified that she did not have the underlying Functional Abilities Form being referenced but later produced a form dated July 25, 2008, which I presume is the document provided to Craiglee on July 28th. This form contained almost identical restrictions to the applicant’s first return to work in March including restrictions in lifting (up to 5 kilograms), bending/twisting of the neck and shoulders and limited pushing/pulling with her arms. In the comments section on abilities and restrictions, the doctor stated that the applicant should avoid prolonged flexion of her neck, have a stretch break every 15-30 minutes and work 6 hours per day “because ‘chair’ not available at work place”.

57The applicant and Ms. McDougall gave evidence about what accommodation, if any, was provided to the applicant. Both witnesses appeared to be unclear about dates and gave somewhat different accounts at different points in their evidence although the variation was more pronounced with Ms. McDougall’s evidence.

58The applicant initially stated that she was not provided with a stool, a chair or tilt board as recommended by the report. She then qualified her evidence indicating that there was a tilt board at the desk that “Jim” (the maintenance person) had set up but that Jim told her that he would need to get more material to make a different board as it was too small for the chart. The applicant stated that Jim said that he would have to talk to Ms. McDougall to get more material. The applicant testified that she was not given anything after that.

59The applicant testified that there was a black chair that had been “assigned” to the third floor for “modified” work. The applicant stated that she was not specifically given this chair and that all of the staff used it. The applicant testified that this chair was not adjustable and described it as unstable, as when she attempted to sit in it, it went forward.

60Ms. McDougall testified that Craiglee was unable to buy the equipment recommended in the report. She stated that they looked into the cost of chairs for each workstation and that to purchase six chairs would cost $3,000.00, which they could not afford. Ms. McDougall testified about Craiglee’s financial difficulties indicating that the Ministry claws back money not spent and that as of June 2008, Craiglee was $4,000,000 in arrears to the Ministry. Ms. McDougall stated that they also owed money for employee tax to Revenue Canada, WSIB and various companies they bought food from. Ms. McDougall stated that they were paying wages during this period.

61Ms. McDougall testified that the applicant was provided with a black ergonomic chair which had been behind her desk and was adjustable. Ms. McDougall gave different evidence about when the chair was provided – initially stating it was provided in March/April 2008 and then suggesting it was late May, although she acknowledged she could not remember. Later in her evidence, Ms. McDougall testified that there were two chairs provided – first, a green chair where the height could be adjusted; and later, a black chair that was adjustable with an “OBUS type back”. Ms. McDougall’s explanation for suddenly recalling there was a green chair was “it just occurred to me”.

62Ms. McDougall testified that a tilt board was also provided after the report, which was made by the maintenance person at Craiglee. Ms. McDougall was not certain when the board was made but estimated that it was a month after the report to coincide with the applicant’s return to work.

63Ms. McDougall also testified that she provided a stool after the report, although she could not recall when it was provided. Initially, Ms. McDougall stated that she “believes” a stool was purchased. Later in her evidence, Ms. McDougall testified that they made a stool with wheels for the applicant but that she was not happy with it.

64Ms. McDougall testified that no concerns were identified about the accommodation until after August 13, 2008.

65During her evidence, Ms. McDougall sought to put in a one-page statement of a former Director of Care, Jacqueline Tudor. The statement referred to Ms. Tudor having been there from December 2008 to February 2010, and that during her employment the applicant was provided with a chart stand and an ergonomically designed office chair. The statement was dated September 27, 2013. The applicant objected and I allowed that objection, indicating that if Ms. McDougall wished to rely on the statement and its contents, Ms. Tudor should be called as a witness. Given that the statement was not prepared contemporaneously, I determined I was not inclined to give the document any weight on such a central issue in the case in the absence of testimony.

66Carvel Burrell, the former environmental manager at Craiglee and the former spouse of Ms. McDougall, testified about the chair and tilt board. Mr. Burrell testified that he directed Jim (in maintenance) to build a tilt board and described its construction (made from “2 by 2” and plywood with wood on the bottom front). Mr. Burrell testified that it was painted white although he had no idea who painted it white. Mr. Burrell testified that the administrator also told him to deliver two chairs to the east wing – first, a green chair that was adjustable up and down and then a black chair where the back would incline and the height was adjustable. Mr. Burrell stated that he delivered these chairs two to three weeks apart and that both were obtained from the same furniture storage room.

67Several employees also testified about the accommodation provided to the applicant although only one witness provided specific evidence which addressed the chair and tilt board. Rowena Vincente testified that the “maintenance guy” had made a board for the applicant but that it was too low, and that the applicant now uses one that is upright. Ms. Vincente also testified that there was a black chair available to the applicant, but stated that it was not adjustable as it would only go up and down. Ms. Vincente also testified that the back was unstable as when “one lady tried to sit, it flipped back”.

68My findings as to what evidence is credible are made below in the findings and analysis section.

The Applicant is Sent Home

69On August 13, 2008, an incident occurred which led to the applicant being sent home. The applicant testified that a personal support worker asked the applicant to take a look at a resident’s arm because the resident had a large tear in her skin and there was “pus” coming out of it. The applicant did and then called the nurse manager. After the arrival of the nurse manager (at which point there were four staff in the room), the applicant left. The applicant testified that Ms. McNamara, the then director of care, told the applicant that she should go in and help them. The applicant stated that she could not as she was not able to do pushing and pulling as she would hurt herself.

70The applicant testified that minutes later, she was called into a meeting with everyone including Ms. McDougall, Ms. McNamara, another RPN and three PSW’s. During the meeting, the applicant testified that Ms. McDougall yelled at the applicant and told her that she should leave. The applicant left the workplace.

71On August 13, 2008, the respondent Ms. McDougall issued a letter to the applicant which stated as follows:

As per the meeting this morning, you made it quite clear that you are unable to perform duties based on the most recent functional assessment by your physician.

We feel at this time in [sic] is in your best interest to remain off until you are able to resume normal duties.

A copy of this letter will be forwarded to the WSIB and to the SEIU Representative.

Thank you for your efforts.

72The letter was copied to the WSIB and the applicant’s union.

73The applicant disagreed with the characterization of what transpired insofar as she wrote the WSIB on August 13, 2008, stating in part that at no time did she inform Ms. McDougall that she was unable to perform duties based on her most recent functional assessment.

74The applicant’s evidence about the incident on August 13, 2008 was corroborated in part by the evidence of Ms. Vincente, who was present that day. Ms. Vincente stated that she asked the applicant to look at the resident’s wound as Ms. Vincente’s regular nurse manager was busy. Ms. Vincente testified that the applicant did come and look at the wound but left once the other nurse manager came to do the dressing of the wound. Ms. Vincente stated that when the director of care came she raised the issue of the applicant not helping and it was explained that she had restrictions. Ms. Vincente testified that she did not think any other help was required.

75Ms. McDougall could not recall the discussion with the applicant over her return to work, but provided evidence about August 13, 2008. Ms. McDougall testified that she was not directly present during the “incident” on August 13, 2008 involving the resident but was involved in the meeting that followed. Ms. McDougall testified that she was aware that the applicant had stated that she could not assist because of restrictions but did not “feel” that is what happened. Ms. McDougall stated that it was reported to her that the applicant had not helped when asked and resident safety had been compromised. Ms. McDougall testified that the incident had shown “us” that the applicant was “unable to perform on the unit in a responsible fashion”.

76Notwithstanding, Ms. McDougall testified that the applicant was not disciplined or suspended for this “incident”. When asked about the content of the letter in paragraph 71, Ms. McDougall stated that the “wording was wrong” as to why the applicant was told to leave the workplace. While the letter states that the applicant had made it clear that she was unable to perform duties based on the most recent functional assessment, the actual reason was that the applicant did not help when she was asked to assist.

77In support of her version of events, Ms. McDougall entered an unsigned four-page statement which Ms. McDougall stated that she got from Ms. McNamara by email, although she testified that she does not have the email. Ms. McDougall testified that she did not know when she received it indicating that it could have been one day or one week after the incident although she doubted that it was a month later.

78I address my findings in respect of the August 13, 2008 incident below.

August 14, 2008 to March 2009

79The applicant continued to be off work throughout the remainder of the summer and fall in 2008 and early winter 2009. At some point during this period, Craiglee, on the advice of its mortgage company, retained Extendicare to assist in the management of the home, although Ms. McDougall continued as administrator. Ms. McDougall testified that their fee for Extendicare was $80,000 or $90,000 per month.

80The applicant testified that she brought in several Functional Abilities Forms during the fall of 2008 to update Craiglee on her medical status. The applicant exhibited forms dated August 27, 2008 and November 10, 2008. The applicant’s restrictions remained essentially the same in this period in the FAF’s.

81The applicant testified that she kept calling the WSIB stating that she wanted to return to work and that a meeting was scheduled by the WSIB to assist in her return to work for November 12, 2008. On the day the meeting was scheduled, Ms. McDougall cancelled the meeting.

82The applicant stated that the mediation with the WSIB was not re-scheduled and that she continued to be off work. The applicant testified that she kept in touch with the WSIB and wrote letters to various political representatives, including the premier and city councillors. The applicant stated that she went to a meeting in February 2009 about Extendicare running Craiglee and asked the representative there about wanting to get back to work. The applicant was advised by the representative from Extendicare that they could not make any decision as the “home” was still being “run by the McDougalls”.

83On February 23, 2009, a case manager from the WSIB wrote to the Director of Care at Craiglee asking that the WSIB be contacted regarding a meeting with a return to work specialist to assist in the applicant’s return to work and obligations. In the letter, the case manager highlighted the existing restrictions (fit for sedentary work, no moderate to heavy lifting, no repetitive neck bending, twisting or prolonged forward flexion, limited above shoulder height activities) and the recommendation to provide an adjustable chair as well as the applicant’s contention that Craiglee had not complied. The identified restrictions came from a specialist report requested by the WSIB dated September 25, 2008. The letter was copied to the McDougalls as well as the applicant and her union.

84No response was submitted in the hearing to this correspondence.

85Ms. McDougall did not dispute the chronology of events during this period with one exception. While Ms. McDougall testified that she cancelled the meeting with the WSIB because of some sort of “emergency” but also stated that she “believed” that it was re-scheduled, possibly in December, although she provided no testimony of a meeting taking place.

86Ms. McDougall testified that she could not recall if there was a reason for not offering the applicant hours in September 2008, although she suggested that all of the correspondence would be in the applicant’s employee file. Ms. McDougall offered no specific suggestion of what might be in the employee file that was absent from the documentation filed in the hearing. Ms. McDougall also stated that if the applicant did return to work, the applicant would have had to perform normal duties including being able to “function on the unit”.

87Ms. McDougall acknowledged that she understood that the applicant continued to have restrictions as set out in the FAF’s dated August 27, 2008 and November 10, 2008.

88Ms. McDougall agreed with the content of much of the WSIB correspondence which stated that the “accident employer was not able to provide suitable modified work”, which she interpreted as referring to all the recommendations of the ergonomist report. Similarly, Ms. McDougall testified that she agreed that an internal WSIB memo dated November 17, 2008 (marked as Exhibit 22) accurately reflected what she had told the WSIB about their position at that time, i.e. that they are unable to accommodate the applicant at this time or make the recommended changes to her workstation as recommended by the ergonomist report dated May 1, 2008 and that once the applicant is fit to return to her pre-injury job then they will bring her back.

89Ms. McDougall testified that the expectation was once the applicant was fit to return to her pre-injury job, they would bring her back, although she also testified that they needed someone to “monitor” the applicant.

90Ms. McDougall acknowledged the receipt of the letter dated February 23, 2009 seeking a meeting to assist in the applicant’s return to work, although she maintained that an adjustable chair had been provided. In explaining the apparent inconsistency with the correspondence and internal memos stating that no chair had been provided and her evidence, she testified that no adjustable chair “to her [i.e. the applicant’s] liking” had been provided. She also testified that there was no documentation confirming that a chair had been provided to the applicant.

The Applicant Returns to Work

91On March 30, 2009, the WSIB Return to Work Specialist held a meeting with the applicant, Ms. McDougall, a representative of Extendicare, and a representative of the applicant’s union, which led to the applicant’s return to work. As a result of this meeting, the applicant was returned to work on April 1, 2009.

92The applicant testified that at the meeting, Ms. McDougall was advised by the representative of Extendicare that Ms. McDougall would have to bring the applicant back to work and that Ms. McDougall would have to accommodate her. The applicant testified that the representative also stated that chairs would be sent to the home and the applicant would be able to select from among the four chairs and that she would also be getting a tilt board. The applicant stated that she then returned to work.

93On April 8, 2009, a Return to Work Plan was signed off by the applicant, her union representative Michael Downes, Ms. McDougall and the then director of care, Ms. Tudor, reflecting the terms of the return to work. The Plan reflected a graduated return to work commencing April 1, 2009 and identified the list of accommodations to be implemented as follows:

• As per ergonomists recommendations dated on April 29th, 2008, effective March 2009 the employer has provided height adjustable chairs at all workstations. The employer will purchase a tilt board to be provided by employer by April 13th, 2009 to enable the worker to perform desk duties.

• A follow up to this meeting, an incident occurred with the chair that was provided to Elaine with another employee. The employer is in the process in ordering new chairs and will have trial chairs for the employee to try out. Conversation with the employer, stated that a tilt board has been ordered and will be in place by April 13th, 2009

• Worker has an obligation to stay within her limitations and if she is being asked to go outside her limitations she is not to proceed but report immediately to her supervisor. The employer was also advised that we expect them to comply and ensure the RTW plan is successful.

94On April 14, 2009, the WSIB ergonomist issued another report which indicated that the “main concern” was the condition of the chairs at the nursing station where the applicant worked. The report identified one issue being a “non-adjustable chair” which could aggravate the applicant’s injuries and recommended that an adjustable ergonomic task chair be provided with key adjustable features to include seat pan height, backrest height, lumbar support in the backrest and adjustable armrests (the latter if needed). The report also identified neck flexion when viewing documents and charts as an issue which could aggravate the applicant’s neck injury. The report recommended that a tilt board be provided and noted that one had been ordered and will be arriving “soon”.

95On April 28, 2009, Craiglee went into receivership. According to the evidence of Ms. McDougall, Craiglee was subsequently purchased by another company and her employment was terminated.

Findings and Analysis

Legal Framework

96Section 5 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of, among other things, disability and age. The Code prohibits discrimination whether direct or adverse effect (section 11). While the Code addresses direct and adverse effect discrimination separately, the underlying issue is the same: whether or not the applicant faces some burden or disadvantage as a result of her identification with a prohibited ground.

97The onus is on the applicant to establish a prima facie case of discrimination. In the case of disability, the onus is on the applicant to establish that she has a disability and that the respondents infringed her rights whether by direct or adverse effect discrimination. Where the applicant establishes a prima facie case of discrimination, the burden shifts to the respondents, Celia McDougall and Roy McDougall, to prove any legal justification or defence to the discrimination.

98Section 17 provides a defence to claims of disability-related discrimination. It provides that a right is not infringed where the person claiming the right is incapable of performing the essential duties of a job with accommodation short of undue hardship. (see Gaisiner v. Method Integration Inc., 2014 HRTO 1718 at para. 118). While the overall onus to make out a claim of discrimination under the Code is on the applicant, the evidentiary onus is on the respondent to make out a s. 17 defence including any claim of undue hardship under 17(2). Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 112, Peel Law Association v. Pieters, 2013 ONCA 396 at paras. 66-69, ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) at para. 104 (“ADGA”).

99The question of what constitutes “undue hardship” will depend on the particular circumstances of each case. As the Tribunal stated in Gaisiner at para. 121:

…The use of the term “undue” infers that some hardship is acceptable; it is only undue hardship that satisfies the test. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. See ADGA, above at para. 118, and the cases cited therein

100In this case, there were some factual differences about what transpired. In assessing the witnesses’ evidence, I have applied the principles set out in the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, and in particular whether the evidence presented is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions.” In addition, I have considered the factors set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.

Was the applicant discriminated against on the basis of disability?

101In this case the parties did not dispute and I accept that the applicant has made out a prima facie case of discrimination; the applicant had a disability (having been injured at work) and was disadvantaged because of disability insofar as the applicant was unable to perform the normal duties of her RPN position without modified duties and further required accommodation. The applicant filed various functional abilities forms which were not challenged by the respondents either at the time of the applicant’s allegations or during the hearing which confirmed the applicant’s physical restrictions.

102Where the parties were at issue was in respect of whether or not the applicant was discriminated against by not being accommodated during the applicable time and/or otherwise discriminated against based on disability.

103The applicant submits that she was not accommodated in respect of her work injury. The applicant submits that the WSIB gave clear instructions on the duties that she was able to perform and the equipment she was to be provided with (mentioning in her oral submissions the chair(s) and tilt board). The applicant submits that rather than accommodate her, she was told to stay home, including from August 2008 to April 2009. The applicant submits that there is no undue hardship as other employees continued to be paid.

104In their submissions, the respondents argue that the applicant was accommodated as she was given a modified work schedule, modified hours, adjustable chairs and a tilt board. Further, the respondents rely on the fact that the applicant was provided with “WSIB” benefits. The respondents submit that any attempts to bring the applicant back to work were met with un-cooperation, hostility and a nursing practice that put the residents and staff at risk. The respondents further argue that due to the absence of the applicant’s extensive employee file, any disciplinary measures and documentation regarding her return to work make it “near impossible” to detail the events in this case that would reinforce to the Tribunal the behaviour displayed by the applicant that delayed her safe return to work.

105In considering the issue of accommodation, I find it appropriate to consider four periods separately: the period up to the ergonomist report; the response to the ergonomist report, including the applicant’s return to work for two weeks in late July 2008; the decision to send the applicant home in August 2008; and the decision to not permit the applicant to return to work until April 2009.

The Period up to the Ergonomist’s Report

106The evidence in this period was for the most part undisputed.

107The applicant was off work because of a work injury and returned to work shortly after she provided medical information stipulating that she could return to work with restrictions. The applicant was provided with reduced hours and modified duties and there was no evidence led by the applicant that she was asked to perform duties beyond her known abilities and restrictions. While the applicant testified about certain difficulties with her health such as headaches, nausea and at one point swelling of her legs, there was no evidence given that the cause of these symptoms was known to be linked to the duties she was performing and/or her restrictions until her doctor appears to have suggested this to the applicant.

108The response to the applicant’s difficulties was the decision to obtain an assessment by an ergonomist and direct the applicant to remain off work in the interim period. The evidence indicated that this was sanctioned by the WSIB. Further, it would appear from the applicant’s evidence and submissions, that she did not dispute the decision. Rather, the applicant’s submissions were focussed on the respondents’ failure to comply with the ergonomist’s recommendations, which were only made in the report which was issued May 2, 2008. In light of the above, I find that Craiglee and the respondents, to the extent they were involved in the decisions, did reasonably accommodate the applicant during this period.

109The applicant did give evidence about certain interactions with the then assistant director of care in this initial period, but did not pursue this in her final submissions. In any event, if this was an inadvertent omission I would not find that the evidence was sufficient to establish that Ms. Myles’ comment about the applicant needing to work during her four hours or her direction to the applicant that she work on the west side were discriminatory. There was insufficient context and content given about the charting comment to establish that it was discriminatory based on disability. As for the direction to work on the west side, even on the applicant’s evidence she did not appear to make a connection to disability other than speculation after the fact.

The Period Following the Ergonomist Report

110I reach a different conclusion in the period following the receipt of the ergonomist’s report. I find that the applicant was not accommodated in respect of her disability-related needs in the period June 9, 2008 to August 13, 2008.

111Apart from the issue of accommodation, in the immediate period following the issuance of the report, there appeared to be no dispute as to what transpired: the applicant was on vacation until the first week of June 2008; following her vacation she expressed her intention to return to work on June 9, 2008; the assistant director of care asked for a current FAF on June 3, 2008; and once the FAF was produced (which by all accounts had the same restrictions as the March FAF), the applicant was told in the letter dated June 5, 2008 that Craiglee was unable to meet the requirements for her to “return to modified duties” and that the applicant should contact Craiglee if her “physical status” improves to arrange for her return to “regular duties”.

112On the basis of this evidence it would appear that the applicant was being denied employment because of disability given that on its face, the letter indicates Craiglee is unable to accommodate and the applicant will only be returned when she can perform regular duties.

113Notably, while Ms. McDougall did not sign the letter, she was copied on it and aware of its contents and how it should be interpreted. In her evidence, Ms. McDougall was able to explain what the letter meant (see para. 50 above where Ms. McDougall stated that what was problematic was that the applicant wanted a new chair and not an existing chair). Further, Ms. McDougall separately testified that the administrator (the role she held) would need to be directly involved in getting someone back to work (which, in essence, was the applicant’s request that was being responded to in this letter). Based on this evidence, I find that Ms. McDougall was consulted on and in agreement with the content of the letter. Further, given Ms. McDougall’s role as administrator, I find it reasonable to conclude that the assistant director of care would not have issued the letter without Ms. McDougall’s approval.

114There was also no dispute and I accept that the applicant did return to work July 29, 2008, pursuant to a request that appeared to stem from a staffing shortage. At this time, the applicant was given modified hours but there is a dispute as to whether or not she was provided with the accommodation recommended by the ergonomist.

115On the issue of accommodation, the applicant and Ms. McDougall gave different versions about what accommodation, if any, was given in the period subsequent to the issuance of the ergonomist report. While neither witness was precise as to timing, I have presumed that if accommodation was extended it would have been implemented during this period since this is the only period the applicant was at work following the issuance of the ergonomist report. Considering all of the evidence, I prefer the applicant’s account as it is consistent with the documentation and more in harmony with what seems reasonable and probable in the circumstances given the chronology of events. I do not find that the respondents have established, on a balance of probabilities, that the applicant was accommodated by being provided with an adjustable chair, an adjustable stool and/or a tilt board in accordance with the recommendations of the ergonomist.

116I found Ms. McDougall’s evidence vague on details and consistent only in its inconsistencies. On the issue of an adjustable stool, Ms. McDougall initially stated that she believed they purchased a stool and later testified that they made a stool with wheels. On the issue of adjustable chairs, while Ms. McDougall stated they could not afford to buy one for each work station, she gave various accounts of how many chairs were provided (first stating a single chair and then testifying that there were two chairs) and when the chair(s) were provided (see para. 61 above). Ms. McDougall’s evidence on the tilt board did not have similar inconsistencies, although she estimated that it was built a month after the report to coincide with the applicant’s return to work, which did not make a lot of sense given the correspondence issued at the time on June 5, 2008 was that Craiglee could not accommodate.

117As for the content of the evidence, I found Ms. McDougall’s evidence conclusory in nature and lacking detail, which impacted negatively on my assessment of her credibility. While Ms. McDougall testified that the applicant was given certain accommodations, there was no corresponding evidence of any context with sufficient detail to establish what happened, including when was the accommodation offered, what concerns did the applicant identify, what discussions took place between the parties about it, and/or similar detail to flesh out the evidence being given. Instead, Ms. McDougall’s evidence was limited to conclusory claims that the chair and tilt board were provided but “it was not to her liking” or “she was not happy with it” in reference to the stool.

118Ms. McDougall’s evidence was corroborated on some points by Mr. Burrell. Mr. Burrell appeared sincere when he gave his evidence, although I am mindful that he had a close personal connection being Ms. McDougall’s former husband, which arguably did not make him a neutral witness. Moreover, his evidence conflicted with Ms. McDougall’s evidence on certain points – for example, Mr. Burrell claimed that the chairs were obtained in a storage room, whereas Ms. McDougall claimed that the “ergonomic black chair” provided came from behind her desk.

119In any event, ultimately, I did not find the respondents’ claim that the applicant was accommodated credible because of the absence of any documentation supporting the claim and the extensive correspondence which says otherwise. This includes the respondents’ own correspondence. Neither the letter of June 5, 2008 nor the subsequent letter of August 14, 2008 articulates that the applicant was offered some accommodation but was being unreasonable in rejecting the accommodation. In fact, as stated above, in my view the clear meaning of the letters is that the respondents and/or Craiglee were not able to accommodate the applicant and accordingly, the applicant would only be permitted to return to work when she can perform regular duties (i.e. both letters refer to the applicant coming back when she can do “regular” or “normal” duties).

120While Ms. McDougall attempted to explain away the language used in this correspondence, I did not find her explanations credible. For example, as previously mentioned, Ms. McDougall stated that the letter dated June 5, 2008 was worded in the manner it was because the applicant wanted a “new chair” and not an existing chair. In addition, Ms. McDougall stated in her evidence that the “wording was wrong” in her letter of August 13, 2008, by referring to the applicant being sent home because she was unable to perform duties based on her functional assessment and that it should have referred to her not helping out when asked. I do not find either explanation credible and view her responses as an attempt to tailor her evidence to fit the position now being advanced.

121The WSIB correspondence and memos are similar in content – there are multiple documents that state that the “accident employer” cannot provide modified duties or “suitable modified work” and/or unable to accommodate. The logical inference of this correspondence and the memos is that the accident employer has not provided any of the recommended accommodation including the adjustable chair(s) and tilt board that are the subject matter of the Application. Ms. McDougall agreed that this correspondence was an accurate reflection of what was transpiring at the time.

122Moreover, there is the fact that the applicant returned to work in April 2009 when there was a commitment to provide the accommodation; an agreement that Ms. McDougall was a signatory to on April 8, 2009 (Return to Work Plan). In the Return to Work Plan, the parties agreed that “effective March 2009 the employer has purchased height adjustable chairs at all workstations” and that it “will purchase a tilt board by April 13, 2009 to enable the work to perform desk duties”. It does not make sense that if an appropriate adjustable chair and tilt board had been provided in the past, it would continue to be an issue to be addressed or addressed in the absence of documentation of any of the efforts that Ms. McDougall urged the Tribunal to accept she had undertaken to comply with the report.

123Finally, there is contrary evidence of the applicant’s co-worker, Ms. Vincente, which corroborated in part the applicant’s evidence that she was not accommodated (see para. 67 above).

124As a result, I find that Ms. McDougall’s contention that the applicant was accommodated with an adjustable chair(s), a tilt board and an adjustable stool that met her requirements in the period after the ergonomist’s report was issued is not credible. Instead, on a balance of probabilities, I find it more likely than not that the applicant was not accommodated with the equipment recommended by the ergonomist or equipment which had been identified as necessary in the period from June 9, 2008. I find it appropriate to reference the earlier date since the applicant indicated her intention and availability to return to work on this date. In the period May 2, 2008 to the first week of June, 2008, the applicant was away on vacation and therefore unavailable to work.

125In their final submissions, the respondents did not rely on a claim of undue hardship; instead arguing that the applicant “unequivocally was accommodated”. However, there was evidence that appeared to be in support of an undue hardship claim and the respondents initially appeared to be making such a claim. Accordingly, I will briefly address the evidence that is arguably related to such a claim.

126In her evidence, Ms. McDougall stated that Craiglee could not afford to purchase chairs for “every” work station, along with some of the other measures that were not part of the Application such as medication carts. In support of this evidence, Ms. McDougall gave some evidence on the financial circumstances of Craiglee including its outstanding debts (see para. 60 above). Further, there is no question that as of late April 2009, Craiglee was in receivership.

127Even accepting this evidence, I do not find that the respondents have met their onus of establishing undue hardship. The recommendations underlying the Application were made in May 2008, which is eleven months before the receivership. Further, the recommendations were flexible; for example on the issue of chairs, the recommendation was for chairs at every station or subject to the parties’ agreement, a chair on each floor. It was apparent from the applicant’s evidence and position taken in the Application that she was not insisting on chairs at every work station. Moreover, the entire cost of the three items at issue in the case was modest. Finally, the evidence of Craiglee’s financial circumstances at the relevant time was not entirely one of constraint. The evidence included Craiglee having debt but also incurring new expenses when it retained an outside company to assist in the running of the facility. In this context and based on the limited evidence given, the respondents have not satisfied me that they could not accommodate the applicant because it would cause undue hardship.

The Decision to Send the Applicant Home

128I further find that the applicant was discriminated against because of disability by the decision to send her home on August 13, 2008.

129The applicant was the only party who led first-hand evidence about the incident on August 13, 2008. The applicant provided evidence, as did her co-worker Rowena Vincente. The evidence was that the applicant was called to look at the wound, which she did, but when asked to assist further, she declined, citing restrictions. The applicant testified that she explained that she could not assist further as she was not able to do the pushing and pulling.

130I find no reason to reject this evidence and therefore I accept it. I do not find the unsigned statement attributed to Ms. McNamara and marked as exhibit 55 reliable. It was not a signed and stamped affidavit as suggested by Ms. McDougall in her written submissions – in fact, in her testimony, Ms. McDougall did not know when it was prepared. As a result, there is no credible evidence before me that the applicant had declined to do work within her restrictions.

131The issue remains: why was the applicant sent home and was disability a factor in that decision?

132I did not find that Ms. McDougall’s evidence on the decision to send the applicant home made sense. On the one hand, Ms. McDougall testified that the applicant was sent home because she did not help out when asked and this threatened resident safety (which appears to be a performance issue), although she gave no evidence about how the resident’s safety was compromised. On the other hand, Ms. McDougall testified that the decision to send the applicant home was not a suspension or other disciplinary response, which seems inconsistent with a claim that the applicant misconducted herself. In any event, I have no direct evidence of alleged misconduct and accordingly, do not accept that the applicant misconducted in such a manner that the respondent Ms. McDougall has provided a complete justification for her decision to send the applicant home.

133In my view, it is clear that the applicant’s limitations were a factor in the decision to send the applicant home. I rely on the applicant’s testimony, as corroborated by her co-worker, that the problem arose when she declined to assist and cited her limitations. Further, the letter dated August 13, 2008 states that the applicant should remain off until she is able to “resume normal duties”. Even based on the respondents’ evidence, it seems clear that the applicant’s disability and inability to perform “normal duties” was a factor in the decision.

The Decision to Deny Active Employment to the Applicant for Over Seven Months

134I further find that the applicant was discriminated against because of disability in the period August 14, 2008 to March 31, 2009. The respondent Ms. McDougall did not take any steps to bring the applicant back to work or explore any issues regarding her return to work. Instead, the applicant was denied active employment. I find that her disability (and/or the accommodations she required) was a factor, if not the only factor, as to why she was not returned to work.

135I accept that the applicant continued to have a disability and have restrictions in her ability to perform her regular job for this period. FAFs dated August 27, 2008 and November 10, 2008 state that the applicant was fit to return to work with these restrictions and continued to cite restrictions almost identical to earlier FAFs. The applicant testified and I accept that the respondents had this information. The FAFs and the applicant’s testimony that the documents were provided to the respondents was unchallenged by the respondents in the hearing and Ms. McDougall testified that she understood that the applicant had the restrictions that were documented.

136Ms. McDougall did not provide a credible explanation as to why the applicant was not provided with work. Again, Ms. McDougall gave different explanations at different times in her evidence. At one point, Ms. McDougall stated that she could not recall if there was a reason that the applicant was not offered hours in September 2008; and at another point appeared to offer a reason stating that the applicant could come back if she could perform normal duties, including being able to “function” on the unit. Ms. McDougall also agreed that the content of various WSIB memos reflected what the situation was – for example, she agreed that a memo stating that the accident employer was not willing or able to comply with buying ergonomic chairs and were no longer able to accommodate modified work was accurate for this period – which appears to suggest that the reason the applicant was not provided with work was the respondents’ unwillingness or ability to accommodate.

137While in her final submissions, Ms. McDougall did make broad allegations that all attempts to bring the applicant back to work were met with un-cooperation, hostility, behaviour and nursing practice that put residents and staff at risk, I do not find that there was credible and reliable oral evidence to support that submission. In support of this submission, Ms. McDougall stated that she relies in part on a witness statement of “Jane McNamara Zoschke” which makes similarly broad allegations without reference to any particular dates (other than citing seasons) or particulars of incidents. This statement was dated December 5, 2014, and filed with the Tribunal on the same date in anticipation of calling Ms. McNamara Zoschke, although Ms. McDougall did not subsequently call Ms. McNamara Zoschke as a witness. Further, while not specifically mentioned, Ms. McDougall had submitted an unsigned statement about August 13, 2008 which she attributed to “Ms. McNamara”.

138As I stated in the hearing, if Ms. McDougall wished to rely on the proposed evidence of Ms. McNamara, it was important for the Tribunal to hear directly from her as the applicant disputed the evidence. A witness statement is not evidence and as previously mentioned, I did not find the unsigned statement to be reliable.

139Further and in any event, what is apparent from the evidence is that Ms. McDougall took no steps to explore any issues or concerns with the applicant and in fact cancelled the meeting that had been scheduled by the WSIB to mediate a return to work. While Ms. McDougall testified that it may have been re-scheduled in December, there is no evidence that any such meeting occurred.

140As a result, I find that the discrimination continued from August 14, 2008 to March 31, 2009 (the end date reflecting that the applicant returned to work April 1, 2009 as set out in the Return to Work agreement).

141In reaching my conclusions above, I have considered Ms. McDougall’s submission that the absence of the employee file makes it “near impossible” to detail events that would reinforce to the Tribunal the applicant’s behaviour that she submits “delayed” the applicant’s return to work. However, I have difficulty concluding that the respondents have been somehow prejudiced in their presentation of the case by the purported absence of the “employee file”.

142First, based on the evidence that was presented, it is not apparent that documentation is missing that relates to the issue of the applicant’s disability and the respondents’ response to the request to accommodate and/or the respondents’ other reasons for not returning the applicant to work. It appears that the documents outlining the respondents’/Craiglee’s position on accommodation and the associated details of why the applicant was or was not being accommodated at key points in time were exhibited. There were documents addressing the applicant’s return to work in March 2008, the decision to put the applicant off work in April 2008 (letter dated April 4, 2008), the decision not to return the applicant to work after receiving the ergonomist report (letter dated June 5, 2008), the agreement to return the applicant to work July 29, 2008, the decision to send the applicant home (August 13, 2008) and the documentation reflecting and leading up to the applicant’s return to work on April 1, 2009). Second, if Ms. McDougall wished to present evidence about this point that she believed was missing in the available documentation, the respondents could have presented additional evidence by calling other witnesses. In this respect, the respondents initially identified five witnesses but ultimately elected to only call Ms. McDougall and Mr. Burrell.

143In addition, in reaching my conclusions, I have considered that on January 12, 2009, a case manager of the WSIB issued a letter deciding that the “employer” had not breached s. 41 of the Workplace Safety and Insurance Act (the obligation to re-employ an employee). In its letter, the case manager references the history of the applicant’s WSIB claim including that the “employer” informed that they were not able to meet the “requirements” recommended by the ergonomist and could not provide suitable work for the applicant. The case manager also states that the employer could accommodate when the applicant was fit to resume “regular duties” and that for this reason, the applicant had been entitled to full loss of earnings benefits. The case manager concludes that the employer has not “breached” nor considered to have failed to comply.

144In the case manager’s decision, no reasons are expressly included beyond reference to the history.

145When asked to address the significance of this decision for purpose of this proceeding, the applicant stated that she was not aware of the decision as her union was handling the WSIB claim. The applicant had previously explained that she had been returned to work shortly after the decision and before the expiration of the time for appealing. The respondent, Ms. McDougall, stated that it had “no significance”. I agree. Based on the content of the letter and the conclusory nature of the reasons, it is not apparent that the case manager was considering the same issues as the issues in the Application. Accordingly, having regard to the parties’ submissions, I am not satisfied that the case manager’s decision has any implications for my findings and conclusions in this case.

Was the applicant discriminated against on age?

146I accept the applicant’s evidence about the age-related comment. I find that when the applicant asked Ms. McDougall about finding her a place to sit as she was standing a long time, Ms. McDougall commented that “if old people can’t do the work, it’s time for young blood to come and do the work”.

147In general, I found the applicant’s evidence credible and had concerns about the credibility of Ms. McDougall’s evidence. I see no reason not to accept the applicant’s evidence on this point given the detailed context she provided in her testimony about when the remark was made, namely the interaction immediately before with Ms. McDougall and the interactions with staff after the remark, which made it believable. Conversely, I have concerns about the credibility of Ms. McDougall’s evidence generally given that she repeatedly changed her evidence on various points which leads me to reject her bald denial.

148I do find that the comment made constitutes a violation of the Code based on the intersection of age and disability. The applicant was an employee with a disability, working with restrictions and the negative remark was specifically related to the applicant’s age (which was 57 at the time). The reasonable inference is that Ms. McDougall’s comment meant that the applicant is too old to do the work.

Liability of the Respondents

149By Interim Decision, 2013 HRTO 93, the Tribunal considered whether the Application should continue against the individual respondents. In the Interim Decision, the Tribunal considered the applicable legal principles and articulated the central question as whether or not there were allegations made against either respondent that could support a finding that the respondent violated the Code. In the course of addressing that question, the Tribunal also stated that it should be mindful of all the factual circumstances and the legal framework, including the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 and the fundamental principles of human rights law affirmed by the Divisional Court in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876. These principles include that the fact that a corporate respondent may also be liable for the conduct of employees does not insulate employees from personal liability where their acts constitute a violation of the Code and the purpose of the Code is to provide an effective remedy to a complainant (or applicant), one measure of which is the degree to which damages can be collected. In the Interim Decision, the Tribunal concluded that, at that stage, the Application would continue against both respondents (see paras. 17 to 26 and the cases cited in the decision).

150At this point in the hearing, in my view, the central question is whether or not either respondent violated the Code such that he and/or she should be liable and a remedy ordered against them; again being mindful of the factual circumstances and the legal framework including the fundamental principles of human rights law.

151The applicant asked that both respondents be held jointly liable for the discrimination. The applicant submitted that both respondents are responsible for her not being accommodated. The applicant submitted that the late Mr. McDougall was the owner of the business and aware of what had transpired. As for Ms. McDougall, the applicant submitted that she became administrator and continued to refuse to accommodate her and made the decision to send the applicant home. The applicant submitted that only Ms. McDougall should be held responsible for the age-related comment.

152Ms. McDougall had previously submitted that she did not disagree with the applicant’s submissions that an individual could be held liable for an age-related comment (see 2013 HRTO 93 at para. 15) and did not change her position on this point at the hearing. Instead, Ms. McDougall focussed on the issue of accommodation. Ms. McDougall argued that neither she nor Mr. McDougall should be held liable as they were only “agents” of Craiglee.

153In light of the positions taken and my finding on the age-related comment, I find that Ms. McDougall is liable for the remark she made.

154As for the issue of accommodation and my findings that the applicant was discriminated by not being accommodated, I also find Ms. McDougall liable for the discrimination found for the period June 9, 2008 to March 31, 2009.

155As stated above, the Code does not preclude an individual from being liable for their acts of discrimination. In the specific context of disability-related discrimination, while many cases refer to there being an “employer’s duty to accommodate”, there is nothing in the language in the Code that treats the duty to accommodate differently from other forms of discrimination. It may be that in many workplaces, individual employees have very little control over corporate decisions to accommodate. However, this does not mean that an individual may never be held responsible for a failure to accommodate. Rather, individual liability depends on all of the factual circumstances including the discrimination found and in particular what authority the individual has and what role the individual plays in deciding on and implementing the accommodation or lack thereof.

156Based on the evidence, I find that Ms. McDougall had authority to decide on the accommodation. Craiglee was a small family-run business and while not an owner of Craiglee, Ms. McDougall was the secretary of the corporation (see 2013 HRTO 93 at para. 4) and was the administrator in the home during the relevant period. In the hearing on the merits, Ms. McDougall testified that she was the “hands on” administrator during the relevant time with her father’s role being limited to a consulting administrator. As for her actual role in the applicant’s accommodation, Ms. McDougall was central in the decision to not accommodate the applicant and implement the recommendations of the ergonomist.

157Ms. McDougall was the corporate signatory to the agreement April 1, 2008, which, among other things, contained a provision that the accident employer agrees to make necessary changes to Ms. Budd’s workstation and duties as recommended by the WSIB ergonomist. Notwithstanding this commitment, the applicant was not accommodated in accordance with the recommendations and the applicant was told by letter dated June 5, 2008 that Craiglee was unable to meet the requirements to return her to modified duties. While Ms. McDougall did not sign this letter, she was copied on it and testified as to its interpretation and accordingly, as stated above, I find that she was consulted on and in agreement with its contents. Further, given her role as administrator, as stated above, I find it reasonable to conclude that the letter would not have been issued without Ms. McDougall’s approval. Indeed, Ms. McDougall’s testimony that the administrator would need to be directly involved in getting someone back to work makes it clear that Ms. McDougall viewed herself as critical in the decision process to return the applicant to work or not. When the applicant returned to work on July 29, 2008, Ms. McDougall was the administrator physically present and ultimately, the administrator who sent the applicant home on August 13, 2008, and then did not allow her to return to work until April 1, 2009. In fact, Ms. McDougall was scheduled to meet with the applicant and a representative of the WSIB to discuss a return to work in November 2008, but subsequently cancelled that meeting.

158In view of her central role in denying the applicant disability-related accommodation to which she was entitled in the workplace, I find Ms. McDougall personally liable for the discrimination found in the period June 9, 2008 to March 31, 2009 and find it appropriate that she provide a remedy to the applicant for losses incurred as a result of the discrimination

159I reach a different decision regarding Mr. McDougall. While one of the owners of the business, I am not satisfied that being an owner of a business that goes into receivership is sufficient to find liability without evidence of involvement in the discrimination, particularly as in this case where the company is owned by two individuals.

160There was limited evidence led about what role, if any, Mr. McDougall played in the accommodation and related decisions. Mr. McDougall was copied on the June 5, 2008 letter which indicated that the applicant would not be accommodated, but no additional evidence was led about what role he played in the events at this time. For example, there was no evidence that Mr. McDougall was involved in the meeting in April 2008 which led to the decision to obtain an ergonomist report and Ms. McDougall’s evidence was that he was limited to consulting without there being any elaboration on what issues, if any, he was consulted on. Apart from the June 5, 2008 letter, the only other time Mr. McDougall was identified is in connection with the applicant’s return to work on July 29, 2008. However, I did not find that decision to be discriminatory nor did the applicant suggest otherwise.

161Accordingly, in the absence of Mr. McDougall playing an active and central role in the discrimination I decline to find Mr. McDougall or, more properly, Mr. McDougall’s estate, liable.

Remedy

162The Tribunal’s remedial jurisdiction is set out in s. 45.2 of the Code. Section 45.2 states:

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.

2. 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.

3. 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.

163In this case, the applicant requested a number of remedial orders including compensation for lost wages; $20,000.00 for pain and suffering; and $15,000.00 in damages for having to take money out of her RRSP. In the original Application, the applicant had also sought a public interest remedy requiring that modified duties be provided by the “employer”.

164Ms. McDougall did not challenge the requests or related evidence but submitted that given that the applicant was paid 85% of her pay for the duration of the period referencing the loss of earnings benefits that she received, it is “mere greed” that she wants more. Ms. McDougall also submitted during her opening statement that “we have no money”.

Lost Wages

165The applicant sought compensation for lost wages for the period January 1, 2008 to March 31, 2009. The applicant testified that she received only 85% of her wages while on WSIB. For those periods where she returned to work on reduced hours, the evidence reflected that the applicant was paid by her employer and WSIB made up the difference. Thus, the applicant characterized her loss as 15% of her wages for the applicable period.

166The applicant calculated her loss by comparing what she earned in 2007 as reflected on her T4 from Craiglee with what she earned in 2008 from Craiglee and WSIB. The applicant stated that the amount from Craiglee was incorrect and provided no documentation reflecting her benefits from the WSIB in 2009.

167I have found that the applicant was subjected to discrimination because of disability when she was not accommodated in respect of the recommendations of the ergonomist, including by being denied active employment from June 9, 2008 to March 31, 2009 (with the exception of her two-week return to work in late July). I have also found that the applicant was not provided with accommodation during the period that she returned to work in late July, although it would not appear that she suffered a wage loss in this period, given that the evidence was that WSIB continued to pay partial loss of earnings during the approximate two-week period that she returned to work. Accordingly, the period for which a wage loss is owing is 40 weeks, which represents the referenced period minus the period that she was at work, i.e. July 29, 2008 to August 13, 2008.

168With respect to the method of calculation, given the specific period for which I am ordering compensation, I find it appropriate to calculate her wage loss using her hourly rate of $22.59 per hour and the evidence of regular hours worked prior to the work injury, i.e. 78.7 hours biweekly. The evidence of the hourly rate and biweekly hours was agreed to by Ms. McDougall.

169Using these figures, the applicant’s wage loss is $5,333.50 (which is 15% of her wages based on a weekly wage of $888.92 for 40 weeks). This amount is ordered accordingly.

Damages for Injury to Dignity, Feelings and Self-Respect

170In determining compensation for injury to dignity, feelings and self-respect, the Tribunal has considered the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunchalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52.

171In this case, the applicant sought $20,000.00 in damages at the hearing. The applicant testified that she was impacted emotionally as she felt discarded like she had a bad disease. The applicant also testified that she felt tortured because she had a job but was not allowed to go back to it. The applicant testified that she lost a lot of money and was unable to socialize in the way she wanted to as every time she went out to the workplace for other reasons, she would hear comments such as “oh you are back, Celia said she got rid of you”. The applicant stated that things like this remain with her and are significant. The applicant testified that after the age comment was made to her and staff told her that she was too old to work there, she cried.

172The applicant was not challenged on this evidence by Ms. McDougall.

173I find it appropriate to award the applicant $13,000.00 for injury to dignity, feelings and self-respect for the denial of work and failure to accommodate in the applicable period and for the age-related comment made by Ms. McDougall. Objectively, the discrimination was serious. Indeed, in my view, the decision to keep the applicant out of active work for a significant period of time (40 weeks) in a job that she had held for many years is one of the more egregious examples of a failure to accommodate. Having said that, I am also mindful that the applicant continued to be compensated in part by the WSIB and ultimately was returned to work, which mitigates to some degree the objective seriousness of what occurred. Further, I accept the applicant’s evidence on subjective impact both in respect of the failure to accommodate and the impact of being subjected to a hurtful comment about her age in earshot of co-workers. While the applicant testified that she became upset after her co-workers’ comments, the comments were made as a direct result of Ms. McDougall’s initial remark.

Other Compensatory Remedies Sought

174In her opening statement, the applicant also sought $5,000.00 for “all the problems I’ve gone to” and $15,000.00 in compensation for having to take money out of her RRSP. The applicant gave no evidence on the former or renewed her request for this amount in her final submissions. With respect to the latter, the applicant testified that her financial advisor did not provide her with any information to establish how she came up with this amount and did not renew her request for this amount in her final submissions.

175Based on this evidence and submissions or lack thereof, I decline to make an order for either of these amounts.

Remedy for Future Compliance

176As indicated above, in the Application the applicant also requested that “modified duties be provided by the employer”. The applicant withdrew against her employer, Craiglee, and did not renew this request at the hearing in a modified form. Further, the evidence reflected that Ms. McDougall is no longer employed at the home with the new company. In these circumstances, I do not find it appropriate to order a remedy for future compliance.

ORDERS

177The Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent Ms. McDougall shall pay to the applicant $5,333.50 as monetary compensation for her wage loss. The applicant will be responsible to report the income and remit the appropriate statutory deductions and applicable taxes to the applicable government.

2. Within 30 days of the date of this Decision the respondent Ms. McDougall shall pay to the applicant $13,000.00 as monetary compensation for injury to her dignity, feelings and self–respect.

3. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Dated at Toronto, this 26th day of July, 2016.

“Signed by”

__________________________________

Kathleen Martin

Member