Tavares v. Mistura Restaurant & Hang Out Inc., 2017 HRTO 1553

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Tavares

Applicant

-and-

Mistura Restaurant & Hang Out Inc.

Respondent

DECISION

Adjudicator: Mark Hart

Date: November 23, 2017

Citation: 2017 HRTO 1553

Indexed as: Tavares v. Mistura Restaurant & Hang Out Inc.

APPEARANCES

William Tavares, Applicant

Jordan Reiner, Counsel

Mistura Restaurant & Hang Out Inc., Respondent

Angela Browne, Paralegal

1This is an Application filed on March 21, 2016, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This matter proceeded to a hearing before me on May 25 and 26 and on August 9, 2017, at which time I heard evidence from the applicant, the owner of the respondent business, and six of the respondent's employees, as well as the parties' final submissions. In rendering this Decision, I have considered all of the testimonial evidence and the documentary evidence marked as exhibits before me, as well as the parties' final submissions and the case law submitted.

Review of Evidence

3The applicant is a person with 25 years of experience in the restaurant industry, as a server, manager and owner. He was diagnosed with multiple sclerosis ("M.S.") in 2002. A medical report from June 2015 in evidence before me states that the applicant had done "reasonably well" over the intervening years, for the most part with "fairly mild attacks, primarily sensory and vertigo." A later report dated December 21, 2015, which is shortly after the events at issue in this proceeding, shows a marked deterioration of the applicant's symptoms. The applicant attributes this to how he alleges he was treated by the respondent.

4The respondent operates an upscale, fine dining restaurant in downtown Toronto called Mistura. The respondent also operates a lounge on the second floor of the same building, called Sopra, which is used for holding events, parties and other functions. Paolo Paolini has been the owner and manager of the respondent's business since its inception in 1997.

5In the fall of 2015, one of the servers ("Tom"), who had worked at Mistura for a considerable period of time and was a valued employee, decided to leave the restaurant to pursue another opportunity. Ten years earlier, Tom had worked with the applicant as servers at another upscale Toronto restaurant, and recommended the applicant for consideration as a server at Mistura. The applicant was interviewed by Mr. Paolini and the Mistura floor captain ("Brent"), and they were impressed by the applicant's presentation at the interview and industry experience.

6There is a dispute between the parties as to the applicant's status following the interview. The applicant's position is that he was hired as a server at Mistura. In contrast, the respondent's position is that it only agreed to have the applicant come in for a two-week observation period, for both parties to assess whether the arrangement was a good fit. In my view, nothing really turns on this for the purpose of this proceeding. Whether the applicant was hired as a server or whether the respondent only agreed to have him come in for a two-week observation period, the fact remains that if his disability was a factor in the respondent's decision not to employ or to continue to employ the applicant, that is a breach of the Code.

7The applicant worked a total of four shifts at Mistura, on November 26, 27 and 30 and December 2, 2015. The applicant was being trained during these shifts, first by Tom and then by a second server ("Tamara"). The applicant's evidence is that during this time, he was able to perform the duties of a server, he did not require any accommodations as a result of his M.S., and that no performance issues or concerns were raised with him.

8The respondent's witnesses paint a very different picture. Tom testified that during the shifts he worked with the applicant, the applicant displayed a complete lack of interest in learning the Mistura way of service, and asked questions only about how much the servers make and about staff meals. He states that the applicant conducted himself very poorly, and that his waiter's approach and skills were gone. Tom states that the applicant frightened him when the applicant was serving coffee to customers and was holding the tray above the customer's head. Tom states that even a rookie server wouldn't do this, given the danger of spilling hot coffee onto the customer. Tom states that he approached the applicant about this issue and expressed his disappointment. Tom states that the applicant responded by arguing with him and giving him lip, which angered Tom.

9Tom testified that he also noticed that the applicant walked in a wobbly manner and was leaning against walls. He states that his concern was that if he could see it, customers and the manager also would see it. He states that he had not seen this before when he previously had worked with the applicant ten years earlier. Tom also testified that the applicant looked unkempt and distracted at work, and expressed concern about the applicant's lack of interaction with customers.

10Tom states that on the second shift on November 27, 2015, he was approached by the floor captain Brent, who asked whether the applicant had been drinking because he had been observed to be swaying when he walked. Tom states that he told Brent that the applicant had not been drinking, but that the swaying could be due to the applicant having M.S. Tom was aware that the applicant had M.S. from the time when they previously had worked together. Mr. Paolini's evidence is that he had observed the applicant swaying while he walked, and had asked Brent to see if the applicant had been drinking. Both Brent and Mr. Paolini testified that Brent reported back to Mr. Paolini that the applicant had not been drinking and that the swaying may be due to his M.S. Mr. Paolini's evidence is that this was when he became aware of the applicant's M.S. and that this did not concern him, so long as the applicant was able to do the job.

11Tom testified that somewhere around the applicant's third or fourth shift at Mistura, he spoke to Brent about the applicant's performance. He states that he felt responsible because he was the one who had recommended the applicant as a server. He states that he shared his concerns about the applicant with Brent, and told Brent that he was "un-recommending" the applicant as a server. Tom testified that he shared the same concerns with Mr. Paolini. Brent's testimony confirms that he was told by Tom that the applicant was a "shitty server", and that he shared Tom's view with Mr. Paolini. Mr. Paolini confirmed that he had heard Tom's assessment from Brent.

12Tamara testified that she trained the applicant on one shift at Mistura. She states that she was not really excited about the applicant's work ethic. She states that the applicant did not ask any professional questions about the work at Mistura, but asked questions only about how much money he would earn. She states that it always bothers her when new staff asks first about how much they will earn. She also states that the applicant did not provide help when she needed assistance with her tables. She states that at Mistura, the servers work in a team approach, and all of the servers help each other out when needed. She states that she is not comfortable working with people who are not prepared to help. She also states that the applicant was slow.

13Tamara testified that after the first training shift with her, she believes that she spoke to Brent about her impression of the applicant. She states that she told Brent that the applicant had not asked her any professional questions and had asked only about money, and that he did not seem interested in the work. Tamara testified that she was not aware that the applicant had M.S. at this time, and only found out about this after this proceeding was commenced.

14Brent testified that he observed the applicant during the shifts that he worked at Mistura. He states that the applicant seemed to be unstable on his feet, and did not appear to be proactive on the floor. He states that the applicant was slow, lacked efficiency, didn't interact with customers, didn't know where to go and seemed lost. He states that Mistura relies upon a team approach with its servers, and that the applicant was not working as part of the team.

15Brent states that he personally observed the incident where the applicant held a tray of coffee over a customer's head. Brent states that during one of the applicant's shifts at Mistura, he observed the applicant hunched over in the back part of the restaurant. He states that he asked the applicant if he was okay, and the applicant mentioned something about his M.S. flaring up and that his back or leg was hurting. Brent states that the applicant asked to go home early, and he said okay.

16Brent testified that after the applicant's second shift, Tom told him to get rid of the applicant, that the applicant was a "shitty waiter", and that he was not the same waiter that Tom previously had worked with. Brent states that after the applicant's fourth shift at Mistura, Tamara came up to him and said that the applicant was not fit to work at Mistura and that she did not think he was a good waiter. He states that Tamara raised questions about the applicant's knowledge and experience as a waiter, and said that she did not like the applicant at all.

17The applicant generally denies these descriptions of his work performance while he was training at Mistura. He specifically denies holding a coffee tray over a customer's head, or that Tom raised this issue with him. He acknowledges that he did ask about how much servers at Mistura earned in tips, because he wanted to know how much he could expect to earn while working there. He denies ever being hunched over in the back of the restaurant, or having any discussion with Brent about this. He does not recall having any issues with his balance while working at Mistura, and states that no one raised any such issues with him.

18Brent testified that after the applicant's fourth shift at Mistura, he spoke to Mr. Paolini about the applicant's performance and shared the feedback he had received from Tom and Tamara. He states that Mr. Paolini said that the upstairs lounge, Sopra, was very busy, and that he would try out the applicant as a bartender at Sopra. Mr. Paolini confirmed this discussion with Brent. He testified that he had two parties coming up at Sopra, and he needed staff to cover these events. He states that he thought that the bartender role might be better suited to the applicant, as it was not so hectic and fast-paced as the server role at Mistura.

19December 2, 2015, was the applicant's last shift at Mistura. The applicant states that before his next shift on December 3, 2015, he fell and sprained his ankle. The applicant denies that this had anything to do with his M.S., and says that it was just a freak accident. The applicant states that he called Brent to advise him that he had hurt his ankle, and asked whether Brent still wanted him to come in. He states that Brent told him to come in to work. The applicant states that on this phone call, he also disclosed to Brent that he has M.S. The applicant states that he did this because he wanted to be upfront with his employer. He states that when he got to work, Brent said that he would no longer be working at Mistura, but would work as a bartender upstairs at Sopra. The applicant states that he asked Brent why he was no longer working at Mistura, to which Brent responded, "we will talk about it."

20Brent's evidence confirms that the applicant called him on December 3, 2015, to say that he had sprained his ankle. Brent disagrees that the applicant disclosed that he had M.S. on this call, as he states that the applicant had previously disclosed that he had M.S. when Brent found him hunched over in the back. Brent's evidence is that the decision already had been made to try out the applicant as a bartender at Sopra prior to the applicant's call.

21The applicant worked two shifts at Sopra, on December 3 and 4, 2015. His evidence is that he performed his duties both nights, that he did not have any issues, and that no concerns about his performance at Sopra were raised with him. He states that he had no restrictions as a result of his injury, and that there was nothing that he could not do.

22Once again, the evidence of the respondent's witnesses stands in stark contrast to the applicant's evidence. One of the servers that the applicant worked with on both nights at Sopra was Dawn. Dawn testified that the applicant was limping because of his injury, and needed to stay behind the bar due to his limitations. She states that the applicant's limitations were tough on the rest of the team, as all of the staff at Sopra help each other out with the various duties. She states that it felt like they were down one team member on both nights.

23Dawn testified that at the end of the first night, the applicant wanted to go home when the party was finished. She states that she explained to him that Mr. Paolini wanted the team to stay in order to set up the lounge for the following night. She states that in response, the applicant said, "If the boss asked you for a blowjob, would you give him that too?" She states that she looked at the applicant behind the bar, and said "What?" She states that she was pretty appalled by this comment. She states that she told Mr. Paolini that the applicant had made this comment. Another staff member at Sopra ("Chris") who worked that night also recalls the applicant making this comment, and Mr. Paolini recalls Dawn telling him about the comment. The applicant denies that he said this.

24Dawn testified that she was asked for feedback on the applicant, and she said that she didn't think that the applicant was suited for the kind of work they did at Sopra. She ascribed this to a "bad attitude" and the limitations caused by the applicant's sprained ankle.

25Chris also worked with the applicant at Sopra, although she cannot recall whether it was for one or two shifts. She testified that the applicant was not up to speed and was not working as fast as the other members of the team, which caused everyone else to have to work harder.

26Tamara worked at Sopra for the applicant's first shift on December 3, 2015. She testified that the applicant was unresponsive to the server's needs, and did not come out from behind the bar to assist the other staff in clearing tables. She states that this is expected of all staff members at Sopra, as they work together as a team.

27Another staff member ("Nicholas") worked with the applicant on his second shift at Sopra on December 4, 2015. Nicholas is Mr. Paolini's son. Nicholas testified that he was working primarily as support that night, and that his duties were to help the servers with whatever they needed. He states that for most of the night, the applicant stayed behind the bar and wasn't doing very much. He states that when it came time to serve food to the tables, generally all staff at Sopra assist in bringing the food out and serving it. However, he states that the applicant was nowhere to be seen when this needed to be done. Nicholas states that when it came time to clear the plates from the tables, he saw the applicant standing behind the bar and not doing anything, so he asked the applicant to help. He states that the applicant said he was not comfortable clearing plates and didn't want to drop something on someone's head. Nicholas states that he then asked the applicant to assist in the dish pit, where staff scrape extra food left on the plates into the garbage and stack the plates. He states that the applicant said he would do that, but by the time Nicholas got back with the second load of plates, the applicant had already gone back behind the bar.

28Nicholas states that he reported to the other servers and his father that the applicant was slow and not helping with anything for the entire shift.

29None of the individuals who worked with the applicant at Sopra were aware that he has M.S.

30Mr. Paolini testified that by the end of the applicant's second shift at Sopra, it was clear that the applicant was not working out. He states that the servers who trained the applicant at Mistura did not recommend that he be hired, and that he had received the same feedback from the staff at Sopra. Mr. Paolini states that at the end of the shift on December 4, 2015, he and Brent met with the applicant to tell him that he would not be hired. He states that he told the applicant that he wasn't a good fit with the team system and needed something less fast-paced, more like a manager position. He states that the applicant responded by saying that no one was hiring, and asked whether he could run the respondent's social media or park cars. Mr. Paolini states that he advised the applicant that he already had staff who performed those functions. Mr. Paolini states that he then said to the applicant that sometimes, watching him work, he fears for the applicant's safety. He states that in response, the applicant said that he had lived with M.S. for 13 years, to which Mr. Paolini replied by saying that he knew one person with M.S. and that it gets worse. Mr. Paolini states that this was the first time he had broached M.S. with the applicant.

31Mr. Paolini states that he did not let the applicant go because of his disability, but because the applicant was not suited for the team system used by the respondent. He acknowledges that he didn't get into the specifics of the applicant's work performance or tell the applicant to his face that he "sucked", because sometimes you want to let people off gently.

32Brent testified that he doesn't recall all of the details of the meeting with the applicant on December 4, 2015. He states that Mr. Paolini was very empathetic and compassionate, and let the applicant go with ease without being blunt and straightforward. He states that M.S. was brought up by the applicant after Mr. Paolini said that he was not a good fit for the team. He states that at that point, the applicant brought up his M.S. and his situation at home, stating that he was having a hard time at home, that he had two children, that it was Christmas time, and that he needed to make money. Brent recalls Mr. Paolini telling the applicant that the respondent had no other positions available at that time.

33The applicant's evidence regarding this meeting is very different. He states that he was told by Mr. Paolini that he was being terminated because of his M.S. He states that Mr. Paolini said that he knew people who have M.S. and that M.S. is one of those things that doesn't get better and only gets worse, and that the respondent's business was probably not a good place for the applicant to be. The applicant states that Mr. Paolini talked about how they felt that the applicant could have been a hindrance to the team and that he wasn't going to do things he needed to do. He states that neither Mr. Paolini nor Brent said anything about his work performance or that he was not able to do the job. He states that they just talked about how M.S. affects his life and how it was going to affect his job.

34The next day, on December 5, 2015, the applicant went back into Mistura to turn in his work hours. He engaged Brent in a discussion that he recorded on his cellphone. I have a CD of this recording as well as a transcript of the discussion, and can confirm that the transcript accurately reflects what was recorded. Brent also acknowledged in his evidence that the transcript is an accurate depiction of what was said.

35In this discussion, the applicant asked about getting some assistance from Mr. Paolini in trying to find a new job, to which Brent replied that he would ask Mr. Paolini to put in a good word for the applicant. The applicant then asked Brent about his performance, to which Brent replied, "there is nothing about you working man, you know what I mean, as we said last time, it wasn't about you working, your work ethic, it's about you know a safety issue that we just don't feel comfortable ... that's about it." The applicant then asked whether they were worried about his safety or their safety, to which Brent replied, "No, we are worried about your safety, we don't feel as if we are going to, you know ... it's your safety that we are worried about. We just don't feel comfortable ..." The applicant responded that he had been doing this for 25 years and knew what he was doing, to which Brent replied, "But you've only had M.S. for 13, and you know that M.S. is something that spirals out of control, okay ... we are approaching a time that is extremely busy too, right, so."

36From the respondent's perspective, the context in which this recording was made is important. Brent was busy setting up the restaurant for the evening. He says that he just wanted to get rid of the applicant, so that he could continue with his duties. Brent stated on cross-examination that he lied when he said these things to the applicant. He states that the decision not to hire the applicant was because of his performance, but that he did not want to humiliate the applicant by saying this to him when other people were around and that he was trying to be compassionate. He acknowledged that when he said "as we said last time", he was referring to the meeting with the applicant the previous evening. When asked, if he was referring to the termination meeting, why he didn't just say that the applicant wasn't a good fit as he says Mr. Paolini had said, Brent said he was just trying to spare the applicant's feelings. Brent denied that the "safety issue" he was referring to in this recording was related to the applicant's M.S., but had no real explanation for why he moved from talking about a "safety issue" to making reference to the applicant's M.S. When it was put to him that in fact he was repeating what Mr. Paolini had said to the applicant the previous evening, Brent denied this and said that he was just making up "bullshit" in order to get rid of the applicant and get back to work.

37Before leaving my review of the evidence, there are two further issues I wish to address. The first issue relates to evidence I heard about the applicant drinking on the job. Tom testified that at some point when the applicant was working at Mistura, he saw the applicant drinking a glass of red wine. This is denied by the applicant. Tom also testified that he saw the applicant drinking while he was working at Sopra. He states that when he walked into Sopra through the kitchen, he saw the applicant take a rock glass with a little bit at the bottom and chug it down. The problem with Tom's testimony is that his Record of Employment shows that his last day of work with the respondent was on November 30, 2015, which is before the applicant worked his two shifts at Sopra.

38Tamara testified that when she worked with the applicant at Sopra on December 3, 2015, they were preparing for the party before any guests had arrived and she was standing on one side of the bar decanting wine, while the applicant was on the other side of the bar. Tamara states that she saw the applicant take a bottle from where the scotch and ryes were behind the bar and pour himself a number of drinks. Tamara states that she was pretty amazed at the quantity the applicant drank, which she says was four or five double shots within 15 or 20 minutes. This is also denied by the applicant.

39Drinking on the job is completely unacceptable for Mr. Paolini, who testified that he would immediately fire any staff member who did so. This is supported by the evidence of other respondent witnesses. However, both Tom and Tamara testified that they did not report the applicant's alleged drinking to Mr. Paolini or Brent prior to the end of the applicant's employment. As a result, this alleged drinking cannot have been any part of the reason for the decision to end the applicant's employment. However, I make reference to this evidence as it affects my assessment of credibility of these witnesses, and also impacts my analysis and decision.

40Second, I heard evidence from Mr. Paolini and other respondent witnesses about two employees with disabilities who work for the respondent. One server who continues to work for the respondent has leukemia, and gets fatigued and cannot work more than three days in a row. Another server who continues to work for the respondent has epilepsy as well as a spinal condition. The respondent submits that this evidence demonstrates that Mr. Paolini does not discriminate against employees with disabilities and is prepared to accommodate their needs.

Analysis and Decision

41My determination of the issues raised in this case involves my assessment of the credibility and reliability of the witness evidence. In making this assessment, I have been guided by the well-established principles as set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and particularly the following comments at pp. 356-357:

...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 demeanour 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.

42I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, as follows (at paras. 58 to 60):

"Credibility" is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called "credibility") and reliability. The first, honesty, speaks to a witness' sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness' perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.

All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Depending on the circumstances, some portions of a witness' testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness' evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.

43The applicant wants me to reject Brent's evidence because he admitted to lying on the tape recording made on December 5, 2015 when he said that the issue was not with the applicant's work performance or work ethic. He wants me to reject Tom's evidence because he is lying about having seen the applicant having a drink while working at Sopra, at a time when Tom was no longer employed by the respondent. He wants me to reject Tamara's evidence because she is exaggerating about how many drinks she says the applicant had while working at Sopra on December 3, 2015. He wants me to reject the evidence of Nicholas because he is the respondent owner's son. He wants me to reject the evidence of Dawn and Chris because they remain the respondent's employees. And he wants me to reject Mr. Paolini's evidence because he is the owner of the respondent and an interested party in the outcome of this proceeding.

44I will start with the evidence of Dawn and Chris. I found both of them to be very credible witnesses. They both were clearly reluctant and uncomfortable in having to testify before this Tribunal. I found both of these witnesses to be measured in giving their evidence, and they confined their testimony only to matters that they personally observed and were clear in not responding to questions where they had no direct knowledge. Indeed, the most damning evidence from Chris only came out during cross-examination, when she gave evidence about having heard the "blowjob" comment only in response to a direct question. In my view, I have no hesitation in finding that both of these witnesses gave truthful and reliable evidence, and in particular that the applicant in fact did make the "blowjob" comment as alleged by the respondent. Given that the applicant denied making this comment, I find that he was not telling the truth when he did so. By the applicant's logic, I should therefore reject the applicant's evidence.

45That, however, is not necessarily the proper approach to the assessment of credibility. As an adjudicator, I have the ability to accept all or any part of a witness' evidence, depending on which portions of a witness' testimony may be more credible or worthy of belief than other portions: see R. v. Taylor, above. Just because I find that a witness has not provided credible or reliable evidence in relation to one aspect of their testimony, does not always mean that I need to reject that witness' evidence in its entirety.

46What is striking to me about the evidence is the consistency between the respondent's witnesses in relation to their assessment the applicant's attitude and work performance. They variously testified that he failed to help out when needed, that he could not keep up with the fast pace of service, that he seemed uninterested in learning how things worked at the respondent's business, and that he displayed a poor attitude in a variety of ways, including by making the "blowjob" comment, by asking questions only about how much he could earn, and by wanting to leave early. I accept the applicant's evidence that these issues were not directly raised with him during the short time he worked for the respondent (with the possible exception of the coffee tray incident). But that is not a human rights violation. These issues were reported to Brent and to Mr. Paolini by the staff who were training and/or working with the applicant, and informed the assessment made by Mr. Paolini that the applicant was not suited to work for the respondent as part of its team approach to service. In my view, the applicant's poor attitude and performance were the primary reason that the respondent made the decision to discontinue the employment relationship.

47I appreciate that on the recording of the December 5, 2015 discussion, Brent told the applicant that "there is nothing about you working", "it wasn't about you working" and "it's not about your work ethic." Given all of the evidence I have heard, it is clear to me that this is simply not true, as Brent himself admitted in cross-examination. However, the fact that Brent wasn't truthful with the applicant when he came into the restaurant at a busy time to hand in his hours does not mean that I can completely discount all of the other evidence I have heard about the assessment of the applicant's attitude and performance by staff and what was reported to, and observed by, Brent and Mr. Paolini. In my view, a more probable explanation for what Brent said in this context is that he was uncomfortable having this discussion with the applicant at that particular time and in that particular context, especially with other people around, and denied the attitude and performance issues in a perhaps misguided attempt to spare the applicant's feelings.

48At the same time, I also find that the applicant's M.S. was a least a factor in the decision to discontinue the employment relationship. On Mr. Paolini's own evidence as to what was said at the meeting on December 4, 2015, Mr. Paolini said to the applicant that he sometimes feared for the applicant's safety while watching him work. I find that this comment is directly related to the applicant's M.S., as it pertains to Mr. Paolini's observations of the applicant being unsteady on his feet while working at Mistura, which was reported to Mr. Paolini as a potential symptom of the applicant's M.S., and the reports made to Mr. Paolini about the applicant being hunched over in the back of the restaurant, which was reported to Mr. Paolini as being attributed by the applicant to a flare up of his M.S. I find that this was the "safety issue" referenced by Brent during his discussion with the applicant on December 5, 2015, which Brent further clarified as a concern about the applicant's own personal safety and as being what made the respondent uncomfortable.

49I appreciate Mr. Paolini's evidence on cross-examination that he cannot say for certain whether the applicant's unsteady gait at work was due to M.S. or some other cause, as he is not a doctor and is not knowledgeable about the symptoms of M.S. But this had been reported to Mr. Paolini through Tom as a symptom of the applicant's M.S. Further, Mr. Paolini certainly knew, because this had been reported to him by Brent, that the applicant being hunched over in the back had been attributed by the applicant to his M.S. Further, even if I accept Mr. Paolini's evidence that the applicant was the first one to bring up his M.S. at the meeting on December 4, 2015, the applicant did so in direct response to Mr. Paolini's expression of concern about the applicant's safety at work, and prompted Mr. Paolini's comment about knowing someone with M.S. and that this condition only gets worse. In addition, in my view, the connection between the respondent's concern about the applicant's safety and his M.S. is further reinforced by the comments made by Brent on December 5, 2015, when he followed up his statement about the concern for the applicant's safety with direct reference to the applicant's M.S.

50I appreciate that the applicant does not believe that he required any workplace accommodation for his M.S., and did not make any needs for accommodation known to the respondent or relate his M.S. to any issues with his work performance. Nonetheless, in the instant case, the respondent knew that the applicant had M.S. The respondent also knew, with regard to the reported occasions when the applicant was found hunched over in the back, that the applicant was said to have attributed this directly to his M.S. In my view, given that this was what was reported to Brent and Mr. Paolini by Tom, the respondent also ought reasonably to have known that the applicant's unsteadiness of gait may be related to his M.S.

51Accordingly, I find that the respondent's expressed concern about the applicant's personal safety at work was at least one factor in its decision to discontinue the employment relationship, and that this safety concern was related to the applicant's M.S.

52In making this finding, I am cognizant of the well-established principle that a protected right under the Code need not be the only or even the principal reason for the adverse treatment, and that it is sufficient for the protected right to have contributed to, or played a role in, the adverse treatment: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 43 to 52.

53On either basis, I find that the respondent violated the applicant's right to be free from discrimination in employment because of disability, as protected under s. 5 of the Code.

54Having found that the respondent violated the applicant's rights under the Code, I next need to consider the remedy to which the applicant is entitled. The applicant claims compensation for lost income, on the basis that but for being subjected to discrimination because of his M.S., he would have continued to work for the respondent.

55The governing principle in making an award of this kind of monetary compensation to an applicant is that the purpose of compensation is to place the applicant in the position he would have been in had the discrimination not occurred: see Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.); Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).

56Applying that principle to the situation where discrimination is only one factor in a decision to discontinue an employment relationship, the question I need to consider is whether, on a balance of probabilities, the decision to discontinue the applicant's employment is more likely than not to have occurred in any event, even if the protected right had not been considered by the respondent: see Dix v. The Twenty Theatre Company, 2017 HRTO 394 at para. 112; Graff v. Jones Lang LaSalle Real Estate Services, Inc., 2017 HRTO 331 at para. 14; Clennon v. Toronto East General Hospital, 2010 HRTO 506; Pileggi v. Champion Products, 2009 HRTO 2097.

57As I have found above, the "safety concern" expressed by the respondent pertained to the applicant's unsteady gait and being found hunched over in the back, both of which I have found are related to the applicant's M.S. I further find that the concerns about the applicant's slowness and inability to keep up with the fast pace of the respondent's business also may be related to the applicant's M.S. However, the evidence before me does not support that the other concerns about the applicant's attitude and work performance were related to his M.S. These include the applicant's failure to help out when needed, being uninterested in learning how things worked at the respondent's business, and displaying a poor attitude by making the "blowjob" comment and by asking questions only about how much he could earn. On the basis of the totality of the evidence before me, I find on a balance of probabilities that the applicant's employment would have been discontinued in any event for non-discriminatory reasons, even absent any consideration of the issues that relate to his M.S.

58In this regard, I further find that, even if the applicant's employment had not been discontinued on December 4, 2015, his employment would nonetheless have been discontinued in any event prior to his next shift for reported drinking on the job. In making this finding, I place no reliance on Tom's evidence about observing the applicant drinking, both because I do not find this aspect of his evidence to be reliable and because he does not appear to have had any intention of reporting this alleged conduct to the respondent at the relevant time.

59However, I do not make the same finding in relation to Tamara's evidence. On December 3, 2015, she was decanting wine at the bar at Sopra, and so was in a direct position to witness the applicant's actions. While she did not identify the specific bottle that the applicant poured from, she states that the applicant took it from where the bottles of rye and scotch were, which is consistent with the evidence before me that the applicant drinks whiskey. There is no indication in the evidence before me as to how Tamara would know that. As stated above, the applicant takes the position that Tamara exaggerated her evidence regarding the number of drinks she says the applicant had, which she stated was four or five double shots within 15 or 20 minutes. The applicant submitted that no one would be able to work under the influence of that amount of alcohol in that short of a period of time. In my view, that depends on the individual's level of tolerance. In this regard, I note the medical evidence before me that as recently as June 2013, the applicant had reported having 10 drinks of whiskey a night. In any event, regardless of the precise quantity of alcohol that he drank that evening, I find that Tamara did witness the applicant drinking alcohol while working.

60More significantly, I accept Tamara's evidence that she intended to report the applicant's conduct to Mr. Paolini when she showed up for her next shift a few days later, and did not do so only because she found out from Brent that the applicant was no longer employed by the respondent. If the applicant's employment had not been discontinued on December 4, 2015, I find that it is more likely than not that Tamara would have reported the applicant's drinking to Mr. Paolini after she arrived for her next shift, and the applicant's employment would have been discontinued in any event at that time for reasons unrelated to his M.S.

61In his Application, the applicant also claimed $25,000 as compensation for injury to dignity, feelings and self-respect. In final submissions at the hearing, the applicant increased this claim to $100,000.

62The Tribunal's jurisprudence primarily applies two criteria in evaluating 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 Arunachalam v. Best Buy Canada, 2010 HRTO 1880.

63In terms of the impact of the respondent's rights on the applicant, the applicant's evidence was that, as a result of the discontinuance of the employment relationship, he felt hopeless and felt that he had been violated in every way. He states that he got sick right after this happened and was in bed for four days and gained 30 pounds.

64While I have found that the respondent violated the applicant's rights under the Code, I also have found that this would not have meant that he would have continued to be employed by the respondent. As a result, to the extent that the applicant's evidence about impact relates to the impact of losing his employment, I find that he would have experienced that impact in any event. Nonetheless, I find that the tying of the termination of his employment to "safety concerns" that I have found were related to the applicant's M.S. had an impact on him. However, in the absence of any medical practitioner testifying before me, I am not prepared to accept the applicant's evidence that the way he was treated by the respondent is responsible for the marked deterioration in his medical condition that is shown in the medical report dated December 21, 2015 and in his ODSP application from January 2016.

65In terms of the objective seriousness of the respondent's violation of the applicant's rights, and while any violation of the Code is a serious matter, I do not accept that this violation falls at the high end of the scale, as the applicant submits. The applicant also asked me to take into account the respondent's conduct during the course of this proceeding when making my award. Much of this was based on the assertion that Brent admitted to lying on the tape recording and that other respondent witnesses lied in their testimony. While I have not accepted some of the evidence of the respondent's witnesses for the purpose of this Decision, I also have not accepted some of the applicant's evidence. In my view, this is not an appropriate consideration in the circumstances of the instant case.

66In making my award, I have considered decisions of this Tribunal where a protected right was found to have been a factor in the adverse treatment at issue, but where it was also found, as in the instant case, that the adverse treatment would have occurred in any event. These cases include: Dix v. The Twenty Theatre Company, 2017 HRTO 394 ($5,000); Cooke v Trimaster Manufacturing, 2010 HRTO 455 ($5,000); Safdari v. Avant Garden Services, 2013 HRTO 644 ($2,000); Correia v. York Catholic District School Board, 2011 HRTO 2289 ($10,000).

67In my view, an award of $6,000 as compensation for injury to dignity, feelings and self-respect is appropriate in the circumstances of the instant case.

68In the Application, the applicant also seeks an order requiring that the respondent provide anti-discrimination training for management and staff, and that the respondent create and post within the workplace a policy setting out its responsibilities under the Code.

69With regard to the latter request, the respondent has filed with the Tribunal its employee handbook, which Mr. Paolini testified is available to employees at the respondent's point-of-sale stations. This handbook includes a page on House Rules and Policies, which includes the provision that "no employee or manager shall be permitted to comment on, joke about, or make reference in any way to any person's sexuality or sexual preference, physical disability or deformity, race, religion or culture." The handbook also includes a page that is to be signed by each employee, which includes a commitment to the foregoing provision and also includes a commitment not to "use racist, sexist or profane language in the workplace." While not as robust as some human rights policies, it is my view that these provisions in the employee handbook are sufficient given the size and nature of the respondent business, such that no order is required for the creation and posting of any further human rights policy.

70I do, however, think that it would be appropriate to order that at least Mr. Paolini and Brent take some training on human rights issues. Accordingly, I am ordering the respondent to require Mr. Paolini and Brent to take the on-line course entitled "Human Rights 101" which is available on the website of the Ontario Human Rights Commission at http://www.ohrc.on.ca/en/learning/human-rights-101 and the on-line course entitled Duty to Accommodate available at http://www.ohrc.on.ca/en/learning/duty-accommodate within 30 days of the date of this Decision.

ORDER

71For all of the foregoing reasons, I hereby make the following order:

a. The respondent shall pay to the applicant the sum of $6,000 as compensation for injury to dignity, feelings and self-respect, with post-judgment interest on this award accruing at a rate of 2.0% per annum on any amount that is not paid within 30 days of the date of this Decision;

b. The respondent shall require Paolo Paolini and Brent Ali to undertake human rights training through accessing the Human Rights 101 and Duty to Accommodate e-learning modules available through the website of the Ontario Human Rights Commission.