HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Winsome Campbell
Applicant
-and-
Paradigm Sports, Inc.
Respondent
A N D B E T W E E N:
Byron Campbell
Applicant
-and-
Paradigm Sports, Inc.
Respondent
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Campbell v. Paradigm Sports, Inc.
APPEARANCES
Winsome Campbell and Byron Campbell, Applicants
Nicole Simes and Nadia Halum, Counsel
Paradigm Sports, Inc., Respondent
Eivind Lange, Representative
Richard Seagrave and Direct Kaddy, Respondents
Alex Van Kralingen and Mark Repath, Counsel
Introduction
1In the Application filed by the applicant Winsome Campbell, the applicant alleges that she experienced reprisal and discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). In the Application filed by the applicant Byron Campbell, the applicant alleges that he experienced reprisal and discrimination in employment on the basis of marital status contrary to the Code. These Applications were filed on January 26, 2016.
2The respondent (“Paradigm”) manufactures motorized golf caddies. The president and owner of Paradigm is Eivind Lange. Paradigm is incorporated pursuant to the laws of the State of Minnesota and it operates from its head office located in Massachusetts. Prior to October 2016, when Paradigm’s operation in Ontario was closed down, it provided sales and service of its products in Ontario from a warehouse located in Mississauga, Ontario.
3The applicants, who are husband and wife, were employees of Paradigm. They were warehouse labourers at the Mississauga location. Richard Seagrave, the General Manager was their direct supervisor. Their employment came to an end in August 2015.
4Ms. Campbell alleges that near the end of her employment she was experiencing stress, anxiety and depression and that the Paradigm was aware of this. She claims that on July 29, 2015 she had a fall at the workplace injuring her neck, back and shoulder and that she required several days off work as a result of the fall and time off to attend medical appointments. According to the applicants they had always been compensated for sick days and medical appointments.
5The applicants’ allege that two weeks after the fall, they learned that Paradigm had docked their pay for the time missed from work. Upset over this, Ms. Campbell left several angry voicemails with Paradigm.
6The applicants indicate that following these voicemails, Paradigm laid-off the applicants and they were never recalled to work despite the respondent’s indication that it would recall them In February 2016.
7According to the applicants, on February 16, 2016, after the Applications were filed and received by Paradigm, Paradigm hired a warehouse labourer to perform the same duties the applicants performed before their layoff and that on April 11, 2016, another warehouse labourer was hired.
8The applicants maintain that Paradigm reprised against them when it decided not to recall them back to work.
Request for Order
Background
9The hearing into this matter took place on October 20 and 21, 2016. Following the hearing, on November 10, 2016, the applicants provided their closing submissions and final written argument that summarized the evidence at the hearing and provided legal submissions on both liability and remedy.
10On or about December 1, 2016, Paradigm provided its closing submissions and final written argument.
11The Tribunal had not yet rendered its decision following the hearing and the parties’ closing submissions when, on December 15, 2016, the applicants filed a Request for an Order During Proceedings (“RFOP”) seeking to add three additional respondents to the Applications.
12The RFOP sought to add Eivind Lange, Richard Seagrave and Direct Kaddy Distribution – a business name registered to Mr. Seagrave and used as the business style for his sole proprietorship (“Direct Kaddy”).
13In its written submissions, Paradigm indicated that it had closed its Canadian operation on October 31, 2016. The applicants indicate that on August 12, 2016, the business name Direct Kaddy was registered by Mr. Seagrave. They allege that Direct Kaddy sells, among other sports related products, the golf cart manufactured by Paradigm.
14The applicants allege that Mr. Lange shut down his Ontario operation immediately after the hearing to avoid liability. At paragraph 28 of their submissions, the applicants state:
Knowing that his business would continue in the form of Direct Kaddy, Mr. Lange waited until after the hearing to close Paradigm Sports. Mr Lange represented that Paradigm Sports would accept all potential liability so that Direct Kaddy could continue his business without being liable to the Campbells.
15At paragraph 48 they state: “Therefore, Mr. Seagrave has reprised against the Campbells by colluding with Paradigm Sports and Mr. Lange to ensure that Paradigm Sports avoids liability”.
Analysis
16In my view, the issue being raised by the applicants is the ability of Paradigm to remedy any Code infraction and in that regard the applicants have placed an overreliance on the statement that Paradigm closed its operations in Ontario in October 2016.
17There has been no indication that Paradigm cannot remedy the alleged violations, if so ordered, and the applicants have provided no evidence of same. Paradigm has provided a substantive Response to the Applications, it has met its disclosure obligations, it has provided witness statements and it has led evidence at the Tribunal and it has provided closing submissions in writing and it has responded to the RFOP, all in a timely manner.
18In my view, the applicants are confusing the concepts of liability with recoverability, in arguing that Mr. Lange, Mr. Seagrave and Direct Kaddy should now be added to these proceedings. I do not find that, as stated in the RFOP, Paradigm’s withdrawal of operations from Ontario is an attempt to avoid liability as Paradigm continues to exist and is fully operational, albeit in the United States.
19In my view, the issue of recoverability from Paradigm has not changed at all as a result of the alleged post hearing conduct of Mr. Lange, Mr. Seagrave or Direct Kaddy. It was Paradigm that has withdrawn its presence from Ontario, an option that was always available to it. At the time the Applications were brought, the applicants knew or ought to have known that Paradigm was an American corporation and they knew or ought to have known that Paradigm’s business presence in Ontario was diminishing given that the workforce in the warehouse was reduced from several employees to two people – the applicants.
20Nevertheless, the applicants chose to name Paradigm as the only respondent in both Applications and then proceed to a full hearing of the Applications. It would appear that now, only after Paradigm no longer has a presence in Ontario, a foreseeable outcome from the outset, that the applicants seek to add new respondents to the proceedings, at this very late stage, apparently to avoid some of the additional work that may be required to enforce a potential judgment outside Ontario.
21I find, moreover, that it would be patently unfair to add Mr. Lange, Mr. Seagrave or Direct Kaddy as respondents to these proceedings at this juncture. It would in my view be a complete breach of the principals of natural justice for the Tribunal to add them as parties at this stage of the proceedings as they have had no participation rights to date and, in the case of Mr. Lange in the capacity of a personal respondent. They have been given no opportunity to respond to the allegations in the Applications, they have been given no opportunity to review or participate in disclosure, they have been given no opportunity to hear the case against them or cross-examine witnesses at the Tribunal.
22Undoubtedly, one of the primary purposes of proceedings before the Tribunal is to provide remedies to victims of discrimination. This mandate, in my view, cannot be pursued at the expense of the principles of natural justice. If a positive finding of a Code violation is made by the Tribunal, the right of the applicants to secure a remedy against Paradigm is, in my view, sufficient to satisfy the purposes of the Code while at the same time preserving the rights of the putative respondents to natural justice.
23In my view, this RFOP to add Mr. Lange, Mr. Seagrave and Direct Kaddy as respondents is an attempt to recast the net of liability and expand the scope of the proceedings.
24For these reasons the RFOP to add Mr. Lange, Mr. Seagrave and Direct Kaddy as respondents is denied.
summary of the evidence
25The Applications were heard over two days, October 20 and 21, 2016. The Tribunal heard evidence from the applicants and the respondent. There was also evidence from the applicants’ medical doctor and a respondent witness who worked for Paradigm at the Mississauga location.
26At the beginning of the hearing the applicants moved to have their Applications amended by changing the style of cause to correctly identify the corporate respondent as Paradigm Sports, Inc., to add the ground of reprisal and to include the remedy of “re-instatement”. The respondent voiced no objection to these changes. Accordingly, the amendments were allowed.
27The following is a summary of the evidence heard.
Ms. Campbell’s Evidence
28Ms. Campbell testified that she was born in Jamaica 49 years ago, that she has a grade 9 education from Jamaica and that her husband is Byron Campbell.
29She testified that she commenced her employment with Lektronic Caddy in February 2000 as a warehouse labourer and that Lektronic was taken over by Paradigm in about 2007. She continued her employment with Paradigm. As a warehouse labourer, she assembled and packaged golf bag carriers.
30She indicated that Paradigm originally employed at least 6 people who were involved in the shipping, handling and assembly of the carts but by 2015 only she and her husband were working in the warehouse. Ms. Campbell testified that when the other employees left she and her husband had to do everything including, shipping, handling and assembly, and that “it was too much”.
31Ms. Campbell stated that she reported to Richard Seagrave who was the general manager. She stated that the owner of Paradigm, Eivind Lange, worked in the United States and since the end of 2013 would come to the Mississauga warehouse once per month.
32Ms. Campbell testified that she and her husband each worked 37.5 hours per week making $15.00 per hour in 2015 and that they had no benefits.
33Ms. Campbell testified that when she or Mr. Campbell were off sick or took time for medical appointments they would nevertheless be paid. According to Ms. Campbell, Mr. Seagrave would punch their time-clocks when they were sick or at medical appointments, saying to them that it was the best he could do and that they deserved it.
34Ms. Campbell stated that there was too much work and that she went to the washroom and cried. She said that Mr. Seagrave saw her crying. She testified that she talked with Mr. Seagrave and Jacqueline Parente, the office manager, about the stress. She claimed, nevertheless, she tried to cope with the stress as there was nothing she could do about it.
35Ms. Campbell explained that in July 2015 she went to her doctor who gave her a letter stating that she was to be on light duties. She indicated that she always carried the note around in her purse but never gave it to the respondent.
36Ms. Campbell testified that in July, 2015 she told Ms. Parente and Mr. Seagrave that she was scheduled for throat surgery on September 15, 2015 and that she would need three weeks off work to recover.
37She confirmed that she wrote and sent the following undated note to Mr. Seagrave:
Hi Richard
Good day to you. I’m just writing you this note to let you know that I’m not happy here anymore and I cannot bother to come and talk to you a the time. It seems like I bothering you. I’m telling you the honest truth. When I open my check today and see what I get I’m not happy at it. I don’t want to talk to our boss. Why because you are our manager. I thought we are going to get like over a thousand Dollars for our pay. Please I am asking you to sit and think about this. Me and you know that me and Byron deserve more because we are not getting benefit never bonus. If you where (sic) in my shoes you would think the same way I’m thinking. I don’t feel that I want to work here anymore. I know every time I said this but I’m not joking this time. I mean it. I’m asking you A? Did Iivan talk to you before he leave. The reason why Byron don’t say anything because he doesn’t like to talk. I go ahead an say what is bothering me is either you like me or hate me because that is who I am. At least we should be getting $18.00 and you know we deserved it as our manager you know er are not lieing please do something. Not even a thousand every two week thats not good to me. I hoping my next paycheck is what I ask for. Thank you for reading.
38Ms. Campbell testified that while she wrote that she felt she did not want to work at Paradigm anymore, she did not mean it. She stated that she needed some affirmation, a pat on the back and that she was angry.
39She confirmed that she wrote and sent the following undated note to Mr. Seagrave:
Hi Mr. Seagrave good morning
I hoping you are in a good mood. First you are very nice to us and I don’t want to write anything that is going to upset you. But I’m really concern about certain things. Richard you know everything that goes on in the workplace. You know that me and Byron know everything about what we are doing. Coming to work in the morning is good but we are not happy because of certain thing when we do anything no one never come and said thank you no good morning. It seems that we are nothing. One day I don’t think I’m going to come back. I don’t know when but soon and this not because of you. When you were working at the other place I pray that you were in charge not Rose and Frank because they never treat us good. So I said to Byron that we are going to ask you for a raise and I remember you said you would try but nothing happen. What I trying to say to you Mr. Seagrave is we are asking for a little more that what we are get. I don’t know if you know how much we are getting, but at least we deserve more working at a place for 15 yrs and cannot get $1000.00 every two weeks That is not fare at least we should get that or more. When I employee was to do assembly and now we are doing what five people use to do. I don’t mine doing all I’m doing but see to it that we get more no one is looking ouit for us we of to do it ourself every two weeks I get my check were looking for a surprise but nothing happen you know we are a good worker anything you ask us to do we do it we should be getting more no matter what because Rose was getting salary for doing nothing. Richard please I counting on you, you are our only hope. You can get someone to help but me is the one who have to teach them what to do so what sence doesn’t it make you are going to say company is not making but if you get some one to work they have to get pay. Richard when we are at work we are work family because if anyone get sick we are not going to sit there and let it get worst so we need to respect each other and have love for each other is only 4 of us. Richard I’m telling you the true. If it wasn’t for you we would not be working there honestly Because Evane treats us like we are nothing. And we are not happy. Please talk to Evian. Because we cannot deal with this any longer. We are not refugee. Please free to come and talk 2 us. I need answers. Thank you for reading.
40Ms. Campbell testified that this letter was written out of anger because she “got no respect”. She confirmed that she was asking for a raise, that the other employees were gone and she was doing their jobs.
41Ms. Campbell identified her May 15, 2015 letter to Mr. Lange:
People dont know what they have until they loose it you don’t know how important we r.2.u.
May 15 -2015
Hi Mr. Lange good day
im writing to you about what mr. seagrave said to us. eivind i’m asking you to come here on spend a week and stay in the warehouse and you will see – and you will be more and happy to pay us. i’m asking you a question and i need your honest answer. if you come and i ask you to make a dyna-steer [caddy] i know you don’t know the first things to do. what me and byron do in this place no one cannot do what we did. we just come from jamaica and i call richard said we have to come in because you need order – and you get it. you use to pay six people. 4 of them leave only 2 of us left . we are doing what four people work and cannot go home with a thousand dollars bi-weekly. we delicate ourselves at this work 15 years not 15 month are day. when i just start work i was only doing assembly. now im doing customer service- shipping assembly. we are human machine in your place. if it wasn’t for me and byron u would not making one dime. me and byron running ur company. all i’m asking for is a fair share you use to pay rose and frank big-bucks. we are not asking for house and car. eivind if you really have a heart you know that we need more money. you r not fair. im not going to stay there working for nothing one day i’m not going to show up and that will be point of no return. i’m serious. people to give our manager – and answer to give us then we will take it from there. we are your company without us the company is zero believe me.
42Ms. Campbell testified that this letter too was written in anger.
43Ms. Campbell testified having received the following letter dated May 28, 2015 from Mr. Lange:
Dear Winsome:
I have received your letter dated May 15th. I have had time to reflect on your comments and I must say that after 8 years of being employed by Paradigm Sports and all these years of working together, I am extremely disappointed that you did not approach me in a more constructive way than a threatening letter.
I would like to clarify a few points you made:
Richard and I are adept at building and servicing Dyna-Steers, so you are under the incorrect assumption that your departure would bring the company to its knees. I have personally serviced hundreds of Dyna-Steers in the U.S. Richard has been with the company for over 15 years and has not only built, but also designed parts of the Dyna-Steer. If you left we would have to train new employees, but, we both know how to build all the carts.
The reason you are doing more work is because we no longer have the sales volume to support 6 people. We have had to reduce employment, and that has meant you have been asked to do a broader range of functions. We could have laid off and kept others on to do the work, but, we value your and Byron’s work and have kept you on.
You and Byron have received annual raises; since 2011 you have received a 25% increase in pay from $11 to $15 per hour. This more than compensates the additional work you have taken on and the value we place in both of your contributions. More importantly, we have transitioned you from seasonal employees to full time employment. This has resulted in significant increase in your income and has been a challenge for Paradigm in terms of paying you in the off season.
I hope given these facts you will reconsider your threat to leave, but, if you feel you need to do so, please do me the courtesy of giving 2 weeks’ notice. If you need time to look for another job, I have told Richard you can take time off without pay to apply elsewhere.
Sincerely,
Eivind Lange
44Ms. Campbell noted that Mr. Lange indicates in his letter that they do not have the sales volume. She stated “I don’t believe it. He always says there is no money”.
45Ms. Campbell testified that July of 2015 was a very hot month. She indicated that on July 29, 2015 she arrived at work and that she was feeling okay but then she felt like vomiting. She stated that she went to the bathroom and passed out. She recalled that Mr. Campbell found her on the floor and that he called Ms. Parente and together they carried her to the kitchen. An ambulance was called and she was taken to the nearest hospital facility. Ms. Campbell indicated that the doctor told her to take two days off work and gave her a completed WSIB form, “Health Professional’s Report”, and a blank “Worker’s Report” which she completed. She indicated that she faxed both reports to WSIB. Ms. Campbell indicated that the doctor also gave her forms for her employer to fill out. She testified that, as she was to stay off work, she gave these forms to Mr. Campbell to take into work the next day.
46Ms. Campbell testified that she returned to work on Friday July 31, 2015, notwithstanding the doctor’s direction to take two days off work. She explained that if she did not work Friday she would not be paid for the holiday Monday. However, she had a doctor’s appointment that Friday. She testified that she told Mr. Seagrave that she was having a scan that morning. Ms. Campbell indicated that she and her husband went to work as usual, they clocked in, and then they left the workplace as Mr. Campbell had to take Ms. Campbell to her appointment. According to Ms. Campbell, Mr. Campbell returned to work after dropping her off at her appointment.
47Ms. Campbell indicated that when her appointment was over she called her husband who came and picked her up and they both returned to work. She testified that Mr. Seagrave told her that Ms. Parente had advised him that she was to take two days off work. Mr. Seagrave stated that he had talked to Mr. Lange who said she should go home. Ms. Campbell recalled that Mr. Seagrave told her that he would pay her for the day.
48Ms. Campbell testified that she returned to work on Tuesday, August 4, 2015 feeling stressed. She indicated that Ms. Parente asked how she was feeling. Ms. Campbell claimed that she reported to work every day thereafter and completed her duties.
49Ms. Campbell testified that on August 14, 2015 she noticed that her and her husband’s paycheques from the two-week period dated July 25 to August 7, 2015 were reduced in that her paycheque was missing 18 hours and her husband’s was missing 3 hours pay. She indicated that that evening she called and left a message for Mr. Seagrave. Ms. Campbell acknowledged that her message had been recorded and agreed that the transcript of the recording is accurate:
Hi Richard, this is me, Winsome. I don’t think I’m coming back to work because…I’m not blaming you…but you guys are not fair because you guys take out 3 hours out of Byron’s pay…and put yourself in his shoes…if your wife or any member of your family should be sick and you take them to hospital…right…would you like them to take 3 hours out of your pay…it’s not like he comes home and didn’t come back to work…he did right…cuz Jackie was asking him if he punch out and it has fucking nothing to do with Jackie and I’m really pissed off…because we are like family to that place and I’m not friggen coming because the reason I’m not at work is because I’m friggen sick…I’m friggen sick…and you know that people don’t think that people don’t know their rights in here Richard…but I do know my rights and Eivind better know it too because I’m not friggen stupid…I’m not stupid cause I know my friggen rights, and I’m not really happy and I’m not coming back there because you guys are not fair…thank you for listening.
50Ms. Campbell testified that when she made this call she was very angry. She explained that when she said “I know my rights” she meant that she would call “human rights”. She stated that while she indicated in the call that she would not be coming back to work, she did not intend to quit. She explained that had she intended to quit she would have written a letter of resignation.
51Ms. Campbell acknowledged making another call about 90 minutes later and acknowledged that the transcript of that recording is accurate:
Hi Mr. Lange. This is Winsome. I’m not calling you because I’m speaking to you I’m recording what I’m saying. I’m not calling you to be, to make a fuss or trouble or what of you. The point is I respect you very much, because I’m working for you and you pay me. But there is something I do not like. And you know what, you have to tell the truth…you have to get things off your mind. The other day I fell and I sick. Right. I didn’t come at work to sick…and imagine I sick I fell down and I feel Like I dead I didn’t know where I was I passed out…and Imagine Byron the ambulance come to take me to hospital…my husband come to pick me up from the hospital…right…I come to work on Friday they sent me home…he’s the one who carry me back home…it’s not like he didn’t come…He carry me home and didn’t come back to work… we work 75 hours a week every two weeks…and I don’t know the reason why you guys took 3 hours from his pay. He take me home to go back to work…it’s not like he didn’t go back to work…because what I think is for him to let me stay thee and die…that’s what I think…you know you have to treat people the way would like…you know what I’m not going to blame you. I don’t know what’s going on I don’t really like it. I don’t like it …honestly and I’m not fighting with you because as I said I respect you…bye.
52Ms. Campbell acknowledged making yet another call about 30 minutes later and agreed that the transcript of that recording was accurate:
Hi Mr. Seagrave…it’s me…Winsome again…I’m sorry to pour out my anger on you…which is not your fault...but I’m really upset…I’m not upset about me …I’m upset about Byron because who so ever do the paycheque and because whoever tell Eivind…it’s not right because it is sickness…I was sick and he take me home right at the time he take me home Wednesday she couldn’t come back to work it is time for hour to go home…and Thursday he comes to work…I did not come to work…and he works for the whole day…Friday he comes to work he took me to the hospital and takes me home back right…and it is not right that for them to take from his paycheque…its sickness and with me Richard honestly…they took 18 hours from my pay and by law I show up to work on Wednesday and I’m supposed to get pay for 4 hours…on Friday I’m supposed to get paid 4 hours right because by law I showed up for work…and I don’t think it is fair…it is not nice…it is not really nice…and I’m not happy…I’m not telling you to get upset…if you want to get upset I cannot stop you…I’m sorry to take it out on you but it is not fair because we dedicate our lives there to that work..3 hours is nothing and I don’t see why they take 3 hours from Byron’s pay…cause it is sickness…and if it was we and you would do the same thing for your wife and family…and Jackie would do the same thing for her husband and family…and I don’t think it’s right and I’m really really upset...It’s not like I come there cause I’m looking for something and I try to be sick…I don’t try to be sick...and if I was not sick Richard I would be at work…I sick right now I have to go to so many tests on my shoulder where I was hit…the last thing they have to do is a MRI cause they can’t figure out why my shoulder is hurting…because I don’t tell you guys anything because I don’t want to happen to happen is why I don’t tell you guys anything what’s going on…right and as I said I’m not throwing anything on you but I’m not happy and if it was you you would complain too...anyways I don’t know what I’m going to do and if anything you can call me.
53Ms. Campbell testified that she and Mr. Campbell did not report for work on August 17, 2015 because she had a medical appointment relating to her upcoming throat surgery.
54Ms. Campbell recalled that when she and Mr. Campbell reported for work on August 18, 2015, Ms. Parente was removing a sign from the warehouse door and that Ms. Parente told them not to go inside.
55According to Ms. Campbell, they went into the lunchroom where Ms. Parente asked her for her key and told them not to unpack their lunch or begin working. Ms. Campbell indicated that she told Ms. Parente that she would only hand over the key to Mr. Seagrave.
56Ms. Campbell testified that later that morning Ms. Parente advised the applicants that she had spoken to Mr. Lange and that they could begin to work.
57According to Ms. Campbell, when Mr. Seagrave came to work later that morning he said to her that she had fallen at work purposefully in order to get money from the respondent.
58Ms. Campbell recalled that later that day Ms. Parente asked that her husband speak to Mr. Lange on the telephone. She indicated that during the conversation Mr. Lange advised her husband that they were being laid off immediately because there was no work. Ms. Campbell claimed that when she got on the phone she told Mr. Lange that he just could not lay her off today and that she wanted two weeks notice as that was the length of notice Mr. Lange wanted from her if she resigned. Ms. Campbell indicated that Mr. Lange told her that she and Mr. Campbell would be recalled in February.
59Ms. Campbell explained that the last time she was laid off was in 2012 and that in those days they were given two months notice in advance of the lay-off. She testified that she would have gone back to work in February if she had been recalled.
60Ms. Campbell testified that, having been laid off, she and Mr. Campbell simply left the warehouse. According to Ms. Campbell, once home she contacted “human rights” and she was directed to contact the “labour board”. She indicated that the labour board told her that she was entitled to notice of two months and that she had to be recalled within 13 weeks.
61Ms. Campbell testified that on August 19, 2015 she phoned Mr. Lange and told him about the notice and recall requirements set out by the labour board. According to Ms. Campbell, Mr. Lange just laughed saying it would never happen. Allegedly he also said angrily that she had brought outsiders in, meaning WSIB, and that he did not want to see her or Mr. Campbell ever again.
62Ms. Campbell indicated that she applied for WSIB but was denied because according to WSIB the fall she had taken was not related to the work place.
63Ms. Campbell testified that when she was laid off she felt like she would die. She could not sleep or eat. She indicated that she never found another job despite having dropped off 10 – 12 resumes. She said she was interviewed once but there was never any follow-up. She was on E.I. until it ran out at which point she had to go on Ontario Works.
64Ms. Campbell testified that she never received any payments from the respondent and never heard from the respondent after August 19, 2015. She was never recalled back to her job.
65Ms. Campbell indicated that she was let go because of the fall she had taken and because she brought WSIB personnel to the workplace.
Evidence of Byron Campbell
66Mr. Campbell testified that he was born in Jamaica 54 years ago, has a grade 9 education from Jamaica and is the husband of Winsome Campbell.
67He indicated that he had his job for 15 years and it entailed assembling the carts, and packaging. He made $15.00 per hour and worked 37.5 hours per week. In 2015 he reported to Richard Seagrave.
68Mr. Campbell testified that he had no benefits but when he took sick days or went to medical appointments he always got paid and that this was authorized by Mr. Seagrave.
69According to Mr. Campbell, as the other employees were let go or left, he had to do more work and had to move faster and that this was very stressful.
70He testified that his wife cried a lot in the washroom at work and lost weight. He explained that Ms. Campbell asked Mr. Seagrave for an assistant but she was refused. He indicated that he felt depressed and that his relationship with his wife was being negatively affected.
71He indicated that Ms. Campbell had to go to the doctor for her stress whereas before the other employees left she was fine.
72Mr. Campbell testified that July 2015 was “very, very hot”. He explained that Ms. Campbell was feeling “fine” coming to work on July 29, 2015. However, while he and Ms. Campbell were sitting at work, Ms. Campbell said she wanted to go to the bathroom. He indicated that when she did not return he went to the bathroom where he found her on the floor. According to Mr. Campbell, Ms. Parente called the ambulance and Ms. Campbell was taken to the hospital. She was released toward the end of the work day.
73Mr. Campbell testified that he went to work the following day but his wife did not. He indicated that he reported to work on July 31, 2015.
74He indicated that he did not go to work on Monday, August 17, 2015 because he was upset that 3 hours had been deducted from his pay but he went to work the next day as he had calmed down. According to Mr. Campbell, when he got to the warehouse, Ms. Parente told him not to do anything until she spoke with Mr. Lange. According to Mr. Campbell, later that morning she told him and his wife that they could start work.
75Mr. Campbell testified that he spoke with Mr. Lange over the telephone that day and that he was told that he was being laid off that day. He indicated that he told Ms. Campbell what Mr. Lange had said. He stated that Ms. Campbell then called Mr. Lange and was told that she was laid off too. Mr. Campbell explained that Ms. Campbell told him that Mr. Lange had said that they would be called back in February.
76Mr. Campbell testified that in the past when they were laid off they would get three weeks to a month notice prior to the layoff. They would always be called back in March. He indicated that they would call us, “we never called them”, to come back to work.
77Mr. Campbell stated that he was never told by Mr. Lange “I never want to see you again”. He explained that Ms. Campbell told him that Mr. Lange said that to her.
78Mr. Campbell testified that he has not been able to replace the income he earned at Paradigm. He indicated that he signed up with temporary work agencies, dropped off resumes and filled out job applications. He said that he attended two job interviews but was not successful in obtaining the positions because they needed skilled tradespersons.
79Mr. Campbell testified that he felt very bad and ashamed about having to apply to Ontario Works.
80He indicated that he felt very stressed not having work and that he had nightmares and on one occasion he fell out of bed while sleeping and injured himself in the process.
Evidence of Dr. Mary El-Sabawy
81Dr. El-Sabawy testified that she is a family physician and that the Campbells are her patients.
82She referred to her clinical notes. She noted on May 21, 2015 Ms. Campbell:
“is sad and depressed since Feb/2015 after she saw her sister in her home country. She is emotional and can not function. She needs help. She has lack of interests. Also she has lack of concentration, lack of sleep and appitite (sic). She feels guilty.”
83Dr. El-Sabawy noted on June 17, 2015 Ms. Campbell: “will go for total thyroidectomy in Sep. 2015. She will come back for pre op in Aug. 2015.” On July 2, 2015 she noted Ms. Campbell: “needs a note to work to be on light duties for the back pain.” Then on September 10, 2015 Dr. El-Sabawy writes that Ms. Campbell: “cannot sleep at night. She is stressed out because they lay her off and her husband without any reason??”
84With respect to Mr. Campbell, Dr. El-Sabawy testified that he had difficulties sleeping since the lay-off. On June 7, 2016 Dr. El-Sabawy noted that Mr. Campbell:
…fell from his bed while he was sleeping…He had a bad dream and he was fighting with someone…He and his wife are off work and his wife said he is very stresse[d] lately and he keeps getting nightmares.
Dr. El-Sabawy testified that the nightmare may have been connected to stress and that Mr. Campbell had never visited her before in connection with a nightmare.
Evidence of Eivind Lange
85At the beginning of his testimony Mr. Lange adopted his witness statement as true and it was entered into evidence. The statement reads:
In April of 2007 Paradigm Sports purchased the assets of the Lectronic Kaddy Corporation (LKC). Paradigm then employed many of the ex-employees of LKC including winsome and Byron Campbell. Paradigm Sports manufactures walk behind golf carts (kaddys) in both the United States and Canada. The business is extremely seasonal with little to no revenue in the winter months. Paradigm continued LKC’s practice of laying off all hourly employees in the winter.
In the winter of 2011 Paradigm began a winter program where kaddy owners could store their carts in our facility over the winter and have the carts tuned up. Paradigm employed Byron over the first two winters of this program in 2011 and 2012 but continued to lay Winsome off. In 2013, with the retirement of Paradigm’s service manager, both Byron and Winsome were employed over the winter to repair stored kaddys.
From a cash flow perspective the program was a disaster. Expenses were incurred from October through April but payment for the storage repairs was in some cases not made until August. Continuing declines in revenue due to a downturn in the golf industry, and competition from Chinese carts forced Paradigm in 2015 to delay the repair of these carts until the spring, closer to the time the repairs were paid for. We brought the carts into our facility over the winter but did not begin the tune ups until February of 2016.
May 15, 2015
I received a fax from Winsome threatening to walk off the job if she and Byron were not paid more. The tone of the letter was threatening and stated the company was nothing without them. A copy is available. Various letters were left for Richard Seagrave (General Manager) and Jacqueline Parente (Office Manager) prior to this letter. The letters all complained about the rate of pay and one of them said they should be given a raise to $18 per hour. Copies of these letters are available.
May 28, 2015
Responded to letter via fax and stated I was disappointed in the “threat” and if they needed to take time off to look for another job we could let them take time without pay.
Mid June 2015
Richard Seagrave called me in the U.S. office to say that he was suffering from the early stages of kidney failure. He had received a liver transplant from his sister in 2012 and the plan was for his sister to donate one of her kidneys to Richard. Richard put me on notice that at some point he might have to go on dialysis and at that point he would have to go on long term disability due to requiring dialysis three times per week.
Mid July 2015
Richard called me in the U.S. office and said his kidney function continued to decline. He felt it would not be long before he would have to go on dialysis. He was undergoing testing, with the plan that by January 2016 he would receive one of his sister’s kidneys. We discussed the fact that the continuing downturn in golf caddy business combined with his absence from the company would require that we go back to laying off Byron and Winsome as we had up until 2013. We determined that they could do 5 kaddy tune-ups per day and if they returned in early February we could conduct 300 tune-ups in 60 business days. We could therefore have the required tune-ups completed by April 30th, 2016.
July 29, 2015
Jacqui called me at approximately 8:30 to tell me that Winsome had fainted in the women’s restroom and was complaining of shoulder and chest pain. She had arrived at approximately 8 am. and fainted at about 8:05 am. She said an ambulance had been called. She said that Byron told the ambulance driver that she had been feeling ill in the shower that morning.
July 31, 2015
Richard called and said that Winsome and Byron showed up for work and that Winsome had a note from a doctor saying she should not work until Monday. We agreed with the doctor’s note, and Richard sent Winsome home to rest.
August 14, 2015 [Friday]
Paradigm received five after hours voice mails from Winsome. Two voice mails were left for Jacqui, two for Richard, and one for Eivind in the U.S. In the voice mails Winsome said that they were not happy with the hourly deductions for missed time and stated three times in the message to Richard that they were not coming back to work. Tape recordings of these voice mails are available.
August 17, 2015 [Monday]
Jacqui called me and played the voice mails from August 14, 2015. She also informed me that Byron and Winsome did not show up for work. They never called in to let us know if they would not be coming in the next day.
August 18, 2015
Jacqui and Richard phoned and said that Byron and Winsome had shown up for work. Although we had planned to lay them off before Labor Day weekend, I told Richard we should lay them off immediately, although we could reasonably argue that they had resigned. They were told to return the first week of February so see if we could work out terms for their return to work. At this point Winsome produced a letter from her doctor, dated July 21, 2015 stating that she should be on a reduced work load. Richard and Jacqui signed and dated the letter on August 18th, when it was presented.
August 19, 2015
WSIB contacted Richard regarding a visit to our facility. On the 19th Richard gave Dominic Bututuga, Occupational Health & Safety Inspector, a tour of the plant. No issues were found, but Paradigm was told to post a Heat Stress Policy. Copies of this report are included.
August 24, 2015
We received correspondence from WSIB indicating that on August 20th Winsome had established a WSIB claim for a workplace injury.
September 4, 2015
Richard left Paradigm to go on long term disability. He began dialysis. Due to the waiting list for outpatient care, Richard had to be admitted to the hospital in order to receive dialysis. The plan was to receive a kidney from his sister in January but he had to stabilize his health before a transplant could be done.
September 29, 2015
We received a copy of the WSIB Entitlement Decision denying Winsome’s claim.
November 13, 2015
I received a letter from Winsome and Byron’s law firm, MacLeod Law Firm, asking for payments off $63,750 each to Winsome and Byron Campbell for lost wages and damages.
December 9, 2015
We received a copy of Winsome’s appeal to the WSIB ruling.
February 16, 2016
One seasonal employee was hired to assemble and repair golf kaddys. Winsome and Byron never contacted Paradigm about returning to work.
April 11, 2016
A second seasonal employee was hired.
May 5, 2016
We received correspondence from WSIB that Winsome’s appeal was denied.
86What follows is Mr. Lange’s testimony in cross-examination.
87Mr. Lange testified that he was aware of the practice of not docking time for medical appointments and he confirmed that the company would send employees home with pay due to heat. He indicated that Paradigm did reduce the work force in the warehouse starting in 2012 from 4 or 5 employees to two.
88When questioned why he referred to having 6 employees in his May 2015 letter to Ms. Campbell, he indicated that Ms. Campbell wrote 6 employees in her letter to him but that was not the point of his letter to Ms. Campbell.
89Mr. Lange testified that although there were fewer employees, the Campbells did not experience a heavier work load, rather the range of functions grew.
90He testified that he did not think the work was stressful and that Mr. Seagrave never told him that Ms. Campbell felt overwhelmed and stressed.
91Mr. Lange stated that he talked to Mr. Seagrave about hiring additional staff at the behest of Ms. Campbell but decided against it as there was not enough work. He indicated that Ms. Campbell told him that if the company hired someone, she would have to train the person and that person would have to be paid so the company may as well just pay her more money and forego any new hire.
92Mr. Lange testified that Ms. Campbell sounded angry in her letters but it was not about her additional duties, it was because she did not get a raise. He agreed that Mr. Campbell never left voice mails or sent letters threatening to quit.
93Mr. Lange testified that he was under the impression that on July 29, 2015 Ms. Campbell had some sort of bug or flu and that the fall was not related to the workplace. He conceded that the fall was serious and that there were bodily injuries. He also confirmed that on August 18, 2015, immediately following her lay-off, Ms. Campbell gave them a doctor’s note stating that she needed to be on light duties. He indicated, however, that the note was dated July 21, 2015 and that he did not know why she withheld it from them.
94He indicated that the plan was to lay the Campbells off at Labour Day however he moved it up to August 18, 2015 because of the letters Ms. Campbell sent them indicating they were quitting and because, without any notice, they never showed up for work on August 17, 2015.
95With respect to the telephone conversation he had with Ms. Campbell regarding her lay-off, Mr. Lange indicated that he did not tell Ms. Campbell that he never wanted to see her again, rather he told her he did not want to see her again until February.
96Mr. Lange testified that in the past the previous office manager would have given advance notice of lay off but he was not sure of the length of that advance notice.
97He stated that he was angry at Ms. Campbell for contacting WSIB. People came to inspect the premises because she told them that she fainted and then fell because of the heat. Mr. Lange indicated that this was not true, rather she was sick on that day and that was the cause of her fall.
98Mr. Lange indicated that he had always intended to call the Campbell’s back in February until he received a letter in November 2015 form their lawyer threatening to sue him for lost wages and for breaching the Campbells’ human rights. He testified that “they were not coming back now.”
Evidence of Jacqueline Parente
99Ms. Parente indicated that she was the office manager during the relevant period of time and that she reported to Mr. Lange. She started with the company in 2007. She confirmed that at the time of her testimony she was still employed at Paradigm.
100She testified that on July 29, 2015 she arrived at work and the Campbells were already there. She recalled that before the Campbells started work, she heard a bang in the washroom and on entering with Mr. Campbell saw that Ms. Campbell had vomited and fainted. Ms. Parente indicated that she asked Mr. Campbell to get his car and take her to the hospital but Ms. Campbell asked her to call an ambulance. She claims that when the ambulance arrived Mr. Campbell told the attending paramedic and her that Ms. Campbell was sick in the morning before even leaving for work, but that she came into work anyway. The ambulance took her to Trillium Hospital.
101Ms. Parente testified that Ms. Campbell did not come to work on July 30, 2015 but that she had talked with Ms. Campbell on the phone and Ms. Campbell said her doctor said not to come in to work for a couple of days.
102She indicated that on August 14, 2015 Ms. Campbell left a number of after hour voice mails and that she taped them and played them for Mr. Lange when she phoned him on August 17, 2015. Ms. Parente testified that, in her view, given the contents of the voice mails, the Campbells had quit.
103She testified that the Campbells had talked about quitting before. She indicated that they threatened to quit every time they got upset or were looking for a raise. Ms. Parente stated that Ms. Campbell told her that she and Mr. Campbell did not need their jobs, that she had a friend for whom she could work and that Mr. Campbell told her that he could work for a courier.
104According to Ms. Parente neither of the Campbells phoned in to advise that they would not be coming to work on August 17, 2015.
105Ms. Parente testified that when the Campbells arrived at work on August 18, 2015 she was putting up a sign on the door instructing them not to start work until they had spoken with Mr. Lange. She indicated that on their arrival she removed the sign and then called Mr. Lange to tell him that they had arrived.
106According to Ms. Parente that while only the Campbells worked in the warehouse, and that they may have had more responsibilities with the reduction of the workforce, no one was busy. She claimed that some days may have been stressful, however, often there was nothing to do but sweep floors.
107She testified that she did not know that the Campbells were paid for medical appointments. She indicated that she did not do payroll. She stated that the Campbells punched their cards and Mr. Seagrave sent them to Mr. Lange, who did the payroll.
analysis and findings
108The applicants’ position is set out in their final written submissions:
At the time of her termination, Ms. Campbell was suffering from physical and mental disabilities. The Respondent had enough information to know of these disabilities, both physical and mental. This triggered the Respondent’s duty to accommodate. In failing to engage Ms. Campbell in discussions about accommodation, the Respondent did not meet its duty to accommodate. Furthermore, it subjected Ms. Campbell to differential treatment on the basis of her disability, and ultimately laid her and her husband off. In making this decision, the respondent also considered the fact that Ms. Campbell contacted WSIB with regard to her workplace accident, and raised her human rights in response to the differential treatment. Mr. Campbell was laid off simply because of his relationship to Ms. Campbell. The Respondent chose not to recall the applicants based on the fact that they alleged the layoff was discriminatory and because they filed this Application before the Tribunal.
109The onus is on the applicants to establish on a balance of probabilities that it is more probable than not that they experienced within the meaning of the Code discrimination and/or reprisal as they allege. In making my assessment of credibility, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 at pages 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 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.
110I also have been assisted by the observations on credibility assessment made by Justice Green in R. Taylor, 2010 ONCJ 396, [2010] O.J. No.3794, where he states 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: Honest (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 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 CA), 1995 CanLII 3498 (ON CA), )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 the any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para.
Did Ms. Campbell have a disability?
111Section 5(1) of the Code prohibits discrimination in employment on the basis of disability. Section 10(1) of the Code defines disability as:
a. Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…
b. A mental disorder, or
e. An injury or disability for which benefits were claimed or received under the insurance plan established under Workplace, Safety and Insurance Act, 1997.
112I find that at the time of her lay-off, Winsome was experiencing a number of health issues: anxiety and depression as well as a rotator cuff injury for which she claimed benefits under the plan established under the WSIA.
113In McLean v. DY 4 Systems, 2010 HRTO 1107 the Tribunal stated at para. 49:
[t]he definition of disability is to be interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne et des droits de la Jeunesse) v. Montreal (City), 2000 SCC 27.
114The Tribunal has indicated in several decisions that anxiety and depression can amount to mental disorders and therefore constitute disabilities under the Code. See for example Budd v. 783720 Ontario Inc., 2015 HRTO 825.
115In my view, there is sufficient evidence to conclude that Ms. Campbell had a mental disability within the meaning of the Code. Her family doctor testified that she had diagnosed Ms. Campbell with anxiety and depression in late spring of 2015. She provided oral evidence and her clinical notes indicate that Winsome was “emotional”, “could not function” and “needed help”. Dr. El Sabawy also noted lack of interest and concentration, difficulty sleeping and lack of appetite. She prescribed Ms. Campbell Celexa, a drug medication for treating depression and anxiety. Mr. Campbell testified that Ms. Campbell often cried in the workplace washroom. Ms. Campbell testified that Mr. Seagrave saw her crying at the workplace in early summer 2015. Ms. Parente testified that Ms. Campbell seemed stressed.
116The medical evidence indicates that Ms. Campbell, as a result of her fall, sustained a rotator cuff injury that required ongoing treatment. The Tribunal has found that a rotator cuff injury was a disability: Trites v. New Directions Aromatics Inc., 2013 HRTO 2102. In my view, this injury is a disability for the purposes of the Code. Moreover, Ms. Campbell claimed benefits under the insurance plan established under WSIA for her rotator cuff injury, which meets the statutory definition of disability under s. 10(1)(e) of the Code.
Did the respondent know about Ms. Campbell’s disabilities?
117For the reasons that follow, I find that the respondents and key employees such as Mr. Seagrave knew or ought to have known about Ms. Campbell’s disabilities.
Mental Disability
118It is clear that Ms. Campbell did not bring any medical notes or requests for accommodations to the respondent with respect to what I have found was a mental health disability in the spring and summer of 2015. However, in my view, this does not mean that the respondent was not under sufficient notice of facts that accommodation might be required. On the contrary, I find that the respondent had sufficient information to trigger a duty to make reasonable inquiries whether the uncharacteristic behaviour Ms. Campbell was exhibiting may have related to mental health concerns.
119In McLean, above, the Tribunal reviewed its cases concerning the degree of information necessary to conclude that a respondent employer knew of a disability. At para. 56:
Most authority indicates that the claimant will not be held to a high standard of clarity in communication. This approach is in keeping with the principles enunciated by the Supreme Court of Canada in respect of the need to interpret human rights legislation generously and purposively. Liability has been found when an employer had no knowledge of the disability. See, for example, Re Ottawa Civic Hospital,…, in which an arbitrator concluded that there can be a breach of the Code if an employer fires an employee in ignorance of the disability that caused problems, and refuses to reinstate a disabled employee once the disability becomes known to the employer….there are several cases in which the employee have little or no information about the disability, beyond an indication that a disability existed….
120In my view, the respondents knew, or ought to have known that the reduced workforce was causing stress for the Campbells. Mr. Lange testified that while the workload remained constant, job duties were broadened.
121In my view, the respondents had sufficient information that it ought to have known something was wrong with Ms. Campbell. Ms. Campbell testified that Mr. Seagrave saw her crying at the workplace in July 2015 and that she told him it was due to stress. No evidence was adduced by the respondent to contradict this testimony. As well, Ms. Parente, the office manager, indicated that she noticed signs of stress in Ms. Campbell.
122Mr. Lange testified that Ms. Campbell began drafting letters to Mr. Seagrave, something she had never done before. He agreed in his testimony that she sounded desperate and upset in these letters. In my view, Ms. Campbell’s erratic behaviour toward the end of her employment, such as the letters and voicemails, ought to have prompted the respondents to inquire if there was something wrong.
123I find that the respondents had sufficient information that they ought to have made reasonable inquiries whether the uncharacteristic behaviour Ms. Campbell was exhibiting may have related to mental health concerns.
Physical Disability
124There is no dispute that Ms. Campbell suffered a serious fall at the workplace in July, 2015. Ms. Parente corroborated Ms. Campbell’s testimony on this point. Mr. Lange acknowledged that Ms. Parent advised him of Ms. Campbell’s fall and agreed it was serious and a medical emergency. There is no dispute between the parties that the respondents knew Ms. Campbell suffered from a physical disability as defined in sec. 10(1)(a) of the Code.
125It is not disputed that Ms. Campbell applied for benefits under WSIA as a result of her workplace fall. Ms. Parente indicated that Mr. Campbell provided Mr. Seagrave with the Employer’s Report of Injury/Disease (“Form 7”) a few days after Ms. Campbell’s accident and Mr. Lange testified that he had no reason to dispute this. In my view providing Mr. Seagrave with the Form 7 is sufficient to conclude that the respondents were aware Ms. Campbell would be applying for WSIB benefits.
126The fact that Ms. Campbell was ultimately denied benefits on the basis that her fall ultimately was deemed not work-related does not change the fact that she had “an injury for which benefits were claimed…” within the meaning of sec. 10(1)(e) of the Code.
127In my view, the respondent knew that Ms. Campbell claimed benefits under the WSIA and therefore knew she had a disability pursuant to 10(1)(e) of the Code.
The Accommodation Process
128The Supreme Court of Canada has indicated that the duty to accommodate has both a substantive and procedural component. I find that the respondents failed to accommodate her anxiety and depression, in that they have breached both aspects of the duty to accommodate.
Procedural Duty
129The procedural duty to accommodate requires an employer to take adequate steps to explore the accommodation that is needed and to assess accommodation options. This means obtaining relevant information about the employee’s situation. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), [2008] 91 OR 3d 649 (ON SCDC).
130In a number of decisions, the Tribunal has considered when an employer can be said to have enough knowledge of an applicant’s disability to trigger responsibilities under human rights legislation. In Sears v. Honda of Canada Mfg., 2014 HRTO 45, (“Sears”) the Tribunal noted:
In an ideal employment world, the employee understands that s/he has a right to accommodation, and the employer understands its responsibilities under the Code. The employee makes a clear request for accommodation to an individual charged with this management responsibility, and this starts a cooperative process by which accommodation, to the point of undue hardship, is devised. There is no guarantee, however, that conditions will be ideal in all cases. The situation may be complicated by unclear communication on the part of the employee…by an employer’s limited understanding of its responsibility in respect of accommodation.
131In the Sears case the employee had a number of known vision-related issues including colour blindness. Unannounced the employer changed the colours on the computer display used by the employee and this change caused the employee great difficulty leading him to take a leave of absence. He eventually returned to work on modified duties but was ultimately terminated several months later.
132The Tribunal found that the applicant did not formally request accommodation; however, it noted that the procedural duty to accommodate means that an employer cannot passively wait for an employee to request accommodation where it is aware of facts that show the employee may be having difficulties because of disability. The employer, in these circumstances, has a duty to take the initiative to inquire.
133Notwithstanding its finding that the employee should have been more active in seeking accommodation, the Tribunal accepted there was sufficient information available to the employer to give rise to the duty to inquire. The Tribunal noted that with respect to the employee’s mental health, that at the time the applicant’s return to work was being discussed the employer’s notes referred to the applicant as “emotional teary eyed at times”, “agitated” and “hands shaky”. Based on this information the Tribunal concluded that the employer had information that should have triggered an inquiry into the nature of the applicant’s mental health problems and whether they might have affected the applicant’s ability to cope with the job or to clearly communicate needs for accommodation.
134In my view, similar to Sears, the respondent herein had sufficient information that ought to have triggered an inquiry into the uncharacteristic behaviour Ms. Campbell was exhibiting in the workplace, whether that behaviour may have been linked to mental health concerns and if so whether those issues were affecting her ability to cope with her job or to communicate accommodation needs. I find that, instead, the respondent chose to largely ignore the crying episodes, letters, etc. and did not engage in inquiries regarding these behaviours, which in turn would have been a precursor to any discussions into whether any accommodations might be necessary.
135The Ontario Divisional Court upheld the Tribunal’s decision in Lane, where it was held that failure to meet the procedural aspect of the duty to accommodate is itself a form of discrimination because it denies the affected person the benefit of the prohibition against discrimination and a proper search for accommodation.
Substantive Duty
136I find that the respondent failed in the substantive duty to accommodate Ms. Campbell.
137Ms. Campbell testified that it was stressful to come into work and be advised that Mr. Lange needed large orders to be filled on short notice. She also indicated that another stressor was the paperwork she had to complete. Ms. Campbell testified that the respondent could have allowed her more time to fill orders and could have delegated the paperwork to Ms. Parente or Mr. Seagrave, so as to allow her to focus on her warehouse duties.
138The substantive duty to accommodate considers the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation. The respondent has failed in its substantive duty to accommodate as it did not offer any accommodation or reasons for not providing accommodation that could have been made at the workplace to ease Ms. Campbell’s stress and improve her mental health.
139Having not engaged in accommodation discussions with Ms. Campbell, the respondent cannot say there was nothing that could have been done to accommodate Ms. Campbell or that an accommodation would have reached undue hardship.
Differential Treatment on the Basis of Disability
140The Campbells testified that there was a policy or practice in place that they were to be paid for sick days and short medical appointments. They indicate that this practice was not adhered to immediately following Ms. Campbell’s fall in that they were not paid for some periods of medical leave related to her fall. They argue that this is evidence of differential treatment based on disability in that they were not paid for this time off because the time off was in relation to a serious injury.
141Based on the evidence before me, I am unable to conclude that there was a policy or practice with respect to medical leaves. The parties did not disclose anything in writing outlining a medical leave policy. Mr. Lange testified that he was aware that Mr. Seagrave did not dock time for short medical appointments. Ms. Parente, on the other hand, who was the office manager, testified that she did not know that the Campbells were paid for medical appointments. Ms. Campbell testified that Mr. Seagrave would punch them in when they had a medical appointment. She also testified that “it was Jackie and Richard through their generosity who paid us for sick leave – they punched our cards”. However, the evidence indicates that on July 31, 2015 the Campbells punched their own cards, which in my view, is arguably not consistent with the expectation of getting paid for medical leave or appointment, given the evidence that Mr. Seagrave would punch them in when they had medical appointments.
142In my view, there is insufficient credible evidence to support what, if any, medical leave policy or practice was in place at Paradigm. It follows, therefore, the allegation of differential treatment cannot be sustained.
The Lay-off
143Ms. Campbell further submits that her disabilities were a factor in the decision to lay here off, or in the decision to lay her off early.
Mental Disabilities
144With regard to her mental disabilities, I find that the respondents failed in its duty to inquire before taking adverse action against her in breach of the Code.
145The Ontario Human Rights Commission’s Policy on Ableism and Discrimination Based on Disability articulates the requirements imposed on employers:
The duty to accommodate a disability exists for needs that are known…However, in some circumstances, the nature of certain disabilities may leave people unable to identify that they have a disability, or that they have accommodation needs…
Accommodation providers must attempt to help a person who clearly is unwell or perceived to have a disability by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation. Even if an employer has not been formally advised of a disability, the perception of such a disability will engage the protection of the Code … Before sanctioning a person for misconduct or “unacceptable behaviour,” an organization must first consider whether the actions of the person are caused by a disability…
146Ms. Campbell submits that the stress she was experiencing led her to exhibit unusual behaviour, such as crying at the workplace, writing letters and leaving upset voicemails. As indicated earlier, I have found that the respondent ought reasonably to have known that such behaviour may have been linked to a mental health issue. In my view, rather than make reasonable inquiries as to whether there may have been mental health concerns, and if so to engage in discussions on how to accommodate her, the respondents seized the opportunity to lay her off when she returned to work after having missed one day of work.
147Ms. Parente’s witness statement and documents the respondent created contemporaneously show that Mr. Lange had Ms. Campbell’s voicemails in mind when he made the decision to lay her off:
August 17, 2015: I played these voice mails for Eivand [sic]…
August 18, 2015: Winsome showed up and was asked to explain her phone calls. I then phoned Eivind and he decided to move ahead the layoffs; we could consider them to have quit based on the phone calls that Winsome placed.
148In these voicemails, Ms. Campbell is angry, and repeatedly mentions she is sick. Instead of considering whether the voicemail messages could be linked to a mental disability, the respondents summarily laid her off.
WSIB Benefits
149I find that Ms. Campbell’s application for WSIB benefits was a factor in her lay-off.
150In Deroche v. Recycling Renaissance International Inc., 2005 HRTO 26 the complainant was injured at work after approximately six months of employment. The employer attempted to dissuade him from filing for worker’s compensation and then, when he did so, terminated his employment.
151The Tribunal found that the act of terminating the complainant’s employment was done, in whole or in part, because the complainant engaged the processes of WSIB. The Tribunal further found that the conduct of the respondents was therefore due, either in whole or in part, to the complainant having or believing to have an injury or disability for which benefits were claimed or received under the insurance plan established under the WSIA. As a result, the adjudicator was satisfied that the complainant was discriminated against because of his disability as defined at subsection 10(1)(e) of the Code.
152I am of the view that similarly, the respondent knew, shortly after her fall that Ms. Campbell would be filing a claim under WSIA. Ms. Campbell testified that when she gave her husband a WSIB form for her employer to fill out, the respondent returned it blank. Ms. Parente did not have any knowledge of what happened to the form, as she indicated that Mr. Campbell had given it to Mr. Seagrave.
153As an aside, the evidence shows that the respondent did not file the required Form 7 until August 20, 2015, contrary to section 21 of the WSIA which requires employers to notify the Board within three days of learning of an accident.
154Mr. Lange gave evidence that he was not happy that Ms. Campbell claimed WSIB benefits. He expressed anger about the fact that inspectors had visited the respondent’s Mississauga premises in connection with Ms. Campbell’s fall. Although the inspection took place on August 19, 2015, it was Mr. Lange’s evidence that the inspectors had contacted Mr. Seagrave about the inspection prior to August 19, 2015.
155I find that it is more likely than not that Ms. Campbell’s claim for benefits under WSIA was at least, in part, a reason why Mr. Lange decided to lay her off when he did. I am satisfied that Ms. Campbell was discriminated against because of her disability as defined at subsection 10(1)(e) of the Code.
Reason for Lay-off
156The respondent maintains that its decision to lay Ms. Campbell off was not discriminatory because the layoff was planned. Mr. Lange testified that the winter storage program was a disaster and that when Mr. Seagrave advised him that he would need to take an extended medical leave given his kidney failure, the decision was made to lay off the Campbells, due both to the respondent’s financial situation and Mr. Seagrave’s leave of absence. Mr. Lange testified that he planned to lay the Campbells off on Labour Day.
157That being said, the fact is that the Campbells were laid off two weeks before Labour Day.
158In Huang v. High Life Heating, Air Conditioning & Security Inc., 2014 HRTO 1356, the adjudicator accepted that the applicant would have lost her job regardless of her pregnancy due to a downturn in business and the respondent’s perception that she was likely going to leave on her own accord. The Tribunal found that there was insufficient work to continue employing the applicant. Notwithstanding these factual finding, the Tribunal nevertheless found that it was more probable than not that the applicant’s pregnancy was a factor in the respondent’s decision to dismiss her earlier than planned. The Tribunal noted that the respondent did not provide an explanation for why, having decided to dismiss the applicant at some point in the future, the applicant was dismissed a week after she disclosed her pregnancy. Given the timing of the decision and the failure of the respondent to explain it, the Tribunal found that the pregnancy was a factor in the respondent’s decision to dismiss the applicant.
159I accept that Mr. Lange had decided to lay Ms. Campbell off on Labour Day yet she was laid off a few weeks after her workplace fall. Mr. Lange testified that when the Campbells reported to work on August 18, 2015, he laid them off. He testified that he decided to move ahead the layoffs because of the Campbell’s absence from work the previous day and Ms. Campbell’s voice mails giving him the impression that she and Mr. Campbell had quit. There are two issues that I need to determine arising from this testimony. First, was Mr. Lange accepting the resignation of his employees and effectively terminating the employment relationship or was he laying them off? These are mutually exclusive scenarios. And second, were there any Code factors at play in whatever decision the employer was making at this point. For the reasons that follow I find that Mr. Lange understood there was no real issue of resignation and instead he decided to move both employees’ layoff dates forward.
160Mr. Lange testified that the Campbells were always threatening to quit. Ms. Parente testified that Ms. Campbell threatened to leave her employment whenever she got upset or when she was looking for more money. In my view, Ms. Campbell’s voice mail threatening never to come back to work is an angry plea for more money and follows the pattern described by Ms. Parente. Under the circumstances, I find that Mr. Lange’s conclusion that the Campbell’s quit, given this context, is not tenable. Moreover, the fact that Ms. Parente was posting a sign on the warehouse door when the Campbells reported to work the day after their absence instructing the Campbell’s not to start work until they had spoken to Mr. Lange indicates, in my view, that the respondent was anticipating that the Campbells would be coming into work as usual and that they had not quit. Mr. Lange also testified, as set out in the Reprisal section below, that he only decided not to recall the Campbells from lay-off in November (when he found out they were raising human rights complaints). What I take from all of this is that Mr. Lange did not actually believe either employee had quit; instead he decided to penalize them and move their lay-off dates forward. The next question is whether any Code ground was a factor in either or both early layoffs.
Ms. Campbell’s Layoff
161Ms. Campbell was a long service employee, having worked for Paradigm and its predecessor company for over 14 years. No evidence was proffered to show that Ms. Campbell had a history of failing to report to work. Mr. Lange testified that there was little work to be done in any event, so a single absence of a day from work, in my view, would have had little or no impact on Mr. Lange’s business.
162In my view, it is more likely than not, that a factor in the decision to move up the layoff from Labour Day to August 18, 2015 was Ms. Campbell’s workplace fall and the respondent’s knowledge that WSIB would be involved, rather than the absence of a single day from work. Even if the absence for a day and the angry letters and messages were factors, and assuming those were non-Code related factors, the WSIB report was also a factor in the early layoff and it only needed to be one factor.
Mr. Campbell’s Layoff
163Section 5(1) of the Code prohibits discrimination in employment on the basis of marital status. Pursuant to section 10(1) of the Code marital status is defined as the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside of marriage.
164It was Ms. Campbell who wrote letters to Mr. Seagrave and Mr. Lange regarding the workload and wages. It was Ms. Campbell who fell at the workplace, sustained injuries and submitted a WSIB claim. It was Ms. Campbell who left upset voicemail messages about reduced pay. However, on August 18, 2015, both Mr. and Ms. Campbell were laid off.
165Mr. Lange testified that he decided to move the layoffs ahead because the Campbells did not report to work on August 17, 2015. When it was put to him that the layoffs were precipitated, at least in part, by Ms. Campbell’s voicemails, Mr. Lange insisted that the decision was made because the Campbells did not report to work on August 17, 2015. He then testified that they were always threatening to quit and that “if you’re going to play games and leave angry voicemails” then he was not prepared to let them stay until Labour Day, which, as I have found, was his original plan.
166Mr. Lange provided no evidence he received threats of quitting from Mr. Campbell in the past. He confirmed that he never received any letters from Mr. Campbell and that it was Ms. Campbell who left the voicemails, not Mr. Campbell.
167When specifically asked why Mr. Lange laid Mr. Campbell off, the only reason Mr. Lange offered was that he had the practice of laying them off together. This, however, contradicts his previous testimony that Mr. Campbell was not laid off in 2011 and 2012, whereas Ms. Campbell was. Mr. Campbell had experience working on his own without Ms. Campbell. It was not necessary, in my view, for the respondent to lay them off together.
168In my view, it is clear that the respondent really thought of the Campbells as a unit, and retaliatory action against one of them was necessarily extended to the other.
169I find that the respondent laid off Mr. Campbell on August 19, 2015 because of the person to whom he was married and that Mr. Campbell marital status was a factor in the respondent’s decision to take such action.
Reprisal
170Pursuant to section 8 of the Code, “[e]very person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.”
171The elements of a successful reprisal application are set out in Noble v. York University, 2010 HRTO 878. They are: (1) an action taken against, or threat made to, the complainant; (2) the alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and, (3) an intention on the part of the respondent to retaliate for the claim or attempt to enforce a right.
172I find that all three elements of a successful reprisal application are made out in the context of the respondent’s failure to recall the Campbell’s back to work in February 2016.
173In his testimony Mr. Lange indicated that he was planning on bringing the Campbells back in February 2016 and that he expressed that to the Campbells at the time of their layoff in August, 2015. When asked what changed between August and February, Mr. Lange testified unequivocally that the November, 2015 letter from the Campbells’ counsel changed his mind. In that letter the Campbells claimed their human rights had been breached by the respondent and claimed damages for this breach. Mr. Lange stated that he decided not to bring the Campbells back because “they sued me in November” and “they are not coming back now”. He testified that he was fully aware that the letter stated that the respondent breached the Code.
174In my view, in failing to recall the Campbells, the respondent took an action against the Campbells which satisfies the first element of reprisal.
175It is apparent that the letter from counsel was the catalyst that led to the respondent’s decision not to recall the Campbells. The connection between the Campbells claiming their human rights and the respondent’s decision is clear. Mr. Lange agreed that the letter advised him that the respondent had violated the Campbell’s human rights. I find, therefore that the second and third element of reprisal are made out and that the respondent reprised against both applicants when it decided they would not be recalled from layoff and effectively terminated both of them from employment.
remedy
176Having concluded that the respondent violated the applicants’ rights to be free from discrimination and reprisal contrary to sections 5(1) and 8 of the Code, I must determine what remedy, if any, is appropriate.
177The Campbells are claiming $35,000 each in general damages for compensation for injury to dignity, feelings and self-respect pursuant to section 45.2(1)1 of the Code. Ms. Campbell is also claiming $32,013.02 in special damages for loss of wages from August 19, 2015 to October 16, 2016. For the same period, Byron is claiming $32,305.85 in special damages for loss of wages.
178The respondent did not contest or otherwise address the applicants’ request for monetary compensation should the Tribunal find that the respondent violated the applicant’s rights.
Compensation for Injury to Dignity, Feelings and Self-respect
179Section 45.2 (1)1 of the Code provides the authority for the Tribunal to award monetary compensation to an applicant’s whose rights under the Code have been found to have been violated. This provision states:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part 1 of another party to the application:
- An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
180The guiding principles governing an award of compensation for injury to dignity, feelings and self-respect were set out in the Tribunal’s decision in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, where it stated at paras. 52 – 54:
The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination; see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury too dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34 -38.
181The considerations identified in the Sanford v. Koop decision, above, as being relevant to the applicant’s particular experience in response to the discrimination are (at para. 34):
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment
182I also have borne in mind that it is well established that the Tribunal’s remedial powers are not punitive in nature: McCreary v. 407994 Ontario, 2010 HRTO 2369.
183In my view, although the Campbells were initially laid off, their employment was effectively terminated, without any notice, in November, 2015 when Mr. Lange determined, and thereby reprised against the applicants, that they would not be called back as a result of their threat to “sue” him for human rights violations.
184The Campbells worked for the respondent and its predecessor corporation for 14 years. I would consider this long term employment. By all accounts they were good workers.
185To this day Ms. Campbell is extremely emotional about the discrimination she faced. The discrimination had a lasting impact on her livelihood and her character. Her doctor testified that she is no longer herself and has turned into a depressed person.
186I find that the failure of the respondent to consider whether Ms. Campbell had a disability and consider its obligations under the duty to accommodate greatly added to the applicant’s distress. Had it given proper consideration to this obligation, the respondent likely would not have laid Ms. Campbell off when it did. Adding to the stress was waiting to find out if she and Ms. Campbell would be called back to work in February given the abrupt lay-off and Mr. Lange’s hostility at the time of the lay-off. Had the respondent respected the Code Ms. Campbell would likely not have been reprised against and would have been called back to work in the spring of 2016.
187Ms. Campbell testified that without any income from Paradigm she did not have the resources to pay for her rent or her medications and she could not afford physiotherapy to rehabilitate her shoulder. She indicated that she had to rely on Ontario Works, which she had never done since coming to Canada, and she found that demeaning.
188Recent decisions that have considered disability-related discrimination in the context of termination of the applicant’s employment have awarded $45,000 (Lane), $35,000 (Krieger), $20,000 (Lopetegui v. 680247 Ontario, 2009 HRTO 1248), $15,000 (Mirashrafi v. Circuit Centre, 2010 HRTO 512), $15,000 (Vetricek v. 642518 Canada, 2010 HRTO 757).
189Although the period of time over which the problematic conduct took place is shorter than in Krieger, Ms. Campbell’s experience of victimization and vulnerability had both objectively and subjectively serious impacts, including ultimately termination from her employment and ongoing depression and anxiety. I find that in Ms. Campbell’s case $20,000 is an appropriate amount in compensation for injury to her dignity, feelings and self-respect.
190As I have indicated, Mr. Campbell was laid off without notice and ultimately terminated from long-term employment simply because of his relationship with Ms. Campbell. Like Ms. Campbell, he too was reprised against. It is likely that the respondent’s discriminatory interactions with Ms. Campbell would have had a deleterious emotional effect on Mr. Campbell. Indeed, Mr. Campbell testified that it affected his relationship with his wife and that he felt depressed. He testified as to the stress and loss of confidence he still experiences as a result of the lay-off/termination, the inability to find work and of the indignity and humiliation of having to go onto Ontario Works.
191There is not much jurisprudence with respect to the discrimination that Mr. Campbell experienced. The Tribunal’s only decision is Pierce v. Chair Cover King Ltd., 2015 HRTO 1456. Here the applicant was awarded $5,000 as general damages. However, the facts in Pierce are vastly different than the facts before this Tribunal. In Pierce, the applicant endured a week of offensive comments about her husband on the basis of place of origin. The Tribunal found that she was terminated for non-discriminatory reasons.
192I have found that Mr. Campbell was laid-off/terminated for discriminatory reasons simply by virtue of being married to Ms. Campbell. The fact that he was terminated without notice from long-term employment on that basis and given his emotional difficulties both in response to the mistreatment Ms. Campbell endured and his own termination, I find that $15,000 is an appropriate amount in compensation for injury to his dignity, feelings and self-respect.
Special Damages
193Under the Code, a person whose rights have been infringed is entitled to monetary compensation for actual losses arising out of the infringement. The purpose of the compensation is to restore a complainant as far as reasonably possible to the position she would have been in had the discriminatory acts not occurred. In determining compensation for lost wages that may flow from discriminatory lay-off /termination, any award is subject to an applicant’s duty to mitigate her losses by making reasonable efforts to obtain suitable employment.
194The onus of proving failure to mitigate is on the respondent. The Campbells testified that they applied for multiple jobs since August 2015. I find that the applicants attempted to mitigate their losses; however, they have been unable to replace the income they earned at Paradigm Sports.
195I find that the Campbells are each entitled to an award of lost wages from August 18, 2015, the day they were was laid off until Labour Day 2015, the day Mr. Lange closed the business for the season. This amounts to $1012.50 to each of the Campbells
196I find that Mr. Campbell is entitled to an award of lost wages from February 16, 2016, the day that Paradigm Sports hired a new warehouse labourer instead of returning Mr. Campbell to work, until October 31, 2016, the day that Mr. Lange shut down Paradigm’s operations in Ontario. This amounts to $21,937.50.
197I find that Ms. Campbell is entitled to an award of lost wages from April 11, 2016, the day that Paradigm hired a second warehouse labourer instead of returning Ms. Campbell to work, until October 31, 2016, the day that Mr. Lange shut down Paradigm’s operations in Ontario. This amounts to $16,312.50.
198In my view, it is likely that Mr. Campbell would have been called back before Ms. Campbell given that on occasions in the past Mr. Campbell had worked in the warehouse for periods on his own without Ms. Campbell.
199The Campbells also sought compensation for the loss of income related to periods they were off work due to medical related reasons. As earlier stated it is not clear to me what, if any, policy or practice was in place that would entitle the Campbells to wages for medical related leaves. Accordingly, I have declined to make a separate damage award in this regard.
200In summary, on the issue of damages for lost wages, I find that Ms. Campbell is entitled to an order for lost wages in the total amount of $17,325.00 and Mr. Campbell is entitled to an order for lost wages in the total amount of $22,950.00
Interest
201I find that the applicants are entitled to pre-judgement interest for their respective lost wages in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Regarding, the awards of lost wages, the interest calculation shall run from July 1, 2016 in respect of Mr. Campbell and August 1, 2016 in respect of Ms. Campbell which is approximately the mid-point in time for which I have concluded wages are payable to them respectively had they been recalled.
202I do not find it appropriate to award pre-judgement interest on the amounts payable in damages to the applicants’ feelings, dignity and self-respect.
203The applicants are entitled to post-judgment interest on damages for lost wages and damages for losses associated with injury to their feelings, dignity and self-respect. Interest shall run on any amount unpaid within 30 days from the date of this decision.
Reinstatement
204The Campbells requested that part of their remedy include reinstatement into the positions they previously occupied with Paradigm. However, given that Paradigm has closed its Canadian operations, reinstatement is no longer possible.
205The applicants have argued that if reinstatement is no longer possible given the closure of Paradigm’s operations in Canada by Mr. Lange, they should be entitled to a higher award of general damages. They submit that in McCarthy v. Caesar’s Plumbing and Heating, 2014 HRTO 1795, the Tribunal found that the respondent’s actions had the effect of precluding reinstatement as a viable option, and that factor justified increasing the award for general damages. In my view, this case is not applicable to the case at hand. In McCarthy, unlike the case at hand, positions existed into which the applicant could have been reinstated; however, the creation of a poisoned relationship, in the Tribunal’s view, effectively precluded reinstatement. Here there are no existing positions into which the Campbells could be reinstated.
order
206I make the following orders:
The RFOP is dismissed.
The respondent shall pay to the applicant, Winsome Campbell, $20,000 in damages for losses associated with injury to her feelings, dignity and self-respect, within 30 days of the date of this Decision;
The respondent shall pay to the applicant, Byron Campbell, $15,000 in damages for losses associated with injury to his feelings, dignity and self-respect within 30 days of the date of this Decision;
The respondent shall pay to the applicant, Winsome Campbell, her lost wages in the amount of $17,325 within 30 days of the date of this Decision;
The respondent shall pay to the applicant Byron Campbell, his lost wages in the amount of $22,950 within 30 days of the date of this Decision.
The respondent shall pay to the applicants prejudgement interest in accordance with the CJA on the amounts set out in subparagraphs 4. and 5., above, from the dates specified in paragraph 201 above, within 30 days of the date of this Decision;
The respondent shall pay to the applicants post-judgement interest on any accumulated principal and interest on the amounts set out in paragraphs 2, 3, 4, and 5 calculated in accordance with section 129 of the CJA, from the date that is 30 days after the date of this Order.
Dated at Toronto, this 20th day of December, 2017.
“Signed by”
Keith Brennenstuhl
Vice-chair