HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Haley
Applicant
-and-
5274398 Manitoba Limited o/a Cross Country Manufacturing
Respondent
DECISION
Adjudicator: Bruce Best
Indexed as: Haley v. 5274398 Manitoba Limited o/a Cross Country Manufacturing
APPEARANCES
Joseph Haley, Applicant
Self-represented
5274398 Manitoba Limited o/a Cross Country Manufacturing, Respondent
No one appearing
Introduction
1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on May 31, 2016, alleging discrimination in employment on the grounds of race, colour, place of origin, ethnic origin and disability. A hearing was held in London on September 27, 2017.
2The applicant identifies as African Canadian and Aboriginal. The applicant also indicated that he had suffered a collapsed lung, which resulted in his being on disability leave for a number of months during his employment with the respondent.
3For the reasons below, I find that the applicant’s disability was a factor in the termination of his employment on July 8, 2015.
Procedural Background
4On September 8, 2017, I issued a Case Assessment Direction (“CAD”) directing the applicant to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure by no later than September 15, 2017.
5On September 11, 2017, shortly prior to the hearing, counsel for the respondent sent a letter to the Tribunal indicating that it had received the CAD, and further advising that counsel was no longer acting on behalf of the respondent as it had recently become insolvent. There was no indication as to whether any proceedings had been commenced under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, which would have stayed these proceedings.
6On September 15, 2017 the applicant filed a witness statement for himself indicating that he intended to testify about the facts already contained in his Application. He also filed a witness statement on behalf of another witness, Shaukei Oliveira.
7On September 27, 2017, the applicant and his witness appeared at the hearing. No one appeared for the respondent. As is the general practice, I waited half an hour to give the respondent time to show up. As they did not, the hearing commenced in the absence of the respondent at 10:30 a.m.
Legal Framework
8The relevant provisions of the Code are ss. 5 and 17:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Prima Facie test
9The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.) at para. 28, Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109, and Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”) at para. 34. Direct evidence of discrimination, though it may be relied on, is not necessary, and particularly with respect to allegations of racial bias the available evidence will more often be proven by circumstantial evidence. See Pieters, at para. 111.
10In Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (“Stewart”), Gascon J. set out the principles of what is required to establish a prima facie case of discrimination. Though the majority did not agree with Gascon J.’s conclusions and the application of the principles to the facts of that case, there was a consensus on the principles themselves. Gascon J. summarized the test as follows, at para. 69:
It is undisputed that the basic test for prima facie discrimination involves three steps, namely, (1) the complainant having a protected ground under the relevant human rights legislation (which I will call a “ground”, here drug dependence); (2) the complainant suffering disadvantage (which I will call “harm”, here Mr. Stewart’s termination); and (3) the ground being “a factor” in the complainant’s harm (which I will call “contribution”): Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789 [“Bombardier”], at para. 35; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 [“Moore”], at para. 33.
11In Bombardier, the Supreme Court addressed what it means for a prohibited ground to be a “factor” necessary to establish discrimination. The Court clarified, at paras. 43-52, that a close relationship is not required, and that it is not necessary to establish a causal connection in order to prove discrimination. Rather, all that is necessary is to prove, on the balance of probabilities, that there is simply a connection between the prohibited ground and the adverse treatment, or, in the words of Gascon J. in Stewart, that the prohibited ground “contributed” to the adverse treatment. Most claims of discrimination will turn on whether the applicant can establish such a connection, as does the present case.
12As noted above, the respondent did not participate in the hearing, and did not present any evidence. My decision is, therefore, based on the applicant’s evidence. The respondent had filed a Response, a number of related documents, and witness statements for two witnesses, Dan Grover, Production Foreman of the respondent’s Blenheim plant, and Dave Dyck, the Chief Executive Officer of the respondent. In his testimony, the applicant did address a number of the claims made by the respondent in the Response or in its witness statements. Some he agreed with, others, as addressed below, he disputed.
Issues
13On July 8, 2015, the applicant and two co-workers were having lunch. It was the applicant’s birthday, and one of his co-workers, Mr. Oliviera, bought each of them a beer. On returning to the workplace, the applicant was asked if he had anything to drink over lunch. He admitted that he had. His employment was immediately terminated for contravening the respondent’s drug and alcohol policy. The co-workers, who were white, were only given a warning.
14The respondent’s position, as set out in its Response, is that it has a zero tolerance policy for work day drug or alcohol use, and that the applicant was simply terminated for an admitted breach of this policy. The applicant acknowledges that he was aware of the policy, but claims that the policy was not consistently enforced.
15He argues that the decision to enforce it in this case was influenced by two factors that raise Code grounds. First, he claims that several days before his termination he had had a conversation with Mr. Grover about his disability, the restrictions he faced, and potential accommodations, and that Mr. Grover had expressed scepticism about the respondent’s ability to accommodate him in the workplace. The applicant argues that the respondent used the drinking incident as an excuse to not have to address his accommodation request. Second, he argues that he was treated more harshly than his co-workers because of his race, as he was terminated when the “white” employees were not.
16The applicant testified on his own behalf, and also called Mr. Oliveira as a witness.
Disability
17The applicant testified that prior to Christmas in 2014, he felt unwell, and that his supervisor sent him home. The applicant thought he had a cold, but when his condition did not improve, he went to hospital where he was diagnosed with a collapsed lung. He had surgery, and remained off work until January 2015.
18He testified that he attempted to return to work in January, but as his symptoms returned he went back to the hospital where he found out his lung had collapsed again. He went on a medical leave in late January 2015. On or about June 22, 2015, he returned from his leave to his pre-injury job, but was moved to a position in a different area the following week. In his testimony, the applicant commented on the claim in the Response that this was “modified work”. The applicant testified that he was, rather, told by his supervisors that there was no such thing as “light duty”, and that he was only told he was being moved to make way for another employee.
19The supervisor of the new area was Dan Grover. The applicant testified that Mr. Grover told him at some point during his second week back, the week of June 29 – July 3, 2015, that he did not think there would still be a position for the applicant the following week because of his lung condition, as the area was too dusty. The applicant told Mr. Grover that his doctor had said all he needed was a respirator. Mr. Grover responded that he did not think the company would supply one. The applicant said he would buy one if necessary. He testified that he had made this offer because he really needed the work, and was willing to pay for the respirator himself if it meant he would still have a job. The applicant testified that Mr. Grover said that he didn’t want the applicant falling over or collapsing on his shift.
20Mr. Oliveira testified that he had come over to the applicant and Mr. Grover while they were speaking. He confirmed that he did not hear the earlier part of the conversation, but did hear Mr. Grover’s latter comment respecting not wanting the applicant to collapse on his shift.
21As the respondent did not appear at the hearing, I have no evidence to contradict the applicant’s or Mr. Oliviera’s testimony.
22Based on the evidence before me, I find that the respondent raised concerns over the applicant’s disability, and whether he could continue working. I further accept the applicant’s evidence that he co-operated in the accommodation process by advising the respondent of an accommodation, a respirator, recommended by his physician.
23When an employer becomes aware of an employee’s restrictions which may impact her or his ability to do the job, the procedural duty to accommodate requires the employer to consider what, if any, steps can be taken to accommodate. See AGDA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) (“Lane”), at para. 106. An employer legitimately expressing concern over whether it is able to accommodate an employee’s disability will not in and of itself be discriminatory, provided the employer properly engages in the accommodation process. An employer cannot, however, rely only on impressionistic, anecdotal, speculative or unsubstantiated concerns to conclude that an employee cannot be accommodated. See Lane, at para. 117.
24In the present case, given the timing I do not have sufficient evidence to conclude that the applicant could or could not have been accommodated by the respondent. However, for the purposes of my findings below, I accept the applicant’s testimony that Mr. Grover raised concerns, and that the applicant proposed an accommodation of which Mr. Grover was sceptical. I cannot determine what the respondent would have decided had subsequent events not made the accommodation process moot.
25However, I do find that the applicant’s disability, and the prospect of accommodating his restrictions, had been raised by the applicant, and had been received with scepticism by the respondent, shortly before the decision was made to terminate his employment the following week. Whether or not it contributed to his termination, for the purposes of the prima facie test set out in Stewart, is addressed below.
Racist Comments by Co-workers
26The applicant also gave testimony respecting several incidents of other employees making racist or racially insensitive comments in the workplace, one made to him in 2014 shortly after he began working for the respondent, and another comment made to his cousin, when he was not present, in June 2015. The applicant agreed that he was aware the respondent had taken some actions to address the incidents.
27I cannot conclude from these incidents that the applicant’s race contributed to his being terminated. The employees who made the comments were, apparently, disciplined by the respondent when their conduct was brought to the attention of management. Only one incident involved the applicant, and it had occurred approximately a year before he was terminated.
Drinking on the Job
28The following Wednesday, July 8, 2015, was the applicant’s birthday. He had lunch with Mr. Olivieira and another co-worker. Mr. Oliviera testified that he bought three cans of beer, one for each, for them to have with lunch to celebrate.
29After returning to work, the applicant testified that during his last break, he was called into a side room by Mr. Grover and another supervisor, and was told that someone had reported that he had been drinking at lunch. The applicant admitted that he had a beer. The applicant also testified that Mr. Grover claimed that the applicant had been given a verbal warning the previous year for marijuana use. The applicant denied that he was ever given such a warning, and that the first time it had ever been raised with him was when he was terminated. In the absence of any testimony from the respondent, I accept the applicant’s evidence that he had not been given a warning, and was not aware of any previous allegation that he had breached the drug and alcohol policy.
30The applicant testified that Mr. Grover then told him that based on the zero tolerance policy for drinking during the work day, he was being terminated. He was walked out and told to get off the property immediately.
31Mr. Oliviera also testified that on the same afternoon he was approached by David Dyck, the CEO, and warned him about drinking on the job. Mr. Dyck told him that the applicant had been terminated, and the third employee had also been given a warning. Mr. Oliviera testified that Mr. Dyck did not specifically ask him if he had been drinking.
32The applicant testified that, after his termination, he called Mr. Dyck. Mr. Dyck said he knew the applicant and the other two employees had been drinking during their lunch hour. The applicant asked Mr. Dyck why he had been terminated when the other two had only been given warnings, but testified that Mr. Dyck did not give him an answer.
33Both the applicant and Mr. Oliviera testified that the drug and alcohol policy was not strictly enforced, and that the respondent in fact kept beer on the premises, which was offered to employees when they worked overtime. The applicant testified that shortly after he started working for the respondent, he was asked by Mr. Grover and the owner of the company to have a beer with them on a break, following which he returned to work.
34Mr. Oliviera also testified that one evening several weeks before the applicant was terminated, the respondent was conducting an inventory, and that he overheard Mr. Grover saying “I’m not doing inventory without any beer.” The following morning, he testified he was emptying the garbage cans, part of his job as a maintenance worker, and found 12 empty beer bottles.
Analysis and decision
35I find that the applicant has made out a prima facie case of discrimination. Though the applicant acknowledged in his testimony that he was aware the respondent had an official “zero tolerance” policy in writing with respect to drug and alcohol use during work hours, based on the evidence before me I cannot find that it was zero tolerance in practice, but was rather selectively applied depending on the circumstances. On July 8, 2017, it was selectively applied against the applicant. After he and two other employees had a drink on their lunch hour, only the applicant was terminated.
36To prove discrimination under the Code, however, the applicant has to establish on the balance of probabilities that he was treated differently based on a Code ground. The applicant argued that he was singled out for termination because of his race, his disability, or both.
37Given the conversation the applicant had with Mr. Grover the week before, I am prepared to draw the inference that the applicant’s disability and whether he could continue in his job was an active concern for the respondent on July 8, 2015. In the absence of any evidence on this issue from the respondent, I find therefore that the applicant has established that his disability and his request for accommodation contributed to his being terminated on July 8, 2015, rather than letting him off with a warning as was done for the other two employees.
38There was, however, no specific incident leading up to the termination to suggest that the applicant’s race was a reason for his being singled out. On the balance of probabilities, I cannot find that the applicant’s race contributed to the decision to terminate.
Remedy
39Section 45.2 (1) of the Code reads as follows:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
Lost Wages
40The purpose of compensation under the Code is to restore an individual as far as is reasonably possible to the position that he or she would have been in had the discriminatory act not occurred. See Piazza v. Airport Taxicab (Malton) Assn., 69 O.R. (2d) 281, 1989 CanLII 4071 (Ont. C.A.), and Ontario Human Rights Commission v. Impact Interiors Inc., 1998 CanLII 17685 (Ont. C.A.), at para 2.
41The applicant testified that as he was terminated for cause, he did not receive employment insurance. He also testified that he attempted to find work, but no one wanted to take him on because of his disability, and as a result he had to resort to Ontario Works. He testified that he was able to find some work in the winter of 2016, where he earned approximately $5,000. He testified that his lung condition worsened, and that he underwent surgery again in April 2016. Though he testified that he felt he would have been able to return to work in July 2016, he subsequently has been found to be eligible for Ontario Disability Support Program benefits.
42The applicant earned $13.00/hour, and claims he earned $650 per week. I find that, but for the termination on July 8, 2015, he would have been able to continue working until his condition worsened in April 2016, or for another 39 weeks. The applicant also testified that he did obtain some seasonal work in snow removal in the winter of 2016, where he earned $5,000. Based on the above, the applicant is entitled to 39 weeks at $650 per week, or $25,350.00, less the $5,000 earned in mitigation, for a total of $20,350.00 in lost wages.
Compensation for Injury to Dignity, Feelings and Self-respect
43In Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (“Strudwick”), at paras. 52-77, the Court of Appeal adopted the principles set out by the Tribunal respecting the assessment of damages in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras 52-54:
The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 (“Sanford”) at paras. 34-38.
44Strudwick set out, at para 62, some of the relevant factors noted in Sanford:
the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
the ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
the complainant’s vulnerability;
objections to the offensive conduct;
the respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;
the degree of anxiety the conduct caused; and
the frequency and intensity of the conduct.
45From an objective point of view, the applicant was terminated, in part, because of his disability. He was, however, also terminated because he had, knowingly, breached the respondent’s drug and alcohol policy. Though, based on his previous experience, he may not have expected that he would be terminated, he was aware of what the policy said, and as such he knew the risks he took by having a birthday beer on his lunch.
46In my view, the circumstances of his termination support a lower amount of compensation for injury to dignity, feelings and self-respect than in many other cases involving a termination of employment. In the circumstances, I find that $5,000.00 is an appropriate amount.
Public Interest Remedy
47The applicant also sought an order requiring the respondent to receive training in human rights issues. Given my findings, this is appropriate.
48I order that all managers of the respondent take the eLearning module “Human Rights 101” found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca, and confirm with the applicant in writing that the training has been completed within 90 days of the date of this Decision.
Order
49The Tribunal orders as follows:
a. The respondent shall, within 30 days of the date of this decision, pay $20,350.00 to the applicant as compensation for his lost income from July 8, 2015 to April 6, 2016. Prejudgment interest is also payable on this amount at the rate of 0.8% from the mid-point of the two dates, 21 November 2015.
b. The respondent shall, also within 30 days of the date of this decision, pay a further $5,000.00 to the applicant as compensation for injury to dignity, feelings and self-respect.
c. Post-judgment interest shall be payable on the above amounts at the rate of 2.0% in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, commencing 30 days from the date of this Decision.
d. All managers the respondent shall take the eLearning module “Human Rights 101” found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca, and will confirm with the applicant in writing that the training has been completed within 90 days of the date of this Decision.
Dated at Toronto, this 21^st^ day of December, 2017.
“Signed by”
Bruce Best
Vice-chair