ADGA Group Consultants Inc. v. Lane et al. [Indexed as: ADGA Group Consultants Inc. v. Lane]

91 O.R. (3d) 649

Ontario Superior Court of Justice,

Divisional Court,

Cusinato, Ferrier and Lofchik JJ.

August 8, 2008

Human rights -- Discrimination -- Disability -- Complainant and Commission not having to establish comparator group where complaint is of discriminatory termination of employment on basis of disability -- Tribunal finding that employer discriminated against complainant on basis of disability by dismissing him from position as software program tester when he revealed that he had bipolar disorder and started exhibiting pre-manic symptoms -- Tribunal's decision reasonable.

Human rights -- Discrimination -- Reasonable accommodation -- Employer discriminating against complainant on basis of disability by dismissing him from position as software program tester ten days after he started work when he revealed that he had bipolar disorder and started exhibiting pre-manic symptoms -- Tribunal's conclusion that employer failed to meet its procedural and substantive duty to accommodate complainant's disability reasonable.

Human rights -- Remedies -- Damages -- Tribunal having power under s. 41(1)(b) of Code to award general damages to compensate for loss of right to be free from discrimination and for experience of victimization -- Tribunal awarding $35,000 to complainant who was dismissed ten days after he started work when he revealed that he had bipolar disorder and started exhibiting pre-manic symptoms -- Tribunal also awarding damages of $10,000 for mental anguish -- Awards reasonable -- Human Rights Code, R.S.O. 1990, c. H.19, s. 41(1)(b).

The complainant had bipolar disorder, characterized by manic and depressive episodes with periods of stability. He was hired by the employer as a software program tester. The job was described to the complainant as being stressful and as involving tight deadlines. When he applied for the job, the complainant did not reveal that he had bipolar disorder. Shortly after starting work, the complainant disclosed to his supervisor C that he had bipolar disorder, told her how to identify when he was becoming manic, and asked her to intervene if she observed any inappropriate behaviour on his part. Shortly afterwards, the complainant entered a pre-manic phase and began to exhibit signs of manic behaviour. Ten days after starting work, the complainant was terminated on the basis that he had misrepresented his ability to perform the essential duties of the position for which he was hired. After his dismissal, the complainant's condition escalated to full-blown mania within hours and he was hospitalized. He subsequently experienced severe depression, his family's financial situation deteriorated and his marriage broke up. The complainant filed a human rights complaint alleging that the employer discriminated against him on the basis of a disability, namely his bipolar disorder. The Human Rights Tribunal found that the employer had discriminated against the complainant contrary to s. 5 of the Human Rights Code and that it had failed to establish that it could not accommodate the complainant's disability without undue hardship. In addition to special damages, the tribunal awarded the complainant general damages in the amount of $35,000, damages for mental anguish in the amount of $10,000 and granted certain public interest remedies under s. 41(1)(a) of the Code. The employer appealed. The Commission cross- appealed, seeking to increase the award of general damages. [page650]

Held, the appeal should be allowed in part; the cross-appeal should be dismissed.

The Tribunal did not err in qualifying as an expert witness a person with bipolar disorder who had no qualifications as a medical practitioner and was the president of an advocacy group for people with depression, bipolar disorder and associated illnesses. That witness provided relevant and useful background and contextual information about bipolar disorder which was outside the experience and knowledge of the Tribunal. The Tribunal also did not err in qualifying as an expert witness the head of a university department of psychiatry and in relying on his evidence on the diagnosis, treatment and management of bipolar disorder and issues of stigmatization of those with the disorder. The evidence relating to stigma was relevant and necessary to understanding the complainant's reasons for not initially disclosing his bipolar disorder to the employer and responding to the employer's allegation that the complainant had lied about his condition in the course of the hiring process.

The Tribunal's finding of discrimination was reasonable. In cases of disability in the employee termination context, it is not necessary or appropriate to have to establish a comparator group. The Tribunal did not err in finding that the employer did not meet its procedural duty to accommodate the complainant as it failed to obtain all relevant information about the complainant's disability, his ability to perform job duties and his capabilities for alternative work. Nor did the Tribunal err in finding that the employer did not meet its substantive duty to accommodate the complainant's disability short of undue hardship. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence or after-the-fact justifications. The Tribunal found that the complainant was fully capable of performing the essential duties of the job for which he was hired when he was not heading towards or was already at one of the two ends of the bipolar spectrum.

The Tribunal has the power under s. 41(1)(b) of the Code to award general damages to compensate for the loss of the right to be free from discrimination and for the experience of discrimination. There is no ceiling on awards of general damages under the Code. Human Rights Tribunals must ensure that the quantum of general damages is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a "licence fee" to discriminate. The complainant's disability and his decision to reveal it made him vulnerable. He was the classic "thin-skulled employee". The employer had a duty to act reasonably and in good faith, and its actions had foreseeable tragic consequences to the complainant. The award of $35,000 was reasonable. The award of $10,000 as damages for mental anguish was also reasonable.

Two of the public interest remedies granted by the Tribunal were unreasonable and were struck out. Otherwise, the public interest remedies were affirmed.

APPEAL AND CROSS-APPEAL from a decision of the Human Rights Tribunal, reported at [2007] O.H.R.T.D. No. 34, 2007 HRTO 34, [2008] CLLC Â 230-007 (H.R.T.). [page653]

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Etobicoke (Borough), 1982 15 (SCC), [1982] 1 S.C.R. 202, [1982] S.C.J. No. 2, 132 D.L.R. (3d) 14, 40 N.R. 159, J.E. 82-193, 82 CLLC Â17,005 at 1037, 13 A.C.W.S. (2d) 1; Ontario (Human Rights Commission) v. Shelter Corp., [2001] O.J. No. 297, 143 O.A.C. 54 (Div. Ct.); Papa Joe's Pizza v. Ontario (Human Rights Commission), 2007 23487 (ON SCDC), [2007] O.J. No. 2499, 225 O.A.C. 256, 59 C.C.E.L. (3d) 98, 158 A.C.W.S. (3d) 794, 60 C.H.R.R. D/517 (Div. Ct.); Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), [2003] 2 S.C.R. 157, [2003] S.C.J. No. 42, 2003 SCC 42, 230 D.L.R. (4th) 257, 308 N.R. 271, J.E. 2003-1790, 7 Admin. L.R. (4th) 177, 31 C.C.E.L. (3d) 1, [2003] CLLC Â220-06, 125 A.C.W.S. (3d) 85; Post Office v. Union of Post Office Workers, 1905 103 (NWT SC), [1974] 1 All E.R. 229 (H.L.); Quereshi v. Ontario (Human Rights Commission), 2006 63686 (ON SC), [2006] O.J. No. 1782, 268 D.L.R. (4th) 281, 215 O.A.C. 102, 51 C.C.E.L. (3d) 285, 141 C.R.R. (2d) 62, 148 A.C.W.S. (3d) 102 (Div. Ct.); R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385; Sanford v. Koop, [2005] O.H.R.T.D. No. 53, 2005 HRTO 53, 55 C.H.R.R. D/102 (H.R.T.); Scott v. Foster Wheeler Ltd., 1987 8514 (ON SCDC), [1987] O.J. No. 2451, 16 C.C.E.L. 251, 5 A.C.W.S. (3d) 36, 8 C.H.R.R. D/4179 (Div. Ct.); Smith v. Ontario (Human Rights Commission), 2005 2811 (ON SCDC), [2005] O.J. No. 377, 195 O.A.C. 323, 38 C.C.E.L. (3d) 13, 136 A.C.W.S. (3d) 1106 (Div. Ct.); Zettel Manufacturing Ltd. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (C.A.W.-Canada), Local 1524 (Hauss Grievance), 2005 94154 (ON LA), [2006] O.L.A.A. No. 333, 140 L.A.C. (4th) 377 Statutes referred to Human Rights Code, R.S.O. 1990, c. H.19, ss. 5 [as am.], 17(2) [as am.], 41(1) [as am.], 42 [as am.] Statutory Powers and Procedure Act, R.S.O. 1990, c. S.22, s. 15 Rules and regulations referred to Human Rights Tribunal of Ontario, Rules of Practice (Human Rights Tribunal of Ontario, July 2004), Rules 61, 64 Authorities referred to American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision (American Psychiatric Press, 2000) Brown, Donald J.M., and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998) Lepofsky, D., "The Duty to Accommodate: A Purposive Approach" (1992) 1 Can. Lab. L.J. 1

Stephen Bird and Caroline Richard, for appellant. Raj Dhir, for respondent.

The judgment of the court was delivered by

[1] FERRIER J.: -- Paul Lane has been diagnosed with "Bipolar 1 Disorder", which is characterized by a fluctuation in moods, varying between highs (mania) and lows (depression) with periods of stability.

[2] In September 2001, Lane applied for a job as a software program tester with the appellant ADGA Group Consultants Inc. ("ADGA"). The software was being developed for the Department of National Defence Canada ("DND") to test NATO- developed software which controlled the aim and firing of artillery in use by NATO forces. The time was a few weeks after 9/11.

[3] Lane was hired and began work on October 20, 2001. A few days later he began to exhibit manic behaviour. On October 30, 2001, he was terminated from the position.

[4] It is ADGA's position that Lane was terminated because he had misrepresented his ability to perform the essential duties of the position for which he was hired. ADGA says its decision was based on its direct experience of Lane's behaviour in October 2001, and his demonstrated and admitted inability to perform the essential duties of his position.

[5] On March 22, 2002, Lane filed a human rights complaint alleging that ADGA discriminated against him on the basis of a disability, namely bipolar disorder, by terminating his employment. On October 17, 2007, the Tribunal found that ADGA had so discriminated against Lane, contrary to s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19, and that ADGA had failed to establish that it could not accommodate Lane's disability without undue hardship pursuant to s. 17(2) of the Code.

[6] The Tribunal found that ADGA had dismissed Lane without meeting the procedural obligations of assessment under s. 17(2) of the Code and without meeting the specific obligation not to dismiss someone without establishing that it could not accommodate the disability without undue hardship.

[7] The Tribunal found that Lane was capable of performing the essential duties of the position, at least when he was not heading towards depression or mania.

[8] The Tribunal awarded general, mental anguish and special damages to Lane totalling $79,278.75, plus pre- and post- judgment interest. The Tribunal also ordered ADGA to establish an anti-discrimination policy, to train all of its employees on the obligations of employees under the Code, to post a copy [page654] of the policy in all workplaces where the appellant operates, and to provide a copy of the policy when responding to requests for proposals.

[9] ADGA appeals the Tribunal's decision. The Commission cross-appeals, seeking to increase the sum awarded for general damages.

[10] For the reasons which follow, the appeal is dismissed (except for modification by this court of some of the directives ordered by the Tribunal) and the cross-appeal is dismissed.

Context and Background

[11] Lane obtained a diploma in Electronics Engineering Technology from Algonquin College in 1982. Over the next 15 years, while working as a consultant, and assuming positions with public and private employers, including Carleton University and Canada Post, Lane continued to upgrade his professional qualifications by taking computer technology and programming courses.

[12] In 1997, Lane was employed on a short-term contract with the DND as a data traffic analyst. He was working with military personnel and obtained a security clearance. This security clearance was ultimately upgraded from "secret" to "NATO secret". Lane held this security clearance up to and including the period when he worked for ADGA in 2001.

[13] In 1998, while he was between jobs and being treated for depression with Prozac, Lane became manic and was hospitalized. He was diagnosed with "Bipolar 1 Disorder".

[14] Individuals with type 1 bipolar spend most of their time in a normal state, but they have the possibility of going into mania or depression. The Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision, published by the American Psychiatric Association ("DSM IV-TR") describes a manic episode as follows:

A manic episode is defined by a distinct period during which there is an abnormally and persistently elevated, expansive or irritable mood... The elevated mood of a manic episode may be described as euphoric, unusually good, cheerful or high. Although the person's mood may initially have an infectious quality for the uninvolved observer, those who know the person well recognize it as excessive. The expansive quality of the mood is characterized by unceasing and indiscriminate enthusiasm for interpersonal, sexual or occupational interactions. For example, the person may spontaneously start extensive conversations with strangers in public places . . .

[15] A major depressive episode is characterized by depressed mood or the loss of interest or pleasure in nearly all activities. [page655] Other symptoms associated with a major depressive episode include a loss of appetite and weight, a lack of desire for sexual interactions, decreased energy, tiredness or fatigue, a sense of worthlessness and an impaired ability to think, concentrate or make decisions.

[16] As found by the Tribunal, bipolar disorder can often be managed by medication, by early intervention when there are signs of increasing depression or manic behaviour, and more generally, by the presence of educated, caring and supportive environments both at home and work. In particular, if the signs of an episode are detected early enough, a rapid rebalancing of medication may result in the person affected losing only a few days of work.

[17] In November 1998, Lane obtained a position as a Quality Assurance Specialist at Siemens Telecom Innovation Centre ("Siemens"). Due to the stigma associated with bipolar disorder, he did not initially tell Siemens about his disability. In the summer of 1999, Siemens discovered Lane's disability after he had a manic episode, and was required to take time off work. When Lane returned from sick leave in September 1999, at that point recognizing he had to discuss the potential impact of his disability with his employer, he was dismissed from his employment. He filed a human rights complaint against Siemens, which he later settled through mediation.

[18] In October 1999, Lane obtained employment with LINMOR Technologies ("LINMOR") as a Quality Assurance Specialist. With respect to his disability, Lane took a different approach with LINMOR than the one he took with Siemens. Lane attempted to educate LINMOR by providing his manager with a list of symptoms to watch out for. When Lane began to exhibit these symptoms, LINMOR contacted Lane's wife. As a consequence of that intervention, Lane sought medical help, took time off work and returned to work after about three weeks. When Lane was away from work, his boss simply reassigned tasks to other members of the team.

[19] Lane's performance at LINMOR was highly rated. On April 27, 2001, he was given a performance review that was "updated from the interim review done at [Lane's] anniversary date of October 4". The performance review indicated that Lane had "good analytical and communication skills for test planning and reporting and to interpret test results"; "successfully rose to the challenge of leading a small QA team for the AT& T release cycles testing effort"; and was "hardworking and productive". In summary, the performance review stated that Lane "meets and in some areas exceeds expectations" and "played a leadership or [page656] senior analyst role beyond that normally expected of a QA3". The review recommended that Lane "could be considered for a team leadership role".

The Contract of Employment and the Nature of the Position

[20] Lane applied for a quality assurance analyst/test-leader position ("QAA") at ADGA and, on September 19, 2001, was interviewed by Miranda Corbett ("Corbett"), the manager/test leader for the Land Software Engineering Centre ("LSEC") project for which the quality assurance analyst position was required.

[21] During the interview, Corbett mentioned to Lane that the job of QAA could be stressful at times and that there were "tight timelines on that project". Lane responded that he was used to the stress of multi-tasking as he had run his own company and that he often had to work to tight timelines.

[22] Neither at the interview nor at any other point before ADGA hired him did Lane indicate that he had bipolar disorder. Also, on the application form which he signed, he lied about the number of days he had been on sick leave during the last 12 months. He did so because he feared he would otherwise not secure the position. Also, he believed that it was not permissible to ask a prospective employee questions about days of sick leave.

[23] On October 5, 2001, Marcel Germain ("Germain"), the program manager for LSEC, contacted Lane and offered him the job of QAA. Lane was asked to come to ADGA on October 16, 2001 to sign his employment contract. On October 22, 2001, Lane commenced his employment at ADGA. He worked with approximately six to ten people in the LSEC. Lane reported directly to Corbett, who reported to Germain.

[24] The core part of the application that Lane would test was the NATO Artillery Ballistic Kernel ("NABK") software program. This program contained classified information; it calculated and formulated the aim points for NATO's field artillery fire control systems. ADGA's position is that focus and reliability was an essential part of the position for which Lane was hired, as any mistake in respect of the software could put lives at risk.

[25] The employment contract provided for a three-month probationary period. The contract contained the following provision:

2. Mr. Lane represents that he has the required skills, ability and experience to perform the duties and undertake the responsibilities required by such employment. It is on this basis which Mr. Paul Lane acknowledges it cannot be demonstrated until a period of employment has elapsed that ADGA has entered into this Agreement. Accordingly, Mr. Paul Lane agrees that the 90 continuous days of his employment shall be probationary and [page657] that his employment may be terminated at any time during such probationary period with no notice, and either with or without cause, in ADGA's sole discretion.

[26] In its decision [[2006] O.H.R.T.D. No. 34, 2007 HRTO 34], the Tribunal reviewed ADGA's needs in hiring Lane [at paras. 85-90]:

ADGA hired Mr. Lane as a Senior Test Analyst as part of its contract with the DND's Land Software Engineering Centre ("LSEC"). This was a contract that ADGA had had with DND for some fifteen years, and ADGA contemplated that most of those hired as part of that contract (including Senior Test Analysts) would become long-term or permanent employees after a period of probation.

Central to the work that Mr. Lane was to perform was the Indirect Fire Control Computer Software ("IFCCS"), a core component of the Indirect Fire Control Computer ("IFCC"). This software incorporated NATO developed software and it provided artillery gun data automatically without manual reporting firing table procedures. Under its contract with DND, ADGA had developed a Software Test Plan ("STP") for testing the various applications of the IFCCS, thereby providing "support and general maintenance to the IFCCS fielded releases".

Essentially, what was expected of the group of testers that Mr. Lane would lead was that they would build test cases that could be used to ensure that the IFCCS would function properly and safely when required. The work was "requirements-based" in the sense that it responded to needs identified by DND and it involved a combination of developing new test cases from scratch, enhancing existing test cases, as well as modifying test cases to eliminate flaws. The work was regarded as both "Mission and Safety Critical" as it was central to the functioning of the Armed Forces' artillery both in training and testing and in combat or operations, the latter about to become a reality with the decision to deploy Canadian troops on a war footing in Afghanistan later in the year in which ADGA hired Mr. Lane.

The formal list of tasks expected of a Senior Test Analyst involved a range of software testing skills. The job description also spoke of the ability to work "under medium supervision" and various management, supervisorial and mentoring abilities, including: 1. instruct and manage, as required, LSEC personnel involved in software testing; 2. estimate time and resources for others to carry out tasks; 3. be capable of detecting potential problems in advance and report them with recommendations for remedial action; and 4. liaison with the management team for requirements management and impact analysis.

In practical terms, this translated itself into Mr. Lane being responsible for a group of six to ten testers, some of whom were short on experience. Indeed, the position to which Mr. Lane was hired had arisen in part because of the unsuitability of his predecessor, a newly-minted College graduate who was uncomfortable with the role and, in particular, its supervisory and mentoring responsibilities. [page658]

The work for which Mr. Lane would be responsible would frequently have to be performed under very tight deadlines and this was particularly the case at the time that Mr. Lane was hired. The IFCCS was about to be redeployed for use in various training programmes in Canada (including those at CFB Gagetown) and it was also about to be used in the field in the upcoming Afghanistan mission. Central to this was a process called Qualification Testing by which ADGA established and certified that the various applications were ready to be utilized by the Armed Forces. This last stage usually took place over a three-week period and, if there were problems, would require everyone on the testing team to work long hours under pressured conditions.

Lane Commences Work

[27] On Wednesday, October 24, 2001, two days after he had commenced work, Lane had a 15-minute discussion with Corbett, during which he informed her, without specifically identifying that he had bipolar disorder, that she should not hesitate to intervene if she observed any inappropriate behaviour including speech on his part. Lane testified that although he was reluctant to disclose his disability at this time because of his uncertainty as to how the company would react, he was concerned about "abuse" from co-workers or "negative stress, including actual or perceived hostility on the part of fellow workers or managers" that could trigger his mania. Lane advised Corbett that if she had anything critical to say about him, she should say it to him one-on-one.

[28] On Friday, October 26, 2001, Lane asked Corbett if he could speak privately with her again. At this time, Lane disclosed to Corbett that he had bipolar disorder and that emotional abuse by fellow workers had been a trigger in the past. Lane explained to Corbett the differences between high (mania) and low phases (depression) of bipolar and offered to provide her with further material. He told her how to identify when he was becoming manic (restlessness, inability to focus on tasks, rapid speech) and advised her to speak to him or call his wife or doctor if she saw him exhibiting any of these symptoms. He also mentioned that he might need to take time off work to avert a situation deteriorating from a pre- manic stage to full-blown mania. He asked Corbett to keep their conversation confidential. Although Corbett agreed, she had concerns about whether Lane could handle the stress of the job. She advised Lane that she would get back to him on Tuesday, October 30, 2001.

[29] Corbett was concerned by Lane's description of his symptoms given that stress was a constant component of his position. Corbett researched bipolar disorder on the Mayo Clinic Web site [page659] which confirmed that stress was one of the three main triggers of a manic episode.

[30] The Tribunal addressed Corbett's testimony concerning these discussions [at para. 49]:

Ms. Corbett's testimony as to what took place at these two meetings was for the most part consistent with Mr. Lane's account. With respect to the matter of time off work, she stated that Mr. Lane mentioned three days as the norm for situations where the signs were recognized in a timely fashion and up to three months as the time it would take for him to come back from a full blown manic episode. Mr. Lane conceded that he could have said that. Ms. Corbett also testified that she had particular concerns with Mr. Lane stating that stress was a trigger. Given the requirements of the job and the fact that ability to cope with stressful situations had been specified as a job requirement at Mr. Lane's job interview, she saw this as a potential problem. Mr. Lane testified that, in so far as he referred to stress in the course of that conversation, he was referring not to the stress of the work itself but the stress generated by co- workers being mean to him. Ms. Corbett conceded that she had agreed to keep the information confidential and that she undertook to get back to Mr. Lane on Tuesday, October 30, 2001, as she was taking a day's leave on the Monday.

[31] Lane sensed Corbett's unease and left the meeting feeling that his employment might be terminated as a result of disclosing his condition to Corbett. He began to experience pre-manic symptoms, which were manifest at work on Monday, October 29, 2001. For example, he sent an e-mail to Germain that concluded, "Thanks a Million! Luv and Kisses. Paul".

[32] On the morning of Tuesday, October 30, 2005, Corbett told Lane that she wanted to inform Germain about Lane's illness to plan for a situation where Lane might need time off work because of his condition. She arranged a meeting between Lane and Germain for 1:00 p.m.

[33] That morning, Lane was noticeably in a pre-manic phase. He was exhibiting signs of paranoia; he reported receiving death threats and hearing explosions in the building. He was speaking faster and was overly social in the workplace. He was having difficulty concentrating in advance of the meeting with Germain at 1:00 p.m. This was apparent to Corbett and other co- workers. Corbett advised Germain in an email: "I am certain that [Lane] is in a manic phase today".

[34] Prior to the 1:00 p.m. meeting, Corbett spoke to Germain. Their brief conversation focused on Lane's bipolar condition and his behaviour up to that point at ADGA. Germain was concerned about issues of security and reliability. Corbett expressed concerns that Lane would not be able to handle the stress of the position. At the end of the discussion, Germain concluded that Lane was unable to perform the essential [page660] duties and it was decided that Lane's employment would be terminated.

[35] Germain and Corbett met with Lane and terminated his employment, effective immediately. The meeting lasted approximately 15 minutes. All three comported themselves responsibly and with civility. Germain advised Lane inter alia that the company could not afford to have him away for long periods of time and questioned why Lane did not reveal his disability during his job interview. Lane inquired whether ADGA had other positions available to which Germain replied in the negative. There was no discussion about Lane's specific needs related to his condition. Nor was there any suggestion by either Germain or Corbett that Lane's employment should be suspended until they found out more about his condition and took legal advice on their duties under the Human Rights Code. Despite the fact that Corbett and Germain were aware that Lane was in a pre-manic phase, they did not contact Lane's wife or doctor as he had requested, did not postpone the timing of their dismissal of Lane and did not take steps to ensure that Lane was all right after the meeting.

Post-dismissal Events

[36] After his dismissal, Lane escalated from a pre-manic phase to full-blown mania within hours. On October 31, 2001, after consulting with his doctor, Lane was hospitalized for 12 days. Thereafter, he experienced severe depression precipitated by the realization that he was jobless. He was angry, frustrated and bored. He was unable to look for other work until at least February 2002, and then was unable to find other work. This led to a cycle of further depression and another instance of enforced hospitalization. The family's financial position deteriorated and eventually they were forced to sell their house. This caused a great deal of strain and hardship on Lane's marriage, which dissolved by the time of his next period of hospitalization in August 2002, further threatening Lane's stability. For several years afterwards, Lane was unable to secure a full-time position suited to his qualification.

Human Rights Tribunal

[37] The Commission referred Lane's human rights complaint to the Human Rights Tribunal of Ontario for a hearing in August 2004. The hearing took place in Ottawa over 14 days from June 2005 to January 2006 before Tribunal member David J. Mullan. The Commission called as witnesses Lane; Diana [page661] Lane, Lane's ex-wife; and Dr. Ronald Hall, Lane's physician. The Commission also called two experts: Philip Upshall and Dr. Arboleda-Florez. ADGA called Corbett, Germain and Andre Sincennes, the Executive Vice-President of ADGA. ADGA did not call any expert evidence as to the realities of a company in its position trying to accommodate a person with Bipolar 1 Disorder. The Tribunal decision was rendered October 16, 2007, some 18 months following the completion of evidence.

Expert Witnesses

[38] Significant findings were made by the Tribunal based on the evidence of two witnesses qualified as experts. ADGA says the Tribunal erred in so qualifying them and in relying on their evidence. If ADGA is correct in its position, it is fair to say that the decision below cannot stand.

[39] Accordingly, I shall address the issues concerning the expert witnesses before any analyses of the findings on liability and remedy.

[40] The Commission tendered as an expert witness, Philip Upshall, a disbarred lawyer and himself a person with bipolar disorder. Upshall is a registered lobbyist for various organizations promoting the interests of those with mental illness, a member of various task forces dealing with mental illness issues, and the President of the Mood Disorders Society of Canada, an advocacy group for people with depression, bipolar disorder and associated illnesses. Upshall had no qualifications as a medical practitioner. The Commission proposed to qualify him as an expert in providing background and contextual information about bipolar disorder. This included not just the impact that the disorder can have, but forms of treatment and management, and the extent to which accommodation is possible, as well as information as to the results of research on attitudes to mental disorder in the workplace, including the incidence of stigmatization and stereotyping.

[41] The Tribunal ruled Upshall could testify on the proposed matters.

[42] The Commission also tendered Dr. Julio Arboleda-Florez as an expert witness. Dr. Arboleda-Florez was an emeritus Professor and the Head of the Department of Psychiatry at Queen's University. He presented a curriculum vitae of an outstanding career in the field of psychiatry as a teacher, researcher, practitioner and consultant. The Commission proposed calling him primarily for his expertise on the diagnosis, treatment and management of bipolar disorder and issues of stigmatization of those with the disorder. [page662]

[43] The Tribunal ruled that Dr. Arboleda-Florez could so testify, but not on issues of the practical accommodation by employers of those with bipolar disorder.

[44] ADGA submits that the Tribunal erred in so qualifying both Upshall and Dr. Arboleda-Florez and, alternatively, erred in giving weight to evidence in areas outside the limit and scope of their permitted expert testimony.

[45] ADGA says the evidence was irrelevant to the question whether the decision to terminate was discrimination on the basis of disability; further, the evidence was irrelevant on the issue of whether the employer accommodated the employee to the point of undue hardship.

[46] ADGA argues that, on the issue of whether Lane had a disability, neither Upshall nor Dr. Arboleda-Florez could provide any relevant testimony. Upshall is not a medical consultant, and as such, is legally precluded from diagnosing any medical condition. Dr. Arboleda-Florez, although a psychiatrist, could not diagnose Lane's alleged bipolar disorder as he testified that he had never met with Lane before the hearing, conducted no examination of Lane and could not provide any evidence in respect of Lane's alleged bipolar disorder.

[47] On the issue of whether ADGA's decision to terminate Lane was based on Lane's alleged disability, ADGA submits neither Upshall nor Dr. Arboleda-Florez provided any evidence with respect to the reasons that ADGA had to terminate Lane's employment. Neither witness was familiar with ADGA's business nor had they first-hand knowledge of ADGA's workplace or the nature of its business.

[48] ADGA further submits that the evidence of experts was not necessary to assist the trier of fact in respect of an area it otherwise would be unable to understand. Furthermore, submits ADGA, the two witnesses were not properly qualified experts.

[49] ADGA submits that Upshall and Dr. Arboleda-Florez did not have "special" or "peculiar" knowledge on the issue of whether ADGA discriminated against Lane. Upshall's knowledge is neither "peculiar" nor "special". He has the same knowledge as other individuals with bipolar disorder. Further, he testified that he assisted in the review of specialized literature in respect of bipolar disorder but that he was not the author. As a result, by accepting Upshall as an expert witness, the Tribunal has opened the door to permitting any layperson who has the disability at issue before Human Rights Tribunals to testify as experts. [page663]

[50] ADGA further submits that Upshall was disqualified to appear as an expert witness given his personal experience with bipolar disorder and his role as a lobbyist and advocate. His testimony was coloured by his own personal experience of alleged stigmatization and discrimination. As such, his opinion in respect of ADGA's conduct was influenced by his own experiences of discrimination in the workplace. Upshall's role as a lobbyist and advocate is to promote the rights of individuals with mental disabilities in Canada. As a result, he was unable to provide independent assistance to the Tribunal.

[51] As a psychiatrist, Dr. Arboleda-Florez has peculiar knowledge on the diagnosis and treatment of mental disabilities generally. In cross-examination, Dr. Arboleda-Florez admitted that he was not an expert on bipolar disorder specifically. However, Dr. Arboleda-Florez did not testify on the specific issue of Lane's diagnosis or treatment. Rather, these issues were dealt with through the testimony of Lane's family physician, Dr. Ronald Hall. Further, most of the research performed by Dr. Arboleda-Florez was on the issue of stigmatization and stereotypes in the medical profession and on the issue of whether mental disabilities predisposed individuals to commit criminal offences. He also testified that he regularly appeared before criminal courts as an expert on issues of capacity to stand trial. ADGA submits that these three areas of Dr. Arboleda-Florez's professional experience were not relevant to the issues before the Tribunal.

[52] I disagree with the foregoing submissions of the appellant in regard to the issues raised concerning the experts and their testimony.

[53] The Tribunal has the discretion to admit expert evidence and decide what weight to attach to it:Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, s. 15; Human Rights Tribunal of Ontario, Rules of Practice (July 2004), Rules 61 and 64; Donald J.M. Brown and John M. Evans with the assistance of Christine E. Deacon, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998), at 10-72.

[54] In exercising its discretion to admit the evidence, the Tribunal considered and applied the appropriate legal test set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at para. 17. Upshall, who was the president of the Mood Disorders Society of Canada and a victim/survivor of bipolar disorder, provided expert evidence on issues relating to the management of bipolar disorder from the perspective of a survivor, as well as issues of stigma and discrimination in the workplace. The Tribunal ruled that [page664] Upshall's evidence was (a) relevant; (b) necessary because it was information outside the experience and knowledge of the Tribunal, "particularly given the novelty of a complaint like this in Ontario and rarity across the country"; and (c) that Upshall was someone who had "acquired special or peculiar knowledge through study or experience" despite the fact that he was not a physician.

[55] With respect to Dr. Arboleda-Florez, the Tribunal ruled that Dr. Arboleda-Florez's expert evidence was relevant and necessary to assist the Tribunal, and that Dr. Arboleda-Florez was properly qualified. However, Dr. Arboleda-Florez was not permitted to testify about the ways in which employers could accommodate those with bipolar disorder.

[56] Stereotypical responses were aspects of Lane's claim of discrimination. These stereotypes included ADGA's assumptions that Lane was unreliable, a security risk and prone to lengthy absences. The evidence relating to stigma was relevant and necessary to understanding Lane's reasons for not initially disclosing his bipolar condition to his employer and responding to ADGA's allegation that Lane had "lied about his bipolar condition in the course of the hiring process". The Supreme Court of Canada has noted that mental disabilities often create "fear and stereotypical responses in people"; indeed, "a person may have no limitations in everyday activities other than those created by prejudice and stereotypes..." (emphasis added): Quebec (Commission de droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission de droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665, [2000] S.C.J. No. 24, at paras. 77 and 79 ("Mercier"); Battlefords and District Co- operative Ltd. v. Gibbs, 1996 187 (SCC), [1996] 3 S.C.R. 566, [1996] S.C.J No. 55, at para. 31.

[57] ADGA argued that the Tribunal relied on evidence outside of the alleged expertise of the witnesses. In support of its argument it cited the following passage in the Tribunal's decision [at para. 152]:

In particular, given the testimony from Drs. Hall and Arboleda-Florez with respect to workplace strategies for managing the disorder, and avoiding prolonged absences, it was simply inadequate to assert that Ms. Corbett was too busy for a monitoring role . . .

[58] I agree with the respondent's submission that ADGA has taken the Tribunal's sentence out of context and misconstrued its meaning. When the Tribunal refers to "workplace strategies for managing the disorder, and avoiding prolonged absences", the Tribunal is referring to Lane's workplace strategies for the [page665] management of his disorder, which both Dr. Arboleda-Florez and Dr. Hall were amply qualified to speak about. The Tribunal also makes reference to Lane's "strategies" at para. 48 of the decision. The Tribunal cannot be referring to the employers' workplace strategies because there was no such evidence. The Tribunal emphasized in the sentence preceding the one excerpted above that ADGA called no evidence on any of its accommodation strategies. Further, neither Dr. Hall nor Dr. Arboleda-Florez gave evidence about employers' workplace strategies for managing bipolar disorder.

[59] An appellate court ought not to interfere with an exercise of discretion unless it was undertaken upon some wrong principle. The Tribunal correctly applied the relevant law in exercising its decision to admit the evidence. It was thereafter the function of the Tribunal to decide what weight to attach to the evidence. This is precisely what the Tribunal did. This court should not interfere.

Tribunal Decision on Liability

[60] The Tribunal held that ADGA discriminated against Lane because of his bipolar disorder and perceptions related to the impact of bipolar disorder on workplace performance contrary to ss. 5(1) and 17(2) of the Code. The Tribunal ruled that Lane had bipolar disorder or at least that he had a mental disability and identified it as bipolar disorder to ADGA. Germain made the decision to dismiss Lane based on the reports he received about Lane's symptoms and prognosis and his own observations that were "objective indicators of someone who likely has a bipolar disorder". Germain made "assumptions about the future actions and reliability of someone exhibiting these symptoms" and, as a consequence, dismissed Lane's employment.

[61] ADGA submits that there was no direct evidence of a diagnosis of bipolar disorder. Lane had been diagnosed by a Dr. O'Brien, who was not called as a witness. Dr. Hall, who did testify, made no diagnosis.

[62] I find no merit in this argument in the context of the evidence in this case. The evidence taken as a whole, including the medical description of the condition, and that of Lane himself concerning the extreme changes in his behaviour when in a manic or depressive condition, established a bipolar disorder or a mental disability which Lane identified as bipolar disorder to ADGA.

[63] The Tribunal found that it was not necessary to establish a comparator group for the purposes of establishing differential [page666] treatment. In the alternative, if it were necessary, the Tribunal held that the appropriate comparator group in this case would have been all probationary employees who could possibly need to take unpredictable periods of sick leave and even STD and LTD. The Tribunal ruled that the Commission had met its onus under s. 5 of the Code to establish differential treatment resulting in discrimination.

[64] The Tribunal found that the evidence established that "Lane was fully capable of performing the essential duties of the position to which he was hired at least when he was not heading towards or at one of the two ends of the spectrum of bipolar disorder".

[65] The Tribunal held that ADGA had both a procedural and substantive duty to accommodate Lane's bipolar disorder up to the point of undue hardship. The Tribunal ruled that ADGA did not meet its procedural duty to accommodate Lane. ADGA was required to "engage in a fuller exploration of the nature of bipolar disorder, Lane's own situation as a victim of bipolar disorder, and to form a better informed prognosis of the likely impact of his condition on the workplace". This included, among other things, seeking legal advice, consulting with personnel in DND and investigating the extent to which managing Lane's condition was possible. It was not enough to simply reject Lane's suggestion that Corbett could monitor him because it would be time consuming for Corbett.

[66] The Tribunal stated that ADGA rushed to judgment despite the fact that [at para. 146]:

. . . there was no impediment to those responsible taking steps to ensure Mr. Lane went home immediately with a view to seeking medical intervention and no impediment to postponing any decision on his future with ADGA until such time as those responsible could fully evaluate whether ADGA could accommodate Mr. Lane without "undue hardship". Instead Lane was dismissed immediately and told to leave the premises. Indeed, no one bothered to inform his wife of that fact, despite all the indications that he had earlier convinced Ms. Corbett on the basis of what Mr. Lane had told her and what she had learned on the Mayo Clinic website that Mr. Lane was in a manic or pre-manic state.

[67] The Tribunal further held that even assuming that ADGA could rely on ex post facto justifications for its actions to avoid liability, ADGA's evidence which included the "understandably self-serving testimony of Sincennes and Germain" did not satisfy the onus of proof required to establish that it met its substantive duty to accommodate to the point of undue hardship. [page667]

Tribunal Decision on Remedy

[68] The Tribunal found that ADGA acted "precipitately" in firing Lane without conducting an appropriate assessment as part of its obligation to accommodate. This resulted in Lane very rapidly going into a state of full-blown mania, something that "was foreseeable for a person with bipolar disorder losing his job, particularly when that person was already in a pre- manic state".

[69] The Tribunal found the summary manner in which Lane was dismissed was [at para. 155]:

. . . a huge affront to [Lane's] sense of self-worth. This was exacerbated by the fact that the principal decision-maker and his advisors had little or no awareness of the difficulties faced by those with disabilities or of their own legal responsibilities under the Code. Mr. Lane was also particularly vulnerable given his previous work history at Siemans and Linmor and the fact that he was recovering from a quite recent hypo-manic episode. His encounters with Ms. Corbett should also have given her at least some indication of the extent of his vulnerability. While this was a case of essentially one incident, the termination, it was not only precipitate and unaccompanied by any assessment of Mr. Lane's condition but also callous to the extent of its consequences in the sense that nothing was done on the day to ensure that Mr. Lane in his pre-manic condition reached his home safely and sought medical attention . . . This was a serious violation of Mr. Lane's right to be free from discrimination by an otherwise sophisticated employer that had every reason to know better.

[70] The Tribunal ordered ADGA to pay Lane $35,000 in general damages and a further $10,000 for "the profound effect that [ADGA's] actions had on Lane's mental state". The Tribunal also awarded $40,511.25 in special damages as well as pre- and post-judgement interest.

[71] The Tribunal stated that, "this was an instance where ADGA's lack of awareness of its responsibilities under the Code as an employer was particularly egregious". There were no workplace policies, and senior managers were oblivious to their Code obligations. In these circumstances, the Tribunal held that "the Commission was justified in seeking a broad range of public interest remedies for the purposes of ensuring inculcation in the values of the Code and aimed at avoiding the discrimination that formed the basis of the complaint". The Tribunal ordered ADGA to, inter alia, retain a qualified consultant (approved by the Commission) to provide training to all employees, supervisors and managers on the obligation of employers under the Code and in particular the accommodation of persons with disabilities with a special focus on mental health issues; establish a written anti-discrimination policy that conforms with the requirements of the Code and [page668] addresses discrimination on the ground of disability; and post the policy in plain and obvious locations at all places where ADGA does business and include the policy in orientation materials for new employees.

Standard of Review

[72] An exhaustive standard of review analysis is not required in every case. When such an analysis has been previously undertaken for similar or identical questions, the existing jurisprudence may be referenced in determining the standard: Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9.

[73] In earlier decisions, the standard of review of "reasonableness" has been applied to findings of fact and the application of the law to those findings of fact; and the standard of "correctness" applies to questions of law: Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 56481 (ON SCDC), 88 O.R. (3d) 455, [2007] O.J. No. 4978 (Div. Ct.), at paras. 29, 32; Quereshi v. Ontario (Human Rights Commission), 2006 63704 (ON SCDC), [2006] O.J. No. 1782, 215 O.A.C. 102 (Div. Ct.), at paras. 18-20; Smith v. Ontario (Human Rights Commission), 2005 2811 (ON SCDC), [2005] O.J. No. 377, 195 O.A.C. 323 (Div. Ct.), at para. 3 ("Smith"); Entrop v. Imperial Oil Ltd. (2000), 2000 16800 (ON CA), 50 O.R. (3d) 18, [2000] O.J. No. 2689 (C.A.), at para. 42 ("Entrop").

[74] Those standards apply here.

[75] In applying the reasonableness standard generally, the reviewing court should recognize that Tribunals have a margin of appreciation within the range of acceptable and rational solutions. Deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers: Dunsmuir, supra, at paras. 47, 49.

[76] In reviewing questions of fact, it is not the role of a reviewing court to posit alternate interpretations of the evidence. Rather, its role is to determine whether the Tribunal's interpretation of the evidence is reasonable, i.e., "whether it had some basis in the evidence" for its findings: Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, at para. 41.

Issue One: Was the Tribunal's finding of discrimination reasonable?

Comparator group -- Appellant's submissions

[77] ADGA submits that the decision of the Tribunal must fall because Lane and the Commission did not establish a correct [page669] comparator group -- indeed any comparator group against which the treatment of Lane could be measured.

[78] ADGA submits that "discrimination" in a human rights context prohibits an employer from treating employees with disabilities differently from other employees within the same comparator group. Therefore, the Tribunal could only make a finding of discrimination if there was evidence that the complainant was treated differently than other employees in a particular comparator group because of his disability.

[79] ADGA submits that it was not incumbent on ADGA to describe a correct comparator group. Rather, the Commission must establish discrimination and cannot do so without establishing against which group Lane has been treated in a discriminatory fashion. The Commission has failed to establish or identify any comparator group, and this is fatal to its case.

[80] Citing Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, [2004] S.C.J. No. 71, ADGA submits that the choice of an appropriate comparator group is essential in discrimination analysis, and that there is no discrimination in this case when the appropriate comparator is selected.

[81] ADGA submits that even if one accepts that Lane has a disability, this fact alone does not establish a case of "discrimination". Section 5 of the Code creates the following right with respect to employment:

5. Every person has a right to equal treatment with respect to employment without discrimination because of . . . disability.

[82] The Supreme Court of Canada in C.N.R. v. Canada (Human Rights Commission) defined discrimination as follows:

The discrimination is then reinforced by the very exclusion of the disadvantaged group because exclusion fosters the belief, both within and outside the group, that the exclusion is the result of "natural" forces . . . And in Andrews v. Law Society of British Columbia as follows:

. . . discrimination may be described as a distinction, . . . relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. C.N.R. v. Canada (Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114, [1987] S.C.J. No. 42, at para. 34: Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, at para. 37. [page670]

[83] ADGA submits that in order to answer this question, the Tribunal is required to turn its mind as to whom Lane should be compared in order to find an act of "discrimination". In Post Office v. Union of Post Office Workers and another, the House of Lords stated:

Discrimination implies a comparison. . . . that by some reason of the discrimination he is worse off than someone else in a comparable position against whom there has been no discrimination. Post Office v. Union of Post Office Workers, 1905 103 (NWT SC), [1974] 1 All E.R. 229 (H.L.), at pp. 9 and 10 (QL).

[84] The Supreme Court of Canada has stated that the choice of the correct comparator group is "critical" in cases of alleged discrimination:

First, the choice of the correct comparator is crucial, since the comparison between the claimants and this group permeates every stage of the analysis. "[M]isidentification of the proper comparator group at the outset can doom the outcome of the whole s. 15(1) analysis". . . .

Second, while the starting point is the comparator chosen by the claimants, the Court must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate. . . .

Third, the comparator group should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination: . . . The comparator must align with both the benefit and the "universe of people potentially entitled" to it and the alleged ground of discrimination: . . .

Fourth, a claimant relying on a personal characteristic related to the enumerated ground of disability may invite comparison with the treatment of those suffering a different type of disability, or a disability of greater severity: . . . Auton (Guardian ad litem of) v. British Columbia (Attorney General), supra, at paras. 51-54 (citations omitted).

[85] ADGA submits that the proper comparator group was those employees (those who suffered from a disability and those who did not) who are probationary employees. Using a broader comparator group, such as the organization as a whole, is inappropriate as it does not permit comparison of similarly situated employees, and fails to take into account the purpose of the probationary period assessing the suitability and performance of the employees. There was no evidence before the Tribunal that the Complainant was treated differently from any other probationary employee, and no comparison of other employees who for whatever reason showed tangible evidence that they would be unable to perform the essential duties of the [page671] job. However, there was evidence that employees on probation are released for an inability to perform the essential duties of their positions.

Comparator group -- Respondent's submissions

[86] The Commission submits that the comparator group analysis does not apply. Rather, the Supreme Court has established that disability-based employment-discrimination analysis calls for the following inquiries to determine whether there has been a prima facie case of discrimination under the relevant human rights legislation: (1) the existence of a distinction; (2) the distinction is based on disability or perceived disability; and (3) the distinction has the effect of nullifying the right to full and equal exercise of human rights and freedoms: Mercier, supra, at para. 84; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council for Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868, [1992] S.C.J. No. 73, at para. 23 ("Grismer").

[87] If these three things are established, then the analysis proceeds to considering the accommodation of the individual, i.e., what are the needs associated with the disability? Can the employer accommodate those needs without causing undue hardship?: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (BCGSEU) (Meiorin Grievance), 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46, at paras. 54-55, 69, 70 ("Meiorin"); Entrop, supra, at paras. 81, 83-84.

[88] None of those inquiries call for the identification of a comparator group. The comparator group analysis is unnecessary when an employee with a disability seeks accommodation, and thereby seeks to be treated individually and differently: Ottawa (City) v. Ottawa-Carleton Public Employees' Union, Local 503, 2007 5524 (ON SCDC), [2007] O.J. No. 735, 221 O.A.C. 224 (Div. Ct.), at paras. 62-65, 67 ("Ottawa-Carleton P.E.U."); British Columbia Government and Service Employees' Union v. British Columbia (Public Service Employee Relations Commission), [2005] B.C.J. No. 445, 2005 BCCA 129, at paras. 46-49 and 67, Levine J.A., dissenting.

[89] The Commission submits that the comparator group analysis is inappropriate because a person with a disability who seeks accommodation of his or her needs does not seek to be treated the same way that others are treated. Avoiding discrimination on the basis of disability requires distinctions to be made taking into account the actual personal characteristics of people with disabilities. It is the failure to accommodate needs [page672] to the point of undue hardship which results in discrimination against persons with disabilities: Eaton v. Brant County Board of Education (1996), 1997 366 (SCC), 31 O.R. (3d) 574, [1997] 1 S.C.R. 241, [1996] S.C.J. No. 98, at para. 66; Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, at para. 65 ("Eldridge").

[90] The accommodation process must be individualized. The extent of the duty to accommodate varies with the characteristics of each enterprise and the specific needs of each employee: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, [2007] S.C.J. No. 4, at para. 22.

[91] In Grismer, for example, the claimant did not seek to be treated the same as all other applicants for drivers' licences, but rather sought accommodation by way of an individualized assessment to ascertain whether he could drive safely, despite an impairment in his peripheral vision. Similarly, in Eldridge, the claimants did not seek the identical treatment as other patients, but wanted to have their hearing impairments accommodated with the provision of communication services. In both cases this court found prima facie discrimination without a comparator group analysis: Grismer, supra, at paras. 23, 42-44; Eldridge, supra, at para. 80.

[92] Disability cases where accommodation is sought, such as in Grismer, Eldridge, and the case at bar, can be distinguished from cases where a person with a disability seeks identical treatment in the form of equal access to a benefits scheme. It is the latter cases that may be conducive to a comparator group analysis because the person with a disability is seeking equal access to the same benefit provided to persons with different disabilities: British Columbia Government and Service Employees' Union v. British Columbia (Public Service Employee Relations Commission), supra, at paras. 49-52.

[93] ADGA argues that the comparator group in this case is probationary employees. However, in Parry Sound, the Supreme Court held that probationary employees have the protection of the Human Rights Code. If ADGA were correct, it would create a result that was inconsistent with Parry Sound. It would no longer be discriminatory to fire a probationary employee who was pregnant (or in this case, bipolar) because other probationary employees were fired for non-Code related reasons: Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), 2003 SCC 42, [2003] 2 S.C.R. 157, [2003] S.C.J. No. 42, at paras. 34-36. [page673]

[94] ADGA argues that Lane was terminated because he had misrepresented his ability to perform the essential duties of the position for which he was hired and as such his termination was completely unrelated to his disability. This argument was made before the Tribunal and rejected [at paras. 137-39]:

. . . I reject the argument that ADGA had the right to dismiss Mr. Lane once it had discovered that he had lied about his bipolar condition in the course of the hiring process or at the very least, had failed to reveal a factor that was critical to any determination that he was qualified to perform the job for which he was being considered. The expert evidence of Philip Upshall established why it was that those with bipolar disorder are extremely reluctant to reveal their disorder to prospective employers. In the particular case, this was manifest in the testimony of both Mr. Lane and Ms. Lane as they revealed the anguish that Mr. Lane had gone through in deciding if and when to reveal his condition to his employer ...

Similarly I reject the contention that in effect Mr. Lane dismissed himself by telling Ms. Corbett at one of their meetings that he could not take the pressure of the job and admitting to Mr. Germain at the termination interview that he was not qualified for the position. . . . Given that he had just accepted the position a few days earlier knowing that it was a job that could be highly pressured, I do not find it plausible that Mr. Lane would so soon thereafter, and without any experience of the kind of pressure that the job could generate, state that he could not handle the pressure of the position . . . Similarly, I do not accept that Mr. Lane told Mr. Germain that he was not able to perform the essential duties of the position...

In fact, the evidence established that, subject to some reservations as to his experience as a team leader, Mr. Lane was fully capable of performing the essential duties of the job to which he was hired at least when he was not heading towards or at one of the two ends of the spectrum of bipolar disorder.

Conclusion on the issue of the comparator group

[95] I agree with the submissions of the respondent Commission. In cases of disability in the employee termination context, it is not necessary or appropriate to have to establish a comparator group.

[96] Disability cases bring with them particular and individualized situations. Once it is established that the termination of the employee was because of, or in part because of, the disability, the claimant has established a prima facie case of discrimination. The onus then shifts to the employer to establish that it met its duty of procedural and substantive fairness to the point of undue hardship.

[97] The above-noted references to Mercier, Grismer, Meiorin, Entrop, Eaton, Eldridge and Ottawa-Carleton P.E.U. support this conclusion.

[98] The Tribunal made an extensive and careful analysis of the evidence and came to the conclusion that Lane was [page674] "dismissed because of his disability and perceptions as to the impact of that disability on workplace performance".

[99] ADGA's position is that Lane misrepresented his ability to do the job for which he was hired. The Tribunal held that he did not do so. The Tribunal found that out of fear of a stereotypical reaction to someone with a mental illness leading to a decision not to hire, Lane did not reveal his illness to his prospective employer and misrepresented the number of his sick days in the preceding year.

[100] The expert testimony of Upshall supported Lane's perception that he would not get the job if he revealed his disability because of a stereotypical reaction which would be triggered in most employers.

[101] In these circumstances, the Tribunal held that ADGA could not rely on "Lane's lying" as "an independent basis for dismissal and thereby avoid having to account for its treatment of him as someone exhibiting the symptoms of bipolar disorder in the workplace".

[102] In this the Tribunal was correct. Lane was under no obligation to disclose his disability -- nor indeed his record of sick days. The Tribunal held as a fact that he did not misrepresent his ability to perform the tasks required of him. The Tribunal held as a fact that he was terminated because of his disability.

[103] In summary, the Tribunal correctly applied the law to the facts which it found. The conclusions on the facts were reasonable in the determination that the Commission had made out a prima facie case of discrimination.

Issue two: Was the finding of the Tribunal that ADGA failed both the procedural and substantive duties to accommodate reasonable?

[104] Employers have procedural and substantive duties to accommodate employees with disabilities up to the point of undue hardship. The onus is on the employer to establish that it has met these duties: Meiorin, supra, at para. 62; Grismer, supra, at paras. 22, 32.

[105] The Tribunal concluded that ADGA failed both their procedural and substantive duties to accommodate Lane. ADGA had the burden of proof with respect to demonstrating that it could not accommodate Lane short of undue hardship. ADGA failed to discharge this burden.

[106] As is revealed in the following passage from the Tribunal's decision, the Tribunal acknowledged that ADGA was legitimately concerned about Lane's behaviour in the workplace and [page675] about Lane possibly needing lengthy periods of sick leave [at paras. 143-44]:

It is, of course, obvious that ADGA, and Ms. Corbett and Mr. Germain in particular, had reason to be concerned about Mr. Lane's behaviour in the workplace during the short time he had been with the company. Lack of attention to work, excessive socializing with co-workers, an overly familiar email message to Mr. Germain, and manifestations of paranoia are all reasons for both concern and intervention in the workplace. This is particularly true in the case of a work environment that has significant security dimensions and where a premium is placed upon reliability in terms of both attention to the task at hand and the quality of the ultimate product. Both Ms. Corbett and Mr. Germain were also justified in having worries about the impact on this aspect of ADGA's work of Mr. Lane possibly needing lengthy periods of sick leave.

However, to acknowledge the reality and legitimacy of these concerns does not amount to acceptance of the proposition that ADGA could not accommodate Mr. Lane without undue hardship. It was necessary to evaluate the concerns on the basis of an appropriate assessment of Mr. Lane's situation and not just the information that Ms. Corbett and Mr. Germain had at that point. ...

Procedural Duty to Accommodate

[107] The procedural duty to accommodate involves obtaining all relevant information about the employee's disability, at least where it is readily available. It could include information about the employee's current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the "procedural" duty to accommodate: Meiorin, supra, at paras. 64, 65 and 68; Gordy v. Oak Bay Marine Management Ltd., [2004] B.C.H.R.T.D. No. 180, 2004 BCHRT 225 (H.R.T.), at para. 84 ("Gordy"); D. Lepofsky, "The Duty to Accommodate: A Purposive Approach" (1992) 1 Can. Lab. L. J. 1 at 11 [Lepofsky]; Moore v. Canada (Attorney General), [2005] F.C.J. No. 18, 2005 FC 13, at paras. 35-36.

[108] In assessing whether the employer has met the duty, the employer's efforts must be assessed at the time of the alleged discrimination. An employer may not use after-acquired evidence to support its view that an employee could not be accommodated. After-acquired information is only relevant to remedy: Gordy, supra, at para. 86.

[109] The Tribunal found that ADGA had failed to fulfill its procedural duty to accommodate Lane. The Tribunal stated that [at para. 144]: [page676]

The procedural dimensions of the duty to accommodate required those responsible to engage in a fuller exploration of the nature of bipolar disorder, Mr. Lane's own situation as a victim of bipolar disorder, and to form a better informed prognosis of the likely impact of his condition in the workplace. Given their ignorance of the legal dimensions of the issue, consultation with a lawyer was also indicated and given the security concerns, so too was contact with appropriate personnel in DND. They needed to consider the extent to which careful managing of Mr. Lane's condition as well as the possible role of ADGA as employer in this process of management could avoid problems. For these purposes, simply asserting (I suspect on an after the event basis) that Mr. Lane's suggestion that Ms. Corbett could monitor him was inconsistent with the demands on Corbett's time scarcely amounts to an appropriate evaluation of effective workplace monitoring.

[110] ADGA makes the following assertion in its factum:

Prior to the termination, Mr. Germain and Andre Sincennes, Vice-President of ADGA, asked Liz Burgess, the former Director of Human Resources for ADGA, to conduct a search for other positions in which Mr. Lane could be accommodated. Ms. Burgess advised Mr. Germain that there were no such positions available at ADGA. Given that there were no alternate duties available within ADGA for Mr. Lane, Mr. Germain decided to terminate Mr. Lane's employment. Mr. Lane's bipolar disorder was not a factor in the decision to terminate Mr. Lane's employment.

[111] That assertion is a clear distortion of the Tribunal's finding. The assertion reflects the evidence given by Germain and Sincennes, which was specifically and with detailed analysis not accepted by the Tribunal.

[112] The Tribunal specifically found that the alleged conversations between Germain, Sincennes and Burgess about other positions at ADGA never occurred. Notwithstanding ADGA's submissions to the contrary, it was open to the Tribunal to make this finding of fact on the evidence before it.

Substantive Duty to Accommodate

[113] The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee's disability short of undue hardship. "Accommodation" refers to what is required in the circumstances to avoid discrimination. The factors causing "undue hardship" will depend on the particular circumstances of every case. For example, undue hardship could arise due to excessive cost or safety concerns: Grismer, supra, at para. 22; Meiorin, supra, at para. 63.

[114] ADGA submits that the accommodation that Lane requested from ADGA involved "relief from regular attendance and/or tolerance of substandard performance when he was at work" and that ADGA was not required to tolerate excessive absenteeism or substandard work. However, this [page677] was not the accommodation Lane wanted. As found by the Tribunal, Lane's request for accommodation was for ADGA to take "responsibility for monitoring Lane in the workplace (as he had suggested) and intervening if Lane showed any signs consistent with the possible onset of an episode" by calling his wife or doctor.

[115] ADGA submits that to accommodate Lane would have constituted an undue hardship because even if Corbett had been monitoring Lane, it "would not have prevented Lane from entering a pre-manic stage". However, the purpose of Lane's accommodation request was to prevent Lane from having a full- blown manic episode, not to prevent a pre-manic stage. It would not be until Lane was in a pre-manic phase that he would begin exhibiting the symptoms he had asked Corbett to watch out for. When Lane exhibited these symptoms, such as excessive socializing, talking fast and paranoia, Corbett had no difficulty recognizing that he was in a pre-manic state as evidenced by her e-mail and conversation with Germain.

[116] ADGA submits that it could not accommodate Lane short of undue hardship because the work being performed by Lane was mission and safety critical and there was no room for error. Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations. I note that risk can only be considered in the context of an undue-hardship analysis, not as an independent justification of discrimination: Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 76 (SCC), [1990] 2 S.C.R. 489, [1990] S.C.J. No. 80, at para 62; Grismer, supra, at para. 30; Meiorin, supra, at para. 79.

[117] To meet the test of undue hardship, the risk must be "serious". The use of the term undue infers that some hardship is acceptable; it is only "undue" hardship that satisfies the test: Grismer, supra, at para. 32.

[118] Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences "might" or "could" result if the claimant is accommodated: Grismer, supra, at para. 41; Meiorin, supra, at para. 79; Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 15 (SCC), [1982] 1 S.C.R. 202, [1982] S.C.J. No. 2, at pp. 212-13; Lepofsky, supra, at p. 11.

[119] While common sense and intuitive reasoning may be utilized by an employer, in a case where accommodation is [page678] refused "there must be some evidence to link the outright refusal of even the possibility of accommodation with an undue safety risk" (emphasis added). In other words, ADGA had to show that it was impossible to accommodate Lane without risking reasonable safety.

Grismer, supra, at para. 43.

[120] The Tribunal found [at para. 139] that Lane was fully capable of performing the essential duties of the job for which he was hired at ADGA when he was not "heading towards or at one of the two ends of the spectrum of bipolar". Lane had worked in two previous positions as a quality assurance analyst and had over five years' experience working in this area. He had also been accommodated by LINMOR and demonstrated that he was able to perform the job at a high level. ADGA did not provide any independent or expert evidence to establish that it would be impossible for them to accommodate Lane's disability without undue hardship. ADGA chose instead to rely on self-serving testimony that Corbett was too busy to monitor Lane; and on generalized fears that in an irrational state, Lane could disclose the nature of his work at DND and put national security at risk: Grismer, supra, at paras. 30, 42; Gordy, supra, at para. 206; Zettel Manufacturing Ltd. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (C.A.W.-Canada), Local 1524 (Hauss Grievance), 2005 94154 (ON LA), [2006] O.L.A.A. No. 333, 140 L.A.C. (4th) 377, at p. 10 (QL) ("Zettel").

[121] With respect to ADGA's concern about reliability, and Lane being off work for prolonged periods of time, it was apparent that Germain and Corbett could find ways to deal with other short-term and long-term employee absences when required. ADGA did not establish that Lane's absences were impossible to accommodate: Zettel, supra, at p. 11 (QL).

[122] ADGA submits it had the right to rely upon its own knowledge and information provided by Lane regarding his medical fitness and his ability to attend work on a regular, full-time basis. Given Lane's symptoms and admissions to Corbett, it was reasonable for ADGA to conclude, on its own observations, that Lane was unable to perform the essential duties of the "mission and safety critical" position, but also, that Lane could not be accommodated on this particular project.

[123] The following evidence was tendered through Sincennes with respect to this issue: [page679] -- Most, if not all services rendered by ADGA employees were on the client site; -- all of the services provided by ADGA are based on specific individuals who have acquired the skill set in the course of his/her career; -- it is not normal for ADGA to have "bench strength" and it usually waits to hire individuals who meet the specific technical requirements of a tender; -- the nature of the work is mission critical, and malfeasance/ non-feasance would put lives of individuals at risk; -- the ability to substitute personnel on DND is directly related to the client's decision to request that there be a personnel change and for the ADGA management on-site project manager or lead to determine that a person is not fulfilling the requirements of a mandate or task. ADGA was not at liberty to substitute personnel just because ADGA wanted to do so; such a change constituted a breach of contract; [and] -- ADGA employees do not have the ability to perform work on different tasks on different contracts at the same time, with the exception of project management.

[124] ADGA submits that the Tribunal erred in law in finding that ADGA had not fulfilled its procedural obligations with respect to a search for accommodative measures and for finding that ADGA did not accommodate Lane to the point of undue hardship.

[125] However, the Tribunal carefully reviewed the evidence of ADGA on the subject of accommodation as is revealed in the following paragraphs from its decision [at paras. 92-95]:

When it came to the decision to dismiss, both Ms. Corbett and Mr. Germain identified a range of considerations that led them to the conclusion that Mr. Lane could not perform the requirements of the position. Ms. Corbett expressed particular concern on the score of stress and her interpretation of Mr. Lane's statements as indicating that significant levels of stress on the job could lead to an episode, a statement that she felt was confirmed by what she found on the Mayo Clinic website. This and Mr. Lane's behaviour (including her sense that he was exhibiting signs of paranoia) also led her to have concerns about his reliability and ability to focus consistently at a level required by a project that was classified as "Mission and Safety Critical". If his work and supervision were unreliable, this could have repercussions down the road for those operating the IFCSS particularly in a combat situation. She also wondered whether he might compromise the [page680] security of the project by breaching confidentiality. Finally, and perhaps most importantly, she worried about the possibility of lengthy absences from the project. If that occurred, there would be no alternative but to take someone off another project. She testified that the project had no built-in capacity to otherwise compensate for long-term absences and, given the nature of the position and the time it took to get up to speed, a short-term replacement was not a feasible option.

Ms. Corbett made these judgments against what she had observed of Mr. Lane's behaviour, what he had told her about his bipolar condition, and the limited amount of information that she had gleaned from the Mayo Clinic website. Mr. Germain reached similar conclusions on the basis of Ms. Corbett's account of her conversations with Mr. Lane, Mr. Harris's report on Mr. Lane, and his own limited observations of Mr. Lane both in the workplace and in the form of the salutation in the email message he had sent Mr. Germain. While Ms. Corbett made some attempt to locate her concerns within the context of what she knew about bipolar disorder, Mr. Germain dismissed that from his assessment entirely. Given what had been observed already and the prospect that there would be long-term absences from work, his bottom line question to himself was whether Mr. Lane was able to do the job. Mr. Germain saw Mr. Lane as a seemingly unstable person occupying a position where stability and reliability were essential and which, because of its "Mission and Safety Critical" classification, had significant security dimensions both in terms of the confidential and national security aspects of the contract itself and the functioning of the IFCSS in the field.

At the time of the meeting at which Mr. Lane was dismissed, there was no discussion whether there were ways in which the risk of a serious episode and lengthy absences from work could be minimized. This was not on Mr. Germain's horizon, and Ms. Corbett, by this point, was not thinking of the matter in those terms even though that had been one of the major topics of her conversations with Mr. Lane, particularly on the Friday. At the hearing, however, this issue was addressed in their testimony. Ms. Corbett accepted that the project could generally cope with key personnel being absent on sick leave for up to three days. However, although the company allowed for ten days of paid sick leave per year, an absence of ten consecutive days could create problems particularly if it occurred during a critical time, such as Qualification Testing. Mr. Germain testified to much the same effect. Maternity leave could be planned for and accommodated because there was lead-time. That was not so in the case of a sudden onset of a manic episode.

He also dismissed out of hand the notion that the risk of absenteeism could be minimized if either he or Ms. Corbett undertook responsibility for monitoring Mr. Lane in the workplace (as he had suggested) and intervening if Mr. Lane showed any signs consistent with the possible onset of an episode. He testified that neither he nor Ms. Corbett had time for that and, indeed, it was not to be expected that there would be daily interaction between Ms. Corbett (let alone himself) and Mr. Lane in the workplace. The demands of Ms. Corbett's position meant that days might pass between encounters with some of her staff. Mr. Lane's proposed regime of monitoring was simply not workable and, according to Mr. Germain, it would simply have been impossible to put in place any other mechanism for monitoring a Senior Test Analyst in Mr. Lane's position. [page681]

[126] Furthermore, the Tribunal considered in detail what ADGA could have learned, if it had made appropriate enquiries [at paras. 96-103]:

If ADGA had taken legal advice before it dismissed Mr. Lane, it would have learned that there were at least risks in dismissing summarily someone with bipolar disorder. A lawyer would have told it of the possibility that this could amount to discrimination on the basis of disability contrary to the Code, and, if the disability was the basis for the dismissal, that there was a duty to accommodate the employee in both a procedural and substantive sense to the point of undue hardship.

Consultation with those having medical expertise in or special familiarity with bipolar disorder (such as the expert witnesses who testified at the hearing and on whose evidence the following account is based) would have cautioned ADGA not to assess the employee's situation from the perspective of false stereotypes as to the capacities of those with mental illness in general and bipolar disorder in particular. Among those stereotypes are that those with bipolar condition are in almost every instance unreliable, prone to inappropriate behaviour to the point of violence, and incapable of working to the normal demands of most jobs. ADGA would also have been warned about the stigmatization in the workplace to which those in Mr. Lane's position are sometimes subjected. It would have realised that Mr. Lane's initial failure to disclose at his job interview that he suffered from bipolar disorder was not at all uncommon and, in many instances, based on a well-grounded fear that, if the applicant was forthcoming, those responsible for hiring decisions would engage in inappropriate stereotyping and immediately disqualify the applicant as a candidate.

More specifically, ADGA would have learned that, while stress can trigger bipolar episodes, those suffering from the disorder are often capable of dealing with stress and with the pressure generated by tight deadlines in the workplace. Inquiries would have confirmed what Mr. Lane testified that he told Ms. Corbett -- that, in some with bipolar disorder, the kind of stress that acts as a trigger is "negative stress" in the form of fractured and difficult working relationships with fellow workers and supervisors. In contrast, "positive" stress in the form of challenging work that engages the employee's attention and creative capacities can sometimes bring out the best in a person with bipolar disorder. However, it would also have ascertained that, for some affected individuals, working long hours under pressure, particularly if accompanied by inadequate sleep, could act as a trigger. For those, any accommodation might require more flexible working hours, a reduction in workload, exploration of the possibility of working at a different site including from home, and allowances for medical appointments.

ADGA would also have verified that, for some suffering from bipolar disorder, full-blown manic episodes could be staved off if fellow workers and supervisors were sensitized to the situation and able to spot standardized indicators of the onset of a pre-manic or hypomanic phase. Such early intervention in the workplace followed by a few days off work and medical intervention could prevent the lengthy period of hospitalization and recovery resulting from the worker "going up" to full-blown mania. This too would have confirmed at a general level what Mr. Lane had told Ms. Corbett when [page682] he revealed his condition to her on the Wednesday and Friday of the first week of his employment at ADGA.

ADGA could also have ascertained that there were dangers associated with the dismissal of someone with bipolar disorder. This would be particularly so when the employee was in a pre-manic phase and likely to attribute his bipolar condition to the decision to terminate whether accurate or not. Loss of a job and the resulting impact on self-esteem could very well lead to the rapid onset of a full-blown manic episode, deep depression, or a mixture of both. It would also have ascertained that each full-blown episode increases the chances of recurrence (and more frequent recurrence at that), and possibly a permanent inability to work.

In terms of the particular situation of Mr. Lane as a victim of bipolar disorder, ADGA had the information that Mr. Lane had provided to Ms. Corbett on the Wednesday and the Friday. It also had the observations of Mr. Lane's behaviour in the workplace provided by Mr. Germain, Ms. Corbett and Mr. Harris, as well as the information that the latter particularly had gleaned from other employees and the commissionaire. Further probing of Mr. Lane, his spouse and, with Mr. Lane's consent, his physician, Dr. Hall, would have filled in many of the details of his medical history in general and the impact of the disorder in particular.

This information would have included the number and severity of each manic episode, the extent to which Mr. Lane had suffered from depression, how both had affected Mr. Lane in the workplace, and the time off work that each had necessitated. ADGA would have found out more details as to the circumstances of the early intervention at Linmor and the impact this had had on the onset of mania and the time Mr Lane had taken off work. It would have heard of the impact of other early interventions on the part of Ms. Lane when Mr. Lane was exhibiting pre-manic indicators. The company would have found out about the extent of Mr. Lane's self-awareness of and insights into his illness and his willingness to respond to interventions and to medical advice and treatment. There would also have been information about the extent to which both his depression and mania were manageable through medication.

Dr. Hall would also have been able to inform ADGA that Mr. Lane was schizotipal. This is a personality trait and it meant that Mr. Lane was somewhat of a loner who would not be comfortable with many people around. This would not have a necessary impact on his ability to be a team leader or supervisor in the workplace. However, in terms of external indicators of pre- or hypomania, it did mean that Mr. Lane would present later i.e. his condition and the indicators would not be apparent as soon as they would be in those with bipolar disorder who had a more flamboyant personality.

Conclusions on Liability

[127] The Tribunal thus found as a fact that ADGA failed to take any of the steps it could have taken in order to assess and pursue the question of accommodation. It held that there was a "rush to judgment" by ADGA. These factual findings are sustainable on the evidence and the conclusion that ADGA did not meet its procedural duty to accommodate is reasonable. [page683]

[128] The Tribunal further held that ADGA had not established that it could not accommodate Lane to the point of undue hardship.

[129] In reference to both the procedural and substantive aspects of ADGA's duties, the Tribunal correctly stated and applied the law to the facts as it reasonably found them to be.

Remedies

[130] Section 41 of the Code sets out the remedial authority of the Tribunal:

41(1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order, (a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and (b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

[131] The Tribunal awarded the following under s. 41(1)(b): -- Damages for violation of Lane's inherent right to be free from discrimination, in the sum of $35,000 ("general damages"). -- Damages for the reckless infliction of mental anguish, in the sum of $10,000. -- Special damages for loss of salary resulting from the violation of his rights, in the sum of $34,278.75. -- Prejudgment and post-judgment interest.

[132] In addition, the Tribunal made the following orders (the "public interest remedies") under s. 41(1)(a) [at para. 165]: (6) The Respondent shall retain at its own expense a qualified consultant (approved by the Commission) to provide training to all employees, supervisors, and managers on the obligation of employers under the Code and, in particular, the accommodation of persons with disabilities with a special focus on mental health issues. (7) The Respondent shall within three months of this Order establish a comprehensive written anti-discrimination policy that conforms with the requirements of the Code, and that addresses discrimination on the ground of disability. [page684] (8) The Respondent shall post the policy ordered under (7) in plain and obvious locations at all places where the Respondent does business and will include the policy in the orientation materials that it provides to new employees. (9) The Respondent shall also provide copies of the policy ordered under (7) as part of any request for proposal. (10) The Tribunal will remain seized of this matter for twelve months from the date (whichever is later) of this Order or any further Order it makes to deal with issues that may arise over the implementation of this and any subsequent Order.

The Award of $35,000 General Damages

[133] ADGA submits that there is no power under s. 41(1)(b) to award damages other than for "restitution . . . for loss arising out of the infringement".

[134] ADGA acknowledges that many decisions in this court and in Tribunals have awarded "general damages", but submits that there has been no analysis in any of the decisions concerning whether an award of "general damages" can properly be made for "restitution" under the section.

[135] I find no merit in this submission.

[136] As early as 1984, the legislation in its present form was considered by the Ontario Board of Inquiry, Peter A. Cumming (now Cumming J.) in Cameron v. Nel-Gor Castle Nursing Home and Nelson (1984), 1984 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd. Inq.) ("Cameron") [at paras. 18525-18527 and 18537, 18538, 18548]:

There is a presumption in favour of the making of an award of special and general damages in human rights cases.

Therefore, I think that a presumption in favour of awarding both special and general damages should be made by Boards of Inquiry. Compensatory awards should not be completely discretionary. (Rosanna Torres v. Royalty Kitchenware Limited (1982), 1982 4886 (ON HRT), 3 C.H.R.R. D/858 at D/869).

Since Parliament has indicated the desirability of compensating financial losses resulting from discriminatory practices, it seems only reasonable, in view of the philosophy underlying the legislation, that this should be the norm, applicable except if some good reason for not awarding compensation can be proved. (Forman v. Via Rail, 1980 3897 (CHRT), 1 C.H.R.R. D/233, 235, cited with approval under the Ontario Code in Rosanna Torres v. Royalty Kitchenware Limited (1982), 1982 4886 (ON HRT), 3 C.H.R.R. D/858 at D/869.)

Although damage awards in human rights cases historically were small in size, they have become progressively more substantial in recent years. It is now a principle of human rights damage assessments that damage awards ought not to be minimal, but ought to provide true compensation other than in exceptional circumstances, for two reasons. First, it is necessary to do this to meet the objective of restitution, as set forth above. Second, it is necessary [page685] to give true compensation to a complainant to meet the broader policy objectives of the Code: It is important that damage awards not trivialize or diminish respect for the public policy declared in the Human Rights Code.

The objective to be achieved by an award of monetary compensation under the Code is restitution, that is, the eradication of the harmful effects of a respondent's actions on the complainant, and the placing of a complainant in the same position in which she would have been, had her human rights not been infringed by the respondent. . . . . .

The new Code, like the old Code, allows for the award of general damages for, inter alia, injury to dignity and self- respect, and loss of the right to freedom from discrimination. (Emphasis added)

Where a contravention of the Code results in injury to the complainant's dignity or self-respect, general damages for this loss should reflect the seriousness of the injury caused.

It is most important to one's personality, character, bearing, and even self-confidence to know that a denial of employment is due to a factor that one can overcome, or change, like a work record, rather than due to a factor that one cannot change, and which is not relevant to employment potential, like one's race, ancestry, or place of origin. The discouragement to Mrs. Morgan in putting herself forth to any other employer is incalculable, although considerable. To one seeking a supervisory position especially, which requires greater self-confidence than that of a regular employer, this is a severe blow. Such injury to a person's feelings and dignity, the discouragement and loss of self-confidence resulting, faced as that person would be with the hopeless conclusion that one's impediment is beyond one's power to change, is not to be lightly assuaged, even with an amount of $1,700.00. Nevertheless, at least such a grant of general damages might act as an important encouragement to Mrs. Morgan and others, that the majority of people in this province, represented through the Legislative Assembly, do not favour discrimination on irrelevant and unjustifiable grounds, but rather, have declared that it is public policy in this province 'that every person is free and equal in dignity and rights . . .'. (Morgan v. Toronto General Hospital, 1977 Ontario Board of Inquiry, unreported, Tarnopolsky, Oct. 14, 1977 at 32-33). . . . . .

It seems to me that the first two lines of paragraph 40(1)(b) afford a complainant with the remedy of special and general damages as provided by the old Code as interpreted by boards of inquiry, and that the last three lines of paragraph 40(1) (b) go further, and provide for what is, in effect, punitive damages 'where the infringement has been engaged in wilfully or recklessly.'

[137] The Board made an extensive analysis of what is now ss. 41(1)(a) and (b) in coming to its conclusion.

[138] An appeal to this court was dismissed on September 17, 1985, this court holding it was unable to find error in the decision [page686] or the reasons given. Leave to appeal was denied by the Court of Appeal on November 25, 2005.

[139] As well, this court specifically made such an award in Ontario (Human Rights Commission) v. Shelter Corp., [2001] O.J. No. 297, 143 O.A.C. 54 (Div. Ct.):

In my view, a Board of Inquiry is entitled to award non- pecuniary intangible damages arising out of the infringement of the Code. It is an award to compensate for the intrinsic value of the infringement of the complainants' rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages.

[140] The court in Shelter Corp. referred without comment to Naraine v. Ford Motor Co., [1996] O.H.R.B.I.D. No. 43, 1996 20056 (ON HRT), 28 C.H.R.R. D/267 (Bd. Inq.), at paras. 39-44.

[141] In Naraine, Board Member Constance Backhouse wrote, under the head of "General Damages" [at paras. 39-40]:

In Ontario, human rights adjudicators have divided awards for general damages into two headings. The first branch covers non-pecuniary intangible damages arising from infringement of the Code. . . . Boards have continued to award compensation under this branch for, among other things, loss of the right to be free from discrimination and the experience of victimization; . . .

The second branch covers compensation for complainants who have experienced mental anguish where the respondent has acted in a wilful or reckless manner. . . . A clearer and more accurate characterization of this branch of recovery is that it represents "aggravated" damages. . . .

[142] The Board awarded $20,000 in general damages for the intrinsic value of the infringement of the complainant's rights and as compensation for his experience of victimization.

[143] The Naraine decision was upheld on appeal to this court: 1999 15056 (ON SC), [1999] O.J. No. 2530, 34 C.H.R.R. D/405 (Div. Ct.). Leave to appeal to the Court of Appeal was granted, but on one ground only, unrelated to this issue.

[144] In Entrop v. Imperial Oil Ltd., [1998] O.J. No. 422, 1998 14954 (ON SC), 30 C.H.R.R. D/433 (Div. Ct.), this court affirmed an award of damages of the type under discussion.

[145] In Kearney v. Bramalea Ltd., 2001 28414 (ON SCDC), [2001] O.J. No. 297, 39 C.H.R.R. D/111 (Div. Ct.) at para. 43, the Divisional Court described the purpose of a "non-pecuniary intangible" damages award in the same language as in Shelter Corp.

[146] In Quereshi v. Ontario (Humna Rights Commission), supra, the Tribunal below awarded general damages of $35,000, which included $10,000 in legal costs. The $25,000 in general damages was upheld by the Divisional Court. The court noted [page687] that "[a]n award of damages is at the heart of the expertise of the Tribunal" (para. 64).

[147] In Scott v. Foster Wheeler Ltd., 1987 8514 (ON SCDC), [1987] O.J. No. 2451, 8 C.H.R.R. D/4179 (Div. Ct.), at para. 8, the court upheld a general damages award, noting that an infringement of a right can attract damages "for insult to his dignity" and that such damages "flow directly from the denial or discriminatory act".

[148] In addition to the foregoing, there have been a large number of Board decisions of like effect.

[149] Accordingly, the Tribunal does have the power under s. 41(1)(b) to award what may be termed general damages to compensate for the intrinsic value of the infringement of rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization.

[150] Concerning the quantum, ADGA submits it should be minimal. ADGA points to the following facts: Lane was employed with ADGA for one week, he was not the victim of harassment, he was not publicly humiliated, he was not a victim of repeated discrimination, he was not the victim of a poisoned work environment and it was unforeseeable that Lane would become totally incapable of working in 2002, that he would lose his home and that his marriage would deteriorate.

[151] ADGA notes that the purpose of damages under the Code is remedial and not punitive. The amount of general damages must put the complainant in the position he would have been in but for the alleged discriminatory act. The damages must be reasonably foreseeable. The Tribunal cannot simply pull a number from out of its hat. There must be some link to the alleged discriminatory practice: C.N.R. v. Canada (Human Rights Commission), supra.

[152] The respondent, on the other hand, by cross-appeal seeks an increase in the general damages to $60,000. The respondent argues that the Tribunal's award of $35,000 in general damages was too low considering Lane's particular vulnerability, and the seriousness of the offensive treatment, including the bad faith nature of ADGA's dismissal of Lane. Section 42 of the Code allows the Divisional Court to substitute its own assessment of damages or compensation for that of the Tribunal. The respondent argues that this court ought to do so in this case, awarding a higher amount in general damages for Lane. It is within the court's power to do so: Papa Joe's Pizza v. Ontario (Human Rights Commission), 2007 23487 (ON SCDC), [2007] O.J. No. 2499, 225 O.A.C. 256 (Div. Ct.), at para. 19; Smith v. Ontario (Human Rights Commission), supra, at paras. 28, 30.

[153] This court has recognized that there is no ceiling on awards of general damages under the Code. Furthermore, [page688] Human Rights Tribunals must ensure that the quantum of general damages is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a "licence fee" to discriminate: Shelter Corp., supra, at para. 43; Sanford v. Koop, [2005] O.H.R.T.D. No. 53, 2005 HRTO 53 (H.R.T.), at para. 34 ("Sanford"); Cameron, supra, at para. 18526.

[154] Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment: Sanford, supra, at para. 35; Shelter Corp., supra, at para. 43.

[155] ADGA decided to dismiss Lane at a time when they knew that Lane was in a pre-manic phase without any regard to the consequences, and in the aftermath of the dismissal, did not take any steps to ensure that Lane was safe. This was after Lane had specifically advised ADGA about his disability and the steps to take if he were exhibiting pre-manic symptoms.

[156] ADGA's dismissal had a devastating effect on Lane that was independent from his actual loss of employment. The Tribunal made the following findings regarding the adverse consequences that flowed from ADGA's actions: -- Lane very rapidly went into a state of full-blown mania. -- Both Drs. Hall and Arboleda-Florez testified that this was a foreseeable consequence of a person with Bipolar 1 Disorder losing his job, particularly when that person is already in a pre-manic state. -- There were damages associated with the dismissal of someone with bipolar disorder. This would be particularly so when the employee was in a pre-manic phase and likely to attribute his bipolar condition to the decision to terminate whether accurate or not. Loss of job and the resulting impact on self-esteem could very well lead to the rapid onset of a full-blown manic episode, deep depression, or a mixture of both. -- Each full-blown episode increases the chances of recurrence (and more frequent recurrence at that) and possibly a permanent inability to work. [page689] -- There was no impediment to taking steps to ensure that Lane went home immediately with a view to seeking medical intervention. -- There was no impediment to postponing any decision on his future with ADGA until those responsible could evaluate whether ADGA could accommodate Lane. -- No one bothered to inform his wife of Lane's dismissal despite the fact that Corbett knew that Lane was in a pre- manic state. -- Not only did Lane lose his job, he did so after identifying his condition and asking for accommodation should it prove necessary. -- As a consequence of his dismissal, Lane was hospitalized almost immediately and continued to suffer the effects of that at least up to the hearing of this matter before the Tribunal.

[157] ADGA argues that it should not have to account for Lane's full-blown manic episode which ultimately led to hospitalization, marital breakdown, the loss of Lane's family home and further instability. I disagree. Lane's disability and his decision to reveal his disability made him vulnerable. He was the classic "thin-skulled employee". ADGA had a duty to act responsibly and in good faith and its actions had foreseeable tragic consequences to Lane: Cameron, supra, at para. 18543; Garbett v. Fisher, [1996] O.H.R.B.I.D. No. 12, 25 C.H.R.R. D/ 379 (Bd. Inq.), at para. 56.

[158] While there is no formula upon which to decide how much a Tribunal should award in general damages in any given case, there have been several other cases that have awarded amounts in general damages similar to what was awarded to Lane. The respondent submits that while all of these cases are extremely serious, the impact on Lane, as established through the Tribunal's findings, is more severe and merits a far greater award of general damages. The respondent submits an award of $60,000 is appropriate: Sanford, supra, at paras. 35, 45; Arias v. Desai, [2003] O.H.R.T.D. No. 1, 2003 HRTO 1, 45 C.H.R.R. D/308 (H.R.T.), at para. 189; Baylis-Flannery v. DeWilde (No. 2) (2003), 2003 HRTO 28, 48 C.H.R.R. D/197 (O.H.R.T.), at para. 192; Papa Joe's, supra, at para. 19.

[159] To be sure, in this case there is a wide spectrum within which an appropriate quantum for general damages may fall. There is a broad discretion in the decision maker. [page690]

[160] An award of damages is at the heart of the expertise of the Tribunal: Quereshi, supra, at para. 64. The standard of review is reasonableness. The award in issue is reasonable. I would dismiss the appeal and the cross-appeal on quantum of general damages.

Damages for Mental Anguish

[161] The Tribunal found [at para. 156] that:

The dismissive attitude that the principals at ADGA exhibited towards Mr. Lane (as reflected once again in the precipitate way in which they dealt with him and lack of regard for his condition in the immediate aftermath of his termination) also justify a finding of recklessness, as is necessary to support an award of damages for mental anguish under section 41(1)(b) of the Code.

[162] Taken in the context of the surrounding circumstances as found by the Tribunal, this finding of recklessness is reasonable, as is the $10,000 quantum of the award.

Special Damages

[163] No issue was taken with the quantum of special damages.

Prejudgment Interest

[164] Subsection 41(5) of the Code provides that the Tribunal will render its decision within thirty (30) days of the conclusion of the hearing. There was a significant delay of over a year and a half between the last day of hearing and the date that the Tribunal's decision was rendered. As a result, ADGA submits it is unjustly prejudiced by the delay given that the Tribunal has awarded pre-judgment interest. ADGA submits that, given this institutional delay, the pre-judgment interest should have stopped running 30 days after the conclusion of the hearing.

[165] The hearing took place over 14 days between June 20, 2005 and January 6, 2006. While the delay in the rendering of the decision is substantial, I see no reason to visit any effect of that delay on the complainant, and the appeal in respect to this item is dismissed.

The Public Interest Remedies

[166] There is no reason to disturb para. 6 of the Tribunal's order (training of employees) or para. 7 (establishing a written anti-discrimination policy). These provisions are reasonable.

[167] However, para. 8 of the order (posting a policy in all locations where the respondent does business) is too broad in its [page691] scope. Most of the work carried on by ADGA employees is done on the premises of others. The requirement of posting the policy on others' premises could well present practical difficulties. That paragraph of the order should be deleted and replaced with a requirement that all employees be provided with a written copy of the policy.

[168] I interpret para. 9 of the order to mean that ADGA must, when responding to a request for proposal, submit with its proposal a copy of the policy. Such a provision is unreasonable. It could well and probably would interfere with stipulated documentary tendering requirements, thus impairing ADGA's ability to submit proposals. Furthermore, I fail to see any significant public interest advantage in such a requirement.

[169] Accordingly, para. 9 of the order is struck out.

[170] Except as aforesaid, the appeal and cross-appeal are dismissed.

[171] If the parties are unable to agree on costs, written submissions, not more than three pages in length, may be filed within 30 days, with each party having a right of reply within a further ten days.

Appeal allowed in part; cross-appeal dismissed.