CITATION: Campbell v. Revera Retirement LP, 2014 ONSC 3233
DIVISIONAL COURT FILE NO.: 282/13
DATE: 20140617
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, MATLOW & LEDERER JJ.
BETWEEN:
LOUISA CAMPBELL
Applicant
– and –
REVERA RETIREMENT LP and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Bruce Best and Brenda Culbert
for the Applicant
Erin Porter, for Revera Retirement LP, Respondent
Brian Blumenthal, for Human Rights Tribunal of Ontario, Respondent
HEARD: April 9, 2014
LEDERER J.:
[1] This is an application for judicial review of a decision made by the Human Rights Tribunal of Ontario (“HRTO”). A finding of discrimination was made by the HRTO. It awarded the applicant, Louisa Campbell, $5,000. It was submitted that this award was unreasonable and should be set aside.
Background
[2] The applicant, Louisa Campbell, was employed by the respondent, Revera Retirement LP (“Revera”), as a Health Care Aide at a retirement residence which had both assisted and independent living units. The job involved looking after a number of elderly residents: bathing, feeding, dressing, toileting and transporting them from one location to another by wheelchair. Louisa Campbell worked for Revera in this capacity for twenty-three years. Her position was unionized. Louisa Campbell was a member of the Service Employees International Union.
[3] The duties of a Health Care Aide involve a great deal of standing and walking. In 1997, Louisa Campbell experienced pain and discomfort in her feet and legs. She was diagnosed with lipodermatosclerosis, a condition that causes ongoing discomfort and swelling, as well as thickening and discoloration of the skin. It is exacerbated by prolonged standing and extensive walking.
[4] Louisa Campbell took an extended sick leave from work starting on December 14, 2007. In January 2009, her doctor determined that she was capable of returning to modified work. Louisa Campbell and Revera agreed that she would be unable to perform the duties of a Health Care Aide. An appropriate alternate position was sought. A number of positions were examined.[^1] For her part, Louisa Campbell suggested there were a number of tasks she could do that were lighter, such as calling out numbers for bingo games, feeding residents and doing some work at reception that involved sitting. These suggestions were rejected. Revera found these tasks to be too fragmented. Bundling them together was not a viable option. Those responsible within the company concluded that, of the positions considered, the most suitable within the workplace was in the laundry. She was offered the job.
[5] Louisa Campbell felt there were many aspects to this work that she would not be able to perform. Louisa Campbell understood that it would be necessary for her to load industrial-sized washing machines, transfer the loads to the dryer and, then, take the material to the table and fold it. She could not sweep under the machines or lift the heavy wet clothes. She advised Revera that she could not do the job. Its duties were not within her medical restrictions.
[6] Louisa Campbell provided Revera with a letter from her physician. It indicated that she could not do the laundry job because of her leg pain. Revera did not find the letter helpful. It indicated that the Louisa Campbell was “unable to do laundry work because of leg pain, able to sit not stand while working” [Emphsias added][^2]. Revera took the position that it was able to accommodate her restrictions within the role of laundry attendant. Louisa Campbell could sit and fold laundry. There was no requirement that she walk up and down stairs. A letter was written to Louisa Campbell requiring that she return to work, no later than Monday, March 15, 2010, failing which Revera would conclude that she was abandoning her job. The letter indicated that the company would be left with no choice but to terminate her employment. The doctor wrote a further letter in which he indicated that Louisa Campbell was “unable to do any kind of laundry work because of her lypodermatosclerosis”[^3]. On March 17, 2010, Louisa Campbell wrote to Revera advising that she was unable to perform the requirements of the position in the laundry.
[7] It should be said that Louisa Campbell and the representatives of her union disagreed on the role it, and they, had played as the matter progressed. For her part, Louisa Campbell said that she was told that she should take the job that had been offered and not call the union if she refused to do so. This was denied by a union representative who testified on behalf of Revera. It was her evidence that the union attempted, with the employer, to find a solution for Louisa Campbell. She said that Louisa Campbell “...was interested in receiving a payment and leaving the workplace, made persistent inquiries about that option and was less interested in engaging in a discussion about modified work within her restrictions.”[^4]
[8] The HRTO accepted the evidence of the doctor of Louisa Campbell. Although the witnesses for Revera complained that these letters lacked specificity and focused on what Louisa Campbell could not do as opposed to what she could do, the HRTO concluded that there was no conflicting medical opinion from anyone qualified to challenge, modify or offer a different view of the ability of Louisa Campbell to do the job. The tribunal was not satisfied that any of the three employees of Revera, called on its behalf, had the necessary credentials to overrule the opinion of the physician. One had a bachelor’s degree in kinesiology and the qualifications for the others were in business and labour relations.
The Decision of the HRTO
[9] The HRTO found that the decision of Revera to insist that Louisa Campbell report to work to attempt the laundry aide job, against the advice of her doctor, was “problematic”.[^5] It was her inability to do the job, as confirmed by the letter from her doctor, that was the reason she did not take the position offered. Thus, given the role her disability played in her termination, it was determined that Revera had failed to meet its procedural obligations under the duty to accommodate and so infringed the rights of Louisa Campbell under the Human Rights Code.[^6] However, it is important to understand that this finding was limited. The HRTO found no fault with the accommodation efforts made by Revera up to the point that it made the decision to terminate Louisa Campbell “...for ostensibly abandoning her job.”[^7]
[10] It was on this basis that the HRTO awarded Louisa Campbell $5,000.
[11] In making this award, the HRTO considered what has been held to be the two main considerations in assessing the appropriate compensation “for injury to dignity, feelings and self-respect”, being: “the objective seriousness of the conduct” and “the effect on the particular applicant who experienced discrimination.”[^8] In assessing this, the HRTO took account of what it found to be the “relevant factors”:
…the applicant’s long history of employment with the respondent, and her expectation that her concerns relating to her medical limitations would be dealt with appropriately. For the most part, the respondent exercised its duty to the applicant under the Code appropriately. However, it failed in that duty in terminating her employment for the reasons given.
While I agree that the loss of her job caused harm to the applicant, I have also considered the fact that the evidence leads me to conclude that it was ultimately her position and that of her physicians, that she could not perform the essential tasks, even with accommodation, or any of the available jobs in the workplace.[^9]
Standard of Review
[12] Dunsmuir v. New Brunswick[^10] revised the law applicable to the standard of review. It removed the prior understanding that there were three standards that could be applied (“patently unreasonable”, “reasonableness simpliciter” and “correctness”) and replaced it with provision for only two (“reasonableness” and “correctness”). Nonetheless, the Human Rights Code specifically refers to “patent unreasonableness” as the standard to be applied to any judicial review undertaken of a decision made pursuant to its terms:
Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.[^11]
[Emphasis added]
[13] The use of this wording does not serve to take the applicable analysis outside the common law as expressed in Dunsmuir. In Dunsmuir, it was understood that the removal of “patently unreasonable” as a standard of review did not narrow the overall scope of the reasonableness standard. Rather, it subsumed the breadth of both “patently unreasonable” and “reasonableness simpliciter” under the single standard of “reasonableness”:
We therefore conclude that the two variants of reasonableness review should be collapsed into a single form of ‘reasonableness’ review.[^12]
[14] Thus, in this case, as the parties agreed, the standard of review to be applied is reasonableness, but the use of the terminology “patently unreasonable” within the legislation (the privative clause) points to the requirement that the HRTO be afforded the “highest degree of deference”.[^13] This is confirmed by the existing jurisprudence:
Therefore, reading the words of s. 45.8 of the Code purposively and in light of general principles of administrative law, it would follow that the highest degree of deference is to be accorded to decisions of the Tribunal on judicial review with respect to determinations of fact and the interpretation and application of human rights law, where the Tribunal has a specialized expertise.
With respect to the present applications for judicial review, a high degree of deference is therefore to be accorded to the Tribunal’s determination whether there has been discrimination under the Code and what the appropriate remedy should be, given that these are questions within the specialized expertise of the Tribunal. In other words, the decisions on liability and on remedy must be respected unless they are not rationally supported – in other words, they are unreasonable (Dunsmuir, para. 42).[^14]
[Emphasis added]
[15] The existence of a privative clause of the sort found in the Human Rights Code “... should presumptively foreclose judicial review on the basis of outcome on substantive grounds...”[^15]
Analysis
[16] The monetary award follows and is consistent with the Human Rights Code:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
- An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
. . . [^16]
[Emphasis added]
[17] The award made by the HRTO reflects its analysis of the “...injury to the dignity, feelings and self-respect” suffered by Louisa Campbell as a result of the discrimination caused by the insistence that she return to work in circumstances where her doctor advised that she was unable to do the work that would be required.
[18] It was submitted that this was not reasonable. The law requires more. Louisa Campbell should have been put in the same position she would have been but for this discrimination. In making this submission, counsel for the appellant relied on the case of Piazza v. Airport Taxi (Malton) Assn.[^17] The appellant, Lucy Piazza, was employed by the respondent, Airport Taxi Association. She was terminated with one week’s notice. She complained that she had been sexually harassed by the president of the association. It took her eleven weeks to find new employment. The Board of Inquiry (appointed by the Human Rights Commission to determine the validity of allegations of discrimination and, where appropriate, to impose penalties) had found that sex had been an aspect of the termination and that Lucy Piazza had been discriminated against contrary to the Human Rights Code. Her salary with the Airport Taxi Association had been $250.00 per week. The Board of Inquiry awarded her (11 weeks X $250.00) $2,750 for lost wages and a further $250.00 for general damages.
[19] The Airport Taxi Association appealed to the Divisional Court which imposed the principles applicable to a wrongful dismissal action. It determined that the appropriate period for reasonable notice was four weeks and limited the award of lost wages to $1,000. The Court of Appeal restored the decision of the Board of Inquiry:
…The purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred. I find nothing in the language of the foregoing section which would import into it the limit on compensation which is imposed by the common law with respect to claims for wrongful dismissal. [^18]
[20] Counsel for Louisa Campbell understood this to mean that the law requires that she be awarded all monies she would have received but for the discrimination and that any failure to do so results in an award that is not reasonable and which, despite the high level of deference to be afforded, must be set aside. This is a misreading of the reasons of the Court of Appeal. Properly understood, its decision stands for the proposition that a finding of discrimination stands apart. Awards made in response to such a finding are founded in the harm caused by the discrimination and are not to be assessed on the basis of some common law cause of action that may appear to be related. This was referred to in Whitehead v. Servodyne Canada Ltd.[^19], as follows:
If this reasoning is sound, then the usual measure of economic loss in contract law for wrongful dismissal -- lost wages during a period of reasonable notice -- is not the correct measure to compensate an aggrieved complainant under the Human Rights Code. While there may be circumstances where the quantum of damages for wrongful dismissal in contract coincide with the compensation for breach of section 4(1) of the Code, such circumstances are merely fortuitous. More often the contract measure will be inadequate to compensate the complainant and also to carry out the purposes of the Code.[^20]
[21] This has been underscored or confirmed in the changes to the Human Rights Code made effective in 2008. In 1989, when Piazza v. Airport Taxi (Malton) Assn. was decided, the statutory direction to Boards of Inquiry permitted them to:
…order any party who has contravened the Act to do any act or thing that, in the opinion of the board constitutes full compliance with such provisions and to rectify any injury caused to any person or to make compensation therefore.[^21]
[22] As we have seen, the present legislation, while not necessarily limiting the basis on which an award may be made, makes specific reference to “…compensation for injury to dignity, feelings and self-respect”[^22]. These words direct the HRTO to a consideration of the damages associated with discrimination separate from other remedies that may be sought. There is nothing in this that requires the HRTO to go further. The Human Rights Code specifies that the HRTO: “…may make one or more of the following orders.”^23 [Emphasis added] In this case, the HRTO, as it was entitled to do, found that the discrimination was limited to a procedural failing that came after a proper and comprehensive effort was made to accommodate Louisa Campbell through the efforts of Revera to find her alternate employment. It was on this basis that the HRTO concluded that the award for the discrimination should be $5,000. This restricted view of the basis for the discrimination explains why, contrary to the view expressed in Whitehead v. Servodyne Canada Ltd., quoted above,[^24] the award made is less than might have been awarded on a successful claim for wrongful dismissal.
[23] A complaint made pursuant to the Human Rights Code does not stand as a replacement or substitute for all other claims or actions that may arise in a given circumstance. It is a particular complaint, which is authorized by a specific piece of legislation. In this case, Louisa Campbell sought the money that she would have obtained under the provisions of the Employment Standards Act, 2000[^25] had her employment not been treated as abandoned. She grieved her termination. In its decision, the HRTO explained that, following discussions with her union, the process was discontinued. The HRTO did not see this loss as attributable to the discrimination. It found that it did not have the authority to award “severance pay”. The HRTO quoted its decision in Pilon v. Cornwall (City)[^26]:
The applicant seeks compensation in the amount of four weeks’ pay per year of service. Severance pay is generally understood as payment for the capital cost of lost employment – the cost associated with the loss of lengthy employment in the form of vacation entitlement, seniority where applicable and other elements of one’s remuneration associated with length of service. I have no jurisdiction to award severance pay, as such; however, I have considered as part of the analysis of the other heads of monetary compensation the consequences for the applicant of losing her employment after 23 years’ of service. Accordingly, I decline to make a separate damages award severance pay.[^27]
[Emphasis added]
[24] Louisa Campbell could have continued her grievance.[^28] As it is, it seems she believed she would succeed in attributing all her losses to the finding of discrimination. This brings home the observation made by the union representative that Louisa Campbell appeared more interested in receiving a payment and leaving the workplace than she was in finding appropriate alternate work. It was open to the HRTO to consider this evidence as contributing to a conclusion that limited any loss of dignity or self-respect felt by Louisa Campbell and to the $5,000 award that was made.
[25] Finally, counsel for Louisa Campbell referred to a number of cases designed to show the range of awards appropriate as non-wage loss awards for disability-related discrimination in employment. The proposition was that the award in this case, the $5000, was so far outside this range as to be demonstrably unreasonable. Needless to say, counsel for Revera relied on the award being attributable to a “procedural breach” and provided decisions which, she submitted, applied and made awards that were less. Be that as it may, there is no range within which such an award must fall to be “reasonable”. The question is whether, given the applicable level of deference, the decision bears the requisite justification, transparency and intelligibility and falls within the range of possible, acceptable and defensible outcomes.[^29]
[26] In this case, the decision made falls easily within these parameters.
Conclusion
[27] The application is dismissed.
Costs
[28] No submissions were made as to costs. If the parties are unable to agree, we will consider written submissions on the following terms:
On behalf of Revera, no later than fifteen days following the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be referred to.
On behalf of the HRTO, no later than fifteen days following the release of these reasons. Such submissions are to be no longer than four pages, double- spaced, not including any Costs Outline, Bill of Costs or case law that may be referred to.
On behalf of Louisa Campbell, no later than ten days thereafter. Such submissions are to be no longer than six pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be referred to.
LEDERER J.
THEN J.
MATLOW J.
Released: June 17, 2014
CITATION: Campbell v. Revera Retirement LP, 2014 ONSC 3233
DIVISIONAL COURT FILE NO.: 282/13
DATE: 201406 17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, MATLOW & LEDERER JJ.
BETWEEN:
LOUISA CAMPBELL
Applicant
– and –
REVERA RETIREMENT LP and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
JUDGMENT
LEDERER J.
Released: June 17, 2014
[^1]: The decision of the HRTO refers to: nurse (a position for which the applicant was not qualified), wait staff (a position that the applicant would not be able to do due to walking and standing requirements), dishwasher (a position the applicant was not able to do due to standing requirements), UCP (a position for which the applicant was not qualified), cook (a position for which the applicant was not qualified), housekeeper (a position the applicant was not able to do due to walking and standing requirements), concièrge (a position the applicant was not able to do due to walking requirements), recreation (a position for which the applicant was not qualified), health care aide (a position the applicant was not able to do due to walking requirements) and maintenance (a position for which the applicant was not qualified) (Louisa Campbell v. Revera Retirement LP, 2012 HRTO 2410, at para. 25).
[^2]: Ibid, at para. 31, quoting letter to Revera from the doctor, dated February 11, 2010.
[^3]: Ibid, at para. 32.
[^4]: Ibid, at para. 33.
[^5]: Ibid, at para. 52.
[^6]: R.S.O. 1990, c. H.19, as amended; and, see: Ibid, at para. 60.
[^7]: Louisa Campbell v. Revera Retirement LP, supra, at (fn. 1), at para. 56.
[^8]: Ibid, at paras. 62 and 63, referring to Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-54; and to Sanford v. Koop, 2005 HRTO 53, at paras. 34-38, where the considerations discussed are: humiliation experienced by the complainant, hurt feelings experienced by the complainant, a complainant’s loss of self-respect, a complainant’s loss of dignity, a complainant’s loss of self-esteem, a complainant’s loss of confidence, the experience of victimization, vulnerability of the complainant and the seriousness, frequency and duration of the offensive treatment.
[^9]: Louisa Campbell v. Revera Retirement LP, at paras. 65 and 66.
[^10]: 2008 SCC 9, [2008] 1 S.C.R. 190.
[^11]: Human Rights Code, supra, (fn. 6) at s. 45.8.
[^12]: Dunsmuir v. New Brunswick, supra, (fn. 10), at para. 143.
[^13]: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR 339, at para. 19.
[^14]: Shaw v. Phipps, [2010] ONSC 3884, at paras. 41 and 42; and confirmed by the Court of Appeal at, [2012] ONCA 155, at para. 1; see also: ADGA Group Consultants Inc. v. Lane, (2008), 2008 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.), at para. 159: (“there is a broad discretion in the decision maker”); and Guild Automotive v. Pilkey, 2013 ONSC 3129 (Div. Ct.), at paras. 22-25 (“The tribunal has a broad discretion in determining remedies, including the appropriate quantum of damages”.).
[^15]: Dunsmuir v. New Brunswick, supra, (fn. 10), at para. 143.
[^16]: Human Rights Code, supra, (fn. 6), at s. 45.2.
[^17]: 1989 4071 (ON CA), 69 O.R. (2d) 281.
[^18]: Ibid, at p. 284.
[^19]: (1987), 1987 8546 (ON HRT), 8 C.H.H.R. D/3847.
[^20]: Ibid, at para. 30689, referred to in Piazza v. Airport Taxi (Malton) Assn., supra, (fn.17), at pp. 284-285; and see: Ontario Human Rights Commission v. Impact Interiors Inc. 1998 17685 (ONCA), where the following is said at para. 2:
The Divisional Court also erred in interfering with the quantum of damages awarded to Ms. Petersen for loss of wages. In particular, we disagree with the Divisional Court's statement that ‘there must … be some congruence between the compensation for loss of wages and the duration and quality of the complainant's employment’.
[^21]: Ibid, (Piazza v. Airport Taxi (Malton) Assn., supra, (fn.17)), at p. 284, quoting Human Rights Code, 1981, S.O. 1981, c. 53 s. 19(b).
[^22]: See para. [16], above quoting s. 45.2 (fn. 16) of the Human Rights Code, supra, (fn. 6).
[^24]: See para. [20], above.
[^25]: S.O. 2000, c. 41.
[^26]: 2012 HRTO 177.
[^27]: Ibid, at para. 25, quoted in Louisa Campbell v. Revera Retirement LP, supra, (fn. 1), at para. 61.
[^28]: See: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 SCR 157, where the Supreme Court of Canada determined that the substantive rights and obligations of the Human Rights Code are incorporated into collective agreements. The Labour Relations Act 1995, S.O. 1995, c. 1, Sch. A, s. 48(12)(j) grants arbitrators the authority to enforce the substantive rights and obligations of the Human Rights Code and other employment‑related statutes and, in so doing, advances the stated purposes of the Labour Relations Act 1995, as well as bolstering human rights protection:
I believe that the amendments to the legislation affirm that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. If the right of an employer to manage operations and direct the work force is subject to both the express provisions of the collective agreement and the employee’s statutory rights, then it follows that a grievance arbitrator must have the power to implement and enforce those rights. (Parry Sound v. OPSEU at para. 40)
On this basis, Louisa Campbell could have determined to continue her grievance and pressed her human rights concern without the need to commence a separate complaint or proceeding pursuant to the Human Rights Code.
[^29]: Dunsmuir v. New Brunswick, supra, (fn.10), at para. 47.