ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV010064-CM00
DATE: 20130808

BETWEEN:

Fred Bellehumeur

Plaintiff

– and –

Windsor Factory Supply Ltd.

Defendant

James A. Renaud, for the Plaintiff
Patrick F. Milloy, for the Defendant

HEARD: April 10, Nov.13, 14, 15, 16, 19, 21, 22, 23, 29, 30, and Dec.19, 21, 2012; May 30, 31, and June 6, 7, 2013

Patterson J.

[1] The plaintiff, Fred Bellehumeur (“Fred”), was hired by the defendant, Windsor Factor Supply (“the company/the Board/the employer”), in July of 1983, until his termination by Windsor Factory Supply on November 8, 2005. This action is for wrongful dismissal, a violation of the Human Rights Code, R.S.O. 1990, c. H.19 and claims related to his dismissal from employment.

[2] Windsor Factory Supply is unique in that all of the employees are also shareholders of the company. Annually, there is a division of profits as well as bonuses.

[3] The company provided a full range of benefits, including a disability plan which was paid for by the employees to avoid taxation upon receipt.

[4] By his own admission, Fred indicated he is a loud person who speaks his mind. Over the years his work included in the warehouse, as a salesman and on the counter with direct contact with customers. Fred knew his job and would mentor others.

[5] Fred developed a drinking problem in the early nineties which was resolved by 1994. During that time, he had treatment at Brentwood for 90 days. I am satisfied that his drinking issue ceased by 1994.

[6] Fred also had migraines that affected him on occasion. In the same way that the company accommodated his drinking problems in the early 90’s, they accommodated Fred’s problem with migraines allowing him to take time off work. On occasion, he would stay in one of the rooms at work for a period of time to help alleviate this problem.

[7] There were some issues noted in his yearly evaluation review. In 2001, there was a concern that Fred had only attended three of six warehouse meetings and four of eight staff meetings. He made improvements and had a more positive attitude in the second half of the year. As Fred was a partner and supervisor in the warehouse it was recommended that he needed to let the young staff know that he supports those in authority. On an overall basis, Fred was described as doing a good job on the front counter; he was well-liked by the customers and had good product knowledge. It was commented that Fred had made improvements after a conversation was held with his manager a few months previous to the evaluation.

[8] In 2003, the evaluation indicated Fred had made significant strides of improvements over the previous year but there was a request for him to take a more active role as a supervisor which he subsequently did. He was described as a person constantly teaching the younger staff and that he got things done. Fred was described as having respect of his partners due to his enthusiasm with every project he tackled and that he stayed calm in dealing with customers in an appropriate way by getting his manager involved if necessary.

[9] He had eleven sick days, but there is an indication that he worked a few Saturdays to help out as he was concerned about his missed days. He was described to have his greatest influence on the younger staff. They listen to him and were not afraid to talk to him.

[10] In summary, Fred was described as being a great pleasure to work with. He and his partner Matt had a great handle on the front counter. This appears to be the person he was through 2004.

[11] Unfortunately, at the February 23, 2005 annual general meeting, with senior management as well as other employee partners from the Windsor office in attendance, Fred took great displeasure that a bonus that traditionally had been equally divided among all the branch offices was being changed and London was going to get a greater share. His conduct, words, and demeanour at that meeting resulted in a three-day paid suspension, starting March 14, 2005. Fred would not sign the notice of suspension and continued to be very upset and believed that the suspension was unfair. The suspension notice indicated that at the February 23, 2005 meeting, he conducted himself in an extremely unprofessional manner, his voice was loud, his accusations were not in compliance with conduct expected of Windsor Factory Supply partners, and that he exhibited negativity towards the Windsor Factory Supply management team in front of the entire Windsor staff. The conduct was noted as being unacceptable and not condoned. Further, it indicated that the next day, February 24, 2005, he verbally was abusive to Bill Kolody concerning the distribution of profits mentioned previously. Again, Fred became loud, swearing at Bill Kolody when he offered to sit down and speak about it.

[12] Fred was to return to work on March 16, 2005, but he received a doctor’s note, dated March 16, 2005, which indicated that for medical reasons he should stay off work until March 28, 2005. In fact, Fred returned to work on March 23, 2005. In an e-mail John White, Fred’s manager, stated that Fred was doing very well and that he was going to send Fred’s doctor’s note to Connie Palmer in Human Resources.

[13] On August 26, 2005, Fred experienced chest pains at work and was taken by ambulance to the hospital. Fred stayed in the hospital overnight and was described in a note from John White to Connie Palmer that he had a slow heart beat and the doctors were sending him to a specialist on the following Monday. A later note indicated that Fred was in Detroit having medical tests. On September 6, 2005, a medical note from Dr. Gorrepati, a Detroit doctor, indicated that Fred could return to work on September 7, 2005, and that he should be on light work, four hours a day, until September 12, 2005. He would be able to resume full work as of that date. At Fred’s request, John White authorized Fred to work in the warehouse and not his regular counter job.

[14] An internal memo, dated September 12, 2005, between John White and Connie Palmer indicated that Fred had been working half days in the warehouse the previous week. Further, John White indicated to Connie Palmer that it was his information that the doctors thought it was a virus and that Fred was still getting tests.

[15] On September 29, 2005, Fred again attended Dr. Gorrepati’s office in Detroit who provided a medical note saying that Fred was unable to return to work for a two-week period. The doctor’s note was supplied to Connie Palmer from John White who indicated that the doctors were now treating Fred for a thyroid problem and that they also saw a heart problem, although they have not yet determined what it was. A supporting e-mail confirmed the doctor’s note that Fred would be off work for two weeks and he would be re-assessed at that time.

[16] On October 10, 2005, Fred again visited his doctor in Detroit and Dr. Gorrepati, provided a medical note which indicated that Fred could return to full time work as of October 11, 2005.

[17] When Fred came back to work he had a discussion with his manager, John White, and at Fred’s request he again was accommodated by going back to the work in the warehouse, it being described a less stressful job than working the counter.

[18] There was no indication that during the approximately two-week period between Fred’s return to work on October 11, 2005, and the end of the month that there were any problems. Fred continued to be accommodated working in the warehouse.

[19] During this time period, the Board decided that Fred’s manager, John White, would no longer be the manager of the warehouse and, as a result, a new manager was appointed named Dave Marcon (“Dave”). There was some overlap between John White and Dave Marcon during the last week of October. On Monday, October 31, 2005, Dave Marcon officially took over as Fred’s new manager.

[20] On that Monday, Dave Marcon met with the employees working on the counter and on the following morning, Tuesday, November 1, 2005, he met with Fred which included inquiry as to when Fred felt he would be able to resume the counter job. Dave asked Fred to come to the office for the meeting and Dave testified that he could see that Fred on entering the room was upset. In answer to the question about warehouse/counter job, Fred indicated that he wanted to stay in the warehouse but he then immediately indicated the only reason that David Marcon was appointed manager was to discipline people. Fred complained and cursed about how the place was being run and how he hated to come to work. Dave asked him to stop and indicated that he would have to go home because Dave did not want to be spoken to in that way. At that time, Fred saw Brian Dupuis (“Brian”) in the hallway. Brian was a partner and on the Board of Directors and Fred invited Brian into the office. Brian Dupuis testified that when he entered the office he observed that Dave Marcon had a stunned look on his face and that Fred was sweating profusely and that the veins of his head and neck were throbbing. Fred immediately said how he was not going to “take this shit anymore” and that he hated to come to work every day. He did not agree with the “fucking changes” that had been made at the office and warehouse. He accused one of the Board members of doing a power grab and he complained that John White had been relocated from the management position after he had done an excellent job in the warehouse. He indicated the Board had appointed Dave merely to discipline everyone. Brian described Fred as out of control and was saying everything that was pent up inside.

[21] Fred went on to talk about how the Board had tried to “shove the fucking handbook” down everyone’s throat without allowing input. He talked about the purchase of the F150 trucks and that they were expensive to run. He questioned management that choose to lay off four warehouse employees when there are “useless guys in the office” they could have let go.

[22] Finally, Brian was able to ask Dave how the conversation started and Dave confirmed that he just wanted to talk to everybody in the warehouse about which jobs they were currently performing and trying to have a plan to go forward and that he wanted to ask Fred if he was going to return to work for the counter because he had been there so many years and many customers wanted to deal only with him. Dave indicated that at that point Fred took great offence at the warehouse/counter question and started to swear at him.

[23] Fred complained that Dave had spoken to some of the counter people the day before but Dave indicated that the only reason he did that is that Fred was not on the counter at the time and Dave did not know if he was going to go back to the counter. Brian testified he wanted Fred’s input. Fred’s response was to verbally assault him. Fred again complained about the three-day suspension he had had earlier in the year and Fred stated towards the end of the meeting that his wife said to him every morning “Fred don’t get fired today”. At that time, the conversation became more civilized. Fred made some comments about the running of the warehouse, and that he was trying to get the fellow employees to clean up after themselves, and to making sure the area was clean. Fred made some suggestions as to how certain work could be consolidated.

[24] The conversation continued and Brian tried to answer some of Fred’s questions about why they leased the F150s, how the handbook was really a consolidation of many of the policies in place in the past and there was a need to have a specific policy in one handbook. He answered certain questions about benefits and why the four employees were terminated. At that stage, Fred appeared to understand all the reasons that were given. The meeting ended and Fred indicated to Dave that he would do what was ever needed to keep the warehouse running smoothly and efficiently. To that, Dave responded that is all he ever wanted from the meeting. Fred and Dave shook hands and Fred went back to work in the warehouse.

[25] After Fred left the meeting, Brian and Dave continued a discussion and it was agreed that the Board of Directors should be informed of Fred’s conduct at the meeting.

[26] A Board of Directors meeting was held and it was determined that Fred should be spoken to before the end of the day and that he should be suspended with pay pending further direction of the Board because of his conduct at the 9:00 a.m. meeting with his new manager, Dave Marcon and as observed by Brian Dupuis.

[27] At 3:45 that afternoon Brian Dupuis and Dave Marcon asked Fred to come see them in the board room and almost before Brian Dupuis could complete the sentence informing Fred that he was going to be suspended with pay pending further direction of the Board, Fred started cursing and immediately left the room. He picked up some personal items and on his leaving the building, various employees heard different versions of what he was yelling. One employee said that Fred said something to the effect of “Guys, I am out of here. Have a great fucking life. I am done. They can go fuck themselves”. He was heard to say “Better know where the exits are when they call next” or “Better find an exit when I make that phone call” or “Better head out the door when I call”.

[28] Another employee said that Fred said on his way out “Have a great fucking life and if you get the call you better run”. Another employee heard Fred say “Have a great day, I am outta here. You guys have a great life and if I make the call you all better look out”. Another employee indicated that Fred on leaving the building said, “Boys have a great fucking life. If I get the phone call, you better run.”

[29] None of the employees who heard Fred yell out threats just described said anything to management about these statements until approximately 5:00 p.m. the next day. There was discussion by some employees of what Fred said on leaving the previous day and as a result, management became aware that Fred had made these threats when leaving the building. Therefore, during the day of November 2, these threats were not known and the Board at that stage was discussing what the sanctions would be as a result of Fred’s conduct the previous day at the 9:00 a.m. meeting.

[30] Fred cannot recall what he said as he was leaving the building. He was in a very excited state and he has no memory of making any threats.

[31] None of the employees who testified and who heard the statements indicated that they were afraid of Fred and they continued to work their shift the day the threats were made. They all came into work the next day. There was a discussion indicating some concern but none of the employees felt it was something that they wanted to directly raise with management. It came out in conversation as to what had happened when Fred left the previous day and what had he said. When it came to the Board’s attention, the Board requested statements be obtained from the employees as to what Fred said.

[32] The Board met on the Thursday and Friday, the 3rd and 4th of November, 2005, with their lawyer as part of those conversations. As a result, privilege has been claimed by the company as to the nature of the discussions that took place. Connie Palmer was asked to obtain a current medical note and she was able to obtain the note which indicated that Fred was able to go back to work full time, on October 11, 2005. The Board was aware that Fred was given an accommodation by his previous manager, John White, to work in the warehouse as compared to the counter job. None of the medical notes reveal the reason for the accommodation and there is a difference of opinion as to whether it was a heart problem or a thyroid problem or that it was stress related. Fred indicated that he let John White know that it was stressful working on the counter and the accommodation was for stress but it is unclear that Fred had informed his employer as to the nature of his medical condition beyond physical issues such as heart and thyroid issues for which he had been receiving tests.

[33] The accommodation could have been for heart and/or thyroid issues or it could have been for stress. Giving the benefit of the doubt to Fred, that it was stress related, the question remains as to what was the nature of the stress?

[34] I am satisfied that the employer did not know that Fred was seeing a psychiatrist, Dr. Shenava, starting many years previously, in July of 1998, on referral from Fred’s family doctor, for management of his mood swings. Dr. Shenava attached a report dated November 17, 1998, to Dr. Caron, Fred’s family doctor, indicating that Fred complained to him of suffering from mood swings for the previous two years. Fred had depression characterized by dysphoria, isolating himself from others, crying spells, irritability and angry outbursts, anxiety, decreased energy and concentration, but that he had no negative thoughts about his future. Fred felt remorseful about getting angry with his children and colleagues and that his job was stressful. He indicated that he no longer drank alcohol and had been abstaining for four years. His speech was coherent and goal directed and there was evidence of some paranoid ideation. His memory, orientation and other cognitive functions were intact. It was Dr. Shenava’s opinion that Fred suffered from depressive illness and indicated that he should start on Paxil and Tegretol. Dr. Shenava indicated on a follow-up visit that Fred appeared pleasant and that he was feeling good. His sleep and appetite were good and that it was appropriate for him to take medication and have supportive psychotherapy.

[35] Fred’s treatment plan following the initial consultation was to see Dr. Shenava on a regular basis at six to eight week intervals and Fred has continued this pattern up to the present time. Fred’s medications are anti-depressants and mood stabilizers.

[36] Various attendances prior to the November 1, 2005 incident were described by the doctor.

[37] On December 22, 2004, Fred was described as being pleasant and feeling fine, and that there were no side effects from the medication, his temper was under control and he was coping with stress, social life and that he was getting along well with his colleagues and his boss.

[38] On March 16, 2005 Fred was described as being depressed. It is stated that he had problems at a staff meeting and he had been suspended for three days and he was angry about the suspension and he was not sleeping well. The doctor indicated he should stay off work for ten days and, as previously mentioned, he did so.

[39] On May 13, 2005, Fred was described by the doctor as being pleasant, feeling fine, and the medications were helping. On August 3, 2005, Fred again was pleasant and feeling fine, the medication was still helping him, he had no side effects, his sleep and appetite were good, he was stable and his temper was under control. On October 12, 2005, Fred was agitated. He indicated he had collapsed at work and was taken to the hospital and various tests were being done. He talked about his physical health and the passing out, angina and his medications that he was taking for what appeared to be a heart problem.

[40] Fred’s employment was terminated on November 8, 2005 and he met with Dr. Shenava, on November 25, 2005. They had a long discussion about Fred being fired. Fred denied any suicidal or violent thoughts and the discussion included coping with the new situation. Fred’s medication was adjusted, including the addition of medication to help him sleep.

[41] None of the above information regarding Fred’s mental health and Dr. Shenava was known by the employer.

[42] It is the position of the plaintiff’s lawyer that the accommodation that was given to Fred by John White was with the authority of the Board and that it involved Fred doing the warehouse job as it was less stressful. The plaintiff’s position is that Fred was being accommodated for stress and as a result that Fred was being accommodated for a mental disability.

[43] Windsor Factory Supply’s lawyer indicated that the company had no knowledge of Fred’s psychiatric problems. They thought he was being treated for either heart or thyroid and that the accommodation was made at Fred’s request and they deny they were informed that there was an accommodation related to stress. There was no indication in the doctor’s note other than Fred could return to work full time on October 11, 2005.

[44] The Board had intended to consider how long Fred’s suspension with pay should be because of his conduct at the November 1, 2005, 9:00 a.m. meeting but this decision was overtaken by the Board subsequently being informed of Fred’s threats as he left the building. The Board then continued discussions as to what should be done with Fred related to these threats.

[45] As I have indicated, the Board has claimed privilege as to the nature of the discussions that took place because their lawyer was present but I am informed that they asked Connie Palmer to obtain a medical note. She did so and it confirmed that Fred could return to work full time, on October 11, 2005. The Board also had Brian Dupuis inform the police as to concerns that the Board had about Fred’s threats. Ultimately, the Board decided to terminate Fred. A termination letter was delivered to Fred on November 8, 2005, based on his threats.

[46] A police officer was hired to be at the work place for two weeks from November 8, 2005, Fred’s termination date. There were no incidents.

[47] From November 1, 2005, when he left work, Fred was at home, not sleeping well, essentially staying in a darkened room. His wife was concerned about him but as Fred could not recall what he had said and as the termination letter had not yet been given, she did not know exactly what was going on.

[48] She testified that she expected someone from Windsor Factory Supply to call because they were like family. No contact took place but a relative named Dan Dupuis (unrelated to Brian Dupuis) had to go to the Windsor Factory Supply. It must have been on the Wednesday, November 2, 2005, and prior to their being knowledge of Fred’s threats. Dan spoke with Brian and there was an indication by Brian that he would contact the family. Brian indicated that he heard later in the day Wednesday about the threats and as a result he did not contact the family.

[49] Therefore Fred and his wife were unaware of the Board’s discussions. There was concern by the Board that there be no contact with Fred because of the threats.

[50] Fred, on Saturday, November 5, 2005, saw the Detroit doctor who prescribed medications and recommended that Fred should see Dr. Shenava.

[51] The next contact that Fred had with his employer was the letter delivered to him at his residence on Tuesday, November 8, terminating his employment for the threats that he made on exiting the building on November 1, 2005.

[52] The termination was effective immediately and a notice under the Trespass Act was also included with the termination letter. The letter included the sentence: “As you will appreciate, it is our customary practice to meet with all employees when dealing with employment matters.” This did not take place.

[53] Further, the letter said: “We refer to the events of last week and what we view as threats you made to employees of Windsor Factory Supply Ltd. As a result, we feel we have no choice but to advise you of your termination by delivery of this letter.”

[54] After receiving the termination letter Mr. Bellehumeur retained the service of Jim Renaud and Mr. Renaud on November 16, 2005, wrote to the Windsor Factory Supply.

[55] Mr. Renaud described that on November 1, 2005, Fred was suffering from the effects of workplace stress and/or an existing medical condition that were exasperated by the events of that day and that Fred should be considered as someone who is under a disability. Mr. Renaud requested the company permit Fred to take short term disability benefits and ultimately, if necessary, long term disability benefits. Further, Mr. Renaud advised Windsor Factory Supply that the termination letter had the effect of improperly depriving Fred of the ability to exercise his benefits and that it would be contrary to the Ontario Human Rights Code for him to be terminated while he was under a disability.

[56] Mr. Renaud expressed concern about the medical note received from Fred’s doctor about his ability to return to work. Mr. Renaud requested that Fred be reinstated to full-time status, that his shares in the company remain, that Fred would be off on sick leave until such time “as the appropriate medical official deems him to be fit to return to work” and that any income loss in the interim be reimbursed.

[57] Mr. Renaud indicated that he would forego any formal steps under the Human Rights Code and Employment and Insurance Act or under the Employment Standards Act if the parties could “move forward in a positive manner as he (Fred) rehabilitates and returns to work once he is in a position to do so.”

[58] The Board received the letter and did not act on the requests made by Mr. Renaud. As a result, this action ensued.

[59] Fred has subsequently been diagnosed, in addition to major depressive disorder, as being bi-polar. Fred has qualified for CPP disability and is in receipt of that income.

[60] I am satisfied that because of Fred’s condition he will never return to work.

[61] Fred attempted to receive his disability under the disability insurance provided by his employer which he paid for through RBC Insurance but he was denied because as a result of the termination he was no longer an employee.

[62] An application was made under the Human Rights Code but the tribunal determined that this matter should be dealt with by the trial judge. Therefore, as a result, I am to determine not only the issues arising under the Employment Standards Act, but also under the human rights legislation as well as the employee handbook that was in place at the time of Fred’s firing.

[63] Coincidentally, the employee handbook became effective, on November 1, 2005, the very day that Fred was fired.

[64] The company handbook required the employees to conduct themselves with a high level of professionalism at all times, refrain from swearing, yelling, screaming or raising their voice at others, to focus on asking general business related questions of others rather than making negative comments, to provide all our customers and co-workers a safe environment free from harassment of any form and to refrain from insubordination or undermining the authority of management/department head or the Board of Directors or its members. It was stated it was the policy of Windsor Factory Supply that it would comply with all applicable laws, including without limitation, employment, discrimination, health, safety, anti-trust, security and environmental laws.

[65] Under the heading “Poisoned Work Environment”, the employer would not tolerate or condone a poisoned work environment in which an individual participated in displaying a negative attitude towards a job, a person or the company or participated negatively in influencing others by their comments or actions.

[66] Under the heading “Harassment”, being a form of illegal discrimination, the handbook described it as being unacceptable conduct or comment that undermined the employment relationship which might reasonably be expected to cause offence or humiliation to any employee.

[67] General harassment was described as outlined by the Ontario Human Rights Code as prohibitive grounds for discrimination or harassment against an individual which included disability.

[68] Under the heading “Workplace Violence”, the company was described as being committed to create a safe environment for staff and customers and the company would not tolerate any form of workplace violence committed by or against its employees. Any observed or reported form of workplace violence would be taken seriously and thoroughly investigated and would be dealt with through the company’s positive discipline policy and local law enforcement procedures as appropriate. Workplace violence included but not limited to direct or implied threat of physical violence toward any member of the staff. Examples of conduct that was prohibited included making threatening remarks and aggressive or hostile behaviour that created a reasonable fear of injury to another person or subjected another individual to emotional distress. Any potential dangerous situation was to be reported immediately to a department head or human resources manager and confidentiality would be in place where appropriate. There was a process for a formal complaint concerning harassment and workplace violence and any documentation was to be turned over to the human resources manager. The alleged harasser had the right to know the identity of the complainant and the details of the complaint and who may file a written response.

[69] Under “General Responsibilities” any employee who committed harassment or violence against another individual would be subject to disciplinary action up to and including termination from the company.

[70] Under the heading “Disability Accommodation” the company committed itself to complying with the Ontario Human Rights Code and further it would provide reasonable accommodation to the known disabilities of any employee if such accommodation was required in order for the employee to perform the essential functions of the employee’s job so long as the accommodation would not cause undue hardship. All employment decisions would be based on the merit of the situation in accordance with defined criteria, not the disability of the individual.

[71] The company was described as being committed to taking all other necessary actions to ensure equal employment opportunities for persons with disabilities in accordance with the Human Rights Code and other applicable provincial and federal laws.

[72] Under the heading “Positive Discipline Policy” the company was described as having various rules and procedures and code of conduct expected of employees at all levels of the organization. Even though there may be minor violations of the rules and procedures for a variety of reasons, they would be dealt with a view to the situations being corrected but not ignored. When an employee violated the rule or spirit of the code of conduct, the facts and circumstances of the individual case would be investigated and considered according to the seriousness of the situation, and then discipline may be administered. Discipline was described as ranging from a documented first warning to termination depending on the seriousness of the situation, the employees past record and other significant circumstances surrounding the occurrence.

[73] The company stated that it believed that progressive and corrective discipline should be used when required. The intent was to shift the focus to the employee and his or her personal responsibility and decision making instead of punishing the employee. This would permit the employee to correct his or her behaviour without negative associations of punitive discipline. The policy stated that except for severe wrongdoings, an employee would rarely be discharged for a first offence. The area manager or department head was to review the details of the matter with the employee, clearly specifying the violation and what the expected behaviour was from the employee going forward. These should be held in private and followed up with written documentation that outlined the nature of the offence including supporting information, date and time of the offence, corrective action the employee must take, if any, and the level of discipline being imposed. In progressive discipline it would follow documented first warning, documented second warning, suspension and fourth level being termination of employment.

[74] The termination of employment, the last resort of the progressive program, would result when an employee demonstrated a continued failure to adhere to the rules, code of conduct and policies and participated in a serious offence leaving the company no recourse but to terminate the employment. Termination was described as a last resort taking into account the actions of the employee, the employees past history, and the seriousness of each occurrence.

[75] In grouping offences the company indicated that some situations were so serious that the first violation may result in a suspension of the employee pending further investigation and/or automatic discharge. Included in these offences, but not limited to, were physical and threatening verbal abuse by an employee and any form of harassment or violence in the workplace.

[76] Therefore, the company, if it determined the action of the employee was of a serious nature, would have the right to the automatic termination of the employee without further investigation or hearing from the employee.

[77] The handbook provided that the employee may be asked to visit or provide medical documentation to the company physician to substantiate medical leave from work or as part of an employment screening or to assist the company in designing a return-to-work program for the employee whether injured at work or outside work. Refusal to comply with this request could result in the employee’s pay being suspended. As a result of privacy concerns regarding the employee’s medical history, it could not be requested by the employer save and except in very restrictive circumstances. In the case at hand, Fred at no time revealed to his employer the nature of his mental problems which started as early as 1998 or sooner when he saw his own doctor and Dr. Shenava.

[78] It is the plaintiff’s position that Fred’s conduct on November 1, 2005, was of such a nature and so out of character that it should have alerted the employer that Fred was under a disability of mental illness that required investigation and/or accommodation. Through discussions with his manager John White, Fred had indicated that he was getting tests for possible heart situation, perhaps thyroid situation. There is also testimony that Fred told John White that he could not take the stress of the counter and that John White accommodated him by placing him in the warehouse. One of the doctor’s notes made reference to this accommodation for a working four hour days for a week but it is unclear from the note as to the reason for the accommodation other than general medical reasons.

[79] It is clear that if the employer knows of a disability they must accommodate that individual but the difficulty arises where, as in this case, the employer had no indication of Fred’s mental disability.

[80] The threats on November 1, 2005, were workplace violence. Clearly, Fred‘s conduct implied violence when he said, “You better know where the exits are” and other words to that effect. The individual employees who heard this did not report it to management but the Board became aware of the threats the day after they were made. At that stage the employer started an investigation and got statements from four employees as to what Fred said on leaving the building and obtain Fred’s medical note that Fred could return to work on October 11, 2005.

[81] It is the plaintiff’s position that Fred’s conduct that day was so out of character that it should have alerted the employer that there was something mentally wrong with Fred. This being a disability, the employer should have investigated as to whether there was some underlying medical problem or disability requiring an accommodation. This should have been done prior to them taking the ultimate step of terminating the employee for just cause. I will comment on this later in my decision.

[82] An analysis is also required under the Ontario Human Rights Code.

[83] Every person has the right to equal treatment with respect to their employment, including without discrimination based on disability and the right to equal treatment with respect to accommodation for a person with a disability under s. 5(1). Under s. 10, disability includes a mental disorder. Section 24(2) provides for reasonable accommodation unless the circumstances of the person cannot be accommodated without undue hardship.

[84] There is no dispute that mental illness is a disability covered by s. 10 of the Code but the burden is on Fred to show a prima facie case of discrimination.

[85] It is the employer’s position that they did not have and had no right to the medical information that subsequently has been revealed that Fred suffered from severe depression and ultimately after dismissal was confirmed to be bipolar. Therefore, it is their position they did not discriminate against him when they dismissed him. Their dismissal was based on the threats. The threats were of such a serious nature that could be clearly interpreted as threats to employees of the company and, therefore, they felt they had no alternative to take the immediate and drastic step of terminating his employment.

[86] It is the defendant’s position that Fred had been accommodated previously, early in his career, to deal with his alcoholism. The next accommodation allowed him to take time off either at work or at home related to his migraines and more recently they had accommodated him for possible heart or thyroid problems and also, in my opinion, stress which resulted in him working in the warehouse.

[87] Fred had been suspended with pay at 3:45 p.m., on November 1, 2005, as a result of his conduct at the 9:00 a.m. meeting of the same day with his new manager, Dave Marcon. That suspension with pay was subject to further consideration by the Board of Directors and that prior to dealing with that as a disciplinary matter they received information through various employees that Fred, on leaving the building on November 1, 2005, made threats of a violent nature with words which included “you better know where the exits are”.

[88] The letter of November 16, 2005, from Fred’s lawyer indicated that Fred was suffering from mental disability and a request was made not to terminate him but that he remain on leave pending provision of further medical documentation and that Fred would not go back to work until such time as the company medical doctor confirmed him appropriate to go back to work which could include a short or long term disability claim.

[89] Despite this information, the company determined that the termination not be changed.

[90] The question arises is if the company did not know that Fred had a mental illness and therefore was disabled whether they should have investigated or accommodated Fred prior to termination. The November 16, 2006 letter described Fred as having a disability based on mental illness and the question then arises as to whether or not with the company refusal to reconsider its position, was that a failure on their part to comply with, not only their own handbook, but with the Ontario Human Rights Code.

[91] It is the company position that because the threats were workplace violence of a serious nature, they had a right to provide automatic termination without any further steps to be taken by them. They stated they had concerns for the safety of their employees and that termination was the appropriate step.

[92] At the very least, the letter from the lawyer raises the question of whether this position was appropriate because it informed them of Fred’s mental disability. Should the company have reconsidered and done a full investigation and hear from Fred as to what the nature of his illness or disability was prior to termination?

[93] The policy and guidelines on disability and the duty to accommodate provided by the Ontario Human Rights Commission indicates, at para. 4.1.2:

There is no set formula for accommodating people with disabilities. Each person’s needs are unique and must be considered a fresh when an accommodation request is made. A solution may meet one’s personal requirements but not another’s although many accommodations will benefit large number of persons with disability.

[94] The letter from the lawyer of November 16, 2005, clearly informed Windsor Factory Supply that Fred Bellehumeur had a mental disability and that the letter further asked for an accommodation namely that the termination be held off pending further medical evidence as verified by their physician as to the appropriate next step. The appropriate next step could include short term disability or even long term disability if that was the appropriate finding. It also could include whether Fred could return to work with the appropriate accommodation including the appropriate type of work.

[95] An underlying problem is that the employer made the decision to terminate based on threats by Fred to his fellow employees and that they had an obligation to protect their other employees.

[96] We know the Board’s decision but we do not know the detailed reasons as the company has claimed privilege as their lawyer was involved in the deliberations.

[97] The case of McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, involved a case of an employee’s dishonest misconduct and whether it justified his dismissal. At para. 29, it indicates that the court is to consider context and:

Within this analysis, a finding of misconduct does not, by itself, give rise to just cause. Rather, the question to be addressed is whether, in the circumstances, the behaviour was such that the employment relationship could no longer viably subsist.

[98] It was held that in reviewing whether cause for dismissal is the appropriate legal conclusion that must be drawn and noted, at para. 34:

[T]hese cases indicate that just cause can only be determined through an inquiry by the trier of fact into (a) whether the evidence demonstrated employee misconduct and (b) whether, in the circumstances, such misconduct sufficed to justify the employee’s termination without notice.

[99] In the case at hand, the company was informed that Fred had a mental disability at least by the November 16, 2005 letter by his lawyer to the company and perhaps earlier on the basis that Fred’s conduct on November 1, 2005. In my opinion the threats made by Fred as he left the building, on November 1, 2005, constituted employee misconduct but the question is whether or not in the circumstances there was sufficient evidence to justify his termination without notice.

[100] The company takes the position that the issue of threats of harm as heard by the employees was sufficient in itself to terminate Fred for just cause without notice. In that regard, the employer refers to British Columbia (Public Service Agency) v. British Columbia Government and Service Employees Union, 2008 BCCA 357. That case involved an employee who was fired for just cause based on theft. The employee had an underlying problem of alcohol dependency. Paragraph 15 provides:

I can find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime. That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct.

[101] Further, at para. 16:

The Human Rights Code was not designed to prevent employers from dismissing an employee who has committed a crime related to his or her employment. [Emphasis in original.]

[102] It is appropriate to say this comment regarding the British Columbia legislation applies to the Ontario Human Rights Code.

[103] No charges were laid in the British Columbia (Public Service Agency) case nor in our case.

[104] The question, therefore, is whether or not the threats themselves would permit the employer to terminate for just cause even though Fred had an underlying disability of a mental nature. This is similar to the British Columbia (Public Service Agency) case in which a person who was terminated for theft even though he had an underlying problem of alcohol dependency.

[105] Re Toronto Transit Commission v. Amalgamated Transit Union, 72 L.A.C. (4th) p. 109, involved a bus driver who was impaired and drove into the back of a garbage truck which resulted in nine passengers being injured. The Collective Agreement provided that discharge could follow if the employee was impaired while on duty by reason of consumption of an intoxicating beverage. The Board found based on the Collective Agreement that he was impaired by alcohol and that he was dismissed based on the wording of the Collective Agreement.

[106] Further, the bus driver’s lawyer argued that his client was an alcoholic and therefore had a disability and was protected by the Ontario Human Rights Code and that there was a duty on the employer to accommodate his handicap to which the Board said, at p. 119:

In effect counsel asserts that the provisions of the Collective Agreement discriminate against the grievor who has an illness, the illness of alcoholism, and the provisions of the Human Rights Code render s. 8 of the Collective Agreement void in the particular circumstances of this case.

[107] At para. 120:

In determining whether the grievor has been discriminated against it is useful to consider the employment offence which brought about this discharge. There is no doubt that driving while under the influence of alcohol is a major employment offence which warrants dismissal in all but exceptional circumstances.

[108] Further, at para. 124:

While there is an obligation under the Human Rights Code to accommodate employees who suffer from mental illness, clearly such an accommodation does not mandate that such employee be protected or be absolved from major employment offences merely because of that illness. The Ontario Human Rights Code intends to integrate employees into the workforce who have illnesses and who are able to perform the work as required; the code is not intended as a protective device to shield employees who commit major employment offences. The bus driver, while driving impaired was held was in breach of his duty and breach of the rules which he knew prevented him from drinking while he was driving. In the circumstances he is not being treated unequally or differentially from other employees who might have been drinking while driving and caused an accident resulting in injury to other passengers and therefore has not been discriminated against nor has the grievor been discriminated against under the Code because the employer in the circumstances has refused to accommodate him. The grievor because of his illness cannot be placed in a better position than other employees who commit similar offences. If the union is right in its contention to an accommodated employee would be immune from discharge.

One should be careful in assessing the responsibility of the employer. The employer has a duty to accommodate but it also has a right to discipline. While the duty and right may conflict or intersect in certain situations, that conflict does not arise in this case. There is no reason why the duty to accommodate to eliminate the Commission’s right under the Collective Agreement to discriminate up to and including discharge for major employment offences. ... In our view, the right to discipline or discharge in the circumstances of this case exist independently of the employer’s duty to accommodate or put it another way the duty to accommodate cannot pre-empt the employer’s right to discipline and discharge in these circumstances. Accordingly, the union’s argument that the right to discharge is rendered void by the operation of the human rights code cannot succeed.

[109] In our case, the employer takes the position that Fred Bellehumeur’s threats on leaving the building on November 1, 2005, justify them disciplining him as his conduct constituted a major employment offence for which termination was the appropriate remedy. It is their position that there was no obligation to accommodate him for his conduct and that he was not being treated differentially and that he was being treated the same way that any other employee would be treated in similar circumstances. The fact that Fred had or may have had a disability because of his mental disability was similar to a person who is an alcoholic and as in the Toronto Transit case, termination was appropriate. Although they have a duty to accommodate in disability situations, that duty to accommodate did not pre-empt their right to discipline and discharge for a major employment offence being the threats to other employees as happened with Fred.

[110] An unreported arbitration of William Kaplan involving Windsor Regional Hospital, the CAW and an employee named Serdena, involved a threat by the employee to slit the throat of another employee in a dispute over the cleaning of hospital instruments. It resulted in the arbitrator upholding the hospital’s decision to discharge the employee for just cause. The employer provided case law that there is virtually no tolerance in the workplace for death threats against coworkers even when individuals involved had substantial seniority. The union countered by saying the grievor was a long service employee with an excellent record that he had taken responsibility for his actions and realized that they were wrong and that he had taken an employer’s program and received counselling. In the Union’s view the termination was too drastic a disciplinary response. The arbitrator upheld the termination and quoted arbitrator Anne Pichard who observed that:

Threatening the murder of fellow employees is an extremely serious matter. While at one time such comments may have been given certain latitude, highly publicized legal life tragedies have occurred in a number of work places both in Canada and elsewhere in recent years have understandably changed that. The obligation to protect employees and supervisors against threats in fear for their own safety and the safety of their families is now recognized as one of the highest obligations of an employer (CNR CAW 133 LAC 4th Pichard 190 at 192).

[111] In our case, the evidence is that at least by November 16, 2003, the employer was informed that Fred had a mental disability and that he would not return to work until approved by the employer’s physician or that perhaps short and long term disability would be appropriate.

[112] I acknowledge that none of the fellow employees who heard his threatening statements reported it to management or were fearful of Fred.

[113] Therefore, the question is whether or not it was appropriate for the employer to continue with their position that Fred be terminated having regard to all the circumstances.

[114] Windsor Factory Supply’s lawyer submitted that Fred’s threats constituted a major employment offence. They acknowledge receipt of Mr. Renaud’s November 16th letter as to Fred’s mental disability but this information did not condone Fred’s threats. It is the employer’s position that Fred’s threats, whether or not he had a mental disability was of such a serious nature that they had the right to terminate him for just cause as his conduct was serious and a major employment offence. The employer takes the position they had a responsibility to all of the employees and Fred’s conduct was of such a serious nature they could not take a chance as to whether or not he would act on those threats. The fact that the individual employees did not complain at the time the threats were made, or whether Fred would follow through with his threats, it is the employer’s position that they were concerned that the threats had to be taken seriously and they had to act to protect all of their employees.

[115] A great deal of evidence was given that the employer in accommodating Fred for stress by permitting him to do the warehouse job was aware of his mental disability. Further, the threats, on November 1, 2005, were so out of character that it should have put the employer on notice of mental illness requiring investigatory steps prior to termination. At the very least it was argued the company should have reconsidered their position and made further inquiry in the light of Mr. Renaud’s letter to them of November 16, 2005. As I have stated, the company has answered by indicating that they considered Fred’s threats serious and constituted a major employee offence. Their concern was for all of their employees and that was the reason the Board terminated Fred for just cause.

[116] I agree with the position of the employer as outlined above.

[117] As stated in the Human Rights policy and guidelines on disability and the duty to accommodate and the accommodation process is a shared responsibility. A person with a disability is to provide information regarding relevant restrictions including information from health care professionals where appropriate and as needed. Fred did not do so. I am satisfied that the employer was not aware of Fred’s mental disability and that their accommodation to him even if for stress was not sufficient for them to make further inquiry as to Fred’s mental disability because of the serious nature of Fred’s threats. This is further supported by the fact that the employer had a doctor’s note saying that Fred could return to work full time. There is no question that some individuals may be unable to disclose or communicate their disability and, in such cases, the employer should attempt to assist a person who is clearly unwell or perceived to have a disability by offering assistance on an accommodation, but on the other hand, employers are not expected to diagnose illness or “second guess” the health status of an employee.

[118] In my opinion, the employer had a responsibility to all the employees in the face of serious threats that constituted a major employee offence and that they had the right to terminate Fred for just cause. They had to take the threats seriously for the protection of all of their employees.

[119] Therefore, this action is dismissed with costs to the defendant.

[120] Costs submissions may be made in writing within 30 days from the release of this judgment, with reply within 15 days thereafter.

Original signed by “Justice Patterson”

Terrence L.J. Patterson
Justice

Released: August 8, 2013

COURT FILE NO.: 07-CV010064-CM00

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Fred Bellehumeur

Plaintiff

– and –

Windsor Factory Supply Ltd.

Defendant

REASONS FOR JUDGMENT

Patterson J.

Released: August 8, 2013