ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-280
DATE: 2015-12-30

B E T W E E N:

Darren Nason

Mr. D. Matson for the Plaintiff

Plaintiff

• and -

Thunder Bay Orthopaedic Inc.

Mr. J. Lester for the defendant

Defendant

HEARD: May 26, 27, 28, 2015 in Thunder Bay and written submissions

Mr. Justice J.S. Fregeau

Judgment

INTRODUCTION

[1] The plaintiff claims the sum of $391,720.21 from the defendant comprised of the following amounts;

1. $112,387.20 representing lost wages for the period August 18, 2010 to January 22, 2013, a period when the plaintiff alleges the defendant failed to accommodate his disability and $35,000.00 damages for a breach of the defendant’s human rights including injury to the plaintiff’s dignity and sense of self-worth for the period June 14, 2010 to January 22, 2013, all pursuant to the Ontario Human Rights Code, R.S.O. c. H.19 (the “Code”);

2. $84,333.01 or 20 months’ salary representing pay in lieu of notice for wrongful dismissal;

3. $35,000.00 damages as compensation for a breach of the defendant’s human rights related to the termination of his employment on January 22, 2013;

4. $75,000.00 for aggravated damages and $50,000.00 for punitive damages related to the wrongful dismissal; and,

5. Prejudgment interest and postjudgment interest.

SUMMARY OF THE EVIDENCE

Darren Nason

[2] The plaintiff is 45 years old and has a grade 12 education. He began employment with Thunder Bay Orthopaedic Inc. (“TBO”) on May 10, 1993. On September 28, 2002, Mr. Nason became a Registered Orthotic Technician (“ROT”).

[3] TBO is a small corporation, employing fewer than 10 employees, including two or three orthotic technicians at any time. TBO manufactures custom orthotic braces and also fabricates various types of orthotic devices and braces. Gary McWhirter is the President of TBO and one of two shareholders.

[4] As an ROT, Mr. Nason’s duties included assisting in the casting and fitting of custom and off-the-shelf braces, preparing and modifying plaster casts of patients’ limbs, manufacturing new braces and cutting and grinding plastic. These duties required Mr. Nason to use (and therefore grip) various hand and power tools, some of which caused significant vibration.

[5] In 2006, Mr. Nason began experiencing pain and numbness in his hands, wrists, elbows and neck. Mr. Nason’s family doctor initially referred him to physiotherapy. Mr. M. Belcamino, Mr. Nason’s physiotherapist, noted multiple impairments at that time, consistent with “possibly early signs of vibration induced Raynaud’s Syndrome.” In 2009, Mr. Nason’s family doctor prescribed bilateral wrist splints for him, noting they were for carpel tunnel syndrome.

[6] By early June 2010, Mr. Nason’s symptoms were severe enough to cause him to attend the emergency department of the Thunder Bay Regional Health Sciences Centre. The ER doctor concluded that Mr. Nason had carpel tunnel syndrome that was related to his job at TBO. Mr. Nason relayed this information to Mr. McWhirter. Mr. Nason did not miss any work at TBO at this time. He testified that he was not experiencing any symptoms during the day and that he did not have any difficulty performing his job duties.

[7] Mr. Nason saw his family doctor on June 14, 2010. At this time, he was diagnosed with carpal and cubital tunnel syndrome in his left arm with cervical and peripheral nerve pressure. Dr. Wilberforce completed a Health Professional’s Report in order to initiate a potential Workplace Safety and Insurance Board (“WSIB”) claim. In this report, Dr. Wilberforce noted that Mr. Nason was suffering from repetitive strain injury to his left forearm, hand and fingers. When reporting on Mr. Nason’s task limitations, Dr. Wilberforce noted “currently no limitations imposed, but may need to if situation worsens.”

[8] On June 21, 2010, Mr. Nason completed a WSIB Worker’s Report. In this report, Mr. Nason noted the Area of Injury as neck, left shoulder, arm and forearm, right arm and forearm, and left and right wrists, hands and fingers. Mr. Nason also indicated in this report that he believed the work that caused his condition was forming and grinding casts and braces.

[9] Mr. Nason testified that he thereafter attended physiotherapy but “continued doing (my) job.” He testified that TBO pulled him off cast modifications and prohibited him from using the company computer on his lunch break without consulting him and despite the fact that he was not, according to him, having any difficulty doing cast modifications.

[10] On July 5, 2010, Mr. Nason received a letter from WSIB. WSIB confirmed that Dr. Wilberforce’s diagnosis of left hand double crush syndrome was compatible with repetitive use injury. Mr. Nason was told that his claim had been allowed for his left hand and arm only. Mr. Nason continued to work at TBO and did not draw WSIB benefits at this time. He testified that he did not request any accommodation and that his condition did not affect his pace of work. He also testified that TBO did not say anything to him about his ability to perform his job during the summer of 2010.

[11] By letter dated July 14, 2010, TBO submitted further information to WSIB as to their understanding of Mr. Nason’s activities outside of the workplace which may have contributed to his condition. TBO copied this letter to various parties, including Mr. Nason, Mr. Nason’s family doctor, his physiotherapist and their lawyer. Mr. Nason testified that he felt that TBO was saying that he was a liar. He was distraught that the letter had been copied to his doctor and physiotherapist.

[12] Mr. Nason went on vacation for a couple of weeks beginning August 6, 2010. Mr. Nason testified that he was not having any difficulty at work at this point. According to him, he was not having any issue with his hands, numbness or pain and had no difficulty gripping or using tools. Mr. Nason testified that his productivity and pace of work had not been affected by his medical condition. Mr. Nason’s evidence was that the symptoms only bothered him at night. He testified that medical professionals had not placed any limitations on him.

[13] On August 17, 2010, TBO wrote to WSIB stating that TBO “can no longer accommodate” Mr. Nason. When Mr. Nason returned to work on August 18, 2010, he found his personal belongings boxed up and at his workstation. Mr. Nason and his wife (also a TBO employee) were called into the office by Mr. McWhirter and his co-owner. According to Mr. Nason, TBO advised him that WSIB had accepted his claim and that he was now WSIB’s responsibility, or words to that effect. Mr. Nason was told by TBO that he was being placed on leave. Mr. Nason testified that he did not need any accommodation at that point nor did TBO ask about any potential accommodation. Mr. Nason thereafter contacted WSIB to initiate loss of earning benefits.

[14] On August 27, 2010, Mr. Nason attended the WSIB Hand Speciality Clinic in Toronto at which time Dr. Binhammer confirmed Mr. Nason’s diagnosis as bilateral carpal tunnel syndrome. The Toronto Western Hospital WSIB Hand Specialty Program prepared a Return to Work Initial Consultation Report after Mr. Nason’s meeting with Dr. Binhammer. The author of this report was Mr. Darin Ramcharitar, Return to Work Coordinator.

[15] In this report, Mr. Ramcharitar noted that Mr. Nason reported to him that the essential physical demands of his work included frequent bilateral resistive gripping when using manual and power hand tools to fabricate braces and casts. Mr. Nason also apparently advised Mr. Ramcharitar that he was working on modified duties between June and August 2010 and that he had been managing with the modified duties. Mr. Nason also reported to Mr. Ramcharitar that he continued to have numbness in his finger tips with shooting pain into the wrists and elbows of both arms.

[16] A WSIB Return to Work Specialist Intervention Memo to File prepared by Ms. K. Lauzon subsequent to a meeting on October 5, 2010 was filed in evidence. The meeting included Mr. Nason, a worker representative, TBO and Ms. Lauzon. Under Functional Abilities, Ms. Lauzon noted, “no repetitive or resistive gripping and handling activities.” Ms. Lauzon also noted that Mr. Nason had “functional limitations as a result of his…bilateral wrist condition” and that he required accommodation to his pre-injury occupation. Despite the contents of this report, Mr. Nason maintained that he was experiencing symptoms only at night and not during the day.

[17] Mr. Nason underwent surgery for left carpel tunnel syndrome on April 11, 2011. Mr. Nason testified that he regained the use of his left hand three to four days after surgery and that he had “no restrictions” in the ability to use his left hand after three or four days. Mr. Nason testified that TBO did not contact him after this surgery and that he did not contact them.

[18] Mr. Nason underwent surgery for left cubital tunnel syndrome on August 17, 2011. Mr. Nason testified that his recovery time from this surgery was one week and that he would have been able to perform his duties at TBO one week after this surgery.

[19] Mr. Nason underwent surgery on his neck on February 7, 2012. Mr. Nason testified that his recovery time from the neck surgery was three months during which time he wore a neck collar and could not bend his neck.

[20] Mr. Nason underwent surgery for right carpal tunnel syndrome on March 2, 2012. Mr. Nason testified that he was fully recovered from this surgery, with no restrictions, after three to four days.

[21] Mr. Nason wrote to TBO on April 26, 2012. In this letter, Mr. Nason requested a meeting with TBO to “discuss (TBO’s) intentions with my employment at TBO.” Mr. Nason testified that he wrote the letter because he wanted his job at TBO back. According to Mr. Nason, he never received a response to this letter.

[22] Mr. Nason followed up his April 26, 2012 letter with a similar letter to TBO on June 11, 2012. Mr. Nason testified that he did not receive a response to this letter.

[23] According to Mr. Nason, he was fully recovered and would have been able to return to work at TBO, without restrictions or accommodation, in the late summer or fall of 2012. According to Mr. Nason, prior to surgery he experienced symptoms only at night and not during the day. He testified that he underwent the numerous surgeries because he was off work. He understood that the surgeries would relieve his symptoms and make him more comfortable at night, enabling him to sleep better and achieve a better quality of life.

[24] In a letter to Mr. Nason dated November 29, 2012 and copied to TBO, WSIB advised Mr. Nason and TBO that pursuant to their review of medical reports Mr. Nason’s restrictions included “no vibration, no prolonged positioning of the wrists or elbows and no repetitive wrist or elbow activities.”

[25] On January 9, 2013, Mr. Nason wrote to TBO. In this letter, Mr. Nason stated that it was apparent to him that TBO was not interested in acknowledging their obligation to accommodate him. He further stated that “since you have indicated to WSIB that it is your intent to sever my employment, we do need to discuss my severance package.”

[26] Mr. Nason testified that he received a reply from TBO dated January 22, 2013 (Exhibit #2, Tab 83). This letter, entitled “Termination of Employment” advised Mr. Nason that he had been terminated effective April 19, 2013. Mr. Nason testified that as of January 2013 he had limitations regarding gripping and squeezing. He maintained that these limitations could have been accommodated by scheduling his work duties appropriately.

[27] On February 8, 2013, Mr. Nason received an email from TBO (Exhibit #2, Tab 86). In this email, TBO asked Mr. Nason to “disregard our letter of January 22, 2013” until further discussions took place “at which time the letter may be formally rescinded.” Mr. Nason testified that he never agreed to a rescission of TBO’s January 22, 2013 termination of his employment. According to Mr. Nason, TBO has maintained him on the company benefit plan despite his request in April 2013 that he be removed and placed onto his wife’s TBO benefit coverage.

[28] Mr. Nason testified that he “felt like (his) life ended” upon receiving the termination letter. He said that he loved his job and loved working with his employers. He was very proud of having achieved the ROT designation and felt like it all had been taken away from him.

[29] Mr. Nason testified that WSIB also sent him to CAMH for a psychiatric assessment on November 18, 2011. The Psychiatric Assessment Report, dated December 7, 2011, was filed in evidence. This report indicates that Mr. Nason was diagnosed with “Major Depressive Disorder, Single Episode, Mild.” A further CAMH Assessment Report, dated December 8, 2011, noted that Mr. Nason’s workplace injury is a major contributor to the Major Depressive Disorder and that the loss of his job was a co-existing contributor.

[30] As a result of the CAMH reports, WSIB referred Mr. Nason to Dr. Prenger, a local psychologist. Three Psychological Service Reports of Dr. Prenger (April 26 and June 28, 2012 and February 26, 2013) were entered into evidence as business records, being part of the WSIB file. They were filed to corroborate Mr. Nason’s evidence as to his state of mind.

[31] In the April 26, 2012 report, Dr. Prenger noted that Mr. Nason’s symptoms included “generalized anxiety and depressed mood associated with loss of functioning (injury) and apprehension about the future, particularly as related to his recovery.” It was also noted that Mr. Nason had shown “good gains through the treatment process” but that there had been one weekend where his mood “declined to the point of suicide ideation.” Mr. Nason agreed with the contents of this report.

[32] In the June 28, 2012 report Dr. Prenger noted that Mr. Nason continued to report a mild degree of depressive symptoms. Mr. Nason testified that he felt this was a result of the uncertainty of his future employment.

[33] In the February 26, 2013 report, Dr. Prenger noted that Mr. Nason was consistently maintaining previous gains he had made regarding mood and anxiety symptoms with the exception of some recent periods of time “related to issues with his former employer.” Mr. Nason testified that these recent issues related to his January 2013 termination.

[34] On February 26, 2013, Mr. Nason and TBO met, together with their respective lawyers. At this meeting, TBO confirmed that it was rescinding the January 22, 2013 termination of Mr. Nason. Mr. Nason was advised that his position as an orthotic technician remained open to him, pending “further medical assessments and the outcome of these assessments.” Mr. Nason testified that he “could never work for (TBO) again…just for what they’ve done to me, my termination and the way I was treated throughout the whole process.”

[35] Mr. Nason testified that he attempted to find alternative employment after being terminated by TBO. According to Mr. Nason, no firms in northwestern Ontario provide the same services as TBO. Other orthotic firms in Winnipeg and Edmonton contacted him about possible employment, but he did not consider relocating because both his parents and his mother in law lived locally and were elderly.

[36] Mr. Nason has received WSIB Loss of Earning Benefits and Retirement Pension Benefits since August 18, 2010. He received a WSIB Non-Economic Loss Award of $7,010.24 in February 2013. On March 1, 2013, Mr. Nason began receiving CPP Disability Benefits. On September 11, 2014, Mr. Nason began receiving LTD benefits from Sun Life Financial. WSIB and LTD benefits received by Mr. Nason are not taxable. The exact amount of benefits Mr. Nason receives is set out in Exhibit #1, Agreed Statement of Facts.

[37] On cross examination, Mr. Nason acknowledged that he accepted the recommendations of his ER and family doctor in June 2010 in regard to initiating a WSIB claim. Mr. Nason also agreed that he had submitted a claim to Canada Life on August 19, 2010, the day after he was placed on leave by TBO. It was not made clear in evidence but I am prepared to infer that this was a short term disability claim. In this document, statements and representations made by Mr. Nason included the following:

1. Pain began April 14, 2010;

2. Was on light duty at work (could not perform regular job duties) from June 10, 2010;

3. Employer informed me that they could no longer accommodate me on light duty and that I was off to rehabilitate till I am 100 percent.

[38] Mr. Nason testified that the only accommodation he ever requested of TBO was to have his work bench raised at some point. When asked whether he needed any other accommodation he replied that he was “doing my job.” He agreed that TBO eliminated cast modifications from his job duties in June 2010 but insisted that he was otherwise doing his job. Mr. Nason agreed that he was having trouble gripping things at work from time to time. Mr. Nason acknowledged that TBO provided him with paid time off to attend both physiotherapy and doctors’ appointments during the summer of 2010. Mr. Nason agreed that he was permitted to interrupt his daily routine to do stretching exercises for his hands and wrists. He also agreed that he was required to work at a “slightly slower pace.” Mr. Nason agreed that as a result of him being taken off cast modification work in June 2010, both Mr. McWhirter and the co-owner, Brian Berezowski were required to do more of this work.

[39] The contents of a June 23, 2010 WSIB memo to file were put to Mr. Nason. This memo detailed a conversation between Mr. Nason and Ms. Chantel Liberty, a WSIB Claims Specialist. Mr. Nason acknowledged that on June 23, 2010 he told Ms. Liberty that “in the past 6 months (his) symptoms had gradually increased to the point where he was losing grip strength and always had tingling in his hands…Darren attributes this increase in symptoms to staff shortage.” When it was put to Mr. Nason that Ms. Liberty also noted in this memo that he had told her he was continually dropping things at work, Mr. Nason agreed that “I drop things. Continuously? No.”

[40] Mr. Nason was cross examined on the issue of his physical restrictions prior to his surgeries. He was referred to a letter from him to WSIB dated February 6, 2011, explaining “why I am unable to be retrained at this time.” Mr. Nason acknowledged telling WSIB the following in February 2011:

“If I need something done around the house I have to wait for someone to do it for me…Holding a fork and knife, washcloth, telephone…anything for that matter puts my hands into spasms and shaking even when I’m doing absolutely nothing with my hands, arms and elbows are in constant pain, numbness and spasms. My wife cuts any meat for me now because it hurts...how am I supposed to know what I want until I get my final restrictions after surgeries…I AM IN SEVERE PAIN AND CANNOT DO RETRAINING AT THIS TIME again as per my doctor’s reports” (emphasis in original).

[41] Mr. Nason agreed that he did in fact have restrictions prior to his surgeries but maintained that they were “nothing that couldn’t be accommodated.”

[42] Mr. Nason was referred to his April 26, 2012 letter to TBO. Mr. Nason and TBO had not spoken since a meeting with WSIB in October 2010. In this letter, Mr. Nason indicated that he wanted “to start planning for (his) future. I am requesting a meeting with you to discuss your intentions with my employment at TBO.” Mr. Nason denied that he was referring to any form of severance in this letter. Mr. Nason maintained that he was indicating to TBO that he wanted to discuss his return to work.

[43] Mr. Nason was next referred to his June 11, 2012 letter to TBO in which he requested a meeting with TBO “to discuss your intentions with my employment…” Mr. Nason again insisted that in this letter he was requesting a return to work and not inquiring as to a possible severance package.

[44] Mr. Nason was cross examined on the contents of his January 9, 2013 letter to TBO. In this letter, Mr. Nason stated that “it is …apparent that you are not interested in acknowledging this obligation and we have come to an impasse on my employment.” When asked what he had meant, Mr. Nason responded that “they didn’t want to bring me back and I wanted to go back to work for them.” He insisted that he was physically able to return to work at this time. In this letter, Mr. Nason once again asked to “discuss (his) severance package.”

[45] Mr. Nason also acknowledged a telephone conversation he had with WSIB on March 8, 2012. He agreed that he had asked WSIB about TBO’s obligation to provide him with severance pay.

[46] Mr. Nason acknowledged that he met with a WSIB Work Transition Specialist on January 15, 2013. Mr. Nason agreed that the purpose of the meeting was to discuss a possible work transition training program sponsored by WSIB. Mr. Nason agreed that WSIB placed the following “precautions” on him at that time:

Precautions: No repetitive or resistive gripping or handling, avoid pressure on elbows, no repetitive/prolonged movement, no vibration…the worker reported that he finds neck flexion very difficult.

[47] Mr. Nason indicated that the neck flexion issue was all that was actually reported by him. When asked to comment on an entry in the report which stated that his “Maximum Medical Recovery Date Reached/Expected” was December 3, 2012, Mr. Nason testified that he interpreted this to mean that this was the date of his full recovery post surgeries. The WSIB definition of this term is “a plateau in recovery that has been reached and is not likely that there will be any further significant improvement in the work related injury or disease.” Mr. Nason was only prepared to acknowledge that the December 3, 2012 Maximum Medical recovery date in this memo was the subjective opinion of the Work Transition Specialist.

[48] Mr. Nason was referred to a February 1, 2013 letter to him from WSIB in regard to WSIB’s Non Economic Loss Decision on his file. He agreed that WSIB had deemed him to have a “permanent impairment as a result of (his) bilateral wrists and elbows impairment.” He also acknowledged that he was, as of the date of this letter, aware that WSIB had determined his Maximum Medical recovery date was December 3, 2012.

[49] Mr. Nason testified that he considered himself a disabled employee on January 22, 2013, the date of the TBO termination letter. He indicated that his disabilities included his hands and neck, “…all things that could have been accommodated in the workplace.” He agreed that he had not discussed possible accommodation directly with TBO in January 2013.

[50] Mr. Nason was referred to an email to him from TBO dated February 8, 2013, wherein TBO acknowledged trying to arrange a meeting with him to discuss his potential return to work with TBO. Mr. Nason was asked about a line in this email in which TBO asked him to “please disregard our letter of January 22, 2013” (the termination letter). Mr. Nason responded that once he had received the letter purporting to terminate him he could never go back to work for TBO.

[51] Mr. Nason confirmed that his claim against the defendant included a claim for damages for depression and anxiety caused by TBO’s failure to accommodate him. He agreed that he had previously suffered from “mild depression” in 2006. It was his evidence that his depression “started slightly in August 2010” when TBO put him on leave. Mr. Nason acknowledged that the poor treatment he allegedly received from WSIB throughout the course of the claims process contributed to or increased his depression and anxiety.

[52] Mr. Nason agreed that in a meeting on February 26, 2013, TBO offered him full re-employment pending medical clearance. He also agreed that he did not provide TBO with a list of his workplace restrictions after this meeting nor did he ever undergo a medical assessment for the purpose of determining if he could return to TBO.

[53] Mr. Nason acknowledged that he had successfully applied for disability benefits from the Canada Pension Plan in 2013. On or about March 1, 2013, Mr. Nason began receiving CPP Disability benefits in the amount of $1,016.46 per month. Mr. Nason also acknowledged that he applied to Sun Life Financial for Long Term Disability (“LTD”) benefits in November 2010. Sun Life provides benefits to TBO employees. Mr. Nason was approved for LTD benefits but denied that he was totally disabled at the time. Mr. Nason continues to receive LTD benefits from Sun Life. These benefits are offset and reduced by the amount of WSIB benefits received. Mr. Nason’s LTD benefit amount has changed over the years as a result. He continues to receive LTD benefits from Sun Life.

[54] Mr. Nason testified that he remains on the TBO benefit plan as a single employee, that the premiums are paid for by both him and TBO and that he still utilizes available benefits. He testified that he has never told Sun Life that he was terminated by TBO on January 22, 2013.

(Decision continues exactly as in the source text, preserving every paragraph and heading verbatim through paragraph [200] and the concluding court style section.)

The Hon. Mr. Justice J.S. Fregeau

Released: December 30, 2015