CITATION: Berger v. Benson Group Inc., 2017 ONSC 5896

COURT FILE NO.: 14-62380

DATE: 2017/10/03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Daniel Berger

Plaintiff

– and –

Benson Group Inc.

Defendant

Nigel McCready, counsel for the Plaintiff

Margot L. Pomerleau, counsel for the Defendant

HEARD: February 27, 28, March 1, and 2, 2017

REASONS FOR JUDGMENT

L. Sheard J.

Introduction

[1] The plaintiff sues for losses he suffered when his employer, the defendant, Benson Group Inc., refused to allow him to return to work following a disability leave. He frames his claim in the alternative and seeks damages for wrongful dismissal and/or breaches of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). Under that latter heading, the plaintiff seeks damages equal to lost income arising from Benson’s failure to accommodate his disability or to prove accommodation would have caused undue hardship, and general or punitive damages for the breach.

[2] Benson says that it never dismissed the plaintiff, constructively or otherwise. Benson agrees that the plaintiff was a valued, hardworking and well-liked employee. Based on the information given to Benson, the plaintiff was never able to return to work and the plaintiff failed to provide requested medical updates to show that he was able to return to work. As for accommodating the plaintiff’s disability, based on the information in Benson’s hands, it concluded that the plaintiff could not perform the core tasks of his employment. Furthermore, to allow him to return to work would have put the plaintiff and his co-workers at risk of injury.

[3] The parties agree that the plaintiff was disabled when he sought to return to work in June 2013. The plaintiff asserts that Benson failed to establish that it fulfilled its duty under the Code to show undue hardship. Benson says that, based on the information it received from the plaintiff’s disability insurer, and in the absence of any other information from the plaintiff that he had recovered from the illness that had caused the plaintiff to be completely unable to work since 2010, no accommodation was possible.

Overview

[4] As per the Agreed Statement of Facts, the plaintiff was 44 years old in December 2010 when, at work, he began to suffer chest pain, shortness of breath, dizziness and numbness and cold in his extremities. He sought help at the hospital that day but was unable to return to work. The plaintiff was a 15-year employee and was then working full-time as a shipper/receiver and counterperson. He was paid for 87.5 hours every two weeks at $15.15 per hour. Benson operates auto parts stores in more than 70 locations throughout Ontario and Quebec.

[5] After using up his vacation time, the plaintiff applied for and was granted short-term disability benefits available through Benson’s group disability coverage, provided by Sun Life Assurance Company of Canada (“Sun Life”). On May 31, 2011, the plaintiff applied for and was granted long term disability benefits (“LTD”). The plaintiff had “own occupation” LTD for two years. After that, the plaintiff was then eligible for LTD only if he were unable to return to any occupation.

[6] In June 2011, the plaintiff completed a form entitled “Plan Members Statement Disability Transition Form”, associated with his transition to LTD. This form was provided to Benson, who then forwarded it to Sun Life. It contains information about the plaintiff’s healthcare providers, his condition and when he expected to be able to return to his own occupation. To that question the plaintiff answered “unknown”.

[7] In July 2011, knowing that the plaintiff was on LTD, Benson determined that the plaintiff should return his key to the store and collect his things. Benson showed sensitivity to the feelings of the plaintiff and instead of asking for the return of the key in a letter, which they were concerned could come across “as a bit harsh”, a personal call was made by a Benson employee to the plaintiff.

[8] In his trial testimony, the plaintiff stated that the attacks would last 15 to 20 minutes and would leave him so weak he could not even walk his driveway without stopping to rest. Although he had improved somewhat, the plaintiff stated that he was still unable to work in 2012 and that despite multiple tests, his doctors could not explain the reason for his attacks or provide him with a diagnosis. By the end of 2012, the plaintiff was still suffering attacks; they were random and the same intensity as previously. However, his strength was being built up somewhat and he was walking and doing a bit of yard work and getting a bit better. His condition remained unchanged in 2013.

[9] In anticipation of the expiration of his LTD, in March 2013, Sun Life had the plaintiff undergo a Functional Abilities Evaluation (“FAE”). Based on the FAE on June 3, 2013, Sun Life provided the plaintiff, his doctor, and Benson with a Gradual Return To Work Plan (“GRTWP”).

[10] The GRTWP contemplated a gradual return to work starting with a few hours each day, three days per week commencing June 17, 2013. By week six, July 22, 2013, the plaintiff was expected to be able to work a full 40 hour work week.

[11] On June 13, 2013, Benson told Sun Life that the GRTWP was not possible and on June 16, 2013, they told the plaintiff that it could not accommodate his GRTWP or provide him with a position due to his medical limitations.

[12] On July 22, 2013, Sun Life terminated the plaintiff’s LTD as he did not meet the definition of “totally disability” under the policy.

[13] The plaintiff said that while he was off work, he would regularly stop by his old store to try and stay in touch. He would speak to the store manager and the counterperson to try to keep them apprised of what was happening with him. The plaintiff stated that he was ready and willing to return to work on the GRTWP, despite that he was still getting attacks. Although his strength had improved, it was not as it had been prior to December 2010.

[14] On June 16 or 17, 2013, the plaintiff learned via telephone call that he thinks came from someone at Benson, that there was no position for him. On and after that date, the plaintiff continued to attend his old store location weekly to see if any positions had opened up. His evidence was he was told that there were no positions available.

[15] It was not until the plaintiff received a letter from Benson dated April 10, 2014 that he understood that it was because Benson believed that the plaintiff had permanent physical restrictions that prevented him from performing the essential duties of any positions that might be available with Benson.

Benson determined that it could not accommodate the plaintiff in the GRTWP

[16] Kathy Leduc-Grignon gave evidence on behalf of Benson. She is a Benson employee and manages disability claims and short and long-term leaves of Benson employees. She referred to Benson’s printed job descriptions for counterperson and shipper/receiver, positions previously held by the plaintiff for which he was trained. Leduc-Grignon stated that these are standard job descriptions that are used for job postings and are provided to their insurance carrier for information regarding general tasks of the position. In April 2011, Benson provided Sun Life with a copy of the job description for counterperson.

[17] Based on these job descriptions, the physical demands expected of a counterperson is 60% standing, 35% walking and 5% sitting. For a shipper/receiver, 55% of the time is spent standing, 30% walking and 15% sitting. Leduc-Grignon believed that the job of a shipper/receiver was more physically demanding than that of counterperson.

[18] It was the evidence of Leduc-Grignon that Benson relies upon Sun Life to provide it with an evaluation of an employee on LTD, which is what happened here. By letter of May 8, 2013, Sun Life wrote to Leduc-Grignon to advise of the results of the FAE so that Benson could determine if it was able to accommodate the plaintiff in a modified position. In that letter, Sun Life reported that the FAE determined that the plaintiff was able to meet the demands of a light occupation category (lift up to 20 pounds occasionally, and 10 pounds on a frequent basis), and to meet the demands for reaching, stooping, kneeling and sitting. Sun Life advised that the FAE determined that the plaintiff was unable to meet his occupational demands under the categories of lifting, carrying, pushing/pulling and standing. Under the standing heading, Sun Life advised that the plaintiff “demonstrated the ability to perform the walking duties of his occupation on a rare basis (7% of the time).”

[19] Unfortunately, Sun Life’s letter omitted a category of assessment found in the FAE. As a result, Benson concluded, incorrectly, that the plaintiff could only stand for 7% of his work day. In fact, the FAE determined that he was able to stand for 27% of the time he spent in the assessment clinic, which did not meet the demands of the job that required him to stand for 60% of the day.

[20] Benson relied solely on Sun Life’s letter in considering whether it could accommodate the plaintiff’s disabilities.

[21] Leduc-Grignon stated that the plaintiff’s limitations in pushing and pulling and standing were the most difficult to accommodate. The job requires the employee to move auto parts on a regular basis and it was difficult to guarantee that the plaintiff would only occasionally be required to push and pull.

[22] Leduc-Grignon contacted Benson’s operations manager, Brian Crawford, asking him to call her to discuss return to work for the plaintiff. Crawford’s response was found in Leduc-Grignon’s handnote: “Brian Crawford: suggested 34 - 35 - 37 Dan [the plaintiff] be Floater”. Leduc-Grignon explained that the numbers refer to different store locations.

[23] Leduc-Grignon stated that the plaintiff’s ability to stand or walk only 7% of the time was a concern with respect to the GRTWP. All of Benson’s positions require employees to stand much more than 7% of the time.

[24] By letter of June 3, 2013, Sun Life wrote to Leduc-Grignon confirming that the goal of Sun Life was to facilitate the plaintiff’s return to work, when possible, and asking that Benson review the GRTWP with its site manager. Sun Life confirmed that a copy of the GRTWP would be provided to the plaintiff and to his attending physician for their review.

[25] Although she had no notes or other written record of it, Leduc-Grignon stated that she and Crawford discussed the GRTWP and concluded that it would be better to wait the five or six weeks when the plaintiff would be well enough to return to work full-time. Benson’s position was communicated to Sun Life via email of June 13, 2013. Following the email exchange between Benson and Sun Life on June 13 and 14, 2013, and a telephone discussion on June 18, 2013, Benson made it clear that they were not accepting the plaintiff’s return to work as a counterperson. Leduc-Grignon made two entries in her records after her note that she had advised Sun Life that Benson would not be taking the plaintiff back. The first reads, “Sun Life to stop payments as of July 21, 2013”, and the second, beside a date stamp of July 23, 2013, reads, “Will discuss with Legal Dept. to close file”.

[26] Leduc-Grignon stated that the decision on whether and how to modify duties to accommodate a disability is done by the operations manager, in this case that was Brian Crawford. Crawford was not called as a witness. Apart from the cryptic note, “Dan to Be floater”, Benson led no evidence as to what steps it took to consider or accommodate the plaintiff’s disability. It offered no evidence as to whether Benson, a large employer, had any other position that might be suitable to accommodate the plaintiff’s disabilities. Although Benson had the plaintiff’s authorization to communicate directly with his physicians, it relied entirely upon Sun Life to provide it with information concerning the plaintiff’s occupational abilities and limitations.

[27] Leduc-Grignon believed that the plaintiff would not be eager to return to the job of counterperson, but there was no evidence that Benson offered the plaintiff the floater position or any position. Leduc-Grignon acknowledged that in her conversations with the plaintiff he never said he would not accept the job of counterperson.

[28] Leduc-Grignon acknowledged that, as she was not the one to make the decision about accommodation, she could only guess at what Crawford did or considered when Benson was asked by Sun Life to accommodate the plaintiff. No one else from Benson was called to give evidence. There was an absence of evidence as to what Benson could have done to accommodate the plaintiff’s disabilities and as to why any accommodation would have caused undue hardship to Benson. Leduc-Grignon could not explain how being a floater would address Benson’s stated concerns that the job itself required the employee to stand for more than 7% of the day.

[29] In addition to the unsatisfactory communication between Sun Life and Benson, there was a lack of any meaningful communication between Benson and the plaintiff as to why Benson could not accommodate the plaintiff or allow him return to work on the GRTWP. The Court can only speculate on what might have happened if Benson had told the plaintiff that Benson understood that he could stand for only 7% of the workday, and for that reason could not accommodate the plaintiff’s disabilities. It is reasonable to conclude that had someone from Benson given the plaintiff some explanation for Benson’s refusal to take the plaintiff back, both parties might have discovered the error in the May 2013 Sun Life letter to Benson.

[30] The evidence shows that the plaintiff did not understand why it was that Benson did not have a position for him. His weekly visits to his old store, and his inquiries about a possible position, demonstrate that the plaintiff believed that the issue was one of job vacancy, not inability to accommodate his disabilities. The plaintiff’s evidence was that he kept contacting Benson because he wanted to know when a job would open up. He did not look elsewhere for a job, believing in good faith that he would get a job at Benson.

[31] The Sun Life letter to the plaintiff of June 18, 2013, was consistent with the plaintiff’s belief that he was not brought back to Benson because there were no job openings, not because Benson could not accommodate his disabilities. In a stand-alone paragraph in that letter, Sun Life states: “The availability of work does not affect the determination of totally disabled or total disability”.

[32] There is no evidence to show that the plaintiff knew or ought to have known that Benson was apparently basing its decision not to bring him back because it could not accommodate his disabilities that were erroneously described by Sun Life to Benson. At trial, Leduc-Grignon confirmed the she never told the plaintiff that he could not come back because of his walking and standing limitations.

[33] Sun Life terminated the LTD on July 22, 2013. After that date, the plaintiff received neither disability benefits nor employment income. He did not look for a new job elsewhere. While he continued to visit his old store, he never communicated directly to the human resources department at Benson nor, until April 2014, did he seek legal advice. For its part, Benson maintained the plaintiff on its list of employees and continued to offer him group benefits coverage until 2016. The plaintiff was required to make co-payments for that coverage, which he did until March 2014. There was no evidence as to whether the plaintiff received any benefits under that group benefits policy.

[34] Leduc-Grignon’s evidence was she wrote to the plaintiff on April 10, 2014, as a result of the “several telephone conversations” with him. She states that the purpose of her letter was to provide the plaintiff with “further information and reply” to his inquiries about resuming his duties as shipper/receiver with Benson. The letter goes on to say that Benson’s HR department received medical information on which it determined that it had no suitable positions for the plaintiff to assume in light of his continuing medical condition. The letter further said that the nature and extent of the plaintiff’s “permanent restrictions” did not permit the plaintiff to work in any position in Benson’s network, and that Benson had taken steps to inquire whether or not employment could be offered with some accommodations. However, Benson concluded that even if it modified the terms of employment and the duties, the plaintiff’s permanent restrictions would not allow him to perform “the essential duties of any of the positions available.”

[35] The April 10, 2014 letter concludes by advising the plaintiff that if he had new or additional information regarding the restrictions, Benson would be open to receiving them and assessing whether or not it could provide him with reasonable accommodation in light of his medical condition.

[36] Leduc-Grignon acknowledged that this letter was written with the assistance of Benson’s legal department. As set out above, Benson has failed to provide evidence upon which to reasonably conclude that it took any, or any sufficient, steps to determine whether or not Benson could accommodate the plaintiff’s disabilities. In the absence of that evidence, the Court cannot conclude that Benson discharged its obligation under the Code to try to accommodate the plaintiff. In addition, there is no evidence as to how any accommodation would have caused undue hardship to Benson.

[37] The letter of April 10, 2014, was the first time that Benson put in writing that, based on the medical information it had received, it considered the plaintiff to have permanent restrictions that would not allow him to perform the essential duties of any position available at Benson, even if Benson were to modify its terms of employment.

[38] The plaintiff immediately sought legal advice and began to look for a new job. The plaintiff says that by June 14, 2014, he had secured part-time employment doing essentially the same work he had been doing at Benson, with modest accommodation: he is allowed to rest when he needs to and has help with heavy lifting. The plaintiff argues that Benson could and should have offered him a similar accommodation. The plaintiff’s employment became full-time by September 2014.

[39] Benson says it was entitled to ask the plaintiff to provide medical information to show that he had recovered from whatever ailment had left him disabled from December 2010 to July 2013. That request was made in the April 10, 2014, letter but the plaintiff never provided any new or updated medical information that might cause Benson to revisit whether the plaintiff could perform the core tasks of his employment or whether he could do so with reasonable accommodation.

[40] There is merit to the positions of both parties. The plaintiff still suffers from the same condition that rendered him unable to work at Benson in December 2010. The plaintiff says that he has improved somewhat from December 2010 and that the fact that he has been able to work at a similar job since June 2014 is evidence of that. A difficulty faced by the plaintiff is that he has not put forward medical proof of his recovery. It would be open to the Court to conclude that, faced with no income, the plaintiff was determined to return to work, despite still suffering from the same condition that he and Sun Life believed rendered him unable to work as a shipper/receiver at Benson.

[41] The tragedy for both parties is that Benson would have been happy to have the plaintiff back: he had been a devoted and very hard-working employee. However, Benson believed that the plaintiff was unable to fulfil the core functions of his job. Benson came to that view because of the Sun Life letter that provided an incomplete summary of the FAE. Similarly, the plaintiff would have been happy to have returned to work at Benson. He had loved his job. The plaintiff believed that Benson was not taking him back because it did not have a position for him. He did not know that Benson did not take him back because it thought he was able to stand for only 7% of the workday.

[42] However, as between the plaintiff and Benson, I conclude that the onus was on Benson to provide the plaintiff with an explanation, in writing, as to why it could not offer him a job. Benson had been involved in assisting the plaintiff in his communications with Sun Life and the plaintiff could not have anticipated that Benson was relying only on the (incorrect) summary of the FAE it received from Sun Life. Given what it knew about the plaintiff and his disability claims, Benson owed the plaintiff a duty to provide him with a clear and written explanation regarding what it understood to be the plaintiff’s disabilities and why it was that Benson could not accommodate those disabilities. Not only was no such letter written, there is no evidence to show what accommodations Benson considered and why those accommodations would have caused it undue hardship.

[43] As between the plaintiff, a relatively unsophisticated high school graduate, and Benson, an employer that operates 70 stores in Ontario and Quebec and who had a specialized staff person in its human resources department, the responsibility lay with Benson to clearly tell the plaintiff, in writing, why it was that Benson could not implement the GRTWP. Benson did not do that.

[44] Benson’s position is that it never dismissed the plaintiff and, until long after this litigation began, continued to treat him as an employee and to provide coverage to him as an employee, but one who was on medical leave. Notwithstanding that it showed the plaintiff as an employee on its internal records, it is difficult to reconcile Benson’s position that it believed the plaintiff to be an employee, when Benson knew it would not offer any work to the plaintiff unless and until the plaintiff provided it with new medical information.

Duty to accommodate

[45] Benson relies on the decision of the Human Rights Tribunal of Ontario in Pazhaidam v. North York General Hospital, 2014 HRTO 984. Pazhaidam provides a very helpful analysis of the duty of an employer to accommodate an employee’s disability.

[46] Here, the parties agree that the plaintiff has a disability. Benson states that, based on its understanding of the plaintiff’s disability, it could not accommodate him. The plaintiff asserts that Benson determined that it could not accommodate the plaintiff because it relied on the Sun Life letter that wrongly summarized the FAE, and also because Leduc-Gagnon misread the Sun Life report and incorrectly concluded that the plaintiff’s disability was permanent. The evidence satisfies me that both assertions are accurate.

[47] The plaintiff asserts that Benson ought to have contacted Sun Life to ask for clarification of its report when under the heading “Standing” in its May 8, 2013 letter, Sun Life mentioned only the “walking duties” but made no reference to “standing”.

[48] Pazhaidam quotes from paras. 107-108 of ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649, a decision of the Divisional Court that set out the procedural and substantive requirements of an employer’s duty to accommodate:

The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.

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

[49] The Tribunal in Pazhaidam found that the duty of accommodation was a collaborative process and that the employee had an obligation to provide medical documentation about restrictions and the accommodation required. It quoted from an earlier decision of the Tribunal in Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5, in which the employer was found to have had a duty to request medical documentation to support the applicant’s desired accommodation and to advise the applicant that the medical documentation was insufficient to identify restrictions necessary to enable a return to work. The applicant was given an opportunity to identify restrictions needed to enable a return to work and did not do so. In ADGA, the Tribunal found that the applicant was asked on numerous occasions to provide updated information and told that he would not be considered for positions he had applied for until he provided that updated information.

[50] Applying those principles to this case, I conclude that Benson made a request for additional medical documentation in its letter of April 10, 2014. The plaintiff did not provide that additional medical information, but determined, instead, to look elsewhere for employment. The plaintiff has never provided Benson with updated medical information. The evidence at trial of what accommodation the plaintiff required comes solely from his testimony that since June 2014 he has been able to work at a job similar to his former job with Benson.

[51] I accept the principles as set out in ADGA and adopt the reasoning in Pazhaidam that the duty of accommodation is a “collaborative process”. That collaboration did not occur here: Benson knew that the plaintiff wanted to return to work in June 2013 and was ready and willing to try the GRTWP, but Benson did not allow it. It simply told Sun Life that it did not agree with the GRTWP and then told the plaintiff that it did not have a position for him. I do not impute any bad faith to Benson, but find that Benson failed to make sufficient inquiries of the plaintiff and of Sun Life about the type of accommodation that the plaintiff required. Contrary to the facts in ADGA, here Benson made no or insufficient inquiries. I conclude that Benson therefore failed to meet the procedural requirement of its obligation to accommodate. That failure led to Benson concluding that it could not accommodate the plaintiff.

[52] Having failed to meet its procedural duty, Benson was also unable to satisfy its substantive duty to assess the plaintiff’s accommodation needs. Moreover, Benson did not lead any evidence upon which the Court could find that Benson considered the plaintiff’s disability and considered ways in which to accommodate that disability or to conclude that accommodation would have caused undue hardship to Benson.

[53] Therefore, I find the plaintiff is entitled to damages under the Code.

Calculation of the plaintiff’s damages

[54] The plaintiff has asked for damages equal to his lost income from June 16, 2013, to April 10, 2014, as well as general damages for Benson’s breach. In the alternative, the plaintiff has asked for damages for wrongful dismissal calculated either from June 17, 2013, on which date Benson refused to allow the plaintiff to return to work, or from April 10, 2014, on which date Benson made it clear that it would not take the plaintiff back.

[55] The plaintiff also asks for general damages, including for the plaintiff’s “victimization and for his loss of the right to be free from discrimination”. In support of the latter head of damages, the plaintiff relies upon Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, in which the Court awarded damages of $20,000 against the employer that was found to have “orchestrated the dismissal and was disingenuous at various times both before and during termination” (at para. 90).

[56] The plaintiff also relies upon Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, in which the Court of Appeal increased the lower court’s damage award under the Code to $55,000. In making that award, the Court noted that the plaintiff was a 15-year employee who was forced to resign after she suddenly became completely deaf as a result of a virus. The employee was publicly belittled, harassed and isolated because of her disability. The employer denied any accommodation and took deliberate steps to increase the difficulties faced by the employee as a result of her not being able to hear.

[57] Strudwick and the cases reviewed by the Court in that decision are distinguishable from this case. Here, although Benson failed to meet its obligations to the plaintiff under the Code, the evidence does not support a finding that Benson intentionally or deliberately harmed the plaintiff. Despite that, the plaintiff argues that Benson’s behaviour does warrant punitive damages of $25,000 because: Benson decided to cancel the return to work and to notify the plaintiff on the day before he was to begin his GRTWP; Benson failed to give the plaintiff a “clear answer on his employment status” until April 2014, thereby leaving the plaintiff with no income for the 10 months during which he believed he could return to Benson; and the “untenable position” taken by Benson that the plaintiff is employed by Benson even as at the date of trial.

[58] There is merit to the arguments put forth by the plaintiff. As found above, Benson had a duty to communicate with the plaintiff in a timely and clear manner. It cannot be said that Benson did not understand its legal obligation – that is clearly revealed in the content of the letter of April 10, 2014. Moreover, Benson was aware that the plaintiff was in regular contact with his former store manager and making regular inquiries about when a position might come open. Therefore, Benson knew or ought to have known that the plaintiff did not understand why it was that there was no position “open” for him at Benson. Benson is not a small operation but one which has a dedicated human resources department, staffed with expertise in the management of employee disability claims. Benson failed to communicate to the plaintiff clearly and in a timely fashion, when it knew that he had no source of income. Until Benson’s letter of April 2014, the plaintiff held out hope and expected that he would return to Benson when a position became open. For all of the foregoing reasons, I conclude that the plaintiff is entitled to punitive damages pursuant to section 46.1(1)1 of the Code in the amount of $5,000.00.

[59] With respect to the former head of damage, in keeping with ADGA and Pazhaidam, I find that the plaintiff failed in his obligation to provide the medical documentation requested by Benson in his letter of April 10, 2014. While it was late in asking for it, Benson was entitled to the medical information it requested. The plaintiff chose not to provide it but to look elsewhere for work. Once the plaintiff had decided that he no longer wanted accommodation from, or to work for, Benson Benson’s obligation to him as an employer came to an end. Therefore, as of April 10, 2014, the plaintiff by his actions had terminated his employment relationship with Benson.

[60] Accordingly, I conclude that Benson is required to pay the plaintiff damages under section 46.1(1)2 of the Code in an amount equal to the income and benefits the plaintiff would have received had the GRTWP been implemented on June 17, 2013 and up to April 10, 2014. From and after that date, Benson was no longer required or entitled to treat the plaintiff as an employee.

[61] If the plaintiff is entitled to any statutory benefits based on the foregoing findings then they shall be paid, with interest, accruing from April 10, 2014.

[62] If the parties are not able to resolve the amount to be paid to the plaintiff, they may contact the trial co-ordinator to schedule a brief hearing before me.

Costs

[63] The plaintiff has been successful in his claim and is presumptively entitled to costs. At the close of the trial, the parties provided the Court with Bills of Costs, in sealed envelopes. The envelopes remain sealed. If the parties cannot agree on costs, then they may make written submissions, not to exceed three pages in length, plus any applicable offer to settle and time dockets. The Court will then unseal the parties’ Bills of Costs. The plaintiff’s submissions shall be delivered within 21 days of the date of these reasons and the defendant’s submissions shall be delivered 7 days after the service of the plaintiff’s submissions.

L. Sheard J.

Released: October 3, 2017

CITATION: Berger v. Benson Group Inc., 2017 ONSC 5896

COURT FILE NO.: 14-62380

DATE: 2017/10/03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Daniel Berger

Plaintiff

– and –

Benson Group Inc.

Defendant

REASONS FOR JUDGMENT

L. Sheard J.

Released: October 3, 2017