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April 9, 2013

Current Trends and Hazards in the Ontario Human Rights Tribunal

Presented at MB's Employment Law Seminar


In a recent Human Rights Tribunal decision,1 the Applicant, Timothy Pritchard, filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of disability. The Applicant named the Commissionaires Great Lakes (the "Commissionaires"), as well as members of the Commissionaires' executive (the "Executive") as respondents.

The Applicant was employed as Director of Professional Services with the Commissionaires since March 10, 2008. The Applicant alleged that he was diagnosed with severe arthritis. In or around May 6, 2010, the Applicant advised his employer that he would be having hip replacement surgery on June 16, 2010, and that he would subsequently require 8 to 12 weeks off of work for recovery.

On June 9, 2010, approximately one month after advising his employer of his upcoming hip replacement surgery and four days prior to his scheduled surgery, the Applicant was advised that his employment with the Commissionaires was terminated. The Applicant believed “the respondents did not want to pay him during his sick time and terminated his employment as a cost saving measure”. As such, the Applicant alleged that his termination was related to his hip replacement surgery and that his termination was a defacto method by the Commissionaires to avoid paying sick pay or medical leave.

In the Response to the Application, the Respondents argued that the Applicant's duties included a “new and untested venture” insofar as the Applicant's duties encapsulated the responsibility for the Commissionaires' training academy. Moreover, “based on the uncertainty of this venture, the Applicant's “letter of appointment” was clearly crafted to allow either party to end the employment relationship on short notice”. The Respondents further submitted that the Applicant's work product was “less than expected”; the Applicant's job requirements were changed over time; the Applicant's position was made redundant; business was declining; and that their decision to terminate the Applicant was based upon the restructuring of various functions and departments as evidenced by the elimination of three positions. The Respondents also illuminated the fact that two other staff of Commissionaires required hip surgeries and that the employment of both employees was not terminated.

...various evidence suggested that the Respondents subsequently “took steps to fill a very similar position”.

Following the Respondent's decision to terminate the Applicant, various evidence suggested that the Respondents subsequently “took steps to fill a very similar position”.

The Law

The Human Rights Tribunal of Ontario (“HRTO”) deferred to the relevant Code provisions as follows:

Relevant Code provisions

[28] Sections 1 and 9 of the Code state as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of... disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

[29] In addition, "disability" is defined in s. 10(1)(a) of the Code, in part, as follows:

10. (1)(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device...

Analysis

The extent to which the Applicant had a disability within the meaning of the Code was not a contentious issue in Pritchard. The HRTO was satisfied that the Applicant's medical condition requiring him to have hip replacement surgery constituted a disability within the meaning of the Code.

With respect to whether the Applicant was subjected to discrimination on the basis of his medical condition when he was terminated, the HRTO found that “the Applicant's pending disability-related absence from work was a factor in the termination of his employment”. In paragraph 39, the HRTO stated the following:

[39] In my view, the decision to terminate the applicant's employment, and the communication of that decision to him, appears to have occurred with considerable haste, and his employment was terminated approximately five business days before his scheduled hip replacement surgery. At that point, the applicant had been employed by the Commissionaires for over two years. In addition, the respondents do not appear to have taken steps to find a replacement for the applicant's primary responsibility of selling training until more than 3.5 months after his employment was terminated, and I note that this occurred during a time after which Ms. Courser testified the executive was focusing more on sales in order to improve business. I also note that, while the Commissionaires paid the applicant 3 months' severance in accordance with the terms of his Offer of Employment, they were not required to pay him for over 4 weeks of accumulated sick days that he had proposed to use while recovering from his surgery, when they terminated his employment. Although Ms. Courser denied that the applicant's hip replacement surgery was a factor in the decision to eliminate his position, she testified that she was aware the applicant needed a hip replacement, and the executive team talked about it and were aware he would need time off. In my view, there is sufficient evidence to draw an inference, on a balance of probabilities, that the applicant's pending time off work for surgery was a factor in the decision to terminate his employment.

[42]... In the circumstances, I find the Commissionaires, and not the individual respondents, to be liable for the violation of the Code when the applicant's employment was terminated.

Remedy: Injury to Dignity, Feelings and Self-Respect

"...including compensation and restitution for injury to dignity, feelings and self-respect”.

Pursuant to the HRTO's remedial powers as set out in s. 45.2(1) of the Code, the HRTO has the power “to order monetary compensation and restitution for loss arising out of the infringement, including compensation and restitution for injury to dignity, feelings and self-respect”.

In Pritchard, the Applicant sought compensation with respect to “mental anguish, reputation damage, family stress and embarrassment”, among other things.

In assessing the appropriate remedy, the HRTO provided a genealogy regarding the evolution of what used to be referred to as “mental anguish”, and its respective criteria. In concluding that the Applicant be awarded $10,000 “for the impact of the discriminatory termination” of his employment “on the applicant's dignity, feelings and self-respect”, the HRTO delineated the following criteria in making such determination:


Injury to dignity, feelings and self-respect

[47]... Although the remedial provisions of the Code no longer refer to "mental anguish", the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect...The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), (2008) 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment [emphasis added].

[48] The applicant submits in his Application that, as a result of the respondents terminating his employment, he was not able to fully and properly look for work during his convalescence. He submits that this placed him under a significant financial burden, and created a significantly high stress level on him and his family, and left him with a feeling of embarrassment, despite knowing that he did nothing wrong. It was also apparent from the applicant's demeanor, when giving evidence at the hearing about the dismissal, that the termination of his employment had upset him.

[49] I accept that the applicant felt embarrassed when his employment was terminated. I also accept that it would have been stressful for the applicant to have lost his employment approximately five working days prior to his hip replacement surgery, and that his recovery from surgery would have impacted his ability to search for other employment. In all of the circumstances, and considering that the applicant ultimately did find and commence alternate employment at the end of his convalescence, I find an award of $10,000 to be appropriate compensation for the impact of the discriminatory termination of his employment, attributable to the Commissionaires, on the applicant's dignity, feelings and self-respect [emphasis added].


1 Pritchard v. Commissionaires Great Lakes, 2012 HRTO 1466 (CanLii)


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