HomeMy WebLinkAbout2013-4296.Grievor.19-01-22 Decision
tCrown Employees Grievance Settlement
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règlement des griefs
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GSB#2013-4296; 2013-4297; 2014-2530; 2014-2531; 2014-2532; 2014-3380;
2014-3381; 2014-3382; 2014-4273; 2014-4274; 2014-4275
UNION#2014-0517-0004; 2014-0517-0005; 2014-0517-0020; 2014-0517-0021;
2014-0517-0022; 2014-0517-0038; 2014-0517-0039; 2014-0517-0040;
2014-5112-0273; 2014-5112-0274; 2014-5112-0275
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Grievor) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Gail Misra Arbitrator
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Labour Practice Group
Senior Counsel
HEARING
SUBMISSIONS
September 19, October 12, November 23
and December 17, 2018
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DECISION
[1] On July 5, 2017 a decision issued (the “July 2017 Decision”) regarding eleven
grievances filed on behalf of the Grievor. Although the parties had requested
that remedial issues be remitted back to them to try to resolve, this is the second
remedial decision that is issuing in this matter. This decision must be read in
conjunction with the July 2017 Decision as there are simply too many findings of
fact and law to reiterate in this supplementary award.
[2] The only outstanding issue at this juncture is the quantum of damages that are
payable to the Grievor as compensation for injury to her dignity, feelings and self-
respect, as per paragraph 278 (k) of the July 5, 2017 decision. A hearing was
convened on September 19, 2018 to address this issue. Despite their efforts, at
the hearing the parties were unable to agree on the quantum of damages. As
such, and in order to streamline the process, the parties were directed to make
written submissions regarding the quantum of human rights damages payable to
the Grievor.
[3] In reaching this decision I have reviewed the Employer’s submissions dated
October 12, 2018 and the Union’s submissions dated November 23, 2018. On
December 17, 2018 the Board was advised that the Employer would not be filing
any reply submissions. I have also reviewed the jurisprudence each party relied
upon.
SUBMISSIONS
[4] The Employer proposes that a human rights damage award in the range of
$10,000 to $20,000 would be appropriate on the facts of this case. It argues that
since there were no findings made of bad faith on the part of the Employer, and
since the Employer was not found to have conducted itself in a manner that was
vindictive or malicious, no punitive damages should be awarded.
[5] According to the Employer, the Board did not find that the Grievor was
particularly vulnerable or that the Employer’s actions had made her feel
victimized or humiliated. It asserts that while the Grievor’s health had been
impacted by the situation, there was no evidence that the Employer had acted so
offensively as to justify an extremely high damages award. Furthermore, the
Employer argues that the Board made no findings about the Grievor’s loss of
dignity or confidence.
[6] It argues that in most of the case law on which the Employer relies, the injury to
dignity, feelings and self-respect were comparable in nature to that of the
Grievor. The Employer disagrees with the Board’s favourable comparison in the
July 2017 Decision of the facts in this case to those in Prothero v. Ontario
(Community Safety and Correctional Services), 2016 HRTO 1481, a case that
was relied upon by the Union in its arguments on the merits. According to the
Employer, that decision is distinguishable on the grounds that the Human Rights
Tribunal found that the applicant had experienced harassment by the employer
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as well as by a personal respondent, who had been his supervisor. The
employer was ordered to pay general damages of $25,000, and the personal
respondent $2,500.
[7] The Employer argues that in Prothero there had been deliberate and intentional
harassment in the form of insensitive and disparaging comments and remarks
about the applicant by his supervisor. In this case, the Employer argues that the
Board found that the Grievor’s allegations of bullying, harassment, and retaliation
had not been made out. As such, it contends that the objective conduct of the
Employer in this case was not as malicious as that found in Prothero.
[8] The Employer submits that the circumstances in this case must be reviewed
against the legal considerations outlined in the jurisprudence it relies upon for
past damages awards, so that a rational assessment may be made. It maintains
that the seriousness of the Employer’s conduct in this case places it on the lower
end of the spectrum with respect to damages as the Grievor was off work for a
“very short period of time” and her lost wages were fully recovered. While the
Board found that the Employer’s actions were arbitrary and unreasonable, it is
argued that the Board did not find them to be malicious or in bad faith. The
Employer asserts that the goal of damages for injury to dignity, feelings and self-
respect is not to punish respondents, but is to be compensatory in nature and not
contain any punitive elements.
[9] The Employer relies on the following jurisprudence in support of its arguments:
ADGA Group Consultants Inc. v. Lane, (2008) 295 DLR (4th) 425 (Ont. Div. Ct.);
Arunachalam v. Best Buy Canada, 2010 HRTO 1880; Simpson v.
Commissionaires (Great Lakes), 2009 HRTO 1362; Thompson v. 1552754
Ontario Inc., 2013 HRTO 716; O’Brien v. Organic Works Inc., 2012 HRTO 457;
Rollick v. 1526597 Ontario Inc., 2014 HRTO 337; Lopetegui v. 680247 Ontario
Inc., 2009 HRTO 1248; and, National Grocers Co. v. UFCW, Local 1000A,
(2010) 198 LAC (4th) 367.
[10] In support of its proposition that the Grievor should be awarded damages in the
range of $30,000 to $40,000, the Union particularly relies on the Board’s
determination in the July 2017 Decision that “the type of discrimination that the
Grievor experienced falls closer to the high end of the spectrum with respect to
seriousness” (para. 275). The Union also relies on various factual and legal
determinations made in the July 2017 Decision, and argues that on the facts of
this case, when evaluated against the relevant jurisprudence, that would be the
appropriate range of damages.
[11] The Union relies on the following jurisprudence in support of its argument:
Arunachalam v. Best Buy Canada Ltd., 2010 HRTO 1880; Lane v. ADGA Group
Consultants Inc., 2007 HRTO 34; ADGA Group Consultants Inc. v. Lane, 2008
CanLII 39605 (Ont. Div. Ct.); Sanford v. Koop, 2005 HRTO 53; Prothero v ON
(MCSCS), 2016 HRTO 1481; Ontario (Ministry of Community Safety and
Correctional Services) and OPSEU (Hyland), 2014 CarswellOnt 550, 241 L.A.C.
(4th) 82 (GSB) (Petryshen); Ontario (Ministry of Economic Development,
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Employment and Infrastructure) and AMAPCEO (Bokhari), 2016 CarswellOnt
10907 (GSB) (Dissanayake); MacLeod v. Corporation of the County of Lambton,
2014 HRTO 1330; and, Ottawa-Carleton District School Board v. E.T.F.O., 2012
CarswellOnt 3485, 216 L.A.C. (4th) 333 (Armstrong).
[12] The Union provided a detailed argument regarding why this Grievor should
receive a damages award higher than some of the other cases it considers
comparable, and pointed to the specific Board findings that support that
argument.
[13] In addressing the Employer’s submissions, the Union states that those
submissions are without merit and undervalue the impacts its conduct had on the
Grievor, as reflected in the Board’s findings. In particular, the Union asserts that
the Employer’s submission that damages should be lower because there were no
findings that the employer’s actions were vindictive, malicious, or in bad faith is a
red herring. Based on the jurisprudence, it argues that damages are to be
assessed based on the objective and subjective seriousness of the conduct.
Damages are not designed to punish the wrongdoer but are meant to
compensate the aggrieved party for the violation of their rights.
[14] The Union points to various parts of the July 2017 Decision wherein the Board
found that the Grievor was in a particularly vulnerable state, contrary to the
Employer’s assertion that the Board had not found that the Grievor was
particularly vulnerable, or that the Employer’s actions made her feel victimized or
humiliated.
[15] Countering the Employer argument that the Grievor was not terminated from
employment, the Union points out that she was repeatedly threatened with
termination. The Union notes that the Employer offered no evidence as to why
the Grievor’s STSP claims were denied in 2014, as the decision-makers did not
testify. Thus, while the Employer argued that the three months that the Grievor
was left without any source of income was “relatively short”, the Union urges the
Board to find that is not a short period of time, as it is a quarter of a year without
income.
[16] The Union argues that the authorities it has provided are more comparable to the
facts in this case than are the authorities submitted by the Employer, and
provided an analysis of each case. It is unnecessary to outline those
submissions here. Based on the jurisprudence the Union relies upon, it submits
that the appropriate range of damages in this case is $30,000 to $40,000.
THE JULY 2017 DECISION
[17] In the July 2017 Decision I have outlined the facts and reasoning relevant to all of
the matters in dispute in this arbitration, and as noted earlier, that Decision
should be read in conjunction with this supplementary decision. For ease of
reference, a part of the Decision is excerpted here as it generally summarizes
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what was relied upon in making findings and orders regarding the human rights
issues:
[267] Notwithstanding the two findings above [that Mr. Dunscombe had
not bullied and harassed the Grievor as alleged in Grievance No. 2014-
0517-0039, and that there was no objective evidence that the Employer’s
treatment of the Grievor constituted retaliation for the Grievor’s workplace
advocacy for other employees and on health and safety issues], on the
basis of the evidence before me regarding the grievances in respect of the
Employer’s failure to accommodate the Grievor’s disability between
November 2013 and February 2014, in accordance with Dr. Catania’s
recommended restrictions, and the Employer’s refusal to grant the Grievor
access to her STSP credits in 2014, by which time it should have been
well aware of the Grievor’s mental health issues, I have found the
Employer’s representatives’ behaviour in this case to be egregious,
arbitrary, and closed-minded. In the circumstances, as outlined above, it
is not surprising that the Grievor was very upset, anxious, and frustrated
by how she was being treated. It is also not surprising that Dr. Catania, a
medical professional, was frustrated with how the Employer was dealing
with her medical opinions, and by extension, with her patient. She could
see the effect that it was having on the Grievor’s physical and mental
health. Dr. Catania repeatedly did her best to try to inform the Employer
of the Grievor’s health situation and what, in her professional opinion, was
required to assist the Grievor in getting better.
[268] In Prothero v. Ontario (Community Safety and Correctional
Services), 2016 HRTO 1481 (CanLII), the Human Rights Tribunal
addressed an application alleging discrimination and harassment in
respect of employment because of a disability. Mr. Prothero had been ill
and his doctor provided six medical notes over a three month period
indicating that he should be off work for various periods of time.
Management asked for additional information or for forms to be completed
to manage the applicant’s STSP claim, and the doctor provided 3 such
responses over a six month period. Management told the applicant at one
point that if he did not return to work by a certain date, his pay would be
cut off.
[269] In that case the Tribunal addressed the harassment allegation, and
found that Mr. Prothero’s manager’s conduct had amounted to
harassment, as it was a course of vexatious comment or conduct that was
known or ought reasonably to have been known to be unwelcome. In the
Tribunal’s view, an unnecessary number of letters had been sent
immediately upon the commencement of the applicant’s leave, with
unreasonable deadlines set for compliance, and there had been a threat
to interrupt the applicant’s income source, despite clear documentation
that showed he was off work for medical reasons and under a doctor’s
care (at para. 63).
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[270] In the review of the evidence in this case, I have outlined the
discourse between representatives of the Employer, the Grievor and Dr.
Catania, and I have found that management sent an unnecessary number
of letters and requests for more information in both the November 2013 to
February 2014, and April to May 2014 periods. In October 2014, the
Employer simply ignored Dr. Catania’s recommendation that the Grievor
have a graduated return to work starting with an 8 hour a day, five day a
week schedule. Unlike in the Prothero case where there was one threat to
that employee’s continued employment, in this case Employer
representatives repeatedly threatened to deem the Grievor to have
abandoned her position, which would have amounted to dismissal, if she
did not provide information sought, or return to work, by various dates. At
that juncture, the Grievor was a long service public employee, with around
20 years of service, so the prospect of losing her job would
understandably have been, and was in fact, frightening. On the basis of
the evidence before me, I have no trouble finding that representatives of
management acted in a manner that amounted to harassment, when they
knew or ought reasonably to have known that the Grievor suffered from a
mental disorder, which is a “disability” within the meaning of the Human
Rights Code.
[271] For reasons outlined earlier, I have also found that the Employer
failed in its Code duty to accommodate the Grievor’s disability when she
tried to return to work in late November 2013.
In the Prothero case, cited above, the Tribunal stated as follows in respect of
remedy for a breach of an applicant’s Code rights:
[110] An award of compensation for injury to dignity, feelings
and self-respect recognizes the inherent value of the right to
be free from discrimination and the experience of
victimization. In ADGA Group Consultants Inc. v. Lane, 2008
CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.),
the Divisional Court confirmed that the factors to be
considered in setting the amount of compensation include
humiliation, hurt feelings, the loss of self-respect, dignity and
confidence by the applicant, the experience of victimization,
the vulnerability of the applicant, and the seriousness of the
offensive treatment.
[111] In Arunachalam v. Best Buy Canada, 2010 HRTO
1880 (CanLII), the Tribunal stated as follows regarding the
jurisprudence dealing with awards for injury to dignity,
feelings and self-respect, at paragraphs 52-54:
(…) The Tribunal’s jurisprudence over the two years
since the new damages provision took effect has
primarily applied two criteria in making the global
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evaluation of the appropriate damages for injury to
dignity, feelings and self-respect: the objective
seriousness of the conduct and the effect on the
particular applicant who experienced discrimination:
see, in particular, Seguin v. Great Blue Heron Charity
Casino, 2009 HRTO 940 (CanLII) at para. 16.
The first criterion recognizes that injury to dignity,
feelings, and self- respect is generally more serious
depending, objectively, upon what occurred. For
example, dismissal from employment for
discriminatory reasons usually affects dignity more
than a comment made on one occasion. Losing long-
term employment because of discrimination is
typically more harmful than losing a new job. The
more prolonged, hurtful, and serious harassing
comments are, the greater the injury to dignity,
feelings and self-respect.
The second criterion recognizes the applicant’s
particular experience in response to the
discrimination. Damages will be generally at the high
end of the relevant range when the applicant has
experienced particular emotional difficulties as a
result of the event, and when his or her particular
circumstances make the effects particularly serious.
Some of the relevant considerations in relation to this
factor are discussed in Sanford v. Koop, 2005 HRTO
53 (CanLII), at paras. 34-38.
[272] Dr. Catania’s medical evidence, along with the Grievor’s
evidence, establish that the Employer’s refusal to accept the
Grievor’s doctor’s medical notes and reports, to return her to work
when she had been cleared to do so, its repeated requests for the
Grievor to return to work or face a finding of abandonment of her
job, and its refusal to let her access her STSP credits when she
needed them, had a severe impact on the Grievor. The Grievor was
already in an emotionally fragile state as a result of her medical and
mental health issues, and additionally, by November 2013, had
been dealing with both her parents’ failing health, the death of her
father, and then in December 2013, the death of her mother.
[273] I accept that the Employer’s actions caused the Grievor to
be much more anxious, upset, and fearful about her employment
situation than she appears to have been in the years previous. I
find that the Grievor returned to work in February 2014 without all of
the accommodations she needed because of her need for an
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income, and due to her belief that no matter what her doctor
provided, the Employer was not going to accommodate her with her
doctor’s restrictions. I further find that there is ample evidence of
the physical and mental health impact that the Employer’s actions
had on the Grievor including in the acute state of her
trichotillomania, vomiting, bowel upsets, extreme anxiety about
driving, as well as the manifestations of her poor mental health in
the actions she was taking such as writing to high levels of
management, the Minister, a Member of the Legislature, and
Sheridan College officials.
[274] Dr. Catania’s medical opinions about the Grievor’s mental
illness were ultimately confirmed by the psychiatrist, Dr. Dhaliwal,
and the two psychologists, Drs. Simrat Verraich and Sonia Singh,
who assessed and treated the Grievor in 2015, and whose
respective reports the Employer accepted at the hearing. Dr.
Rubenstein was not called to testify and defend his 2014 report. I
have accepted and preferred the medical evidence proffered by the
Union in this case.
[275] As did the Tribunal in Prothero, and for the reasons outlined
above, I find that the type of discrimination that the Grievor
experienced falls closer to the high end of the spectrum with
respect to seriousness, and find that the facts of this case support
an award of monetary compensation for injury to dignity, feelings
and self-respect.
[276] Since the parties have requested that no specific damages
award be made at this time, and that they be given the opportunity
to work on remedial issues between themselves, I will reserve on
the quantum of such an award. Should the parties be unable to
work out any of the remedial issues within 60 days of the date of
this decision, or such date as is mutually agreeable, I will remain
seized to address such matters.
SUMMARY
[277] I note that counsel for the Employer made very able
submissions in this case about why the Grievor’s managers would
have had a number of good reasons to have suspected that she
was abusing sick leave, including that in 2012 and 2013 the Grievor
had used her full complement of STSP credits; that only when her
STSP credits ran out, or when WSIB denied her claims, the Grievor
would be cleared by her doctor to return to work; that Dr. Catania
indicated the Grievor should return to work on 8 hour shifts,
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Monday to Friday, but that there was insufficient reason for the
weekday shift schedule; and that again in April 2014, when the
Grievor had worked for 20 consecutive days, she went off work
again and claimed STSP credits.
[278] The problem ultimately was that no one from management
who had been involved in exercising their discretion to deny the
STSP credit use, or the accommodations sought, testified, so I did
not have the benefit of hearing what they in fact considered. In any
event, in this case, what was clear from the evidence was that the
Grievor had been suffering from health, and in particular mental
health, problems for years. So the fact that she had taken so much
sick leave over the past number of years, while perhaps appearing
suspicious to management, was based on her deteriorating
health.
The following are my findings in respect of the eleven grievances before
me:
a) I find that Grievance No. 2014-0517-0004, claiming that the
Employer had the Grievor off work on sick time without pay when
she should have been accommodated in accordance with her
doctor’s note, has been made out, and that the Grievor should be
paid her full salary from November 27, 2013 until her return to work
on February 17, 2014, less any period for which she may have
received payment from the Employer in any other form (e.g.
bereavement leave, vacation pay, etc.).
b) I find that Grievance No. 2014-0517-0005, claiming, among other
things, that the Employer’s refusal to accommodate the Grievor in
accordance with her doctor’s note of November 27, 2013 was
discriminatory and a breach of the Employer’s duty to
accommodate the Grievor’s disability under section 17 of
the Human Rights Code, has been made out.
c) In respect of Grievance No. 2014-0517-0038, the Grievance is
upheld in part, to the extent that the Grievor may not have been
paid for the first six days of her STSP use in 2014, when she
should have been paid at 100% of her wages, and thereafter, at the
75% rate for October 1, 2, and 3, 2014, or for any other period that
the parties may find in 2014, I direct that she be paid any monies
owing.
d) Grievance Nos. 2014-0517-0020 and 2014-0517-0021 are upheld
and I direct that the Grievor should be permitted to access the
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STSP credits to which she was entitled in 2014. Those credits are
to be paid at the 75% of wages rate, subject also to the finding
above regarding Grievance No. 2014-0517-0038.
e) Grievance No. 2014-0517-0022 is dismissed.
f) Grievance No. 2014-0517-0039 is dismissed.
g) Grievance No. 2014-0517-0040 is upheld and I order that the
Employer compensate the Grievor for payments she made for
doctor’s notes and reports obtained between December 2013 and
February 2014, and, after the first note from Dr. Catania in early
April 2014, for the remainder of the medical notes required between
April and May 2014.
h) Grievance No. 2014-5112-0273 is dismissed.
i) Grievance No. 2014-5112-0274 is upheld. I have found that the
Grievor should have been permitted to utilize the 21 remaining
STSP credits she had for 2014, no matter what days are covered
by those credits. It is likely that those credits should have been
applied to the period up to early May 2014 when she was granted
STSP credit access, but I leave that to the parties to determine.
j) Grievance No. 2014-5112-0275 is dismissed.
k) As did the Tribunal in Prothero, cited above, and for the reasons
outlined above, I find that the type of discrimination that the Grievor
experienced falls closer to the high end of the spectrum with
respect to seriousness, and find that the facts of this case support
an award of monetary compensation for injury to dignity, feelings
and self-respect.
HUMAN RIGHTS DAMAGES DECISION
[18] It is undisputed that the Human Rights Code (“Code”) is incorporated into the
parties’ collective agreement, and that the Board has the jurisdiction to interpret
and apply the Code. Section 45.2 of the Code outlines the Tribunal’s remedial
powers, and, for the purposes of this case, the relevant portion of the section
provides as follows:
45.2 (1) On an application under section 34, the Tribunal may make one
or more of the following orders if the Tribunal determines that a party to
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the application has infringed a right under Part 1 of another party to the
application:
1. An order directing the party who infringed the right to pay
monetary compensation to the party whose right was
infringed for loss arising out of the infringement, including
compensation for injury to dignity, feelings and self-respect.
…
[19] The ADGA Divisional Court decision, cited above, sets out the basic framework
for the awarding of general damages where a human rights breach has been
established. That decision was made before amendments to the Code and the
remedial authority of the Human Rights Tribunal. Ferrier J., wrote for the Court
as follows:
153. This court has recognized that there is no ceiling on awards of
general damages under the Code. Furthermore, Human Rights Tribunals
must ensure that the quantum of general damages is not set too low,
since doing so would trivialize the social importance of the Code by
effectively creating a “licence fee” to discriminate: Shelter Corp., supra, at
para. 43; Sanford v. Koop, [2005] O.H.R.T.D. No. 53, 2005 HRTO 53
(H.R.T.), at par. 34; Cameron, supra, at para. 18526.
154. Among the factors that Tribunals should consider when awarding
general damages are 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: Sanford, supra, at para. 35; Shelter Corp., supra, at para 43.
[20] In Arunachalam, cited above, the Human Rights Tribunal noted that amendments
made to the damages provisions of the Code (in 2008) removed the need to
differentiate between general damages for intangible losses and damage awards
for mental anguish, and that an adjudicator must make a general evaluation of
the circumstances of the Code violation and its effects to determine the
appropriate monetary compensation for injury to dignity, feelings and self-respect
(para. 45).
[21] In the July 2017 Decision excerpt reproduced above, I have already outlined the
criteria the Tribunal outlined in the Arunachalam decision that are to be applied in
evaluating appropriate damages. Thus, when assessing the quantum of general
damages, it is necessary to look at the circumstances of the case at issue by
examining: (1) the objective seriousness of the conduct, and; (2) the effect on the
particular applicant who experienced discrimination.
[22] The Tribunal in Arunachalam reiterated the Divisional Court’s comment in ADGA,
cited above, that “damages under the Code must not be so low as to trivialize the
social importance of the Code by effectively creating a license fee to
discriminate” (para. 49). It is noteworthy that in ADGA (at para. 136) the Court
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quoted with approval from an earlier case (Cameron v. Nel-Gor Castle Nursing
Home and Nelson (1984), 5 C.H.R.R. D/2170 (Ont. Bd. Inq.), which stated that “it
is necessary to give true compensation to a complainant to meet the broader
policy objectives of the Code: it is important that damage awards not trivialize or
diminish respect for the public policy declared in the Human Rights Code”. In
ADGA, the Tribunal award of $35,000 for general damages and $10,000 for
damages for mental anguish were upheld by the Divisional Court as reasonable.
[23] The Union relies on a number of decisions in which either the Tribunal or this
Board have in the recent past awarded applicants and grievors human rights
damages of between $20,000 and $30,000 for injury to dignity, feelings and self-
respect.
[24] In my view the Tribunal’s decision in Prothero, cited above, addressed facts that
were the closest to those before me, and I have already explained why in the
July 2017 Decision. However, since the Employer disagrees with the Board that
the facts in Prothero are similar enough to warrant a damage award in that
range, it will be necessary to review the jurisprudence it relies upon in order to
show why the Employer’s jurisprudence is simply not comparable to the case
before me.
[25] In Simpson v. Commissionaires (Great Lakes), cited above, the HRTO expressly
found that while there was a failure of the duty to accommodate, there was no
harassment involved in that case (para. 50). The Board in this matter has found
that the Grievor suffered from a disability as defined by the Code (para. 200, July
2017 Decision); that the Employer was in breach of its duty to accommodate the
Grievor’s disability (paras. 212 to 220, and para. 271, July 2017 Decision); and
that the Employer’s conduct constituted harassment (paras. 259, 270).
Furthermore, the conduct in Simpson did not involve the same sort of employer
course of conduct as found in this instance, in terms of the individual being
badgered for medical certificates and threatened with termination of employment.
The Grievor was a long service employee who was repeatedly threatened with
termination of employment, and she was asked an inordinate number of times to
produce medical certificates and medical explanations, which were then ignored
repeatedly, all of which I have found had a profound effect on her mental and
physical health. Based on the significant factual differences between Simpson
and the situation before me, I have not found that decision helpful.
[26] The Employer relies on Thompson v. 1552754 Ontario Inc., cited above.
However, in my review of that decision, it is not comparable to the case before
me. In Thompson the impacts on the applicant that led the Tribunal to award
$12,500 in damages were that the applicant was forced off work due to her
disability, and had had difficulties finding alternate work in her small community
(paras. 45-48, and 95-99). The applicant did not sustain the same prolonged
course of harassment, nor threats to end a long-service career. That applicant
had worked for her employer in a part time capacity for less than two years by
the time her employer refused to put her back on a work schedule unless she
produced a specific type of medical note.
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[27] In O’Brien v. Organic Works Inc., cited above, the applicant was awarded
$13,000 in damages. However, that case involved an employee with 7 months of
service, who the employer would not return to work after he had suffered a
compensable workplace accident. In that case there was no finding of
harassment. As well, the Tribunal found that the evidence regarding the
subjective impacts on the grievor was “sparser than the evidence given on the
impact of the accident itself” (para 48). There was in fact no medical evidence
concerning the impact on the applicant in that case. As has been outlined in
substantial detail in the July 2017 Decision, there was substantial and credible
medical evidence in this case, and especially with respect to the physical and
mental health impacts of the Employer’s actions on the Grievor. O’Brien is
simply not a case comparable to the one before me.
[28] Although the Tribunal awarded $15,000 in damages in Rollick v. 1526597
Ontario Inc., cited above, that case is not comparable for a number of reasons,
including that there was no finding of harassment, and no evidence of sustained
and repeated conduct similar to that experienced by the Grievor. Furthermore,
the applicant in that case was an employee with 2.5 years of service, far shorter
than the Grievor’s 20 years at the time she was being threatened repeatedly with
termination of employment. As well, there was no specific medical evidence of
the impact on the applicant in Rollick (para. 25), as compared to the large volume
of medical evidence of the physical and mental health impacts that the
Employer’s actions had on the Grievor.
[29] Lopetegui v. 680247 Ontario, cited above, also involved a shorter-service
employee (approximately 3.5 years). In that case the employer would not accept
the applicant’s three medical notes, and was unwilling to accommodate him after
injuries sustained in a serious automobile accident kept him off work for about
two months. Furthermore, there does not appear to have been any medical
evidence before the Tribunal regarding subjective impacts on the applicant. Yet,
I note that the Tribunal awarded $20,000 in damages in Lopetegui despite the
lack of medical evidence to support findings about the subjective impacts on the
individual. That case serves as a useful touchstone when compared to the facts
regarding the case before me, but is not comparable to it.
[30] The Employer relied on the decision in National Grocers Co. v. UFCW, Local
1000A, cited above. In that case, after repeated requests to the grievor for
medical information, the employer terminated his employment without sending
him for an independent medical examination, as had been recommended by the
employer’s own occupational health physician. The arbitrator found that the
employer had been unsympathetic and aggressive in its responses to the
grievor’s assertions of his disability over an extended period of time, and that had
resulted in the employee suffering anxiety, stress and general psychological
trauma.
[31] While the Employer submission suggests that the arbitrator in that case awarded
a grievor $20,000 for injury to dignity, feelings and self-respect after the employer
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had failed to accommodate an employee’s disability, that is not in fact the full
award made. In that instance, Arbitrator Armstrong awarded $25,000 in general
damages because the employer had unjustly deprived the grievor of the
opportunity to have his capacity to perform his duties independently evaluated,
and $20,000 in compensatory damages for the psychological impacts on the
grievor as a result of how he was treated by the employer because of his
disability. The grievor was therefore awarded a total of $45,000 in damages,
even though there was no finding of harassment, and the employee involved in
that case was another relatively short-service employee, with just seven years of
employment with that employer. The grievor in National Grocers had lost his
employment.
[32] While there are some strong parallels between the facts of the two cases, there
remain differences in that the Grievor was repeatedly threatened with termination
of her long employment, and although she had in fact provided plenty of medical
support for her condition and accommodation needs, the Employer ignored Dr.
Catania’s reports.
[33] The Employer submitted that because there were no findings that the Employer’s
representatives had acted in bad faith, or in a vindictive or malicious manner, that
there was no basis for punitive damages. I have no authority to make a punitive
damages award. I agree with the Union that the human rights damages that it is
seeking are not designed to punish the wrongdoer but are meant to compensate
the aggrieved party for the violation of her human rights, and in accordance with
the jurisprudence, those damages are to be assessed based on the objective
and subjective seriousness of the Employer’s conduct.
[34] In the case before me I have found that the Grievor suffered from a disability as
defined by the Code; that the Employer failed to accommodate her disability
between November 2013 and February 2014; failed to allow her to access her
STSP credits; and repeatedly requested medical information which it then simply
ignored. On the basis of the extensive evidence before me, I have found that the
Employer’s representatives’ behaviour was “egregious, arbitrary, and closed-
minded” (para. 267).
[35] In particular, I have found on the evidence that management sent an
unnecessary number of letters and requests for more information, and ignored
Dr. Catania’s recommendations for accommodation (para. 270).
[36] As noted in para. 270 of the July 2017 Decision, the Grievor was an employee
with about 20 years of service with this Employer when its representatives
repeatedly threatened to deem her to have abandoned her position, which would
have amounted to dismissal, if she did not provide the information they sought, or
if she did not return to work by certain dates. I have found that the
representatives of the Employer acted in a manner that amounted to harassment,
when they knew or ought reasonably to have known that the Grievor suffered
from a mental disorder, and a disability.
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[37] Contrary to the Employer’s submission, on the evidence before me I have found
that the Employer’s failure to accommodate the Grievor and return her to work,
and its treatment of the Grievor over the periods in question, had a corrosive
effect on her. The Grievor was left without any income for three months, and as
outlined in the July 2017 Decision, there was evidence that she had been, and
was, suffering significant stress (paras. 222, 223, 272, 273). I am also satisfied
that there is ample medical evidence of the physical and mental health impacts
that the Employer’s actions had on the Grievor (paras. 273-274).
[38] While I have reviewed the jurisprudence relied upon by the Union, I remain of the
view that the Prothero decision, cited above, has the closest parallels to this
case. I agree with the Union that the facts before me establish that this Grievor
has suffered more seriously than did the applicant in that case. Despite the
employer’s threats, Mr. Prothero did not lose access to his STSP credits. In the
instant matter the Grievor was not only threatened with the termination of her
STSP payments, she was actually denied the ability to return to work, and was
without any income for a three month period, and later was denied the use of her
STSP credits in 2014.
[39] The Grievor, unlike Mr. Prothero, was also repeatedly threatened with the
effective termination of her employment. For a long service employee like the
Grievor, that was a significant and frightening threat to an employee suffering
with mental health challenges, and I accept the Union’s assertion that it is
objectively more serious and warrants a higher damages award.
[40] With respect to the second criterion to be considered when evaluating what the
appropriate damages for injury to dignity, feelings and self-respect should be, I
must consider the effect that the Employer’s conduct had on the Grievor, who
had experienced the discrimination based on disability (Arunachalam, cited
above, para. 52). In particular, as noted in Arunachalam at para. 54,
consideration must be given to the individual’s particular experience in response
to the discrimination, and damages will generally be at the high end of the
relevant range when the applicant has experienced particular emotional
difficulties and serious effects as a result of the treatment they have endured.
[41] In Prothero, the Tribunal concluded that the “harassment the applicant
experienced had a severe impact on him”, and “caused the applicant to be fearful
and apprehensive about losing his family’s sole source of income” (para. 112).
Mr. Prothero was dealing with an ill family member, his wife (para. 113), and had
to be seen in a Hospital ER on an emergency basis. The HRTO concluded that
the employer’s actions caused Mr. Prothero “a high level of anxiety, upset and
trauma”.
[42] In this case I have found that the Employer’s actions “had a severe impact on the
Grievor” (para. 272), causing her to be “much more anxious, upset, and fearful
about her employment situation” (para. 273), and “exacerbated her anxiety at a
difficult time in the Grievor’s medical and personal life” (para. 223), which
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included the terminal illness and passing of her parents within a short period of
time (para. 272).
[43] The specific impacts on the Grievor included an “acute state of her
trichotillomania, vomiting, bowel upsets, extreme anxiety about driving, as well as
the manifestations of her poor mental health in the actions she was taking” (para.
273).
[44] I am satisfied that the harassment and discrimination the Grievor suffered was
objectively more serious and severe than in the Prothero case, and that the
subjective impact on the Grievor was severe and protracted. As such, the
damages award should be higher than that awarded to Mr. Prothero.
[45] In Hyland, cited above, this Board awarded a grievor a cumulative amount of
$30,000 in damages in 2014. On the facts of the Hyland case, the grievor
suffered from asthma and had a particular sensitivity to cigarette smoke. There
was only one unit at the employer’s facility that was guaranteed as a smoke-free
unit, and the Grievor was repeatedly refused assignment to that unit. The
employer was unable or unwilling to modify the grievor’s schedule in order to
facilitate assignment to that unit. As a result of exposure to smoke, the grievor’s
illness was aggravated which caused him to be absent from work from
September 13, 2010 until March 28, 2011.
[46] The Board concluded that Mr. Hyland experienced humiliation, hurt feelings, a
loss of dignity and victimization, and ordered a total of $30,000 in general
damages to compensate the grievor for the violation of his rights and the impacts
it had upon him.
[47] I agree with the Union that the circumstances in this case are objectively and
subjectively more serious than in the Hyland case. With regard to the objective
criteria, Mr. Hyland was never denied income or benefits, and did not face threats
to his continued employment or income. The Grievor in this case faced threats
and actual loss of income and benefits, as well as repeated threats that her
employment would be terminated. This is prima facie objectively more serious
than what was suffered in the Hyland case.
[48] In Hyland, the Board concluded that the grievor suffered “hurt feelings, a loss of
dignity and victimization” (para. 48) but offered no specific outline of the impacts
on that grievor. The impacts on the Grievor in this case were visceral and
caused a great deal of stress and anxiety for someone who was already dealing
with mental health issues. The subjective impacts on the Grievor have been
outlined earlier, and I am satisfied that they were more serious and severe than
those experienced in Hyland. As such, given that both the objective and
subjective elements of the case before me are more serious, the damages award
should be higher.
[49] The Board’s decision in Bokhari, cited above, awarded the grievor in that
instance $25,000 in damages for injury to feelings, dignity and self-respect. In
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some respects that case was similar to the one before me in that despite having
supporting medical documents, and the recommendation of the grievor’s
physician, the employer did not provide any accommodation for his health issues.
Of more significance however in Bokhari is that the employer surplussed the
grievor, and the Board found that the employer had done so in bad faith in order
to remove an employee it felt was difficult to manage. However, unlike the
present case, that grievor never suffered any loss of income.
[50] A particularly glaring difference between these cases is that the medical
evidence in Bokhari was not found to be helpful to the Board in assessing the
impact of the employer’s conduct on that grievor. Nonetheless, the Board
awarded him $25,000 in damages.
[51] Having regard to all of the evidence before me, having reviewed the damages
jurisprudence of both the Tribunal and this Board, and for reasons outlined
above, in my view the appropriate award of damages for injury to the Grievor’s
dignity, feelings and self-respect is $35,000. The Employer is directed to pay the
Grievor $35,000 as monetary compensation for injury to dignity, feelings and self-
respect within 45 days of the date of this decision.
[52] I remain seized in the event that there are any further issues arising out of the
decisions issued in this matter.
Dated at Toronto, Ontario this 22nd day of January, 2019.
“Gail Misra”
Gail Misra, Arbitrator