Friday, June 24, 2011

Ontario Human Rights Tribunal Digest - May 1 - May 30, 2011

Each month, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.


In this epic Application, Heather Knibbs and Barbara Long, two bartenders working for a gun club, alleged that they had been discriminated against by the Respondent employer, contrary to the Ontario Human Rights Code.

Heather Knibbs alleged that she had been discriminated against on the basis of disability and that the Respondents had reprised against her for asserting her rights under the Code, and for commencing a human rights proceeding.

More specifically, Ms. Knibbs identified the following specific acts, which she alleged constituted discrimination on the basis of disability or reprisal:
  1. While she was on a medical leave recommended by her doctor (because of problems with depression, diabetes, and cholesterol, partly brought on because of her father's death), she was demoted from full-time to part-time;
  2. During her medical leave, the Respondents published confidential medical information (revealing her health problems) about her in the workplace, exacerbating her depression;
  3. The Respondents sent her a letter stating that she could not return to work until she was fully recovered and symptom-free;
  4. After she sent a letter from her legal counsel advising the Respondents that they were in breach of the Code, the Respondents retaliated by falsely accusing her of misconduct, including theft of money and misbehaviour pre-leave that had resulted in five complaints being launched against her apparently by fellow staff members;
  5. The Respondents sent a letter to the police in connection with the missing money, falsely suggesting that the Applicant was involved, and maligning her character; and
  6. She was laid off while on a bona fide medical leave.
Barbara Long alleged that she had been discriminated against on the basis of sex and on the basis of her association with Ms. Heather Knibbs, a person who she alleged could be identified by a prohibited ground of discrimination, namely disability (or perceived disability).

More specifically, Ms. Long alleged:
  1. After she took a medical leave for an injury she sustained at her other job and became pregnant, the Respondents prevented her from performing her regular duties and reduced her work hours;
  2. The Respondents continued to prevent her from performing her regular duties and working her regular hours even after she provided the Respondent with a doctor's note stating that she was capable of working her pre-pregnancy hours; and
  3. Because of her relationship with Ms. Knibbs, the Respondents falsely accused her of stealing money and suspended her, delivered a letter to the police making unfounded allegations against her in addition to Ms. Knibbs.
The Respondent, in its submissions denied that any discrimination or reprisals had taken place, stating that all of its decisions with respect to Ms. Knibbs and Ms. Long had been properly taken, based on operational needs or were appropriate in the circumstances, and, in any event, always in accordance with the Code.

Heather Knibbs' Application

Issue #1: Did the Respondents discriminate against Ms. Knibbs because of her disability?

The Tribunal found that Ms. Knibbs' diabetes and depression easily fell within the Code's definition of disability. With that aside, the Tribunal turned to consider each one of the alleged acts of discrimination.

Firstly, since Ms. Knibbs' contract of employment guaranteed her at least 40 hours per week, coupled with the fact that she had a priority in scheduling, the Respondent's demotion of Ms. Knibbs' status from full-time to part time, was discriminatory. The Respondent's claim that its financial situation required a significant reduction of Ms. Knibbs' hours, did not square with the fact that total staff hours had not been reduced dramatically.

Further, Mr. Bourne, a supervisor of Ms. Knibbs, had testified that the Applicant had lost priority in scheduling because she was not working. According to the Tribunal, this was an admission by the Respondent that the Applicant's status had changed merely because she was on a disability-related leave. This was clearly discriminatory.

Second, the Respondent's requirement that Ms. Knibbs provide a letter from a doctor stating that she no longer has any symptoms of depression, and her diabetes fully under control was discriminatory. The Tribunal flatly rejected the Respondent's bald assertion that their insurance company had required that such a letter be sent to the Applicant.

The employer has a duty to permit an employee with disability-related needs to return to the workplace to attempt to accommodate him or her to the point of undue hardship. An employer must give thought or consideration to the issue of accommodation, which the Respondent had not done, in violation of the Code.

Third, the Respondent's publication of Ms. Knibbs personal medical information in the workplace, including the the fact she had depression , stigmatized her and irreparably poisoned the work environment. This clearly constituted discrimination.

In so holding, the Tribunal underlined the following :
  1. The Respondents had put up the posting in a public area of the workplace without Ms. Knibbs' consent;
  2. The posting was up for at least four days;
  3. A significant number of Ms. Knibbs' fellow employees saw and read the posting;
  4. While some of Ms. Knibbs' co-workers knew she had diabetes, few knew she suffered from depression;
  5. When the Respondent finally pulled the posting down at the request of Ms. Knibbs (who had become aware of it), it took no other steps to repair or remedy the situation.
Fourth, the Tribunal found that the layoff that the Applicant had been subjected to during her medical leave, was also discriminatory. In so deciding, the Tribunal applied a but-for test; but-for the disability-related leave, the Applicant would not have been laid-off.

Issue #2: Did the respondents subject Ms. Knibbs to reprisal for asserting her Code-protected rights and starting a human rights proceeding?

The Tribunal found that the Respondent's demand that the Applicant meet with the Respondents to discuss her purported misconduct, including the improper taking of money from the Respondent Company and a number of complaints that had apparently been launched against her by fellow staff members pre-leave, was a reprisal for the Applicant asserting her Code-protected rights.

The Tribunal found:
  • The Applicant's honesty was beyond reproach. There was no evidence whatsoever implicating Ms. Knibbs in any wrongdoing pre-leave, aside from the fact she was an employee at the time the money was taken.
  • With respect to the "alleged employee complaints" against Ms. Knibbs and none of the employees who had apparently made the complaints, gave testimony in support of them.
  • The timing of the demand defied coincidence. It had followed within two weeks of the letter sent by Ms. Knibbs' legal counsel asserting that the Respondents were in breach of the Code's prohibition against discrimination on the ground of disability.
Further, the Respondent's letter to the police, which had referenced Ms. Knibbs' human rights Application, was a direct and intentional reprisal for the making of such an application, especially in light of its timing and the fact that the allegations contain therein against Ms. Knibbs were patently false.

Issue #3: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, Ms. Knibbs was awarded $20,000.00 by the Tribunal. In justifying its decision as to quantum, the Tribunal stated:
I find that the respondents' discriminatory treatment of Ms. Knibbs was serious. The respondents, despite being aware of Ms. Knibbs' vulnerability because of the death of her father and her associated health problems, subjected her to a series of acts of discrimination based on her disability, a threat of reprisal, and an act of reprisal.
Lost Income

Worthy of specific note, the Tribunal found that Ms. Knibbs' job search efforts, applying for eight jobs and attending at one interview over 3 months in a depressed economy (while in a frail state of health), was sufficient to discharge her duty to mitigate her losses.

Barbara Long's Application

Issue #1: Did the Respondents discriminate against Ms. Long because of disability?

Yes, because the Respondents had denied Ms. Long light duties after she suffered a workplace injury at another job. In fact, the Tribunal found that the Respondent had not even attempted to accommodate Ms. Long's medical needs to the point of undue hardship, a blatant violation of the Code. The Respondents' taking of the position that Ms. Long had to do the whole of the job, or nothing at all, was discriminatory on its face, as was their position that Ms. Long did not have to be accommodated because she was only a part-time, as opposed to full-time, employee.

The Respondents presented no evidence that arranging for someone to assist Ms. Long with her heavy duties until she had recovered from her injury, would have caused them undue hardship.

Issue #2: Did the Respondents discriminate against Ms. Long because of sex?

The Tribunal found that the Respondents had discriminated against Ms. Long by denying her overnight shifts and her usual hours based on their view that pregnant women can not safely do such work given their physical state. This was direct discrimination based on stereotypes, and was inexcusable. The Tribunal pointed out that the discrimination based on sex continued even after Ms. Long had provided a letter to the Respondents which stated unequivocally that she was fit to perform work at night; and resume her pre-pregnancy hours.

Issue #3: Did the Respondents discriminate against Ms. Long because of her relationship, association and dealings with a person identified by a prohibited ground of discrimination?

Yes, Ms. Long had faced reprisals for associating with Ms. Knibbs through employment and family, which the Respondents were aware of. The Tribunal found that:
  • Ms. Long was directed not to speak with Ms. Knibbs following her commencement of a human rights proceeding against the Respondents;
  • She was directed not to live with Ms. Knibbs, and not long thereafter, Ms. Long was suspended for an alleged act of misconduct and a letter was sent by the Respondents to the police making allegations against her (which were totally unsubstantiated).
  • The letter made explicit reference to the Human Rights Application, to Ms. Long and Ms. Knibbs familial relationship and to the fact they were living together. It was clearly a retaliation.
As Ms. Knibbs was a person identified (or perceived to be identified) by a prohibited ground of discrimination, namely disability, this constituted discrimination within the meaning of the Code.

The Tribunal concluded that the cumulative effect of the Respondents' discriminatory actions, in particular its failure to take any steps to resolve Ms. Long's suspension, had effectively severed the employment relationship.

Issue #4: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, the Tribunal awarded Ms. Long $13,000.00. In justifying its decision as to quantum, the Tribunal noted:
. . . I find that the respondents' offensive treatment of Ms. Long was also serious. The respondents failed to accommodate her disability-related needs, which resulted in a loss of work hours. More seriously, knowing that Ms. Long was vulnerable as a soon-to-be single mother, the respondents cut her hours because she was pregnant. To make matter worse, the respondents then suspended Ms. Long from her job and an Officer of the Club intentionally tried to harm her by trumping up allegations to incite the police to investigate and charge her with criminal offences. The further loss of work hours obviously caused her significant stress because of the impending birth of her baby and her future financial needs.
Lost Income

With respect to this head of damages, the Tribunal awarded Ms. Long $6,084.00 to put her back into the position she would have been in had the discriminatory acts not occurred. This was the amount she would have earned, had she been permitted light duties; had she been permitted to work her usual hours while pregnant; and had she had not been improperly suspended.

Interestingly, the Tribunal also accepted Ms. Long's request that she be awarded an additional amount for loss EI maternity/parental benefits as a result of having less insurable hours.


In this case, the Applicant alleged discrimination in employment on the grounds of sex and pregnancy. The respondent had requested that the Application be deferred pending the outcome of a reconsideration of an Ontario Ministry of Labour order made pursuant to the Ontario Employment Standards Act.

Since the decision dealt with the same subject matter as the proposed proceeding before the Tribunal, namely whether the employer had acted improperly in contravening the pregnancy leave provisions of the Employment Standards Act, for which reinstatement could be ordered, the Respondent's request was granted.

In this case, the Applicant filed an application alleging discrimination, but the last incident of discrimination described in the application had occurred more than one year before the filing of the application.
Section 34 of the Code provides that:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

As a result, the Tribunal sent a notice advising the Applicant that the application appeared to fall outside of its jurisdiction and requesting written submissions addressing the issue within five weeks. The Applicant did not respond to the Tribunal's Notice so his application was dismissed as abandoned.

- Robert Tanha , Toronto

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