Meeting 16: Round-Up - Contemporary Human Rights Contemporary Cases

Silvera v. Olympia Jewellery Corporation and Morris Bazik 2015 ONSC 3760 (CanLII)

Michelle Silvera started working for Olympia Jewellery in August of 2008 as a receptionist/assistant administrator. In this role Michelle earned approximately $28,000 a year. Raphael Bazik was the sole owner of Olympia Jewellery and his brother Morris was in charge of operations. Morris was also Michelle’s supervisor. Over the course of Michelle’s two years of employment with Olympia Jewellery, she was subjected to a series of sexual assaults and battery, sexual harassment and racial harassment, all perpetrated by Morris. In addition, Michelle was fired by Morris after having missed worked due to pain associated with dental surgery. In this case, Michelle filed for damages arising out of i) wrongful dismissal by the defendant, Olympia Jewellery, and ii) series of sexual assaults and battery, sexual harassment, and racial harassment perpetuated by the defendant, Morris. Michelle’s daughter, Aleisha, also filed for damages of $25,000 under the Family Law Act (FLA).  Aleisha alleged that because of Morris’ actions, her mother failed to provide her with guidance, care and companionship. After the above incidents Michelle suffered from “chronic PTSD, “major depressive order, recurrent moderate” and “alcohol abuse in sustained remission” (para 91). Accompanying these mental health concerns, Michelle was unable to look for work, after being fired, due to Morris’ conduct. In this case it was determined that Michelle’s rights under the Code had been directly violated by her supervisor. In particular it was stated that Michelle’s “rights (i) under s. 5(1) to equal treatment with respect to employment without discrimination because of race or sex, (ii) under s. 5(2) to freedom from harassment in the workplace by the employer or agent of the employer because of race, and (iii) under s. 7(2) to freedom from harassment in the workplace because of sex” were violated.   It was also found that the defendant’s conduct in relation to the wrongful dismissal was “vindictive, reprehensible and malicious” (para 167).  Michelle’s dismissal from work came days after the last (and most serious) incident of sexual assault and battery. As such, Michelle was awarded general damages, as well as aggravated and punitive damages. Aleisha was also awarded damages und the FLA.

Question(s) to be Determined:

Did the respondent violate Ms. Silvera’s rights under s. 5(1), s. 5(2) and s. 7(2)[1] of the Code?

Findings:

Did the respondent violate Ms. Silvera’s rights under s. 5(1), s. 5(2) and s. 7(2) of the Code?
YES

Reasoning:

In this case it was found that the respondent, Olympia Jewellery and Morris Bazik had violated Ms. Silvera’s Code protected rights. Explaining the high amount of damages awarded in this case it was stated:

“There are aggravating factors arising from Morris’ Conduct. Morris not only did not comply with his apology and promise to stop, he escalated his assaults at work. In the third assault, he trapped Michelle behind her desk, caused her physical harm by tightening a chain around her neck, and engaged in the conduct even though there were other employees working at that time at Olympia.

Further, Morris engaged in sexual coercion by requiring Michelle to wear particular items of jewellery, and then forcing Michelle to accept rides, gifts, and drinks with Michelle feeling that he was expecting a quid pro quo of sexual favours. The unpredictable nature of the assaults meant that Michelle was always on guard for another assault, wearing a coat at all times in the office to try to avoid further incidents.

Finally, Morris’ sexual and racial harassment through inappropriate jokes and emails denigrated Michelle based on her gender and the colour of her skin” (para 140-142).

Remedies:

In total the damages award to Michelle and her daughter Aleisha are $312,056.56.

In this case the damages are as follows:

(i) Defendants are ordered to jointly and severally pay Michelle damages of $206,711.93 for Morris’ conduct, broken down as (a) $90,000 for general and aggravated damages, (b) $10,000 for punitive damages, (c) $30,000 for breach of the Human Rights Code, (d) $42,750 for costs of future therapy care, (e) $37.18 for the subrogated OHIP claim, and (f) $33,924.75 for future lost income;

(ii) Olympia is ordered to pay Michelle $90,344.63 for wrongful termination, broken down as (a) $7,475.50 less applicable statutory deductions for the three-month notice period, (b) aggravated damages of $15,000, (c) punitive damages of $10,000, and (d) $57,869.13 for lost income; and,

(iii) Defendants are ordered to jointly and severally pay Aleisha $15,000 in damages under the FLA.

[1] s. 5(1) –right to equal treatment with respect to employment without discrimination because of race or sex.  s.5(2) freedom from harassment in the workplace by the employer or agent of the employer because of race.

s.7(2) freedom from harassment in the workplace because of sex.

Mohammed Ashfaq Islam, Arif Hossain and Abdul Malik v. Big Inc. cob Le Papillon on the Park and Danielle Bigue 2013 HRTO 2009 (CanLII)

Mr. Islam, Mr. Hossain and Mr. Malik all immigrated to Canada from Bangladesh. All three men worked for Mr. Paul Bigue, sole shareholder of Big Inc. and owner of Le Papillion on the Park. Danielle Bigue, the personal respondent named in this case, was the daily manager in the restaurant. Mr. Malik worked as the head chef, Mr. Hossain was the sous chef, and Mr. Islam was a cook. All three men were life-long adherents to Islam. The allegations in this case stem from a number of incidents which occurred at the restaurant over the course of a number of months.  The incidents included the following:

• 2 occasions when Mr. Malik was made to eat pork sandwiches and schnitzel contrary to his religious beliefs
• 1 occasion when Mr. Islam was asked to eat pork tortière contrary to his religious beliefs
• 1 occasion when Mr. Hossain was asked and felt compelled to taste soup during his fasting period for Ramadan
• Kitchen rule to only speak English, not Bengali. When Bengali was used in the kitchen Ms. Bigue would mock the applicants saying something like “blah, blah, blah”
• Multiple incidents when Ms. Bigue threatened to fire Mr. Islam, Mr. Hossain and Mr. Malik. Ms. Bigue would say she wanted hire “white staff” and “clean the shit from the kitchen”
• Ms. Bigue denied Mr. Hossain’s request for time off during Eid (religious accommodation)
• On two different occasions the applicants wrote letters to Mr. Bigue and Ms. Bigue alleging discrimination. On both of these occasions the complaints were ignored and not investigated.
• The applicants were terminated from their employment

In relation to all of these incidents it was determined that the applicants’ testimony was more credible than that of the respondents. It was found that the respondents discriminated against the applicants on the basis of race, colour, ancestry, place of origin, ethnic origin and creed.

Question(s) to be Determined:

1. Did the respondents discriminate against Mr. Islam and Mr. Malik on the basis of race, colour, ancestry, place of origin, ethnic origin and creed?
    
2. Did the respondents discriminate against Mr. Hossain on the basis of race, colour, ancestry, ethnic origin and creed?

Findings:

1. Did the respondents discriminate against Mr. Islam and Mr. Malik on the basis of race, colour, ancestry, place of origin, ethnic origin and creed?
   YES
    
2. Did the respondents discriminate against Mr. Hossain on the basis of race, colour, ancestry, ethnic origin and creed?
   YES

Reasoning

In this case the applicants and respondents had different versions of events. In the majority of cases, the respondents denied that the alleged discrimination occurred. It was determined that the version of events provided by the applicants was more credible than that provided by the respondents.

“I have accepted that all of the applicants suffered discrimination during their employment in the workplace on the basis of creed, colour, ancestry, place of origin and ethnic origin, and that this discriminatory behaviour included harassment and failure to respond to complaints of discrimination. In addition, Mr. Hossain’s request for time off for a religious occasion was denied without any consideration of accommodation. The evidence establishes and I accept that the respondents’ breaches of the Code made the workplace intolerable for each of the applicants” (para 276).

Remedies

In this case the remedies awarded to Mr. Islam, Mr. Hossain and Mr. Malik totaled nearly $100,000.

The Tribunal makes the following order:

a) Within 30 days of this Decision, the respondents shall pay $18,632, less statutory deductions, to Abdul Malik to compensate for loss of income.

b) The respondents shall pay Abdul Malik pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (a), above, from March 28, 2011.

c) Within 30 days of this Decision, the respondents shall pay $37,000 to Abdul Malik to compensate for violation of his inherent right to be free from discrimination, for injury to his dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

d) The respondents shall pay Abdul Malik pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (c), above, from March 15, 2011.

e) Within 30 days of this Decision, the respondents shall pay $7,920, less statutory deductions, to Arif Hossain to compensate for loss of income.

f) The respondents shall pay Arif Hossain pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (e), above, from March 15, 2011.

g) Within 30 days of this Decision, the respondents shall pay $22,000 to Arif Hossain to compensate for violation of his inherent right to be free from discrimination, for injury to his dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

h) The respondents shall pay Arif Hossain pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (g), above, from August 15, 2010.

i) Within 30 days of this Decision, the respondents shall pay $1,040, less statutory deductions, to Mohammed Islam to compensate for loss of income.

j) The respondents shall pay Mohammed Islam pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (i), above, from February 7, 2011.

k) Within 30 days of this Decision, the respondents shall pay $12,000 to Mohammed Islam to compensate for violation of his inherent right to be free from discrimination, for injury to his dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

l) The respondents shall pay Mohammed Islam pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (k), above, from August 15, 2010.

m) In the event that the respondents fail to make the payments described in paragraphs (a) through (l) above within 30 days of the date of this Decision, the respondents shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision.

n) Within 30 days of the date of this Decision, the corporate respondent shall post Human Rights Code cards, available from the Ontario Human Rights Commission, at the entranceway to its premises and in the kitchen. These Human Rights Code cards shall be posted in visually prominent places.

o) Within 60 days of the date of this Decision, the respondents shall complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) and confirm in writing to the applicants’ counsel at the Human Rights Legal Support Centre that they have completed this training and have posted the Human Rights Code cards as set out in paragraph (n) above.

p) Within 90 days of the date of this Decision, the corporate respondent shall create and post within the workplace a workplace policy setting out its responsibilities, under the Human Rights Code, as an employer. The corporate respondent shall confirm in writing to the applicants’ counsel at the Human Rights Legal Support Centre that it has created and posted the policy, and shall include with the written confirmation a copy of the policy.

**Following the decision by the Human Rights Tribunal, Big Inc. filed an application for judicial review (Big Inc. v. Islam, 2015 ONSC 2921). Tribunal decisions can be challenged via reconsideration or judicial review.  Big Inc.’s reasons for judicial review were as follows:

The Tribunal made unreasonable findings of fact, particularly because it applied a more exacting level of scrutiny to the witnesses called by the applicants as compared to the level of scrutiny applied to the witnesses called by the respondents.

The Tribunal erred in its treatment of s. 45.1 of the Code[1]. The applicants claimed that Mr. Malik had filed his human rights application and had filed a claim for employment insurance, as well as a claim for termination pay and severance pay pursuant to the Employment Standards Act. The applicants claimed that Mr. Malik’s complaint had been appropriately dealt with by the ESA officer and the application should have been dismissed.

The Tribunal erred in not considering unsworn willsay statements that had been filed by the applicants.

In all three of these areas the Divisional Court ruled that the Tribunal had not erred. As part of the decision in this case the applicants (Big Inc.) were ordered to pay the respondents their costs for the application in the amount of $7,500.

Dawson v. Vancouver Police Board (No. 2) 2015 BCHRT 54 (CanLII)

Angela Dawson is a transgender women. Ms. Dawson’s legal name is Jeffrey Allan Dawson. In this case Ms. Dawson alleges that the treatment she received from the Vancouver Police Board (VPB) amounted to discrimination based on sex. In this case Ms. Dawson allegations are based on six separate incidents with the VPB. In this case the adjudicator ruled on each incident separately. All allegations except for those arising on March 29-30 and June 18th are dismissed. On March 29-30 and June 18th the adjudicator in this trial ruled that Ms. Dawson was discriminated against based on sex because she was not provided necessary medical treatment related to her gender-reassignment surgery. In particular, Ms. Dawson sates that although she informed officers and nurses within the jail that she needed to perform particular medical procedures (dilation) frequently (four times per day) she was denied the ability to perform this procedure while in custody. The VPB did not consider how they could accommodate Ms. Dawson and whether or not accommodating Ms. Dawson would amount to undue hardship. On June 18th Ms. Dawson was arrested for breach of the peace. On this particular incident VPB referred to Ms. Dawson using male pronouns and her given name “Jeffrey”. In addition, Ms. Dawson was again restricted from performing a dilation procedure related to her gender-reassignment surgery. On this incident and the one on March 29-30 it was decided that Ms. Dawson had been discriminated against on the basis of her sex by the VPB.

Question(s) to be Determined

Did the VPB discriminate against Ms. Dawson on the basis of her sex?

Findings

Did the VPB discriminate against Ms. Dawson on the basis of her sex?
YES*

*In this case Ms. Dawson made allegations regarding six separate incidents.  In this case all allegations except the following were dismissed except for:

• The Complaint concerning the medical treatment she received while incarcerated March 29-30 and June 18 is upheld.
• When the VPB referred to Ms. Dawson as male, it discriminated against her, particularly with respect to the incident on June 18, 2010.

Reasoning

In this case it was stated that:

“I find that the way that Ms. Dawson received medical treatment in the jail amounted to discrimination. Her claim that she needed to undergo post-surgical treatment was not taken seriously. No real effort was made to accommodate her needs and no evaluation was done by anyone at the jail as to whether such accommodation would amount to undue hardship” (para 157).

In relation to the use of male pronouns when referring to Ms. Dawson it was stated that the VPB lacked a clear and consistent approach when working with transgender perpetrators, witnesses or victims.

“Overall, the interactions between Ms. Dawson and members of the VPB show that there is significant inconsistency in approach of how officers deal with and identify Ms. Dawson. In many cases, members of the VPB have referred to Ms. Dawson with both male and female pronouns; often in the same document. They will call her Angela or Jeffrey” (para 243).

“I conclude that VPB has no policy with respect to the way to identify trans people, with whom it deals, either as victim, witness, or perpetrator. There has been no description of the circumstances under which officers should use the name and gender preferred by the trans person. There was no evidence of the VPB weighing the circumstances and identifying to its officers when using other than the legal name would be a reasonable accommodation, short of undue hardship” (para 244).

Remedies

In this case it was ordered that:

• The VPB cease the contraventions and refrain from committing the same or a similar contravention.
• The VPB pay Ms. Dawson the sum of $15,000 as damages for injury to dignity, feelings and self-respect.
• The VPB has engaged in systemic discrimination of trans people concerning their identification. Within one year, policies are to be adopted by VPB that allow identification of trans people without discrimination. Officers are to be trained in implementation of these policies.

Nelson v. Lakehead University, Bahram Dadgostar and Jerry Phillips 2008 HRTO 41 (CanLII)

In 2002, Dr. Nelson applied for a full-time, tenure track assistant professor position in the Faculty of Business Administration at Lakehead University. Dr. Nelson interviewed for the position along with three other candidates and was ultimately not chosen as the successful candidate. After the interview process, Dr. Nelson was advised by one of the members of the hiring committee, Dr. Cole, that age had been a factor in deciding not to hire Dr. Nelson. In response to the perceived discrimination occurring on the committee, Dr. Cole resigned from the hiring committee. Outlining the reasons for resigning from the committee, Dr. Cole submitted a letter to the Dean, Dr. Dadgostar. In this case it was found that age was not a factor in the hiring process surrounding Dr. Nelson. It was however, found that the Dean’s handling of the allegations raised by Dr. Cole were not reasonable and therefore in violation to section 5 and 9 of the Code.

Question(s) to be Determined

1. Was Dr. Nelson’s age, 57 at the time of his interview, a factor in the hiring process contrary to sections 5 and 9 of the Code?
2. Did the Dean’s handling of the allegations raised by Professor Cole violate sections 5 and 9 of the Code?
3. Did the job requirement of recent/current research experience have an adverse impact on Dr. Nelson because of his age contrary to section 11 of the Code?

Findings

1. Was Dr. Nelson’s age, 57 at the time of his interview, a factor in the hiring process contrary to sections 5 and 9 of the Code?
   NO
    
2. Did the Dean’s handling of the allegations raised by Professor Cole violate sections 5 and 9 of the Code?
   YES
    
3. Did the job requirement of recent/current research experience have an adverse impact on Dr. Nelson because of his age contrary to section 11 of the Code?
   NO

Reasoning

In this case it was decided that there was no credible evidence that the selection process was tainted by considerations of age. This finding was made for a number of reasons including the perceived credibility of Professors Phillips and Isotalo (selection committee members) versus the perceived lack of credibility of Professor Cole (selection committee member). As an overarching comment, adjudicator Martin states that there was “insufficient circumstantial evidence to conclude that the outcome of the selection process was tainted by age” (para 78). Further, adjudicator Martin stated, “the committee’s recommendation was not tainted by consideration of age. Faculty voted on this recommendation to offer the position to Dr. Mihai. I find that the result of the selection process and the process itself up to and including the vote was untainted by considerations of age” (para 89).

Using Laskowska v. Marineland of Canada Ltd. (2005) the duty to investigate a complaint of discrimination was outlined. Based on this jurisprudence, the content of the duty is to take reasonable steps to address allegations of discrimination. In this case the adjudicator was not satisfied that the Dean’s response was reasonable. It was found that the Dean’s response to Professor Cole’s complaint of discrimination during the hiring process was dismissive of her allegations. “Moreover, the Dean’s informal inquiry and comments to staff about the Code did not constitute a reasonable investigation into the allegations (para 102). Further, it was found that the Dean did not follow the University’s own human rights policy. Because of this finding it was stated that “the University has failed to meet its corporate responsibility under the Code. While the University has a policy, it is clear that the University has not ensured that the Dean was trained on how to respond to allegations of discrimination in a hiring situation” (para 106).

In this case it was stated that “while it was apparent from the evidence that the Committee assessed the candidates on the basis of their research background and specifically viewed current/recent research favourably, I am not satisfied that Dr. Nelson did not meet this “requirement” because of his age” (para 108). Although current/recent research was one of the criteria used to evaluate candidates, it was found that there was “insufficient evidence establishing that age bears the relationship to research which underpins the Commission’s argument” (para 110). In this case the adjudicator did not believe that younger candidates with recent PhD’s and active research programs would be at an advantage in the job competition.

Remedies

At the conclusion of the hearing the parties were encouraged to have discussions in an effort to reach a settlement without further adjudication. No further information on the remedies in this case are provided.

Emra v. Impression Bridal Ltd. 2014 HRTO 1736 (CanLII)

Kujtim Emra worked for Impression Bridal Ltd. from November 8, 2010 till February 15, 2013 as the accounts receivable manager. Ms. Yue is the manager of the Canadian operation and was the applicant’s supervisor at the time of the incident. The applicant self-identifies as a person living with Generalized Anxiety Disorder and Panic Disorder. When he first began working at Impression Bridal Ltd. he did not disclose his disability and did not discuss accommodation options. After a short period of absenteeism directly related to his disability, Mr. Emra was terminated. At the time of termination when Mr. Emra disclosed and explained his disabilities, Ms. Yue suggested that she thought Mr. Emra also had Attention Deficit Disorder (ADD).  During his termination meeting with Ms. Yue, Mr. Emra indicated that he did not want to be terminated and that the job was important for both him and his family. In response to this statement, Ms. Yue reaffirmed her decision to terminate Mr. Emra and asked that he would stay on till the end of the week in order to pass information on to other staff. In recognition of staying on till the end of the week, Mr. Emra would be provided with two week’s pay and a positive reference letter. After being terminated Mr. Emra made contact with the Human Rights Legal Support Centre (HRLSC).   Mr. Emra was advised by the HRLSC to write a letter to Ms Yue, describing how he felt and referencing the Code and accommodation. Mr. Emra sent the letter to Ms. Yue’s private e-mail account the following day and shortly after receiving this e-mail was called in to see Ms. Yue. During this conversation Ms. Yue indicated that nothing could be done to change the decision, Mr. Emra was being terminated as of the end of the week.

Question(s) to be Determined

1. Did the respondent, Impression Bridal Ltd. discriminate against the applicant on the basis of disability and perceived disability?

Findings

1. Did the respondent, Impression Bridal Ltd. discriminate against the applicant on the basis of disability and perceived disability?
   YES

Reasoning

1. Did the respondent, Impression Bridal Ltd. discriminate against the applicant on the basis of disability and perceived disability?

In this case it was found that even after the applicant disclosed his disabilities no effort was made to accommodate him other than to ask the applicant if he wanted to quit his job. It also became clear during the course of the hearing that Ms. Yue had no understanding of her obligations under the Code in relation to accommodation and disability. In this case, evidence was also provided that indicated that mistakes made by Mr. Emra during the course of his employment were minor and that Mr. Emra had never received any form of formal discipline related to his performance at work. Any comments about his work or absenteeism were informal, verbal and undocumented. Based on this information and the lack of perceived credibility of Ms. Yue’s version of events, it was found that Impression Bridal Ltd. did discriminate against the applicant on the basis of disability and perceived disability.

Remedies

The Tribunal orders the following:

1. The respondents shall pay the applicant $25,000 for injury to dignity, feelings and self-respect arising from the infringement of his rights under the Code;
    
2. The respondents shall pay to the applicant a sum for lost wages (bi-weekly rate of $1280.00 calculated over one full year for a total of $33,280.00);
    
3. The respondent shall pay prejudgment and post-judgment interest in accordance with paragraphs 107 to 110 of this Decision.
    
4. Within 120 days from the date of this Decision, the respondent shall confirm to the applicant in writing that it has retained a human rights expert of its choosing who has;

(i) developed new human rights policies, and that a copy of the human rights policies has been distributed to all of its employees; and

(ii) trained all of its employees with respect to the new human rights policy, the Code and the duty to accommodate.

LeFrense v. IBM Canada Ltd. 2015 NS HRC 1720 (CanLII)

In 2000, Mr. LeFrense began working for IBM as an IT maintenance specialist or a Systems Services Representative (SSR). As part of his work, Mr. LeFrense worked on rotation as part of team of other SSR’s. Mr. LeFrense was required to work some overtime, an on-call weekend every eight weeks and an on-call night every two weeks. In 2004, Mr. LeFrense was diagnosed with sleep apnea. He sought accommodation from IBM ( in relation to overtime and night shifts) and when they indicated they could not accommodate him he went on disability. While on disability IBM paid for his benefits. In 2005, IBM offered Mr. LeFrense a return to work on regular hours together with two Saturdays per month, and some overtime as required to finish his work. Mr. LeFrense rejected this accommodation and countered with a different offer – one Saturday per month and no night driving. IBM did not agree to this accommodation stating that it would negatively impact other members of the SSR team and place an undue hardship on the organization. At this point in time IBM began to look for other jobs within IBM to accommodate Mr. LeFrense. In 2006, IBM offered Mr. LeFrense a job as a parts specialist. In this position the accommodations sought by Mr. LeFrense would be met. Mr. LeFrense accepted the position, despite the roles reduced pay. In this case Mr. LeFrense alleges that IBM discriminated against him by failing to accommodate his disability by not adapting his work schedule so that he could stay employed as an SSR. Mr. LeFrense’s claim was dismissed.

Question(s) to be Determined

1. In this case did IBM’s actions against Mr. LeFrense, constitute discrimination under Sections 5(1)(d)(o) of the Nova Scotia Human Rights Act?

Findings

1. In this case did IBM’s actions against Mr. LeFrense, constitute discrimination under Sections 5(1)(d)(o) of the Nova Scotia Human Rights Act?
   NO

Reasoning

1. In this case it was decided that IBM had accommodated Mr. LeFrense and his disability, related to sleep apnea, to the point of undue hardship and therefore had not discriminated against Mr. LeFrense. It was stated:

“I am satisfied that IBM accommodated Mr. LeFrense by paying him disability for over two years, by actively and seriously considering his condition and how it might be accommodated within the requirements of the SSR position and then when this proved unmanageable without undue hardship to Mr. LeFrense’s colleagues and to IBM itself, IBM found him another position that did accommodate the effects of his condition as they had been repeatedly stated by his own physician” (p. 17).

In this case the adjudicator provided detailed information relating to the duty to accommodate and accommodation to the point of undue hardship. The adjudicator stated:

“The purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to preform work in exchange for remuneration….The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.” (para 15-16).

“Because of the individual nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties– or even authorize staff transfers– to ensure that the employee can do his or her work, they must do so to accommodate the employee.” (para 17).

Remedies

This case was dismissed and therefore no remedies were awarded.

Tang v. McMaster University; Faculty of Health Sciences, McMaster University; Centre for Student Development, McMaster University; Medical Sciences Graduate Program, McMaster University 2014 HRTO 92 (CanLII)

Note: This case was previously discussed at the July 16, 2013 HRLG meeting. At the time of this meeting no decision had been rendered in this case.

Jason Tang was a PhD student in Medical Sciences at McMaster University. Mr. Tang had completed most of the academic requirements towards completion of his degree when he suffered a brain injury. The brain injury resulted in post-concussion syndrome (PCS). The side effects of this disorder led him to seek accommodation for his upcoming comprehensive exam. He claimed that his disability prevented him from completing the exam in the traditional format, and sought an alternative format that would still allow him to demonstrate his competencies. The Associate Dean of Graduate studies informed him that he would be required to complete the exam in the same format as other students. The University offered Tang accommodation in the form of extra time to complete the exam along with other forms of support for writing. Tang submits that this accommodation was inappropriate, given the nature of his disability.  Tang eventually attempted to write the exam but was unable to complete it successfully. He was forced to leave his PhD. studies.  Tang alleges that the University’s failure to accommodate him appropriately led to his expulsion. In this case, Mr. Tang failed to provide evidence proving that the accommodations he was requesting were directly connected to his PCS.  McMaster University accommodated Mr. Tang in relation to all other accommodations included within his medical documentation. This case was dismissed.

Question(s) to be Determined

1. Did the respondents (McMaster University; Faculty of Health Sciences, McMaster University; Centre for Student Development, McMaster University; Medical Sciences Graduate Program, McMaster University) breach the Code by failing to provide Mr. Tang with appropriate accommodations for his disability?

Findings

1. Did the respondents (McMaster University; Faculty of Health Sciences, McMaster University; Centre for Student Development, McMaster University; Medical Sciences Graduate Program, McMaster University) breach the Code by failing to provide Mr. Tang with appropriate accommodations for his disability?
   NO

Reasoning

1. In this case it was found that the respondents did not breach the Code in relation to the provision of appropriate accommodations for Mr. Tang. The fundamental problem in the case was the lack of evidence (i.e. documentation) stating that an appropriate accommodation for Mr. Tang’s PCS was completing his comprehensive exams in an alternative format (i.e. orally). “The problem is that there is no evidence that the impact described by the applicant is related to his post-concussion syndrome except the applicant’s and Dr. Phillips’ sincerely held but subjective belief. Given the medical documentation submitted this is not a trivial evidentiary concern. The documentation clearly lists all of the accommodations the applicant’s doctors identified as being necessary to address his post-concussion syndrome. All of those accommodations were offered to the applicant. Therefore, it is logical to doubt that there is a link between the impacts the applicant describes and his post-concussion syndrome” (para 78).

It was further stated that “Given the medical evidence and the fact that all of the accommodations identified by the health professionals were provided to the applicant, I am satisfied that the applicant here is unable to establish that there is a link between the negative impact he says he experienced in attempting the comprehensive exam and his disability of post-concussion syndrome. Therefore, there is no reasonable prospect of success with respect to the allegation that the respondents breached the substantive duty to accommodate” (para 79).

Remtulla v. The Athletic Club (Trainyards) Inc. 2014 HRTO 940 (CanLII)

Question(s) to be Determined

1. Did The Athletic Club (Trainyards) Inc. discriminate against Ms. Remtulla on the basis of disability?

Findings

1. Did The Athletic Club (Trainyards) Inc. discriminate against Ms. Remtulla on the basis of disability?
   YES (but only in part)

Of the three allegations raised by Ms. Remtulla, two were dismissed.

Reasoning

1. In this case it was found that the respondent discriminated against Ms. Remtulla on the basis of disability in relation to the installation of a grab bar in the co-ed studio. After having installed grab bars in both the women and co-ed studio’s, Ms. Remtulla informed TAC that the one in the co-ed studio was in the wrong location, and therefore unusable by Ms. Remtulla. Instead of engaging in a discussion with Ms. Remtulla and moving the grab bar, the TAC refused to re-position the grab bar. By refusing, the respondent breached the procedural and substantive duty to accommodate.

In this case all other allegations were dismissed.

Remedies

In this case 15 remedies were sought by the applicant. In total 4 remedies were awarded in this case.

• Move the grab bar in the co-ed studio to either edge of the designated accessible area;
   
• Ensure that David Wu has completed the online module offered by the Ontario Human Rights Commission entitled Human Rights and The Duty to Accommodate;
   
• Post Code cards in its physical facilities;
   
• Pay $3,000 to the applicant as compensation for injury to dignity, feelings and self-respect. Post-judgment interest in accordance with the Court of Justice Act, R.S.O. 1990, c. C.43, is payable on any of the above amount not paid to the applicant within 30 days of the date of this Decision.

*Zumba classes are a Latin inspired dance-fitness class that incorporates Latin and International music and dance movements.