Mental Health (Disability)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-25
CLNP Page ID:	1966
Page Categories:	Human Rights, Medical Disability
Citation:	Mental Health (Disability), CLNP 1966, <7u>, retrieved on 2024-04-25
Editor:	MKent
Last Updated:	2022/08/11

Passmore v. Illumiti Inc., 2018 HRTO 1595 (CanLII)

[2] As is reflected in Decision, 2017 HRTO 725, the Tribunal determined that the applicant had been on a medical leave of absence. She had been diagnosed with Post Traumatic Stress Disorder. The respondent was aware of this diagnosis. After being on leave for about two and a half months, a back to work plan was created by the disability benefits provider. This plan was discussed with the respondent and the plan outlined a gradual return to full-time work commencing on August 27, 2014. When the applicant returned to work on August 27, 2014 her employment was terminated. The Tribunal determined that the applicant’s Code rights were violated when the respondent terminated her employment.

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[8] I agree with the respondent that the Tribunal should not order a separate award of compensation for “mental distress or anguish.” However, the extent to which the applicant experienced mental distress as a result of the breach of her Code rights can have an impact on the amount an applicant might be awarded as compensation for the injury to her dignity, feelings and self-respect. See, Tonoukouin v. Canadian Centre for Victims of Torture, 2017 HRTO 1157 at para 14; and Clennon v. Toronto East General Hospital, 2010 HRTO 506 paragraph 33.

[9] The Court of Appeal for Ontario addressed the considerations to be made when determining compensation for Code violations following the termination of employment in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (“Strudwick”).

[10] In Strudwick, above, the Court at para. 57 referred to the Divisional Court’s decision in Lane v. ADGA Group Consultants Inc., 2008 CanLII 39605 (ON SCDC), (“Lane”) where the Court stated at para. 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. [Citations omitted.]

[11] The Tribunal expanded on the considerations noted in Lane, above, in its decision in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (“Arunachalam”). In particular, the Tribunal recognized the need to objectively consider the seriousness of the respondent’s conduct and the impact the Code violation had on the applicant. At paras. 53 - 54 the Tribunal stated, as follows:

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 at paras. 34 - 38.

[12] In Chittle v. 1056263 Ontario Inc., 2013 HRTO 1261 the Tribunal awarded $30,000 for compensation for loss of dignity, feelings and self-respect. The Tribunal commented on the nature of an order for compensation for loss of dignity, feelings and self-respect at paras. 114 - 116, as follows:

A compensatory order is not a punitive order, but consideration of the actions of the respondent cannot be avoided in determining whether dignity was violated and how. As Professor Denise Réaume notes in her wide-ranging discussion of the concept of human dignity, “violating dignity involves conveying the message that some are of lesser worth than others” (Denise G. Réaume, “Discrimination and Dignity” in Faraday, Denike and Stephenson eds., Making Equality Rights Real (Toronto, Irwin Law Inc., 2006).

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[37] The applicant submits that the burden of establishing that the applicant failed to mitigate her wage losses is on the respondent. The respondent must show that the applicant’s job search efforts were unreasonable in all aspects, must avoid hindsight and use common sense. She relies on the Aylsworth v The Law Office of Harvey Storm (“Aylsworth”), 2016 ONSC 3938 at para. 15 in support of this submission.

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[49] In Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402, the Court of Appeal “(Brake”) for Ontario stated at para. 157, as follows:

A wrongfully dismissed employee has a duty to try to mitigate her damages by making reasonable best efforts to obtain a position that is reasonably comparable in salary and responsibility to the one from which she was wrongfully dismissed.

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[62] The Tribunal orders:

i. Within 30 days of the date of this Decision, the respondent shall pay the applicant compensation in the amount of $40,000 for her losses arising from the infringement of her rights under the Code, plus pre-judgement interest of 2% on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43, as amended, from the date of the Application, August 26, 2015;

ii. Within 30 days of the date of this Decision, the respondent shall pay the applicant $83,450.31, less the required statutory deductions for her lost wages. The respondent shall also pay pre-judgement interest of 2% on this amount in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, from the date of the Application, August 26, 2015; and

iii. The respondent shall pay the applicant post-judgement interest of 3% on any amounts outstanding commencing 30 days from the date of this Decision in accordance with the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended.

Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (CanLII)

[7] ADGA violated Mr. Lane's right under s. 5 of the Code to equal treatment and freedom from discrimination on the basis of disability. The primary violation involved ADGA's summary dismissal of Mr. Lane on the basis of his disability. ADGA dismissed Mr. Lane without meeting the procedural obligations of assessment to which it was bound under s. 17(2) of the Code and without meeting the specific obligation not to dismiss someone without establishing that it could not accommodate the disability of that person without undue hardship. The consequence of this violation is that the respondent shall pay the complainant damages (general, mental anguish and special) totalling $79,278.75, plus pre- and post-judgment interest as detailed in the order below. The respondent is also responsible for adhering to the terms of a range of public interest remedies that are also a component of that order.

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[41] Neither at the interview, nor at any other point before ADGA hired him, did Mr. Lane indicate that he had bipolar disorder. Also, on the employment application form that he signed on September 25, 2001, he stated that he had been on sick leave only five days during the previous twelve months. He did not mention his condition and misrepresented the number of sick days for fear that he would not secure the position if he were forthcoming with the company. He also believed that it was not permissible to ask a prospective employee questions about days of sick leave.

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[48] Mr. Lane said that he believed he had provided Ms. Corbett with a strategy to deal with manifestations of his disorder and that this should have been enough. He did not expect her to do anything else. Rather, he instructed her to treat the information as confidential. According to Mr. Lane, Ms. Corbett was not very forthcoming during this conversation and he left the meeting with an uncomfortable feeling that he had made a mistake sharing the information about his condition with Ms. Corbett.

[152] Even assuming that ADGA could rely on ex post facto justifications for its actions and to avoid liability, I find that it did not do so. Given the high standard of proof that rests upon an employer who seeks to establish undue hardship, ADGA was content to rely upon the understandably self-serving testimony of Mr. Sincennes and Mr. Germain as sufficient to establish an environment in which it would have been put to undue hardship to accommodate Mr. Lane. ADGA did not provide any independent or expert testimony as to the realities of a company in its position trying to accommodate a person with Bipolar I Disorder. In particular, given the testimony from Drs. Hall and Arboleda-Florez with respect to workplace strategies for managing the disorder and avoiding prolonged absences, it was simply inadequate to assert that Ms. Corbett was too busy for a monitoring role, and inadequate to ask the Tribunal to infer from that that no other form of monitoring with a view to early intervention was feasible. In short, the ex post facto justification for the failure to accommodate and the existence of undue hardship did not satisfy the onus of proof that the caselaw placed on the respondent.