Mental Health (Disability)

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.