Sample Accommodation E-Lert
This sample Accommodation E-Lert was posted on February 14, 2019 within the category "The general legal duty". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
An Ontario labour arbitrator considered the seriousness of the conduct and the effect on the employee in determining the appropriate amount of damages in an accommodation case. The employee was awarded $35,000 in damages.
Ontario Public Service Employees Union and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services),  O.G.S.B.A. No. 5 (Misra), Ontario Grievance Settlement Board, January 22, 2019.
The grievor in this matter had filed eleven grievances.
The grievances claimed that the employer failed to accommodate the grievor for her significant mental health issues.
In a prior decision, Arbitrator Gail Misra decided that the employer’s refusal to accommodate the grievor was discriminatory, and that a breach of the duty to accommodate had been established.
Arbitrator Misra also decided that the employer’s behaviour towards the grievor and the grievor’s physician, as well as its handling of her mental health issues, were egregious, arbitrary and closed-minded.
The arbitrator found that the employer sent an unnecessary number of letters and requests for medical information in the disputed periods.
On the basis of the evidence and in reliance on the jurisprudence, the arbitrator found that the employer’s management representatives 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.
Arbitrator Misra held that an award of compensation for injury to dignity, feelings and self-respect recognized the inherent value of the right to be free from discrimination and the experience of victimization.
In finding that the grievor experienced discrimination closer to the high end of the spectrum, Arbitrator Misra awarded monetary compensation for injury to dignity, feelings and self-respect.
This decision addresses the outstanding issue between the parties, which was the quantum of damages payable to the grievor as compensation for injury to her dignity, feelings and self-respect.
The employer proposed that a human rights damage award in the range of $10,000 to $20,000 would be appropriate, because there were no findings of bad faith on the part of the employer. The employer argued that, since it was not found that the employer conducted itself in a manner that was vindictive or malicious, no punitive damages should be awarded.
The union submitted that the grievor should be entitled to damages in the range of $30,000 to $40,000 because it was determined that the grievor experienced discrimination closer to the high end of the spectrum with respect to seriousness.
The union posited that it is irrelevant that there was no finding that the employer’s actions were vindictive, malicious, or in bad faith, because damages are to be assessed based on the objective and subjective seriousness of the conduct. The union argued that “damages are not designed to punish the wrongdoer but are meant to compensate the aggrieved party for the violation of their rights.” In addition, the union led evidence that the Board did find the grievor particularly vulnerable and that she was repeatedly threatened.
Arbitrator Misra reviewed her previous decision on the grievances, particularly with respect to human rights damages. The arbitrator reviewed the Human Rights Tribunal’s decision in Arunachalam v Best Buy Canada, which stated that there are two criteria to be considered in evaluating 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.
This was in line with the union’s position on human rights damages, which was accepted by Arbitrator Misra.
The arbitrator outlined the following considerations in determining the quantum of damages based on the jurisprudence:
- 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.
Arbitrator Misra agreed that human rights damages must not be so low or trivial so as to create a “license fee to discriminate.”
The decisions submitted by the employer were reviewed and were determined to be not comparable to the matter before the arbitrator on the basis of the employer’s conduct or the employee’s particular situation. Arbitrator Misra maintained that, in this case, the grievor was repeatedly threatened with termination, experienced actual loss of income and benefits and, though she had provided abundant medical support, the employer ignored her and the physician’s reports.
Arbitrator Misra concluded that as a result of the employer’s conduct towards the grievor, the union’s position that the conduct was objectively more serious so as to warrant a higher damages award was correct. In determining the effect on the grievor, Arbitrator Misra stated the following:
…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…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.
The arbitrator found that the employer’s actions had a severe impact and corrosive effect on the grievor, causing her to be much more anxious, upset, and fearful about her employment situation, exacerbated her anxiety, and caused health concerns such as trichotillomania, vomiting, bowel upsets and poor mental health.
In conclusion, Arbitrator Misra was satisfied that the harassment and discrimination suffered by the grievor was objectively more serious and severe, and that the subjective impact was severe and protracted. As a result, she awarded the grievor $35,000 in damages for injury to dignity, feelings, and self-respect.
Implications for Employers
Employers should be aware of the approach arbitrators and adjudicators will use in quantifying human rights damages. The employer’s conduct is of significant weight. If the behaviour or conduct exhibited by the employer involved humiliation, hurt feelings, threatening remarks, retaliation or offensive treatment, these will weigh heavily against the employer in a determination of damages. Acting in this manner, in the face of knowledge of a grievor’s disability, will be a strong contributing factor to an award of damages. The goal of damages to injury, feelings and self-respect is compensatory, and so it will be immaterial whether the employer can prove it did not act in bad faith, vindictively or maliciously.
Implications for Unions
In representing grievors, unions should be aware of each individual’s particular experience with the employer throughout the employment relationship, including in response to the discrimination and the breach of the duty to accommodate. Grievors’ personal histories, including any emotional difficulties or the presence of serious physical, mental or emotional effects as a result of the employer’s treatment should be noted. Unions should look to existing jurisprudence to locate comparable cases to assist arbitrators in calculating appropriate damage awards.