Closs v. Fulton Forwarders Incorporated and Stephen Fulton

Closs v. Fulton Forwarders Incorporated and Stephen Fulton
Collection
Canadian Human Rights Tribunal
Date
2012-11-30
Neutral citation
2012 CHRT 30
Decision-maker(s)
Gupta, Susheel
Decision type
Decision
Decision Content
Between:
Stephen Closs
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Fulton Forwarders Incorporated and Stephen Fulton
Respondents
Decision
Member: Susheel Gupta
Date: November 30, 2012
Citation: 2013 CHRT 30
I............. Complaint 1
II........... Complainant’s Evidence. 1
III......... Has The Complainant Established a Prima Facie Case of Discrimination?. 5
A. Complainant’s allegations under paragraph 7(a) of the Act 6
B. Complainant’s allegations under paragraph 7(b) of the Act 8
C. Complainant’s allegations under paragraph 14(1)(c) of the Act 12
IV......... Respondent’s Evidence. 15
A. Response to the Complainant’s prima facie allegations under paragraph 7(a) of the Act 15
B. Response to the Complainant’s prima facie allegations under paragraph 7(b) of the Act 19
V........... Conclusion. 24
VI......... Order 24
A. Lost wages. 25
B. Compensation for pain and suffering. 28
C. Compensation for having engaged in the discriminatory practice wilfully or recklessly 30
I. Complaint [1] On June 8, 2011, pursuant to subsection 49(1) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 [the Act], the Canadian Human Rights Commission (the Commission) requested that the Chairperson of the Canadian Human Rights Tribunal (the Tribunal) institute an inquiry into the complaints of Stephen Closs (the Complainant) against Fulton Forwarders Inc. (FFI) and Stephen Fulton (Mr. Fulton). The Complainant claims FFI engaged in discriminatory practices, contrary to paragraphs 7(a) and 7(b) of the Act, on the grounds of disability and family status. The Complainant also claims that FFI and/or Mr. Fulton engaged in a discriminatory practice, contrary to paragraph 14(1)(c) of the Act, on the same grounds.
II. Complainant’s Evidence [2] As part of the inquiry into these complaints, a hearing was held on February 2, 2012 in Cambridge, Ontario. At the outset of the hearing, the parties presented the Tribunal with an Agreed Statement of Facts. Together with these agreed facts, the Complainant testified as to his version of the events that gave rise to these complaints as follows.
[3] The Complainant was employed as a truck driver by FFI. Located in Cambridge, Ontario, FFI is a trucking transport business that delivers goods within Ontario and also between Ontario and Quebec. In 2008, the Complainant worked under the supervision of Terence Fulton, President of FFI, as a replacement driver, filling in for drivers who were sick or on vacation. In February 2009, Stephen Fulton, the Operations Manager for FFI, hired the Complainant as a part-time driver. According to the Complainant, at the beginning of his part-time employment with FFI, he worked primarily day shifts. In addition to his day shifts, the Complainant was sometimes asked to work night shifts. Over time, the Complainant claims that the request to work night shifts grew to a point where he was working up to four night shifts a week, on top of his day work. During this time, the Complainant described his work load as “running hard” for FFI, working sixty to seventy hours a week, with little time to sleep between his shifts. From February 9, 2009 until his last shift with FFI on May 14, 2010, the Complainant was under the direct supervision of Stephen Fulton and reported to him directly.
[4] The Complainant advised FFI that he had a “disease” which impacted his eyesight. The Complainant testified that he told both Terrence and Stephen Fulton, at the outset of his employment relationship with each of them, that he suffers from Jessner’s, a form of lupus. According to the Complainant, his lupus affects his nervous system and causes him some fatigue. The Complainant added that some of the medication he takes to address his condition affects his eyesight. This requires him to get eye exams every six months. On occasion, the Complainant would have to miss work for medical appointments or because of the side effects of the medications he was prescribed. The Complainant testified that, at first, FFI was accommodating and understanding concerning any time off he needed to attend to his medical condition. As a result of his condition, the Complainant claims to have also requested that he be able to bring his friend, Tim Caskenette, along with him on his runs in order to help him stay awake. The Complainant claims that FFI was aware that Tim Caskenette was riding with him for this reason. In fact, the Complainant stated that he has no complaint about FFI’s accommodation in this regard.
[5] Under the heading “Closs’s Medical Condition”, at paragraph 12 of the Agreed Statement of Facts, it states that the Complainant advised Mr. Fulton that he could no longer drive at night and that FFI agreed to this request. During his testimony, the Complainant explained that he did not request that FFI no longer schedule him for night driving. Rather, as he felt he was getting “burnt out” by his day/night work schedule, he requested that he be allowed to go home and sleep between shifts or that his hours be scaled back. The Complainant claims to have even suggested to Mr. Fulton that he hire another driver to reduce his workload.
[6] In April 2009, the Complainant and his spouse found out they were pregnant. On or about April 13, 2009, the Complainant’s spouse went to the hospital for an ultrasound. The ultrasound indicated there were complications with the pregnancy, and the Complainant’s spouse set up an appointment with her personal physician for later in the day to discuss the nature of the complications. The Complainant was on duty at the time he found out about the complications with the pregnancy and the scheduled appointment. He phoned Mr. Fulton to advise him of the situation and his desire to be with his wife for the appointment. According to the Complainant’s testimony, arrangements were made by Mr. Fulton to expedite the loading/unloading of his truck, which allowed him to finish his runs early, and leave work to attend the appointment.
[7] At the appointment, the Complainant and his wife learned that their pregnancy had been lost and that his wife would need to go to the hospital to receive treatment. As the Complainant was scheduled to work another shift that evening, he phoned Mr. Fulton to discuss the situation and requested the night off to go to the hospital with his wife. According to the Complainant, he was denied the night off and was threatened with termination should he not work his shift. The Complainant claims Mr. Fulton told him words to the effect of “You have a job to do – so do it”. The Complainant decided he would stay at the hospital until the miscarriage occurred, and told Mr. Fulton that he would call him again at that point.
[8] At around 12:00am, on April 14, 2009, the Complainant and his spouse suffered the miscarriage. Shortly thereafter, the Complainant again phoned Mr. Fulton to discuss the situation and claims to have requested a few days off to grieve the loss of the pregnancy with his wife. Once he advised Mr. Fulton of the miscarriage, the Complainant claims that Mr. Fulton told him words to the effect of “The first thing that’s good for you is getting your ass back in that truck and driving down the highway because you’re going to get your mind off it”. While the Complainant understood the comment to be related to Mr. Fulton’s own experience with having suffered a miscarriage and his way of coping with it, the Complainant did not feel as though working would be best for him. Subsequently, the Complainant claims he was denied any time off and was threatened with termination should he not work. According to the Complainant, the words of Mr. Fulton were to the effect that “I’m going to have to fire you and get a real truck driver because you can’t do your job right”. Therefore, the Complainant went to work.
[9] In September 2009, the Complainant and his spouse once again learned they were pregnant, this time with twins. On or about December 17, 2009, the Complainant’s spouse was hospitalized due to complications with this second pregnancy. The Complainant was on duty at the time he found out about his spouse’s hospitalization. The Complainant phoned Mr. Fulton to advise him of the situation and his desire to be with his wife. According to the Complainant, he was denied permission to leave his shift to be with his wife at the hospital. The Complainant testified that Mr. Fulton told him words to the effect that “it’s a miscarriage, she’ll get over it, just do your job”. During his shift, on or about Friday, December 18, 2009, the Complainant’s spouse suffered a second miscarriage. Subsequently, the Complainant again claims to have requested some time off to grieve the loss of the pregnancy with his wife. The Complainant claims he was again advised by Mr. Fulton that if he did not come to work his employment would be terminated. Therefore, the Complainant worked his next shift on Monday, December 21, 2009.
[10] On or about Friday, April 9, 2010, the Complainant sustained a leg injury. The Complainant testified that he slipped on mud in FFI’s yard while getting out of his truck. The Complainant testified that he attempted to reach Mr. Fulton on April 10 and 11 to discuss the injury, leaving him messages. On April 11, 2010, Mr. Fulton phoned the Complainant and they discussed the leg injury over the phone. During this conversation, the Complainant advised Mr. Fulton that he could not work because he was having difficulty walking and that he needed to consult with his doctor concerning the injury. Also during their conversation, the Complainant testified that Mr. Fulton asked that he not file a Workplace Safety and Insurance Board (WSIB) claim in respect of the injury, and assured the Complainant that FFI would compensate him during his time off. Subsequent to this conversation, the Complainant testified that he obtained a note from his doctor, which he gave to Mr. Fulton, indicating that he required a week off to allow his leg injury to heal.
[11] During his week off, the Complainant again consulted with his doctor regarding his injury and it was recommended that the Complainant take an additional week off from work to allow his injury to heal. Another note was prepared, dated April 20, 2010, indicating that the Complainant was to be off work from the 12th to the 26th of April. The Complainant phoned Mr. Fulton to indicate that he required another week off from work and could only return to work on April 26, 2010. In response, the Complainant testified that Mr. Fulton requested that he attend at FFI’s yard on April 23, 2010 to clean out his truck to allow another driver to drive it during the Complainant’s absence.
[12] On or about April 23, 2010, the Complainant went to FFI’s yard to meet with Mr. Fulton and to clean out his truck. At that time, the Complainant provided Mr. Fulton with the doctor’s note, dated April 20, 2010. The Complainant claims to have questioned Mr. Fulton as to why, given he was returning to work on the 26th, he had to clean out his truck. The Complainant testified that Mr. Fulton advised him that a new driver was hired to cover his shift and that there was no longer work available for the Complainant. A Record of Employment (ROE), dated April 23, 2010, was issued to the Complainant under code D “illness or injury”. Under “expected date of recall”, the ROE indicates “unknown”. According to the Complainant, at this point, the conversation became heated and during this exchange he claims that Mr. Fulton advised him to “ride out” employment insurance benefits in order to address his “disease”.
[13] At this time, it was the Complainant’s understanding that his employment with FFI was no longer available to him; however, he does recall Mr. Fulton offering him replacement duties should they become available. On this basis, and as he feared refusing a shift could jeopardize his claim for employment insurance benefits, the Complainant worked one more shift with FFI on May 14, 2010, replacing a driver who was sick. Subsequently, the Complainant testified that due to the fact that he had launched the present complaints, he was advised to no longer return to work for FFI because doing so could jeopardize his legal proceedings/complaints against FFI.
[14] Mr. Tim Caskenette also testified as part of the Complainant’s evidence at the hearing of this matter. As indicated above, and confirmed by Mr. Caskenette, he accompanied the Complainant during truck drives to help him stay awake. Apart from not being able to recall the physical exchange of the medical note and the ROE on April 23, 2010, Mr. Caskenette’s testimony was consistent with his witness statement, which he testified was prepared by him independently based on his own memory of the events in question in this complaint. Overall, Mr. Caskenette’s evidence was supportive of the Complainant’s version of the events giving rise to this complaint.
III. Has The Complainant Established a Prima Facie Case of Discrimination? [15] The complainant in proceedings before the Tribunal must establish a prima facie case of discrimination. A prima facie case is “…one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent…” (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536 at para. 28 [O’Malley]). In this case, the Complainant has alleged a contravention of paragraphs 7(a), 7(b) and 14(1)(c) of the Act.
A. Complainant’s allegations under paragraph 7(a) of the Act [16] With regard to his termination, the Complainant alleges that his knee injury and his ongoing treatment for lupus were factors in FFI’s decision to terminate his employment. Given Mr. Fulton’s comments regarding the Complainant’s spouse, the Complainant also claims that his family status was a factor in the decision to terminate his employment. As a result, the Complainant submits that he was discriminated against on the basis of his disability and family status in his employment contrary to paragraph 7(a) of the Act.
[17] Paragraph 7(a) of the Act provides that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual on a prohibited ground of discrimination. In complaints under paragraph 7(a), the complainant must establish a link between a prohibited ground of discrimination and the employer's decision to refuse to employ or continue to employ (see Roopnarine v. Bank of Montreal, 2010 CHRT 5 at para. 49). That said, discrimination does not need to be the only reason for the decision. It is sufficient that discrimination be one factor in the decision (see Holden v. Canadian National Railway Co., [1990] F.C.J. No. 419 (F.C.A.) (Q.L.); and, Khiamal v. Canada (Canadian Human Rights Commission), 2009 FC 495 at para. 61).
[18] In this case, the Complainant suffered a knee injury, a physical impairment which resulted in a functional limitation on his ability to drive a truck. As such, I find the Complainant’s knee injury was a physical disability under the Act (see the definition of “disability” at section 25 of the Act; and, Desormeaux v. Ottawa (City), 2005 FCA 311 at para. 15 [Desormeaux]). Having received from the Complainant a doctor’s note indicating that he could return to work on April 26, 2010, FFI presented the Complainant with an ROE, dated April 23, 2010, indicating code D “illness or injury”. The ROE is an indication that the Complainant was no longer working with FFI as of April 23, 2010. Furthermore, FFI hired a another driver to perform the Complainant’s work and indicated to the Complainant that, although he could return to the workplace once his knee healed, only replacement duties (filling in for drivers who are sick or on vacation) would be made available to him. This is in contrast to the sixty to seventy hour work weeks the Complainant indicated he had been working on a regular basis. While the Complainant may not have been terminated, he was no longer offered continued employment in the same capacity as he had been prior to the injury. This is similar to the situation in Tanzos v. AZ Bus Tours Inc., 2007 CHRT 33, aff’d 2009 FC 1134, where the Tribunal found that an employer’s refusal to return an employee to full-time duties, and only offering her part-time duties following her doctor’s recommendation that she no longer work in the evening, constituted a prima facie case of discrimination under paragraph 7(a) of the Act. Given the Complainant’s evidence, I find that he has established a link between his knee injury and FFI’s decision to issue the ROE and no longer continue to employ the Complainant in the same capacity as he had been employed before.
[19] While the issuance of the ROE arose from the Complainant’s leg injury, the Complainant testified that other discriminatory factors may have factored into FFI’s decision. The Complainant testified that, at the time of the issuance of the ROE on April 23, 2010, Mr. Fulton advised him to “ride out” employment insurance benefits in order to address his “disease”. The Complainant indicated that he informed FFI at the outset of his employment, through both Terence and Stephen Fulton, that his “disease” was Jessner’s, a form of lupus. According to the Complainant, at times his lupus limited his ability to drive a truck. To address those limitations, he requested some time off on occasion and that Mr. Caskenette ride with him. Given this evidence, I am satisfied that the Complainant’s lupus is also a physical disability under the Act (see the definition of “disability” at section 25 of the Act; and, Desormeaux at para. 15). While FFI argued that the Complainant never provided medical documentation to it or to the Tribunal to establish that he has lupus, aside from making this statement, FFI did not challenge the Complainant’s assertion that he suffers from lupus before this Tribunal. Nor was any reason advanced as to why the Complainant’s assertion that he has lupus is not credible. Therefore, given the Complainant’s testimony regarding Mr. Fulton’s comments at the time of the issuance of the ROE, I also find there to be some evidence of a link between the Complainant’s lupus and FFI’s decision to no longer continue to employ him.
[20] Therefore, the Complainant has established a prima facie case of discrimination, on the ground of disability, both his leg injury and his lupus, under paragraph 7(a) of the Act.
[21] With regard to Mr. Fulton’s alleged comments regarding the Complainant’s spouse, the evidence presented by the Complainant indicated that the comments were made in the context of the Complainant’s request for leave following each of the miscarriages. Sufficient evidence was not led to establish that those events and related comments somehow factored into FFI’s decision to issue the ROE in April 2010. As a result, I fail to see a link between Mr. Fulton’s alleged comments regarding the Complainant’s spouse and FFI’s actions in April 2010.
B. Complainant’s allegations under paragraph 7(b) of the Act [22] The Complainant also claims to have been denied accommodation by FFI at the time of his wife’s two miscarriages. As a result, the Complainant submits that he was discriminated against on the basis of family status contrary to paragraph 7(b) of the Act.
[23] Paragraph 7(b) of the Act provides that it is a discriminatory practice, directly or indirectly, to differentiate adversely in relation to an employee in the course of employment on a prohibited ground of discrimination. To “differentiate” is to create a distinction or to treat someone differently (see Tahmourpour v. Canada (Royal Canadian Mounted Police), 2009 FC 1009 at para. 44 [Tahmourpour]; varied on other grounds in Tahmourpour v. Canada (Royal Canadian Mounted Police), 2010 FCA 192 [Tahmourpour (FCA)]; and, Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC 445 at para. 254). However, not every distinction is discriminatory, as the Act qualifies the differential treatment with the term “adversely”. According to the Federal Court, “adverse” is an adjective that in its ordinary meaning means harmful, hurtful or hostile (see Tahmourpour at para. 44; see also Tahmourpour (FCA) at para. 12). Finally, the adverse differential treatment must be based on a prohibited ground of discrimination. In this case, the Complainant argues that he was adversely treated by FFI on the basis of his family status.
[24] In determining the scope of the protection against discrimination on the ground of family status, the Supreme Court of Canada has supported an approach that focuses on the harm suffered by the individual, regardless of whether that individual fits neatly into an identifiable category of persons similarly affected (see B. v. Ontario (Human Rights Commission), 2002 SCC 66 at para. 46 [B]). In this regard, an approach to determining discrimination based on the harm suffered by the individual is reflected in the purpose of the Act at section 2:
all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices..
(Emphasis added)
In the employment context, the Tribunal has stated that section 2 of the Act is a clear recognition, within the context of "family status", of an individual’s right and duty to strike a balance between work and family obligations, coupled with a clear duty on the part of an employer to facilitate and accommodate that balance (see Brown v. Canada (Department of National Revenue), 1993 CanLII 683 (CHRT) at p. 20 [Brown]). On this basis, the Tribunal has recognized that the scope of “family status” can also include an individual’s duties and obligations within the family (see Brown; Hoyt v. Canadian National Railway, 2006 CHRT 33 [Hoyt]; Johnstone v. Canada Border Service Agency, 2010 CHRT 20 [Johnstone]; and, Seeley v. Canadian National Railway, 2010 CHRT 23 [Seeley]).
[25] The British Columbia Court of Appeal has suggested that only a “serious interference” between work and family obligations will result in a prima facie case of family status discrimination in the employment context (see Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260). However, the Tribunal and the Federal Court have rejected this approach as conflating the threshold issue of prima facie discrimination with the second-stage bona fide occupational requirement analysis; and, as creating a hierarchy of grounds of discrimination, where the ground of family status is singled out for a different and more onerous prima facie standard (see Hoyt; Johnstone; Seeley; and, Johnstone v. Canada (Attorney General), 2007 FC 36).
[26] FFI argues that the requirements to establish a prima facie case of discrimination based on family status are as follows:
the evidence must demonstrate that family status includes the status of being a Parent and includes the duties and obligations as a member of society and further that the Complainant was a parent incurring those duties and obligations. As a consequence of those duties and obligations, combined with an employer rule, the Complainant was unable to participate equally and fully in employment with her employer
(Johnstone at para. 55)
Based on these requirements, FFI argues that the Complainant does not qualify as being a parent; that there is no employer rule inhibiting the Complainant from participating equally and fully in his employment; and, that the request to extend the definition of family status to cover the circumstances of this case stretches the definition beyond that of any prior jurisprudence and beyond a reasonable interpretation.
[27] While the requirements outlined in Johnstone are instructive, they cannot automatically be applied in a rigid or arbitrary fashion in every case. Rather, the circumstances of each case must be considered to determine if the Complainant has established a prima facie case pursuant to the test established in O'Malley. I would add that the Act does not define the term “family status” as some provincial legislatures have chosen to do under their respective human rights schemes (see for example the definition of “family status” at subsection 10(1) of the Human Rights Code of Ontario; and, paragraph 44(1)(f) of the Alberta Human Rights Act). Therefore, Parliament has left it to the Tribunal to ascertain the meaning of the term “family status”. I have also not been referred to any jurisprudence that restricts the definition of “family status” under the Act to being a parent or being in a parent-child relationship. As was stated above, in determining the scope of the protection against discrimination on the ground of family status, the focus is on the harm suffered by the individual, regardless of whether that individual fits neatly into an identifiable category of persons similarly affected (see B at para. 46). =
[28] In the circumstances of this case, the Complainant testified as to the pain he felt for not being there to support his wife during and after the miscarriages. He also testified as to the grief he experienced as a result of the lost pregnancies and the continuing effect that those losses have had on him. With specific regard to the second miscarriage, the Complainant testified that it still hurts him today that he was not there to be with his wife during and after the miscarriages. He explained that the experience with the miscarriages has made him fearful of getting pregnant again and that he avoids interacting with other people who may be pregnant. He claims he has become depressed by not having time to mourn the loss of the pregnancies and that this in turn has affected his home life. The Complainant claims he is now seeking counseling to address these issues.
[29] In their closing submissions, the Respondents stated that the Complainant’s testimony clearly demonstrated an individual with deep feelings regarding the miscarriages suffered by his spouse. I agree, but I believe it is more appropriate, given these circumstances, to characterize the loss of the pregnancies as suffered by the Complainant and his spouse together, as a family. The relationship between spouses is protected by the ground of family status (see meaning of “family status” in Schaap v. Canadian Armed Forces, 1988 CanLII 125 (CHRT) at p. 27, rev'd on other grounds [1989] 3 F.C. 172 (C.A.); and, in Justice Walter Surma Tarnopolsky & William F. Pentney, Discrimination and the Law, Vol. 2 (Toronto: Carswell, 2004) at p. 9-3).
[30] In the situation where his wife had complications related to her pregnancies and had to go to the hospital, the Complainant felt he had an obligation within his family to be there with her to provide comfort and support. When the pregnancies were lost, the Complainant also felt he had an obligation within his family to take time off to grieve the losses with his wife. The Complainant claims to have asked FFI for time off to address these family obligations, but was denied such leave.
[31] In denying his request for time off, the Complainant claims that FFI created a hurtful distinction between the Complainant’s family obligations and work obligations. As described above, this distinction, which resulted in the Complainant not being able to attend to his family obligations, caused the Complainant some pain. According to the Complainant, there was no attempt to facilitate a balance between his family and work obligations. Rather, based on the Complainant’s evidence, FFI was only concerned with ensuring that the Complainant got his job done, without consideration of his family obligations. On this basis, I am satisfied that the Complainant has established a prima facie case of discrimination, on the ground of family status, pursuant to paragraph 7(b) of the Act.
C. Complainant’s allegations under paragraph 14(1)(c) of the Act [32] Paragraph 14(1)(c) of the Act provides that it is a discriminatory practice, in matters related to employment, to harass an individual on a prohibited ground of discrimination. Throughout his employment with FFI, the Complainant claims to have been harassed by Stephen Fulton, contrary to paragraph 14(1)(c) of the Act. Specifically, the Complainant claims that Mr. Fulton made continuous use of profane language in addressing and directing him; that the Respondent refused to accommodate his reasonable requests without consideration or explanation; and, that the Respondent routinely threatened to terminate his employment in the event “he chose to exercise his statutory rights” or when the Complainant raised concerns about compliance with hours of work regulation. The Complainant adds that the Respondent routinely dismissed the severity of the miscarriages or their aggregate impact on him. In this regard, in addition to the comments the Respondent made at the time of the miscarriages, the Complainant testified that the Respondent also made a comment to the effect that “maybe if you got rid of your wife, you could actually work harder and wouldn’t have to worry about going home to spend time with your wife”. In the context of discussing his lupus, the Complainant also claims that Mr. Fulton suggested that he ask his doctor about medicinal marijuana.
[33] Within the meaning of section 14 of the Act, harassment has been defined as unwelcomed conduct, directed at another person on the basis of a prohibited ground of discrimination. By its definition, harassment generally requires an element of persistence or repetition; however, the more serious the conduct and its consequences, the less repetition may be necessary. The severity of the impugned conduct is assessed from the perspective of the reasonable person in the circumstances (see Janzen v. Platy enterprises ltd., [1989] 1 SCR 1252; and, Canada (Human Rights Commission) v. Canada (Armed Forces), [1999] 3 FC 653).
[34] With regard to the allegations of the use of profane language and the threats related to statutory rights/hours of work, the Complainant did not establish that these acts were related to a prohibited ground of discrimination. I would add that the Complainant’s allegations relating to his family obligations were addressed above under paragraph 7(b); and, aside from FFI’s reasons for issuing the ROE, the Complainant testified that he did not have a complaint regarding FFI’s actions with regard to his lupus.
[35] In discussing the comment made by Mr. Fulton with regard to medicinal marijuana, the Complainant testified that he was not sure whether the comment was an actual suggestion or was just a joke. Either way, the Complainant’s testimony did not establish that the marijuana comments persisted beyond the one incident or that the severity of the one comment was such that it constituted harassment.
[36] I also find that there is insufficient evidence to establish harassment on the basis of the Complainant’s allegation that Mr. Fulton routinely dismissed the severity of the miscarriages or their aggregate impact on him. The Complainant testified about the comments the Respondent made at the time of the miscarriages, however, there was little evidence regarding any persistency in these comments outside of when the Complainant made requests for time off. While the Complainant, in his testimony, claims that the Respondent made an additional comment to the effect that the Complainant should get rid of his wife, the Complainant did not elaborate as to when this comment was made, the context in which it was made, or whether this persisted beyond the one incident.
[37] Persistency aside, I also find that the severity of the comments does not meet the threshold to establish harassment. Mr. Fulton’s alleged comments are focused on the Complainant fulfilling his employment obligations. While such a focus may have been insensitive to the Complainant’s circumstances and family obligations, the Complainant did not indicate that the comments themselves seriously affected him. Rather, my understanding of the Complainant’s testimony was that it was the denial of the time off itself that caused the Complainant pain in dealing with the miscarriages. I would add that the Complainant acknowledged that Mr. Fulton’s comments regarding the miscarriages were influenced by his own experience with having suffered a miscarriage. Mr. Fulton’s way of dealing with the grief was to get his mind off of it by working. While this strategy may not have been acceptable to the Complainant and the communication of such a perspective may have been done in an insensitive manner, I find this adds context to the comments made by Mr. Fulton and contributes to my finding that the severity of the comments does not meet the threshold for establishing harassment.
[38] Given the reasons above, I do not find the Complainant to have established a prima facie case under paragraph 14(1)(c) of the Act.
IV. Respondent’s Evidence [39] For the reasons detailed above, I have found that the Complainant has established a prima facie case of discrimination under paragraphs 7(a) and 7(b) of the Act on the grounds of disability and family status. Once a complainant has established a prima facie case of discrimination, the respondent must demonstrate that the prima facie discrimination did not occur as alleged or that the practice is justifiable under the Act.
[40] At the hearing of this matter, Stephen Fulton testified on behalf of FFI.
A. Response to the Complainant’s prima facie allegations under paragraph 7(a) of the Act [41] Mr. Fulton testified that the Complainant was informed, prior to injuring his knee, that another driver would share his duties with him. According to Mr. Fulton, the decision to hire another driver was in response to the Complainant’s notification that he could no longer drive at night safely. According to Mr. Fulton, the Complainant was also advised in April 2010 of the loss of much of FFI’s day work and the lack of work which could accommodate the no night driving requirement of the Complainant.
[42] According to Mr. Fulton’s testimony, following his knee injury, the Complainant phoned Mr. Fulton to inform him that he had slipped in the yard. Mr. Fulton says that the Complainant initially informed him that it would be six months to heal the injury. Mr. Fulton claims he offered to submit a WSIB claim, however, the Complainant said not to worry as he would say he hurt himself at home. During their phone conversion, Mr. Fulton claims to have also discussed the option of claiming employment insurance benefits to cover the Complainant’s absence from work.
[43] The genesis of the April 23, 2010 meeting at the yard was a request by the Complainant to remove his personal belongings from his truck, now being driven by another driver. When the Complainant arrived at the yard on April 23, 2010, Mr. Fulton claims he was limping and appeared to be in a lot of pain. While Mr. Fulton was provided with a note dated April 20, 2010 advising that the Complainant was unable to work for the period of April 12 to April 26, 2010, he requested a further and better medical note beyond the brief note provided. According to Mr. Fulton, the Complainant refused to provide a further note citing the cost of having to do so.
[44] Overall, Mr. Fulton testified that his reasons for issuing the ROE were because the Complainant advised that his “disease” would no longer allow him to drive at night and that FFI’s daytime work was drying up. Mr. Fulton stated that he explained to the Complainant that “you got to deal with your disease” and that FFI does not have short-term disability leave benefits, whereas Employment Insurance can provide him with that type of benefit. In their closing submissions, at paragraph 31, FFI added:
Given the lack of work and Closs having failed to provide medical clearance for [a] return to work and his ongoing advice as to a host of medical related issues and the lack of disability leave benefits Fulton advised Closs he could obtain Employment Insurance and this would permit him time to deal [with] his medical appointments and his reported disease.
[45] FFI maintains that they did not terminate the Complainant. Rather, they note that an ROE is not a dismissal notice and that, following the issuance of the ROE, there was an offer of continued shifts in May 2010. Following his shift on May 14, 2010, the Complainant did not report for further shifts.
[46] While the Complainant may not have been terminated at the time of the issuance of the ROE, FFI did not dispute that from that point forward it was no longer continuing to employ the Complainant in the same capacity as he was before. Whereas the Complainant was hired as a part-time driver, and would sometimes work up to seventy hours in a week; following the issuance of the ROE, he was only offered work as a replacement driver when other drivers were sick or otherwise absent from work.
[47] It is curious that despite requesting further medical documentation regarding the Complainant’s leg injury, and the effects that the injury may have on the Complainant’s ability to drive a truck, FFI was still willing to have the Complainant drive a truck for them should it need a replacement driver. On this basis, without providing further medical documentation that his leg injury was healed, the Complainant was asked to work other shifts for FFI in May 2010. Therefore, I do not accept that the Complainant’s refusal to provide further medical documentation regarding his ability to return to work factored into FFI’s decision to issue the ROE. Nor do I accept that the ROE was issued to allow the Complainant to claim employment insurance benefits when FFI did not offer short-term disability benefits. This is not credible given that the ROE is dated April 23, 2010, and the Complainant was off work starting April 12, 2010; and, furthermore, the ROE is inconsistent with the Complainant having presented Mr. Fulton with a doctor’s note indicating he could return to work.
[48] While the circumstances giving rise to the issuance of the ROE were in relation to the Complainant’s request for time off following his leg injury, by Mr. Fulton’s own admission, FFI’s decision to issue the ROE was primarily motivated by the Complainant’s “disease” and its inability to accommodate the Complainant’s alleged request to no longer drive at night. This is reinforced by the Respondents’ closing submissions which indicate that “Given...his ongoing advice as to a host of medical related issues...Employment Insurance...would permit him time to deal [with] his medical appointments and his reported disease”. In his testimony, Mr. Fulton also admitted that he had some concern about potential abuse of time off by the Complainant, but did not pursue those concerns with the Complainant. From these statements, it appears as though FFI either did not believe that the Complainant’s request for time off in April 2010 was related to his leg injury or they were just unwilling to entertain any further requests for time off from the Complainant. This is reinforced by the fact that, despite getting a doctor’s note indicating he could return to work, FFI issued the ROE.
[49] Despite Mr. Fulton’s reasons for issuing the ROE, FFI argues that the Complainant never provided medical documentation to it or to the Tribunal to establish that he has lupus. As stated above, aside from making this statement, FFI did not challenge the Complainant’s assertion that he suffers from lupus before thi