Hugie v. T-Lane Transportation and Logistics

Hugie v. T-Lane Transportation and Logistics
Collection
Canadian Human Rights Tribunal
Date
2021-08-19
Neutral citation
2021 CHRT 27
File number(s)
T2405/6419
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
Age
Disability
Summary:
Ms. Karen Hugie worked at T-Lane Transportation and Logistics as a dispatcher. In 2016, she had two serious heart problems. After the first, Ms. Hugie returned to work. Although she was sick, she was able to do her job normally. But, after the second heart problem, she had surgery and took sick leave from her job at T-Lane. Before she left, T-Lane hired another dispatcher. Ms. Hugie trained her replacement.
Ms. Hugie returned from sick leave on June 12, 2017. That day, her replacement was at her desk and doing her work. Ms. Hugie heard rumours from other employees that the boss was going to fire her. She went to see her boss, and he fired her. Ms. Hugie found out later that other employees knew she would be fired as soon as she returned from sick leave.
Ms. Hugie says that her boss fired her because she has a heart condition and is older than her replacement. As her heart condition is a type of disability, she claims that T-Lane is not permitted to discriminate against her on the grounds of disability or age.
T-Lane says that Ms. Hugie was fired because it could not afford her high salary. The company was allegedly not doing well financially and had to make cuts. Ms. Hugie was paid more than her replacement. T-Lane says that Ms. Hugie’s disability or age had nothing to do with her firing.
The Tribunal decided that T-Lane discriminated against Ms. Hugie because of her disability but not her age. Although Ms. Hugie was fired in part because T-Lane was having financial trouble, there was a connection between her firing and heart condition.
To reach this conclusion, the Tribunal considered that she was fired right after she returned from sick leave. This was planned by T-Lane even before Ms. Hugie left on sick leave. The Tribunal found that she was not fired because she was a bad worker. Ms. Hugie did her job well and had not received any complaints about her work. Therefore, T-Lane had no reason to fire Ms. Hugie except for her disability and its financial troubles.
To compensate Ms. Hugie, the Tribunal ordered T-Lane to pay her the lost wages she would have earned had she not been fired. T-Lane was also ordered to pay Ms Hugie $12,000 for her pain and suffering and another $12,000 because T-Lane intentionally and carelessly fired her.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT
27
Date:
August 19, 2021
File No.:
T2405/6419
Between:
Karen Hugie
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
T-Lane Transportation and Logistics
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Background of complaint 1
II. Issues 1
III. Legal basis for discrimination 2
IV. Analysis 4
A. Preliminary remarks – Ms. Knowles’s testimony 4
B. Parties involved – Ms. Hugie and T-Lane 6
(i) Prohibited grounds of discrimination 8
a) Disability 8
b) Age 10
(ii) Adverse effects and link to prohibited grounds of discrimination 10
a) Legal framework 10
b) Facts 11
c) Cardiac events 14
d) Complainant’s termination on June 12, 2017 18
e) Work environment at T-Lane 21
f) Termination under paragraph 7(a) of the CHRA 25
C. Respondent’s defence and exculpation from CHRA presumption (paragraph 15(1)(a) and subsection 65(2) of the CHRA) 33
D. Remedies 34
(i) Compensation for lost wages and other expenses (paragraph 53(2)(c) of the CHRA) 34
a) Lost wages between June 12, 2017, and early March 2018 34
b) Lost wages for salary difference 39
c) Extra taxes 42
d) Order to appoint an actuary 43
(ii) Expenses incurred as result of discriminatory practice (paragraphs 53(2)(c) or (d) of the CHRA) 43
a) Travel expenses to attend hearing 43
b) Cost of moving to Alberta 44
c) Reimbursement of medical expenses 45
d) Expenses 46
(iii) Pain and suffering (paragraph 52(2)(e) of the CHRA) 47
(iv) Special compensation (subsection 53(3) of the CHRA) 49
a) Ms. Knowles and her alleged breach of oath 53
b) Situation involving Ms. Germain at hearing 54
(v) Interest 55
V. Orders 56
I. Background of complaint
[1] This decision of the Canadian Human Rights Tribunal (the “Tribunal”) deals with the complaint of Ms. Karen Hugie (the “Complainant”) against T-Lane Transportation and Logistics (the “Respondent” or “T-Lane”), under section 7 of the Canadian Human Rights Act (the “CHRA”).
[2] Ms. Hugie alleges that she suffered adverse treatment when she was terminated by her former employer, T-Lane, because of her disability or age (subsection 3(1) of the CHRA).
[3] T-Lane’s main argument is that Ms. Hugie’s dismissal had nothing to do with her disability or age and that the reason for her termination was purely financial. Therefore, there is no link, no connection, between the alleged discriminatory act and the prohibited ground of discrimination.
[4] Ms. Hugie’s complaint was filed with the Canadian Human Rights Commission in October 2017, and the complaint was referred to the Tribunal in July 2019. Hearings were held via video conference over seven days—August 31 to September 4 and September 23, 2020—and final arguments were heard on October 20, 2020.
[5] For the reasons set out later in this decision, the Tribunal finds that Ms. Hugie’s complaint is partly substantiated (subsection 53(2) of the CHRA).
II. Issues
[6] The issues in this complaint are clear:
Was the Complainant terminated by T-Lane because of her disability or age under section 7 of the CHRA?
[7] If the answer is yes:
Was T-Lane able to present a defence under the CHRA, that is, was it able to justify the dismissal under section 15 of the CHRA?
Was T-Lane able to rebut the presumption under subsection 65(1) of the CHRA, if applicable?
[8] If the answer is no:
What remedies are available to the Complainant under the CHRA?
III. Legal basis for discrimination
[9] As the Tribunal has consistently stated, the purpose of the CHRA is to ensure that all individuals 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 based on prohibited grounds (section 2 of the CHRA).
[10] The case law on discrimination is consistent in that a complainant has the initial burden of proof to meet on a balance of probabilities (commonly referred to as a prima facie case of discrimination).
[11] To this end, the complainant must present evidence that, in the absence of contrary evidence, “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‑employer” (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), at paragraph 28 [Simpsons-Sears]).
[12] Specifically, Ms. Hugie must establish, as a first step, the following three elements:
1) that her situation implicates one or more prohibited ground of discrimination under subsection 3(1) of the CHRA (in this case, disability or age);
2) that she has been adversely impacted by T-Lane under section 7 of the CHRA (which relates to employment); and
3) that the prohibited ground of discrimination was a factor in the occurrence of the adverse impact, i.e. that there is a link between the prohibited ground of discrimination and the adverse impact.
(Moore v. British Colombia (Education), 2012 SCC 61, at paragraph 33 [Moore] and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 789, at paragraph 63 [Bombardier] ; Simpsons‑Sears, at paragraph 28).
[13] The case law also recognizes that it is not necessary to show intent to discriminate, just as it is not necessary to prove that the prohibited ground of discrimination was the sole factor in the adverse impact (Bombardier, at paragraphs 40 and 44; Holden v. Canadian National Railway, (1991) 1990 CanLII 12538 (FCA), at paragraph 7 [Holden]).
[14] The Tribunal has repeatedly stated that discrimination is generally not overt or intentional. Therefore, it must consider all the circumstances of the complaint at the hearing to determine whether there is a “subtle scent of discrimination” (Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT)).
[15] In addition, inferences may be drawn by the Tribunal from circumstantial evidence where the evidence presented in support of allegations makes such an inference more likely than other possible inferences or assumptions. However, the circumstantial evidence must still be tangibly related to the impugned decision or conduct of the respondent (Bombardier, at paragraph 88).
[16] When deciding whether a complainant has met its burden of proof, the Tribunal must analyze the evidence presented – including the respondent’s evidence – as a whole.
[17] For example, the Tribunal could determine that the complainant has not met their burden of proof if the evidence presented is not sufficient or complete on a balance of probabilities, or if the respondent was able to present evidence to refute the allegations (Brunskill v. Canada Pose Corporation, 2019 CHRT 22, at paragraphs 64 and 65 [Brunskill]; Nielsen v. Nee Tahi Buhn Indian Band, 2019 CHRT 50, at paragraph 47 [Nielsen]; Tracy Polhill v. Keeseekoowenin First Nation, 2019 CHRT 42, at paragraph 58 [Polhill]; Willcott v. Freeway Transportation Inc., 2019 CHRT 29, at paragraph 12 [Willcott]).
[18] Conversely, if the complainant meets their burden of proof, then it is up to the respondent to present a defence under section 15 of the CHRA by demonstrating that its conduct was justified. The respondent could also present evidence to limit its liability, where applicable, under subsection 65(2) of the CHRA.
[19] It is with these legal foundations in mind that the Tribunal will analyze the evidence presented by the parties at the hearing.
IV. Analysis
A. Preliminary remarks – Ms. Knowles’s testimony
[20] The hearing was conducted by videoconference, as authorized by the Tribunal in Hugie v. T-Lane Transportation and Logistics, 2020 CHRT 25 [Hugie]. The hearing generally went well, with the parties raising difficulties they encountered with the Tribunal. Some technical issues were resolved, and the parties worked very well together. The Tribunal had clear and precise guidelines in place to guide them through the virtual process, including the filing of exhibits, written arguments and case law. The Tribunal acknowledges the efforts of the parties and their counsel to ensure that the hearing ran smoothly.
[21] The Tribunal also ensured that the rules applicable to witnesses were clear and explicit. They were discussed on various occasions with the parties. The Tribunal also ensured that the witnesses who appeared before it to give evidence complied with the rules.
[22] As the Tribunal has already established, holding a hearing by videoconference is “an entirely appropriate alternative to an in-person hearing, one that is fair and equitable and that protects the principles of natural justice and procedural fairness” (Hugie, above, at paragraph 21). It is not a perfect solution, but in certain circumstances, such as the global health crisis caused by COVID-19, it is sometimes one of the best solutions available to the Tribunal and the parties to proceed with the hearing. That being said, there are also disadvantages to its use, and it can bring its share of surprises.
[23] In this case, T-Lane called one of its employees, Ms. Rhonda Knowles, to testify. Upon returning from a break, during Ms. Knowles’s testimony, counsel for the Complainant raised a particular situation that had come up. While the Tribunal had suspended the hearing for a few minutes for a break, Ms. Knowles walked away from the camera on her computer without turning off her microphone. According to Ms. Hugie, her counsel and her articling student, they heard a female voice discussing her testimony with two other men. After the break, counsel raised this irregularity with the Tribunal.
[24] After a voir dire with the parties during which the parties and the Tribunal agreed on how to proceed with this sensitive and extraordinary situation, Ms. Knowles explained that she had not spoken to anyone else about her testimony. The parties did not request any further action by the Tribunal at that time, despite its prompt intervention to manage the situation.
[25] However, in her final arguments, the Complainant submitted that the Tribunal should take this situation into consideration in assessing the weight and truthfulness of Ms. Knowles’s testimony, and also consider her inability to keep her oath.
[26] The Tribunal considers that it is not necessary to go as far as the Complainant suggests. For one thing, virtually all of Ms. Knowles’s testimony was given before this incident occurred. And it should be noted that the incident was not recorded as it was a break and neither the Tribunal nor the Respondent saw what allegedly happened. Ms. Knowles also denied, when specifically asked by the Tribunal under oath, that she had discussed her testimony with other individuals.
[27] On the other hand, and more importantly, the testimony of Ms. Knowles, while relevant on some points, was certainly not determinative of Ms. Hugie’s case. The Tribunal is well able, as will be discussed in the remainder of this decision, to reach its conclusions without the testimony of Ms. Knowles being fundamentally conclusive in the circumstances (for similar comments, see Polhill, at paragraphs 30 to 39).
[28] Moreover, some of her testimony was corroborated by other testimony or documentary evidence, allowing the Tribunal to conclude that her testimony is not irreparably tainted by what allegedly happened. It should also be noted that Ms. Hugie bases some of her final arguments on Ms. Knowles’s own testimony. It must therefore be noted that rejecting her entire testimony would certainly be problematic.
[29] Having said all this, the Tribunal will, where necessary, give appropriate weight to Ms. Knowles’s testimony in light of the other evidence presented at the hearing and will not exclude her testimony in its entirety.
B. Parties involved – Ms. Hugie and T-Lane
[30] The Tribunal finds it useful to provide an overview of the parties to the complaint in order to put the key players in context.
[31] Ms. Hugie is a woman, aged 62 at the time of the hearing, who was born near Vancouver, British Columbia.
[32] After a difficult childhood, Ms. Hugie began working at a young age. Later on, she decided to continue her education at a vocational school, where she completed her GED (general educational development). She also earned a certificate in stenography.
[33] Several years later, Ms. Hugie married and lived in Lethbridge, Alberta. She remained a stay-at-home mother until her divorce from her husband in 1990. Realizing the need to return to the workforce, she turned to the then-burgeoning new technology and computerization field and took a training program at Lethbridge College to upgrade her knowledge in this area.
[34] Ms. Hugie then went on to work for a company in the transportation field, in Lethbridge. She noted that there were few women working in this field, especially in the 1990s, and even fewer in operations. The industry was male-dominated, with women being relegated to working in administrative, accounting and payroll roles, as examples.
[35] After a few months in this job, Ms. Hugie was able to advance to the role of dispatcher, a role she held for almost a decade. She was then promoted to operations manager, a rare position in the transportation industry at the time.
[36] After working for this company for several years, Ms. Hugie set out to write a manual on operations and dispatch in the transportation field. Based on her experience, she felt that better practices and procedures could be put in place to improve operations in what she described as a dysfunctional field.
[37] Over the next several years and until 2015, Ms. Hugie worked for various transportation companies, first in Saskatoon, then in Winnipeg, and finally in Abbotsford, British Columbia. She worked on restructuring the operations of these companies and played a key role in the complex transfer of a major transportation company’s operations from Winnipeg to Toronto and in the merger of the operations of various entities acquired by the same company.
[38] It was in 2015 that the complainant and T-Lane entered into a working relationship. It is not clear from the evidence presented whether it was a mutual acquaintance that introduced them to each other, or whether Ms. Hugie responded to a job advertisement. In any event, it can be concluded that Ms. Hugie and T-Lane came into contact in 2015, regardless of the means, and their professional relationship therefore began during that period.
[39] As for T-Lane, it is a family-owned transportation company based in Mission, British Columbia. The company is run by Mr. Timothy R. Germain (“Mr. Germain”), who owns it with his wife.
[40] At the time of the hearing, the company had been in the business of transporting goods in North America and internationally for over 21 years. At the time of the events, T‑Lane owned and operated five different terminals across Canada, each with its own employees.
[41] The evidence shows that T-Lane was, in 2015, a profitable company that was growing nicely and had made several acquisitions in the transportation field to expand its operations. For the Respondent, hiring Ms. Hugie was part of this prosperous period; T-Lane wanted to restructure its operations.
[42] The Respondent created an operations consultant position specifically for Ms. Hugie. Ms. Hugie began her duties on February 5, 2015. Ultimately, T-Lane terminated Ms. Hugie’s employment on June 12, 2017, the day the Complainant returned to work following approximately 15 weeks of medical leave.
[43] The Tribunal understands that Mr. Germain was not always the manager of the day-to-day operations of the company during the period that Ms. Hugie was an employee. In 2016 and early 2017, Mr. Dave Holeman was in charge of the day-to-day operations of the company. He left T-Lane in January 2017, and that is when Mr. Germain took the helm of the day-to-day management of the company.
(i) Prohibited grounds of discrimination
[44] The two prohibited grounds of discrimination cited by Ms. Hugie in her complaint to the Tribunal are disability and age (subsection 3(1) of the CHRA).
a) Disability
[45] The Tribunal does not intend to dwell on this prohibited ground of discrimination since it is not disputed by the Respondent. On the contrary, the Respondent acknowledges in its closing argument that age and disability are prohibited grounds of discrimination that apply to Ms. Hugie. Most importantly, the Respondent acknowledges that Ms. Hugie has medical conditions that qualify as “disabilities” within the meaning of the CHRA.
[46] Ms. Hugie presented compelling evidence to the Tribunal of her particular medical condition. Among other things, Ms. Hugie suffers from ischemic heart disease, hypertension and high cholesterol. Ms. Hugie’s testimony as to her medical condition and state of health was precise, detailed and convincing. She was able to describe her diagnosis, the various incidents that occurred and that are related to her health, the state of her heart, her symptoms, her functional limitations, the type of surgery she underwent, her convalescence and the medications she was taking.
[47] The Tribunal adds that her testimony supported the extensive medical documentary evidence submitted at the hearing which also detailed her health status including follow‑ups with her health care staff. The evidence also shows that Ms. Hugie suffered two serious cardiac events in her lifetime.
[48] She was able to demonstrate to the Tribunal the limitations imposed on her by her medical condition and the state of her heart. She described experiencing, prior to her surgery, chest pain related to angina, and a general lack of stamina and vigour. She had to be mindful of her stress levels and nutrition and had to get up several times a day and walk, stretch her legs, to get her through her long workdays. She also had to inhale nitro a few times a day to treat her symptoms.
[49] As such, the Tribunal recalls that section 25 of the CHRA defines the term “disability” as follows:
disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug;
[50] This definition is written in relatively broad terms. As a result, the case law becomes useful in informing and guiding the Tribunal in interpreting the concept of “disability” or “impairment” for the purposes of the CHRA.
[51] In this regard, the Tribunal wrote in Brunskill at paragraph 72, recalling Temple v. Horizon International Distributors, 2017 CHRT 30, at paragraphs 38 to 40, as follows:
. . . the ground of “disability” has been subject to interpretation, most notably in Audet v. Canadian National Railway, 2005 CHRT 25, at para. 39 [Audet]. Audet reiterates the Federal Court of Appeal’s interpretation of “disability” in Desormeaux v. Corporation of the City of Ottawa, 2005 FCA 31, at paragraph 15, and defines this term as “any physical or mental impairment that results in a functional limitation, or that is associated with a perception of impairment”.
[52] The same reasoning was used in Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18, at paragraphs 181 to 183 [Duverger] and in André v. Matimekush-Lac John Nation Innu, 2021 CHRT 8 (CanLII) [André], at paragraphs 39 to 41.
[53] This is all that is required to satisfy the Tribunal that, on a balance of probabilities, the evidence supports the conclusion that Ms. Hugie was physically disabled (subsection 3(1) of the CHRA) at the time of the events alleged in her complaint. Her physical disability also caused her, as noted above, to have significant functional limitations in her life, including her work.
b) Age
[54] As to the prohibited ground of discrimination of “age”, there is little to be said on this point. This ground is prima facie applicable in the circumstances of this case (subsection 3(1) of the CHRA).
[55] That being said, and for reasons that will be detailed later in this decision, the Complainant has not been able to satisfy the Tribunal, on a balance of probabilities, that there is a link between the ground of “age” and her dismissal by T-Lane.
(ii) Adverse effects and link to prohibited grounds of discrimination
a) Legal framework
[56] The Tribunal has carefully reviewed the complaint, the statements of particulars, the evidence presented at the hearing and the closing arguments of each party.
[57] In her final arguments, the Complainant alleges that T-Lane discriminated against her in her employment under section 7 of the CHRA. This is confirmed later in her final written submissions, particularly at paragraph 121, where she correctly states that the burden of proof is on her to show prima facie discrimination (Moore, above). She adds that once a prima facie case of discrimination has been established, the burden of proof shifts to the Respondent to show that the termination was not based on her disability.
[58] Again, in her final arguments, the Complainant writes, at paragraph 123, that she must prove three elements:
a) that she has a disability;
b) that the Respondent terminated her employment; and
c) that her physical disability was a factor in her termination.
[59] Following the same line of reasoning, she alleges, at paragraphs 137 to 139 of her final arguments, that she was subjected to adverse treatment when she was terminated by T‑Lane and elaborates, in the following paragraphs, on the link between her termination and her disability.
[60] The Respondent, on the other hand, states in its final arguments that paragraph 7(a) of the CHRA is at the heart of Ms. Hugie’s complaint and therefore focuses its analysis on the allegations surrounding the dismissal that occurred on June 12, 2017.
[61] The Tribunal agrees, paragraph 7(a) of the CHRA specifically applies in the present circumstances. It provides that no person shall, by direct or indirect means, refuse to continue to employ an individual because of a prohibited ground of discrimination.
[62] It is with this legal framework in mind that the Tribunal will analyze whether there is a link or nexus between the prohibited grounds of discrimination alleged by Ms. Hugie and her termination by T-Lane.
b) Facts
[63] At the hearing, the parties filed extensive evidence, including much documentary evidence, and called no fewer than eight witnesses. The Tribunal considers that much of the evidence presented by the parties is irrelevant or not determinative or conclusive in the circumstances.
[64] The Tribunal will not dwell on these elements and will focus its analysis only on what it deems necessary, essential and relevant to the determination of the issues and the disposition of the complaint (Turner v. Canada (Attorney General), 2012 FCA 159 (CanLII), at paragraph 40; Constantinescu v. Correctional Service of Canada, 2020 CHRT 3 (CanLII) at paragraph 54; Karas v. Canadian Blood Services and Health Canada, 2021 CHRT 2 (CanLII), at paragraph 32).
[65] In his testimony, Mr. Germain explained that in 2015, the company had made acquisitions and was interested in Ms. Hugie’s specific expertise in restructuring operations in the transportation field.
[66] The Tribunal understands that Ms. Hugie’s position was substantial, given her role and responsibilities. That said, the parties disagree as to whether or not this role was a “senior” one in the company. In practice, the Tribunal finds that this issue is not determinative in the circumstances. Suffice it to say that her role was quite significant, given her responsibilities and salary of $102,000 per year.
[67] The evidence does not reveal any particular difficulties at the beginning of Ms. Hugie’s employment with T-Lane. She began work on February 5, 2015, and email exchanges between her and the company were positive.
[68] It appears that both Ms. Hugie and T-Lane were eager to begin their professional relationship. At the beginning of her employment with T-Lane, Ms. Hugie was given an orientation day during which she was assigned a desk. She also reviewed with Ronda Knowles various components of T-Lane, including the system used by the company and corporate policies.
[69] The evidence shows that Ms. Hugie’s work quickly changed. She explained that although she was hired as an operations consultant, she found herself taking on some of the responsibilities of the dispatch department within her first weeks of employment.
[70] In this regard, she stated that she reported back to Dave Holeman, who was at that time the chief of operations (COO) of T-Lane. Otherwise, she reported directly to the owner of T‑Lane, Mr. Germain.
[71] The original plan with Mr. Holeman was that she would travel to various T‑Lane offices in New Brunswick and Alberta, among other places, to review their operations. Following this review, Ms. Hugie would be in a position to begin restructuring the company’s operations.
[72] The evidence shows that Jeff White, the operations manager, approached Ms. Hugie and asked her to take on responsibilities in the dispatch department due to the departure of an employee, to which she agreed. However, Ms. Hugie quickly realized that the responsibilities she had been assigned were substantial and, in practice, amounted to a full-time position.
[73] Ms. Hugie advised Mr. White and Mr. Holeman of the situation and told them that, because of the high workload, it was impossible for her to travel to the other T-Lane offices as planned to review their operations. Ms. Hugie continued her work as a dispatcher. In the evenings, when she was at home, she worked on her other mandate of restructuring operations in her role as operations consultant.
[74] Later, the Complainant was approached again by her supervisors, Mr. White and Mr. Holeman, to take on another position, that of local and regional dispatcher, which she did. Again, Ms. Hugie said this was also a full-time job. T-Lane attempted to find an employee to fill this role, whom Ms. Hugie trained. Unfortunately, the employee left the job before completing the training.
[75] Ms. Hugie explained that, in the meantime, another employee responsible for long-haul dispatch had been terminated by T-Lane. She was therefore asked to take on that role, which she did. Ms. Hugie also trained another person for the local and regional dispatcher position, but that person had to take time off from work for a period of time. Ms. Hugie ended up doing both jobs for a while.
[76] When the employee returned to work, she resumed her position as a local and regional dispatcher, allowing Ms. Hugie to concentrate on her position as a long-haul dispatcher. However, the heavy-haul dispatcher was also terminated by T-Lane. Ms. Hugie testified that this was when her long-haul dispatcher position and the heavy-haul dispatcher position were merged. Ms. Hugie was the one who ended up in this new unified position. Ms. Hugie explained to the Tribunal that she had a large fleet of trucks in her care at the time, which she maintained until she went on medical leave in March 2017.
[77] At the hearing, the respondent attempted to justify the change in Ms. Hugie’s role from operations consultant to dispatcher. In this regard, the Tribunal heard some explanations in the cross-examination of Mr. Germain. Among other things, he tried to explain that employees can change roles, particularly if the employee does not appreciate their work.
[78] With respect to Ms. Hugie and her change of role to dispatcher, the evidence shows that Mr. Germain was not, at the time of the transfer, her direct supervisor; rather, she was reporting to Mr. Holeman and Mr. White. While Mr. Germain attempted to explain this transfer from operations consultant to dispatcher, the evidence shows that he knew little, in fact, about Ms. Hugie’s situation. Moreover, the evidence reveals that Mr. Germain only took back control of his company’s activities in January 2017, when the company’s financial situation was deteriorating. It was at that time that he realized that Ms. Hugie was a dispatcher, with the same working conditions as an operations consultant. Therefore, the Tribunal considers that Mr. Germain’s testimony was not very useful on this point, nor was it determinative in the circumstances.
[79] Moreover, the Tribunal finds that the evidence demonstrates that Ms. Hugie did not choose to become a dispatcher; she was asked by her supervisors to take on responsibilities in the dispatch department. Several witnesses, including David Fehr, Maureen Breu and Ms. Knowles, also confirmed their understanding that Ms. Hugie was simply a dispatcher at T-Lane.
[80] The evidence also reveals that Ms. Hugie’s work appeared to be valued and that she had no performance issues. Although the Respondent raised this point initially in its Statement of Particulars, this position was not supported by persuasive evidence at the hearing. On the contrary, the evidence supports the fact that Ms. Hugie was generally doing a good job. This was confirmed not only in Mr. Germain’s testimony, but also in the documentary evidence submitted, including an email about the Complainant’s performance sent by her supervisor, Mr. Holeman, to Ms. Knowles a few months into her employment.
c) Cardiac events
[81] In July 2016, a tragic event changed Ms. Hugie’s life. Specifically, on July 20, 2016, the complainant came home late after a long and difficult day at work. When she went outside to water her garden, her left arm went numb. She had no strength in her hand and experienced severe chest pains. Ms. Hugie was unable to finish watering her garden.
[82] Afterwards, the same sensation occurred in her right arm: numbness, loss of strength, and chest pains. Ms. Hugie went back inside the house and walked around a bit in order to get over her discomfort, which eventually subsided. She got into bed, tried to sleep, but was unsuccessful. She felt unwell but finally managed to fall asleep on her couch. Around 1:00 a.m., the chest pains returned, but with greater intensity. Again, the complainant tried to walk around the house a bit to get through the pain, but this time the pain and the discomfort did not go away. Ms. Hugie thought it might be a heart attack, so she called emergency services and was taken to the hospital.
[83] After a battery of tests, it was determined that Ms. Hugie had not suffered a heart attack, but an acute angina attack. Ms. Hugie explained her medical condition to the Tribunal in detail, including her diagnosis of ischemic heart disease, hypertension and hypercholesterolemia. It is not necessary for the Tribunal to repeat these elements in greater detail. The key point to bear in mind is that her medical condition required major surgery on her heart, a quadruple bypass. The complainant did not report for work the day after her cardiac event, as she was in hospital. But she explained that she returned as soon as possible.
[84] Ms. Hugie explained to the Tribunal that between July 2016 and the start of her sick leave in March 2017, she had to be absent from work a few times for medical examinations and follow-ups. When asked how many days she had to be absent, she responded five days, more or less. In addition, she explained that when she returned to work, she was restricted from physical exertion and stress, as much as possible, to avoid making her medical condition worse.
[85] Ms. Hugie testified that following a meeting between her and her surgeon at one of her medical appointments, she had a discussion with Mr. Germain and Mr. White, her supervisor, about her medical condition. They asked her how her appointment went, and she explained to them the surgery she would be undergoing due to her medical condition.
[86] The evidence also reveals that Ms. Hugie discussed the condition of her heart and her surgery with her supervisor, Mr. White, on a number of occasions. She described having a good relationship with Mr. White and testified that he was supportive and caring towards her. It is unfortunate that Mr. White was not called to testify before the Tribunal as he could have shed more light on the discussions he had with the Complainant.
[87] Ms. Hugie’s evidence that she provided information to her employer about her medical condition, and that she was transparent with him about her medical condition, was not contradicted. The Respondent did not present any evidence refuting these facts that would allow the Tribunal to be persuaded otherwise. Ms. Hugie’s testimony is probative and reliable, and her credibility is beyond reproach.
[88] Nonetheless, the evidence does not show that the Complainant provided her employer with any medical certificates clearly setting out the restrictions established by her surgeon or other health care personnel treating her. Nor does the evidence show that she specifically requested accommodation from T-Lane. But the evidence does show that Ms. Hugie discussed her medical condition, her surgery, and some of her restrictions with Mr. Germain and Mr. White, and that these restrictions included avoiding stress, paying attention to her nutrition, and avoiding physical activity, among other things.
[89] That being said, after her cardiac event in July 2016, Ms. Hugie continued to work in her role as a dispatcher, as she had before the event. However, she had to deal with some health-related challenges, including her angina and pain, the use of a nitro spray, getting up to walk when necessary and watching what she ate. She also had to deal with a lack of endurance, which she described as being like “not [having] enough gas in my tank”.
[90] However, the Tribunal understands from the evidence that Ms. Hugie’s first cardiac event did not create any hardship in the months that followed. The evidence shows that Ms. Hugie continued to do her job as she did before July 2016. The Tribunal did not receive evidence of any other insurmountable barriers Ms. Hugie may have experienced in the work environment.
[91] However, Ms. Hugie testified that in February 2017, a few months after her first cardiac event and a few weeks before her scheduled surgery in March 2017, she suffered a second cardiac event at her workplace. She had to be taken to hospital by her supervisor, Mr. White, for treatment.
[92] The evidence is contradictory as to when this incident occurred. Ms. Hugie was adamant that it occurred in February 2017 and that it was Mr. White who drove her to hospital. However, the documentary evidence reveals that Mr. White was no longer working for T-Lane as of January 13, 2017. The reasons for his departure are unknown, but the date of his departure was recorded in the documentary evidence submitted by the Respondent.
[93] In addition, the evidence establishes that Mr. White, who was the operations manager, was replaced by Mr. Cheverie, who began work on January 3, 2017. Ms. Hugie then requested two leaves of absence from Mr. Cheverie by email dated February 1, 2017, for pre-operative medical appointments scheduled for February 6 and 8, 2017. This February 1, 2017 email to Mr. Cheverie thus confirms that he was Ms. Hugie’s supervisor in February 2017 and that from then on it was to him that she made her requests for time off.
[94] Accordingly, the Tribunal doubts that Ms. Hugie had her cardiac event in February 2017 and that Mr. White took her to the hospital at that time, as he was no longer working for T-Lane. There is a reliability problem with the complainant’s testimony since the sequence of events and the evidence do not match.
[95] Nonetheless, the Tribunal has no reason to question the Complainant’s testimony that she did indeed have a cardiac event in the office and that Mr. White took her to hospital. Other witnesses confirmed to the Tribunal that they remembered this incident, including Mr. Germain and Ms. Knowles. Both confirmed in their testimony that they remembered this incident, although Ms. Knowles was not able to provide much detail.
[96] It appears from Ms. Hugie’s documentary evidence, and specifically from the Abbotsford Hospital Triage Assessment Forms, that Ms. Hugie was admitted to the emergency room on December 9, 2016, for events similar, if not identical, to what she described at the hearing. Specifically, it is written on the triage assessment form that on that day, Ms. Hugie experienced angina that would not go away and had started at 11:00 a.m. while at work. She took two doses of nitro spray, but her symptoms were not relieved. She described feeling pain in her neck to the base of her lower jaw. She went to the emergency room as had been recommended when she was experiencing angina and her condition was not improving. It is important to note that her admission to the emergency room occurred at 2:04 p.m. Therefore, Ms. Hugie came to the emergency room in the middle of her workday.
[97] The Tribunal can therefore conclude that it is more likely that the incident occurred in December 2016 and not in February 2017. That said, Ms. Hugie’s testimony remains compelling as to all other aspects of this significant incident, which are also etched in the memories of other witnesses.
[98] That being said, a few days before the Complainant went on sick leave, T-Lane decided to hire Angie Gourlie as a dispatcher. Ms. Hugie was assigned to t