McFee v. Canadian Pacific Railway Company

McFee v. Canadian Pacific Railway Company
Collection
Canadian Human Rights Tribunal
Date
2019-06-28
Neutral citation
2019 CHRT 28
File number(s)
T2140/1416
Decision-maker(s)
Ulyatt, George E.
Decision type
Decision
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
28
Date:
June 28, 2019
File No.:
T2140/1416
Between:
Doug McFee
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian Pacific Railway Company
Respondent
Decision
Member:
George E. Ulyatt
Table of Contents
I. Overview 1
II. Facts 2
A. The Complainant’s Diagnosis 2
B. The Return to Work Process 5
C. HR Service Centre Representative Position 10
III. Law 16
IV. The Complainant’s Prima Facie Case 18
A. Allegation #1: Failures to Hire 19
B. Allegation #2: Removal from Customer Service Position 21
C. Allegation #3: Termination 23
V. Conclusion 28
VI. Remedies 29
A. Section 53(2)(a) 29
B. Section 53(2)(b) 30
C. Section 53(2)(c) 33
(i) Lost Wages – Base salary 35
(ii) Lost wages - Bonus 36
(iii) Pension 36
D. Section 53(2)(e): Pain and Suffering 37
E. Section 53(3): Special compensation and reckless conduct 38
F. Section 53(4): Interest 39
G. Jurisdiction 39
I. Overview
[1] Doug McFee (the “Complainant”) filed a complaint on May 5, 2014 against his former employer, the Canadian Pacific Railway Company (the “Respondent”) pursuant to s. 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”).
[2] Section 7 of the Act states:
Employment
It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
[3] The Complainant’s Statement of Particulars refers to s. 7(a); however, his original complaint, as referred to the Tribunal, referred more generally to s. 7. Thus, the following review is of the complaint with both s. 7(a) and s. 7(b) in mind.
[4] The Complainant, a long term employee of the Respondent, alleges that he was discriminated against under s. 7 of the Act. The Complainant alleges that he was discriminated against for a disability going back to 2009, and that his disability was a factor in his ultimate termination.
[5] The Complainant in his Statement of Particulars alleges discrimination in relation to three specific instances:
1) By refusing to place me in one of the many full time positions that I applied for in 2010 and 2011;
2) Canadian Pacific Railway failed to give me adequate support to integrate me with my disability in the Customer Services Representative position in 2011 in which they removed me from that position after one month;
3) After my last performance management improvement meeting in September 2013, Canadian Pacific Railway failed to support me with my disability and finally fired me in January 2014.
All of these discriminatory acts plus many more I experienced from the time of my diagnosis with a mental disability, to the time of my termination, prevented me from having an equal opportunity as others to have my needs accommodated consistent with the duties and obligations as a member of society.
[6] The Complainant alleges that his disability became known to the Respondent on May 14, 2008 when he was placed on short term disability following a diagnosis of hydrocephaly. The Complainant alleges that the Respondent failed to accommodate his disability and that his disability continued until he was ultimately terminated.
[7] It is worth noting that the Complainant was a self-represented individual who was assisted by a friend who helped the Complainant and the Tribunal greatly. At the outset of the hearing, the Complainant believed he could make his case based solely on the documentary record and cross-examination of the Respondent’s witnesses. His representative explained that the Complainant was hesitant to testify due to his issues with memory and other impacts of his disability. The Tribunal at that juncture took a brief recess so that the Complainant could reconsider his position and ultimately he did testify.
II. Facts
[8] The Complainant was an employee of the Respondent from May 8, 1995 to January 29, 2014 in a number of positions. In December of 2007, the Complainant was promoted to the position of Process Coordinator, which, according to the Agreed Statement of Facts, is a “safety-sensitive position involving locomotive and car repair and servicing and working near a live track”. This position required the Complainant to manage union staff, including mechanics, and to coordinate groups within the unit.
A. The Complainant’s Diagnosis
[9] On May 14, 2008, the Complainant was placed on short-term disability following a diagnosis of hydrocephalus, which is defined as an increase of cerebrospinal fluid within the brain causing increased pressure inside the skull. The Complainant’s condition manifested itself in a number of ways, including problems with balance, trouble walking, falling down, headaches and memory issues. As a result of his diagnosis, surgeons implanted a ventriculoperitoneal shunt in the Complainant’s brain to drain the buildup of these fluids. The procedure was performed on September 16, 2008.
[10] Dr. Mark Hamilton, the Complainant’s treating neurosurgeon, cleared the Complainant for work on November 3, 2008. The Complainant returned to work on November 13, 2008 in his prior position of Process Coordinator; however, the Complainant was unable to meet the demands of this work and was placed on a medical leave of absence on July 4, 2009.
[11] The Complainant was again cleared by his physician to return to work in November 2009. That said, the Complainant was not cleared to return to a safety sensitive or safety critical position. The Complainant was therefore unable to return to his previous position as Process Coordinator and thus remained on leave, subject to some temporary work assignments, which will be described below.
[12] The Complainant began receiving short-term disability in July 2009. He later transitioned to long-term disability on January 4, 2010, which he continued to receive until October 12, 2010. I note again that there were limited instances during this period of time when the Complainant did work, as described below.
[13] While the Complainant was on long-term disability, the Respondent’s Occupational Health Services wrote to Dr. Hamilton on January 10, 2010 with a series of questions relating to the Complainant’s limitations. Dr. Hamilton responded to the inquiry by way of a letter dated March 31, 2010 stating, in part:
Question 1 dealt with further information regarding his cognitive impairment. The neuropsychology testing last done on February 9, 2009 demonstrated difficulties with recall with both auditory and visual memory. He was noted to be ‘managing his daily activities adequately’. Mr. McFee’s hydrocephalus is long-standing and the effects have been accumulative over his life span. The memory issues are less significant when he is in a situation that is not stressful or ‘overloaded’. This is quite typical for patients with chronic brain injury issues related to hydrocephalus. I would expect this to be static. I would not expect significant improvement. Most people with his degree of hydrocephalus respond to shunting / treatment with a ventriculoperitoneal shunt by stopping their clinical deterioration rather than a significant improvement with regards to memory function.
Question 2 dealt with do you anticipate that his cognitive deficit will less, worse, or remain stable with time. As above, I would expect these to remain stable from now on. I would not expect significant decline unless the ventriculoperitoneal shunt malfunctions. I would not expect significant improvement after this length of time. As noted, he can cope reasonably well in a non-stressful situation, however, decompensates in overload situations.
Question 3 dealt with which tasks of work, in your opinion, are most likely to be affected by his current cognitive deficits. He has difficulty with the sudden demands placed upon him by his job (as per the job description provided). In particular, it is noted the job description indicates ‘high memory ability’ auditory and visual is required. This, as noted by the neuropsychology testing, is affected. The other thing of note is the description of ‘high level of distracting stimuli, must work effectively despite phone calls, delays and schedule changes’. This is the kind of environment that will definitely have an adverse affect on his ability to cope.
Question 4 dealt with do his difficulties with balance and coordination warrant his restriction from climbing and working at heights. The answer to that is yes. Although his balance and coordination (related to his hydrocephalus) has stabilized, he is still not within normal limits for this and I would not advise him to be doing climbing and working at heights.
Question 5 asked ‘do you anticipate that his motor symptoms will lessen, worsen or remain stable with time’. I would expect them to remain stable in the short terms, however, long term it is impossible to predict. I would not expect them to improve significantly. He has already had his shunt in place for a year and a half. Maximal clinical improvement has already occurred.
Question 6 asked ‘does his hydrocephalus pose a risk for seizure and sudden incapacitation’. Mr. McFee was having out of body experience spells prior to his shunt. He was seen by Dr. Paolo Federico from the Epilepsy Clinic and investigations were done. His electroencephalogram was normal. The symptoms resolved after his VP shunt was inserted. I would not expect him to experience these again unless his ventriculoperitoneal shunt malfunctioned.”
[14] On April 9, 2010, the Respondent’s Occupational Health Services completed a “Fitness to Work Assessment Form” which made the following recommendations:
Abilities/Limitations:
Able to do work that has low time pressure: occasional pressure to meet deadlines or work within time constraints, with a moderate volume and pace of work.Not able to do the work that routinely requires high time pressure to meet the deadlines/time constraints.
Able to take some responsibility for multiple tasks, but with clear guidelines or cues about when to perform each task.
No more than a minor degree of distracting stimuli should be present during a work shift.
Able to handle occasional exposure to emotionally stressful circumstances or emotionally distressed individuals.Should not do the job that requires routine exposure to emotionally stressful circumstances or emotionally distressed individuals.
Able to handle occasional exposure to confrontational situations where assistance is not immediately available.Should not do the job that requires routine exposure to confrontational situations.
Able to do a job in which moderate memory is required for written information or instructions.Able to do a job in which moderate memory is required for verbal information or instructions.
Duration of limitations:likely permanent.
Return to modified work date: as soon as it can be arranged when accommodation is found.
Please proceed with your review of accommodation options and return to work plan in conjunction with the employee.
B. The Return to Work Process
[15] The Complainant was referred to the Respondent’s Return to Work Program and Rod Varney, a return to work specialist, worked with the Complainant and placed him in a number of temporary positions to gain exposure to different types of work within the organization. The Complainant was required to participate in the Job Search program, which Mr. Varney assisted with as well.
[16] The Respondent’s position was that it was necessary to fully understand the Complainant’s disability and to find a role that the Complainant could handle. Mr. Varney testified that he communicated with supervisors as to the Complainant’s limitations. He indicated that the limitations were such that it was difficult to find a position for the Complainant.
[17] The Respondent placed the Complainant in four work trials that Mr. Varney thought would be beneficial to the Complainant. Over this same time period, the Complainant testified that he also arranged a number of “job shadowing” opportunities on his own initiative, and took courses through the Respondent’s online training program.
[18] The purpose of work trials as offered by the Respondent were to flesh out the capabilities and abilities of those seeking accommodation. The evidence disclosed that the Respondent attempted to understand the skills and limitations. Work trials were fashioned to a) clarify restrictions; b) better understand how restrictions affect the Complainant’s ability to work; c) locate a permanent full-time position that the Complainant could perform in.
[19] The four work trials are as follows:
i) Worker’s Compensation Board Filing, August 2010: This was an entry-level position, with minimal stress and pressure, preparing files for offsite storage. The Complainant successfully completed the two week work trial but stated he wanted more of a challenge.
ii) Risk Management Analyst, October 12, 2010 to February 21, 2011: This was a temporary position modified to suit the Complainant. The Complainant was required to do data collection and data input. There were no complaints; however, the position had a sunset and thus the Complainant left the position when it concluded.
iii) Customer Service Coordinator, March 28, 2011 to April 29, 2011: Mr. Varney thought this position, in a call centre environment, would be appropriate for the Complainant, who had been actively seeking positions in the Customer Service Centre. The position afforded a structured training program and the Complainant could also receive on the job training. An email from that department to Mr. Varney on April 27 2011 relayed serious concerns with his performance in the role. He was described as being unable to replace another employee without near-constant assistance. A colleague noted that it seemed “that each day was like starting from scratch” and he appeared to be “struggling with the basics of training”. He was also described as expressing unwillingness to take on new and different tasks. He was rated as functioning at a 4/10 in both performance and attitude and was not kept on after the expiry of his 30-day probationary period.
iv) Employment Coordinator, May 2011 to January 2012: The Complainant was placed in a position as an Employment Coordinatorin Human Resources, which required setting up interviews, filing, paperwork and dealing with different individuals. The Complainant stayed in this position from May 2011 until he accepted the position as Representative, Human Resources Service Centre in January 2012, which will be discussed later more fully.
[20] Notwithstanding the Complainant’s failure in the Customer Service Coordinator placement and his treating neurosurgeon’s view that his limitations were likely permanent in duration, Mr. Varney testified that he felt the complainant was capable of performing at a higher level than his medical restrictions based on Dr. Hamilton’s report allowed. The Complainant was also very keen to return to a position that was suitable for his abilities. Mr. Varney encouraged the complainant to participate in an Independent Medical Assessment.
[21] A neuropsychological report was obtained from Dr. Gregor Jason, PhD, on August 16, 2011. Dr Jason interviewed the Complainant, performed numerous tests and reviewed the Complainant’s previous medical records. The Summary and Comment portion of his report reads, in part:
This neuropsychological evaluation demonstrated impairments on a paced test of verbal working memory and certain aspects of memory for verbal material. The verbal memory impairment is similar to that observed in pervious testing conducted by Dr. King in 2007 and 2009. Memory for visual material has improved somewhat, from the impaired to the borderline range. Most aspects of Mr. McFee’s neuropsychological test performance are broadly similar to what was observed in the previous testing conducted in 2007 and 2009.
Impairments seen on current testing are most reasonably attributable to Mr. McFee’s hydrocephalus. The overall pattern and level of impairment is similar to that seen on previous testing, although there has been some apparent improvement of visual memory. It is possible that this is due to some long-term benefit of the VP shunt which was inserted in September, 2008. It should also be noted that this is now the third time which he has been asked to copy and recall this figure, and so practice effects could well have played a significant role in the improvement seen. Overall, Mr. McFee’s brain function is very likely quite similar now to what it has been for a number of years.
[22] Dr. Jason’s report contained a list of functional limitations and restrictions which were somewhat less extensive than those which were previously laid out. For example, there was no mention of limiting exposure to confrontational situations, emotionally stressful circumstances, or emotionally distressed individuals. It also did not recommend limiting distracting stimuli or time pressure. Mr. Varney was of the opinion that the second report modified the original return to work restrictions. In testimony, he said that the Complainant’s restrictions went from severe to moderate, in his view.
[23] Throughout this time, the Complainant applied for a voluminous number of positions with the Respondent that he did not obtain. The Complainant filed two internal complaints with the Respondent. The second complaint, filed in November of 2011, alleged that he had not been hired for any of the 49 jobs he had applied for at that time, including the position of Human Resources Service Centre coordinator.
[24] A number of e-mail exchanges were tendered as evidence by the Respondent at the hearing deal with the Complainant’s third application for a role of Coordinator at the Respondent’s Human Resources Service Centre.
[25] On October 19 2011, Ron Varney sent the standard covering e-mail he sent to hiring managers when the Complainant was participating in an application process. The e-mail states that he is a Return To Work Candidate and reiterates the Respondent’s policy, which is to give RTW Candidates preference for positions for which they are qualified, over more senior or qualified candidates provided they “would be able to perform that job safely, efficiently and reliably following a reasonable probationary or qualifying period…”
[26] In response to Mr. Varney’s e-mail, Donna Buchanan, then the Director of Employee Services at the Human Resources Service Centre, responds that “The best candidates will be selected.” She explains that he has minimal payroll administration work on his resume and that the organization is in a period of change and therefore they require team players who possess a number of skills and abilities, including the ability to think quickly and analytically and to take pressure and multi-task. She also cites various other requirements.
[27] Mr. Varney writes back, reiterating that the Accommodation policy must be followed, and raises several concerns with her list of required qualifications. Specifically, he writes “Your list of qualifications may be setting up some systemic barriers to accommodating employees. Right now, I see nothing that would preclude Doug from being considered for this position. If I am wrong, please let me know exactly what qualifications he is lacking…” The general manager of HR planning and development, Paul Wajda, is copied on this message.
[28] Mr. Wajda replies, copying among others Rod Varney, Donna Buchanan, Len Haraburda and Carol Graham:
Doug has been working for the recruitment centre for the past 6 months or so doing a variety of tasks for the C. He has stepped up every time we had people leave and has been very resourceful. I have no idea why he would not get an interview for the position. He is a RTW candidate and wants a full time position and has the drive and desire.
He deserves an interview in my view as it is an entry level position.
[29] In response to Rod Varney’s e-mail reiterating the Workplace Accommodation policy, Donna Buchanan wrote: “Just to clarify it is in the company’s best interest we hire the right person for the role. As stated I have advised my leads to follow the process and interview…”
[30] Several days later, Mr. Varney followed up to see what the results of the process were. On October 27, 2011, Donna Buchanan indicates that the Complainant will not be offered the job, writing
… Even though Doug may have answered questions demonstrating that some evidence of skill is present he did not rank in our top 10. His previous work references also raises a concern.
Based on all of the above we need to select the best candidates possible and Doug does not fit in our top 10 based on the interviews that were conducted.
[31] In response, Paul Wajda indicates that a discussion is necessary. In response to the request for a meeting, Len Haraburda wrote on October 28, 2011: “No need for all to meet. Paul we have completed this process correctly and he is not the selected candidate. You have seen the rationale.”
[32] On November 24 2011, The Complainant requested an investigation into why he was not awarded any of the positions he had applied to between May and November 2011. His letter cites the Respondent’s RTW policy, claiming that he believes several sections of it are not being followed. He wrote “I am going to be launching a Human Rights discrimination investigation as well and would like to set up a meeting with Peter Edwards to discuss why his own HR Department is not following their own policy.”
[33] The Complainant testified that he had a meeting with Peter Edwards, Vice President of Human Resources, and that shortly following this meeting he was offered the full-time permanent role at the HRSC. He accepted it on December 12, 2011 and began working on January 30, 2012.
[34] I note that on November 29, 2011, the Complainant was also offered a full-time, permanent position of Coordinator, Facility Lodging. The Complainant ultimately declined this offer on December 12, 2011, which was the same day he accepted the HRSC role.
C. HR Service Centre Representative Position
[35] As noted above, the Complainant was offered the full-time position of Representative, HR Services, as a permanent accommodation, commencing January 30, 2012. The position in the Human Resource Service Centre (“HRSC”) required the Complainant to assist union and non-union employees respecting pay, benefits and related matters. The Complainant’s manager, Gary Mitchell, testified that he was given no information about any limitations due to disability upon his hiring. He knew that the Complainant was a Return To Work employee but that was all, save for a short conversation he had with the Complainant’s former supervisor, who advised him to make efforts to write down instructions for the Complainant, rather than give solely verbal direction.
[36] Specifically, Mr. Mitchell confirmed that he was given no advice about limiting distractions, stress, or anything about the Complainant’s memory issue or the fact that he may make some errors. He described the work environment as an open and fairly confined area with roughly 22 employees, and indicated that staff would have to take calls from irate, upset callers and that there were pressure situations where tasks were given late in the day and had to be completed immediately: “There were time crushes, payroll deadlines. We were always up against the gun, so we would always have strict deadlines that we had to get work done by, therefore that could cause some stress.”
[37] Mr. Mitchell recalled the Complainant displaying memory issues and requiring instructions be repeated, as well as sometimes displaying frustration when under pressure. He testified that he did not take the Complainant’s disability into account in rating his performance as he was unaware.
[38] The Complainant testified that the position was initially not that stressful for him. Each employee was required to work two hours per day on the telephone. In the HRSC Representative position, the Complainant was tasked with a number of position changes, new hires and scheduling.
[39] As time went on, the Complainant testified that the quantity of the work increased, and there were fewer staff which resulted in more stress being placed upon him. The Complainant alleges there was no accommodation made for his disability as the workload and stress increased. In performance management assessments completed by the Respondent, the Complainant received a “partially achieved” rating in 2012. The “Primary Reason” column reads “Has had difficulty following direction which has led to numerous repeated errors. Can come across with a confrontational attitude when working with colleagues. While eager to step up, tends to take on more than he can handle and is not focused on quality, which is a priority of our team”.
[40] I note that regarding the “confrontational attitude”, on cross-examination during the hearing Mr. Mitchell testified that he had not witnessed this first-hand but his director, Donna Buchanan, claimed that it was the case, and the directors had a role in the performance rating process, as well as direct managers.
[41] In February of 2013, due to his performance review results, the Respondent required the Complainant to participate in a Performance Improvement Management (PIM) Program. This required the Complainant to meet with his manager, Mr. Mitchell, every two weeks to analyze his performance in order to lower the number of mistakes being made. The record of the first meeting includes extensive reference to errors, attention to detail, and that quality is priority over quantity. One of the proposed outputs is “Effective immediately a zero tolerance is set” and “Aim for perfection.” The “Manager’s Comments” section of the first meeting minutes notes that “The seriousness of this is significant. If improvement is not immediate and sustained, escalation leading to dismissal is likely.”
[42] The meetings continued and the Complainant testified that he found this program positive. The records appear to show an overall improvement, with most records containing references to positive improvement and progress although the warning about likely dismissal also remains present in each of the seven subsequent meeting records.
[43] Mr. Mitchell testified that during the course of their meetings the Complainant disclosed his “condition, the circumstances around it, the effects it has had on him and has on him.” Mr. Mitchell reported that he was sympathetic and understanding and that the disclosure changed his view of the Complainant. I note the following exchange from his testimony:
Q: During the time you managed Mr. McFee as an employee did you ever witness Mr. McFee having an attitude problem?
A. No, I did not.
Q. What was your impression of Mr. McFee's attitude at work?
A. Doug was an individual who showed initiative. He would be the first one to take on work, to take on projects, to take on new things, to such an extent that if -- he took on too much. And you had to pull the reigns back on Doug. That was the issue with Doug. He got himself too busy and showed more initiative than he probably should have.
Q. So on average he was a very positive employee at work?
A. Yes. I had a good experience with Doug. I had no issues or concerns.
[44] The last Performance Improvement meeting recorded was September 23, 2013. Donna Buchanan, the then-Director, completed this final form as Mr. Mitchell was no longer in the manager role. The Complainant notes in the employee comments section that he is emphasizing accuracy and slowing down his production. Ms. Buchanan’s notations indicate that the meetings will continue. There was never another meeting.
The Incidents Leading to the Complainant’s Termination
[45] As noted, in the fall of 2013, there was a change in management and the Complainant had a new manager, Mr. Sonny Francoeur.
[46] In December of 2013, there was an incident in which an IT employee complained to Mr. Francoeur about the Complainant’s attitude. The employee claimed that in response to a question about an internal website, the Complainant said “I don’t know what that means and you’re IT, this is your responsibility” after which the call disconnected. The Complainant claimed that he mistakenly ended the call and had not intended to hang up on the caller. Mr. Francoeur concluded that the Complainant’s behaviour was unacceptable, and that he should have brought the issue to his manager’s attention as well as following up regarding the employee’s inquiry. The Complainant received a reprimand.
[47] The second incident involved a time in January 2014 where the Complainant refused to accept reallocation of priority work from other co-workers and his manager. The Respondent called evidence that the Complainant exacerbated this incident by sending a series of instant messages to a co-worker in which he indicated that he had refused to accept work and that she should do the same. The thrust of the conversation was that the Complainant was urging his co-worker not to take the work, and the co-worker indicated she could not say no to her supervisors. The co-worker complained to her supervisor about this incident and said she felt uncomfortable. An excerpt of their instant message conversation is as follows:
Doug McFee:
I just told Suzanne to fly a kite and suggest you do the same
Colleague:
she already gave me some contractors to do
it has to be done so if she brings me something Ill do it
Doug McFee:
that is reatarded
we can’t do everything
Colleague:
I know
but if we say no then we are gonna catch shit
Doug McFee:
I will take the brunt but I don’t fing care
Colleague:
I am done arguing with people on this team. Pile up the work and I will do one thing at a time as that is all I can do
Doug McFee:
I have stats to back it up. There are more then 2 people that can do stuff.
Colleague:
so you say no and sonny gives it to me
awesome
lol
Doug McFee:
say no
this is bs
Colleague:
can’t say no to the manager
work needs to be done
Doug McFee:
you can. I just did
I would say it to sonny or to donna
Colleague:
that is why they gave it to me because you said no
lucky you I guess… I do it.
I will do it
Doug McFee:
Say no
Colleague:
I am already doing it
Has to be done by 12:00
Doug McFee:
Well there is no point in sticking together if you are just going to do it
Colleague:
The work has to be done Doug
There is no team work left ANYHWHERE in this department
I am tired of it
Doug McFee:
The idea is to use resources that are not being used right now. If you just do it then those resources will never be used
Colleague:
When a manager asks me to do something work related… I will do it
[48] The third incident occurred at approximately 2:30 p.m. on January 29 2014 when a supervisor, Donna-Marie Lloyd, assigned the Complainant two position changes. Ms Lloyd testified that there was a large volume of additional work that day and she had been dividing the extra tasks up equally among the employees. She acknowledged there was pressure, testifying that this was “because we had to get them done that day or nobody was leaving”. When she reached the Complainant, he indicated that he had not yet taken his lunch and could not complete all the work. She felt he did so in a highly inappropriately rude tone.
[49] On cross-examination Ms. Lloyd confirmed that she had not been made aware of the Complainant’s limitation and had not received any information from the Respondent on how to supervise employees with mental disabilities.
[50] On January 29, 2014, the Complainant was terminated. The termination letter cites poor performance as well as referencing the above-noted incidents.
[51] In the present inquiry, the Respondent claims that the Complainant’s termination was not based upon poor performance, but rather was based solely upon the Complainant’s insubordination and his attempt to incite insubordination.
III. Law
[52] Under the Act, the Complainant bears the onus of establishing 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-employer.” (Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, [1985] 2 SCR 536 (“O’Malley”) at p. 558). As explained in Stanger v. Canada Post Corporation, 2017 CHRT 8 (“Stanger”) at para. 12, this is a three-prong test. Stanger explains that the courts have addressed the issue of a prima facie case and have stated:
[12] To demonstrate prima facie discrimination in the context of the CHRA, complainants are required to show: (1) that they have a characteristic or characteristics protected from discrimination under the CHRA; (2) that they experienced an adverse impact with respect to a situation covered by sections 5 to 14.1 of the CHRA; and, (3) that the protected characteristic or characteristics were a factor in the adverse impact (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 33; Siddoo v. I.L.W.U., Local 502, 2015 CHRT 21, para. 28). The three elements of discrimination must be proven on a balance of probabilities (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) (“Bombardier”), 2015 SCC 39 at paras. 55-69).
[53] The discriminatory considerations need not be the sole reason for the decision or conduct at issue in order for the Complainant to prove a prima facie case for discrimination. It is sufficient for the Complainant to prove the existence of a connection between a prohibited ground of discrimination and the adverse impact experienced, even if other factors were at play (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (“Bombardier”) at paras. 44-52; see also First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 at para. 25, and Holden v. Canadian National Railway Co., (1991) 14 C.H.R.R. D/12 (F.C.A.) at para. 7).
[54] The protection afforded those with mental disabilities was canvassed in Mellon v. Human Resources Developments Canada 2006 CHRT 3, where the Member said that at paragraph 88:
[88] The Act does not contain a list of acceptable and unacceptable mental disabilities. It is not just the most serious or most severe mental disabilities that are entitled to the protection of the Act. Additionally, it is not solely those that constitute a permanent impairment that must be considered. Where appropriate, even mental disabilities described as minor with no permanent manifestation could be entitled to protection under the Act. However, sufficient evidence still needs to be presented to support the existence of the disability.
[55] Many human rights cases depend upon circumstantial evidence. It has been observed that discrimination is not a practice one would expect to see displayed openly, and that rarely are there cases where one can show by direct evidence that discrimination is purposely practised. The Tribunal is therefore required to carefully analyse the evidence in order to determine if there exists what has been described as a “subtle scent of discrimination”. This quote is often used before the courts and tribunals and the Tribunal is mindful of this. The said evidence of discrimination, even circumstantial, must nonetheless be tangible and related to the impugned decision or conduct.
[56] It is clear that the law is such that the Complainant need not prove the Respondent intended to discriminate in order to establish a prima facie case (O’Malley at para 14).
[57] In the case of Moffat v. Davey Cartage Co. (1973) Ltd., 2015 CHRT 5 (at para. 38), the Tribunal stated:
[38] A respondent can either present evidence to refute the allegation of prima facie discrimination, put forward a defence justifying the discrimination or do both (Bombardier, supra, para. 64). Where the respondent refutes the allegation, its explanation must be reasonable. It cannot be a pretext to conceal discrimination (Khiamal v. Canada, 2009 FC 495 at para. 58).
[58] Thus, in determining a prima facie case, the Respondent can challenge the credibility of the Complainant’s evidence, it can argue the Complainant has not adduced enough evidence, or it can provide a non-discriminatory explanation of the impugned conduct. The Complainant still bears the burden of proof on the balance of probabilities. Again, it is trite law that the answer or explanation must be believed and not based upon pretext.
[59] If the Complainant meets his onus, the Respondent bears the burden of establishing, on a balance of probabilities, a defence under s. 15 of the Act, such as a defence based on a bona fide occupational requirement (Bombardier, paras. 37 and 64).
[60] Subsection 15(2) of the Act says that in order to establish a bona fide occupational requirement or a bona fide justification, “it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.” That said, a Complainant must do his or her part as well to facilitate the search for an accommodation. In particular, a Complainant must sufficiently explain the nature and extent of the problem to allow the Respondent to address and attempt to solve the issue of accommodation (Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970).
IV. The Complainant’s Prima Facie Case
[61] Before beginning my analysis, I note that the Respondent raised in its Statement of Particulars and in its pleadings the proposition that these claims of discrimination should be barred, due to the content of the allegations and the passage of time. In Pequeneza v. Canada Post Corporation, 2016 CHRT 21 at paras 36 and 26, the Tribunal said the following about these types of time based objections:
At the end of the day, the basis upon which the Commission decides to “deal with” a complaint under s. 41 does not shape the way in which the Tribunal exercises its own jurisdiction; the germane consideration from the Tribunal’s perspective is that the Commission has made a request under s. 49 that a Tribunal inquiry be instituted. Section 41 decisions, as well s. 49 decisions, can definitely be challenged, but the venue for such challenges is the Federal Court, in an application for judicial review.
This clear division of responsibilities between Court, Commission and Tribunal—as enacted in the CHRA and the Federal Courts Act, R.S.C. 1985, c. F-7—is fully reflected in the Oster judgment, which is why it constitutes the preferable approach. The Tribunal simply has no jurisdiction to apply s. 41.
[62] Further, the passage of time between the incidents and the hearing did not prejudice the Respondent in its ability to make its case. I am satisfied that there is no reason for me to decline to hear and decide on these matters.
[63] Section 7 of the Act states:
Employment
7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
[64] In keeping with the three-prong test from Stanger and Moore that I mention above, the Compla