The Human Rights Tribunal of Ontario (“HRTO”) recently held that an employee terminated for claiming WSIB benefits was entitled to Human Rights damages: Defina v. Lithocolor Services Ltd., 2012 HRTO 1768 (CanLII), released September 18, 2012 (Adjudicator Ian Mackenzie.) The case confirmed that where an employee is receiving WSIB benefits, terminating an employee because of the receipt of those benefits is discriminatory and contrary to the protections afforded by the Ontario Human Rights Code.
The applicant employee, Connie Defina was hired as a pre-press manager with the respondent Lithocolor. She received a letter of offer dated December 7, 2009, and she commenced her employment in January of 2010. Her annual salary was $60,000. She was subject to a six-month probationary period. Her employment was terminated on February 23, 2010.
Ms. Defina was injured at work on February 11, 2010. She testified that she was asked to take inventory in the warehouse, which involved moving and lifting boxes weighing over 30 pounds. She testified that she told her boss that she was getting a stiff back. Her boss denied that she told him about her back. That evening she experienced severe pain in her back. She attended a walk-in clinic and was advised by a doctor that she should stay at home and rest her back.
At 10:45 a.m on February 23, 2010, Ms. Defina sent an email to the owner of Lithocolor, Mr. Renaud, enclosing a WSIB Functional Abilities Form (FAF), prepared by her doctor and dated February 22, 2010 as well a referral for physiotherapy. The FAF stated that her restrictions were: “unable to walk or sit, etc. for any prolonged periods”. The doctor indicated that the assessment would apply for approximately 8 to 14 days and that a return to work date was “unknown”. Ms. Defina stated in the email that she had started physiotherapy and she hoped that this would speed up her recovery so that she could return to work “ASAP”.
At 3:43 p.m. on February 23, 2010 Ms. Defina received a letter from Mr. Renaud terminating her employment by email. The termination of employment was effective February 23, 2010.
Ms. Defina submitted that she was fired because of her disability. In reaching his decision that she was, Adjudicator Mackenzie applied a three-part test, asking:
- did Ms. Defina have a disability under the Ontario Human Rights Code;
- was the employer aware of that disability; and
- was her disability a factor in the decision to terminate her employment?
In holding that Ms. Defina had a “disability” Adjudicator Mackenzie made specific reference to the definition of “disability” within the Code where it is provided that “disability” means “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.” Given that Ms. Defina had, in fact, received WSIB benefits, this criterion was satisfied.
In holding that the employer was aware of the disability, Adjudicator Mackenzie held that given that Ms. Defina sent the FAF forms by email, and given that there was no evidence to the contrary that Mr. Renaud received the forms prior to deciding to terminate her employment, by inference the employer knew of her disability.
In deciding that her disability was at least a contributing factor to the reason to terminate her employment Adjudicator Mackenzie held that:
 In order to prove discrimination in a decision to terminate employment, an applicant must show, on a balance of probabilities, that there was a connection between a prohibited ground (in this case, disability) and the decision made. The jurisprudence has established that in order to prove discrimination, disability does not need to be the only reason for the termination of employment: see, for example, McLean v. DY 4 Systems, 2010 HRTO 1107, at para. 62.
 I am satisfied, on a balance of probabilities, that the applicant’s disability was a factor in the decision to terminate her employment. The personal respondent, Mr. Renaud, who was the author of the letter of termination, elected not to testify. I am therefore left with the testimony of Mr. den Ouden and the email records. Mr. den Ouden testified that the decision to terminate the applicant’s employment pre-dated the workplace injury (and therefore the disability).
 Mr. den Ouden testified about a meeting to discuss the applicant’s performance on February 1, 2010. He testified that no decision was made at that meeting. He stated that the agreed-upon approach was to monitor her performance over the week. He testified that the decision to terminate the applicant’s employment was made on February 9, 2010 (two days prior to the work injury). However, he has provided no details of the discussion that occurred that day. He provided no notes from a meeting or discussion of this decision or any document to support his assertion. The respondents called no other witnesses to that decision. In addition, the respondents provided no evidence of their efforts to monitor the applicant in the time between February 1 and 9, 2010. The statement that a decision was made to terminate the applicant’s employment on February 9, 2010, is a bald assertion, without any supporting evidence. I therefore reject the respondents’ evidence on this point and find that the decision was not made on February 9, 2010, as they allege.
 Mr. den Ouden explained that the intention was to provide the letter of termination to the applicant on the Friday of that week (February 12, 2010). He testified that the reason for waiting until February 23, 2010, to provide a letter of termination was because at that point the respondents realized that she was not coming back to work soon. He did not explain why this factor was relevant to the decision on the timing of the termination of employment.
 The timing of the letter of termination raises concerns. It was issued shortly after Mr. Renaud learned that the applicant’s return to work date was unknown. The lack of a reasonable explanation for the timing of a termination of employment is a factor to consider when determining whether that termination was influenced by a prohibited ground of discrimination: Osvald v. Videocomm Technologies, 2010 HRTO 770, at para. 35. In the absence of a reasonable explanation from Mr. Renaud, there appears to be a link between the discovery of the extent of the disability and the decision to terminate the applicant’s employment.
Remedies Ordered by Tribunal
Because Ms. Defina had received benefits from the WSIB for loss of earnings, Adjudicator Mackenzie concluded that,
Ms. Defina has not demonstrated that she suffered any loss of income as a result of her termination of employment. The loss of income she has suffered (as well as any future loss) is as a result of a workplace injury, not of the termination of her employment.
However, with respect to an award for compensation for injury to dignity, feelings and self-respect, Adjudicator Mackenzie found that, notwithstanding that Ms. Defina had only worked for Lithocolor for a short period of time, given the nature of the breach an award of $15,000 was appropriate.
Adjudicator Mackenzie furthered ordered that Mr. Renaud was jointly and severally liable together with the company to pay the award, together with pre-judgment interest from the date of dismissal.
Mr. Renaud and Lithocolor’s managers were also ordered by the Tribunal to complete the Ontario Human Rights Commission’s Human Rights 101 course.
The case is a useful reminder of some of the remedies available to employees terminated because of a workplace injury and provides an example of a case where the evidence demonstrated that the most likely reason that the employee was fired was because of the workplace injury.
In my opinion Adjudicator Mackenzie saw the case for what it was: an attempt by an employer to terminate an employee because she got injured on their watch.
Takeaways for those with Labour Pains
The takeaway for employees is that if you’re fired and believe that the reason that you were fired was because you got injured at work, or got sick, or for some other reason prohibited by the Ontario Human Rights Code, you have rights and remedies. If this has happened to you, then the employment lawyers for employees at Kelly Santini LLP would be happy to speak to you.
The takeaway for employers is to exercise far more prudence when terminating an employee who is sick, injured or otherwise away from work. While it may be possible to terminate the employee’s employment, prudence may dictate a better approach. In those cases, the employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to provide some potentially money-saving advice.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.