One may recall the story of Elsa Torrejon, who in 2009 was fired from her employer, Weston Property Management, after disclosing that she had breast cancer. The Ontario Human Rights Tribunal ordered Weston to pay Ms. Torrejon $20,000 in general damages for injury to dignity, feelings and self respect and $2,640 in special damages for loss of employment income.
Now, if Weston’s behavior was not bad enough – terminating an employee simply because she discloses a diagnosis – Weston sought judicial review of the Tribunal’s decision from the Ontario Divisional Court. In reasons for decision released March 30, 2012, 1147335 Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978 (CanLII), Justices Jennings, Kent and Sanderson affirmed the Tribunal’s decision awarding a further $7,000 in costs.
In affirming the award of $20,000 for general damages, Justice Jennings held that:
The general damages are towards the high end of the range. The assessment of damages is at the very heart of the expertise of the Tribunal. An extremely high degree of deference is owed (see ADGA Group Consultants Inc. v. Lane, 91 O.R. (3d) 649 (Div. Ct.)).
In paragraphs 24 and 25 of its reasons, the Tribunal considered the relevant factors in assessing the quantum of general damages. We see no error in principle in that assessment.
The damages assessed fall within the range, albeit near the top of what might reasonably be expected on the evidence the Tribunal heard. There are no grounds upon which we can interfere. Accordingly, the application must be dismissed. [Paras. 10-12]
Reading the reasons for decision from the Divisional Court one is left with the keen sense that this was not a well-attempted appeal. That observation aside, what the case affirms is that the court will award much deference to tribunals in their findings of damages, even if they may find those awards a tad high.
Furthermore, what the case affirms is that it is simply inappropriate to terminate an employee’s employment simply because they disclose that they have a disease. An employer’s obligation is to attempt to accommodate that disability, to the point of undue hardship. Although undue hardship is a factor that will vary in each case, trying nothing will clearly be recognized as a failure and will be met with an award of general damages.
As mentioned in an earlier post (Tort Damages Place inWrongful Dismissal Cases,) under Ontario law one may also ‘piggy back’ a claim for Human Rights Code violations upon a claim for constructive or wrongful dismissal. Clearly, in a case such as Ms. Torrejon’s this option provides valuable leverage to enhance one’s claim for damages.
Finally, one must query whether the manner of Ms. Torrejon’s dismissal would have also rose to the level necessary to result in award of aggravated damages under Honda Canada Inc. v. Keays, 2008 SCC 39.
The takeaway appears obvious, if an employer is presented with a situation in which an employee discloses a diagnosis of a serious illness, such as cancer, and requests time off to deal with same: be fair and compassionate. My advice would be to afford the employee some time to make sense of what has happened before making the employee’s situation worse by also terminating her employment.
Furthermore, employers who believe that they may have the ability to end the employee’s employment without further remedy on the grounds of “frustration” may be wise to consider, amongst other things, my comments on that issue, available by clicking this link.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer. He tweets from @SeanBawden.