[1]           This Application alleges discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

[2]           The Application was heard on April 15, 16 and 17, 2019. I heard evidence from the applicant and three witnesses called by the respondent.

[3]            Canada Pure is a small company that is part of a group of companies owned by David Tavares. The day to day management of Canada Pure is done by Mary DiGioia. The company produces bottled flavoured water.

[4]           The applicant started with Canada Pure in 2006. He was hired under a contract for service that stated that he was an independent contractor and not an employee. The term of the contract was one year. The contract was renewed for some years and then continued without a formal renewal. The actual contract was with a sole-proprietor corporation (1004904 Ontario Limited O/A Canada Pure Water Co. Ltd) established by the applicant for the purpose of the contract with Canada Pure.

[5]           At an earlier stage of the Application, the respondent argued that the Code did not apply to this case because the relationship between the parties was not an employment relationship. That argument was dealt with in Interim Decision 2018 HRTO 1633, which found that the Tribunal has consistently held that the term “with respect to employment” in section 5 of the Code is broader than other conceptions of the employee-employer relationship. How the parties have defined the relationship is of course important but other factors are also relevant.

[6]           Having now heard the evidence in this case, I would say that the fact that the parties signed a contract indicating that the relationship was a contract for service and not a contract of service is the only factor indicating that the relationship was between an employer and a contractor. In all other respects, the relationship very much resembled a relationship between employer and employee. However, as discussed below, the fact that there was a contract that defined the relationship as a contract for service may have influenced how things unfolded.

[7]           There is agreement that from 2006 to 2014, the applicant ran the company operations. He was described as a “one-man show”. 

[8]           The product was produced by third parties using recipe specifications provided by Canada Pure. The product was shipped using third party parties as well. The applicant testified that he mostly dealt with “logistics” including arranging for the purchase of supplies and co-ordination of production and shipping. Although the original contract indicated that the applicant would be primarily involved in sales, he also did a little marketing work. The sales aspect of his job mostly involved contacting customers. The distribution was mostly to small retail operations but there was also a contract to supply to schools in the United States. The operation was fairly stable in this period. An employee was hired to assist the applicant in 2007 but was not replaced when he left in 2011.

[9]           In about May 2014, the company retained consultants to develop a plan to expand the business. One of the consultants was Linda Martin, who testified at the hearing. The other was her business partner.

[10]        The first step was to re-brand the product and change the recipes. They then hired a sales manager. Scott Drouillard was hired in this role and he started in January 2015.  Mr. Drouillard was experienced in sales and in the soft drink industry. The marketing plan that the consultants developed was mostly centred on obtaining large retail customers. They were able to secure contracts with Sobeys and Walmart and a short-term contract with Costco.

[11]        When Mr. Drouillard was hired, the applicant was told that he would now report to Mr. Drouillard and that his title would be changed to Marketing Manager. The applicant sent an email expressing concern about this. He noted that he did not have a sales background and questioned why he would be reporting about the logistical part of his work to Mr. Drouillard who did not have that background. He also asked if he might now be considered to be an employee. He noted that he was working exclusively for the respondent on a full time basis with no benefits, vacation time or sick days.

[12]        In about mid-2015, a company called 3PL was retained, which provided “third party logistical” support. The product was still produced by third parties and also shipped by third parties but 3PL coordinated this work. When the larger retail market contracts were secured, this work increased. The applicant testified that he continued to provide the logistical support for the old contracts. Ms. Martin confirmed that the applicant continued to do essentially what he had been doing before 3PL came on. 3PL cancelled the contract in October 2016, effective November 2016.

[13]        On October 13, 2016 the applicant left work complaining of chest pain. He went to the hospital and was told he had suffered a heart attack and needed a surgical procedure which was done right away. He was told that he would have to be off work for four weeks. He informed his employer of this and he was told to stay at home.

[14]        The applicant did work for the respondent while he was off work. In the time that he was off there was some dispute about what hours he would be paid for.

[15]        On October 20, 2016, in the time he was off work, the applicant wrote an email to Ms. DiGioia about the payment situation and seeking clarification about whether he would be paid for the hours worked or only if he reported to the workplace. He also raised the issue of his employment status again, noting that his work arrangement was not that of a contractor. He said:

[16]        The applicant testified that he was eventually paid for the time he was off because he worked the hours. Ms. DiGioia testified that the applicant was in fact overpaid some hours for the period he was off.

[17]        The applicant returned to work on November 7, 2016.  In testimony, the applicant, Mr. Tavares and Ms. DiGioia all provided different accounts of what happened on that day.

[18]        The applicant testified that soon after he arrived at work, Mr. Tavares stopped by his office (Mr. Tavares’s office was next to the applicant's). Mr. Tavares asked how he was doing and they chatted briefly about the applicant’s medical situation. The applicant told Mr. Tavares that he needed to avoid stress.

[19]        The applicant testified that when Ms. DiGioia arrived at work about an hour later, she told him she would speak with him later in the day. At about 3:30 p.m. she called him into her office and told him his contract was being terminated and that he would have three months of working notice.

[20]        Mr. Tavares agrees with the applicant that he stopped by the applicant’s office and that they had some general conversation about the applicant’s health and the procedures he had undergone. Mr. Tavares testified that he then said to the applicant that the applicant's commute to work must be stressful and suggested that the applicant should speak to the applicant’s brother about finding work closer to home. The applicant’s brother had been an elected official in the community where the applicant lived and Mr. Tavares felt that he should be able to help the applicant to find a job closer to home.

[21]        Mr. Tavares testified that the applicant responded positively to this suggestion and wondered why he had not thought of this earlier. Mr. Tavares then told the applicant that his leaving would be disruptive and that he would need notice so as to make other arrangements. The applicant told him that he thought he would need three months.

[22]        Mr. Tavares testified that he considered that he and the applicant were friends and that this conversation was based on this understanding. It appeared to him that the applicant was pleased with the way the conversation went.

[23]        Mr. Tavares testified that awhile later he encountered Ms. DiGioia who told him that she knew about the conversation and that she had told the applicant that he could have six months. Mr. Tavares was surprised about this since the applicant had only asked him for three months but he was not otherwise concerned.

[24]        The applicant testified that the conversation about finding a job closer to work did not happen and that the only conversation with Mr. Tavares was about the applicant’s health.

[25]        Ms. DiGioia testified that the applicant came into her office on the morning of November 7, 2016. After a general discussion about his health, he told her that he understood things were changing and that he needed to know for how long his services would be required. He asked her to be honest. She said “well, how long do you need?” and he said four months. She told him to take six months. He then thanked her. She believed that this conversation represented a mutual agreement about parting ways.

[26]        The applicant testified that this conversation did not happen and that instead Ms. DiGiogia told him his employment would be terminated in three months. He then asked that she put it in writing and reiterated that request over the next few days.

[27]        The termination letter is dated November 11, 2016. It reads in part:

[28]         The evidence of the three witnesses about the nature of the understanding of the implications and reasons for the termination letter obviously vary.

[29]        The applicant testified that he felt “blind-sided” and devastated. He had been doing essentially the same job for over ten years. While there had been changes, he was not aware that there was any plan to end his employment.

[30]        Mr. Tavares felt that he and the applicant had a friendly conversation about the applicant's future. The suggestion that the applicant find work closer to work was based on the fact that the applicant had just recovered from a heart attack and needed to avoid stress. Since a long commute is inherently stressful, this seemed to Mr. Tavares a logical consideration. His understanding was that the applicant fully endorsed the idea of getting work closer to home. They then agreed that three months would likely be a sufficient time to find a new job. Mr. Tavares testified that it was not his intention to unilaterally end the employment relationship, especially when the applicant had just returned from a heart attack. Part of his ethos is that “you don’t kick a man when he is down”. When asked if there were performance issues that contributed to the end of the employment relationship, Mr. Tavares said that he would not have changed anything at that time because of any performance issues or because of any restructuring that had happened or was planned.

[31]        Ms. DiGioia testified that she had not planned to terminate the employment relationship on November 7, 2016. She did believe that the applicant did not fit into the long term business plan but this was not an immediate problem. She said that she knew the employment relationship was going to end eventually, but she did not have a clear idea as to when that would happen. She said it could be a year later or maybe more depending how things went. Ms. DiGioia testified that the reason that she told the applicant on November 7, 2016 that the employment relationship was going to end was that he insisted on knowing a firm date. She felt that the working notice should be six months partly out of concern for the applicant and partly because it would be disruptive if he left right away.

[32]        In her evidence, Ms. Martin said that she had nothing to do with the end of the employment relationship. She said that her role was to identify the skills and resources that were required to change the direction of the company. She did not concern herself with what to do about existing resources like the applicant. She was also not involved in assessing whether the new direction was profitable or what could be done to maximize profits. She said that she had conversations about the applicant with Ms. DiGioia and others but these did not include any plans to let him go. However, she was aware that he was not really part of the new direction. He was continuing to manage the existing accounts. The bulk of these consisted of contracts with US schools. However, those contracts were ending because school boards started to ban the sale of sweetened drinks in schools.

[33]        Ms. Martin’s consulting arrangement with the respondent ended in 2017. She was not really sure what had happened after she left.

[34]        The applicant continued to work for the rest of November 2016. He visited his family doctor on November 28, 2016 who gave him a note that said: “Off work 6 – 8 weeks medical reasons. Further review at that time.” The applicant testified that he discussed the work situation with his doctor who agreed that the applicant was experiencing increased stress and that for that reason he should stay off work. The applicant testified that during November he was not included in meetings and discussions. He felt that he was being pushed aside and this added to his stress. The respondent disputes that the applicant was excluded.

[35]        The applicant gave Ms. DiGioia the medical note on December 1, 2016, which was his last day of work.

[36]        The applicant testified that he was feeling very stressed after the events on November 7 and that his doctor advised him to stay off work. He was feeling unwell and only started to feel better in February 2017, when he started to look for new work.

[37]        Before he left work, he obtained legal advice and his counsel (Ms. Ostrowski) wrote a letter to the respondent. This Application was filed on January 18, 2017. At about the same time, the applicant also filed a complaint with the Employment Standards Branch of the Ministry of Labour. This concerned his contention that he should have been treated as an employee by the respondent and not a contractor. That complaint was dismissed in October 2017.

[38]        The respondent’s witnesses indicated that they expected the applicant to return to work after the medical leave even after the lawyer’s letter and the start of legal proceedings. Their position is that the applicant quit.

[39]        The applicant remained unemployed for about 18 months. He was not eligible for employment insurance because of his contractor status. The employment he found pays less than his employment with the respondent unless he is able to secure significant commissions.

[40]        The respondent submits that the Code may not apply to the circumstances of the termination of the employment relationship because by the time the applicant returned to work on November 7, 2016, he had been cleared to resume his fully duties and therefore did not have a disability.

[41]        Section 5(1) of the Code provides:

[42]        Section 10 of the Code defines “disability” to include:

[43]        While the applicant may have informed the respondent that he was medically capable of resuming his regular duties, he clearly had ongoing cardiac issues. The fact that a person can perform regular duties does not mean that the person does not have a disability. The applicant had only been off work for four weeks post-surgery. The discharge note indicated that he would require therapy for 12 months. The applicant informed the respondent that he was medically required to avoid excessive stress. In my view, it is clear that the applicant did have a disability for the purposes of section 5.

[44]        I note that Mr. Tavares’ account of his conversation with the applicant on November 7, 2016 indicates that he understood that the applicant had a continuing disability with a need to avoid stress because of the continuing effects of the heart attack.  

[45]        Even if the applicant did not have a disability on November 7, 2016, section 10(3) of the Code provides:

[46]        If an employer terminates the employment relationship because the employee has had a disability, the termination is discriminatory whether or not there is an actual disability at the time of the termination.

[47]        In cases where it is necessary to assess the credibility of the evidence of witnesses, adjudicators often rely on principles expressed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (“Faryna”):

[48]        Having considered the available evidence, I have to conclude that none of the three conflicting stories about what happened on November 7, 2016 are “in harmony with the preponderance of the probabilities”. To be clear, I am not saying that any or all of the witnesses was lying. To lie means to say something that you know not to be true. If a witness says what he or she believes to be true they are not lying even if what they are saying is not what actually happened. This point is made in Faryna: “[A] witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken.” This happens because of the vagaries of human memory, especially when compounded by ongoing litigation.

[49]        The test for whether an employee has experienced discrimination in employment because of disability requires the employee to show the following:

[50]        In some cases, it is appropriate to consider first whether the applicant has established a “prima facie” case of discrimination, meaning that, if true, the applicant’s allegations would amount to a violation of the Code. If the applicant establishes a prima facie case, the respondent may then provide a non-discriminatory explanation. The applicant must then show that the respondent’s explanation is not valid and that in fact the explanation is that the applicant experienced discrimination.

[51]        The Tribunal has noted that in cases where all of the evidence has been heard, it may not be necessary to go through these steps as separate stages of the process. Once all the evidence has been heard, the question may simply be whether the applicant has established that it is more probable than not that the applicant experienced discrimination contrary to the Code.

[52]        In this case, I have found that the applicant had a disability as a result of the heart attack. I find that the applicant was terminated from his employment and the termination of employment was an adverse impact. The question therefore is whether the applicant’s disability was a factor in the termination of his employment. To show this, the applicant does not have to show that his disability was the only reason for the termination. He must, however, show that it was a factor. In adjudicating an Application, issues are to be determined on a balance of probabilities. The question in this case is therefore whether it is more probable than not that the fact that the applicant had a disability and/or that he had been off work because of a disability a factor that contributed to the decision to terminate his employment.

[53]        The critical question in this case is what happened on November 7, 2016. There is divergent evidence about this as between the evidence of the applicant, Ms. DiGioia and Mr. Tavares.  

[54]        There is no evidence that the respondent had formulated a plan to terminate the applicant's employment either before he went off on sick leave or while he was on sick leave. Both Ms. DiGioia and Mr. Tavares testified that they did not have an imminent plan to terminate the applicant's employment. Ms. DiGioia testified that while the employment might be terminated at some time in the future, there was no imminent plan. She said the termination might have happened a year or more later than it actually did. Mr. Tavares testified that he would not have terminated the applicant’s employment at the time. In part this was because of his view that you “don’t kick a man when he is down” and also because there was no plan to replace the applicant. Ms. Martin was also not aware of any such plan.

[55]        3PL, which had been handling the logistics for the new retail strategy gave notice that it was ending its contract with the respondent in October, taking effect in November. There was no plan in place to replace this service. It would not make sense to get rid of the only person who knew about logistics at that moment in time.

[56]        Whatever issues there were with the applicant’s job performance, there was no suggestion that he was performing his duties badly. To the extent there was an issue it was about whether his skill set was necessary in the evolving business plan. There was, in other words, no compelling reason to terminate the applicant’s employment. In fact, it was clear that both Mr. Tavares and Ms. DiGioia wanted a longer period of working notice because of the problem of how to replace the applicant once he was gone.

[57]        In the end it seems that the applicant was not replaced. Mr. Tavares testified that after the applicant left there was no one to run the business. He himself has sometimes do work such as filling vending machines.

[58]        Based on these facts, it would seem that the respondent had no particular reason or even desire to terminate the employment relationship.

[59]        The respondent’s account of what happened is generally consistent with an understanding that there was a mutual agreement to part ways. In that scenario, the offer to extend the notice period to six months makes sense as the respondent would need time to make plans to replace the applicant and the applicant would need time to find new employment. This understanding could have arisen on the basis of the conversation recalled by Mr. Tavares, which he believed was a discussion between friends about what was in the applicant’s best long term interests. It also fits with Ms. DiGioia’s recollection of her discussion with the applicant on November 7 which was based on her belief that the applicant knew that he would eventually not be needed. Her understanding that this was a mutual agreement to part ways could also explain why she had not formally discussed the termination with Mr. Tavares.

[60]        It could also explain the six month working notice. An extensive working notice period is unusual. The main reason for this is that once an employee is told that his employment will be terminated, the working relationship is usually irreparably damaged. Most employees are not happy about the termination of their employment. It is usually better for an employer to terminate the employment immediately to avoid having a disgruntled employee in the workplace.

[61]        An extensive working notice period is consistent with a belief on the part of the respondent that the applicant would not be a disgruntled employee and would be content to continue to provide services for the notice period. The fact that the employment relationship included a contract of service may have contributed to the idea that there would be no problem in having the applicant continue to provide services to the end of the contract.

[62]        A belief that there was a mutual parting of ways would also explain the respondent’s apparent surprise when the applicant went off work again in December and not only did not return but instead started legal proceedings. The respondent’s understanding that there was a mutual parting could certainly give way to feelings of betrayal based on the applicant’s subsequent behaviour.

[63]        However, in considering the available evidence, I am unable to conclude that there was in fact a mutual agreement to part ways, although as noted, it is quite possible that this was what the respondent believed at the time.

[64]        The applicant’s situation was that he had recently suffered a heart attack, requiring surgery. He had continuing symptoms that required ongoing cardiac rehabilitation. His experience during the time he was off work underscored the insecurity of his situation. Partly this was due to his status as an independent contractor, which meant that he had no security, no benefits, and no sick time in the event he was unable to work due to sickness or disability. He communicated to Ms. DiGioia that this was the major source of stress in his life. I accept that the applicant had no prospects of alternative employment. The fact that the applicant’s brother was an elected official in the past was not of any assistance in finding a new job. He was in his late 50’s and his job experience was somewhat narrow and not necessarily easily transferable.

[65]        I accept the applicant’s evidence that he was feeling vulnerable and insecure. Given his vulnerability and financial insecurity, and the fact that he had no other offers of employment, it would not have made any sense for the applicant to initiate the termination of his employment with the respondent. In these circumstances, it seems quite unlikely that the applicant would agree to leave the employment, and even more unlikely that he would initiate the process of terminating the employment relationship as the respondent suggests.

[66]        I am satisfied that the consequence of the interactions between the parties was that the applicant's employment was unilaterally terminated by the respondent. I am also satisfied that the applicant did not initiate the process leading to the termination.

[67]        This conclusion is supported by the applicant’s actions after November 7, 2016. He immediately contacted a lawyer and instructed her to contact the respondent about the end of the employment relationship. He initiated legal proceedings including this Application. He clearly was disgruntled and was having difficulty doing his job. Whether or not he was actually excluded from discussions, he felt excluded because he had been told his employment was going to be terminated. Given his actual circumstances and concerns about his future, the termination would be expected to be stressful and his doctor may well have suggested that he stay off work.

[68]        In order to establish discrimination in this case, the applicant must show that the fact that he had a continuing cardiac condition or that he had been off work because of that condition was a factor in the end of his employment.

[69]        The applicant’s contention is that there was no discussion about his future and that he was simply told by Ms. DiGioia that his employment would be terminated. This happened on the first day back from his medical leave. There is no evidence of any other reason why the applicant’s employment would be terminated at that time, and so the applicant infers that his disability must have been a factor.

[70]        In considering the evidence of the respondent as a whole, it seems clear that the sequence of events was initiated directly because the applicant had a disability. The evidence of Mr. Tavares is that he raised the idea of the applicant looking for alternative employment that would be closer to home out of genuine concern for the applicant and his understanding that it was important for the applicant to avoid stress because of his cardiac condition.  A long commute is inherently stressful and so avoiding that source of stress would be helpful.

[71]        If this conversation occurred in the way that Mr. Tavares recalls, I would accept that he was motivated by genuine concern for the applicant’s health and that the discussion, as far as he was concerned was based on friendly advice and not in any way intended to discriminate against the applicant.

[72]        However, I would not accept that the applicant understood the conversation in the same way. Given the applicant’s state of vulnerability and concern for his future, and the fact that he was not wanting to leave the employment, and instead wanted more security, the suggestion by the employer that he should leave the employment to find a different job would likely be taken as an indication of impending termination and not as friendly advice. In considering the applicant’s circumstances at the time, I find that it is not credible that the applicant responded enthusiastically to the suggestion that he leave the employment, assuming that the conversation recalled by Mr. Tavares happened.

[73]        If this conversation did occur, then a logical next step would be for the applicant to speak to Ms. DiGioia to find out what the actual situation was. This of course is what she says happened. I note that if this is what happened, it is very consistent with the applicant's likely experience of the conversation with Mr. Tavares. If he perceived the suggestion that he should look for work that was closer to home as an unspecified suggestion that his employment would be ending, it would be reasonable for him to then ask for specific information from Ms. DiGioia.

[74]        Ms. DiGioia was clear that she had not formulated any specific plan to terminate the employment relationship and that the termination arose only because the applicant demanded to know for how long he would be employed. She said that all decisions about personnel were ultimately made by Mr. Tavares, and she had not discussed terminating the applicant’s employment with him.

[75]        If she perceived the applicant’s question about his future as an expression by the applicant that he understood that his employment would at some time be terminated, she could have understood the subsequent discussion about the notice period to be a discussion consistent with a mutual parting of the ways.

[76]        However, as discussed earlier, I do not accept that the applicant in fact initiated a discussion about how best to mutually part ways and that instead, the objective consequence of the discussions was that the applicant’s employment was unilaterally terminated by the respondent.

[77]        It therefore seems entirely possible that the applicant’s employment ended when it did in large part because of misunderstanding and that in fact neither party actually wanted to end the employment relationship at that time.

[78]        However, in my view, the available evidence shows that the applicant’s employment would not have been terminated at the time it was had he not experienced the heart attack. On the respondent’s version of events, it seems clear that the only reason that Mr. Tavares raised the idea of the applicant looking for work closer to home was the fact that the applicant had experienced a heart attack and should therefore avoid stress. This conversation would not have happened otherwise. On the basis of the respondent’s evidence, if the conversation between Mr. Tavares and the applicant had not occurred, the conversation with Ms. DiGioia would not have happened either. The applicant’s employment might well have ended at some point due to restructuring or other factors, but as Ms. DiGioia said, that point could have been a year or longer later.

[79]        On the basis of the respondent’s evidence as a whole, it is therefore more probable than not the applicant’s disability was a factor in why his employment was terminated at the time it was.

[80]        However, the evidence available to me indicates that the applicant's disability was only one factor to the termination. The other significant factor was the underlying misunderstanding, which was not related to Code-protected grounds.

[81]        Section 45.2 of the Code provides as follows with respect to damages if there is a finding of discrimination:

[82]        In general terms, an applicant is entitled to compensation for lost wages that results from a discriminatory termination of employment. This is subject to a general duty to mitigate damages, for example, by conducting a diligent search for new employment.

[83]        December 1, 2016 was the last day the applicant worked for the respondent and he was not paid anything after that date by the respondent. The six-month working notice period was from November 7, 2016 to May 7, 2017. The applicant found new employment on June 4, 2018.

[84]        The applicant submits that he is entitled to wage loss for the period from December 1, 2016 to June 4, 2018, approximately 18 months.

[85]        The respondent submits that if there is wage loss awarded, it should be at most for the period from May 7, 2017 to June 4, 2018. The respondent submits that the applicant had employment available to him with the respondent for the period from December 1, 2016 to May 7, 2017 (the working notice period). He chose to not work for that period but if he had, he would not have suffered any wage loss.

[86]        The applicant suggested that it was not reasonable to expect him to work after December 1, 2016. He had been told that his services were no longer needed and in those circumstances it was uncomfortable to continue working. He also asserts that he was being excluded from meetings. However, he did not provide any concrete example of this, apart from stating that he had been planning to attend a trade show in February, 2017 and there was no more talk of that following his return to work.

[87]        I can fully understand why the applicant may have felt that he did not want to continue working after being told that his employment was going to be terminated. However, I am not satisfied that the work environment after he returned to work was so toxic or “poisoned” that he could not have continued to work.

[88]        There is some evidence that the applicant may have been unable to work for some of this period. He gave the respondent a note from his family doctor indicating that he needed to be off work for 6 to 8 weeks for medical reasons. In his testimony, the applicant suggested that the reason he needed to be off work for this time was that his symptoms worsened as a result of the events on November 7, 2016 and as a result of the exclusion he experienced and that the inability to work was therefore a consequence of the discriminatory termination. The Tribunal would typically expect some medical evidence to support such a contention. The applicant provided no medical evidence, apart from the note he gave the respondent.

[89]        The applicant testified that he did not start to look for work until February 1, 2017. He testified that this was because he was recovering from the effects of the heart attack and did not feel well enough to look for work. He also suggested that this may have been related to a worsening of his symptoms as a result of the events on November 7, 2016 and following, however, as noted, he did not provide medical evidence to support this.

[90]        I conclude that the applicant is not entitled to compensation for wage loss for the period from December 1, 2016 to May 7, 2017, the working notice period. This is because the applicant has not established that he could not have reasonably continued to work throughout the notice period. The applicant may have been totally disabled for some of this time but in that case he would not have been able to work in any event and would not have been paid.

[91]        The applicant provided a detailed and comprehensive job search list documenting his attempts to find employment. This covers the period from February 3, 2017 to June 4, 2018, when he found a new job. The respondent did not challenge the diligence of the job search and I find that the applicant conducted a reasonable and diligent search for new employment during this 13 month period.  

[92]        In some cases, the amount of damages for a discriminatory termination of employment may be limited if there is evidence that the termination would have happened for non-discriminatory reasons if the discriminatory termination had not occurred. For example, if an applicant’s employment is terminated for discriminatory reasons and it takes a year for the applicant to find new employment, but the evidence shows that the applicant would have laid off or terminated after six months, the applicant is not entitled to compensation for the full year, but only the six months that would have been worked if the discriminatory termination had not occurred.

[93]        In this case, the respondent submits that the applicant knew or ought to have known that his employment would have been terminated at some point after November 7, 2016 because of changes in production or restructuring. However, there is no evidence as to when this might have happened. Ms. DiGioia said it could have been a year or longer. In fact, it is not clear that there were actually changes that would have led to the termination of the applicant’s employment.

[94]        I conclude that the applicant is entitled to compensation for wage loss for the period May 7, 2017 to June 4, 2018, a period of 13 months.

[95]        The applicant’s pay was based on an annual pay of $75,000, or $6250 per month. He also had access to a company vehicle. There is no dispute that the applicant had full use of this vehicle for work and personal use. The respondent did not dispute the applicant’s assertion that this was reported to be worth $937.50 per month. The value of the applicant’s monthly pay plus the value of the vehicle is $7187.

[96]        I find that the applicant is entitled to compensation for wage loss based on monthly pay of $7187 X 13 months, for a total of $93,431.

[97]        In a case where there is a finding of discriminatory termination of employment, the Tribunal typically considers two factors. The first is the objective seriousness of the discrimination. The second is the impact on the applicant. As noted, if there are factors other than discrimination that contributed to the termination, the amount of compensation may be reduced to reflect that the applicant is entitled to compensation only for the part of the loss or injury that results from the discrimination.

[98]        In this case, while I have found that the termination of the applicant’s employment was discriminatory because disability was a factor that contributed to the termination, I have also found that a major reason for why the applicant’s employment was terminated when it was, was misunderstanding on the part of both parties, and that was not related to the applicant’s rights under the Code.

[99]        The applicant testified that the termination of his employment affected him emotionally and may also have contributed to his cardiac symptoms. However, he provide no medical evidence to support this contention.

[100]     I have considered that the base line for compensation for injury to dignity, feelings and self-respect for a discriminatory termination of employment is in the $15,000 - $35,000 range. The actual amount may be increased or decreased based on the objective seriousness of the discrimination and the impact on the applicant (See for example Conklin v. Ron Joyce Jr. Enterprises Ltd. (Tim Horton’s), 2017 HRTO 723 in that decision).

[101]     Noting that there was a significant non-discriminatory misunderstanding that contributed to the events, and the fact that the applicant has produced no medical evidence to support a claim for significant damages, I find that the applicant is entitled to $10,000 as compensation for injury to dignity, feelings and self-respect.

[102]      The respondent is directed to pay the applicant the amount of $93,431 as compensation for wage loss and an amount of $10,000 as compensation for injury to dignity, feelings and self-respect. These amounts shall be paid within six weeks of the date of this Decision. Interest calculated at 3% per year is payable on any amount not paid by that date.