Woman takes le­gal ac­tion af­ter en­dur­ing abuse over hear­ing loss

The Hamilton Spectator - - BUSINESS - Ed Can­ning prac­tises labour and em­ploy­ment law with Ross & McBride LLP, in Hamil­ton, rep­re­sent­ing both em­ploy­ers and em­ploy­ees. You can email him at ecan­ning@rossm­cbride.com. ED CAN­NING

Sadly, it is not un­usual for em­ploy­ers to dis­crim­i­nate against dis­abled em­ploy­ees or fail to ac­com­mo­date them in the work­place.

Many em­ploy­ers sim­ply do not un­der­stand the obli­ga­tions im­posed by the On­tario Hu­man Rights Code.

Even if they know they are vi­o­lat­ing the code, most are clever enough not to be overt about the dis­crim­i­na­tion. But there are al­ways ex­cep­tions. Judy had been work­ing for a com­pany that re­cruited peo­ple for fo­cus groups for al­most 15 years when she lost her hear­ing. The doc­tors weren’t sure why, but thought it might have been a virus.

The owner of the com­pany was away from work for his own health rea­sons and had left his gen­eral man­ager in charge. Big mis­take. The man­age­ment team promptly be­gan a cam­paign of abuse to try to force Judy out. They would give in­struc­tions to her in a man­ner that in­ten­tion­ally pre­vented her from lip-read­ing, then call her stupid when she didn’t un­der­stand.

She was chas­tised for not an­swer­ing the phone. At the same time, other em­ploy­ees were en­cour­aged to tele­phone her rather than talk to her di­rectly so that she would miss the call and be sub­ject to more abuse.

Man­age­ment said it re­quired a note from Judy’s doc­tor pro­vid­ing the pre­cise cause of her hear­ing loss, which was not pos­si­ble.

When she pro­duced hear­ing test re­sults in­stead, she was ac­cused of be­ing too cheap to pro­vide a doc­tor’s note. It was sug­gested that she just quit and go on dis­abil­ity.

They re­fused Judy’s re­quest to have the Cana­dian Hear­ing So­ci­ety come in and per­form an ac­com­mo­da­tion as­sess­ment. They would not let her have ac­cess to im­por­tant in­for­ma­tion in print, and her as­sis­tance dog was not per­mit­ted on the premises al­though the owner of­ten brought his own dog.

She of­fered to pur­chase a spe­cial tele­phone to help her but was re­fused. Nor would the em­ployer let her buy a visual fire alarm or have some­one as­signed to tell her if the fire alarm went off. She could not even turn her desk around so she could see peo­ple as they ap­proached her. Her re­quest to use a vi­brat­ing or light-ac­ti­vated pager was also de­nied.

The gen­eral man­ager said all of these ac­com­mo­da­tions were un­nec­es­sary.

But, clearly, this treat­ment was ma­li­cious.

The em­ploy­ees had vol­un­tar­ily cre­ated their own Toast­mas­ters Club. For one evening’s meet­ing, Judy helped se­lect the topic but did not give a pre­sen­ta­tion. The next day the gen­eral man­ager called her a “god­damn fool” in front of two other em­ploy­ees and ter­mi­nated her.

He handed her a cheque for three months pay and de­manded she sign a re­lease there and then. When she didn’t, he took the cheque back and es­corted her out of the build­ing in front of her co­work­ers.

She could not even get her out­stand­ing pay un­til a le­gal clinic be­came in­volved and her em­ploy­ment in­surance was de­layed be­cause of the em­ployer’s ridicu­lous sug­ges­tion that she had been guilty of in­sub­or­di­na­tion and wil­ful mis­con­duct.

This mat­ter did not end up in front of the On­tario Hu­man Rights Tri­bunal, which is some­what un­usual. In­stead, Judy sued through the civil courts and added a claim for vi­o­la­tion of the On­tario Hu­man Rights Code.

The amounts that could be awarded to her were lim­ited by the to­tal spec­i­fied by her lawyer in the state­ment of claim: $240,000.

Even­tu­ally the mat­ter ended up in front of the Court of Ap­peal and this in­creased the dam­ages awarded to Judy by the lower courts as a re­sult of the ma­li­cious treat­ment. She was awarded $40,000 in gen­eral dam­ages pur­suant to the hu­man rights code, along with lost wages, puni­tive dam­ages and a va­ri­ety of other dam­ages to­talling $240,000.

Given that Judy made $12.85 an hour at the time she was ter­mi­nated, it was a very sig­nif­i­cant judg­ment.

With this de­ci­sion and oth­ers it has made in the past few years, the Court of Ap­peal is send­ing a mes­sage that de­ci­sion-mak­ers should not be stingy in the dam­ages awarded when hu­man rights vi­o­la­tions are in­volved.

For­tu­nately, it is rare to see a sit­u­a­tion in which a dis­abled employee is treated with such fla­grant mal­ice.

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