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Strudwick v. Applied Consumer & Clinical Evaluations: Failure to Accommodate Gives Rise to Numerous Damage Claims
In a recent Ontario case the employee was awarded over $100,000 in damages for discriminatory treatment by her employer, including verbal harassment, relating to being deaf.
Since 2008, the courts have been utilizing (the then-newly created) section 46.1 of the Ontario Human Rights Code, R.S.O. 1990, c.19, to provide a civil remedy for human rights civil claimants. The first claim decided by the courts in which a human rights remedy was granted was Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII), in which damages were awarded for termination on the basis of disability.
While damages have generally ranged between $20,000-$25,000, as was the case with Wilson, a newer civil decision in Studwick v. Applied Consumer & Clinical Evaluations Inc., 2014 ONSC 3408 confirms that damages for injury to dignity, feelings and self-respect are not the only damages which can be potentially awarded in a civil claim wherein disability discrimination issues are at hand.
In Studwick, the Plaintiff, whom was employed in a data entry capacity with the Defendant, a recruiter for focus groups. Five years following the commencement of her employment, she became deaf, a condition which naturally required significant accommodation. Despite the efforts which she made to seek appropriate accommodation, including having the Canadian Hearing Society do a work environment based private assessment to determine the appropriate accommodations for her, the Defendant failed to adequately accommodate her, and in fact allowed behavior from the Plaintiff’s superiors which could only be categorized as humiliating and degrading. She was asked questions such as “Why don’t you quit? You can go on disability” and was called a “goddamn fool” at a Toastmasters (public speaking club) meeting which was supported by the Defendant.
Following the meeting in which she was degraded, the Plaintiff was terminated for unfounded allegations of insubordination at the meeting. She then sued for wrongful dismissal and human rights claims and was awarded multiple damages, including $20,000.00, for violations of the Ontario Human Rights Code, R.S.O. 1990, c.19, $19,000.00 for intentional infliction of mental distress, and $15,000.00 for punitive damages.
The reason for the multiple damage awards primarily stemmed from the Defendant’s conduct, which was above and beyond that of unfair treatment. The Defendant’s refusal to accommodate the Plaintiff, for example, was horrendous- it had even refused to set up a system wherein a co-worker would inform the Plaintiff of a fire alarm going off.
Strudwick is demonstrative that an award of multiple heads of damages will not always be considered a “double recovery”- that is, damage awards which are separate but arise from the same issue.
The court in Strudwick emphasized that the damage awards were a result of the Employer’s conduct but stressed that the quantum of damages under different headings was appropriate with regard to how the Employer’s conduct had affected the Plaintiff, and specifically, how that conduct had been categorized within the confines of the common law.
If you have been inadequately accommodated and/or terminated on the basis of a disability, contact Monkhouse Law today for a free consultation. As the above case demonstrates, there are legal remedies available to employees whom are unfairly treated on the basis of a disability, and the amounts recognized as appropriate for such violations are expanding.