Oct 17

Strudwick v Applied Consumer

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Strudwick v. Applied Consumer & Clinical Evaluations Inc.

Court slaps employer with almost $150,000 award over egregious conduct including refusing to implement safety procedures for a deaf employee.

Individuals with disabilities often face severe discrimination in employment. The decision in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2015 ONSC 3408, demonstrates how courts will identify and compensate for these forms of discrimination.

Facts

The Plaintiff, Strudwick, began working for Applied Consumer & Clinical Evaluations (“Applied Consumer”) in 1995. In October of 2010 she became deaf, which was believed to be due to a viral infection.

After Strudwick became deaf, her employer’s treatment of her changed drastically. Naturally, Strudwick put forward a number of requests for accommodation. These included having the Canadian Hearing Society attend her workplace to determine what accommodations would be needed, being allowed to bring a hearing dog into the workplace (the owner frequently brought his own dogs into the workplace), and being allowed to turn her desk around so that she could see people entering her office. All of these were refused. She was also belittled by her managers. She was told by one manager, “Why don’t you just quit? You can go on disability.”

Strudwick was a member of a Toastmasters Society, a public speaking club, which met at the premises of Applied Consumer and consisted of Applied Consumer employees. At a meeting in the week of May 26, 2011, Strudwick was responsible for picking the topics to be spoken on. She did so, but did not speak on a topic herself.

The next day, Strudwick was yelled at by a manager and called a fool in front of more than a dozen other employees. She was dismissed for “insubordination” at the Toastmasters meeting, and escorted from the building. She did not find replacement employment until September of 2014: working 1-6 days per month for $60.00 per day. At the time of her dismissal by Applied Consumer, her annual income had sunk to $21,802.00.

After Strudwick sued Applied Consumer, the company refused to file a Statement of Defence. Strudwick moved for default judgment, meaning that all of the facts described in her statement of claim were taken to be true, since her employer had made no attempt to dispute them in the 21 days since the claim had been filed.

Issues

1. What pay, if any, was Strudwick owed in lieu of notice?
2. What compensation, if any, was Strudwick owed for the loss of her benefits?
3. What damages, if any, was Strudwick owed for violations of the Ontario Human Rights Code (the “Code”)?
4. What damages, if any, was Strudwick owed for mental distress, or the manner in which she was dismissed?
5. What punitive damages, if any, was Strudwick owed?
6. Was Strudwick entitled to the costs of her action, and if so, how much?

Decision

Pay in Lieu of Notice

At the time of her dismissal, Strudwick was 56 years old and had been working for Applied Consumer for 15 years. The Court found did not rely heavily on the normal factors for assessing her notice damages, and also found that the character of employment, “in other words, greater notice for highly skilled professions and less notice for clerical or unskilled positions, is now “largely irrelevant.’” The Court also observed that there is a “limit or cap” on the length of reasonable notice periods.

With this in mind, the Court found that the employer’s “horrendous conduct” in its treatment of Strudwick merited an award at “the highest level,” meaning 24 months’ pay in lieu of notice. If the employer had dismissed Strudwick in a courteous fashion, the award would only have been 20 months. However, the Court applied the Supreme Court’s decision in Wallace v. United Grain Growers Ltd. to increase the notice period to 24 months because of the callous and harmful way in which Strudwick was terminated.

The Court also applied a 2 percent annual cost-of-living increase to Strudwick’s wages, and gave her a gross-up to reduce the impact of taxation on her award. Her total notice award was $49,907.05.

Benefits

The Court awarded Strudwick the cost of replacing her monthly benefits over the 24 months, for a total of $6,049.92.

Human Rights Code Damages

The Court was entitled to award damages for Code violations because Strudwick’s claim was partly, but not entirely, concerned with Code violations. Strudwick had suffered injury to dignity, feelings, and self-respect within the meaning of the Code as a result of the way she had been treated. This was particularly supported by medical evidence for a psychiatrist finding that Strudwick suffered from a depressive disorder caused by her experiences at work. The Court awarded her $20,000.00 in human rights damages.

Aggravated/Mental Distress Damages

The Court found that Strudwick was not entitled to “aggravated” damages for the obnoxious way in which she was dismissed, because she had already been compensated for her injured feelings by the human rights damages. However, she was found to be entitled to compensation for intentional infliction of mental suffering, caused by the employer’s use of the Toastmasters meeting as a pretext to dismiss her, and forcing her to clear out her desk in sight of other employees and be escorted from the building.

The Court compensated Strudwick by awarding her the exact cost of treatment for the resulting mental illness: $18,984.00.

Punitive Damages

The Court found that the employer’s conduct was unfair, deliberate, persistent, and designed to force Strudwick to resign. The damages awarded on other grounds were not enough to properly compensate Strudwick and punish the conduct of the employer. Strudwick was therefore awarded an additional $15,000.00 in punitive damages.

This brought Strudwick’s total damage award to $109,940.97.

Costs

Strudwick’s counsel claimed costs of $148,866.40 for the action, which had taken a long time to resolve. The Court determined that $40,000.00 was a proportionate and reasonable amount to award for Strudwick’s costs.

Principles

The Courts take discrimination against employees seriously. It is clear from the decision that refusing to accommodate a disabled employee, and trying to force them out of their employment, is behavior that courts can identify and compensate for. If you have any questions about your employment situation, call Monkhouse Law today for a free consultation.