HUMAN RIGHTS BOARD OF ADJUDICATION
IN THE MATTER OF: A Complaint by A. against Natural Progress Inc. et al carrying on business as Little Chief’s Place, alleging a breach of s. 14 of The Human Rights Code
AND IN THE MATTER OF: The Human Rights Code, C.C.S.M., Cap. H175 and Amendments thereto.
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NATURAL PROGRESS INC. carrying on business as LITTLE CHIEF’S PLACE
and B. and D.,
Adjudicator: Lori T. Spivak
For the Complainant: Sean Boyd and Sarah Lugtig
For the Respondents: B.
This complaint was filed by A. on June 8, 2001 with the Manitoba Human Rights Commission against B. and D., carrying on business as Little Chief’s Place. On May 22, 2001 she began working in the kitchen at Little Chief’s Place, a gas service and convenience store and restaurant in Brandon, Manitoba. Her complaint alleges that her employment was terminated based on her physical disability (Hepatitis C) in contravention of The Human Rights Code (the “Code”).
In replying to the complaint on October 8, 2001, Mr. B. claimed that Ms. A.’s employment was probationary and that she was reassigned to the position of cashier based on her “unhygienic way” but she refused this position. In a further letter to the Human Rights Commission dated August 2, 2002, Mr. B. stated that he asked Ms. A. for a doctor’s note and told her she would not be able to work in the kitchen until that was received.
On May 6, 2003, I was designated by the Minister of Justice under section 32 of the Code to hear and decide this complaint. The hearing of this matter took place in Brandon on October 25 and 26, 2004. The respondents were not represented by counsel and Mr. B. appeared on his behalf and on behalf of the other respondents. At the outset of the hearing, the Commission made a motion to amend the style of cause to add as a respondent Natural Progress Inc., a corporation owned by Mr. B. and Ms. D., which operates as Little Chief’s Place. Mr. B. and Ms. D. are directors of Natural Progress Inc. Mr. B. agreed to the amendment.
EVIDENCE ON BEHALF OF THE COMPLAINANT
Three witnesses testified on behalf of the complainant: Ms. A., Witness C., a public health nurse, and Witness F., the Medical Officer of Health for the Brandon and Assiniboine Regional Health Authorities.
Evidence of A.
Ms. A. first learned that she had Hepatitis C in 1997. Hepatitis C is a disease of the liver. She acquired the illness as a result of sharing a needle with another drug user while living in Edmonton, Alberta. She moved to Brandon in 2000 and described her personal circumstances at the time. She and her two younger children were living with her sister. She began drinking heavily and lost custody of her children to Child and Family Services. Social assistance required her to have “15 job contacts” per month. At the time she commenced working at Little Chief’s Place in early May 2001, she had stopped drinking and was trying to regain custody of her children.
Ms. A. responded to an ad in the Brandon Sun in May 2001 (exhibit 10) which advertised a position with Little Chief’s Place. She went to Little Chief’s with her sister who was getting gas and asked her sister to take her resume in to Mr. B. Ms. A. told Mr. B. of her previous experience working as a cashier at a Mohawk station in Edmonton. According to Ms. A., Mr. B. was impressed that she remembered the telephone number of that Mohawk station and asked her to call him in few days. Ms. A. called Mr. B. and she was asked to come in for training on May 15, 2001 for a shift from 10:00 a.m. to 4:00 p.m.
Ms. A. also worked at Little Chief’s Place on May 16, 17 and 18, 2001. She was being trained to cook chicken and prepare potato wedges. She also had various cleaning assignments. Ms. A. testified that she was disappointed that she was hired to cook, as she wanted a cashier position. She said she needed a job and the position of cook was what she was given.
Around the time she applied at Little Chief’s, Ms. A. also applied for a job at Subway. Her evidence was that Subway offered her a position at 40 hours a week. She turned the job down as she had already started working at Little Chief’s and felt committed to that place. As well D., Mr. B’s wife, told her that by June her hours would increase to 35 hours a week.
On May 22, 2001, Ms. A. was working with Ms. D. at Little Chief’s Place. She felt comfortable with Ms. D. and confided that she had recently stopped drinking and was trying to regain custody of her children. She also told Ms. D. that she had Hepatitis C and was undergoing some tests. In giving evidence she described this period of time in her life as a “major transition” as she was attempting to find steady employment to support her children and get her life “back in order”.
Ms. A. was scheduled to work full shifts on Saturday, May 26 and Sunday, May 27, 2001. Prior to that time her sister received a call from Mr. B. who informed her that Ms. A.’s scheduled shifts on these days were cancelled. Instead, Ms. A. was to work a 3 hour shift on Saturday, May 26, 2001 and Mr. B. would phone her on Monday May 28, 2001 about further shifts. On Saturday May 26, 2001 Ms. A. attended work and was left a list of cleaning jobs to be performed. She did not work in the kitchen on that day.
When Ms. A. did not receive a phone call from Mr. B. about further shifts, she went to see him on Tuesday, May 29, 2001. They had a conversation with customers nearby. During that encounter Mr. B. asked Ms. A. whether she had Hepatitis and she responded affirmatively. Ms. A. testified that Mr. B. then told her that she could no longer work at Little Chief’s Place. She responded that he was confusing Hepatitis C with Hepatitis A and B and that Hepatitis C was not contagious through daily contact. Mr. B. advised her she could not work in the kitchen because she had Hepatitis C. Ms. A. described Mr. B. as “not listening” to her explanation. She was frustrated and told Mr. B. that she could obtain a doctor’s note. According to Ms. A., Mr. B. required a doctor’s note before she could get any more shifts. Ms. A. left outraged and upset. She denied that Mr. B. offered to allow her to work as a cashier.
Right after meeting with Mr. B, Ms. A. telephoned Witness C., a public health nurse in Brandon. She was familiar with Witness C., as she had dealt with her when she first moved back to Brandon from Edmonton. She told Witness C. about her conversation with Mr. B. and Witness C. said she would phone him. She understood Witness C. phoned Mr. B. and ultimately met with him on June 4, 2001. Ms. A. also went to see her physician, Dr. G. and asked him to provide information to Mr. B. about the nature of Hepatitis C. She assumed that this was done. She identified a letter from Dr. G. dated May 31, 2001 (Exhibit 5) which she testified was received by her at a later date. The letter states that it is safe for Ms. A. to continue her job at her current work place and there is no risk of infecting other people unless there is a direct transfer of her blood to an individual. She did not forward this letter to Mr. B. as she assumed this letter was sent directly to him.
Witness C. subsequently told Ms. A. that she provided Mr. B. with pamphlets and information about Hepatitis C. Mr. B. never phoned Ms. A. after May 29, 2001 and never provided her with any further shifts. She therefore filed a complaint to the Human Rights Commission on June 8, 2001. Ms. A. testified that she was outraged and believed she was unfairly treated. She described the impact on her life. She had just regained custody of her children in June 2001. She was required to go on social assistance for support and remained on assistance until December 2001. In December 2001, she was hired as a baker at Tim Horton’s. She identified her pay stub from Little Chief’s Place (Exhibit 12) and confirmed that she worked there for a total of 22.7 hours and received the net amount of $143.98.
Ms. A. indicated that she can live a healthy life if she cares for herself and does not drink or take drugs. She takes precautions in her home and does not share razors with her daughter. Her toothbrush is kept separate from her children. She takes “normal hygienic precautions” when cooking at home. Ms. A. testified that the Department of Public Health does not require her to disclose that she has Hepatitis C.
In cross-examination, Mr. B. asked Ms. A. whether she agreed that he first approached her sister to work at Little Chief’s. She denied that her sister told her that this was the case. She acknowledged that she was aware that she was being asked to work because she was aboriginal and Mr. B. was looking for an aboriginal to work at Little Chief’s Place.
Mr. B. suggested to Ms. A. that she cut herself while cleaning a shelf when she was working on May 18, 2001. She denied this. He also suggested to her that she was told her shift was cancelled on May 27, 2001 because Mr. B. had returned from a wedding in Winnipeg earlier than expected. Ms. A. denied this as well.
Ms. A. was questioned about her conversation with Mr. B. on May 29, 2001. She denied that he asked her why she had to have some medical tests in Winnipeg. She denied that Mr. B. asked for the name of her doctor. She denied that Mr. B. asked her for a doctor’s note to advise him of the “stage of hepatitis” and claimed that she suggested providing a doctor’s note to indicate that it was safe for her to work in the kitchen. In response to the suggestion that Mr. B. offered her a cashier position until she provided a doctor’s note, Ms. A. maintained that she was never offered a cashier’s position until after her complaint was filed and during mediation of her complaint. She stated that had she been offered a cashier’s job, she would have accepted it. She acknowledged that the ad placed in the Brandon Sun in early May 2001 did not specify whether the position at Little Chief’s was as cashier or as cook.
Mr. B. challenged Ms. A.’s evidence that she turned down a 40 hour per week job at Subway in order to work at Little Chief’s Place. She reiterated that Ms. D. had advised her that her hours would increase to 35 hours. Ms. A. denied the suggestion by Mr. B. that she was on a probationary period.
Mr. B. asked Ms. A. about what she was told by Witness C. after his meeting with her on June 4, 2001. She testified that she was advised by Witness C. that she had provided Mr. B. with pamphlets, but that he couldn’t grasp the concept that she wasn’t contagious. She was never advised by Witness C. that Mr. B. required a doctor’s note.
Ms. A. denied that Mr. B. gave her $10.00 for a doctor’s note. Ms. A. acknowledged that she received no termination letter from Little Chief’s Place. She explained that she believed she was terminated as Mr. B. hired her friend E. , who is also aboriginal around this time. Ms. A. was also under the impression that her doctor had sent a letter to Mr. B. as she had requested.
In re-direct examination, Ms. A. clarified that she approached her doctor on two occasions to provide information to Mr. B.; first after her discussion with Mr. B. on May 29, 2001, and then again prior to filing the letter of complaint on June 8, 2001.
Evidence of Witness C.
Witness C. is a public health nurse and the coordinator for the sexually transmitted infections, HIV, and Hepatitis C Program of the Assiniboine and Brandon Regional Health Authorities. She has been in this position full time since 1999 and part time since 1995. Witness C. explained that Hepatitis C was first reportable in 1999. The Department of Public Health is notified of a positive result and contacts the person infected and the physician involved. Public Health provides information to the individual infected including how they can prevent transmission of the disease. Hepatitis C is mainly transmitted through blood. Approximately 5 - 10% of cases of Hepatitis C are transmitted sexually through bodily fluids. Some examples of the transmission of the disease by blood are through shaving, tattoos, needles, ink, donated blood and crack pipes. Infected individual are advised not to share razors, toothbrushes or hair clippers. In terms of precautions in the workplace an infected individual should take appropriate steps in the event of a cut.
Witness C. was asked whether normal hygienic precautions are adequate to meet safety standards. She explained that a person should adhere to general food handling regulations regardless of whether blood is infected. An individual should wear gloves and, if cut at work, should clean up any blood using an appropriate cleaner.
Witness C. explained that a person cannot get Hepatitis C by touching infected blood. In order for the disease to be transmitted, the infected blood has to come in contact with non-intact skin, abraded skin, mucus membrane or subcutaneous tissue. Even with this contact the chance of infection is in the range of 3%.
Witness C. testified that Ms. A. called her on June 1, 2001 as she was concerned her employer did not understand the nature of her illness. She asked Witness C. to contact Mr. B. and explain Hepatitis C. Ms. A. told Witness C. that Mr. B. believed that the illness could be transmitted to his customers. Witness C. called Mr. B. on June 1, 2001 and made arrangements to meet with Mr. B. on June 4, 2001.
On June 4, 2001, Witness C. met with Mr. B. at Little Chief’s Place. He was the only one working in the store at the time and the conversation “worked around the customers”. Witness C. wanted to make sure that Mr. B. understood the difference between Hepatitis A, which is a food handlers concern, and Hepatitis C, which is not. She reviewed with Mr. B. pamphlets (Exhibits 14, 15(a) and (b)), which explained the difference between Hepatitis A, B and C and their different forms of transmission. The pamphlets indicate that all three are liver diseases. Hepatitis A is spread primarily by fecal contamination. Hepatitis B is spread by exposure to blood or body fluids. The pamphlet on Hepatitis C indicated that if you live or work with someone who has Hepatitis C, you will not get the disease from day to day contact, and that it is spread when people share blood or body fluids containing blood. She advised Mr. B. that Ms. A. had Hepatitis C but did not have Hepatitis A or B. Mr. B. was concerned that Ms. A. could cut herself while cooking, causing her blood to spill on the chicken thereby transmitting Hepatitis C to customers. Witness C. told him that the probability of this occurring was “slim to none”. She advised that the appropriate response for a food handler in any situation where there is a cut while cooking is to discard the meat and clean the surface area with an appropriate cleaner. This is so, regardless of whether the blood is infected.
Mr. B. expressed concern to Witness C. that Ms. A. worked with knives. Witness C. discussed the general precautions that individuals working with knives would take regardless of whether they had infected blood. She told Mr. B. that Ms. A. was very conscientious and knew what precautions to take and what to do in the event that she cut herself. Mr. B. never mentioned that Ms. A. cut herself. Mr. B. told Witness C. that he liked Ms. A., that she did well in her job, but he was concerned that if his customers discovered that she had Hepatitis C, he would lose business. Mr. B. did not express any concern to Witness C. about Ms. A.’s hygiene.
Witness C. testified that Mr. B. admitted that it was difficult for him to be comfortable with an individual who had Hepatitis C. He was concerned that a discovery might be made in the future that the disease could be transmitted in other forms and this could cause a problem. Mr. B. told Witness C. that he had requested a doctor’s note and asked whether she had brought it. She advised him that she had not. Mr. B. said that he would speak with Ms. D. and Witness C. offered to meet with her if necessary. Mr. B. told Witness C. that he wanted to keep Ms. A. employed, as she was aboriginal and it was good for his business to have her at work. There was no discussion about Ms. A. working as a cashier.
According to Witness C. the information provided to Mr. B. was similar to information she provided to other employers who had employees with Hepatitis C. In her opinion, the information was adequate to address and satisfy any safety concerns. She testified that while she sensed that Mr. B. understood the information provided, he nonetheless had reservations about having an employee with Hepatitis C.
After Witness C. met with Mr. B. she spoke with Ms. A. and asked her about the doctor’s letter. Ms. A. advised her that she had seen her doctor about obtaining a letter. Ms. A. told Witness C. that she believed she wouldn’t receive anymore shifts from Mr. B.
Mr. B. cross-examined Witness C. about their telephone conversation on June 1, 2001 and their meeting on June 4, 2001. She agreed that when they spoke on June 1, 2001, he asked for a doctor’s note. She confirmed that Mr. B. never told her that Ms. A. was fired. On June 4th they met for probably an hour. Mr. B. suggested to Witness C. that after they met the only thing he was waiting for was a doctor’s note. She disagreed with this suggestion and indicated that her impression was that he would speak to his wife about the situation. There was no mention of Ms. A. returning to work.
Witness C. was questioned as to why she didn’t tell Ms. A. that Mr. B. required a doctor’s note. She acknowledged that she told Ms. A. that Mr. B. wanted a doctor’s note but she did not tell her that this was required as she did not believe this was necessary. Whether a doctor’s note was provided would not affect Ms. A.’s ability to perform her job.
Mr. B. suggested to Witness C. that he advised her at the meeting on June 4, 2001, that he had obtained information from the internet about Hepatitis C which was inconsistent with the information provided by Witness C., and that is why he wanted a doctor’s note. Witness C. denied that Mr. B. spoke about what he had read on the internet. An excerpt from the website of Canada Health relating to Hepatitis C (Exhibit 16) was put to Witness C. by Mr. B.. Reference was made to the statement “cleaning equipment with bleach does not always effectively kill the virus”. Witness C. indicated that this could be a reference to bleach with inadequate concentration. Witness C. maintained that the essence of Mr. B.’s concern was that his customers would find out that Ms. A. had Hepatitis C and he would lose business.
Evidence of Witness F.
Witness F., the Medical Officer of Health for the Brandon and Assiniboine Regional Health Authorities, was qualified as an expert in Public Health. Witness F. obtained her certification in family medicine in 1984 and has been the Medical Officer of Health since 1992. She described her experience and training in the field of Public Health and communicable diseases. She explained that Hepatitis C is one of the reportable infections under the Public Health Act. It is primarily a blood-born virus that causes inflammation of the liver. In order for the virus to be transmitted, blood to blood contact is required. Generally, people who have Hepatitis C will not have symptoms initially. The majority of individuals remain healthy and have productive lives.
Witness F. identified portions of Manitoba Health’s Communicable Disease Protocol which dealt with Hepatitis C (Exhibit 18). The protocol is intended to provide basic information and counseling to individuals. This manual has been available on the internet for at least one year. Prior to that, copies of the manual were available to the public. Witness F. explained that Hepatitis C is transmitted in very limited ways as it is primarily a blood-born virus. It is transmitted primarily through direct blood to blood contact with an infected person. Witness F. described the differences between Hepatitis A, B and C. Both Hepatitis B and C are blood-born diseases but Hepatitis B is also transmitted through other bodily fluids. Hepatitis A is not blood-born, but only transmitted through stool. Food handlers are identified as a high risk group for individuals with Hepatitis A but not for people with Hepatitis C.
Witness F. identified a document entitled “Universal Precautions to Prevent Transmission of Blood-Born Diseases” (Exhibit 19). She recommended these precautions which she described as “basic”. These standards have been described as universal, standard or routine precautions. The document stresses the importance of washing your hands, covering the areas of the body that have cuts or scratches, wearing disposable latex gloves, cleaning up blood soiled surfaces and disinfecting with a diluted bleach solution. Witness F. emphasized that in any food establishment, there is always the potential for bleeding and these are the universal, standard or routine precautions that should be taken. As long as these basic precautions are in place, this should address the safeguards necessary to prevent the transmission of a blood-born disease and no further precautions are necessary.
An individual with Hepatitis C is counseled by Public Health not to share toothbrushes, razor blades, donate blood or donate organs. There is no obligation on that individual to disclose that they have Hepatitis C. It is appropriate for an employer to ask about the nature of the illness, how it is transmitted and whether the employee is fit to work. However, Witness F.s’ opinion is that a doctor’s note is unnecessary, given the knowledge about how Hepatitis C is transmitted. In Witness F.s’ experience, if a Public Health nurse has explained the nature of Hepatitis C to an employer, that has been sufficient to satisfy most employers.
In cross-examination, Mr. B. questioned Witness F. about whether it was reasonable for an employer to require a doctor’s note. Witness F. agreed that if the only information provided by the employee is that the individual has Hepatitis, without any indication as to the type, that would be insufficient information. Mr. B. further questioned Witness F. as to whether it is reasonable for an employer to request information from a doctor if the employee advised the employer that she had Hepatitis C, and was about to have “a major test”. Witness F.s’ responded that a doctor’s note is unnecessary, as if the individual is already diagnosed, then the purpose of any further blood test is to determine treatment, and would not effect the risk of transmission and whether the individual could work.
Mr. B. also put to Witnesss F. the excerpt from Canada Health’s website (Exhibit 18) and the statement that cleaning equipment with bleach does not always effectively kill the virus. In re-direct examination, Witness F. testified that this statement is made in the context of drug use paraphernalia, which may not have smooth surfaces. In her opinion, bleach effectively cleans metal surfaces which are not porous and is sufficient for instruments used in food preparation.
EVIDENCE ON BEHALF OF THE RESPONDENTS
Mr. B. testified on behalf of the Respondents. He is President of Natural Progress Inc., which operates Little Chief’s Place. He described Little Chief’s Place as a gas bar and convenience store which serves food, including chicken, fries, hotdogs and sandwiches. Sharp instruments are used in the cooking process.
Ms. A. worked at Little Chief’s for two days before Mr. B. found out that she had Hepatitis C. He testified that he requested a doctor’s note to tell him the “stage of the Hepatitis” and to advise him whether she could work in the kitchen with food. Ms. A. never provided him with a letter from a doctor. She did return to see Mr. B. several days after this request and said she required $10.00 for a doctor’s note. According to Mr. B. he offered her $10.00, but a doctor’s letter was not forthcoming.
Mr. B. testified that Witness C., the Public Health nurse, spent “several minutes” with him, but this was non-productive as he was interrupted because he was working by himself at the time. Mr. B. said that he asked the Public Health nurse whether it was reasonable to obtain a doctor’s note, and she indicated this was a reasonable request. After he met with Witness C. he did an “extensive study” and went on the internet to obtain information about Hepatitis C. He described the information he obtained as conflicting. He specifically emphasized the excerpt from Canada Health (Exhibit 18) which said that bleach does not always kill the virus.
Mr. B. brought a pair of scissors and kabob sticks to the hearing as examples of the sharp instruments used in cooking at Little Chief’s. He said that some employees have been cut by stabbing themselves with these objects. He stated that this is why he requested a doctor’s note to provide him with, what he described as, a “post-exposure protocol”. Mr. B. explained that when he discovered that Ms. A. had Hepatitis C, he had no idea what to do and was searching for information. He believed the only person who could provide information to him was a doctor, but unfortunately he did not receive a doctor’s note. He claimed that he first saw Dr. G.’s note (Exhibit 5) at this hearing. He stressed that had a doctor’s note been received earlier, Ms. A. would still be employed. He maintained that Ms. A. was not fired, and referred to the fact that he did not prepare her Record of Employment until September 6, 2002, when it was clear that Ms. A. did not wish to return to work at Little Chief’s Place.
Mr. B. agreed in cross-examination that Little Chief’s had an aboriginal clientele and that he initially approached Ms. A.’s sister and offered her work, as he wanted to hire an aboriginal as it would be good for business.
Mr. B. was cross-examined about his reply, dated October 8, 2001, to Ms. A.’s complaint (Exhibit 3) where he indicated that he decided to place Ms. A. as cashier because of concerns about her hygiene. He acknowledged that he never raised this concern with Ms. A. He did not deny the suggestion that he never raised this issue with Witness C. He said that the decision to place Ms. A. as cashier was made on May 26, 2001. He claimed that this was not because of his fear about Hepatitis C, but because of her hygiene. Ms. A.’s Hepatitis C became an issue for him after he went on the internet and obtained information. According to Mr. B., Ms. A. did not work her scheduled shifts on May 26 and 27, 2001 because he and his wife were expected to be away in Winnipeg on these days but returned early.
Under cross-examination as to why he required a doctor’s note, Mr. B. referred to the information he obtained from the Canada Health website, which suggested that bleach is not a sufficient disinfectant. He was challenged as to how a doctor’s note would have satisfied him given his concern that if his customers discovered that he had an employee with Hepatitis C he would lose business. Counsel for the Commission suggested to Mr. B. that the information contained in Dr. G.’s note (Exhibit 5) was similar to the information he received in his meeting with Witness C. and he therefore would not be satisfied with a doctor’s note. Mr. B. responded that a doctor’s note would “partially absolve him from any responsibility”. He acknowledged that he did not contact Ms. A. to follow up after he requested a doctor’s note.
Mr. B. believed he could not allow Ms. A. to work in the kitchen until he received a doctor’s note. His position was challenged by reference to his reply to the complaint (Exhibit 3), which makes no mention that he required and was awaiting a doctor’s note. Counsel for the Commission also challenged Mr. B.’s claim that he offered Ms. A. a position as cashier and suggested that given her personal circumstances and experience as a cashier she would have accepted this position. Mr. B. claimed that Ms. A. rejected this position as it was less hours.
Counsel for the Commission referred to portions of the payroll records of Little Chief’s (Exhibit 9) which showed that after Ms. A. stopped receiving shifts, new employees were hired. Mr. B. confirmed that he hired Ms. A.’s friend, E., who was also aboriginal and that she began working on May 29, 2001 and worked on June 9, 11, 12 and 19th. Mr. B. claimed that one of his employees was caught stealing and fired on May 15, 2001 and he therefore required additional employees.
Was the complainant discriminated against in the course of her employment on the basis of a disability?
a) Has the Complainant established a prima facie case of discrimination?
Section 14(1) of The Human Rights Code (the “Code”), provides as follows:
14(1) “No person shall discriminate with respect to any aspect of an employment or occupation, unless the discrimination is based upon bona fide and reasonable requirements or qualifications for the employment or occupation.”
Section 9 of the Code defines discrimination as follows:
9(1) In this Code, “discrimination” means
- differential treatment of an individual on the basis of the individual's actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit; or
- differential treatment of an individual or group on the basis of any characteristic referred to in subsection (2); or
- differential treatment of an individual or group on the basis of the individual's or group's actual or presumed association with another individual or group whose identity or membership is determined by any characteristic referred to in subsection (2); or
- failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2).
Section 9(2)(f) of the Code provides that one of the applicable characteristics for the purposes of clause 9 (1) (b) to (d) is a physical disability.
The law is clear that where there is an allegation of discrimination under the Code, the onus is on the complainant to establish a prima facie case of discriminatory action. Thus the complainant must establish, on a balance of probabilities, that she was treated adversely by the respondents in the course of her employment on the basis of a disability. It is well established that the complainant need not prove that her disability was the sole, or even primary, factor taken into account. A violation of The Code will occur if her disability was one of the reasons why the respondents treated her adversely (Cooke v. Vancouver Island AIDS Society (1999), 35. C.H.R.R. D/56 (B.C.H.R.T.)
While there is no dispute that the complainant was employed at Little Chief’s Place, the terms of her employment are in dispute. Mr. B. raises in his reply to the complaint (Exhibit 3 ) that the complainant was on a six month probationary period in which either party could terminate the employment without notice. Ms. A. disputes this. Regardless, this is not a defence to a claim of discrimination. Authorities clearly provide that the fact that an employee may be on a probationary period does not remove that employee from protection of The Human Rights Code (Kalbfleisch and Ontario Human Rights Commission v. Carillo and 1321257 Ontario Ltd.(2002), 44 C.H.R.R. D/163 Ont. Bd. Inq.)
Hepatitis C has been recognized as a physical disability protected under Human Rights legislation (Repas v. Albert’s Family Restaurant and Lounge, a Decision of the Alberta Human Rights Panel dated November 21, 2003). Further in City of Montreal et al v. Commission Des Droits De La Personne Et Des Droits De La Jeunesse et al, (2000) 1 S.C.R. 665 the Supreme Court stated that a disability may be the result of a perceived limitation, even where no actual limitation exists. The Court noted (at para. 80) that a “handicap includes persons who are limited in their everyday activities only by the prejudice or stereotypes that are associated with this ground”. It is apparent from Mr. B.’s evidence that he believed that Ms. A.’s Hepatitis C limited her ability to work at Little Chief’s Place at the very least, by his account, in the kitchen. In contrast, the evidence of the medical experts was that Ms. A.’s Hepatitis C should pose no limitation on her ability to work at Little Chief’s. I accept the Commission’s submission that the complainant’s Hepatitis C as perceived by Mr. B. and dealt with in this case constitutes a disability within the meaning of the Code.
Having considered all the evidence, I am satisfied that the respondent treated the complainant adversely in relation to her employment because she had Hepatitis C. The undisputed evidence is that Ms. A. worked in the kitchen at Little Chief’s until May 22, 2001. It was on that day, while working that she disclosed to Ms. D. that she had Hepatitis C. She was initially scheduled to work on May 26 and 27, 2001. It was after her disclosure to Ms. D. that her shift was reduced on May 26, 2001 and she performed cleaning chores and did not work in the kitchen. She did not work on May 27, 2001 as originally scheduled. Ms. A. went to see Mr. B. on May 29, 2001. By her account of that encounter, Mr. B. told her she couldn’t work at Little Chief’s Place after she confirmed that she had Hepatitis C. He required a doctor’s note in order for her to get any more work. In his reply to the complaint, Mr. B. states that Ms. A. was assigned a cashier position based only on the unhygienic way she handled food equipment and materials. In his evidence at the hearing he acknowledged that he asked for a doctor’s note during their conversation on May 29, 2001 and maintained that he offered Ms. A. a cashier’s position in the interim which she refused as it was less hours.
I have difficulty accepting the respondent’s contention that the complainant was removed from the kitchen because of her hygiene. Mr. B. asked no questions of Ms. A. about this in his cross-examination. In his direct evidence, he did not mention that Ms. A.’s hygiene played any part in his decision to remove her from the kitchen following May 22, 2001. His evidence in direct suggests that it was Ms. A.’s Hepatitis C which resulted in her removal from the kitchen. He testified that when he found out that Ms. A. had Hepatitis C, he requested a doctor’s note to advise him if she could work in the kitchen. He admitted in cross-examination that he never raised the issue of Ms. A.’s hygiene with her. Witness C., the public health nurse who spoke with Mr. B. on June 1, 2001 and met with him on June 4, 2001, testified that Mr. B. never raised any concern about the complainant’s hygiene and suggested that she was a good worker. I consider Witness C. a credible witness and rely on her recollection of the conversations with Mr. B.
I similarly have difficulty accepting the respondent’s evidence that he offered the complainant a cashier position, which she refused. Ms. A. previously worked as a cashier. Her evidence was that she preferred the job of cashier. She claims that had she been offered a job as a cashier, she would have accepted this position. It is apparent from her circumstances at the time that she needed a job. Witness C. testified that Mr. B. never mentioned to her when they met on June 4, 2001, that he offered Ms. A. a cashier position. Her evidence was that Mr. B. was concerned about losing business if customers found out that Ms. A. had Hepatitis C. Mr. B. quite candidly admitted that he hired Ms. A. as she was aboriginal and this was good for business. Significantly, on May 29, 2001, Mr. B. hired Ms. E. another aboriginal woman, as an employee. All of this evidence supports the conclusion that a cashier’s position was not offered to Ms. A. prior to the filing of her complaint on June 8, 2001.
Based on the totality of evidence, I am satisfied that Ms. A.’s treatment following her disclosure to Ms. D., her removal from the kitchen, the cancellation of her shifts, and the failure to offer any further shifts, was because she had Hepatitis C. I therefore accept that Ms. A. has proven, on a balance of probabilities, a prima facie case of discriminatory treatment on the basis of a disability.
Mr. B. submitted that he had a responsibility to ensure the safety of his customers and that is why he required Ms. A. to provide a doctor’s note in order to work. While the reasonableness of this position may be relevant to whether an act of discrimination was justified based on a bona fide and reasonable requirement or qualification, it does not effect my finding that Ms. A. has established a prima facie case of discrimination.
As has been noted by other Human Rights Adjudicators, it is not necessary for the respondents to have acted maliciously toward the complainant in order for there to be a finding of discrimination. The treatment of Ms. A. may constitute discrimination even if Mr. B. honestly and genuinely believed that his actions were reasonable.
b) Have the respondents established that an act of discrimination was justified on the basis of a bona fide and reasonable occupational requirement?
Once a prima facie case of discrimination is established, the onus shifts to the respondents to prove that although an act of discrimination has occurred, it was based upon a bona fide and reasonable occupational requirement. This onus has been described as a onerous one in light of the importance of Human Rights legislation (S.T.E. v. Bertelsen (1989), 10 C.H.R.R. D/6294 Alta. Bd. Inq.).
In British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (1999), 3 S.C.R. 3 (“Meiorin”), the Supreme Court stated that in order to establish this justification, a respondent must prove that the impugned standard is rationally connected to job performance, imposed in good faith, and reasonably necessary for its purpose in that it does not permit accommodation except at the cost of undue hardship. The reasonableness of the respondents’ conduct must be assessed in light of these requirements.
The respondents’ position is essentially, that for safety reasons, it was reasonable to require Ms. A. to supply a doctor’s note, and this was not provided. In support of this position, Mr. B. referred to excerpts from the Canada Health website which suggested that bleach may not always effectively kill Hepatitis C. He claimed that Ms. A. cut herself at work. He emphasized that he had an obligation to take “due diligence to ensure the safety of all”. He referred to the conflicting information he received on the internet, which led him to require a doctor’s note to obtain information about Ms. A.’s Hepatitis and information about “post exposure protocol”.
I find it significant that the respondents’ reply to the complaint dated October 10, 2001 makes no mention of requiring a doctor’s note, no mention of conflicting information received about Hepatitis C and no mention of Ms. A. cutting herself while at work. In cross-examination Witness C. testified that Mr. B. never talked to her about what he had read on the internet or that Ms. A. had cut herself. Her evidence about their discussion on June 4, 2001 was that he was concerned that he would lose business if his customers discovered that he had an employee with Hepatitis C.
Witness C. left pamphlets with Mr. B. which clearly explained that Hepatitis C is spread through direct blood to blood contact and not from day to day contact. She explained the difference between Hepatitis A, B and C and responded to Mr. B.’s concerns that Ms. A. worked with food and sharp objects. She discussed the general precautions that people should take in a food handling establishment, which would be sufficient regardless of whether they had infected blood. Having been provided with this information, which should have been sufficient to address Mr. B.’s questions and allay his fears, it is difficult to accept his position that he still required a doctor’s note because of a genuine concern about safety. From all of this evidence, my impression is that the essential nature of Mr. B.’s concern was his fear that he would lose business.
In any event, it is well established that a subjective belief that risks are real does not justify discriminatory conduct. Here the evidence of highly qualified medical practitioners was that Hepatitis C is transmitted in limited ways and primarily through blood to blood contact. Witness F. and Witness C.’s opinion was the complainant’s Hepatitis C should not affect her ability to work at Little Chief’s. Further, they testified that there was no additional risk to Ms. A. working in the kitchen provided universal or standard precautions were in place which should be present during food handling regardless of whether an individual has infected blood. This information was conveyed to Mr. B. by Witness C. directly and through the pamphlets that she provided to him. This information was available to Mr. B. at the time pamphlets from documentation created by Manitoba Health. In the circumstances, I find that there was no reasonable basis to preclude Ms. A. from working further shifts and to require a doctor’s note.
Actions based on impressionistic and misinformed assumptions about the nature of Hepatitis C cannot be justified. I am guided by the following comments of the adjudicator in the decision of S.T.E. v. Bertelsen (1989), supra (at para. 44780) which dealt with a complaint of discrimination by a person who had AIDS:
“The respondent’s subjective beliefs that the risks were real does not provide justification for his conduct. The standard must be an objective one, or else the purpose of the act could be thwarted at every turn by ignorance and misinformation. The standard must be established on the basis of the best available scientific research. Ignorance, even wide-spread ignorance, cannot justify discriminatory conduct where there exists an established body of credible scientific knowledge, which is available to anyone who cares to inquire about it.”
For all of these reasons, I am not satisfied that the respondent has met the “Meiorin” test, i.e. that he adopted a standard in good faith for a purpose rationally connected to job performance and reasonably necessary. The respondents therefore have failed to establish a defense under section 14(1) of the Code. Based on all the evidence, I conclude that the complainant’s adverse treatment in the course of her employment because of her physical disability, was a contravention of the Code which was neither reasonable nor justified.
Given my finding that the complainant has been discriminated against and the Code has been contravened, I must determine the appropriate remedy for that contravention.
The remedy being sought by the Complainant is a monetary award in the amount of $2,000.00. The Commission is seeking this amount not because it regards this as fair or reasonable but solely due to fact that the complainant is on social assistance and anything beyond $2,000.00 would therefore not be received by her but paid to the government. The Commission emphasized that an appropriate award would normally be a higher amount. The Commission is not concerned about whether this amount is characterized as lost wages or general damages.
Damages may be ordered under Section 43(2)(c) of The Code for injury to a complainant’s dignity, feelings or self-respect. I choose to characterize this award on that basis.
The evidence of the complainant was that at the time she sought employment at Little Chief’s Place, this was a difficult period in her life. Prior to that time, she had been drinking and lost custody of her children. At the time she began working at Little Chief’s, she was trying to get her life in order, obtain work and regain custody of her children. She described how the respondents conduct impacted on her. She justifiably felt outraged, hurt, upset and unfairly treated. She had to go on social assistance and did not obtain other employment until December 2001. She was afraid to disclose to her subsequent employer at Tim Horton’s, that she needed to attend medical appointments because she had Hepatitis C. I am satisfied from the evidence that the respondents’ actions had a significant impact on the complainant, caused her distress and undermined her confidence and self esteem. I accept that she is entitled to an award of damages for injury to dignity, feelings or self-respect.
Several decisions were referred to by the Commission as providing guidance on the range of general damages awarded in similar cases. In Repas v. Albert’s Family Restaurant and Lounge, supra, general damages for pain and suffering were awarded in the amount of $3,000.00 to an employee who was terminated because she had Hepatitis C. In Kalbfleisch v. Carillo supra, general damages in the amount of $3,500.00 were awarded to the complainant who was discriminated against in employment on the basis that she had epilepsy. Given that the range of damages awarded by relevant authorities is higher than that requested here, I have no hesitation in awarding the amount of $2,000.00 for injury to Ms. A.’s dignity, feelings or self-respect.
Counsel for the Commission requested that I consider ordering Mr. B. to attend a “Human Rights session”. I am of the view in these circumstances that there would be little value in doing so and I therefore decline to make such an order. I do however believe it appropriate to include an order that the respondents not discriminate against other persons with Hepatitis C in the future.
I therefore order:
- that the respondents pay to the complainant the amount of $2,000.00 to compensate her for injury to her dignity, feelings and self respect;
- that the respondents refrain from discriminating against other persons with Hepatitis C in the future.
DATED at the City of Winnipeg, in Manitoba, this 10th day of January, 2005.
LORI T. SPIVAK