Pillar Resource Services Inc. v. Hough, 2022 ABKB 610

Court of King’s Bench of Alberta Citation: Pillar Resource Services Inc. v. Hough, 2022 ABKB 610 Date: 20220915 Docket: 2103 09605 Registry: Edmonton Between: Pillar Resource Services Inc. Plaintiff - and - Greg Hough and the Alberta Human Rights Commission and the Human Rights Tribunal of Alberta Defendant Corrected judgment: A corrigendum was issued on September 16, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice G.R.

Fraser _______________________________________________________ [ 1 ] Pillar Resource Services Incorporated is appealing the Decision of the Human Rights Tribunal of Alberta. The Decision found that Greg Hough was subjected to discrimination on the basis of physical disability while employed by Pillar. [ 2 ] Pursuant to section 37(4) of the Alberta Human Rights Act , on appeal the court may confirm, reverse, or vary the order of the Human Rights Tribunal and make any order that the Tribunal may make under

section 32 of the Act, or the court may remit the matter back to the Tribunal with directions. [ 3 ] For the reasons that follow, I confirm the Tribunal’s Decision.

[4] Mr. Hough started to work for Pillar as a field worker in November 2012. On April 29, 2013, he started to work in Pillar’smodule yard as an Apprentice Pipefitter. He remained in that position until his employment was terminated February 2, 2015. [5] On March 17, 2014, Mr. Hough injured himself while working in the module yard. He fell and injured his right elbow andshoulder. The injury resulted in Mr. Hough being placed on modified duties. It is this change in his employment that resulted in hiseventual complaint to the Tribunal. Mr. Hough alleged discrimination by Pillar in his employment on the basis of his physical disability,contrary to

section 7 of the Act. [6] Mr. Hough filed a formal complaint that was accepted by the Alberta Human Rights Commission on February 5, 2015. Aninvestigation was started, and eventually completed. The investigation report was filed June 24, 2019. [7] The Tribunal conducted a hearing in February 2021. Multiple witnesses gave evidence. An Interim Decision was released onApril 9, 2021. The Interim Decision dismissed Pillar’s application to limit the scope of the allegations in Mr. Hough’s complaint. [8] The Tribunal released its written Decision in this matter on June 1, 2021.

Its citation is Hough v Pillar Resource ServicesInc., 2021 AHRC 121. The Tribunal found that Mr. Hough had been subject to discrimination. [9] In its Decision, the Tribunal addressed four questions and found as follows: a. Did the Respondent discriminate against the Complainant by requiring him to perform duties outside of his medicalrestrictions? Tribunal finding - No b. Did the Respondent discriminate against the Complainant by harassing him during his modified duties? Tribunal finding - Yes c. Did the Respondent discriminate against the Complainant in his termination? Tribunal finding - yes d.

What is the appropriate remedy? Tribunal finding - $25,000 general damages + lost wages + Judgment interest. [10] Pillar is appealing this Decision. [11] Pillar has an appeal by right under

section 37 of the Alberta Human Rights Act. Pillar filed this appeal prior to the Act beingamended, and therefore the appeal is entitled to continue pursuant to

section 45.1 of the Amended Act. [12] The parties agree that the standard of review on this appeal is palpable and overriding error with respect to findings of fact andmixed fact and law. The standard of review is correctness with regard to findings of law. I am to give deference to the Tribunal’s findingsof fact[1]. I am not to review the evidence and substitute my own findings. [13] In Sunshine Village Corporation v Boehnisch, 2020 ABQB 692, Justice Devlin described “palpable and overriding error” asclear to the mind or plain to see and the error must discredit the result as its root.

The error must be one of crucial law, fallacy, ormistake.[2] I agree with his description of the test. [14] Pillar submits that the Tribunal’s Decision did not state and consider the correct legal test regarding discriminatoryharassment. Pillar submits that the failure to state the test is an error of law. It is true that nowhere in the Decision is the legal test forharassment specifically stated.

However, not stating the legal test does not automatically constitute an error of law. [15] Pillar sites Housen v Nikolaisen, [ 2002 SCC 33 , 2002] 2 SCR 235, paragraph 36, in support of its position that theTribunal must state the legal test for harassment. The paragraph reads as follows: To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixedfact and law. Matters of mixed fact and law lie along a spectrum.

Where, for instance, an error with respect to a finding of negligencecan be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error inprinciple, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious,however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legalquestions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”.

Where the legalprinciple is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The generalrule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s

interpretation of the evidence as awhole, it should not be overturned absent palpable and overriding error. [16] In my reading of this paragraph, I find nothing that indicates a trier of fact must state the legal test it is applying. In the sameDecision, at paragraph 39, the Court writes: As a starting point to the discussion of the ordinary or reasonable motorist, we emphasize that the failure to discuss a relevant factor indepth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence.

This was made clear by the recentdecision of Van de Perre, supra, where Bastarache J. says, at para. 15: . . . omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. Asstated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal

refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence. [ 17 ] This paragraph confirms that failure to state the legal test for harassment (omissions in reasons) is not a sufficient basis for me to reconsider the evidence.

It is only if the Tribunal fails to consider a required element or improperly applies the test for harassment that I may reconsider the evidence. [ 18 ] Although it did not specifically state the test for harassment, the Tribunal did cite the case of Moore v British Columbia (Education) , 2012 SCC 61 . The Decision sets out the test for a finding of discrimination. [3] It seems that Tribunal applied that test in its Decision. [ 19 ] The Tribunal’s Decision did not specifically state it was using an objective test regarding harassment. That does not mean it did not apply that test.

Its Decision does in places discuss Mr. Hough’s specific feelings. However, the Tribunal’s Decision when viewed in its entirety supports its findings on an objective basis. [ 20 ] Regarding harassment, the Tribunal found that Mr. Hough was subject to a series of unwarranted or disproportionate discipline, that he was assigned demeaning work, and that he was portrayed negatively in a safety video. [ 21 ] Objectively, being subjected to unwarranted or disproportionate discipline could be deemed harassment. Being required to perform work without basic comfort items can be objectively viewed as harassment.

Having embarrassing personal details shared with all of one’s work colleagues also meets the objective test for harassment. [ 22 ] The purpose of the Tribunal is to resolve complaints made to the Alberta Human Rights Commission. It is an Administrative Tribunal and has a quasi-judicial function. One of its main roles is to resolve complaints involving discrimination. Discrimination can take the form of harassment. It is reasonable to deem that the Tribunal has some expertise in this area [4] .

Failing to state the specific test for harassment is not fatal to its Decision. [ 23 ] In September 2014, Pillar disciplined Mr. Hough for absenteeism. He received a five-day suspension. Pillar based its suspension on five instances of absenteeism. The Tribunal found that Pillar was aware of two of the absences and that they were for legitimate reasons. An additional absence related to a car crash, and this absence was also found to be reasonable. The Tribunal found that the other two absences had been verbally approved.

They may not have complied with Pillars workplace policy requiring 14 days advance notice of any absence, but the Tribunal found that Mr. Hough’s supervisors approved his absence. The Tribunal found that Mr. Hough provided uncontroverted evidence that he had submitted the required form and that his absences were approved. Therefore, discipline for all the absences was unwarranted. [ 24 ] Less than three weeks after the five-day suspension, Pillar disciplined Mr. Hough for missing a morning safety meeting. Mr. Hough admitted to missing the meeting but provided an explanation.

According to Pillar, he missed the meeting in order to take his wife’s vehicle to a mechanic. Mr. Hough claimed that he missed the meeting because he went to the wrong location. He also claimed that he did not take any vehicle to a mechanic on that date. The Tribunal found that Pillar made incorrect conclusions about Mr. Hough’s conduct and then disproportionately punished him. [ 25 ] All of these disciplinary actions occurred shortly after Mr. Hough advised Pillar that he could no longer perform modified duties and needed to return to sedentary duties. The Tribunal found that Mr.

Hough’s disability and his need to modify his workplace duties were a factor in his discipline. The Tribunal found this to be harassment. [ 26 ] Although I may not agree with the Tribunal’s findings, I do not find that there is palpable and overriding error in its findings. I did not have the benefit of hearing directly from the witnesses. The Tribunal heard the witnesses’ evidence and weighed the evidence as it felt appropriate. In weighing the evidence, it determined that some of Pillar’s disciplinary actions were appropriate, and that some were not.

The Tribunal did not find that Pillar was not entitled to enforce its workplace policies. Instead, it found that some of Pillar’s enforcement of its policies was inconsistent and overly harsh. The Tribunal explained its findings, and I cannot find any palpable or overriding error in those findings. [ 27 ] The Tribunal found that Pillar required Mr. Hough to perform demeaning work while on modified duties. Pillar required him to do yard cleanup and to “dope studs”. Both required tasks were within the scope of his modified duties. Doping studs is a necessary, but monotonous task.

A person has to put “dope” onto a bolt, then put the bolt back into a box so it can be used on site. Pillar required Mr. Hough to perform this task for weeks on end. He did so by sitting on a chair at a table. At some point, Pillar decided that he could no longer use a chair. This meant Mr. Hough now had to stand while bending forward to perform the task. The Tribunal found that removing the chair amounted to adverse treatment and that Mr.

Hough’s disability was a factor in that adverse treatment. [ 28 ] The Tribunal did not accept Pillar’s explanation that the chair needed to be removed in order to comply with Mr. Hough’s workplace restrictions. Pillar’s position was that Mr. Hough was restricted from reaching or lifting from his waist to his shoulder, and also that he should not do repetitive horizontal reaching. This argument was made to the Tribunal and rejected by the Tribunal.

Again, I can find no palpable and overriding error regarding this Decision. [ 29 ] Pillar submits that the Tribunal’s Decision regarding the removal of the chair was an error of law. It has submitted that Mr. Hough’s modified work agreement included the statement “seating will not be provided”. That statement combined with medical reports restricting his ability to perform reaching or lifting from his waist to his shoulder as well as horizontal reaching meant that Pillar was required to remove the chair. Providing a chair, according to Pillar, would have been contrary to Mr.

Hough’s imposed medical restrictions and his WCB approvals. [ 30 ] I do not find the Tribunal’s Decision regarding the chair to be an error of law. Mr. Hough did have workplace restrictions. It would be possible to comply with those restrictions by using a chair and table of appropriate heights. The modified work agreements between Pillar and Mr. Hough do contain the phrase “seating will not be provided”. In the context of the agreements, it is not obvious

that this phrase means that no chair would be provided. It could mean that no special seating would be provided. [ 31 ] Despite the agreements, Pillar initially provided Mr. Hough with a chair and there is no evidence that it aggravated his injuries. Pillar then decided to take away the chair. No explanation was given for the change. The Tribunal did not find that the monotonous work was harassment. It found that the monotonous work without a chair was adverse treatment and that Mr. Hough’s disability was a factor in the adverse treatment.

The adverse treatment constituted harassment. [ 32 ] The Tribunal was not interpreting law when it made its finding regarding the removal of the chair. The Tribunal was interpreting Pillar’s motivations in removing the chair. Consequently, the test is palpable and overriding error. [ 33 ] The third area addressed by the Tribunal involved the creation of a safety video. Mr. Hough agreed to participate in the video which was eventually shown to approximately 50 of his work colleagues. Included in the video was a short discussion about Mr. Hough’s sexual capacity following the injury. [ 34 ] Mr.

Hough testified at the hearing that he experienced mocking or ridicule as a result of the video being shown to his workplace colleagues. The Tribunal believed Mr. Hough’s testimony regarding his deep embarrassment as a result of the video. The Tribunal specifically accepted his testimony and rejected the testimony of M.A., a Pillar employee involved in creating the video. [ 35 ] As stated above, the Tribunal is entitled to deference regarding its findings of fact. The Tribunal heard the testimony, evaluated it, and made findings.

I cannot find any palpable and overriding error in its findings. [ 36 ] The Tribunal found that Mr. Hough’s disability was a factor in his termination. Pillar terminated Mr. Hough on February 2, 2015. This was his first day back to work without any medical restrictions. At that time, Pillar’s workforce with somewhere between 300 and 500 employees. Five other employees were laid off around the same time as Mr. Hough, but none on the same day. The other laid off employees had not been with the company as long as Mr. Hough. Three of the layoffs were due to reasons other than a shortage of work.

The Tribunal heard testimony from a Pillar representative that the company anticipated an upcoming shortage of work which justified Mr. Hough’s termination. [ 37 ] The Tribunal accepted that Pillar anticipated a workforce contraction at the time of Mr. Hough’s termination, however it had not started the process when Mr. Hough was terminated. Larger scale layoffs did not start until March 2015. On January 30, 2015, Pillar advised WCB that it had work available for Mr. Hough.

The Tribunal found that Pillar provided no evidence explaining what changes occurred between January 30 and February 2, 2015, that resulted in a shortage of work. That Tribunal also found that there was no evidence explaining why Mr. Hough had been selected for termination instead of a different employee with less seniority. [ 38 ] The tribunal then went on to apply the test from Moore to the facts it found. It concluded that his physical disability was a factor in his termination. [ 39 ] Pillar submits that the Tribunal improperly interpreted Pillar’s statement regarding having work for Mr. Hough.

It submits that the statement is referring to the future, and not the present situation. Although this may be one plausible

interpretation of the statement, it does not demonstrate why the Tribunal’s

interpretation was incorrect. There was no palpable and overriding error in the Tribunal’s

interpretation of the statement. [ 40 ] The Tribunal relied on circumstantial evidence to find that Mr. Hough’s disability was a factor in his termination. Pillar submits that other evidence should have outweighed the circumstantial evidence. This is a direct request for me to weigh the evidence and come to a different conclusion. That is not my function in this proceeding. As stated multiple times above, I am only to interfere with the Tribunal’s findings if there is palpable and overriding error. Regarding Mr.

Hough termination, the Tribunal makes findings of fact and then explains its decision based on those findings. I cannot find any flaw in this process. [ 41 ] Pillar submits that the Tribunal made errors in its awarding of damages. The Tribunal awarded $25,000 in general damages as well as lost wages from February 2, 2014 to March 6, 2014. [ 42 ] In determining the sum of $25,000 as compensation for general damages, the Tribunal described the proper test to be applied. It reviewed awards in other comparable cases. It found that the circumstances surrounding Pillar’s discriminatory actions were objectively serious.

It also relied on the Sunshine Village Corporation Decision in determining the appropriate amount of compensation. Although I may not have ordered the same compensation, that is not the test. I cannot find any palpable and overriding error in the Tribunal’s Decision to award $25,000 in general damages. [ 43 ] The Tribunal did make an error in awarding compensation for lost wages. It failed to take into account that Pillar paid Mr. Hough one week’s wages as compensation for lack of notice. This meant lost wages should have been calculated from February 9, 2014, through March 6, 2014.

The damage award should be reduced accordingly. [ 44 ] Judgment interest should be applied. [ 45 ] Cost should be awarded against Pillar. Heard on the 03 rd day of March, 2022. Dated at the City of Edmonton, Alberta this 15 th day of September, 2022.

G.R. Fraser J.C.K.B.A. Appearances: Aaron Marchadour and John Gruber, MLT Aikins for the Plaintiff Melissa L. Luhtanen for the Alberta Human Rights Tribunal (Commission) Trina Kondro, Emery Jamieson LLP for the Alberta Human Rights Commission Greg Hough Self-Represented Litigant _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice G.R. Fraser _______________________________________________________ 1. The Style of Cause has been changed to add the Alberta Human Rights Commission and the Human Rights Tribunal of Alberta. 2. Melissa L.

Luhtanen, for the Alberta Human Rights Tribunal (Commission) and Trina Kondro, Emery Jamieson LLP, for the Alberta Human Rights Commission have been added to the Appearances.