Canadian Employment Law Today

CELT May 29 2013:celt 467.qxd 13-05-15 4:34 PM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: HARASSMENT Email went out to clients disclosing past addiction problems ...continued from page 4 would "get paid when he got paid." Halliday followed up with emails to Van Toen about the money he was owed. Van Toen called the emails "insulting" and replied that Halliday had made the company some money that month, but nothing else in the months preceding. Halliday was shocked at Van Toen's insult as he had been clean for four months and it felt like a "slap in the face." It got worse when, a few days later, another sales agent forwarded him an email from Van Toen to other sales agents stating that "we suspect Bill has been stealing from us for months (he is a former crackhead – not to put that against him) who is actually paid up to date." The email further said they were calling leads to verify his figures. Halliday felt ashamed and embarrassed, as well as discriminated against because he felt Van Toen was perpetuating the assumption that crackheads are thieves. He emailed Van Toen to say he was resigning immediately and advised all contacts with whom he had existing deals that he was no longer representing TransDeals.ca, with the hope he could do business with them in the future. Halliday contacted Van Toen's father, Charles Van Toen, who was also an owner of VIT and TransDeals, to explain the reason for his resignation and to ask for the money still owed to him. He also explained he would invoice dealerships directly on any deals until TransDeal's debt to him was paid. Charles Van Toen replied that the insulting email "should not have happened and we apologize for it." However, he went on to say that any deals currently being negotiated were the company's property and "further action" would be taken if Halliday tried to act outside the contract. Shortly thereafter, Halliday began receiving calls from contacts about emails they had received from Geoffrey Van Toen, which stated there may be possible legal action against Halliday. The email also said the company had worked with him to "curtail his crack addiction" but "he has now slipped and made short cuts with a few dealers and clients. He also made physical threats towards myself and our company." The forwarded email showed it was sent to "undisclosed recipients," and Halliday believed it had been sent to all of his dealership contacts. In early December 2009, TransDeal indicated it would like Halliday to work for the company again, but Halliday declines, saying he had been affected emotionally by the situation and was seeking professional help to deal with it. He didn't feel he could work for TransDeal again. Sales agent suffered relapse Halliday tried to set up his own business as an automobile broker but he was unsuccessful. By April 2010 he was in full relapse and lost his business, his day job and his home. Several months later, in October 2010, Van Toen sent Halliday an email that used foul language and blamed him for the failure of his business, saying "there is a reason everyone hates/given up on you." Halliday filed a human rights complaint for discrimination based on his disability of an addiction shortly thereafter. In May 2011, Halliday encountered Van Toen on the street. He claimed Van Toen threatened to kill him, saying he shouldn't have filed the complaint. Halliday called the police and ultimately Van Toen was charged for uttering death threats. The tribunal acknowledged Halliday had "approximately two decades of addiction to crack cocaine, relapses and participation in numerous treatment programs" that constituted a physical and/or mental disability under the Ontario Human Rights Code. The tribunal also found this disability was associated with stigmatization, making him vulnerable. The tribunal noted Van Toen never apologized for sending the emails and avoided Halliday's attempts to get an explanation nor gave any legitimate reason. The closest the company came to an apology was when Charles Van Toen emailed Halliday to "apologize" but ended up threatening him with legal action, said the tribunal. And despite TransDeal's claims Halliday was a contractor, the tribunal determined the company dictated and controlled an extensive part of his work and the discrimination and harassment was in employment. Additionally, TransDeal made no effort to investigate the sudden resignation of Halliday or his allegations of harassing emails and comments by Van Toen or limit the harm to Halliday caused by the emails. "There is no evidence of any attempt by (TransDeal) to investigate or by (the Van Toens) to retract or follow-up on the emails sent in order to repair or minimize the damage done to (Halliday's) reputation or to acknowledge or address in any way the poisoned work environment," said the tribunal. In addition to the harassment, discrimination and harm to Halliday's reputation and professional opportunities, the tribunal also found Van Toen's threat against Halliday in May 2011 was a threat of reprisal for filing the complaint, another violation of the code. TransDeal, VTI and Geoffrey Van Toen were ordered — jointly and severally — to pay Halliday $25,000 for damage to dignity feelings and self-respect and $4,524 for lost earnings from his resignation on Nov. 19, 2009, to when his own business was up and running in February 2010, for a total award of $29,524. CELT For more information see: ■ Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583 (Ont. Human Rights Trib.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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