Lessons from Tompkins v. Peninsula Grill, 2025 HRTO 2783
The Facts – A Classic Small-Restaurant Nightmare
- Michelle Tompkins has Cerebral Palsy. She can only safely work 25–30 hours bi-weekly before severe pain, leg seizures, and hand numbness set in.
- February 2018: She was hired as a part-time server at Peninsula Grill (a small family-run restaurant in Georgian Bluffs, Ontario). She disclosed her disability and hourly limit at the interview. Owner Denis Davis and his wife Ruth allegedly said “no problem.”
- Over the next four months her hours crept up (sometimes because she swapped shifts with co-workers). When she reminded Mr. Davis of her limit, she claims he told her she “should be working 100 hours a week” and to “shut up and go away.”
- May 28, 2018: Ms. Tompkins texted that she needed to adjust a shift to attend a morning medical appointment about her medication. Mr. Davis replied by text: “If you don’t show up you are fired … you were the next person to be fired anyway.”
- Employment ended the next day. The restaurant never participated in the Human Rights Tribunal of Ontario (HRTO) proceeding and was noted in default.
The Tribunal’s Key Findings (Adjudicator Cyndee Todgham Cherniak)
- Discrimination Established
- Threatening to fire an employee for attending a disability-related medical appointment = discrimination because of disability.
- The termination the next day was affected by the employee’s known disability (even though Ms. Tompkins sent disrespectful texts in response to the employer — disability only needs to be a factor, not the only factor).
- Failure to Accommodate
- In two different pay periods the restaurant scheduled her above her 30-hour limit (56.5 and 38.75 hours).
- This was a substantive failure to accommodate (the procedural duty was basically met — the employer knew the restriction and eventually reduced the employee’s hours when reminded).
- No Reprisal
- The employee did not prove the termination was retaliation for asserting her Code rights (since the threat came first).
- General Damages: $15,000
- These damages are on the mid-to-high end for a short-term job because forcing an employee to choose between health and a paycheque is objectively serious.
- The damages were lower than the $40,000 she sought because employment was only 4 months, some over-scheduling was caused by her own shift swaps, and limited medical evidence was provided of psychological impact.
- Lost Wages: Only $407.68 (2 weeks)
- She told the owner in the text exchange she was giving two weeks’ notice anyway + sent disrespectful texts. The tribunal found she would not have worked longer than two weeks regardless.
The 10 Immediate Takeaways for Employers (Especially Small Restaurants)
- “We’re family here” does not override the Human Rights Code.
- Threatening to fire someone for attending a medical appointment = an almost automatic discrimination finding.
- “Disability only has to be a factor” — an employee’s poor attitude or rude texts will not save the employer if disability played any role in a termination.
- If an employee discloses a restriction at hiring, the employer is on notice — write it down and build it into scheduling. Exceptions must be requested by the employee.
- Shift-swapping policies are great, but you still cannot schedule (or allow) the employee to exceed known medical limits.
- Defaulting at the HRTO can be incredibly detrimental to your business — the Tribunal will still scrutinize the applicant’s evidence, but you lose the ability to explain your side.
- $15,000 is now the “going rate” in 2025 for short-term employment + a disability-related termination involving a clear “health vs job” ultimatum.
- Ignoring the Tribunal for 5½ years does not make the case go away — interest keeps accumulating.
- Personal liability for owners: because it was a sole proprietorship, Denis Davis is jointly and severally liable for the entire award.
- Document, document, document: medical notes, accommodation discussions, scheduling decisions — the lack of paper trail (and the non-participation of the employer), meant that the Tribunal could only make a decision based on the evidence it had access to. Employers need to keep copious notes on any accommodation requests.
Bottom Line
Even in a tiny restaurant with four servers, the duty to accommodate is real, and threatening termination over a medical appointment could be a fast track to a five-figure human-rights award. Small employers who may think “it’s just us, we don’t need all that HR stuff” are the ones who could pay the highest price.
