Riggio v. Sheppard Coiffures Ltd., 1987 CanLII 8492

Ontario Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE

Lina-Maria Riggio Complainant

v.

Sheppard Coiffures Ltd., carrying on business under the name of Joseph's Coiffures

and

Tony Vitale Respondents

Date of Complaint: April 10, 1985 Date of Decision: October 9, 1987 Place: Toronto, Ontario Before: Frederick H. Zemans Comm. Decision No.: 310

Appearances by: S. Mason, Counsel for the Ontario Human Rights Commission and Lina-Maria Riggio S. Manella, Counsel for Sheppard Coiffures Ltd. and Tony Vitale

PREGNANCY — employment terminated — REASONABLE ACCOMMODATION — work shift — DAMAGES — determining quantum using wrongful dismissal standard — reduction of damages on the basis of poor work performance — compensation for injury to dignity and self-respect — lost wages

Summary: The Board of Inquiry finds that Tony Vitale and Joseph's Coiffures discriminated against Lina-Maria Riggio because of her sex. The fact that Ms. Riggio was pregnant influenced the respondents' decision to terminate Ms. Riggio's employment as an aesthetician at Joseph's Coiffures in Willowdale.

The Board of Inquiry rules that discrimination because of pregnancy constitutes discrimination because of sex. Consequently, the provisions of the Ontario Human Rights Code apply in this circumstance even though the discrimination occurred before the amendment to the Code explicitly defining sex discrimination as including discrimination because of pregnancy.

Citing the Ontario Divisional Court decision in Piazza v. Airport Taxicab, the Board rules that the amount to be awarded for lost wages is restricted to the period of time of reasonable notice. Therefore, the Board awards Ms. Riggio eight weeks' wages in the amount of $726. The Board also orders the respondents to pay Ms. Riggio $375 in compensation for humiliation and loss of self-respect.

Introduction

1I was appointed as a Board of Inquiry by the Minister of Labour pursuant to the Human Rights Code, 1981, S.O. 1981, c. 53, as amended (hereinafter the Code), to investigate the complaint made by Lina-Maria Riggio (the "complainant") dated April 10, 1985, as amended January 29, 1987, alleging discrimination in employment on the basis of sex by Sheppard Coiffures Ltd., carrying on business under the firm name and style of Joseph's Coiffures, and Tony Vitale, manager (the "respondents"). This inquiry was convened on Tuesday May 12, 1987, at which time the hearing of evidence was set for June 17th and June 24th in Toronto.

The Evidence

2It is necessary to review the evidence in some detail because of the significant discrepancies in the perceptions and recollections of the parties to this inquiry. Ultimately, my decision turns on my understanding of their testimony. The complaint revolves around the dismissal of Ms. Riggio from her employment with the respondent hairdressing salon in February 1985. There is agreement as to the fact that Ms. Riggio's employment as an aesthetician at Joseph's Coiffures, in the Sheppard Centre in Willowdale, was terminated after approximately eleven months. It is her perception that her employment was ended because of her pregnancy. She therefore claims that she was discriminated against on the basis of sex. (I will consider later in this decision whether the Code prior to the 1986 amendment, which stipulates specifically that pregnancy is included within the meaning of sexual discrimination, nonetheless applies to this situation.) The respondents' position is that the complainant was fired because she was not generating sufficient income for the salon to justify her continued employment.

3The complainant is a 32-year-old woman who is an experienced cosmetician and aesthetician. She was hired as an aesthetician at Joseph's Coiffures in early March 1984 and was employed there continuously (except for holidays) until the following February. Ms. Riggio was interviewed and hired by the respondent Tony Vitale, who became her supervisor.

4Ms. Riggio learned that she was pregnant in late December 1984, and believes her pregnancy began the previous October. She had planned to inform her employers of her pregnancy in early 1985. However, she testified in late 1984 the respondent Tony Vitale remarked, "Lina, you are getting fat." (I:17) At that point, Ms. Riggio felt compelled to disclose her pregnancy. She testified that the attitude of her employers — Mr. Vitale and his partner, Nino Crupi — cooled towards her thereafter and that Mr. Vitale commented "at least two or three times a week" that she was putting on weight. (I:19)

5The complainant testified that the matter culminated on the evening of February 7, 1985 when Mr. Vitale asked the other employees to leave him alone with the complainant. She stated that he told her that he had found someone to replace her and that her employment would terminate in one week. She claimed that Mr. Vitale told her that her pregnancy was the reason for the dismissal.

And then he pointed at my stomach, and he said "If you were not like this, I wouldn't have to let you go, but I cannot wait for you to go and have a baby and come back, because I will lose business. You have to understand, business is business." (I:15)

6Ms. Riggio testified that she had no written contract of employment, but that Mr. Vitale had told her that she would be expected to work between forty and forty-eight hours each week. She stated that she understood that she was to have a flexible schedule which she was allowed to draw up herself on the condition that she was to be available during the salon's busy hours, and that it was agreed by the respondents that she could leave the salon early when it was not busy. She was to be paid a straight commission of 70 percent of the revenue that she generated from her services, plus 80 percent of the revenue from the cosmetics that she sold. (Ms. Riggio ordered and paid for all cosmetic products herself.)

7Ms. Riggio testified that during her employment with the respondent, she fulfilled these expectations, that she always worked the required work week, and that she never received complaints about arriving too late or leaving too early. She says she took only a few extended holidays, with the employers' permission, plus a total of about five scattered days off, about which she received no complaints. She presented a letter from her doctor indicating she would have been capable of working until two weeks prior to her due date, provided she felt well.

8She testified that she was a competent employee, and that her employers never suggested otherwise to her. There was virtually no client base when she began at the salon, save for the few that followed her from the salon in which she had previously been employed. She testified that her employers had promised to advertise the availability of an aesthetician, but that there was little actually done in that regard. In response to the suggestion that she was expected to initiate her own promotional activity, she testified that she preferred to have her reputation spread by word of mouth on the basis of her good work.

9The complainant admitted under cross examination that her income for the period she worked at the respondent salon was disappointingly low, and that she would have probably moved on to another salon if business did not improve. She readily admits that there were not enough customers. "I was doing a very good job. We just didn't have the customers" (I: 27). She further admitted that her earnings were in the neighborhood of only $6,000 during her time at the salon (I:130), and that she had earned more working as an aesthetician at other salons. She admitted that only $30.00 to $40.00 per week would have been turned over to the salon, and that there were some days that she did not have any customers at all. Although she stated that other services offered by the salon experienced slow periods during her period of employment, she admitted that her sales figures would have been a reason to terminate her services (I:157). She remained adamant, however, that this was not the reason for her termination.

10Ms. Anna Panno testified for the Human Rights Commission. She is a make-up artist who was employed by the respondents during much of the same period as the complainant. She was earning between $125.00 and $150.00 per week while employed with the respondents during the early part of 1984, although in some weeks her income fell below this level. Ms. Panno stated that she received no complaints from her employers about the level of her billings and that she left the employ of the respondents to work at another salon because she "needed to make some money" (I:188). She stated that she was never required to advertise as a condition of her employment, but that she nonetheless initiated a flyer distribution campaign to which the respondents contributed part of the costs.

11Ms. Panno testified that she was hired by Mr. Vitale and that she did not recall any discussion of hours and at no time during her employment were her hours formally established. She stated that it was in her economic interest to work on Saturdays and evenings when the shop was busiest and when she was most likely to generate new customers. Nonetheless, she indicated that she was never particularly busy and when not working with a customer she would help on reception, observe, read, or talk. As there was not a full-time receptionist, Ms. Panno found that by being on reception she was able to meet customers and to discuss possible make-up appointments.

12With respect to the complaint of Ms. Riggio, Ms. Panno stated that she found the respondent Tony Vitale to have what she described as "macho" traits (I:195). Although the issue of pregnancy did not arise while Ms. Panno worked for the respondents — she was not with the salon at the time of the alleged incident involving the complainant — she testified that there were some comments made that might be considered to be sexist. She felt female staff were treated differently from male staff. For instance, she recalled this incident:

One time my brother was in the salon, getting his hair cut, and Tony made a comment about him being the man and me being the woman, and I should go get him a coffee, kind of thing, and I remember just laughing about it, and stuff, and my brother making a comment to me later about, "Is it always like this"? and I says, "Yes". (I:196)

It was Ms. Panno's perception that the shop had a male "fraternity feeling" (I:197).

13Ms. Rose Cerullo, a hairdresser who worked at the respondent's salon during the time when the complainant was employed there, testified for the Human Rights Commission. She indicated that she believes that Ms. Riggio was dismissed because she was pregnant. She admitted under cross examination that the only reason she took that view was that she was dismissed shortly after the announcement of the pregnancy. She stated that she spoke with Ms. Riggio after the dismissal. Although she could not recall exactly what was said, she did recall that she felt she was dismissed because she was pregnant.

My recollection, it was that the conversation was an emotional one, and she was upset because she felt she was being fired, or let go, dismissed, whatever, because she was pregnant. (I:203)

14She also testified that she heard complaints from her employers regarding the complainant's small clientele and low level of promotional work well prior to the announcement of her pregnancy.

Q. Were you working there when she was dismissed?

A. Yes.

Q. Had you ever heard any complaints about Mrs. Riggio from Mr. Vitale or Mr. Crupi?

A. I heard concerns.

Q. Can you tell us about those, please?

A. They were concerned about Lina doing promotion work.

Q. Anything else?

A. No.

Q. Can you remember when you heard these complaints being made?

A. This was before she was pregnant. (I: 198–199)

However, she also testified that she knew of no instances of her employers raising these concerns with the complainant directly.

15The complainant's husband testified that he and the complainant had been together for nearly ten years. He confirmed that she has experienced considerable trauma and stress because of her termination of employment by the respondents. She had at all times indicated to him that she believed she was fired because she was pregnant; this provoked feelings of guilt in Ms. Riggio. Despite the fact that Mr. Riggio is not a professional psychiatrist (he is a professional counsellor), I accept his testimony as to the emotional state of the complainant at the time of the bringing of the complaint being investigated herein. He admitted that her income averaged no more than $130.00 per week, before expenses, but he insists that he and his wife considered her income satisfactory, because he makes a comfortable salary.

16Mr. Tony Vitale was the only witness to testify for the respondents. He is married with two children and is currently the president of the respondent corporation, owning 50 percent of the company's shares. He has been in the hairstyling business for twelve years. He and his partner took over the Sheppard Centre location as franchisees for Joseph's Coiffures in 1983.

17Mr. Vitale confirmed that he hired Ms. Riggio in March 1984. The respondents had previously employed two other aestheticians at this location during 1983 and 1984. He acknowledged that it had been difficult to obtain an aesthetician who could remain long enough to develop a successful business. The respondents normally provided their aestheticians with a chair, steamer, bed, table and other miscellaneous items that would cost $4,000 if purchased new. In addition, the respondents provide the space, towels, water, heat, and insurance at no cost to the aesthetician. All of these items and services were provided to Ms. Riggio.

18Mr. Vitale testified that he had informed the complainant that she would be expected to work the regular forty-four hour week but indicated that she could leave up to a half-hour early if she had no clients. He stated that on Thursdays and Fridays, the complainant was expected to work until 8:00 p.m., so that she would be available to serve "walk-in" clients, shopping on these evenings. Apart from the terms of Ms. Riggio's payment, about which there is no dispute, there were no other explicit terms of employment. It was understood that Ms. Riggio would operate as an independent aesthetician, within the broad guidelines set by the respondents.

19Mr. Vitale testified that there was no formal probationary period. He stated that he envisioned an eight to twelve month trial period, within which Ms. Riggio would hopefully develop a flourishing business. His expectation was that initial sales would double by the end of this period. Upon the encouragement of his counsel, Mr. Vitale testified that Ms. Riggio was told "at the beginning" that she was expected to advertise to promote her business through flyers or other means and that the respondents would contribute to the cost.

20Mr. Vitale testified that the significant problem with the complainant's employment as an aesthetician was that she was not able to develop a large enough clientele to make her position economically viable. He stated that she made no effort to advertise her services, and that she was reluctant to even approach customers using other salon services. He claimed that most of her days were spent reading at the back of the shop. Mr. Vitale stated that he encouraged her to be more visible, but she would not respond.

I said, "Do not stay there, because if you hide, there will be nobody out there, you know, looking for an aesthetician." As I say, she was not answering me, so I just gave up on her. (II:32)

21He testified that he was also concerned about repeated sick days the complainant was taking, and other absences from work. Furthermore, he testified that he was concerned about the number of times that Ms. Riggio booked herself off early in the evening, well before closing time. Customers were disappointed if there was no aesthetician when they phoned for an appointment or walked into the salon. A detailed examination of Ms. Riggio's attendance records indicate frequent early departures for the period from October 1 through February 16 (II:43–58).

22Mr. Vitale apparently did not indicate to the complainant prior to learning of her pregnancy that he was considering dismissing her. He stated that he had "made up [his] mind" by December 1984 that Ms. Riggio was not working out as expected at Joseph's Coiffures (II:37–38), but that he was hopeful that the Christmas season might stimulate her business:

Q. When you had made up your mind, had you told Mrs. Riggio that you were about to locate someone else?

A. I did not tell her then. I was still hoping, that it was Christmas time, probably she would do something better. So I was just hoping for better performance.

Q. Let me ask you this: was she aware, in and about that time, that is the month of December for 1984, was she aware that you were looking for better results?

A. Yes, I am pretty sure she was.

Q. Well, why do you say that? Did you come right out and tell her at a specific time, or was it something that you implied?

A. Well, I used to tell her that . . . she used to take too much time off at the time . . . and then clients used to call, but we did not have anybody there. So she knew herself, too, that business was going down.

Q. Would she speak to you before taking the days off? Would she ask for permission to have the day off?

A. Well, sometime she used to just call in and say, "I am not coming in." She did not tell me the day before, or anything like that.

Q. Did you speak to her about that course of conduct? Did you speak to her at all about that?

A. No, I did not say nothing, as I said before, because, I was, you know, hoping for the best. (II:38–40)

23Mr. Vitale later testified that he discovered that the complainant was pregnant in the beginning of February of 1985 (II:63), "just the week before I spoke to her about the job" (II:62). He also testified that he made the decision to dismiss Ms. Riggio in February of 1985, and that he dismissed Ms. Riggio about a week after having learned about the pregnancy.

24Mr. Vitale stated that when he learned of the complainant's pregnancy, he was shocked, but only because she did not look pregnant. He testified that the pregnancy did not concern him or his business as his customers have no objection to being served by pregnant women. He stated that he had originally planned to allow her to work through most of her pregnancy, and to rehire her after she gave birth if her leave was not too lengthy. If the leave was too long, he testified that he would have to seek a replacement to fill the vacancy. Nonetheless, he states that the issue of maternity leave was never discussed.

25Mr. Vitale testified that if he was concerned about the complainant's pregnancy, he would have waited until she was due, and then dismissed her permanently. The fact that he dismissed her when he did, he argues, suggests that the dismissal was a result of her job performance. He testified that pregnancy was never mentioned or referred to when he dismissed her. He suggested that Ms. Riggio was lying in her testimony about the discussion, in which she claimed he pointed at her stomach and said that pregnancy is not good for business.

26With respect to Ms. Panno, Vitale testified that having a make-up artist on staff was a one-year experiment, and that because her sales figures were so low, he would have dismissed her had she not left voluntarily.

27Mr. Vitale admitted under cross examination that he had written the following in response to the complaint:

Once she [the complainant] had found out of her pregnancy, she became less and less available to render her services to our clients. (II:90)

28When asked if he supposed that her reason for taking time off was because she was pregnant, Mr. Vitale stated "I guess I realized that," but he insisted that he had made up his mind to let her go before she informed him that she was pregnant (II:92).

29Ms. Riggio insisted in reply that her schedule was "flexible," and that unlike hairdressing, which lent itself to many walk-ins, most of her business was by appointment. Hence leaving early the occasional evening when no appointments were booked would not affect her business. She said that it had also been her previous experience at other locations that aesthetician services are usually undertaken by appointments. She claimed that her employers never objected to her leaving early, until they dismissed her.

30Ms. Riggio stated that when she started at the respondents' salon, she introduced herself to the hair customers, but that she soon stopped that practice because it did not seem appropriate to continually introduce herself to the same clients. Furthermore, she stated that her employers removed natural opportunities to meet potential customers by instructing her not to work at the reception desk.

31Ms. Riggio insists that there was no problem with leaving early — that it was part of her terms of employment. When she did leave early, Ms. Riggio recalls that the salon was not busy, and that she never left without informing her employers. Slow evening periods did not, in her opinion, lend themselves to promotion work. "How much public relations can you do in an empty place?" (II:108). She concluded that her employers at no time objected to her leaving early.

32Mr. Neil Edwards, a Human Rights Commission officer, was also called in reply. He testified that the respondents had been uncooperative with the Commission in supplying certain documents, namely, attendance records for the period prior to October 1984.

Findings of Fact

33Having reviewed in detail the evidence of the witnesses I am now in a position to analyze the factual basis of this complaint. It is my conclusion that the principal witnesses — the complainant and the respondent Tony Vitale have both given to the inquiry their best recollections of Ms. Riggio's employment with respondent Sheppard Coiffures Ltd. I have also concluded that they were both forthright and honest in their testimony with this tribunal and that there are few contradictions in their evidence.

34Mr. Vitale and his partner did have legitimate concerns about both the complainant's business acumen and her ability to generate an economically viable client base at Joseph's Coiffures. The respondents' concerns were reinforced by her absenteeism as well as her unwillingness to work a forty-four hour work week as undertaken by the hairdressers in the salon. I am supported in this finding both by the evidence of the respondent Vitale and of the witness Rose Cerullo.

35The respondents were unhappy with the limited business that Ms. Riggio had been able to develop and specifically her low level of customer activity while working out of their shop. They were also unhappy with the number of hours she was working. I find that the evidence indicates these concerns existed during the fall of 1984, if not earlier. This tribunal is not asked to determine whether the respondents had grounds for dismissal of Ms. Riggio or whether she was wrongfully dismissed. The respondents could have concluded in July, October, or December 1984 that neither Ms. Riggio's clientele nor her hours were appropriate to the operation of Joseph's Coiffures. They were in a position to either provide her with a warning that her employment was under review or terminate the complainant's employment. The respondents did not choose to either formally or informally warn her that her employment was in jeopardy prior to her dismissal. Mr. Vitale's testimony indicated that he seldom, if ever, spoke to Ms. Riggio about her lack of client development or about her hours.

36It is my assessment of all of the evidence presented before me and particularly that of the respondent Vitale that at the time that he dismissed the complainant the fact that she was pregnant and the fact that he had a replacement for her were both factors which influenced him in his final determination that Ms. Riggio was no longer to be employed by the respondent Sheppard Coiffures Ltd. The pregnancy, in my opinion, confirmed Mr. Vitale's belief that the complainant's business and attendance were unlikely to improve and influenced his decision to terminate her employment.

37There is a slight contradiction in the evidence as to when Mr. Vitale became aware of Ms. Riggio's pregnancy, but according to Mr. Vitale's own testimony he was not aware of her pregnancy until a week before he spoke to the complainant about termination. When this testimony is considered together with his statement that Ms. Riggio's attendance was of concern to him from late summer, I am led to conclude that Ms. Riggio's pregnancy was a factor in the respondent's decision to terminate her employment in February 1985. I therefore find that discrimination on the basis of pregnancy occurred.

Legal Issues

38I must now consider whether discrimination on the basis of pregnancy was an applicable ground pursuant to the Code at the time the complaint herein was commenced. Subsection 4(1) of the Code gives every employee the right to equal treatment without discrimination because of sex. A 1986 amendment to the Code explicitly provides that this right includes the right to equal treatment without discrimination because a woman is pregnant. Since the amendment does not apply retroactively, the primary issue before us now is whether discrimination by reason of pregnancy is brought within the definition of discrimination by reason of sex as the Code was worded at the time of this complaint.

39Counsel for the respondents argued that the fact that the legislature found it necessary to add the new provision indicates that the pre-amendment Code did not prohibit discrimination because of pregnancy. His submission rests on the assumption that the amendment would not have been required if pregnancy was already a prohibited ground of discrimination. Commission counsel, on the other hand, argued that the amendment could equally be interpreted to confirm a prohibition which was already in existence. Commission counsel further argued that even if pregnancy is not included within section 4, the complainant's dismissal would nonetheless constitute constructive discrimination contrary to section 10 of the Code.

40Commentators on the issue of pregnancy and sex discrimination typically begin with the Supreme Court of Canada decision of Bliss v. Attorney General of Canada, 1978 CanLII 25 (SCC), [1979] 1 S.C.R. 183. There, the court found that a provision of federal unemployment insurance legislation which increased the number of work weeks required for a pregnant woman to qualify for unemployment insurance did not conflict with section 1(b) of the Canadian Bill of Rights, which prohibited discrimination on the basis of sex. The rationale was that discrimination on the basis of sex refers to discrimination against the woman. The discrimination in question took place because the claimants were pregnant and not because they were women, and therefore the legislation did not infringe the Canadian Bill of Rights.

41Since the Bliss decision there have been a series of decisions by various courts and human rights tribunals on the pregnancy issue at both federal and provincial levels. Some of these decisions followed the Supreme Court of Canada judgment, and held that pregnancy is not included within the ambit of sex. (Brooks v. Canada Safeway (1986), 1986 CanLII 6558 (BC HRT), 7 C.H.R.R. D/3475 (Man. C.A.).)

42Other decisions have taken the opposing view. For instance, a recent Ontario decision held that pregnancy is appropriately considered discrimination because of sex. This decision relies on an argument that opponents of the Bliss decision typically use, namely, that a major difference between men and women is that the woman can become pregnant, and therefore pregnancy is included within the ambit of sex — Pattison v. Fort Frances (Town) Commissioners of Police (1987), 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884 (Ont. Bd. of Inq.). The Pattison decision found that the portions of the Bliss decision in which the court attempted to distinguish discrimination on the basis of pregnancy from discrimination against women generally, was obiter dictum. The Board of Inquiry quoted from Tellier-Cohen v. Treasury Board (1982), 1982 CanLII 4909 (CHRT), 3 C.H.R.R. D/792 at D/794:

I cannot subscribe to this obiter dictum, for it creates a separate sexual category for pregnant women and avoids dealing with the real problem of sexual discrimination. Only women can become pregnant and this is the major difference between men and women.

Judging the equality of the sexes on the basis of strict equality (which the Americans call "gender-based discrimination") constitutes a substantive defect for there are no decisions except in situations where men and women are in exactly identical positions. Pregnant women provide a good illustration of the illogical nature of that criteria. Only women can become pregnant; must we accept for that reason that they must be deprived of the benefits which would otherwise be granted?

43A British Columbia Board of Inquiry Holloway v. Clairco Foods Ltd. (1983), 1983 CanLII 4679 (BC HRT), 4 C.H.R.R. D/1454), dealing with a charge of sex discrimination arising out of dismissal from employment because of pregnancy, found that Bliss was not determinative in interpreting human rights legislation. Its reasoning [at para. 12503] is helpful:

I agree with the conclusion of both tribunals in the Tellier-Cohen case, supra, that the Bliss case is not determinative in interpreting human rights legislation. The issue in that case was whether there had been a violation of the right to equality before the law contained in section 1(b) of the Canadian Bill of Rights. The statements concerning the relationship between pregnancy and sex discrimination appear to be obiter dicta. Moreover, the issue in the case was whether an Act of Parliament should be declared inoperative, and it appears that the Court was influenced by that factor in interpreting section 1(b) as it did. The reasoning adopted in the Bliss case has proved controversial even in the context of interpreting the Canadian Bill of Rights, and in any event, the case is little assistance in determining the meaning of section 8 of the Human Rights Code.

44Finally, in my own decision of Winterburn v. Lou's Place (1984), 1984 CanLII 5037 (ON HRT), 5 C.H.R.R. D/2052 (Ont. Bd. of Inq.), I took the position that discrimination because of pregnancy does constitute discrimination because of sex. I took the view that the issue of pregnancy is closely linked to the issue of sex for the purposes of human rights legislation.

45Since the case law on this issue is inconclusive, the doubt should be resolved by reading the relevant provision in the context of the entire Code. In my view, if the provision is viewed in light of the underpinnings of the Code, it seems clear that pregnancy ought to be included within the ambit of sex. The 1986 amendment to the legislation is largely irrelevant to the issue before us — our task is to examine the legislation as it existed at the relevant time.

46The underpinnings of the legislation are set out in the Code's preamble, part of which reads as follows:

Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well being of the community and the province.

The nature of the legislation demands that it be given a purposive, meaningful application. The aim of the legislation is surely to ensure that dignity is to be accorded to all people without regard to the wide range of prohibited grounds found in section 4 of the Code. What the prohibited grounds have in common is that none of them is relevant to the ability to carry out employment duties. Assuming that in this case pregnancy would not have affected the ability of the complainant to carry out her employment (there was no suggestion to the contrary), it seems clear that dismissal for mere pregnancy would offend the very dignity that the legislation was implemented to protect. The doubt should therefore be resolved in favour of including pregnancy within the ambit of sex.

47Even if pregnancy is not included within the definition of sex, it may well be caught by section 10 of the Code, which provides that a person's rights can be infringed even if there is no discrimination on a prohibited ground, but there exists a consideration which would result in the exclusion of a group of people identified by a prohibited ground. Commission counsel advised this tribunal that there are no published cases which deal thoroughly with this provision. However, common sense tells us that the ability to become pregnant is a basic area of difference between men and women. Therefore, pregnancy identifies women as a group of persons who may be excluded from employment as a result of discrimination because of pregnancy. The provision therefore would apply.

Remedies

48Having determined that the complaint herein falls within the provisions of the Code and that the complainant has been discriminated against, it remains for me to consider who is legally responsible and what, if any, is an appropriate award.

49Both Tony Vitale and Sheppard Coiffures Ltd. are responsible for the contravention of the Code that has been identified. Section 44 of the Code provides that in many circumstances, the acts of an officer or employee of a corporation are deemed to be the acts of the corporation itself. This matter has been discussed by Chairman Cumming in Olarte et al. v. Commodore Business Machines Ltd. (1983), 1983 CanLII 4712 (ON HRT), 4 C.H.R.R. D/1399 (interim decision) and 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705, as follows at D/1746:

. . . where the employer is a corporate entity, and an employee is part of the "directing" mind of the corporation, then the employer corporation is itself personally in contravention of the Code. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility. In such a situation, the intent of the offending employee is attributed to the corporate entity, so that the corporate entity cannot be excused on the basis that it (being a legal, and not a real, personality) could not possibly intend to discriminate.

As president and a 50 percent shareholder of the corporate respondent, I have no doubt that Mr. Vitale can properly be characterized as a "directing mind" of Sheppard Coiffures Ltd. I therefore find that both respondents are legally responsible for the discrimination against the complainant and liable for any award that I may make.

50Counsel for the Commission asked for special damages for Ms. Riggio's loss of income from the termination of her employment on February 8, 1985 until two weeks prior to her giving birth. Both counsel agreed that $103.85 represented Ms. Riggio's average weekly earnings while in his clients' employ, and that twenty to twenty-one weeks elapsed between the week after the complainant's dismissal (she had been given a week's pay in lieu of notice) and the time at which she would have had to take maternity leave. Commission counsel therefore claimed lost wages from February 8 to July 6, 1985 — 21 weeks at $103.85 per week, totalling $2,180.84.

51The respondent's counsel put forward an argument that Ms. Riggio was obliged to mitigate her losses and therefore that any award for lost wages should be reduced by 80 percent to account for unemployment insurance benefits, even though she did not actually receive any benefits. He argued that Ms. Riggio failed to pay UIC premiums even though her employer expected her to do so, and that if she had she would have been eligible for benefits. I was not provided with sufficient evidence to be able to determine the eligibility of Ms. Riggio for unemployment insurance benefits nor do I feel that it is appropriate to reduce her claim for special damages as suggested by counsel for the respondents.

52The complainant testified that she made efforts to find other employment after being dismissed by the respondents. She inquired about employment by contacting local hairdressing salons as well as by contacting the employment centre. She did not find employment during the period prior to her child's birth. Ms. Riggio stated that it is difficult to find positions as an aesthetician and that there are very few positions available. She also indicated that being pregnant discouraged potential employers from hiring her as she believed that they would be concerned about the length of time that she would be prepared to work.

53I conclude that Ms. Riggio made reasonable efforts to find employment but I do not believe that it would be appropriate for me to award her special damages for the full twenty-one weeks, for two reasons. First, I believe that her employment as an aesthetician with the respondent corporation was not successful and that the respondents had legitimate concerns about her limited number of clients. Secondly, I feel compelled to follow the Divisional Court decision in Piazza v. Airport Taxicab (Malton) Assn. (1987), 1987 CanLII 8586 (ON HCJ), 24 Admin. L.R. 149. The Divisional Court set aside the payment of compensation for lost wages of $2,750 for the entire period that Ms. Piazza was unemployed after her termination. Mr. Justice Steele stated at 151:

If a wrongful dismissal action relating the same incident had been commenced in court, it would likely have been stayed pending the outcome of the hearing by the Board because the Board's power goes beyond the narrower issue of wrongful dismissal . . .

However, the principles of this narrower issue should be addressed by a board in the same manner as would be addressed by a court. An amount to be awarded for loss of wages is restricted to the period of time of reasonable notice less any mitigation thereof.

54Ms. Piazza had four years experience as a secretary and was employed by Airport Taxicab for only two and a half months. She received one week's notice and the Divisional Court determined that her award for loss of wages should be limited to four weeks and deducted the one week that she had been paid by her former employer. (She had been awarded eleven weeks by the Inquiry Chair.)

55In this case, the complainant had worked as an aesthetician for five years, much of that with the Robert Simpson Company, prior to her year of employment with the respondents. I find that she is entitled to between seven and ten weeks compensation for loss of earnings and have decided that in light of the circumstances of this case that eight weeks is the appropriate period of notice and that she should therefore receive an award for the seven weeks that she was not paid by the respondent corporation, amounting to $726.

56Counsel for the Commission also argued that Ms. Riggio is also entitled to general damages for the mental anguish suffered as a result of her dismissal on the basis of her pregnancy by the respondents. The right to claim general as well as special damages was discussed at length in Cameron v. Nelgor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, where Chairman Cumming wrote at D/2196, para. 18525:

There is a presumption in favour of the making of an award of special and general damages in Human Rights cases . . .

Although damage awards in human rights cases historically were small in size they have become progressively more substantial in recent years. It is now a principle of human rights damage assessments that damage awards ought not to be minimal, but ought to provide true compensation, other than in exceptional circumstances . . .

An inherent, but separate, component of the general damage award should reflect the loss of the human right of equality of opportunity and employment. This is based upon the recognition that independent of the actual monetary or personal losses suffered by the complainant, whose human rights are infringed, the very human right which has been contravened itself has intrinsic value. The loss of this right is itself an independent injury . . .

57I fully agree with the conclusions in Cameron with respect to awarding general damages. I accept that Ms. Riggio did feel disturbed about her dismissal and actually suffered some sense of guilt with respect to her pregnancy. However, I also accept that her employment relationship with the respondents was one that had not been successful by any traditional standard and that it would have been appropriate for both the complainant and the respondents to have considered the termination of that relationship. This case is difficult because of the legitimacy of the respondents' concerns with respect to the complainant's effectiveness at developing her own clientele. As I have already indicated, the respondents inappropriately allowed Ms. Riggio's pregnancy to be a factor in their decision to terminate her employment. Ms. Riggio suffered some, albeit limited, emotional distress because of this act of discrimination and in my opinion a general damage award of $375 is appropriate.

Order

58For the foregoing reasons, this Board of Inquiry orders as follows:

1. The respondents Tony Vitale, and Sheppard Coiffures Ltd., carrying on business as Joseph's Coiffures and as To-Nino Hair Design, are jointly and severally liable to pay forthwith to the complainant the following:

(a) as special damages for lost wages, the sum of $726;

(b) as general damages, the sum of $375,

A total amount of $1101.

2. The respondents shall immediately post in their premises a copy of the Ontario Human Rights Code, 1981.