Gaston Taylor Complainant
Via Security Systems Inc.
William Leverington Respondents
Place: Toronto, Ontario
Before: A. F. Bayefsky
Appearances by: James Fleming, Counsel for the Ontario Human Rights Commission John E. Merner, Counsel for Via Security Systems Inc. and William Leverington
DAMAGES — lost wages — interest on wages lost
Summary: This is an order for remedy in the case of Gaston Taylor. The Board of Inquiry earlier determined (reported at 1986 CanLII 6550 (ON HRT), 8 C.H.R.R. D/3925) that Taylor was discriminated against because of his place of origin when he was refused employment as a security guard with Via Security Systems.
The Board of Inquiry orders Via to pay Taylor $879.38 in compensation for lost wages, $300 in general damages, and $379.19 in interest.
Damages for Lost Wages
1At the conclusion of my decision of September 24, 1986, I requested submissions on the quantum of compensation for lost wages. I received them from counsel for the complainant by letters dated December 9, 1986 and January 16, 1987. I received submissions from counsel for the respondents by letter dated January 8, 1987. On the basis of those submissions and the evidence adduced at the hearing, I have arrived at the following conclusions.
2Employment for the Amberwood contract commenced on February 21, 1983. The complainant, Mr. Taylor, was available for work between the period of February 21, 1983 and April 8, 1983 and on April 11, 1983 he took up a position as a security guard. The rate of pay (less the cost of the fee for uniforms charged by Via) for the terms of the Amberwood contract was $3.75 per hour.
3The respondents hired four individuals for the Amberwood contract. The contract called for two full-time and two part-time security guards and the respondent hired four individuals to fill the positions as needed to fulfill the contract. The two individuals who were hired for the part-time positions, Mr. Lapointe and Mr. MacLeod, were students at the time they worked for the respondents and indicated on their application forms that they were available for evening and weekend work only. The application forms of Mr. Tye and Mr. Bell, who were both hired for full-time positions, indicated that they were available at any time. Mr. Taylor testified that he completed the section of the application form concerning availability for work in the same manner as Mr. Tye and Mr. Bell. At the time of his application to the respondents he was unemployed and available for full-time work.
4Under these circumstances, it is reasonable to conclude that had Mr. Taylor been selected for the position he would have been hired as a full-time employee.
5Mr. Bell testified that his full-time employment amounted to approximately eight-hour shifts. Written submissions by respondents' counsel admit that Mr. Bell and Mr. Tye worked 133 hours over a four-week period or 238 hours over a seven-week period, which amounts to approximately 33.5 hours per week.
6Respondents' counsel states in his written submissions that the Amberwood contract was secured on a month to month basis; hence he suggests that the relevant time period for calculating lost wages is four weeks. However, the evidence adduced during the hearing indicates that the four employees hired at the outset for the Amberwood contract were all employed thereunder beyond the April 8, 1983 cut-off date. Thus, even if the Amberwood contract was secured on a month-to-month basis, it is reasonable to conclude that the complainant would have been employed under the Amberwood contract for the seven week period for which he was available for work following the commencement of the contract.
7The respondents do not suggest that the complainant failed to mitigate his damages during this seven week period.
8Section 40(1)(b) of the Code states that the Board is empowered to direct the party having infringed the right of the complainant to make restitution for loss arising out of the infringement. Restitution in the context of this case means that the complainant should be placed in the position that he would have been in had he been hired and the contract of employment been performed. Here restitution in the form of lost wages is the loss associated with a 33.5 hour work week, a seven week period, and a rate of pay of $3.75 per hour. This amounts to $879.38.
9Previous boards of inquiry have held that interest is payable on damage awards. (See Cameron v. Nel-Gor Castle Nursing Home and Merlene Nelson, 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at paragraph 18564.) Interest would appear to fall within the terms of section 40(1)(b), specifically, "loss arising out of the infringement".
10The rate of interest is the rate established by the Bank of Canada on the date of the complaint. The amount of interest due on the damages for lost wages is:
(the date of payment — the mid-point of the lost wage period) x total wages for the lost wage period x Bank of Canada rate at the date of the complaint.
(See: Hallowell House Limited, [1980] OLRB Rep. Jan. 35; Practice Note. No. 13, September 8, 1980, Ontario Labour Relations Board.) In this case the rate of interest on June 15, 1983 established by the Bank of Canada was 11%. Assuming that damages will be paid February 15, 1987, the amount of interest due in this case is:
(February 15, 1987 – (mid-point of the period February 21, 1983 to April 8, 1983)) x $879.38 x 11%, or ((February 15, 1987 – March 16, 1983) = 3.92 years) x $879.38 x 11% = $379.19.
11I have determined that it would not be just in the circumstances to award interest on the general damages.
12Contrary to the submission of the respondents, no deduction from this award should be made in connection with Canada Pension or income tax obligations.
Final Order
13This matter coming on for hearing on the 15th day of May, the 5th and 6th days of June, and the 11th day of September, 1986, before this Board of Inquiry, pursuant to the appointment by William Wrye, Minister of Labour, dated 16th day of April, 1986, in the presence of counsel for the Commission and Mr. Gaston Taylor, the complainant, and counsel for the respondents, upon hearing evidence adduced by the parties and what was alleged by the parties, and upon finding that the complaint was substantiated by the evidence:
14IT WAS ORDERED PURSUANT TO THE INTERIM ORDER (dated 24th day of September, 1986) THAT:
(1) The respondents pay to the complainant the sum of three hundred dollars ($300.00) for mental anguish caused as a result of the discriminatory act; and
(2) The respondents send a letter of apology to the complainant for the failure to abide by the Human Rights Code in its treatment of the complainant.
15IN ADDITION IT IS ORDERED THAT:
(3) The respondents pay to the complainant the sum of $879.38 as damages for lost wages; and
(4) The respondents pay to the complainant the sum of $379.19 as interest up to February 15, 1987.