Parks v. Christian Horizons (No. 2), 1992 CanLII 14224

Parks v. Christian Horizons (No. 2)

1992-06-17

Ontario Board of Inquiry

Kelly Parks and Holly MacIntyre

Complainants

v.

Christian Horizons

and

Lorraine Duran and Isobel Hudson

Respondents

Date of Decision: June 17, 1992

Before: Ontario Board of Inquiry, Errol P. Mendes

Comm. Decision No.: 431a

Appearances by: Alan D'Silva, Counsel for the Complainants Norman Keith, Counsel for the Respondents

DAMAGES — compensation for lost wages and injury to dignity and self-respect — determining quantum using reasonable foreseeability test — reduction of damages by amounts received in social assistance benefits and unemployment insurance benefits — duty to mitigate — damages assessed for wilful discrimination — REMEDIES — reinstatement of employment — COSTS — reasons for awarding

Summary: This is a decision on remedies following a decision by the Board of Inquiry that Christian Horizons discriminated against Kelly Parks and Holly MacIntyre because of their marital status.

The Board of Inquiry awards Kelly Parks $2,672.38 and Holly MacIntyre $52,500 as special damages for lost wages. The Board also awards each complainant $5,000 in general damages to compensate them for the loss of dignity and respect which they experienced because of the discrimination.

The Board declines to order that Ms. MacIntyre be reinstated in her position with Christian Horizons on the grounds that she will receive a substantial award to compensate her for her loss and that requiring reinstatement could cause some financial or other burdens to the respondent.

The Board also declines to order that interest be paid on the awards.

The Board of Inquiry orders Christian Horizons to furnish the Ontario Human Rights Commission with sufficient information on its recruitment and employment practices to permit the Commission to monitor these practices for a period of two years.

[See also earlier decision on complaint.]

Cases Cited

Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.): 5

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 3, 21, 27

Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd.Inq.): 6

Hendry v. Ontario (Liquor Control Board) (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160 (Ont. Bd.Inq.): 33

Middleton v. 491465 Ontario Ltd. (1991), 1991 CanLII 13179 (ON HRT), 15 C.H.R.R. D/317 (Ont. Bd.Inq.): 18

Ontario (Human Rights Comm.) v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425 (Ont. Bd.Inq.): 23

Ouimette v. Lilly Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 30

Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.): 30

Rand v. Sealy Eastern Ltd. (1982), 1982 CanLII 4878 (ON HRT), 3 C.H.R.R. D/938 (Ont. Bd.Inq.): 3, 21

Ratych v. Bloomer (1990), 1990 CanLII 97 (SCC), 69 D.L.R. (4th) 25 (S.C.C.): 18

Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (Ont. Bd.Inq.): 6

York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Div.Ct.): 24, 27

Legislation Cited

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53

s. 8: 32

s. 23(a): 33

s. 40(1): 1, 3, 8

s. 40(1)(b): 24, 27, 31

PART I: INTRODUCTION

1This Board in its earlier ruling on liability concerning the complaint by Kelly Parks against Christian Horizons and Lorraine Duran and the complaint by Holly MacIntyre against Christian Horizons and Isobel Hudson made the following findings:

(1) That in the Kelly Parks complaint, Christian Horizons discriminated against the complainant contrary to ss. 4(1) and 8 of the Human Rights Code, 1981, S.O. 1981, c. 53 as amended [now R.S.O. 1990, c. H.19] (hereinafter referred to as the "Code"). The Board, however, dismissed the complaint against the individual respondent Lorraine Duran.

(ii) That in the Holly MacIntyre complaint, Christian Horizons discriminated against the complainant contrary to ss. 4(1) and 8 of the Code. The Board dismissed the complaint against the individual respondent, Isobel Hudson.

2Pursuant to an agreement with all the parties concerned, the Board agreed to dispense with oral argument as to remedies in order to minimise the costs of the respondents. The Board makes the following decision on the basis of the extensive written arguments presented by counsel for the Commission and counsel for the respondents.

PART 2: REMEDIES

A. General

3Section 41(1) of the Code [R.S.O. 1990] states that:

(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,

(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the company to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

It is an accepted principle of human rights jurisprudence that the remedial provisions of the Code should be construed in a manner that achieves the purposes and policies of the legislation: Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2196 (Ont. Bd.Inq.); Rand v. Sealy Eastern Ltd.(1982), 1982 CanLII 4878 (ON HRT), 3 C.H.R.R. D/938 at D/956 (Ont. Bd.Inq.).

4One of the objectives of s. 41(1) itself is to put the complainants in the same position they would have been in, had their human rights protected by the Code not been infringed. To attain this objective, human rights jurisprudence makes a presumption in favour of the awarding of special and general damages where they are merited. Cameron v. Nel-Gor Castle Nursing Home, supra, D/2196.

B. Special Damages

5Both complainants in this case merit special damages to restore them to a position they would have been in, had the discriminatory conduct by Christian Horizons not occurred. On the facts of both complaints, the measure of special damages is the amount the complainants would have earned had they not lost their employment due to the discriminatory conduct by Christian Horizons. Cameron v. Nel-Gor Castle Nursing Home, supra, D/2201; Airport Taxicab (Malton) Assn. v. Piazza(1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 at D/6348 (Ont. C.A.).

6In assessing damages for loss of income in human rights cases, human rights jurisprudence recognises that the assessment of monetary damages for lost income should be cut off at the point where those damages were no longer foreseeable to the wrongdoer, Gohn v. Dombar, supra [sic], at D/180; Torres v. Royalty Kitchenware Ltd.(1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 at D/872. However, the same jurisprudence indicates that employment contracts or ex post facto agreements cannot limit the amount of special damages available to successful complainants as counsel for the respondents argued they could.

7There is an onus on successful complainants to mitigate their damages by reasonable efforts and a board of inquiry must take into account such efforts in order to establish a "cut-off point" for the assessment of reasonably foreseeable damages.

8Taking the above into account, I am making the following order as to special damages pursuant to s. 41(1) of the Code.

(i) Ms. Parks — Damages and Mitigation

9Ms. Parks looked for and obtained alternative employment after the termination of her employment with Christian Horizons. The Board accepts that Ms. Parks made reasonable efforts to mitigate her damages which according to her included (Transcript of Proceedings, Vol. 2, August 22, 1991, pp. 78–85):

(a) seeking positions as a teacher's aide;

(b) working at the Sheraton Caswell as a waitress at the time she was seeking a position in her field;

(c) obtaining contractual positions with the Sudbury and District Association for Community Living (CEC Woods); and

(d) applying for unemployment insurance benefits.

10Ms. Parks is entitled to special damages for loss of wages calculated up to the time she began working for the CEC Woods Centre in Sudbury on a full-time basis. The amount sought by the complainant for lost wages is $2,672.38 calculated as follows:

11Ms. Kelly Parks terminated November 24, 1988 — salary at Christian Horizons = $170.00 per week (gross) (Transcript of Proceedings, Vol. 2, August 22, 1991, pp. 78–85. Commission's Exhibit No. 14. Affidavit of Lauren Bates, Sworn March 13, 1992):

LOSS OF INCOME

1988

(a) 5 weeks x $170.00 wk (November 24, 1988 – December 31, 1988)

= $ 850.00

1989

(b) 4 weeks x $170.00 wk (January 1, 1989 – January 27, 1989)

= $ 680.00

(c) 20 weeks x $170.00 wk (January 27, 1989 – July 13, 1989) less: amount earned at Sheraton Caswell (commencing January 27, 1989)

= $3,400.00 – $2,257.62 = $1,142.38

(d) 28 weeks x $170.00 wk (July 13, 1989 – December 31, 1989) less: amount earned at CEC Woods commencing July 13, 1989 Amounts (a) to (d) above

= $4,760.00 – $6,529.80 = $2,672.38

The Board accepts the above calculation of lost wages and therefore orders special damages be paid by Christian Horizons to Ms. Parks in the amount of $2,672.38.

(ii) Ms. MacIntyre — Damages and Mitigation

12As a result of the denial of employment, Ms. MacIntyre has claimed she suffered loss of wages amounting to $17,500 per year in salary plus related health and medical benefits (Transcript of Proceedings, Vol. 1, August 21, 1991, pp. 89–92 and Commission's Exhibits No. 5–8 and 10).

13Ms. MacIntyre has also asserted that since April of 1989 she has received Unemployment Insurance Benefits and Mother's Allowance Benefits as follows (Transcript of Proceedings, Vol. 1, August 21, 1991, pp. 93–95. Commission's Exhibits No. 8 and 10. Affidavit of Lauren Bates sworn March 13, 1992):

Unemployment Insurance Benefits

(April 30, 1989 – March 17, 1990)

= $8,802.00

Mother's Allowance

(April 1 – December 31, 1990) = $8,985.30 (January – December, 1991) = $1,031.00 per month (December 1991 – January 1992) = $1,151.00 per month (January 1992 to present) = $1,165.00 per month

14This Board has concluded that Ms. MacIntyre made reasonable efforts to mitigate her damages by seeking alternative employment since she was refused the night position at Horizon House. According to the complainant these efforts included (Transcript of Proceedings, Vol. 1, August 21, 1991, pp. 78–84. Commission's Exhibit No. 2. Affidavit of Lauren Bates sworn March 13, 1992):

(a) applying to old age homes;

(b) applying to Tim Horton's donut shops;

(c) applying to the ComCare agency;

(d) applying to Extendicare;

(e) applying for private daycare;

(f) looking in the newspaper for positions;

(g) attending at Canada Employment and Immigration Centres; and

(h) applying to "Metropolitan Carpet."

15MacIntyre is therefore entitled to special damages for loss of income equivalent to an annual salary of $17,500 from April 1, 1989 to April 1, 1992.

16A cut-off point of April 1, 1992 is reasonable. Even though the respondent [sic] has not yet found suitable alternative employment, three years is a reasonably foreseeable time from the perspective of the respondents for such alternative employment to be found, even during the downturn in the economy that we are experiencing at the moment.

17As regards the receipt by Ms. MacIntyre of unemployment and/or welfare benefits during the period of unemployment, these benefits will not be deducted by this Board for the award of special damages.

18If successful a complainant receives unemployment and/or welfare benefits during the period of unemployment, those benefits need not be subtracted from an award of damages. Human rights jurisprudence has established that the employer is not entitled to have the amounts of the statutory benefits deducted by the board of inquiry from its award. The Board agrees with counsel for the Commission that it is up to the respondent to contact the appropriate agencies to determine the amounts paid in statutory benefits that should be deducted from the award and remit those amounts directly to the government agencies concerned, Middleton v. Cannonball Restaurant, unreported decision of August 21, 1991 [now reported 1991 CanLII 13179 (ON HRT), 15 C.H.R.R. D/317 (Ont. Bd.Inq.); Ratych v. Bloomer(1990), 1990 CanLII 97 (SCC), 69 D.L.R. (4th) 25 (S.C.C.).

19This Board therefore orders special damages be paid by Christian Horizons to Ms. MacIntyre in the amount of $52,500.

C. Reinstatement of Ms. MacIntyre

20MacIntyre has expressed a desire to be reinstated to a position at Christian Horizons (Transcript of Proceedings, Vol. 1, August 21, 1991, pp. 85–86).

21Reinstatement or an order to offer employment can be an appropriate remedy in human rights employment cases within the discretion of boards of inquiry if there has been a termination of an employee based on a prohibited ground. Rand v. Sealy Eastern Ltd. supra, at D/957–D/958; Cameron v. Nel-Gor Castle Nursing Home, supra, at D/2196.

However, this Board exercises its discretion not to order reinstatement of Ms. MacIntyre to a position at Christian Horizons.

22The respondent is a not-for-profit charitable organisation with limited funding sources. Reinstating Ms. MacIntyre to her former position at Horizon House in Kingston may necessitate the respondent having to carry an extra position at some financial burden or even result in a readjustment of personnel at the Kingston home or elsewhere. It is the hope of this Board that the considerable special and general damages awarded Ms. MacIntyre will go some way towards giving her the resources to find alternative employment in the near future.

D. General Damages

23The assessment of general damages requires the following considerations. Where general damages with respect to "loss arising out of the infringement" is sought, the effect of the discrimination upon the complainant should be considered: Ontario Human Rights Commission v. Vogue Shoes unreported decision of April 8, 1991 [now reported 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425] (Ont. Bd.Inq.).

24Where the complainant is seeking damages for mental anguish under s. 41(1)(b) the infringement must be engaged in wilfully and recklessly. The prohibited conduct must be intentional and the infringement must be the purpose of that act in order to be wilful under s. 41(1)(b): York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 at D/413 (Ont. Div.Ct.).

25In this case counsel for the Commission on behalf of the complainants has requested general damages with respect to "the loss arising out of the infringement" component of s. 41(1)(b) of the Code. The Commission is not seeking damages for mental anguish and therefore the wilful and reckless elements need not be established. The only relevant consideration is the effect of the discrimination on the complainants: York Condominium Corporation No. 216 v. Dudnik, supra, at D/413.

26Loss of dignity and self respect are relevant considerations in assessing "losses arising from the infringement." Both complainants presented compelling testimony that they did suffer such loss of dignity and respect, see Transcript of Proceedings, Vol. 1, August 21, 1991, p. 85 (Holly MacIntyre) and Vol. 2, August 22, 1991, pp. 86–87 (Kelly Parks).

27The "loss arising out of the infringement" component of s. 41(1)(b) of the Code, involves the loss of the human right of equality of opportunity in employment. This is based upon the recognition that the human rights protected by the Code have intrinsic value independent of any pecuniary losses suffered by the complainant. The loss of such rights are by themselves independent injuries which a complainant suffers. Therefore both complainants in this case are entitled to this component of general damages: Cameron v. Nel-Gor Castle Nursing Home, supra, at D/2198; York Condominium Corporation No. 216 v. Dudnik, supra, at D/413.

28With the above considerations as to general damages, the Board orders Christian Horizons:

(1) pay to Ms. Parks general damages in the amount of $5,000;

(2) pay to Ms. MacIntyre damages in the amount of $5,000.

E. Interest

29The awarding of pre-judgment or post-judgment interest is a matter of discretion for boards of inquiry under the Code. Again given that the respondent is a non-profit charitable organisation devoted to the caring of developmentally handicapped persons and the limited nature and sources of its funding, the Board exercises its discretion not to award pre-judgment or post-judgment interest.

F. Costs

30The Board denies respondents' counsel request for legal costs involved in defending against the complaints lodged against the individual respondents which this Board dismissed. The Board has concluded that the Commission has not acted irresponsibly in supporting the complaints against the two individual respondents, Isobel Hudson and Lorraine Duran. Due to this finding, the jurisprudence cited by counsel for the respondents in support of no argument for costs are distinguishable from the present case, see Pham v. Beach Industries (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 at [D/4022] para. 31797; Ouimette v. Lilly Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 at D/34.

31The Board therefore does not choose to exercise its discretion under s. 40(1)(b) of the Code to award the payment by the Commission of the costs involved in defending the complaints against the individual respondents.

G. General Award Power: Section 40(1)(a)

32Where a Board has determined that a respondent has violated s. 8 of the Code, it may [s. 41(1)(a), R.S.O. 1990]:

(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with the Act both in respect of the complaint and in respect of future practices [Emphasis added.]

33Pursuant to this section, the Board further orders the respondent to provide the Human Rights Commission with sufficient information on recruitment and employment practices to permit the Human Rights Commission to monitor for a period of two years from the date of this order, such practices of the respondent, insofar as they relate to attempts by Christian Horizons to come within the Special Employment Exception under s. 23(1)(a) [sic] of the Code. At least one other Board of Inquiry has made a similar order in the past, see Hendry v. Liquor Control Board of Ontario (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160 at D/166.

The above constitutes the Board's final orders in this inquiry.