Ontario Board of Inquiry
Dianne Bielecky Complainant
v.
Young, MacNamara, and Chris Young Respondents
Date of Decision: December 15, 1992
Before: Ontario Board of Inquiry, Jeffry A. House
Appearances by: Naomi Overend, Counsel for the Complainant Douglas Hummell, Counsel for the Respondents
PHYSICAL DISABILITY — employment terminated on basis of virginal breast hypertrophism — BUSINESS NECESSITY — discriminatory employment policy because of economic reasons — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — DAMAGES — commencement date and duration of interest award
Summary: The Board of Inquiry finds that Dianne Bielecky was discriminated against because of a disability when her employment was terminated because she needed to be absent from work for two to three weeks to recuperate from an operation.
Ms. Bielecky was employed as a legal secretary by the law firm of Young, MacNamara in St. Catherines, Ontario. In May 1989 Ms. Bielecky informed her immediate supervisor, Mr. Chris Young, that she wished to take time off work for an operation and she would require two to three weeks absence for recuperation. Mr. Young did not inquire as to the nature of the surgery Ms. Bielecky required. On June 1, he dismissed her.
Ms. Bielecky required surgery due to a condition known as virginal breast hypertrophism. The condition involves the excessive growth of the breasts and the operation, called bilateral-reduction mammoplasty, removes excess tissue to reduce the breasts in size.
The Board of Inquiry finds that Ms. Bielecky had a degree of physical disability within the meaning of the Ontario Human Rights Code. Ms. Bielecky was unable to work without constant back pain and her disability was caused by a birth defect because the condition has a genetic link.
The Board of Inquiry also finds that the policy of Young, MacNamara was to allow employees five days of sick leave per year. The Board rules that this policy had the effect of discriminating against Ms. Bielecky because of her disability, and that the law firm took no steps to accommodate her.
The Board of Inquiry orders Young, MacNamara to compensate Ms. Bielecky for lost wages in the amount of $6,175, for general damages in the amount of $1,000, and for interest on the award in the amount of $961.87. In addition, the Board of Inquiry orders Young, MacNamara to submit to the Board of Inquiry for approval within sixty days a sick leave and illness policy that will conform to the requirements of the Ontario Human Rights Code.
Cases Cited
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 18
Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 76 N.R. 161, 8 C.H.R.R. D/4210: 17
Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 113 N.R. 161, 12 C.H.R.R. D/417: 23
Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 30 (SCC), [1992] 2 S.C.R. 490, 141 N.R. 1, 1992 CanLII 81 (SCC), 16 C.H.R.R. D/425: 40
Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 48
Large v. Stratford (City) (1992), 1992 CanLII 7612 (ON CTGD), 9 O.R. (3d) 104, 17 C.H.R.R. D/17 (Ont. Ct. (Gen.Div.)): 32
Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781: 32
Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 18
Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038: 50
Trans World Airlines Inc. v. Hardison 432 U.S. 63 (1976): 40
University of Alberta v. Alberta (Human Rights Comm.), 1992 CanLII 30 (SCC), [1992] 2 S.C.R. 1103, 141 N.R. 1, 17 C.H.R.R. D/87: 36
Zurich Insurance Co. v. Ontario (Human Rights Comm.), 1992 CanLII 67 (SCC), [1992] 2 S.C.R. 321, 138 N.R. 1, 16 C.H.R.R. D/255: 35
Legislation Cited
Canada
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11: 50
Ontario
Human Rights Code, R.S.O. 1990, c. H.19: 38
s. 1: 50
s. 5(1): 1
s. 9: 1
s. 10: 9
s. 10(b): 17
s. 11: 24, 35
s. 38(3): 3
s. 42: 43
1By letter dated August 18, 1992, I was appointed a board of inquiry to inquire into the complaint of Dianne Bielecky alleging discrimination in employment by her employers, Young, MacNamara, a law firm, and Chris Young, a lawyer in the firm.
Ms. Bielecky's complaint alleged discrimination in employment, due to handicap, contrary to ss. 5(1) and 9 of the Human Rights Code [R.S.O. 1990, c. H.19].
2The matter was heard on September 17, October 2, and October 26, 27, and 28, 1992, at St. Catherines, Ontario. The first of these dates was used to set further dates for the hearing, and to provide information to each party about the other's proposed motions, etc. The second date was occupied in argument on a motion by the solicitor for the respondents, Mr. Hummell, that the matter should be dismissed for delay.
That motion was denied by me after full argument, and the hearing proper proceeded on the latter three dates.
3On October 26, counsel for the Commission asked me to exercise my discretion pursuant to s. 38(3) of theHuman Rights Code, to add a party, namely B.R.P. Properties Ltd. Mr. Hummell advised me that B.R.P. Properties, Ltd. is the name of the management company which administers the premises on behalf of the law firm Young, MacNamara. He did not object to its being added as a party, and I did so add it.
THE FACTS
4Dianne Bielecky was employed as a legal secretary by the firm Young, MacNamara from November 14, 1988, until June 1, 1989. It is the position of the Human Rights Commission that Ms. Bielecky was dismissed from her job there under circumstances which amount to discrimination against a person who is handicapped, contrary to the Human Rights Code.
5While a certain amount of evidence was called by the respondent to establish that Ms. Bielecky was an inadequate secretary, and was dismissed for that reason, Mr. Hummell conceded in argument that at least a part of the reason that Ms. Bielecky was fired was her desire to take time off for an operation. The precise legal significance of this operation will be discussed herein; suffice it to say that the evidence does establish that one of the reasons for her dismissal was the scheduled operation. I think Mr. Hummell could have taken no other position on the evidence adduced.
6Ms. Dianne Bielecky was the Commission's first witness. She testified that on May 23, 1989, she informed her immediate supervisor, Mr. Chris Young, that she wished to take time off to have an operation, and that her convalescence would require two or three weeks absence from work.
Ms. Bielecky states she was left with the impression that there would be no difficulty. Shortly thereafter, she left a note on Mr. Young's desk, asking whether she might apply vacation time due her to the period of convalescence. She stated that she did so because she hoped to secure some income during the period in question.
7On June 1, 1989, Mr. Young asked her once again whether she still planned to have surgery, and if so, how long she would be away from work. She reiterated the same details as previously. At that point, Mr. Young dismissed her, handing her two cheques, one labelled "in lieu of notice" and the other labelled "separation."
At no time did Mr. Young ask Ms. Bielecky what was the nature of her proposed surgery, and at no time did Ms. Bielecky tell him anything about its nature.
8Mr. Chris Young did not testify at the hearing. Therefore, I am left with Ms. Bielecky's version of these encounters. However, I was provided with an Exhibit (C-7) in which he had responded initially to the complaint. There, he indicated that the firm agreed with the essence of Ms. Bielecky's version of the facts, disagreeing only that she had been left with the impression that there would be no difficulty in taking time off when the matter was discussed on May 23.
9Ms. Bielecky testified further that she required surgery due to a condition known as virginal breast hypertrophism. She was to have an operation called bilateral-reduction mammoplasty. Simply put, the condition involves the excessive growth of the breasts, and the operation removes the excessive tissue to reduce the breasts in size.
It is this condition which the Human Rights Commission alleges is a "handicap" pursuant to the Human Rights Code, s. 10.
10According to Ms. Bielecky, her breasts began to develop at age 9, and growth had levelled off by age 16. Their excessive size had an effect on her ability to participate fully in sports, and caused her to be socially inhibited because of unkind remarks made to her by peers. She indicated that she later developed a constant aching pain in the back of her neck and in her back. She took Tylenol regularly, perhaps even daily, to deal with her pain. Finally, she asked her personal physician to refer her to a specialist, Dr. Richard Cohen.
11Dr. Cohen was also called as a witness. He testified as the attending physician who was knowledgeable about Ms. Bielecky's case in particular, and was also qualified by me as an expert on breast hypertrophy, the condition underlying many mammoplasties.
12Dr. Cohen, past Chief of the Department of Surgery at St. Catherines General Hospital, testified that he graduated from Liverpool University Medical School in 1962. Since 1969, he has been certified as a plastic surgeon in Canada, and has done approximately 2,000 breast reduction mammoplasties since that date.
13Dr. Cohen testified that, in his opinion, Dianne Bielecky suffered from "virginal breast hypertrophy." In her case, hypertrophy predated any pregnancy or childbirth, and is thus considered "virginal." Dr. Cohen stated that although the precise origins of this condition are unknown, it is genetically linked and tends to run in families.
14According to Dr. Cohen, the symptoms of breast hypertrophy include pain in the back and the neck, rashes where the breasts touch the upper abdomen, eventual curvature of the spine, and grooving to the shoulders as brassiere straps dig into the flesh. This latter aspect can, he said, become pronounced. As well, "mastodynia," or pain in the breasts, can develop. Finally, he indicated that the volume of the breasts may obscure small tumours, should these develop in the breast. He agreed that the main textbook treatment of this condition (Exhibit C-17, p. 139) lists all of these symptoms, as well as "brachial plexus compression," meaning pressure on a complex of nerves in the arm, and associated discomfort. He said he did not believe the latter symptom is properly attributed to breast hypertrophism, and had not seen it in any of his patients.
15He indicated that, although he had advised Ms. Bielecky to lose weight, he did not consider her to be grossly overweight. In his view, weight loss by itself would not have been an appropriate treatment for her condition. He stated that he would recommend surgery for persons with Ms. Bielecky's symptoms and breast hypertrophy. Her breast size was "at the upper limits of average" among those who had had breast reduction mammoplasty.
ISSUES
16The issues which I must decide are these:
Did Dianne Bielecky suffer from a "handicap"?
Did she suffer direct discrimination because of handicap?
If she was not discriminated against directly, was there constructive discrimination?
Has the employer made out a defence available at law?
Handicap
17Section 10(b) [sic] of the Human Rights Code reads as follows:
"because of handicap" means for the reason that the person has or has had, or is believed to have or have had,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device.
In interpreting this section, I am guided by the words of Dickson C.J. writing on behalf of a unanimous Supreme Court of Canada in Action travail des femmes v. Canadian National Railway Co., 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 76 N.R. 161 [8 C.H.R.R. D/4210 at D/4224, para. 33238]:
Human rights legislation is intended to give rise, amongst [other] things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize these rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.
18The respondent argued that the Human Rights Code requires that a "threshold" of seriousness be crossed before a condition may properly be determined to be a handicap. Mr. Hummell for the respondent urged upon me the dictum of Professor Cumming in Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170: "Having a handicap means not being able to do one or more things that most people can do." This doctrine, he said, was relied upon and amplified in Ouimette v. Lily Cups Ltd.(1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19.
19The words in the Code speak of "Any degree of physical disability." There must be some inability to do something others can normally do; I think that Professor Cumming's words mean no more than that. It is my view that the discussion of the definition of handicap in Ouimette, supra, is limited to a consideration of what is an "illness" under the Code; I find it to be of little help in the situation before me.
20I find on the facts that Ms. Bielecky had a degree of physical disability, as required by the definition. She was unable to work at her job without constant pain. I do not read the Code as requiring that, for a condition to amount to a disability, one need be absolutely incapacitated. Her disability, I find, was one caused by a "birth defect" or "anomalie genital," as Dr. Cohen testified that the evidence is that there is a genetic link at least with respect to virginal hypertrophy of the breasts.
Was Dianne Bielecky Directly Discriminated Against Because of Handicap?
21It is clear from the evidence that Mr. Chris Young dismissed Dianne Bielecky because she had told him that she required an operation, and that there would be a two- to three-week period of recuperation expected. The nature of the operation was unknown to Mr. Young. He made no inquiries as to its nature, and Ms. Bielecky, for reasons of her own privacy, did not apprise him as to its nature. I find, as well, that Ms. Bielecky had been left with the impression on May 23 that she would be allowed time off for the operation, probably without pay. Thus, when she was presented with her "walking papers" on June 1, there was little opportunity to discuss the matter in any depth.
22In these circumstances, the Commission argued that I should find that there was direct discrimination against Ms. Bielecky. Ms. Overend's argument, as I understood it, was that since he had been informed there would be an operation, Mr. Young had in fact been informed that the matter potentially came within the ambit of the Human Rights Code, and that he was indifferent as to whether the Code had application or not. According to the Commission, Mr. Young ought to have asked questions about the nature of the operation, why it was required, etc. Because he did not, it is the Commission's view that such nonfeasance amounted to an act of direct discrimination. Mr. Hummell, on the contrary, argued that the employer is not required to "ferret out" a Human Rights Code concern, if it is not advanced by the employee.
23In Central Alberta Dairy Pool v. Human Rights Commission (Alta.), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 113 N.R. 161 [12 C.H.R.R. D/417], Wilson J. stated [at D/433, para. 46] that:
The essence of direct discrimination [in employment] is the making of a rule that generalizes about a person's ability to perform a job based on membership in a group sharing a common personal attribute such as age, sex, religion, etc.
For discrimination to be direct, then, the rulemaker must have made a rule which generalizes based on a condition known to the rulemaker. There may be instances in which knowledge will be imputed to the rulemaker; i.e., cases in which a rulemaker chooses to avert his eyes in order to preserve his legal position, or maintain "deniability." But this case is not a case of wilful blindness. There was no reason whatsoever for Mr. Young to think that Ms. Bielecky suffered from a handicap, and I therefore cannot find that he discriminated directly against her. Mr. Young simply chose not to question Ms. Bielecky about the nature of an operation she was to undergo and about which she volunteered no information. That taken alone falls far short of wilful blindness.
Was the Treatment that Ms. Bielecky Received Constructive Discrimination?
24Section 11 of the Human Rights Code reads as follows:
Constructive discrimination
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 16, that to discriminate because of such ground is not an infringement of a right.
Idem
11(2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Idem
11(3) The Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. 1986, c. 64, s. 18(8).
25Was there, in this case, a "requirement, qualification or factor" not constituting direct discrimination, but having the result that Ms. Bielecky was excluded from her position as a secretary?
Some evidence was led with respect to the employer's policy with respect to sick leave. However, in my view, this evidence was confused and unsatisfactory, and did not address all relevant points.
26Clearly, the general requirement that employees be available for work is unexceptional. However, given the unavoidable fact that human beings do require medical attention from time to time, and may suffer bouts of illness, most employers do institute a policy which addresses this reality.
27The evidence I heard about the policy in effect at Young, MacNamara was as follows: One of the firm's employees, Pat Obee, testified that, in her view, the firm had a policy which was unwritten, which allowed employees five sick days per year, after which time they would "dock" you, which I take to mean that wages would not be paid to an employee during periods of absence for illness in excess of five per year. She also said that, if an employee had been at the firm for a short time, he or she would be docked earlier.
28Lori Post, who had the title of office manager in the firm, testified that this was a title only, and she had no management responsibilities. She stated that the policy of five sick days a year was put into writing at an office meeting held February 27, 1989. I was never provided with a copy of this written policy. Interestingly, although the date offered was one on which Ms. Bielecky was employed at the firm, she was asked no questions as to whether she attended the meeting, or was provided with a copy of the policy.
29As noted, Mr. Chris Young did not testify. However, Exhibit C-7 provides his response to a number of questions asked him by the Commission. In the questionnaire, Mr. Young is asked for a copy of his firm's sick leave policy. His response, dated October 12, 1989, reads: "verbal agreement, five days with pay."
I do not believe that Mr. Young would have responded in this way if his firm had already had a written sick leave policy. Rather, in the absence of documentation, I think it more likely that Ms. Post is mistaken as to the date that the policy was written down.
30There was no evidence led as to what the firm's policy was with respect to sick leave of more than five days' duration. Ms. Bielecky had taken three and one-half days' sick [leave] at the point when she announced her coming operation to Mr. Chris Young.
31It appears to me that the firm's policy was unclear for periods of sickness in excess of five days, and that the policy allowed for dismissal.
I find, then, that there was a policy in effect which allowed for dismissal of employees requesting time for sick leave in excess of five days per year, and that that policy had the effect of discriminating against Dianne Bielecky, since her handicap required a period of convalescence in excess of five days.
Is this Policy Reasonable and Bona Fide?
32A bona fide policy is one which is imposed in good faith, without ulterior or hidden motive, and in the sincerely held belief that such is imposed in the interests of the adequate performance of the work involved, with all reasonable dispatch, safety, and economy (Ontario Human Rights Commission v. Etobicoke Borough, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 at 208 [3 C.H.R.R. D/781 at D/783, para. 6894].
The onus is on the employer to show that a policy is bona fide (Large v. Corp. of the City of Stratford (1992), 1992 CanLII 7612 (ON CTGD), 9 O.R. (3d) 104 [17 C.H.R.R. D/17] (Ont. Ct. (Gen.Div.)).
33The respondents called no viva voce evidence on this point. In Exhibit C-7, referred to above, in response to Ms. Bielecky's written complaint, Mr. Young wrote, in part: "We could not afford to have an employee absent from work when our clients request that work be done, and deadlines met."
34I am left in a state of uncertainty with respect to the bona fides of the sick leave policy; it may well be that Mr. Young was in fact stating the reasons that the sick leave policy was imposed in this comment, but in the absence of further evidence, I would find it difficult to say that the employer has shown that the policy is bona fide by this bald written statement alone.
35In showing the reasonableness of a practice with discriminatory effect, the employer must show a substantial connection to the operation of his or her business, and must not discriminate any more than is necessary to achieve its goal (Human Rights Commission (Ont.) v. Zurich Insurance Co., 1992 CanLII 67 (SCC), [1992] 138 N.R. 1 [16 C.H.R.R. D/255] (S.C.C.)).
That general principle of human rights law has been codified in s. 11 of the Ontario Human Rights Code, supra. Section 11(2) requires that I be satisfied that the needs of the group of which Ms. Bielecky is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, and health and safety requirements, if any.
36It is, no doubt, true that a restrictive policy with respect to hospitalization leave, or sick leave generally, bears some connection to the operation of the business in which the firm of Young, MacNamara are engaged.
In this regard, Cory J. of the Supreme Court of Canada has recently made the following pertinent observations (Dickason and Human Rights Comm. (Alta.) v. University of Alberta, 1992 CanLII 30 (SCC), [1992] 141 N.R. 1 at 17–18 [17 C.H.R.R. D/87 at D/97, paras. 21–22] (S.C.C.):
The policy rationale set out in Irwin Toy cannot be automatically transferred to the consideration of human rights legislation which seeks to regulate the behaviour of private actors. A challenge brought under the Charter to legislation enacted by the state obviously affects a state interest. In those circumstances, due deference must be given to the actions of the state manifested by the legislation which is under attack. Consideration must be given to the mischief or evil the legislation was designed to control or eradicate.
On the other hand, in the realm of human rights legislation, the challenge will be to the actions of a private party such as an employer or landlord who, it is alleged, has adopted a discriminatory practice. The actions of private parties will often relate to private aims such a[s] increasing the profit or efficiency of a business. Praiseworthy as those aims may be in themselves, no deference should be accorded to them once a complainant has demonstrated a prima facie case of discrimination. To adopt a deferential attitude to such private aims would undermine the professed goal of human rights legislation to guarantee the rights of minority groups, women and individuals against arbitrary and abusive treatment. Legislation aimed at abolishing or reducing discrimination should be given a liberal and generous reading. It follows that any legislated defence to acts of discrimination should be construed narrowly as was done on Brossard, supra.
37There was no evidence adduced which would lead me to conclude that Ms. Bielecky's needs could not have been accommodated. Those needs would have been met had she simply been told that she would be paid vacation pay only for the period of her hospitalization, and that the firm would hire a replacement worker during her absence.
38It would have been relatively easy for the employer to have met the standard of reasonableness required here; indeed, had the sick leave policy included an explicit offer to accommodate people with handicap[s], as defined in the Code, it would have avoided the conclusion that the policy was per se unreasonable. Had the policy included such a term, the onus would have been on Ms. Bielecky to show that there had been direct discrimination, or that the policy had not been followed once she requested accommodation under that term.
39I am not convinced, either by the nature of Ms. Bielecky's work or otherwise, that it would not have been relatively easy for the firm to have hired a replacement secretary for the relevant period. Presumably, when Ms. Bielecky did take the vacation due her, the firm would have had to do this anyway. There would, no doubt, be some inconvenience involved in teaching the temporary secretary some of the office procedures he or she would need to understand, but this, I find, would not constitute undue hardship.
40In making this finding, I am mindful of recent analysis of the term "undue hardship" in Renaud v. Bd. of Education of Central Okanagan, 1992 CanLII 30 (SCC), [1992] 141 N.R. 1 [1992 CanLII 81 (SCC), 16 C.H.R.R. D/425] (S.C.C.). There, Sopinka J. writing for a majority of the Supreme Court of Canada rejected the American doctrine set out in Trans World Airlines Inc. v. Hardison, 432 U.S. 63 (1976). In Trans World Airlines, the U.S. Supreme Court had written that "To require TWA to bear more than a de minimus cost . . . is an undue hardship."
Sopinka J. rejects this test, as follows (at 197 [D/432, para. 19]):
The Hardison de minimus test virtually removes the duty to accommodate and seems particularly inappropriate in the Canadian context. More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test.
In my view, the hardship here would probably not satisfy the American test; it certainly does not satisfy the Canadian one.
FINDING
41I find that the firm Young, MacNamara infringed a right of the complainant, Dianne Bielecky, by imposing a policy respecting sick leave which had the effect of excluding handicapped persons from employment opportunities there. As I have found that Dianne Bielecky suffered from a handicap, it follows that she has been prejudiced by the existence of this policy. I also find that Chris Young is liable in law. He made the decision to dismiss Dianne Bielecky in accordance with the policy and, if Exhibit C-7 is any indication, also made the decisions as to how Ms. Bielecky's claim of discrimination would be treated by the firm.
42As for the party B.R.P. Properties Ltd., I decline to make any finding against that entity. I was told orally by Mr. Hummell that B.R.P. Properties is owned by Mrs. Barbara Young, the mother of Mr. Chris Young. I see nothing in the evidence which would suggest any participation in relevant decisions by that corporation. While Ms. Bielecky's cheques were signed by B.R.P., I find that it is likely that the management company simply issued its cheques as requested by Young, MacNamara, and Chris Young.
REMEDY
43My powers to effect a remedy in this matter are set out in s. 42 of the Human Rights Code.
The Commission asks that I order damages which reflect the full wage loss which resulted from the dismissal of Dianne Bielecky. According to the Commission, such loss amounts to twenty-six weeks at $325 per week. The twenty-six weeks referred to reflect the period June 1 to December 11, 1989.
However, the evidence establishes that Ms. Bielecky received the sum of $529.46 in lieu of notice on June 1. I understand this to be her net pay, less deductions, for the period June 1 to June 14. Clearly, it would be unfair for her to be recompensed for this period in any order I make.
44As well, I have some difficulty with respect to the date on which Ms. Bielecky was actually available for work after her convalescence. The first document which reflects Ms. Bielecky's attempts to mitigate by seeking other employment is dated August 18, 1989. Ms. Bielecky also stated that, after her convalescence, she worked without pay for her husband's small company. She stated that she had applied for several jobs before obtaining the first negative response, and estimated that "a week or two" had passed between her application and the first refusal letter. On balance, it is my view that absent any clear evidence of attempts to obtain work in July 1989, the period prior to August 1, 1989, ought to be excluded from any calculation of damages. Once she began seriously to look for work on or about August 1, 1989, Ms. Bielecky made reasonable and appropriate efforts to mitigate. The calculation is therefore nineteen weeks ච$325 = $6,175.
45I also award the sum of $1,000 general damages for loss of the right to be free from discrimination. The sick leave policy was, at least potentially, unfair to those who through no fault of their own need more than five sick days per year. Even if the firm cannot be faulted for not accommodating Ms. Bielecky during the period when they were unaware of her handicap, once they were told by the Commission that discrimination by reason of handicap was being claimed, they still showed no interest in accommodating her. Mr. Young's response to the Commission stated that "we will not be interested in reaching a settlement with Dianne Bielecky, as the matter is closed and finished as far as I am concerned." In my view, his response shows contempt for the policy goals of the Code, and undercuts any suggestion that only lack of knowledge underlay the decision to terminate Ms. Bielecky.
46The Commission also requested prejudgment interest for the entire period from the date of dismissal to today's date. The respondent pointed out that Mr. Young had been on record as early as December 1989 as demanding a hearing in the matter, and that none of the delay until today's date was chargeable to Young, MacNamara or Chris Young. Nor was it the fault of Dianne Bielecky, whose ability to move the matter forward was nil, given the fact that the Human Rights Commission had carriage of the entire case, from start to finish.
47While Ms. Overend also argued that the Commission cannot simply produce a board of inquiry upon demand, and has a statutory duty to investigate, and to try to effect a settlement, it is also true that she had previously admitted that twenty-two months of the delay was entirely chargeable to the Commission, due to the fact that no one had been given carriage of the file, and the like.
48In orally dismissing the motion to have the matter stayed because of delay, I relied upon the oft-cited case of Hyman v. Southam Murray Printing (No. 1)(1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.), which states the following [at D/621, para. 5619]:
[W]hile unreasonable delay might be a factor to be taken into account in refusing or fashioning a remedy . . . or in weighing the persuasive force of credibility of testimony or other evidence, delay in initiating or processing a complaint should not be considered as a basis for dismissing the complaint at the outset of the proceedings before a board of inquiry unless it has given rise to a situation in which the board of inquiry is of the view that the facts relating to the incident in question cannot be established with sufficient certainty to constitute the basis of a determination that a contravention of the Code has occurred. Having been assigned . . . a statutorily defined task of undertaking an inquiry to ascertain certain facts, the board of inquiry should proceed to attempt to do so, notwithstanding the passage of considerable time, unless the passage of time has made fulfilment of its task impossible. In the absence of such, admittedly unlikely, circumstances, the proper course, in my opinion, is for the board of inquiry to proceed and to weigh the prejudice or unfairness to a particular party which may have been occasioned by delay in making particular findings of fact or in refusing or fashioning a remedy.
49In fashioning a remedy here, I do not propose to grant prejudgment interest for the twenty-two months during which the respondent was seeking a hearing, and the Commission simply did nothing, perhaps because of lack of staff, etc. Therefore, rather than ordering prejudgment interest for the three years and four months period since the violation arose, I order prejudgment interest at 9 percent for the period of eighteen months. Prejudgment interest is therefore awarded in the sum of $961.87.
I also award post-judgment interest at 9 percent per annum.
50The Commission requests that I order Mr. Young to apologize to Ms. Bielecky. I am reluctant to do so, as coerced speech or expression is itself a violation of fundamental Charter rights [Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11] (see Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038). Since the Commission does not request the letter for purposes of reference, or to insure that there are no further losses occasioned to Ms. Bielecky due to the infringement of her right, I am not persuaded that a s. 1 justification could be made out. Thus, I decline to order an apology, although nothing in my judgment should be interpreted to mean that I do not think it is called for.
51The Commission asks that I order the respondents to post a copy of the Human Rights Code on the premises. Mr. Hummell asks that I do not do so, as it would be "a slap in the face." In my view, he is wrong to so view it. The Code sets out fundamental rights to which the employees at Young, MacNamara are entitled. It is important that they be aware of those rights, especially given the right that there has been at least one infringement on the firm's premises. I therefore order that a copy of the Human Rights Code be posted on the premises of the firm Young, MacNamara at a location where all staff have easy access thereto.
52There remains the policy with respect to illness. I order that the firm Young, MacNamara provide me with a written policy with respect to sick leave, illness, and hospitalization within sixty days, such policy to be in conformity with the Human Rights Code. Once such policy is approved by me as being in accordance with the Code, I order that a copy of the said policy be provided to each employee of the firm, and of Chris Young, including all present and future employees.
SUMMARY
53I would heretofore answer the questions posed to me as follows:
Did Dianne Bielecky suffer from a "handicap"? Answer: Yes.
Did she suffer direct discrimination because of handicap? Answer: No.
Was there constructive discrimination? Answer: Yes.
Has the employer made out a defence available at law? Answer: No.
ORDER
54I find the parties Young, MacNamara and Chris Young jointly and severally liable.
I award Dianne Bielecky the sum of $6,175 for lost wages. I further award the sum of $1,000 in general damages, and the sum of $961.87 in prejudgment interest. The total award to Ms. Bielecky is therefore $8,136.97 [sic].
I also award post-judgment interest at 9 percent.
55I further order the firm of Young, MacNamara to post a copy of the Human Rights Code at a location to which all staff have access. I further order that the firm Young, MacNamara produce to me within sixty days a written policy with respect to sick leave and illness, which specifies that an employee with a handicap or disability will be accommodated to the standard required by the Human Rights Code. Upon approval by me to insure compliance with the Code, I order that a copy of the said policy be provided to all present and future employees of the firm Young, MacNamara, and of Mr. Chris Young.