Cunningham v. Royal Canadian Legion, Branch 594, 1993 CanLII 16503

Cunningham v. Royal Canadian Legion, Branch 594

1993-02-26

Ontario Board of Inquiry

Laura J. Cunningham Complainant

v.

Royal Canadian Legion Branch 594 Respondent

and

Ontario Human Rights Commission Commission

Date of Complaint: February 15, 1989

Date of Decision: February 26, 1993

Before: Ontario Board of Inquiry, Robert W. Kerr

Appearances by:

Laura J. Cunningham, on her own behalf

Kaye Joachim, Counsel for the Commission

Roland J. Baldassi, Counsel for the Respondent

SEX DISCRIMINATION — female denied promotion to chief bar steward — DAMAGES — compensation for lost wages and lost employment opportunity — reduction of damages due to complainant's actions

Summary: The Board of Inquiry finds that Laura Cunningham was discriminated against because of her sex when she was refused promotion to the position of chief steward by Royal Canadian Legion Branch 594 in Windsor, Ontario.

Ms. Cunningham began working for Legion Branch 594 in 1974 as a waitress. Between 1974 and 1987 she worked as a waitress and subsequently as a full-time bar steward. In 1987 the chief steward resigned and another steward, Warren Blake, who had less seniority than Ms. Cunningham, was given first consideration for the position. When Ms. Cunningham learned that Mr. Blake was being offered the position of chief steward she resigned.

The Board of Inquiry finds that one of the reasons for preferring Mr. Blake over Ms. Cunningham for the chief steward's position was Mr. Blake's sex. The officers of the Legion testified that if Blake were not hired, they would have to advertise externally, even though there were qualified women candidates in the position of bar steward at the time. While the Board of Inquiry finds that overtly discriminatory statements were not made to Ms. Cunningham, it concludes that sex was a factor in the decision.

The Board of Inquiry considers whether Ms. Cunningham should be awarded compensation for the total amount of wages she lost due to her loss of her job and the loss of the promotion to the chief steward's position, or only for the wages she lost due to her loss of promotion. The Board of Inquiry finds that if Ms. Cunningham had taken reasonable steps to clarify the reasons why she was not to be promoted and had determined that gender discrimination was being imposed as a condition of employment, her resignation from her job might have been justified and the Legion might have been liable for the full amount of her wage loss. However, Ms. Cunningham did not clarify the reasons for not being considered before she resigned; she acted impulsively. In these circumstances, the Board of Inquiry declines to award Ms. Cunningham compensation for the total amount of wages she lost, but awards her compensation for the wages she lost because she was not promoted.

The Board of Inquiry orders Legion Branch 594 to pay her $2,718.75 in lost wages as well as $5,000 in general damages and interest on the award in the amount of $3,392.50.

Cases Cited

Lampman v. Photoflair Ltd. (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.): 57

Legislation Cited

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 77

Human Rights Code, R.S.O. 1990, c. H.19: 60

s. 5(1): 1, 41

s. 9: 1, 41

s. 41(1)(b): 71