ONTARIO BOARD OF INQUIRY
B E T W E E N:
Ms. Mary Grieves
COMPLAINANT
A N D:
Admiral Sub and Mr. Harry Chatzis
RESPONDENTS
Adjudicator: Berend Hovius
Counsel for the Commission: K. Malik and K. Inksater
On her own behalf: M. Grieves
On his own behalf: H. Chatzis
DECISION
Introduction
1These proceedings arose out of a complaint by Ms. Mary Grieves on April 29, 1992 alleging that her right to equal treatment with respect to employment respect to employment without discrimination because of sex had been infringed by Admiral Sub. On August 12, 1993 I was appointed to act as a Board of Inquiry to hear and decide the matter.
2On September 10, 1993 the hearing was commenced by conference call and the dates of April 21, 22 and 25, 1994 were selected for the hearing of the evidence and argument. On April 21, at the request of the Commission, I permitted an amendment of the complaint to add the owner of Admiral Sub, Mr. Harry Chatzis, as a personal respondent. Admiral Sub is simply the trade name under which Mr. Chatzis operates a small lunch counter and sandwich shop. It is an unincorporated business and Mr. Chatzis as the sole owner and manager of the business was always aware of the nature of the complaint which referred specifically to his actions.
3The hearing took place over two days, concluding on April 22. I heard testimony from Ms. Grieves, Mr. Chatzis, Ms. Melissa Gawronski, and Ms. Cindy Hough. The last two individuals worked at Admiral Sub when the events giving rise to the complaint occurred.
Facts
4The facts in this case are fairly straightforward and generally not disputed. On January 20, 1992 Mr. Chatzis hired Ms. Grieves to work as a counter hostess at Admiral Sub in Brantford. At the time Ms. Grieves, who had considerable experience in fairly similar positions at Tim Horton's and Mr. Mugs Coffee and Donuts, was working part-time at Sheridan Place, a nursing home for women. Ms. Grieves believed that after a number of training sessions she would begin working on a full-time basis on January 31. She was then to work from 10:00 a.m. to 6:00 p.m. each weekday at the rate of $8.00 per hour.
5Mr. Chatzis testified that Ms. Grieves was initially hired on a probationary basis. He stated that he wanted to assess her performance during the training sessions and then determine whether she should be given the position permanently. As will be explained in the next section of this decision, nothing really hinges on whether Ms. Grieves was hired on a probationary basis or not. However, I find that Ms. Grieves was, in fact, hired for a full-time position to begin January 31 and that there was no probationary period. Ms. Grieves testified that this was her understanding of the situation and that she would not have quit her Job at Sheridan Place if there was a possibility that she would not have a full-time position at Admiral Sub. There is no indication, even in Mr. Chatzis' testimony, that he informed Ms. Grieves on January 20 that she was being hired on a probationary basis.
6Ms. Grieves worked several hours on each of January 21st, 22nd, 29th, and 30th at Admiral Sub and was paid at the rate of $8.00 per hour. During this time Ms. Gawronski, at Mr. Chatzis' request, trained Ms. Grieves and supervised her. Partly because of her previous experience, Ms. Grieves quickly showed that she was capable of serving the customers at the counter and of preparing the ordered foods such as sandwiches, french fries and hamburgers. Ms. Gawronski described Ms. Grieves as "an excellent worker" and added (at 23 — 24 of volume 1 of the transcript):
I never had to show her things more than once. She always kept herself busy. She learned very quickly and she asked if she didn't know what to do or how to do something.
7Mr. Chatzis had no significant complaints about Ms. Grieves' work, either in January 1992 or at the hearing. The only negative comment that any witness recalled was that Mr. Chatzis once warned Ms. Grieves not to prepare an "upside down" submarine again.
8During the training sessions, Ms. Grieves informed her fellow employees, Ms. Gawronski and Ms. Hough, that she had just learned that she was pregnant with her third child. There is some evidence to indicate that she hoped to keep this information from Mr. Chatzis as long as possible, but this was not to be. Ms. Hough had (and still has) a close relationship with Gus.Chatzis, the son of Mr. Harry Chatzis. On January 30, Ms. Hough informed Mr. Chatzis of Ms. Grieves' pregnancy and Mr. Chatzis telephoned the complainant that evening. In Mr. Chatzis' words "I did what was best for me and her" (at 98 of Volume l of the transcript). He informed her not to come to work at Admiral Sub the next day because she "would get fat" and "wouldn't be able to move" (at 106 of Volume 1 of the transcript). Ms. Grieves convinced him to change his mind. By the end of the telephone call, Mr. Chatzis agreed that Ms. Grieves should return to work the next day.
9On the morning of January 31st, Mr. Chatzis again called Ms. Grieves at her home. He told her that he had discussed the situation with his son, Gus, and had decided that he did not want her to work at Admiral Sub while she was pregnant. Either during this conversation or the one of the previous day, Mr. Chatzis made it clear that Ms. Grieves was welcome to return to work at Admiral Sub once the baby was born. Later that day, Ms. Grieves went to Admiral Sub to pick up her shoes and her pay for the four training sessions. She never returned to work at Admiral Sub.
10At the hearing, Mr. Chatzis explained his actions by stating (at 98 of Volume 1 of the transcript) that a pregnant woman could not "handle the job" and that he would need to train someone new three or four months later. In order to evaluate this explanation, it is necessary to examine the nature of the work that Ms. Grieves was hired to do. Unfortunately, the evidence presented at the hearing created some uncertainty regarding this matter. Ms. Grieves assumed she was being hired as a counter hostess whose primary function would be to prepare foods at the service counter and then serve them to the customers. She believed that she was being trained to perform the same job as Ms. Gawronski. Indeed, Ms. Gawronski assumed that Ms. Grieves had been hired to replace her and that she would be given notice of termination shortly. On the other hand, Ms. Hough suggested (at 113 — 114 of Volume 1 of the transcript) that Ms. Grieves may have been hired to replace her since she was going to return to school in March 1992.
11There was a significant difference between the job being done by Ms. Gawronski and that being-done by Ms. Hough in January 1992. Ms. Hough came into work at 8:00 a.m. each morning to prepare the potatoes for frying. For the next two and a half hours, she would peel, blanch and cut potatoes. She testified that this required her to lift pails filled with potatoes weighing about 75 pounds. On the other hand, Ms. Gawronski testified, (at 19 of Volume 1 of the transcript) and this was verified by Ms. Hough, that her job as a counter hostess did not involve any significant lifting of heavy objects. She indicated that the only heavy objects that she had to move were milk crates and that she simply dragged these into position.
12Mr. Chatzis stated (at 99 of Volume 1 of the transcript) that Ms. Grieves would be unable to perform her work while pregnant because she would be unable to lift the pails of potatoes being prepared for frying. Of course, this point would be completely undercut if the job for which Ms. Grieves had been hired never involved the lifting of pails of potatoes. Although Mr. Chatzis' comments about potato pails might be some indication that Ms. Grieves was hired to perform the job originally performed by, Ms. Hough, I conclude that the evidence as a whole strongly indicates that she was hired to perform the work of a counter hostess such as Ms. Gawronski. First, Ms.Grieves' shift was to run from 10:00 a.m. to 6:00 p.m. This mirrored Ms. Gawronski's hours. It would also mean that Ms. Grieves would not be available to prepare the potatoes early in the morning as Ms. Hough did. Second, Mr. Chatzis delegated the job of training Ms. Grieves to Ms. Gawronski, not Ms. Hough. Third, Ms. Grieves' training was coming to an end on January 30 and she was to begin her full shift the next day even though she had never been shown how to prepare potatoes by anyone. If this was to be one of her functions, one would expect that it would be part of the training program. I, therefore, conclude that the job for which Ms. Grieves was hired did not involve the lifting of pails of potatoes or any other heavy objects.
13I also find that,Ms. Grieves' training had been essentially completed by the time she was dismissed. Therefore, if she had continued in the position of counter hostess at Admiral Sub until close to the birth of her child, no significant additional training would have been required. It is true that Mr. Chatzis might then have had to hire a new person to replace her during her maternity leave. This likely would have required some additional training by him or his staff. The new person might have required a longer training period than Ms. Grieves, who had extensive, related experience. However, it is probable that a new person could be trained for the position within days rather than the four to six weeks suggested by Mr. Chatzis. The job did not involve specialized skills that would take the average person weeks to master.
14Following her dismissal on January 31, 19-92, Ms. Grieves soon returned to her part-time job at Sheridan Place. She also continued to search, albeit without success, for a full-time job until she was approximately four months pregnant and "showing". The work at Sheridan Place was physically demanding. By the end of June, Ms. Grieves decided that she could no longer safely lift some of the residents in and out of the bath and she quit working. By that time she had earned $2,546.00 at Sheridan Place following her dismissal. She also received benefits from the Unemployment Insurance scheme totaling $4,857.00 for the period up to mid-August, 1992. At that time, she was no longer eligible for U.I. benefits. In particular, she did not qualify for maternity benefits.
15Ms. Grieves was in good health during her third pregnancy. Dr. Lowcock, her family doctor, indicated in a letter solicited by the Commission (Exhibit #9) that there was no medical reason why Ms. Grieves could not have performed a job involving food preparation, customer service and general cleaning on a 40 hour per week basis until approximately August 27th. Dr. Bates, Ms. Grieves' gynaecologist, suggested in a similar letter (Exhibit #8) that she "could have conceivably worked full-time up until her expected date of delivery, which was September 10th, 1992".
16Ms. Grieves' child was born on September 23, 1992. Ms. Grieves testified that if she had continued working at Admiral Sub until the birth, she would have returned to work at Admiral Sub after taking her maternity leave. She began to look for employment during December, 1992. In March 1993 she began work on a part-time basis as a cafeteria attendant at Levi Strauss and Company. She earned $8.85 an hour and worked sixteen hours per week. She became pregnant with her fourth child and gave notice that she would be taking maternity leave commencing on January 20, 1994. However, she was laid off in late October 1993. By that time she had earned $4,684.00 at Levi Strauss. Ms. Grieves began to collect Unemployment Insurance Benefits in early November, 1993. By the time of the hearing, Ms. Grieves had given birth to her fourth child and was still collecting Unemployment Insurance Benefits.
Liability under the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)
17It is my finding that Mary Grieves was dismissed from her job on January 31, 1992 by Harry Chatzis because of pregnancy. This is a prima facie violation of Part 1 of the Ontario Human Rights Code. Section 5(1) provides:
5(1)
Every person has a right to equal treatment with respect to employment without discrimination because of . . . sex . . .
18Section 10(2) specifies:
10(2)
The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
19Section 9 provides: "No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part".
20Earlier I concluded that Ms. Grieves had been hired as a full-time employee without a probationary period. However, the situation would be essentially the same even if she had been employed on a probationary basis or if she was merely being considered for a permanent job. Part l of the Code indicates that employment decisions must be made without discrimination on the basis of pregnancy, unless a qualifying provision in the Code applies.
21One such qualifying provision is section 24(1)(b), the so-called "BFOQ" defence. It provides:
24(1)
The right under section 5 to equal treatment with respect to employment is not infringed where, . . .
(b)
the discrimination in employment is for reasons of . . . sex . . . if the . . .sex . . . of the applicant is a reasonable and bona fide qualification because of the nature of the employment.
22This defence is restricted by s. 23(2) which stipulates:
23(2)
The Commission, a board of inquiry, or a court shall not find that a qualification under clause (1) (b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
23It appears to have been Mr. Chatzis' position that pregnancy would impede the complainant's ability to work because she would be unable to lift heavy objects, to restock shelves above her head and to move fast enough to serve customers promptly. In reviewing the facts of this case earlier, I concluded that the job for which Ms. Grieves was hired did not involve the lifting of pails of potatoes, as claimed by Mr. Chatzis, or any other heavy objects. I am also not convinced that Ms. Grieves would not have been able to move fast enough to keep up with customer demand. All customers were served at the counter and virtually all the work done in food preparation was done in close proximity to the counter. Very little movement was required to do the job and there was nothing to suggest that Ms. Grieves, who was described as "a very fit woman" by her gynaecologist, could not have managed to keep up with customer demand in the same way as non-pregnant employees.
24Finally, Mr. Chatzis suggested (at 99 and 101 of Volume 1 of the transcript) that there were safety risks involved which a pregnant woman should not take. He specifically mentioned that pregnant women should not be lifting things over their heads and that the restocking of shelves involved such work. He also mentioned the fact that the floor might be slippery on occasion. I cannot accept that these concerns amounted to a BFOQ in this case. First, the only evidence suggesting that any overhead work by a pregnant woman presents a risk to the child she is carrying is Mr. Chatzis' statement which is apparently based on second or third hand information. Second, I am not convinced that the restocking of overhead shelves constituted any significant element of the counter hostess' job. Third, there is nothing in the evidence to suggest that it would not have been possible to address Mr. Chatzis' concern by accommodating Ms. Grieves by, for example, arranging for one of the other employees to restock the overhead shelves. Indeed, the possibility of accommodation was never explored by Mr. Chatzis.
25This leaves for consideration the fact that the floor may have been slippery on occasion. This, of course, would present a risk to any employee and probably some risk for the unborn child of a pregnant employee. However, there is no indication that spills were frequent and, in any event, the risk could be minimized by prompt cleanup of any spill. I do not think the slight risk presented to a pregnant woman by the occasional spill can justify Mr. Chatzis' action. In Wiens v. Inco Metals Company, Ontario Division (1988), 1988 CanLII 8869 (ON HRT), 9 C.H.R.R. D/4795 at D/4819, the Board of Inquiry stated: "It is more in keeping with equality objectives to allow the individual the informed choice of accepting the very slight risk or rejecting the very slight risk in favour of alternative employment."
26Mr Chatzis, even if his motives may have been well-intended, is directly liable for violating the code when he terminated Ms. Grieves' employment because she was pregnant. Given that Admiral Sub is not an incorporated business, Mr. Chatzis is personally liable for this violation of the Code.
Remedies
(a) General
27Section 41(1) of the Code states:
41(1)
Where the board of inquiry, after a hearing, finds that a right of the complainant under Part 1 has been infringed and that the infringement is a contravention of section 9 by a party to the proceedings, 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 the Act, both in respect of the complaint and in respect of future practices; and
(b)
direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and where the infringement has been engaged in willfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
(b) Special Damages
28One of the purposes of an award under s.41(1) is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred. See Airport Taxi (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.). In this case, Ms. Grieves is entitled to special damages for the economic loss that reasonably flowed from the termination of her employment because of pregnancy. Such entitlement is, of course, subject to the complainant's duty to mitigate her losses through reasonable efforts to obtain employment.
29The application of these principles to the facts of this case presents some difficulty. Counsel for the Commission suggested that the losses flowing from the discriminatory act should be divided into three periods. The first period begins on February 3, 1992 and runs to August 28, 1992. It was argued that during this period the complainant would have worked at Admiral Sub earning $320 per week if her employment had not been terminated. She would then have begun her maternity leave. The Commission submitted that Ms. Grieves should receive full compensation for the lost wages during this period at the rate of $320 per week minus the earnings she received from her part-time job at Sheridan Place.
30The second period begins August 31, 1992 and extends to March 5, 1993. If Ms. Grieves had been able to work full-time at Admiral Sub for a least twenty of the thirty weeks during the first period, she would then have been entitled to maternity leave benefits under the Unemployment Insurance scheme for fifteen weeks and parental leave benefits for an additional ten weeks. Her entitlement would have been $192.00 per week. In fact, Ms. Grieves was unable to satisfy the eligibility requirements for either type of benefit because she never had twenty weeks of full-time employment following her last Unemployment Insurance Claim. Her husband was eligible for the parental leave benefits, but he did not obtain them as the family needed his entire employment income rather than the sixty per cent available as parental leave benefit. The Commission argued that Mr. Chatzis should compensate Ms. Grieves for the entire loss of both maternity and parental benefits, totaling $4,800.
31Period three, as set out in the Commission's arguments, runs from March 8, 1993 to January 20, 1994. It was argued that, but for the discriminatory act, Ms. Grieves would have returned to work at Admiral Sub immediately following her maternity and parental leave and would have continued working full-time there until the beginning of a maternity leave relating to the birth of her fourth child. The Commission's submission was that Ms. Grieves should receive full compensation for the lost wages during this period at the rate of $320 per week minus the earnings she received from her part-time job at Levi Strauss and Company.
32I accept the Commission's argument regarding the wages lost from February 3, 1992 to August 28, 1992. If Ms. Grieves had not been fired on January 31, it is probable that she would have continued to work until near the end of her pregnancy. She needed the money and was eager to keep a full-time job. The medical evidence suggests she would have been capable of working as a counter hostess at Admiral Sub until almost the end of August. Once she was fired, she mitigated her losses by looking for alternative full-time employment while returning to work part-time at Sheridan Place. Her decision to leave this employment at the end of June was reasonable in the circumstances. Similarly, I do not think it unreasonable for her to discontinue a vigorous and energetic job search once her pregnancy was more advanced.
33If Ms. Grieves had worked at Admiral Sub as a counter hostess for the thirty weeks from February 3 to August 28, 1992, she would have earned $9,600.00. To arrive at the appropriate compensation for this loss one must, however, deduct the $2,546.00 she earned at Sheridan Place during this period. This leaves $7,054.00.
34The evidence indicates that Ms. Grieves also collected unemployment insurance benefits, as she was entitled to do, during her part-time employment. The amount per week varied, depending on the amount of employment income. The benefits totaled $4,857.00. It appears that under s.37 of the Unemployment Insurance Act, R.S.C. 1985, chap.U-1, the complainant, Ms. Grieves, would have to repay this amount to the Receiver General if Mr. Chatzis paid her $7,054.00 as compensation for lost wages. Indeed, s.38(1) indicates that Mr. Chatzis has a duty to deduct $4,857.00 and pay it directly to the Receiver General if I award $7,054.00 as compensation for lost wages. Two things follow. First, there should be no deductions from my award because of the unemployment insurance benefits received by the complainant, (see Shaw v. Levac Supply Ltd (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.); Ratych v. Bloomer (1990), 1990 CanLII 97 (SCC), 69 D.L.R. (4th) 25 (S.C.C.); and Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd.. Inq.)). Second, the respondent, Mr. Chatzis, should contact the Unemployment Insurance Commission to confirm that $4,857.00 is the amount of the award that should be subtracted from the amount payable to Ms. Grieves and remitted directly to the Receiver General.
35I do not accept the Commission's arguments regarding the appropriate compensation for economic losses during the next two identified periods. I have decided that Mr. Chatzis should compensate Ms. Grieves for the lost maternity benefits but not for any of the other alleged economic losses.
36As noted earlier, Airport Taxi (Malton) Assn v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A) indicates that a key purpose of an award under s. 41(1) of the Code is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred. In this case, I have concluded that Ms. Grieves would have worked at Admiral Sub on a full-time basis until the end of August, 1992. This would have made her eligible for fifteen weeks of maternity benefits totaling $2880.00 under the Unemployment insurance scheme. Because she was fired and unable to find a full-time job during her pregnancy, she was ineligible and received no benefits.
37I am aware that the Federal Court of Appeal in Canada v. McAlpine, 1989 CanLII 9428 (FCA), [1989] 3 F.C. 530 [12 C.H.R.R. D/253] set aside an award of compensation under the Canadian Human Rights Act for lost unemployment insurance benefits when the respondent refused to hire a pregnant woman for a fourteen week job. The main basis for the decision was the wording of the remedial power granted to the tribunal by the statute. Since the wording of s. 41(1) of the Code is considerably broader, the case can be distinguished on that basis. However, the Federal Court of Appeal also indicated (at 538) that the tribunal had erred in not applying the principle that "[o]nly such of the actual loss resulting as is reasonably foreseeable is recoverable". The court suggested that the loss of regular Unemployment Insurance Benefits was not reasonably foreseeable in the circumstances of that case. Here, however, as I have indicated, it was reasonably foreseeable that Ms. Grieves would not obtain full-time employment during her pregnancy and, therefore, fail to qualify for maternity leave benefits.
38For a number of cumulative reasons, I have chosen the loss of the maternity benefits as the cut-off point of Mr. Chatzis' responsibility for the economic losses identified by the Commission.
39First, there is considerable support in human rights' jurisprudence for the view that the assessment of monetary damages for lost wages should be cut off at the point where those damages can no longer be considered reasonably foreseeable at the time of the wrongdoer's act. See Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (Ont. Bd.Inq.); Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.); Canada v. McAlpine, 1989 CanLII 9428 (FCA), 3 F.C. 530 [12 C.H.R.R. D/253] (C.A.); Engell v. Mount Sinai Hospital (1990), 1989 CanLII 9070 (ON HRT), 11 C.H.R.R. D/68 (Ont. Bd.Inq.); and Parks v. Christian Horizon (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd.Inq.). In Engell, Professor Backhouse stated (at D/74):
Following Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont.Bd.Inq.) aff'd Sept. 17, 1985 (Div. Ct., unreported), the proper measurement of lost wages can best be assessed by reference to tort principles. Lost wages are payable for a reasonable time, that being a reasonably foreseeable period for the complainant to seek alternative employment. In this case, a period of three months does not seem overly long in this regard. {emphasis added)
40I realize that Ms. Grieves' situation was complicated by her pregnancy. Nevertheless, a two year period as suggested by the Commission does seem overly long. I do not think that a reasonable person, familiar with Ms. Grieves' work experience and the nature of the jobs which she had held, would have foreseen in January,1992 that she would have failed to secure full-time employment two years later.
41Second, even if one rejects foreseeability as a determining factor, it seems unfair to treat Mr. Chatzis as the insurer of Ms. Grieves' income. Mr. Chatzis had only employed Ms. Grieves in a relatively menial job for four days when she was fired. Even if she had not been fired on January 31, 1992, it is hard to predict with any degree of certainty how long she would have worked as a counter hostess at Admiral Sub. I suspect that it would not have been a career position. The nature of the job might have led Ms. Grieves to consider alternatives. Also, Ms. Gawronski testified that Mr. Chatzis was not an easy man to work for and that she decided to seek a new career after a short period of employment.
42Third, Ms. Grieves' job search following the birth of her third child appears to have been too selective. She testified that she did not inquire about a possible full-time position at Tim Horton's. Yet, her previous work experience indicated that this chain repeatedly hired her whenever she so desired. She stated that she did not seek employment at Tim Horton's or a similar shop because the wages were too low. She preferred to work part-time at a higher wage during hours her husband would be able to look after the baby. This may have been an economically rational decision on Ms. Grieves' part, but it seems unjust to require Mr. Chatzis to subsidize the arrangement. At the very least, this point illustrates that as time went on there were a variety of reasons why Ms. Grieves had not obtained full-time employment.
43The fourth reason why I conclude that Mr. Chatzis should not be responsible for any possible economic loss arising after December 1992 is that Mr. Chatzis had indicated that Ms. Grieves could return to work as a counter hostess at Admiral Sub as soon as she had recuperated from the birth of the child. There may be situations where it would be totally unreasonable to expect a complainant in a human rights case to return to work for an employer who had violated his or her rights under the Code.This is not one of them. Mr. Chatzis expressed no animosity toward Ms. Grieves. He simply believed, wrongly in my view, that it would be best for Ms. Grieves if she did not work as a counter hostess during her pregnancy. He felt that she would be a valuable employee once the baby was born and consequently indicated that she could return to Admiral Sub at that time. While Ms. Grieves testified that she was embarrassed and hurt by what happened to her in late January 1992, I believe that her duty to mitigate her losses required her to accept this offer in the circumstances of this case. In Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.), Professor Cummings stated (at D/2198):
Had Ms. Cameron [who was refused employment as a Nurse's Aide because of a handicap] been offered an alternative job, in the crafts department at Nel-Gor, she would have been obliged to accept the position in mitigation of her damages, without giving up her rights under the Code. (In the instant case, Ms. Nelson [the Administrator) was polite toward Ms. Cameron at all times and there was no suggestion that there would be on-going personal animosity, which would have made working in an alternative position difficult) . . . It is irrelevant that the Complainant testified that she would not have worked in the Respondents' craft department because she was offended and hurt by what happened to her October 8, 1982. The point is, a position was never offered to her which she could have accepted, even if she would not have done so.
44Ms. Grieves testified that by December, 1992 she was ready to work and was looking for full-time employment. It is my view that she should have taken up Mr. Chatzis' offer at the time.
(c) General Damages
45Counsel for the Commission sought an order for general damages in the amount of $2,500.00 to compensate Ms. Grieves for injury to her dignity and. self-respect and for the loss of her right to freedom from discrimination. This seems rather high in the circumstances of this case. I conclude that $500.00 is a more reasonable figure.
(d) Interest
46The Commission sought pre-judgement interest on any amount awarded to compensate Ms. Grieves for the loss of income between February 3 and August 28,1992 and between March 8, 1993 and January 20, 1994. As indicated above, I have awarded Ms. Grieves $7,054.00 as compensation for lost wages during the first period. Of this, $4,857.00 will have to be remitted, apparently without interest, to the Receiver General under the Unemployment Insurance Act. It would, therefore, be inappropriate to award the complainant any interest on the $4,857.00. This leaves for consideration an award of interest on the remaining $2,197.00.
47Although there is no express provision in the Code regarding payment of interest on compensatory awards, a considerable number of boards of inquiry have ordered such payment. In Emrick Plastics v. Ontario (Human Rights Commission) (1992), 1992 CanLII 8545 (ON CTGDDC), 90 D.L.R. (4th) 476 [16 C.H.R.R. D/300] the Ontario Divisional Court upheld an award of interest and, in the absence of an argument questioning the board's authority, left "any jurisdictional challenge to some later case". I have decided that interest should be paid on the $2,197.00 in accordance with the formula suggested by the Commission:
Interest = Damages
x
Interest Rate (determined as indicated in s. 127(1) of the courts of Justice Act)
x
Interest Period (midpoint of the period of recurring loss to the date of the order)
= $2,197.00
x
7.5%
x
2 yrs.
16 days
= $327.75
(e) Other Relief
48The Commission also asked that, pursuant to s. 41(1)(a), I direct Mr. Chatzis to post "Code cards", available from the Commission, in his place of business. I so direct.
ORDER
49This Board of Inquiry, having found that the complainant's right to equal treatment with respect to employment without discrimination because of sex was infringed by Mr. Harry Chatzis contrary to s. 9 and s. 5(1) of the Human Rights Code, R.S.O. 1990, c.H. 19, orders the following:
(1)
Mr. Chatzis must pay forthwith to Ms. Grieves:
(a)
as damages for lost wages, the sum of $7,054.00 (pursuant to s. 38(1) of the Unemployment Insurance Act, it appears that Mr. Chatzis has a duty to transmit $4,857.00 of this amount to the Receiver General);
(b)
as compensation for lost maternity leave benefits, the sum of $2,880.00;
(c)
as general damages, the sum of $500.00; and
(d)
as interest, the sum of $327.75.
(2)
Mr. Chatzis must post "Code cards", available from the Commission, in his place of business known as Admiral Sub.