Leclair v. Roberge (No. 2), 1994 CanLII 18411

Lyne Leclair Complainant

Armel Roberge Respondent

Date of Decision: September 26, 1994

Before: Ontario Board of Inquiry, H. Albert Hubbard

Comm. Decision No.: 553A

Appearances by: David A. Bertschi, Counsel for the Commission Bernard Manton, Counsel for the Respondent

DAMAGES — compensation for lost wages — determination of sufficient effort to mitigate — determining quantum by establishing duration of award, using reasonable forseeability test, using wrongful dismissal standard — reduction of damages by amount received for maternity leave and by amount paid for child care services — interest on lost wages — interest rate — calculation of interest — commencement date and duration of interest

Summary: This is a decision regarding compensation for wage loss in the complaint of Lyne Leclair. The Board of Inquiry previously ruled on the merits of the case, finding that Dr. Armel Roberge discriminated against Ms. Leclair by terminating her employment because she was pregnant.

The Board of Inquiry orders Dr. Roberge to pay Ms. Leclair $12,677 as compensation for lost wages. This figure is arrived at by calculating Ms. Leclair's total wage loss until she became employed full-time in September 1990 and deducting amounts she received from other employment and from maternity leave benefits. A deduction of $4,400 from the total wage loss is also made for day care services for her child that she would have paid had she been employed during this period.

The Board of Inquiry orders Dr. Roberge to pay $7,158 in interest. The total award for wage loss and interest is $19,835.

Cases Cited

Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281, 10 C.H.R.R. D/6347 (C.A.): 9

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 19

Leclair v. Roberge (No. 1) (1993), 1993 CanLII 16515 (ON HRT), 23 C.H.R.R. D/68 (Ont. Bd.Inq.): 1

Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd.Inq.): 5, 9, 19

Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 10

Whitehead v. Servodyne Canada Ltd. (1986), 1986 CanLII 6525 (ON HRT), 8 C.H.R.R. D/3874 (Ont. Bd.Inq.): 9

Legislation Cited

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 28

s. 127: 19

s. 128: 19

s. 129: 19

Human Rights Code, 1981, S.O. 1981, c. 53, s. 4: 2

Authorities Cited

Harris, David, Wrongful Dismissal, 3d ed. (Toronto: R. DeBoo, 1984): 9

INTRODUCTION

1A decision with respect to liability having been made on September 23, 1993 [1993 CanLII 16515 (ON HRT), 23 C.H.R.R. D/68], the hearing with respect to this matter was resumed on June 16, 1994, to receive evidence and submissions regarding the issue of special damages. Clarification of certain points regarding these matters was subsequently received through an exchange of correspondence.

2Having dismissed the complainant from employment as his dental assistant because she was pregnant, the respondent, in contravention of s. 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended (the "Code"), thereby infringed her right under s. 4 of the Code to equal treatment with respect to employment without discrimination because of sex. The respondent was ordered to pay to the complainant as general damages in compensation for mental anguish the sum of $2,000, together with interest thereon running from the date of that order. The information available at the hearing was insufficient to assess the amount of special damages to which the complainant was entitled, but the parties undertook to attempt to reach an agreement in that regard to be submitted for my approval. Their inability to do so led to the hearing being reconvened to deal with the quantum of special damages.

ASSESSMENT OF SPECIAL DAMAGES

3The complainant's employment with Dr. Roberge came to an end on October 31, 1988, upon the expiration of the two weeks' notice given to her on the 17th. She was unable to find permanent employment again until September 1990 when she went to work for "Nettoyage de Tapis Superior," a carpet-cleaning business she and her husband established in Temiscaming, Quebec. Her intention had been to work for Dr. Roberge until her eighth month of pregnancy and then take a six months' maternity leave. Following her dismissal, she attempted to find work as a dental assistant, concentrating her efforts mainly in Hull where she lived. Through a job placement agency, she was able in 1989 to obtain sporadic temporary work replacing other dental assistants who were absent from work for short periods. She also received unemployment insurance earnings during this period.

4It was alleged by the respondent that Ms. Leclair did not make an adequate effort to mitigate her losses because she had restricted her search for employment to the city of Hull rather than the greater Ottawa-Hull area. However, her evidence was that she looked for permanent work mainly, but not exclusively, in the Hull area where she was then living because she did not want to spend an hour or more travelling both to and from work after the birth of her child. Not only did she circulate her résumé to potential employers in Ottawa, but her name was registered with an agency there as well. In my opinion, the evidence as a whole shows that that she made a reasonable effort to find other work.

5It may be observed in passing that I find untenable the submission that the respondent should not be required to compensate the complainant to the extent that her inability to find employment was caused by recessionary circumstances. (In this regard, see Parks v. Christian Horizons (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 [at D/173], para. 16.)

6Despite the complainant's testimony that she did not move to Temiscaming, Quebec, until 1990 and that she and her husband did not buy their present home until 1992, the respondent mistakenly maintained that she had moved there in 1988, thereby precluding any reasonable opportunity to find employment as a dental assistant. This misunderstanding was precipitated by the address of the complainant typed on Revenue Canada Income Tax summaries provided for the years 1988 and 1989. Having been unable to find copies of her income tax returns for these years as requested by the respondent, the complainant asked Revenue Canada to supply them. However, in accordance with its practices Revenue Canada simply provided "summaries" of these returns containing the essential information. The address that appears on these summaries is obviously not where she lived during the taxation years in question but where she resided at the time of her request. For instance, although her present address is shown on the summary for 1988, it is clear that she did not live in Temiscaming while working on a daily basis for Dr. Roberge in Ottawa that year. Moreover, the address on her income tax return for 1990, of which there is a copy, is that of her previous residence in Temiscaming.

7Ms. Leclair found a permanent job as secretary in the family carpet cleaning business she and her husband started in September 1990. She continued in that employment for four months, for which she was paid $11,492. Counsel for the respondent found this salary quite high and expressed the suspicion that it was payment for a longer period of time, namely, one that commenced before September 1990, thereby reducing the total period of unemployment for which compensation is sought. However, it was Ms. Leclair's uncontroverted testimony that the family business commenced on September 1, 1990, and her offer to bring documents to prove that this was so was not taken up by the respondent. She testified that her husband drew no salary from the business during this time and the relatively high amount paid to her was intended to maximize her potential unemployment insurance earnings for the benefit of the family as a whole.

8Thus, the complainant was without permanent employment from October 31, 1988, to September 1, 1990, a period of ninety-six weeks based on an average of 4.33 weeks per month according to the calculations of the Commission, with which formula the respondent did not disagree. Since she was paid $300 per week by Dr. Roberge, then, subject to certain deductions, her total loss of earnings would amount to $28,800. The deductions identified by the Commission were as follows: $7,794 in respect of an anticipated unpaid maternity leave and $1,428.90 of employment earnings. Accordingly, the complainant's special damages would amount to $19,557.10 in respect of which the Commission seeks as well pre-judgment interest at the rate of 12 percent per annum from the date of the complainant's re-employment (September 1, 1990) to the date of this decision. Such interest would amount to $9,396.96. As will be seen presently, post-judgment interest on the award of general damages made on September 23, 1993, would add another $122.46, bringing the total amount for which the Commission seeks an order to $29,076.52.

9Counsel for the respondent submitted that in loss of employment cases the compensable period should reflect the length of time for which the complainant had been employed, in which regard relevant pages of Wrongful Dismissal by David Harris were cited. However, the common law remedy for wrongful dismissal differs from an award of special damages for loss of employment made pursuant to the Code. In Re Piazza and Airport Taxicab (Malton) Association (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 at 284 [1989 CanLII 9062 (NS HRC), 10 C.H.R.R. D/6344 at D/6348, para. 45018] (C.A.), Zuber J.A. expressly approved the following statement made by Professor Soberman in the Ontario board of inquiry decision in Whitehead v. Servodyne Canada Ltd.(1986), 1986 CanLII 6525 (ON HRT), 8 C.H.R.R. D/3874 [at D/3877, para. 30689]:

[T]he usual measure of economic loss in contract law for wrongful dismissal — lost wages during a period of reasonable notice) — is not the correct measure to compensate an aggrieved complainant under the Human Rights Code. While there may be circumstances where the quantum of damages for wrongful dismissal in contract coincide with the compensation for breach of section 4(1) of the Code, such circumstances are merely fortuitous. More often the contract measure will be inadequate to compensate the complainant and also to carry out the purposes of the Code.

And in the Christian Horizons case, supra, it was observed that (at D/172 and D/173, [paras. 6 and 16]):

In assessing damages for loss of income in human rights cases, human rights jurisprudence recognizes 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 [cases cited]. 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.

A cut-off point of April 1, 1992, is reasonable. Even though the respondent [sic] has not 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 downtime in the economy that we are experiencing at the moment.

10In my opinion, the length of the complainant's employment with the respondent is not relevant to determining whether the subsequent period of unemployment was reasonably foreseeable, as though the shorter the employment with the respondent, the more readily ought the complainant to find alternative employment. I am satisfied that the period of unemployment in this case (which is less than in the Christian Horizons case, supra, which occurred at about the same time) was reasonably foreseeable. In any case, as pointed out in Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 at D/63, [para. 203], I am of the opinion that:

. . . its foreseeability is not a condition of liability for harm actually caused by an infringement of the Code. Where the board is clothed with a discretion to determine whether to make any award and in what amount (if any), that discretion, rather than the test of reasonable foreseeability, is the only limiting factor. It may be, of course, that a board might have regard to reasonable foreseeability as one of many considerations to be weighed in the exercise of its discretion; but that is a separate matter.

Of course, a number of other factors must be taken into account in order to determine the quantum of special damages to which the complainant is entitled.

11Even had she remained employed by the respondent during the entire period in question, the complainant would have taken a maternity leave of at least six months. Thus, the Commission suggested that the sum of $7,794 (6 x 4.33 x $300) should be deducted from the larger figure. However, according to the complainant's own evidence, she intended to commence maternity leave a month before her child was to be born and to remain on such leave until the child was six months old. Thus, in my view, the correct amount to be deducted in respect of unpaid maternity leave is $9,093 (7 x 4.33 x $300).

12It was pointed out by counsel for the respondent, that, had the complainant either returned to work or found alternative employment following her anticipated maternity leave, she would have required daycare or baby-sitting services for her child. According to Ms. Leclair's own evidence, this would have cost her at least $100 per week. (See Vol. 1 of the Transcript of Evidence at p. 53.) As the period in question would have been forty-four weeks, running from November 20, 1989, to September 1, 1990, the further sum of $4,400 is to be deducted from the amount to which she would otherwise be entitled for loss of earnings.

13As already indicated, the complainant managed to find temporary work from time to time. She testified that she worked between twenty and thirty days during 1989, replacing other dental assistants who were on leave of one kind or another. Not having received any T-4 slips in respect of this work, she was unable to give a precise number of hours nor identify the dates when she worked. In this regard, the following exchange occurred between counsel for the Commission and Ms. Leclair (at p. 13 of the Transcript for June 16, with emphasis added):

Q. And what type of work were you performing between those 20 and 30 days?

A. Well, I was replacing for people that were sick.

Q. Okay. And you have already stated in your previous evidence that you were earning approximately $11 an hour at the time?

A. Yes.

Q. And you were working approximately 30 hours a week?

A. Yes.

Q. And was it 20 to 30 days you said?

A. Yes, probably that.

14Subsequently, in the course of argument, counsel for the Commission made this statement:

With respect to the deductions for the maternity absence, it's, as previously indicated, it's self-explanatory. The six month period, $300 a week times 4.33 weeks — because there's 4.33 weeks in a month. Employment earnings in 1989 — I used the 30 hour week, which was referenced in Mrs. Leclair's previous transcript of examination for discovery [sic] and the — I used a full 4.33 weeks, a full month.

15Then, in the "Schedule of Damages" provided by the Commission the following appears as a deduction to be made from the total claim for loss of earnings:

Employment Earning (1989)

([$]11.00/hour x 30 hours/week x 4.33 weeks) = ($1,428.90)

16However, the evidence in this regard is not that the complainant worked 30 hours a week (an apparent reference to her four-day work week while employed by the respondent), but that in 1989 she had worked as many as (and no more than) thirty days at eight hours a day for which she was paid $11 per hour, and the correct amount of earned income to be deducted in mitigation of damages from the amount the respondent would otherwise be required to pay the complainant is $2,640.

17Thus, after taking into account the deductions to be made for maternity leave ($9,093), daycare services ($4,400) and earned income ($2,640), I assess special damages in this case at $12,667 ($28,800 less $16,133).

18I turn now to the submissions of the Commission regarding an order for the payment of interest with respect to both special and general damages.

INTEREST

19In Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, it was pointed out that it has been consistently held that boards of inquiry under the Code may order interest to be paid on both special and general damages. However, since they have a discretion whether to award any "pre-judgment" and "post-judgment" interest at all (see Christian Horizons, supra), it would seem that boards of inquiry could award less, but not more, interest than the amount calculated pursuant to ss. 127 to 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "Act").

20Pre-judgment interest normally commences with notice of the complaint. The complaint herein is dated Monday, January 9, 1989, and, there being no evidence to the contrary, it is convenient to assume that it was served upon the respondent that same day. According to the Commission, the applicable interest rate on that date was 12 percent, which rate was not disputed by the respondent. While the loss of wages suffered by the complainant began to accrue on November 1, 1988, when her employment with the respondent ended, pre-judgment interest at that rate would not commence until notice of the complaint on January 9, 1989, running from then to the "date of the order." However, the total amount of special damages was not accumulated until September 1, 1990, when the complainant found alternative employment, and counsel for the Commission expressly recommended that pre-judgment interest at 12 percent be taken to commence running from that later date. His statement in that regard (at p. 62 of Vol. 2 of the Transcript) is as follows:

With respect to interest, we would also make the recommendation, obviously, that interest would apply at the rate under the Courts of Justice Act, from the time the monies would be due and owing — I know it's usually from the time that the Respondent has notice of the complainant [sic], but the monies weren't owing until the $2,000 or thereabouts* was realized, which was September of '90, I would recommend or suggest to you. And interest would accrue from September of '90 to the present [i.e., the date of the present order], pursuant to the Courts of Justice Act. And I believe the rate would be 12 percent per annum. [*There being no other similar amount, this would appear to be a reference to the income earned by the complainant during 1989. In any case, its relevance in this regard escapes me.]

21Annual interest of 12 percent on $12,667 is $1,520. If such interest runs between the dates suggested by the Commission, then, four years having elapsed from the date of the complainant's re-employment, the total pre-judgment interest would be $6,080 rather than $9,396. In this regard it is to be noted that, in order to have a convenient date with which to work while preparing this decision, I used September 1, 1994, as the date of the present order. (Not only would a few days' discrepancy be of no real significance, but a different cut-off date is used in the final analysis.) It might be noted as well that the various amounts of interest identified have been rounded down to the nearest whole number [for calculations from Oct. 31/88 to Apr. 21/89].

22As it happens, I cannot accept the Commission's position as to the dates between which pre-judgment interest should run. Because the later it commences to run the lower the total interest, I would have no difficulty accepting the Commission's recommendation as to the date from which pre-judgment interest is to run had it been the party suffering the financial loss. However, that loss was incurred not by the Commission but by the complainant who was not represented by separate counsel. Counsel for the Commission did not provide any reason based on public interest or policy as to why the complainant should forego a part of the interest to which she would seem entitled under the Act, and the only basis for the recommendation in this regard would appear to be the complexity of a detailed calculation of that part of the interest. I also have difficulty in accepting the date to which it is sought to have such interest run and, had an earlier cut-off date than he proposed been anticipated (to which matter I will come presently), counsel for the Commission might have been reticent about abandoning the initial run of interest to which the complainant might be entitled.

23In calculating the interest payable to the complainant under the Courts of Justice Act, I have regarded the loss of wages from October 31, 1988 (the date of dismissal) to January 9, 1989 (the date of notice of complaint), as a distinct item of damages in respect of which pre-judgment interest at 12 percent is to be assessed from that date of notice. Although the complainant was paid a weekly wage, since she is entitled to compensation for fifty-three weeks, as a matter of convenience I have treated as separate items her loss of wages during periods thereafter of approximately a month's duration (rather than of a week's duration) in respect of each of which periods pre-judgment interest at 12 percent may be assessed. The interest on each of these items has been calculated from the end of the period in question to September 1, 1990, when the complainant was re-employed and the total amount of special damages became fixed. Finally, I have calculated the interest on the total of special damages running from September 1, 1990, when that amount became fixed, to "the date of the order."

24In determining the amount of damages involved in each of these items I have taken into account the applicable deductions. In 1989 the complainant earned $2,640. The evidence does not disclose the precise dates on which she worked. However, since she had a maternity leave of seven months, she must be taken to have earned that money during the remaining five months of that calendar year, which is approximately twenty-two weeks. If her earnings are spread over these weeks, then she averaged $120 per week, reducing her loss of wages to $180 per week throughout 1989. Since she would have required baby-sitting services at $100 per week from November 20, 1989, to the end of that calendar year, the loss of wages for those six weeks is thereby further reduced to $80. From January 1 to September 1, 1990, she had no earned income, but she would have required baby-sitting services resulting in lost wages of $200 per week during that period. My calculations of the interest accruing from January 9,1989, to September 1, 1990, are as follows:

Oct 31/88 to Dec 30/88 = 9 weeks @ $300 = $2,700

Jan 2/89 to Jan 6/89 = 1 week @ $180

$2,880 x 12% = $345.60 per year or $6.64 per week

Number of weeks from Jan 9/89 to Sept 1/90 = 86 x $6.64 = $571.04

Jan 9/89 to Jan 27/89 = 3 weeks @ $180 = $540

$540 x 12% = $64.80 per year or $1.24 per week

Number of weeks from Jan 27/89 to Sept 1/90 = 83 x $1.24 = $102.92

Jan 30/89 to Mar 3/89 = 5 weeks @ $180 = $900

$900 x 12% = $108 per year or $2.07 per week

Number of weeks 78 x $2.07 = $161.46

Mar 6/89 to Mar 31/89 = 4 weeks @ $180 = $720

$720 x 12% = $86.40 per year or $1.66 per week

Number of weeks 74 x $1.66 = $122.84

April 3/89 to April 21/89 (start of maternity leave) = 3 weeks @ $180 = $540

$540 x 12% = $64.80 per year or $1.24 per week

Number of weeks 71 x $1.24 = $88.04

[Note: the "maternity leave" would have ended Nov 20/89]

Nov 20/89 to Dec 1/89 = 2 weeks @ $80 = 160

$160 x 12% = $19.20 per year or $0.37 per week

Number of weeks 39 x $0.37 = $14.43

Dec 4/89 to Dec 29/89 = 4 weeks @ $80 = $320

$320 x 12% = $38.40 per year or $0.74 per week

Number of weeks 35 x $0.74 = $25.90

Jan 1/90 to Jan 26/90 = 4 weeks @ $200 = $800