501781 Ontario Ltd. v. Ontario (Human Rights Comm.) (No. 2)
1996-10-09
BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the complaint by Brad Thomson dated July 29, 1992, alleging discrimination in employment on the basis of handicap.
B E T W E E N :
Ontario Human Rights Commission
- and -
Brad Thomson
Complainant
- and -
501781 Ontario Limited Operating as Fleetwood Ambulance Service
-and -
Ontario Public Service Employees Union
Respondents
DECISION __________________________________
Adjudicator:
Katherine Laird
October 9, 1996
Board File No.:
93-0066
Decision No.:
96-035
A P P E A R A N C E S
Ontario Human Rights Commission
Anthony Griffin, Counsel
Brad Thomson Complainant
On his own behalf
Fleetwood Ambulance Service, Respondent
Elizabeth Keenan, Counsel
Ontario Public Service Employees Union, Respondent
Rebecca Murdock, Counsel Beverley Johnson, Human Rights Officer
Introduction
1By decision dated November 10, 1995, 1 determined that the right of the complainant to equal treatment in employment without discrimination had been infringed by the application of an article in the collective agreement as between the respondents. Article 14.08 had the effect of pro-rating the complainant's vacation entitlement as a result of his absence from work due to an injury compensable under workers' compensation legislation. I held the respondent employer, 501781 Ontario Limited Operating as Fleetwood Ambulance Service ("Fleetwood"), responsible for the infringement, and ordered that the article no longer be applied to the calculation of vacation entitlement for employees with a compensable injury or disability.
2Apparently by agreement of counsel, submissions with respect to the appropriateness and quantum of a compensatory award were not made at the close of the hearing on the merits. I remained seized with respect to this issue, and a hearing day was scheduled for submissions on the matter on May 31st, 1996. This is my decision with respect to damages.
Submissions
Human Rights Commission
3On behalf of the complainant, the Commission requested an award of special and general damages in the amount of $5010. Pre judgment interest on the award was sought on the basis that the complainant should be put in the position that he would have been in had the discrimination not occurred.
Special Damages
4The quantum of the requested award of special damages was calculated by multiplying the agreed rates of pay for the applicable periods times the number of hours by which the complainant's vacation was inappropriately reduced. It was agreed between the parties that the complainant's vacation entitlement was reduced by a total of 153 hours from 1990 to 1993 as a result of the application of article 14.08 of the collective agreement. The Commission argued that the complainant had lost his right to 153 hours of paid vacation as a result of the discriminatory application of article 14.08, and had in effect worked those hours without remuneration in that he was paid the same amount for working as he should have received while on paid vacation. On this basis, the Commission argued that the appropriate remedy was an award equivalent to the wages earned for the 153 hours which should have been paid vacation time.
General Damages
5The Commission sought an award of general damages in the amount of $2500 as compensation for the complainant's loss of the right to be free from discrimination. Counsel argued that this was an appropriate amount considering the on-going nature of the discrimination.
Fleetwood Ambulance Service
6Fleetwood took the position that no restitutional remedy was warranted in this case. Noting that an award of damages was a matter within the discretion of the tribunal, counsel emphasized that the respondent had at all times been acting within the norm in the industry and in accordance with the language of the governing collective agreement. Fleetwood relied on the fact that, although OPSEU had attempted to renegotiate the disputed article, the union did not take the position that the contractual language was discriminatory until the complaint was at the pre-hearing stage before the tribunal. In these circumstances, it was argued that an award was not appropriate and would damage the labour relations climate in the work place by in effect "pointing a finger" at the employer.
7With respect to pre judgement interest, counsel argued that such as award would be inappropriate given that there was significant arbitral jurisprudence supporting the employer's interpretation of its obligations to the complainant.
Special Damages
8On the specific issue of a wage-based remedy, Fleetwood submitted that such an award would constitute double payment to the complainant and would result in unjust enrichment. Thomson did not, in the employer's submission, experience a loss of income in that he worked and was paid for the 153 hours of lost vacation. The loss to Thomson was characterized as lost time off without pay. Counsel noted that the complainant had not requested an order requiring the employer to grant 153 hours of unpaid leave, but stated that this would be an appropriate remedy. Fleetwood also asked the tribunal to consider the fact that, if Thomson had not worked the "extra" 153 hours, the employer could have easily hired someone else to work for those hours.
General Damages
9Fleetwood took the position that there was no evidence of mental distress or loss of dignity which would establish a basis for an award of general damages. Counsel again emphasized that the employer was acting within the norm in the industry and that there was no personal insult to dignity directed at the complainant. On the question of quantum, Fleetwood argued that in any event, the amount of $2500 was excessive.
Ontario Public Services Employees Union
10OPSEU submitted that the enforcement procedure under the Code would be meaningless if individual remedies were not awarded. In urging that the tribunal to make a compensatory award, counsel suggested that the employer was unfairly hiding behind the collective bargaining process. She noted that, under the Employment Standards Act (R.S.O. 1990, c.E.14 as amended), money was the accepted way to compensate for vacation not taken.
Law
11Section 41(1)(b) of the Code provides:
(1) Where the Board of Inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Board may, by order,
(a) . . .
(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 wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish. R.S.O. 1990, c. H.19, s.41(1).
Decision
12In my view, the correct interpretation of the facts is that the complainant worked for 153 hours which should have been paid vacation, and that he in effect worked without pay. None of the parties asked the tribunal to consider ordering paid vacation time. In the circumstances, the only reasonable way to compensate the complainant is to award him wages for those hours which should have been paid vacation. Although as Fleetwood notes, the employer could have hired someone else to work the hours if the complainant had been allowed to take paid vacation, there would have been a cost to the employer in wages. An award of wages for the lost vacation time has the effect of putting both parties in the position that they would have been in had the discrimination not occurred.
13I have considered the submission of counsel that the tribunal should exercise its discretion to not award damages given that the employer was at all times acting within the framework of existing arbitral jurisprudence. I acknowledge that Fleetwood did not intentionally apply a policy which it knew would infringe the complainant's rights under the Code. There is of course no evidence of a wilful or reckless disregard for the complainant's rights such as might support an award for mental anguish. However, lack of intention on the part of the respondent is not a reason to refuse to make an award which compensates the complainant for his losses arising out of the infringement. In cases of systemic or constructive discrimination, there will often be no evidence of an intention to discriminate on the part of the respondent. Although in this case the respondent is relying on the additional fact that there was legal authority supporting their position, I find that this is not an appropriate basis for denying the complainant a compensatory award. In this regard, I have considered and am persuaded by the reasoning of the federal Human Rights Tribunal on a similar point in the decision of Moore and Akerstron v. Treasury Board et al. (Unreported decision, June 13, 1996, at p. 28 to 33), [reported 1996 CanLII 533 (CHRT), 25 C.H.R.R. D/351].
14Turning to the issue of general damages, I note that the language of s. 41(1)(b) indicates that such an award is to be restitutional and not punitive in nature: York Condominium et al. v. Dudnik et al. (1991), [1991 CanLII 13171 (ON CTGDDC)], 14 C.H.R.R. D/406 at D/412-413 (Div. Ct.). In assessing quantum, it is appropriate to consider the circumstances of the infringement (for example, its severity, duration, frequency, overtness) and the resulting impact on the complainant. In this case, the infringement took place over a three year period. The complainant testified that he was angered by the denial of vacation entitlement and felt it was unfair.
15I accept that the complainant experienced the infringement as an insult to his dignity. On this basis, he is entitled to an award as compensation for the loss of his right to be free from discrimination: Foster Wheeler Ltd. v. Ontario Human Rights Commission (1987), [1987 CanLII 8514 (ON HCJDC)], 8 C.H.R.R. D/4179 at D/4180 (Div. Ct.). However, there is no evidence to suggest that the complainant felt individually targeted by the policy or that he was personally humiliated by the infringement of his rights. In these circumstances, I find that an award of $1000 would be appropriate as full compensation to the date of this decision.
Order
16The respondent, 501781 Ontario Limited Operating as Fleetwood Ambulance Service, is ordered to pay, within 30 days of this Order:
(a) the sum of $2510.88 as compensation for the loss of paid vacation, calculated at the rate of $15.59 per hour for 100 hours in 1990/91 and at $17.96 per hour for 53 hours in 1992/93;
(b) the sum of $988.95 as pre-judgment interest on the above award to the date of this Order, calculated at the rate of 8 % per annum on the amount of $1559.00 from October 1, 1990 and at the rate of 6.25 % per annum on the amount of $951.88 from October 1, 1992;
(c) the sum of $1000 as compensation for loss of the right to freedom from discrimination.
Dated at Toronto this 9th day of October 1996:
" Katherine Laird " ____________________________ Katherine Laird Member, Board of Inquiry