Ontario Human Rights Commission v. 2009158 Ontario Limited o/a A Buck or Two #342, 2005 HRTO 54

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Sandra Boodhram

Complainant

-and-

2009158 Ontario Limited o/a A Buck or Two #342 and Robert Starmans

Respondents

DECISION

Adjudicator: Michael Gottheil

Date: December 21, 2005

Citation: 2005 HRTO 54

Human Rights Tribunal of Ontario 400 University Avenue, 7^th^ Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended ("the Code"), alleging discrimination in employment on the ground of disability under sections 5(1) and 9. The Complaint was filed on July 22, 2003 and was referred to the Human Rights Tribunal of Ontario ("the Tribunal") on June 15, 2005.

2In an Interim Decision dated August 12, 2005, the Tribunal decided, following a request by the Commission and the Complainant, that it was appropriate in the circumstances to issue a Notice of Written Hearing. The Tribunal further held that in the absence of the Respondents satisfying the Tribunal that there was "good reason" not to proceed by way of written hearing, the Complaint would be disposed of by written hearing. (See: Boodhram v. 2009158 Ontario Limited o/a A Buck or Two #342 and Robert Starmans, 2005 HRTO 29)

3At paragraph 19 of the August 12, 2005 Decision, the Tribunal made the following Order:

a. The Commission shall serve and file its pleadings and provide disclosure, in accordance with the Rules no later than September 15, 2005. Should the Complainant wish to file pleadings, she shall do so by that date, and shall also provide disclosure in accordance with the Rules no later than September 15, 2005.

b. The Tribunal will, subject to paragraphs c, d and e below, conduct a written hearing to determine the merits of the Complaint.

c. If the Respondents object to proceeding by way of written hearing, they shall no later than September 26, 2005, file with the Tribunal and serve on the other parties, submissions as to why there is good reason not to conduct the proceedings by way of written hearing. The Respondents should at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding their objections, the Tribunal determines that it is appropriate to hold a written hearing. The Respondents must also, at the same time, serve and file pleadings and provide disclosure in accordance with the Rules of the Tribunal.

d. If the Respondents file submissions as set out above, the Commission and the Complainant shall have 5 days to file and serve their replies.

e. Should the Respondents object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the case will proceed by written or oral hearing.

f. Should the Respondents fail to provide submissions by September 26, 2005 as set out in paragraph c above, in accordance with section 6(4)(c) of the SPPA, the Tribunal will proceed without the Respondents' participation and the Respondents will not be entitled to any further notice of these proceedings.

g. Should the Respondents fail to provide submissions as set out in paragraph c above, the Commission and the Complainant shall, no later than October 14, 2005, serve and file all evidence, documents, submissions and argument upon which they seek the Tribunal to consider in making a decision on the merits of the complaint and with respect to appropriate remedy.

h. The parties should have reference to the Tribunal's decision in Sanford (2005 HRTO 28) with respect to the nature and form of evidence that the Tribunal may consider in any written hearing which may be conducted in this case. The Registrar shall send all parties a copy of the Sanford decision along with this decision.

i. This Order shall serve as a Notice of Written Hearing.

4The Respondents did not file pleadings, nor did they provide submissions as directed by the Tribunal. The August 12, 2005 Decision was sent to the Respondents by regular mail to the last known address in accordance with the Tribunal's Rules. The Tribunal Registrar has advised that the Decision was returned as "Return to Sender."

5The Tribunal notes, as was outlined in the August 12, 2005 Decision, that the Commission had made various attempts to locate and serve the Respondents. As a result of those efforts, the Commission submitted that the Respondents were attempting to evade service and participation in the processes before the Tribunal.

6The Tribunal accepts the submissions of the Commission that the Respondents, or at least Robert Starmans ("Starmans" or "the Personal Respondent") has been attempting to evade service. Further, it appears that 2009158 Ontario Limited o/a A Buck or Two #342 ("the Corporate Respondent") is no longer an operating business. Therefore, and in view of the various attempts made by the Commission and the Tribunal to serve the Respondents in accordance with Rules 20 and 22 of the Tribunal's Rules, the Tribunal finds that the Respondents have been legally served with the Decision of August 12, 2005. The Tribunal further finds that the Respondents have failed to file submissions as directed by the Tribunal. As a result, in accordance with the Decision dated August 12, 2005 and the Tribunal's Rules, the Tribunal will dispose of this matter by way of written hearing.

7The Tribunal further finds that in accordance with the August 12, 2005 Decision, and the directions and cautions provided to the Respondents therein, the Tribunal shall make its final determination in this matter based only on the materials filed by the Commission.

8The Commission filed written materials in support of its case before the Tribunal. In addition to its written submissions, which included a detailed remedial request, the Commission filed a sworn Affidavit of the Complainant, along with various documents attached to it as exhibits. The Commission also filed an Affidavit of Christine McCloy, Legal Assistant with the Legal Services Branch of the Commission, which attached Corporate Search records in relation to the Respondents.

9The Complainant did not file separate materials, but instead indicated that she was content to rely upon the materials filed by the Commission.

10In reading the Affidavit of the Complainant and reviewing the documents attached as exhibits, the Tribunal finds there is no reason to doubt the cogency and reliability of the Complainant's Affidavit and of the documents presented. The Complainant's story is consistent, both internally and in relation to the documents presented, and has been throughout the relevant period. The Tribunal accepts as uncontradicted evidence all of the statements made by the Complainant in her Affidavit, and accepts into evidence all of the documents attached to her Affidavit. Likewise, the Tribunal accepts into evidence the Affidavit of Christine McCloy and the Corporate Search records establishing that the Respondent Robert Starmans was at all material times the administrator and director of the Corporate Respondent.

FACTS

11The facts of this case are not complex. The evidence establishes that the Complainant was hired as a cashier by 2009158 Ontario Limited o/a A Buck or Two #342 on or about October 1, 2002 and worked in that position until she was terminated on or about December 15, 2002. The Corporate Respondent operated a bargain retail outlet in Ajax, Ontario. The Personal Respondent Robert Starmans was the director and administrator of the Corporate Respondent. He was also the store manager and the direct supervisor of the store employees.

12On or about December 10, 2002 the Complainant suffered an injury at work. While rearranging a store display table at the request of Starmans, the Complainant strained a chest muscle. Starmans and a co-worker asked whether the Complainant wanted an ambulance called. She declined, but called her husband and attended the Ajax Pickering Hospital.

13The Complainant was treated at the hospital on December 10, 2002 and also by her family physician the following day. The Complainant's daughter called Starmans from the hospital to advise that the Complainant would not be at work on December 11, 2002. The Complainant called Starmans on December 11, 2002 after seeing her doctor, to advise that he (the doctor) had recommended that she be off work on December 11, 12 and 13, 2002.

14On December 14, 2002 the Complainant visited the store and spoke to Starmans. She advised that she would be returning to work on Monday, December 16, 2002.

15On December 15, 2002 Starmans called the Complainant and left a message advising that her employment was being terminated. He said that he could not afford to have an employee off sick and that he had hired another person to replace the Complainant. On December 19, 2002, the Respondents provided the Complainant with a Record of Employment confirming that she had been terminated. No severance or termination pay was provided.

16The Complainant was unable to find alternative full-time employment until March 2003, though she did actively look for work and did find some part-time employment through a temporary employment agency.

DECISION

17Based on the uncontradicted evidence, and the submissions of the Commission, the Tribunal has no difficulty finding that the Respondents violated Ms. Boodhram's rights under the Code as alleged.

18The evidence clearly establishes that the Complainant suffered a work related injury which, although not severe or long term, does properly fall within the meaning of disability in section 10 of the Code.

19In Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665, the Court held that a purposive interpretation of human rights legislation must go beyond a simple examination of the biomedical nature of an injury, illness or condition. The emphasis should be on "the effects of the distinction, exclusion or preference rather than the precise nature of the handicap..." (see paragraphs 80 and 81).

20In this case, the Respondents terminated the Complainant because of the injury she suffered at work, the resulting inability to attend work for three days and perhaps most significantly because of a perception that the disability would interfere with business operations and profitability. Starmans stated that he could not afford to have employees off sick. The Respondents made no attempt to accommodate the Complainant, though given the evidence that the Complainant was fit to return to regular duties at the time she was terminated, no accommodation was necessary. In addition, since the Respondents chose not to participate in these proceedings, there is no evidence that the Complainant's absence of three days was or could be considered undue hardship on the employer. In the Tribunal's view, the Respondents' decision to terminate the Complainant in these circumstances is precisely the type of mischief the Code is intended to address and prevent.

21Finally, based on the uncontradicted evidence that Starmans was the directing mind of the Corporate Respondent, the store manager, the Complainant's sole supervisor and made the ultimate decision to terminate the Complainant, the Tribunal finds that the Corporate Respondent and Starmans are jointly and severally liable for the violations of the Code.

REMEDY

22The Commission filed a detailed remedial request. Because the Corporate Respondent is no longer in business, the Commission submitted that it served no purpose to award public interest remedies. The Commission does however seek a damage award on behalf of the Complainant. Based on the submissions of the Commission, the evidence before the Tribunal, the jurisprudence related to appropriate remedies, and the fact that the Respondents have chosen not to participate in these proceedings, the Tribunal sees no reason not to award the remedies sought by the Commission.

General Damages

23The Commission seeks an award of $5,000 in respect of general damages for the breach of the Complainant's rights under the Code. As the Commission correctly pointed out, the Tribunal and the Courts have recognized that there is an intrinsic value to the rights set out in the Code and a breach of those rights will merit the award of general damages. Jurisprudence also recognizes that general damage awards should not be set so low as to trivialize a breach of human rights. See: Shelter Corp. v. Ontario (Human Rights Commission), (2001), 39 C.H.R.R. D/ 111 (Div. Ct.) at paras. 43 and 44; Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 at paras. 126 – 127 (Ont. Bd. of Inq.).

24The Commission provided a number of cases in which general damage awards were made and which set out the criteria to be used in assessing the quantum of general damages. In the present case there was a single incident of discriminatory conduct and the behaviour of the Respondents do not appear to have been with particular malicious intent. Also, there was no evidence presented of mental anguish or distress, and the Commission did not seek damages in that regard. However, Ms. Boodhram's rights under the Code were violated and she is entitled to an award of general damages which recognizes the significance of those rights. Considering the facts of this case and the facts in the authorities provided by the Commissions, the Tribunal finds that the $5,000 sought is reasonable and appropriate. See: Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (No. 2) (1995), 1995 CanLII 18153 (ON HRT), 24 C.H.R.R. D/250 (Ont. Bd. of Inq.) (total award of $7,000 for general damages); Arias v. Desai (2003), 2003 HRTO 1, 45 C.H.R.R. D/308 (H.R.T.O.) (total general damages of $25,000); Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd. of Inq.) (total general damages of $20,000); deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd. of Inq.) (total award of $25,000 for general damages and mental anguish); Baylis-Flannery v. DeWilde (No.2) (2003), 2003 HRTO 28, 48 C.H.R.R. D/197 (H.R.T.O.) (total general damages of $35,000)

Special Damages

25The Commission provided a detailed calculation of Ms. Boodhram's wage loss along with supporting documentation. The calculation is based on what she would have earned with the Respondents between the date of her termination and March 17, 2003 (the date she found other employment), less what she earned elsewhere from part-time work during that period. The Tribunal accepts that calculation and awards $3621.62 in special damages.

Pre- and Post-Judgment Interest

26The Commission seeks pre- and post-judgment interest on the damage awards. The Tribunal finds that this is appropriate and in accordance with the general practice of the Tribunal.

27The Commission claims pre-judgment interest on the general damages from the date of termination to the date of the Tribunal decision. It advises that the applicable rate at that date under the Courts of Justice Act, R.S.O. 1990, c. C. 43 was 3% per annum. The Commission submits that the appropriate date for the commencement of pre-judgment interest on the special damage award is the mid-point between the Complainant's termination and when she found full-time employment. That mid-point date is February 1, 2003. The Commission advises that the applicable rate under the Courts of Justice Act at February 1, 2003 was also 3% per annum.

28The Commission further seeks post-judgment interest on all amounts from the date of this decision.

29The Tribunal finds that the requests for interest are reasonable and appropriate.

ORDER

For the reasons set out above, the Tribunal makes the following Orders:

a) The Respondents shall forthwith pay to the Complainant:

i. General Damages in the amount of $5,000

ii. Special Damages in the amount of $3,621.62

iii. Pre-judgment interest at the rate of 3% per annum on all amounts: pre-judgment interest on the general damages shall run from December 15, 2002 until the date of this decision, and on the special damages from February 1, 2003 until the date of this decision.

iv. Post-judgment interest on all amounts awarded from the date of this decision at the applicable rate pursuant to the Courts of Justice Act.