Ontario Human Rights Commission v. 2008573 Ontario Inc., 2007 HRTO 17

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Denise Dodds

Complainant

-and-

2008573 Ontario Inc. o/a Sharks Sports Pub

Vito Accardo and Tamara Accardo

Respondents

DECISION

Adjudicator: Mary Ross Hendriks

Date: May 25, 2007

Citation: 2007 HRTO 17

Human Rights Tribunal of Ontario 400 University Avenue, 7th 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

APPEARANCES

Ontario Human Rights Commission ) Kikee Malik, Counsel and ) Megan Evans Maxwell, ) Student-at-Law

Denise Dodds, ) Complainant ) On her own behalf

2008573 Ontario Inc., o/a Sharks Sports ) Pub, Corporate Respondent ) No appearance

Vito Accardo, Personal Respondent ) No appearance

Tamara Accardo, Personal Respondent ) No appearance

INTRODUCTION

1The Complaint before the Human Rights Tribunal of Ontario (the “Tribunal”), dated May 11, 2004, involves a woman who claims that her right to equal treatment with respect to employment without discrimination on the basis of sex has been violated. In particular, it states that she was discriminated against and terminated because of her pregnancy, contrary to sections 5(1), 10(2) and 9 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The Complaint was referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) on April 21, 2006 for a hearing.

2The Respondents have not participated in this matter. At the request of the Tribunal by way of letter dated February 12, 2007, the Commission filed an affidavit with exhibits attached, dated March 1, 2007, which confirmed the following:

• Searches have been conducted to verify the Respondents’ last known addresses, including a corporate search.

• The Commission’s pleading and disclosure have been successfully delivered by Purolator courier to the Personal Respondents and to the Corporate Respondent.

• On February 12, 2007, the Hearings Officer for the Tribunal advised Commission counsel in an email that she had been contacted by a paralegal, who said that it was “probable” that he would be representing the Corporate Respondent, and further, that he would contact the Commission if he were retained.

• Commission counsel have had no contact from this paralegal.

3The Tribunal is satisfied that all the Respondents are on notice of this proceeding, that Rule 20 – Service of Documents of the Tribunal’s Rules of Practice has been satisfied, and that they have chosen not to participate.

4The hearing on the merits took place in Toronto on May 14, 2007, in the absence of the Corporate and Personal Respondents, although they were on notice of it, as per the Tribunal’s correspondence of March 14, 2007 and May 7, 2007.

PRELIMINARY MATTERS

5There were a number of preliminary matters in this hearing.

6First, Ms. Evans Maxwell sought leave to enter the evidence of Bipasha Choudhury, Commission Investigator, by way of affidavit, since she very recently had a baby. No one opposed this request. The Tribunal requested that Ms. Choudhury be reached by telephone, to identify her affidavit and exhibit thereto and its contents for the Tribunal. The Commission complied with this request to the satisfaction of the Tribunal, and her affidavit evidence, supplemented by her brief oral evidence, is hereby given full weight. In doing so, the Tribunal relies upon sections 2 and 5.2.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”).

7Secondly, Ms. Evans Maxwell asked the Tribunal to accept the evidence of Christine McCloy, legal assistant at the Commission, by way of affidavit evidence only, since she is in the hospital. The evidence at issue only deals with the record keeping of Human Resources and Skills Development Canada (“HRSDC”) regarding Ms. Dodds’s Employment Insurance file, and is attached to Ms. McCloy’s affidavit by way of exhibit. Under these limited circumstances, the Tribunal hereby grants this request, and hereby gives this evidence full weight, as well, in accordance with sections 2 and 5.1 of the SPPA.

8No witness exclusion order was requested. However, as a practical matter, only Ms. Dodds attended the hearing throughout the day. Thus, Ms. Blais did not hear Ms. Dodds’ earlier testimony, nor was Ms. Choudhury present to hear Ms. Dodds’ evidence.

ISSUE

9The Tribunal considered whether or not the Complainant’s right to equal treatment with respect to employment without discrimination based on sex (pregnancy) was infringed by the Respondents, contrary to sections 5(1), 10(2) and 9 of the Code.

DECISION

10The Tribunal finds that the Complainant has suffered serious discrimination in her employment based on sex, contrary to the Code.

LIST OF WITNESSES

11The Tribunal received sworn oral or written evidence from four witnesses, being the Complainant, and three other individuals, as follows:

(1) Denise Carol Dodds, Complainant, testified on May 15, 2007

(2) Bipasha Choudhury, witness, testified on May 15, 2007 by telephone and submitted a sworn affidavit and exhibits, dated May 8, 2007

(3) Natalie Monique Blais, witness, testified on May 15, 2007

(4) Christine McCloy, witness, who submitted a sworn affidavit and exhibits, dated May 10, 2007

SUMMARY OF EVIDENCE

12The following is a brief synopsis of the relevant evidence heard.

13The Complainant, Ms. Dodds, is a 37-year old woman, who is married with three children, aged five years, three years and six months. She attended university, studying Classical Studies, and then began a varied career, which has included working for venture capital firms and bartending, and a three-year post-university stint in Costa Rica, where she worked in para-sailing, deep sea fishing and selling time-shares. She testified that she has worked off and on since she was 16 years old, although she is currently outside the paid work force in order to take care of her children. She began bartending at the age of 18, and named four different bartending positions that she occupied over a period of many years prior to working for the Corporate Respondent.

14Ms. Dodds testified that she and her husband and child moved into her parents’ home in Richmond Hill from their own residence in the Beaches area of Toronto in May 2003 in order to “help my parents out” when her father had a stroke. She said that she had been bartending in the Beaches until that time. She found the commute to the Beaches from Richmond Hill too difficult, and sought a new position at the Corporate Respondent’s premises, located at 13311 Yonge Street, Richmond Hill.

15Ms. Dodds testified that she walked into the Corporate Respondent’s premises on May 18, 2003. She said that she liked the sports bar set-up, and that she spoke with Sal Scavuzzo, the owner, explained her work experience, and he hired her on the spot as a bartender on the night shift. No contract of employment was executed. She testified that she worked for the Corporate Respondent from May 18, 2003 until October 2, 2003, when her employment was terminated by Mr. Accardo, one of the Personal Respondents.

16She testified that Sharks Sports Pub had two locations, one in Richmond Hill and the other in Woodbridge. She only worked at the Richmond Hill location.

17Ms. Dodds worked as the bartender Tuesday, Thursday and Saturday nights, and some Friday nights if they were busy. Her duties as a bartender included serving the customers, maintaining the bar working area, tidying up and cleaning at the end of the shift, and at the end of the night, “do[ing] the cash.” She said that she was paid $6 per hour, plus tips. She did not receive a raise during the time she worked, nor were there any employment benefits associated with this position. She said that she typically made $450 to $500 per week in tips, and that Thursdays and Saturdays were the best nights. She kept her tips separate, and worked her bartending shift alone. Ms. Dodds identified a copy of her paycheque (Exhibit 1, Tab 6) that indicated that she was paid $6 per hour for a two- week period, in which she worked 60.25 hours and earned $361.50.

18Her evidence about the quantum of tips was supported by the testimony of Ms. Blais, who worked as a server with Ms. Dodds for the Corporate Respondent. Ms. Blais testified that she was paid minimum wage plus tips, and that she averaged between $50–$200 per day in tips, depending on the shift. Occasionally, she worked at the bar, instead of as a server, and testified that when she did, her tips were always at least $100 and up to $300 per day, if they were “crazy busy.” She said that in this industry generally, staff earn more money in tips when working at the bar than when serving. She added that when she is working as a server, she tips the bartender between one and two percent of the price of the drinks she sells, and explained that this is customary. She illustrated this for the Tribunal’s benefit by saying that if she sold $100 in drinks as a server, she would give the bartender $1 as a tip herself.

19In order to obtain a mortgage, Ms. Dodds asked Mr. Accardo to provide her with a letter confirming her employment. He did so, and his signed letter, dated September 11, 2003 (Exhibit 2), provides as follows:

To Whom It May Concern:

This is to confirm that Denise Dodds has been employed by Sharks Sports Pub as our bartender for the last five months.

Denise’s weekly schedule is 30 hours with a pay of $6.00 per hour, however, when calculating her average tips her take home pay works out to be approximately $15-20 per hour.

Trusting this is satisfactory, should you require any further confirmation, please contact the undersigned.

Yours very truly,

Sharks Sports Pub

Vito Accardo

20Ms. Dodds said that both Vito Accardo and Sal Scavuzzo were her managers and supervisors at all material times. However, Mr. Scavuzzo ceased going to the Richmond Hill location in June 2003, because he and Mr. Accardo were arguing about how to run the pub. After June 2003, only Mr. Accardo regularly worked at the Richmond Hill location. Ms. Dodds testified that they appeared to have some sort of partnership, and that she had been told by another employee that Mr. Accardo or his family had invested money in the Richmond Hill location.

21Tamara Accardo is Vito Accardo’s wife. Ms. Dodds testified that Ms. Accardo instructed the employees and acted in a manner that suggested she thought she was senior to the other employees.

22Ms. Dodds testified that Mr. Accardo was a volatile manager, who frequently yelled at staff, accused them of stealing, and accused the servers of hiding secret credit card machines in their uniforms in order to steal customers’ credit card numbers. She saw Mr. Accardo have a scene with one server over this allegation, which she believed was completely unfounded. None of the employees he accused of stealing were ever fired while she worked at this location. Her testimony in this regard was supported by the viva voce testimony of Ms. Blais, who worked with Ms. Dodds and was a server at this location at all material times. She also described Mr. Accardo as a difficult and unpredictable manager who accused staff of stealing when there was no objective reason to believe that this had occurred.

23Both Ms. Dodds and Ms. Blais testified that various small sums of money were deducted from their paycheques to compensate for alleged shortages of cash or alcohol, although Mr. Accardo would not provide any particulars of these alleged shortages, and that unlike at the other bars that both Ms. Dodds and Ms. Blais had previously worked, employees were not permitted to see their sales print-outs nor count their final cash. They both testified that they had to rely on Mr. Accardo’s word that they had been short a certain amount, and that this was an unusual practice in this industry.

Her Pregnancy

24By July 2003, Ms. Dodds knew that she was about six weeks pregnant with her second child. She testified that she planned to work up until the month before the baby was due, in late March 2004. She had successfully worked throughout her first pregnancy, and because she was helping her parents financially when her father was ill, and trying to buy another house for her own family, she needed her income.

25Ms. Dodds anticipated that management would not respond well to her news, and so she only told one work friend in confidence about her pregnancy. Ms. Blais confirmed this in her own testimony, and said that she did not tell anyone else about Ms. Dodds’s pregnancy, because it was “private” information.

The First Incident: Her Hospital Visit in August 2003

26In August, 2003, Ms. Dodds testified that she was working her bartending shift but became very sick and had to go to the hospital. This situation forced her to tell Mr. Accardo that she was pregnant.

27Ms. Dodds said that Mr. Accardo replied, “well, are you going to work?” She testified that she assured him that she was planning on working throughout her pregnancy. Ms. Dodds said that his comment made her uneasy and that she felt like a “target.”

The Second Incident: You Will Soon Be Leaving the Pub

28On her next shift, Ms. Accardo asked her what her work-related plans were now that she was pregnant. She said that Ms. Accardo told her that she was upset that Ms. Dodds was pregnant, because it meant that she would soon be leaving the pub. However, Ms. Dodds replied that she intended to remain at the pub until the end of her pregnancy. She said that Ms. Accardo responded that she would not want to work throughout her pregnancy.

The Third Incident: How Long Do You Intend to Work?

29On the following shift, Ms. Accardo approached her again and brought up the subject of how long she intended to work at the pub. Ms. Dodds testified that she reassured her again that she intended to work at the pub until the end of her pregnancy. Ms. Dodds felt very uncomfortable by Ms. Accardo’s repeated questioning, and felt that Ms. Accardo was really asking these questions on behalf of her husband.

30Ms. Dodds testified that Ms. Accardo asked her how long she intended to work on several separate occasions.

The Fourth Incident: Pressure to Change to a Less Lucrative Bartending Shift

31Ms. Dodds testified that Ms. Accardo tried to persuade her to change her night shift to a day shift, which was much less lucrative. Ms. Dodds insisted that she wanted to keep her night shift. Shortly thereafter, Mr. Accardo told her that she looked tired and that she ought to change to the day shift.

The Fifth Incident: Mr. Accardo’s Remark to Ms. Blais About Replacing Ms. Dodds

32Ms. Blais testified that Mr. Accardo had initiated a conversation in which he disclosed that Ms. Dodds was pregnant, and that he would have to find someone to replace her. Ms. Blais quoted him as saying, “Great, now I have to find another bartender.” Ms. Blais said that she responded by sharply telling Mr. Accardo that Ms. Dodds was “pregnant not handicapped.”

33Ms. Dodds had testified earlier that she had been advised by Ms. Blais of Mr. Accardo’s remark, and that she did not confront Mr. Accardo. She said that she did not want to “rock the boat” and that she was trying to avoid him and any confrontations with him, which she described as her efforts to “fly under his radar.”

The Sixth Incident: Mr. Accardo’s Reaction to Lifting the Bar Stools

34As Ms. Dodds’s pregnancy progressed, she was unable to lift the wooden bar stools on top of the bar at the end of her shift, which she estimated weighed 30-40 pounds each. She had to ask Mr. Accardo to do it on her behalf. She said that he did it “grudgingly” with his cousin, Leo, and that he “slammed them on the table,” to show her that “he was not pleased.”

The Seventh Incident: Her Termination

35Ms. Dodds had to undergo some genetic testing on her pregnancy, and disclosed this to management because she needed to take one night off, since the test was very early the following morning. (The result was normal and the balance of her pregnancy was uneventful.) Just before she went to this genetic appointment, Mr. Accardo asked her if she wanted to switch to the dayshift. He said, “Are you tired and do you want to switch to days?” She said that she replied that she was not tired and did not want to switch.

36She returned to work on her next scheduled shift on October 3, 2003. When she returned to Sharks Sports Pub, she felt uneasy, and said that Leo, who was also a manager, watched her very closely all night. She said that Leo normally moved throughout the pub, and that this was very unusual behaviour. Despite this, Ms. Dodds tried to speak to Leo in a friendly manner, but did not receive any response. Instead, he continued to watch her all night, observing everything she did.

37Ms. Dodds testified that at the end of her shift, after the pub had closed, Mr. Accardo accused her of incorrectly charging the band singer for her food, and began yelling from his office, “That’s it, that’s it, it’s over! You’re out of here! It’s over, it’s over!!!! I hope it was worth it.” She denied his accusation and tried to explain what she had done, but he carried on yelling that it was “over.” Ms. Dodds said that she turned to Leo and said, “You know I haven’t done anything,” but he simply shrugged. She knew that Mr. Accardo was firing her. She angrily told him that he was “crazy,” that “I hadn’t done anything,” and that he could “not do this” and that she would “go to the Labour Board.” He replied, “Go ahead.”

38None of Mr. Accardo’s remarks made any sense to Ms. Dodds, since the singer had paid Leo and the orders were computerized. Mr. Accardo told her to “leave.” Ms. Dodds left the pub that evening at about 4 a.m., and called the pub the next day to discuss it, feeling “very upset”.

Post-Termination: Management Accuses Her of Stealing Beer

39When she called the pub the next day, she spoke to Leo, who said that her “weights were off” and suddenly accused her of stealing about 300 ounces of draft beer the night before. She vigorously denied this accusation. She asked them for proof, and even requested that they have the police charge her with theft, but they refused. Her reaction was profound, stating, “I can’t believe this is how they’re going to do this to me…they don’t want me there any more because I was pregnant.”

Her Attendance at the Pub on October 14, 2003

40She testified that she went to pick up her final paycheque from the pub on October 14, 2003, and that Mr. Accardo and Leo were both present, but that Mr. Accardo would not speak to her.

41Tellingly, while deductions were routinely made for alleged shortages, the one time she was accused of stealing, no deductions had been made from her final paycheque. When she confronted Leo about this discrepancy, he did not answer her.

42Once again, she demanded proof that she had stolen beer, and asked to be charged by the police again, but Mr. Accardo and Leo both refused. She also asked to see the security videotapes from October 3, 2003, but this request was also refused.

Refusal to Provide her Record of Employment

43Ms. Dodds testified that during this meeting of October 14, 2003, she asked Mr. Accardo and Leo for her Record of Employment (“ROE”), but Leo said that the accountant had it. When she asked for the accountant’s contact information, neither Leo nor Mr. Accardo would provide her with it.

Ms. Dodds Conversation with Mr. Scavuzzo

44After her termination by Mr. Accardo, Ms. Dodds contacted Mr. Scavuzzo and asked him to help her. She said that she advised him that she was pregnant and that she had been fired for allegedly stealing beer. She did not believe that he was surprised to learn of her pregnancy. He admitted to her that Mr. Accardo had not handled this situation appropriately, but that he was giving Mr. Accardo “enough rope to hang himself with.” She interpreted this comment as a reference to the division of management powers between them. In any event, Mr. Scavuzzo told her that he would hire her back if he took over management of that location, and that he would write her a letter of reference, saying that he hoped they could “deal with the situation quietly.”

45Ms. Dodds believed that Mr. Scavuzzo would be able to resolve this matter on her behalf, since Mr. Scavuzzo and Mr. Accardo appeared to be business partners. However, she never heard from him again, despite leaving him several messages.

46Because management had failed to provide her ROE, she had to obtain it from HRSDC.

47Ms. Dodds testified that she only found out about a week before she gave birth that she was 30 hours short of qualifying for maternity or parental leave benefits. She was able to work for her aunt’s catering company to make up the missing hours, but she was denied full benefits since her average insurable hours were very low in the weeks prior to the birth of her child.

Mr. Scavuzzo’s Statements to the Commission’s Investigator

48Ms. Choudhury confirmed in her telephone and afffidavit evidence that she interviewed Mr. Scavuzzo, in her capacity as Commission investigator. Attached to her to affidavit as Exhibit “A” was a redacted copy of her “Record of Contact” dated January 5, 2006. As paragraph 9 of her affidavit, she explained that she had redacted the portions of the conversation that concerned settlement and other financial discussions, which the Tribunal accepts is both appropriate and proper for evidence at a hearing. She immediately recorded her telephone conversation with Mr. Scavuzzo, which was the result of her call to him when he failed to attend their scheduled meeting.

49Ms. Choudhury averred in her affidavit, at paragraph 8, the following information about this conversation, which is set out verbatim:

(a) Mr. Scavuzzo stated that he could understand why Ms. Dodds may have felt that she was fired because she was pregnant.

(b) Mr. Scavuzzo stated that Mr. Accardo had advised him he had evidence of Ms. Dodds’ alleged beer theft, but that Mr. Scavuzzo had never seen it.

(c) Mr. Scavuzzo stated to me that Ms. Dodds had not been “realistic” in her expectations to work as a pregnant woman in a pub until her due date.

(d) Mr. Scavuzzo stated that he would not have allowed a pregnant woman to work at Sharks Sports Pub past 4 to 5 months of pregnancy.

(e) Mr. Scavuzzo stated that Ms. Dodds had requested his assistance, but that he had not done anything to assist her.

ANALYSIS

The Credibility of the Parties and Witnesses

50The Tribunal finds that Ms. Dodds and her witnesses were credible and forthright throughout the proceeding, and relies on the test established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357, against the evidence heard and presented, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasaonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

Adverse Inference Based on Failure to Adduce Evidence

51The Commission has asked the Tribunal to draw an adverse inference from the Respondents’ failure to adduce any evidence in this proceeding.

52The Respondents have demonstrated a blatant disregard for the Tribunal’s proceeding, and have offered no explanation to the Tribunal for their alleged conduct towards the Complainant.

53The Tribunal has the discretion to draw such an adverse inference, and under the circumstances, believes that it is appropriate to do so, see: Fuller v. Daoud, [2001] O.H.R.B.I.D. No. 19 at para. 56 (Ont. Bd. Inq.); and Duong v. Garai (2000), CHRR Doc. 00-172 (Ont. Bd. Inq.).

Relevant Provisions of the Code

54The relevant portions of the Code are as follows:

5(1) Employment - Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

9. Infringement prohibited – Infringement prohibited – No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10(2) Pregnancy – 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.

55The jurisprudential basis of subsection 10(2) of the Code was the decision of the Supreme Court of Canada in Brooks v. Canada Safeway Ltd. (1989), 1989 CanLII 96 (SCC), 10 C.H.R.R. D/6183 (S.C.C.), at para. 44392, where it held, inter alia:

….Discrimination on the basis of pregnancy is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant.

56Thus, the law pertaining to sex discrimination in employment clearly includes discrimination based on pregnancy. Moreover, even if only one of the reasons for an employee’s dismissal is her pregnancy, then a violation of the Code has occurred, see: Riggio v. Sheppard Coiffures Ltd. (1987), 1987 CanLII 8492 (ON HRT), 9 C.H.R.R. D/4520 (Ont. Bd. Inq.).

57Based on the repeated incidents of pregnancy-related discrimination outlined above, the Tribunal is satisfied that Ms. Dodds’ termination was motivated by discriminatory animus against her for being pregnant. Her termination occurred immediately after she missed her shift because she had a pregnancy-related medical appointment to attend.

58The Respondents failed to provide her with any evidence of her alleged theft, nor did they pursue criminal charges against her. Even though it was their normal practice to deduct amounts from paycheques for alleged minor and unproven discrepancies, the Tribunal accepts Ms. Dodds’ uncontroverted evidence that no deduction was made from her final paycheque for the allegedly stolen beer. The Tribunal finds that the Respondents fabricated the story about stolen beer as a pretext to fire her, since she had repeatedly resisted their efforts to pressure her out of her employment.

LIABILITY

59The Tribunal finds that Ms. Dodds’ rights were directly infringed by Mr. Accardo, as follows:

• when he demanded, “well, are you going to work?” when she needed to go to the hospital

• when he began discussing the need to find a new bartender upon learning of her pregnancy with Ms. Blais, on the unfounded assumption that Ms. Dodds would not return

• when he tried to persuade her to leave her job early

• when he complained about having to assist her with the bar stools

• when he asked her to change shifts telling her that she looked “tired”

• when he wrongfully terminated her employment

• when he lied and said that she had not calculated a bill properly at the time of her termination

• when he fabricated a story the next day that she had stolen beer as a pretext for his wrongful termination of her

• when he refused to provide her with her ROE subsequent to her termination

• when he refused to allow her to see the security videotapes after he accused her of theft

60The Tribunal finds that Ms. Dodds’ rights were indirectly infringed by Ms. Accardo, who was assuming the role of management on behalf of her husband, as follows:

• when she repeatedly approached Ms. Dodds asking how long she planned to work while pregnant

• when she responded disapprovingly to Ms. Dodds stated intention to work throughout her pregnancy

• when she tried to persuade Ms. Dodds to change her shift to the daytime, which was much less lucrative

61The Corporate Respondent is vicariously liable under subsection 45(1) of the Code for these acts.

62Moreover, once Ms. Dodds contacted Mr. Scavuzzo immediately after being terminated by Mr. Accardo, and explained that she was pregnant, had suddenly been terminated and wrongfully accused of theft, as the owner and director of the Corporate Respondent, he needed to take some reasonable steps in order to comply with the Code.

63According to Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 at para. 160 (Ont. Bd. Inq.), there are six elements that a reasonable employer ought to fulfill in response to an allegation of discrimination:

(i) the response must be prompt

(ii) there must be corporate awareness that the conduct complained of is prohibited

(iii) the matter must be dealt with seriously

(iv) there must be a complaint mechanism in place

(v) the corporate respondent must act so as to provide a healthy work environment

(vi) management must communicate its actions to the complainant

64The Tribunal has cited the Wall test with approval in several subsequent cases, see: Moffatt v. Kinark Child and Family Services (No.4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205, at para. 234 (Ont. Bd. Inq.); Murchie v. JB’s Mongolian Grill, [2006] O.H.R.T.D. No. 36 at para. 165 (HRTO); and Jones v. Amway of Canada Ltd. (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 at para. 74 (Ont. Bd. Inq.).

65The onus on the employer to take these steps flows from the practical problem that without taking positive action, the protection of the Code is rendered meaningless. The passage set out below from Laskowska v. Marineland of Canada Ltd. (2005), 2005 HRTO 30, 53 C.H.R.R. D/262, at para. 53 (HRTO), is hereby cited with approval:

It would make the protection under s.5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe environment.

66Mr. Scavuzzo’s response to Ms. Dodds’ request for assistance after she was terminated failed to meet the Wall test. Further, he offered to assist her “quietly” and then refused to take her phone calls, thus acquiescing to the discriminatory conduct of his staff. The Corporate Respondent is liable for his failure to investigate her internal complaint of discrimination.

REMEDY

General Damages

67The Divisional Court held in Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 at paras. 43-44 that there is an “intrinsic value” attached to the right to be free from discrimination, and that not only is there no ceiling on general damages awards, but that the awards should not be so low as to trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate.

68Ms. Dodds endured repeated incidents of pregnancy-related discrimination despite her efforts to “fly under the radar” and avoid confrontation, at a time when she was vulnerable. She was four months pregnant, and terminated immediately after missing a shift to undergo genetic testing, of which they were aware. First she was accused of improperly billing a customer, and then she was wrongfully accused of a theft of beer that she did not commit. The Tribunal finds these allegations were pretexts to justify her termination. The owner of the Corporate Respondent did nothing to investigate or assist her despite the fact that she made an internal human rights complaint, and in fact, misled her about taking back control of the Richmond Hill location and reinstating her in her position, and then refused to accept her telephone calls.

69In light of the foregoing, the Tribunal finds that $10,000 is an appropriate award for general damages.

Mental Anguish

70The Tribunal is more than satisfied that the Corporate Respondent was reckless when Mr. Scavuzzo failed to respond to Ms. Dodds’ complaint that she was terminated because she was pregnant. In making this finding, the Tribunal relies upon the Divisional Court’s finding in Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC), [2005] O.J. No. 377 at para. 6 that the failure of a directing mind to respond to a complaint amounted to at least recklessness.

71The Tribunal further finds that the Personal Respondents wilfully engaged in discriminatory conduct against Ms. Dodds, to drive her from her job. Ms. Dodds’ testimony in this regard is buttressed by that of Ms. Blais, who said that Mr. Accardo told her that he was going to have to find another bartender now that Ms. Dodds was pregnant.

72The Tribunal accepts her testimony that the actions of the Respondents ruined what should have been a happy time for her. She testified that her mortgage was withdrawn after she lost her job, that she was no longer able to help support her parents or contribute financially to her own family finances. She was humiliated, and felt that she had unfairly burdened her husband. She had to obtain her ROE from HRSDC because the Respondents would not give it to her or tell her how she could contact the accountant who supposedly had it. She had to suddenly work in her aunt’s catering business to make up missing hours in order to qualify for maternity benefits only a week before she gave birth. She described herself as a “stigma.” The Tribunal further accepts her painful testimony that until an employee of the Commission told her that she was sorry that this had happened to her, no one wanted to believe her. Not only had she lost her job unfairly, she had lost a good deal of self-esteem and standing within the community when she was four months pregnant.

73The Tribunal finds that $5,000 is an appropriate award for mental anguish.

Special Damages

74The Tribunal relies upon subsection 41(1)(b) of the Code to permit it to make the Complainant financially whole, which in this instance, includes lost wages, tips and lost maternity and parental benefits. It is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy to make up for any shortfall in eligibility requirements to qualify for full maternity leave and parental benefits. See: Metcalfe v. Papa Joe’s Pizza & Chicken Inc. 2005 HRTO 46 at para. 10; Lavender v. 944369 Ontario Ltd. (No.2) (1998), CHRR Doc. 98-180 (Ont. Bd. Inq.); Roberts v. Club Expose (1993), 1993 CanLII 16435 (ON HRT), 21 C.H.R.R. D/60 (Ont. Bd. Inq.); Jodoin v. Ciro’s Jewellers (Mayfair) Inc. (1996), 1996 CanLII 20058 (ON HRT), 25 C.H.R.R. D/39 (Ont. Bd. Inq.); and Grieves v. Admiral Sub (June 13, 1994), C.H.R.R. NP/94-71 (Ont. Bd. Inq.).

75The Tribunal finds that her lost wages for the 20-week period from which she was fired until the date that she would have stopped working amount to $3,600.

76The Tribunal notes that Ms. Dodds testified that she made on average between $450 and $500 per week in tips, and this evidence was credible and supported by the evidence of Ms. Blais. The Tribunal finds that her lost tips for this 20-week period are $9500.

77Ms. Dodds only received $1,200 in maternity and parental leave benefits following the birth of her son in March 2004. She received $24 per week for 50 weeks. See: Exhibit 1, Tab 7 (her 2004 income tax return); Exhibit 1, Tab 8 (her 2005 income tax return), and Exhibit 4 – B (letter from HRSDC attached to the Affidavit of Ms. McCloy).

78The Tribunal accepts her evidence that she planned to work at the Corporate Respondent until February 19, 2004, and would have done so. Thus, her average total weekly income in the 26 weeks before she began her maternity leave would have been $180 in wages plus $475 in tips or $655. This amount is multiplied by 55 percent in order to obtain her weekly benefit amount, which equals $360.25, which falls well below the Federal Government’s ceiling set at $423 per week. The Tribunal then multiplies $360.25 by 50 weeks, which is $18,012.50, and subtracts the $1,200 she received. Thus, Ms. Dodds is entitled to $16,812.50 as compensation for her lost maternity and parental benefits.

Pre- and Post-Judgment Interest

79The Commission has sought pre- judgment interest, in accordance with section 127 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. Since her Complaint is dated May 11, 2004, pre-judgment interest is awarded at 2.8 percent per annum, from May 14, 2004, to allow time for service. See: Hom v. Impact Interiors Inc. (1993), 1993 CanLII 16449 (ON HRT), 23 C.H.R.R. D/345 at para. 17 (Ont. Bd. Inq.); rev’d (1995) 1995 CanLII 18145 (ON CTGDDC), 23 C.H.R.R. D/348 (Ont. Div. Ct.); rev’d (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont.C.A.).

80The Commission has also sought post-judgment interest, in accordance with section 127 of the Courts of Justice Act, supra. It is hereby awarded from thirty days after the date of this Order, at 6 percent per annum.

Public Interest Remedies

81In the Commission’s final submission, it sought an order that the Corporate Respondent develop anti-discrimination policies for all the businesses which it operates, including anti-discrimination policies in regard to pregnant employees, and that such policies be disseminated to its employees.

82It is clear that the Corporate Respondent does not appreciate the seriousness of its violation of the Code nor the impact of its actions. For this reason, the Tribunal adopts the suggestion that the Corporate Respondent develop anti-discrimination policies for its workplaces, in accordance with subsection 41(1)(a) of the Code.

ORDER

83The Respondents are jointly and severally ordered to pay Denise Dodds the following amounts within thirty days of this Order:

(1) $10,000 as compensation for her loss of dignity resulting from the repeated infringement of her rights under sections 5(1), 9, and 10(2) of the Code

(1) $5,000 as compensation for her mental anguish caused by the infringement of her rights

(2) $3,600 as compensation for her loss of her pay

(3) $9,500 as compensation for her loss of her tips

(4) $16,812.50 as compensation for her loss of maternity and parental benefits

(5) Pre-judgment interest on these awards, commencing on May 14, 2004, fixed at 2.8 percent per annum, and post-judgment interest on all of the above under section 127 of the Courts of Justice Act, supra, fixed at 6 percent per annum, commencing thirty days from the date of this Order.

84Moroever, the Corporate Respondent is ordered to develop anti-discrimination policies for all the businesses which it operates, including anti-discrimination policies in regard to pregnant employees, and that such policies are to be disseminated to its employees within three months of the date of this Order, and proof of same produced to the Commission at the same time.

85Ms. Evans Maxwell is commended for her excellent presentation of this case, under the direct supervision of Ms. Malik.