HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Sylvie Lestage Complainant
-and-
Rénozone Express Inc. and Mario Labre Respondents
DECISION
Adjudicator: Caroline Rowan
Date: January 11, 2007
Citation: 2007 HRTO 2
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
INTRODUCTION
1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”) by Ms. Sylvie Lestage (“the Complainant”) alleging that the Respondents, Rénozone Express Inc. and Mr. Mario Labre, infringed sections 5(1) and 9 of the Code.
2In an interim decision dated October 23, 2006, the Tribunal decided that it was appropriate in the circumstances to issue a Notice of Written Hearing. In that decision, the Tribunal further held that the Complaint would be disposed of by written hearing in the absence of one of the parties satisfying the Tribunal that there was “good reason” for not doing so.
3At paragraph 20 of the October 23, 2006 decision, the Tribunal made the following Order:
a. The Tribunal will, subject to paragraphs b, c and d below, conduct a written hearing to determine the merits of the Complaint.
b. If the Complainant or the Respondents object to proceeding by way of written hearing, they shall no later than November 8, 2006 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 and at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding their objection, the Tribunal determines that it is appropriate to hold a written hearing.
c. If any submissions are filed as set out above, the other parties shall have 5 days thereafter to file and serve their replies.
d. Should any of the parties 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.
e. Should no objection be received as set out in paragraph b above, the Commission and the Complainant shall, no later than November 22, 2006 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.
f. The Respondents shall, no later than December 6, 2006 file any responding material.
g. In the event that a party does not object to proceeding by way of written hearing as contemplated under b above and fails to participate in the hearing in accordance with this notice, the Tribunal may proceed without that party’s participation and that party will not be entitled to any further notice in the proceeding.
h. This Order shall serve as a Notice of Written Hearing.
4Copies of the October 23, 2006 Interim Decision were sent to all of the parties by Purolator Courier. The Tribunal Registrar advises that the copy of the decision sent to the Corporate Respondent at 378 Front Road West, Hawkesbury, Ontario Canada K6A 2R2 was returned as undeliverable. Given that a copy of the decision was also sent to the Corporate Respondent at 1010 Spence Avenue, Hawkesbury, Ontario Canada K6A 3H9, which is the last registered address of the Corporate Respondent listed on file with the Ministry of Consumer and Business Services [now called the Ministry of Government Services, Companies and Personal Property Security Branch], the Tribunal is nonetheless satisfied that both Respondents were duly served with the Tribunal’s Interim decision of October 23, 2006, but failed to file submissions as directed.
5Neither the Complainant nor the Respondents objected to this matter proceeding by written hearing on the merits within the time required by the October 23, 2006 Interim Decision. In the circumstances, and in the absence of any objection from the parties, the Tribunal will proceed to dispose of this matter by way of written hearing.
6By correspondence dated November 16, 2006, the Commission filed with the Tribunal copies of the affidavit of the Complainant and its written submissions in accordance with the directions in the Tribunal’s Interim Decision in this matter dated October 23, 2006. The Complainant did not file any additional material. In accordance with the October 23, 2006 Interim 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.
7Having reviewed the Affidavit of the Complainant and the documents attached to it as exhibits, the Tribunal finds no reason to doubt the uncontradicted evidence before it concerning the circumstances leading to the termination of the Complainant’s employment by the Respondents.
FACTS
8The Complainant started working for the Corporate Respondent in February of 2003 as an accounting clerk. Her supervisor was Mario Labre.
9On May 4, 2003, the Complainant was injured in an automobile accident. On May 5, 2003, the Complainant advised Mr. Mario Labre about her injuries and about the fact that she could not return to work immediately. At this point, the Complainant was aware that she was injured because she could not lift her arm, but did not yet have a precise diagnosis.
10After an appointment with her doctor on May 6, 2003, the Complainant advised Mr. Mario Labre that her doctor had advised her that she needed to take a week off work while awaiting the results concerning her x-rays from a specialist in Ottawa. The Complainant was subsequently diagnosed as having a fractured scapula. On May 12, 2003, the Complainant’s doctor recommended that she take four weeks off work as sick leave.
11On May 13, 2003, the Complainant advised Mr. Mario Labre that her doctor had advised her to take four weeks off work. At this time, she spoke to both Mr. Jacques Labre, the owner of the Corporate Respondent, and Mr. Mario Labre and she submitted two medical certificates to support her need for a medical leave of absence.
12On May 21, 2003, Mr. Mario Labre advised the Complainant by telephone that her employment was terminated due to misconduct. There had, however, never previously been any suggestion of improper conduct on her part. Instead, during the course of her employment, she had been told that she did good work and that she was competent. Since there had never been any previous reference to problems or complaints regarding her work, the Complainant believes that her employment was terminated because of her need for a medical leave of absence.
13The Complainant’s employment was terminated at a time when she had recently suffered a major physical injury and she felt vulnerable. The termination of her employment made her feel disposable and was an attack on her dignity.
14At the time of her termination, the Complainant was earning $15.00 per hour and was working thirty-five (35) hours a week. She was therefore earning $525.00 per week. The Complainant was able to work part-time hours in September 2003 and started working part-time for Accounting and Tax Solutions in September 2003 until October 27, 2003 when she started working full-time hours there. When working full-time hours with Accounting and Tax Solutions, the Complainant earned $189.00 less per week than she had earned with the Corporate Respondent.
15The assets of the Corporate Respondent were sold as of February 26, 2004.
DECISION
16The relevant provisions of the Code read 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, age, record of offences, marital status, family statur or disability.
Infringement prohibited – No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) Definitions – In part I and in this Part,
“disability” means,
i. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
ii. a condition of metal impairment or a developmental disability,
iii. a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
iv. a mental disorder, or
v. an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;
17In the present case, the Tribunal finds, on the undisputed facts before it, that at the time the Complainant’s employment was terminated on or about May 21, 2003, the Complainant suffered from “a physical disability or infirmity … caused by bodily injury” in that she had a fractured scapula caused by a motor vehicle accident and could not lift her arm. The Tribunal therefore finds that the Complainant suffered from a “disability” within the meaning of the Code at the relevant time.
18The Tribunal further finds, on the undisputed facts before it, that the Respondents’ decision to terminate the Complainant’s employment on or about May 21, 2003 was at least in part related to her disability and therefore that the Respondents breached section 5 of the Code. A reasonable inference that the Complainant’s disability was a factor in the decision to terminate her employment arises from the timing of the decision to terminate the Complainant’s employment ostensibly for misconduct and from the fact that no complaints had previously been made regarding the Complainant’s conduct before May 2003. The decision to terminate her employment occurred shortly after she advised the Respondents that she required time off work because of her injury. The Respondents have also failed to provide any explanation regarding the reasons for its decision to terminate the Complainant’s employment and to explain its timing. In the circumstances, the Tribunal draws an adverse inference from the Respondents failure to provide an explanation: see Cugliari v. Telefficiency Corp. (No.2), 2006 HRTO 7 at para. 27.
19The Complainant further suffered damages as a result of the Respondents’ decision to terminate her employment in breach of section 5 of the Code. The Tribunal finds that the Respondents are jointly and severally liable to pay for those damages.
20The Tribunal accepts as accurate the Commission’s calculation of special damages in the total amount of $3,651.00. This amount represents the difference between the wages she earned in the period from September 2003 to February 2004 when she worked at Accounting and Tax Solutions and the wages she would have earned at Rénozone Express Inc. during this same period. No claim has been advanced for special damages beyond February 26, 2004 when Rénozone Express Inc. sold its assets and for this reason no claim for special damages has been considered beyond that date. In the period from September 2003 to October 27, 2003, the Complainant worked part-time at Accounting and Tax Solutions earning an hourly rate of $12.00 rather than the hourly rate of $15.00 per hour that she had earned at Rénozone Express Inc. She therefore suffered damages in this period totalling $438.00 based on 146 hours worked. In the period after October 27, 2003, when the Complainant started working full-time at Accounting and Tax Solutions until February 26, 2004, the Complainant’s losses in this 17 week period are calculated at $3,213.00. This amount is based on the difference between her full-time weekly wages of $525.00 earned at Rénozone Express Inc. and her full-time weekly wages of $336.00 earned at Accounting and Tax Solutions (i.e. [$525.00 minus $336.00] multiplied by 17 weeks = $3,213.00). Her total wage loss is therefore calculated as $3,213.00 plus $438.00 = $3,651.00.
21The Commission also seeks an order that the Respondents pay to the Complainant general damages in the amount of $5,000.00. In support of its claim, the Commission relies on the decision in Foster Wheeler Ltd. v. Ontario Human Rights Commission (1987), 1987 CanLII 8514 (ON HCJDC), 8 C.H.H.R. D/4179 (Ontario Div. Ct.) for the proposition that general damages flow directly from the discriminatory act. In all the circumstances of this case, including the fact that the termination of the Complainant’s employment contrary to the Code came at a time when the Complainant felt particularly vulnerable and constituted an attack on her dignity, the Tribunal finds it appropriate to award $5,000 in general damages to the Complainant.
22The Commission also seeks an award of pre-judgement interest to the Complainant on all monetary amounts awarded herein calculated as follows:
i. Special damages – interest at 3% per annum from the end of February, 2004 to the end of November, 2006: $3,651 x 3% x 2.75 years = $301.00.
ii. General damages – interest at 3% per annum from the end of May, 2003 to the end of November, 2006 - $5,000.00 x 3% x 3.5 years = $525.00.
The Tribunal finds it appropriate to award pre-judgement interest and accepts the Commission’s calculation as accurate.
23The Commission does not seek any public interest remedies in this case given that Rénozone Express Inc. has ceased operating. No public interest remedies are therefore awarded in this case.
ORDER
24Having regard to the Tribunal’s finding that the Respondents breached section 5 of the Code and that the Respondents are jointly and severally liable to pay the above damages to the Complainant, the Tribunal makes the following Order pursuant to subsection 41(1)(b) of the Code:
- the Respondents, Rénozone Express Inc. and Mario Labre, are jointly and severally liable to pay forthwith to the Complainant, Sylvie Lestage, the following amounts:
(a) special damages in the amount of $3,651
(b) general damages in the amount of $5,000
(c) prejudgement interest calculated thereon in the total amount of $826.00.
Dated at Toronto, this 11th day of January, 2007.
“Signed By”
Caroline Rowan
Member