HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Janet Pridham
Complainant
-and-
En-Plas Inc.
Sandra Rosario
Respondents
DECISION
Adjudicator: Ian Anderson
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 ) Brian Smith, Counsel
Janet Pridham, Complainant ) On her own behalf
En-Plas Inc., Corporate Respondent ) Sandra Rosario
Sandra Rosario, Personal Respondent ) On her own behalf
Introduction
1Janet Pridham was employed by En-Plas Inc. Her supervisor was Sandra Rosario. Pridham laid off work due to depression on August 12, 2002. Her employment was terminated effective December 29, 2002 by a Record of Employment of the same date.
2Pridham claims that she contacted Rosario about returning to work on or about December 5, 2002, and that Rosario told her that her employment was being terminated because of her disability.
3Rosario denies that Pridham contacted her at that time. Rosario claims that the employer had little or no contact from Pridham after she ceased working until December 20, 2002. About a week before Rosario had concluded that Pridham abandoned her employment and requested the Record of Employment be issued. The Record of Employment indicates that Pridham “left because of illness and never returned”.
4Pridham and the Commission take the position that, even on Rosario’s version of events, the employer was subject to a positive obligation to contact Pridham prior to terminating her employment. Accordingly, they state on either version of events En-Plas and Rosario discriminated against Pridham by terminating her employment and failing to accommodate her, contrary to sections 5(1) and 9 of the Ontario Human Rights Code.
5The Commission and Pridham seek an award of special damages for loss of wages and benefits, general damages and pre-judgment and post-judgment interest. The Commission also seeks certain public interest remedies against En-Plas.
Facts
6Pridham commenced employment with En-Plas on September 26, 2000, working in an accounting position. She was hired by, and reported to, Rosario. Rosario is the controller for En-Plas and is also responsible for human resources issues. She reports directly to the owners.
7In April 2001, Pridham experienced some problems with anxiety. She saw her family doctor, Dr. Ying. Dr. Ying provided her with a note dated April 25, 2001, which stated that “she should be off work until further notice”. Pridham states that she showed a copy of the note to Rosario. Pridham states that Rosario “didn’t say no, however, she said that sometimes when you stop it might be hard to get started again”. Pridham did not take a break at that time.
8In August 2002, Rosario went away on vacation. She returned on August 12, 2002. Pridham states that on that day she went to work as normal but then “just felt something snap”. She called Dr. Ying to make an appointment, told Rosario that she was not feeling well, needed to leave, did not know when she would be back and would be in touch. She then left.
9En-Plas did not pay sick leave, and has no written policies with respect to leaves. At the hearing, however, Rosario states that before Pridham left on August 12, 2002, she told Pridham that she was not going to stay in touch with Pridham, rather it was Pridham’s responsibility to be in touch with her. Pridham denies that Rosario made such a statement. Rather, she says that as she was leaving she told Rosario that she would call her after she went to her doctor and that she in fact did so.
10Pridham went to see Dr. Ying on August 12, 2002. He gave her a small packet of sleeping pills, advised her to take a week off work and provided her with a note which states:
Ms. Pridham was seen in my office today. She should be off work until 19/8/2002 (Mon.).
Pridham called Rosario that afternoon and told her what the note said.
11Pridham’s condition did not improve. She was crying and could not sleep. She drove herself to the Ajax Pickering Hospital in the middle of the night. She saw a resident and returned the next morning for an appointment with a psychiatrist, Dr. Gnaneswaran. Dr. Gnaneswaran recommended that she participate in a mental health program at the hospital and referred her back to Dr. Ying.
12Dr. Ying provided her with a note dated August 15, 2002, which states:
Ms. Pridham has been under my care. She should be off work indefinitely until further psychiatric evaluation.
13Pridham called Rosario on August 15, 2002. She told Rosario that she had seen a psychiatrist and what Dr. Ying had recommended. Pridham states that Rosario responded by saying that “it was very inconvenient for En-Plas, that I should just come back to work and that I’d be OK”. Pridham responded by stating she intended to follow her doctor’s directions. Pridham states that she does not think that Rosario made this comment “out of spite”, but that she also thinks Rosario did not understand how serious her situation was.
14Rosario does not deny making this comment. Further, she states that before Pridham left on August 12, in her “fashion”, she told Pridham that she had to be strong, that work is therapeutic and suggested that Pridham stay on.
15Pridham requested a Record of Employment because she knew that she was going to be off work for more than a few days. Rosario responded by saying that the payroll company was responsible for issuing Records of Employment. Pridham disputes this. There is, however, no dispute that Rosario did not take immediate steps to ensure that an ROE was issued to Pridham for this period of medical absence. Rosario states that based on the notes she had in hand she expected the absence to be of relatively short duration and she was waiting for the payroll company to issue the ROE. In fact, however, Rosario issued the ROE manually herself approximately 6 weeks after Pridham left.
16First thing in the morning on Monday August 19, 2002, Pridham sent copies of Dr. Ying’s August 12 and 15, 2002 notes to En-Plas as attachments to an email, along with a cover letter. Pridham then attended the Mental Health Program at Rouge Valley Hospital. She received a note from Barbara Tomaszewski, a coordinator for the Mental Health Program. The note, in the nature of a pre-printed form, indicates that Ms. Pridham is attending “Day Hospital” from August 20 to September 9, 2002 inclusive, and “may need additional group program afterwards depending on her presentation”. It is signed by “Barbara Tomaszewski” who is identified on the form as a Registered Nurse – Outpatient Mental Health Nurse. The form provides Ms. Tomaszewski’s phone number and invites the reader to contact her if further information is required.
17Later on August 19, 2002, Pridham hand delivered copies of Dr. Ying’s August 12 and 15 notes and the cover letter that she had sent earlier by e-mail, along with Tomaszewski’s August 19 note to En-Plas. She had a co-worker at En-Plas sign a slip of paper acknowledging receipt of the documents. She had printed the copy of her cover letter on August 16, so it bore that date. She amended the copy of her cover letter by hand so that it reads:
August 16, 2002
En-Plas Inc.
Sandra Rossario
[Address omitted]
Dear Sandra:
As follow-up to our telephone conversations from Monday, August 12 and Thursday, August 15th this week, attached are the copies of notes from my doctor recommending that I take a leave of absence from my job due to illness.
I realize (as you stated on the phone) that this is an inconvenience to En-Plas, and I apologize if you feel I’ve let you down, however due to health reasons, I feel I have to follow my doctor’s orders and proceed with the medications and treatment both doctors recommend. I am on medications (starting today, August 15th) a day-hospital program and weekly evaluations for two three week period after which I should could be ready to return to work.
I still require my ROE, with earnings history so that I can apply for sick benefits through EI.
Sincerely,
Janet Pridham
[Amendments shown in italics.]
18Pridham filed a claim for Employment Insurance sick benefits on August 15, 2002. She believed she required an ROE from En-Plas in order for her claim to be processed and made several follow-up calls to Rosario. An ROE was not forthcoming. On September 11, 2002 she received a letter from EIC advising her that her claim for benefits had been allowed. She did not receive an ROE from En-Plas until the end of September 2002.
19Pridham attended a Day Progam at Rouge Valley on a daily basis from August 20 until September 9, 2002. On September 5, 2002, Tomaszewski provided her with a further note which indicates that she “has been put on a waiting list for Day Treatment Program which runs for approximately 6 months”. The note was provided on the same type of pre-printed form as the previous note and contains the same contact information.
20At the hearing, Pridham states that she is sure that she gave a copy of Tomaszewski’s September 5 note to En-Plas on the same day that she received it, but that she cannot recall how she did so. Rosario denies that En-Plas ever received a copy of Tomaszewski’s September 5 note. In cross-examination, Rosario notes that in her statement to the Commission Investigator on January 29, 2005, over a year before the hearing of this matter, Pridham stated:
I would like to think that I provided her with a copy of the letter that stated that I was going into the second programme, but I honestly don’t remember, I must have gotten the letter to her.
Rosario challenges Pridham as to why she had been so careful to document the provision of the earlier documents to En-Plas, but had not done so with respect to this note. Pridham responds that she documented the provision of the initial documents with respect to her sick leave because she had heard that other employees had difficulty in getting ROEs from En-Plas for the purposes of their Employment Insurance claims. I find Pridham’s explanation to be plausible.
21Pridham sold her house on or about October 24 and moved on or about November 22, 2002. She did not advise En-Plas of her new address. However, her phone number and email address remained the same. In addition, she filed a change of address notice with Canada Post so that any mail sent to her old address would be forwarded to her new address.
22Pridham attended the Day Treatment Program on a daily basis from late September through to early December 2002. She also saw Dr. Gnaneswaran periodically through out this period, and indeed continued to do so until August 2003.
23In early December 2002, the counsellors in the Day Treatment Program told her that they felt that she was ready to return to work, subject to clearance by Dr. Gnaneswaran. Pridham’s next scheduled appointment with Dr. Gnaneswaran was in January and she was unable to obtain an earlier appointment.
24Pridham states that she phoned Rosario on or about December 6, 2002, to tell her that she had finished the Day Treatment Program and would be able to return to work in early January following clearance by Dr. Gnaneswaran. Pridham states that Rosario responded that her employment was to be discontinued as of December 31, 2002, that the company could not run the risk of Pridham returning to work because she might become sick again, and that would be “unfair” to the other employees. Pridham states that she was shaken up and made pretty angry by this comment, however, as she did not feel that she had any recourse, she doesn’t recall responding in any way.
25Rosario states that Pridham did not call her until after she had requested the payroll company issue an ROE to Pridham. Rosario made this request on or about December 20, 2002. Pridham, Rosario states, called at the end of December or early in January. At that time, Rosario states that Pridham told her that she wanted to return to work and that she, Rosario, responded that it was too late, that she had closed Pridham’s file because she had not heard from her and that her employment was being discontinued as of December 31, 2002. As noted, an ROE dated December 29, 2002 was issued to Pridham.
26Among the exhibits filed by the Commission is a copy of a benefit statement from Human Resources Development Canada showing Pridham was disqualified from receiving regular Employment Insurance benefits for the weeks December 8 – 14 and December 15 – 21, 2002. This document is consistent with Pridham having applied for regular Employment Insurance benefits on or about December 6, 2002, which, I note, was a Friday.
27Pridham states that from the beginning of September until she and Rosario spoke in December, En-Plas did not enquire of her or her caregivers as to her ability to return to work. Pridham states that she had various conversations with Rosario during this time, concerning her claims for benefits and “various reasons”. Rosario denies that there were any phone calls at all from Pridham in October, November or early December. She states that the next contact she had with Pridham was after December 20, the date on which she requested the payroll company to issue an ROE for Pridham. The decision to terminate Pridham was Rosario’s.
28In her evidence in chief, Rosario states that during her conversations with Pridham in the fall of 2002 she “alluded to ‘when are you coming back’”, but that Pridham was “hostile” and that therefore she was afraid to ask any more questions. She states that she chose to stay away from that issue because Pridham’s final words to her, prior to leaving on August 12, 2002, were that she was going to stay in touch with her, so Rosario decided to “trust her”. She states that in hindsight she should have sent Pridham a letter, but she was not an emailer at that time and did not know Pridham’s new home address. She stated that she was “afraid” to call Pridham because of Pridham’s hostility.
29Rosario states that based on the medical notes Pridham provided on August 19, 2002, she assumed that Pridham would be back in three weeks. As a small company, En-Plas struggled to keep the vacancy open for her. When Rosario had not heard from Pridham by mid-December, after the December 15th payroll, Rosario was “forced to end that chapter”, and close matters off with Pridham. When Pridham called her at the end of December, Rosario acknowledges that she told Pridham that it was “too late”, that she had already closed the file. She believes the call was between December 20 and December 24.
30On or about January 8, 2003 Pridham received from En-Plas several cheques issued by an insurer payable to her for claims she had submitted to it pursuant to En-Plas’ drug plan. (While the evidence was not entirely clear, it appears that this was also the date on which Pridham received her final Record of Employment dated December 29, 2002.) Pursuant to the plan, the insurer sent the cheques to En-Plas to give to the employee. The cheques in question were dated September 7, 20, November 1 and December 14, 2002.
31Rosario states that she heard from another En-Plas employee whose husband had acted as Pridham’s real estate agent that Pridham had sold her house and moved. That employee did not know Pridham’s new address, so, Rosario states, she decided to hang on to Pridham’s benefit cheques so that they would be “safe”. Noting that Pridham sold her house on or about October 24 and did not move until November 22, 2002, Rosario provided no explanation as to why the cheques dated September 7 and 20, and to a lesser extent November 1, 2002, were not mailed to Pridham.
32Pridham’s January appointment with Dr. Gnaneswaran was cancelled by his office. She did not in fact see him until February 5, 2003. At that point he provided her with a note that states: “This is to certify that above patient is under my care and certify that she is ready to return to work from 1st of January 2003.”
33Pridham started looking for work in February 2003. She found a new position commencing June 30, 2003.
Analysis:
34Where there is a conflict, I prefer the evidence of Pridham over Rosario. Rosario was unable to resist the pull of self-interest in giving her evidence. Significant parts of her evidence were also contradictory:
a) In cross examination, she denied any knowledge as to the nature of Pridham’s disability, and in particular that it was psychiatric even though there is a reference to “further psychiatric evaluation” in Dr. Ying’s note of August 15, 2002, and even though the August 19, 2002 note from Barbara Tomaszewski identifies her as “Outpatient Mental Health Nurse”. Rosario denied being able to read the doctors’ notes that Pridham had provided, and continued to do so notwithstanding the fact that it was pointed out to her that she had set the text of the notes out in her response to the complaint filed with the Commission.
b) In her evidence Rosario also suggested that Pridham’s rather unremarkable attendance record suggested chronic absenteeism. At the same time, Rosario agreed that she had not given Pridham any verbal or written warnings with respect to her alleged attendance problems. When it was pointed out to her in cross examination that many of the days noted were recorded as vacation days she stated that Pridham’s attendance would have been worse but for the fact that she had “showed her distaste”.
c) A critical part of Rosario’s theory of the case is that it was Pridham’s responsibility to stay in touch with her after Pridham’s departure on August 12, 2002. Her evidence at the hearing that she told Pridham on August 12, 2002 that she was not going to stay in touch with her, rather it was Pridham’s responsibility to be in touch with her is obviously significant to such a theory of the case. Yet Rosario made no prior reference to having made this statement, which Pridham denies, in either her written response or her witness statement to the Commission’s investigator.
d) Rosario testified that she told Pridham to “be strong, stop whining and get on with her life”. These are the kinds of things, she testified, that she says all the time. Yet when it was suggested to her that she thought of depression as a sign of weakness she denied it, stating that she only gave Pridham this “advice” as a friend. At the same time she attempted to suggest that the reason she did not call Pridham to obtain her new address was because she found Pridham intimidating and that she respected her privacy. This suggestion is inconsistent with the proposition that she dealt with Pridham as a friend; inconsistent with the nature of the “advice” Rosario offered Pridham while she was at work; and inconsistent with my observation of Rosario and Pridham in the hearing room. Rosario presents as an assertive individual with strong opinions. I do not accept the proposition that she found Pridham intimidating and consequently I do not accept Rosario’s explanation as to why she did not contact Pridham to obtain her new address or request further information with respect to the effect of her medical condition on her ability to return to work.
e) As was put to her in cross-examination by the Commission, Rosario’s evidence that she did not ask Pridham about her medical condition, allegedly because Pridham was hostile, is also inconsistent with statements made in her written response to the Commission to the effect that she did enquire of Pridham as to when she was coming back and Pridham responded that she was under medical treatment. Further, as put to her in cross examination, there is no suggestion in her written response to the Commission that she considered Pridham to be “hostile” or not forthcoming in her responses to questions, and no reference to the fact that Pridham had moved, one of the reasons that Rosario relies upon to explain why she did not contact Pridham.
35In the result, I accept Pridham’s evidence that she called Rosario on or about December 6, 2002, to tell her that she had finished the Day Treatment Program and would be able to return to work in early January following clearance by Dr. Gnaneswaran. I further accept Pridham’s evidence that Rosario responded her employment was to be discontinued as of December 31, 2002 and that the company could not run the risk of Pridham returning to work because she might become sick again and that would be “unfair” to the other employees.
36All employees run the risk of becoming sick and missing time from work. In the absence of any inquiry by Rosario as to Pridham’s prognosis, Rosario’s statements can only be based on negative assumptions and stereotypes about Pridham based on the fact that she had experienced a period of disability. I conclude that the termination of Pridham’s employment by En-Plas was the result of direct discrimination by Rosario in her personal capacity and as the representative of En-Plas.
37The Commission’s alternative argument is that the circumstances were such as to impose a positive duty on En-Plas and Rosario to make inquiries about Pridham’s ability to perform her job duties or capabilities to perform alternative work prior to making the unilateral decision to terminate her employment. In view of my conclusion, it is not necessary for me to address this.
Remedies:
Damages
38Section 41(1)(b) of the Code provides:
- (1) Where the Tribunal, 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 Tribunal may, by order,
(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.
39This section permits the Tribunal to award special damages as compensation for actual monetary losses and to award general damages. General damages are awarded for non-monetary intangible damages arising from infringement of the Code, and take two forms: Naraine v. Ford Motor Company of Canada (No. 5), (1996), 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267, D/273-274 at paras. 39-44 (Ont. Bd. Inq.). One form of such damages, mental anguish, is subject to a specific statutory cap of $10,000. The Tribunal has generally required independent medical evidence to support a claim for mental anguish. General damages, however, are also awarded for other intangible damages arising from the loss of the right to be free from discrimination. This form of general damages does not include damages for mental anguish: York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Div. Ct.). There is no statutory cap on this form of general damages: Shelter Corp. v. Ontario (Human Rights Commission) (2001), 39 C.H.R.R. D1/111 (Div. Ct.). While damages for mental anguish are a form of general damages, in common usage the term general damages has come to be used to refer only to the second form of general damages. I adopt that practice here.
40All discriminatory actions at issue in this case were taken by Rosario and Rosario was at all times acting for En-Plas. Further Rosario’s actions are deemed to be those of En-Plas: see section 45(1) of the Code. Accordingly, they are jointly and severally liable for all damages awarded.
Special Damages
41For the reasons stated above, I find that Rosario’s decision to terminate Pridham’s employment with En-Plas was contrary to the Code. Pridham does not seek re-instatement of her employment with En-Plas. Rather she seeks compensation for lost wages from January 2, 2003, the date from which Dr. Gnaneswaran stated she was able to return to work, until June 30, 2003, the day she commenced employment with a different employer.
42Pridham’s evidence was that while the counsellors at the Day Program considered her fit to return to work as of the beginning of December 2002, she was awaiting clearance from Dr. Gnaneswaran prior to doing so. While she had a scheduled appointment with Dr. Gnaneswaran in January 2003, that appointment was cancelled by Dr. Gnaneswaran and she was not in fact able to see him until February 5, 2003. At that time Dr. Gnaneswaran provided her with a note which stated that she was fit to return to work as of January 1, 2003. I conclude that even though Dr. Gnaneswaran provided Pridham with retroactive clearance to return to work as of January 1, 2003, she would not have made herself available for work with En-Plas, had it been offered, from January 1, 2003 until after her appointment with Dr. Gnaneswaran on February 5, 2003. Accordingly, in my view the period of damages for lost wages does not commence until February 6, 2003.
43Pridham states that she started looking for work at the beginning of February 2003. She gave evidence with respect to her job search. The extent of her job search was not subject to challenge during cross-examination. Accordingly, I find that she took appropriate steps to mitigate her damages.
44There was no dispute that Pridham was earning $33,000 per year, or $126.92 per workday. Accordingly, I award Pridham $12,945.84 in damages for her lost wages during the period February 6 to June 27, 2003 inclusive.
45In addition Pridham seeks $198.90 for prescription drug expenses she incurred between February and June 2003. But for the improper termination of her employment by En-Plas, these expenses would have been covered by En-Plas’ drug plan. Accordingly, I award her $198.90 in damages to compensate for this expense.
Mental Anguish
46No claim is advanced for damages for mental anguish.
General Damages
47In Sanford v. Koop (No. 2) (2005), CHRR Doc. 05-727, 2005 HRTO 53, the Tribunal provided the following non-exclusive list of factors used in assessing the appropriate quantum of general damages (i.e. other than for mental anguish):
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment
48While general damages are designed to compensate for, among other things, humiliation, hurt feelings, loss of self-respect, dignity, self esteem and confidence, and the experience of victimization, relying solely on complainants’ descriptions of the degree of such losses is problematic in at least two respects. On the one hand, there is an obvious danger of the self-serving nature of such evidence. On the other, while two individuals may experience exactly the same degree of loss, one may be less willing, or able, to describe that loss in testimony. Thus, in my view, while the experience of such losses is subjective, the assessment of such losses must have a degree of objectivity to it.
49Each of these factors represents an attempt to assess the extent of the intangible damages caused by the loss of the right to be free from discrimination. This element of causality is, in my view, of some significance. The inclusion of seriousness, frequency and duration in the list of factors reflects the fact that sustained and repeated acts of discrimination can be presumed to give rise to greater general damages to an individual than a similar single act of discrimination. It is necessary, therefore, to identify all infringements of an individual’s rights arising from a particular fact situation.
50I have already concluded that Pridham experienced direct discrimination on or about December 6, 2002 when Rosario announced her decision to terminate Pridham’s employment with En-Plas as of the end of the year. The issue is whether Pridham was subject only to this singular act of discrimination, or whether there were other acts of discrimination.
51The Commission identifies the “health advice” that Rosario offered to Pridham as inappropriate. There was, however, no evidence that Pridham ever told Rosario that the comments were unwelcome or that she found the comments distressing. In any event, the Commission does not seek any remedy with respect to these comments per se. Accordingly, it is not necessary to determine whether Rosario’s comments constitute a breach of the Code.
52The Commission identifies En-Plas’ failure to promptly provide Pridham with her first ROE as inappropriate. Rosario’s explanation for the delay in providing the ROE was that she assumed, based on the documentation that she had received from Pridham, the period of absence would last only a few weeks. However, her failure to issue the ROE lasted beyond those first few weeks and she provided no explanation for this continuing delay.
53Similarly, the Commission identifies En-Plas’ failure to promptly forward Pridham’s benefit cheques to her as inappropriate. For reasons stated above, I do not accept Rosario’s explanation that the reason that she failed to forward the cheques was that she did not know Pridham’s new address.
54In the result, I do not find Rosario’s explanations as to why she failed to promptly forward either the ROE or the benefit cheques satisfactory. It seems to me that Rosario’s failure to forward these documents is consistent with her general view that Pridham simply had to “be strong” and that the best course for her would be to return to work. Rosario’s failure to provide these documents to Pridham seemed designed to place indirect pressure upon her to return to work as soon as possible by penalizing her for her ongoing absence, and to be based on assumptions that Pridham’s disability was not really severe enough to keep her from working. As such, they too constitute discrimination against Pridham, albeit not as severe as the act of terminating her employment.
55Notwithstanding the fact that Pridham’s claim for Employment Insurance sick benefits was processed before the ROE was provided, it is clear that Pridham found the difficulties she experienced in obtaining her ROE distressing. She had been experiencing financial difficulties prior to the onset of her period of disability. These were further compounded by the reduction in her income while she was disabled and ultimately resulted in Pridham deciding that she had to sell her house rather than run the risk of losing it. Within this context, En-Plas’ discriminatory delays in issuing the ROE were the source of additional stress, and damages, to Pridham. The delay in forwarding the benefit cheques must, reasonably, have also contributed to this stress.
56The more severe act of discrimination was, of course, Rosario’s termination of Pridham’s employment. Pridham testified that she was pretty shaken up by Rosario’s statements to her on December 6, 2002. One measure of the impact of those statements on her was that she testified that she did not feel strong enough to look for work until the beginning of February: it took some time to pick herself back up to the point that she could present well in an interview. While this coincided with the period of time that I have found that she was awaiting clearance from Dr. Gnaneswaran prior to returning to work, I am nonetheless satisfied that Rosario’s comments had a serious impact on her.
57What then is the proper measure of general damages in this case? The Commission seeks $15,000. It has provided several cases which are somewhat factually similar to this case: Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 CHRR D/337; Davis v. 1041433 Ontario Ltd. (No. 2) (2005), CHRR Doc. 05-556, 2005 HRTO 37; Boodhram v. 2009158 Ontario Ltd. (No. 2) (2005), CHRR Doc. 05-738, 2005 HRTO 54 and Deroche v. Yeboah-Koree and Recycling Renaissance International Inc. (2005), CHRR Doc. 05-411, 2005 HRTO 26.
58In Allan v. Singh the Complainant was awarded $2,000 in general damages. She had been employed for only one day and the Respondent refused to continue to employ her based on the discriminatory assumption that her disability prevented her from doing the job. This case, however, predates Shelter Corp. v. Ontario (Human Rights Commission), and thus the award of general damages may have been made against a presumed cap of $10,000.
59In Davis v. 1041433 Ontario Ltd. (No. 2), the Complainant was awarded $10,000 in total for “general damages and mental anguish”. As the case does not distinguish between the two heads of damages, I do not find it of assistance.
60In Boodhram v. 2009158 Ontario Ltd. (No. 2), the Complainant sought and was awarded $5,000 in general damages. After two months of employment, she injured herself at work and was absent for three days. When she called her employer to advise that she would be returning to work, the employer told her that it could not afford to have an employee off sick and that her employment had been terminated.
61In Deroche v. Yeboah-Koree and Renaissance International Inc. the Complainant was awarded $10,000 in general damages. After approximately 6 months of employment, the Complainant was injured at work. The employer initially attempted to dissuade him from filing a claim for workers’ compensation and then, when he did so, terminated his employment. The complainant’s financial difficulties were such that he was forced to move back in with his mother and he felt shame as a result. It is not clear from the decision, however, whether this was as a result of the disability arising from the work place injury or from the breach of the Code.
62In both Allan v. Singh and Boodhram v. 2009158 Ontario Ltd. (No. 2), the only discriminatory conduct experienced by the complainant was the act of termination. In Deroche v. Yeboah-Koree and Recycling Renaissance International Inc. the act of termination was preceded by the improper attempts to dissuade the complainant from claiming workers’ compensation. In this case there was earlier discriminatory conduct. In Allan v. Singh and Boodhram v. 2009158 Ontario Ltd. (No. 2), there was no specific evidence as to the impact of the discriminatory conduct on the complainants’ self esteem. In Deroche v. Yeboah-Koree and Recycling Renaissance International Inc. it is unclear whether the discriminatory conduct, as opposed to financial difficulties arising from the disability, had an effect. In this case, by contrast, I am satisfied that the acts of discrimination contributed to Pridham’s financial distress prior to her termination and significantly undermined her self confidence for a period of two months after her termination. On the other hand, the acts of discrimination at issue in this case are clearly not of the most egregious nature. In all of the circumstances, in my view an award of $10,000 in general damages is appropriate.
Pre- and Post-Judgment Interest
63In order to make the Complainant whole, it is appropriate to award pre- and post-judgment interest on all monetary amounts awarded herein. Pre-judgment interest on the general damages to run from the date of the most significant discriminatory act, being the date on which Rosario told Pridham that her employment was going to be terminated. Pre-judgment interest on the special damages for loss of wages and loss of benefits to run from April 14, 2003, being the approximate mid-point of the period during which those damages accrued. Post-judgment interest to run from the date of this Order. The rates for both shall be in accordance with section 127 of the Courts of Justice Act.
Public Interest Remedies
64The Commission seeks certain public interest remedies pursuant to section 41(1)(a) of the Code against Rosario and En-Plas to ensure that En-Plas’ employees are made aware of their rights, Rosario and En-Plas are reminded of their obligations and in order to prevent recurrences of breaches of the Code. Specifically, the Commission seeks the following:
a) An order requiring En-Plas to, within two (2) months, develop and implement a written policy prohibiting discrimination and harassment (the “internal Policy”), with a particular focus on discrimination based on disability in accordance with the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (the “Commission’s Disability Policy”) and the Commission’s document Developing Procedures to Resolve Human Rights Complaints within your Organization.
b) An order requiring En-Plas to distribute the internal Policy to all existing employees, within two (2) months, and all new employees, when they commence employment, along with copies of the Commission’s Disability Policy.
c) An order requiring En-Plas to, within two (2) months, post Code Cards supplied by the Commission prominently within its place of business, accessible to all employees.
65Rosario represented both herself and En-Plas through out the hearing. Her actions were that of En-Plas. On the view I take of this matter, however, this was not a case of failure to accommodate or to properly investigate a complaint of discrimination. Rather, this was an isolated case of direct discrimination by Rosario against Pridham. En-Plas is a small employer. Development of an internal Policy, of the type sought by the Commission is a relatively onerous exercise. I am not satisfied that the facts before me justify imposing this obligation on En-Plas. Having said that, it is clear that Rosario, and En-Plas need to have a better understanding of their obligations under the Code. Further, in view of the fact that Rosario has exclusive responsibility for human resources issues for En-Plas, it is clear that En-Plas’ employees must have an independent appreciation of their rights under the Code, and their ability to enforce those rights. Accordingly, I make the following orders:
a) En-Plas is directed to post Code Cards supplied by the Commission at prominent locations within its place of business where they are likely to come to the attention of all its employees, immediately upon being provided with those Cards by the Commission. Those Cards, or revised versions produced by the Commission, are to remain posted at all times.
b) En-Plas is directed to make and distribute copies of the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, or revised versions produced by the Commission, to all existing employees immediately upon being provided with a copy of that Policy by the Commission, and to all new employees when they commence employment.
I would add that had the Commission sought an order directing Rosario to attend human rights training, and suggested an appropriate course, I would have considered granting it.
Order
66For reasons stated above, the Tribunal makes the following Orders:
a) Within 10 days of this Order, En-Plas Inc. and Sandra Rosario shall pay Janet Pridham:
i. General damages in the amount of $10,000
ii. Damages for loss of wages in the amount of $12,945.84
iii. Damages for loss of benefits in the amount of $198.90
iv. Pre-and post-judgment interest in accordance with the Courts of Justice Act on all monetary awards. Pre-judgment interest on the general damages to run from December 6, 2002. Pre-judgment interest on the special damages for loss of wages and loss of benefits to run from April 14, 2003, being the approximate mid-point of the period during which those damages accrued. Post judgment interest to run from the date of this Order.
b) En-Plas Inc. and Sandra Rosario are jointly and severally liable for all monetary awards.
c) En-Plas is directed to post Code Cards supplied by the Commission at prominent locations within its place of business where they are likely to come to the attention of all its employees, immediately upon being provided with those Cards by the Commission. Those Cards, or revised versions produced by the Commission, are to remain posted at all times.
d) En-Plas is directed to make and distribute copies of the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, or revised versions produced by the Commission, to all existing employees immediately upon being provided with a copy of that Policy by the Commission, and to all new employees when they commence employment.
Dated at Toronto, this 2nd day of March, 2007.
“Signed By” .
Ian Anderson
Member