Caroline Wedley v. Northview Meadow Co-operative Homes Inc. and Elsie Harvey, 2008 HRTO 13

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caroline Wedley

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Northview Meadow Co-operative Homes Inc.

and Elsie Harvey

Respondents

DECISION

Adjudicator: Ena Chadha

Date: February 25, 2008

Citation: 2008 HRTO 13

Indexed as: Wedley v. Northview Co-operative Homes Inc.

Human Rights Tribunal of Ontario

400 University Avenue, 7^th^ Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar@ontario.ca

Website www.hrto.ca

APPEARANCES

Caroline Wedley, Complainant ) On Her Own Behalf

Ontario Human Rights Commission ) Melanie Shulman, Counsel

Northview Meadow Co-operative Homes Inc. ) Katherine Ford, Counsel

and Elsie Harvey Respondents )

Introduction

1The complainant, Ms. Caroline Wedley, alleges that she was treated unfairly because of her sex during the course of her employment as a cleaner with the respondent, Northview Meadow Co-operative Homes Inc. (“Northview”), and that her employment was terminated because of gender. Ms. Wedley claims that Northview dismissed her in order to hire a man. Ms. Wedley alleges violations of section 5(1) and (9) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The complaint states:

(a) On March 31, 2003, I commenced employment with the respondent co-op as a janitor;

(b) On January 8, 2004, Ms. Elsie Harvey, General Manager, terminated my employment. I questioned her reasoning for my termination of employment and she advised me that it was the board’s decision, as the board wanted to hire a man to perform my duties. She told me that the board requested that two men be hired; one for maintenance, and one for maintenance/cleaner, which was my position;

(c) On January 11, 2004, I discovered my position was posted in the local paper; and

(d) I believe the respondents terminated my employment because of sex.

2The Ontario Human Rights Commission (“the Commission”) alleges that the job advertisement, referred to in subparagraph (c) of the complaint, soliciting candidates to replace Ms. Wedley was contrary to section 23(1) of the Code and that this advertisement thereby constitutes part of the alleged section 5(1) violation.

3The respondents are Northview and Ms. Elsie Harvey, General Manager of Northview during the complainant’s employment. The respondents deny the allegations of differential treatment and discriminatory dismissal. They say that Ms. Wedley was not treated unfairly with respect to her employment and that she was dismissed due to deteriorating work performance and Northview’s increased maintenance needs.

The Complaint and the Hearing

4The original complaint is dated March 18, 2004 and was amended February 22, 2007 to reflect Northview’s correct corporate name. The complaint was referred to the Tribunal on July 4, 2007. A hearing to deal with the merits of the complaint was held on January 7, 8, 9 and 14, 2008.

5The issues to be determined by the Tribunal are:

1. Was the complainant subjected to differential treatment with respect to her employment because of her sex contrary to sections 5(1) and 9 of the Code?

2. Was the complainant’s sex a factor in the termination of her employment contrary to sections 5(1) and 9 of the Code?

3. Does the respondents’ job advertisement fit within the ambit of section 23(1) and thereby constitute an infringement of the complainant’s right under section 5(1) of the Code?

4. If any of 1, 2 or 3 is answered in the affirmative, what is the appropriate remedy?

Summary of evidence

6The Commission called as witnesses: the complainant, her husband Robert Arnold, and Cornelius Kroon (a.k.a. “Kees” Kroon), a former maintenance worker with Northview. The respondents called as witnesses: the personal respondent Ms. Harvey and Ms. Jo-Anne McDermott, the president of the co-operative’s Board of Directors. Over 40 items, ranging in nature from resumes, performance evaluations, Commission witness statements, newspaper job advertisements, etc., were entered as documentary evidence in the hearing and were carefully reviewed by this Tribunal. Only the key viva voce testimony and documentary evidence have been summarized below.

BACKGROUND

7Northview is a not-for-profit co-operative housing development consisting of two apartment buildings and over 70 townhouses located in Oshawa, Ontario. Northview is run by a volunteer Board of Directors made up of members of the co-operative (resident owners). Various personnel, including a General Manager and office, maintenance and cleaning staff, are employed by the Board to oversee the daily operations of the co-operative.

Caroline Wedley

8In early 2003, Caroline Wedley was employed by Master Janitorial Services, a cleaning company contracted by Northview to clean the co-operative’s buildings approximately two to three times a week. In March 2003, General Manager Elsie Harvey approached Ms. Wedley and inquired whether the complainant would be interested in working as Northview’s full-time cleaner. At this time, it was known to all those concerned that Northview intended to cease its contract with Master Janitorial Services in order to hire a permanent cleaner for the co-operative.

9Ms. Wedley applied for the position and was interviewed by Ms. Harvey. It is not disputed that Ms. Harvey questioned Ms. Wedley about her experience with maintenance work and that Ms. Wedley advised that, while she had some maintenance experience, it was limited to basic tasks. It is also not disputed that Ms. Wedley was hired on the understanding that she would receive training for maintenance work.

10Ms. Wedley commenced employment with Northview on March 31, 2003 and received $11.00/hour plus benefits coverage. She was required to work 37.5 hours a week as the co-operative’s full-time cleaner and be “on-call” for maintenance every third weekend. At that time, the cleaning-maintenance team consisted of Ms. Wedley, two full-time maintenance workers (who rotated on-call weekends with the complainant) and a fluctuating number of Ontario Works volunteers who assisted Ms. Wedley and the maintenance staff. Ms. Wedley’s regular duties consisted of cleaning common areas, such as laundry facilities, washrooms, hallways, windows, carpets and floors; disposing of garbage and recycling, etc.; and assisting the maintenance staff with unit move-in and move-out cleaning.

11In June 2003, a three-month probationary period appraisal was conducted of Ms. Wedley’s performance. Ms. Wedley passed her three month probationary period with “overwhelmingly positive” responses. As a result of the positive feedback, Ms. Wedley’s hourly wage was raised to $12.50 in July 2003. However, one reviewer noted that Ms. Wedley should “distance herself” from the resident members (Exhibit 3). Ms. Wedley testifies that neither the reviews, nor this specific comment were shown to her. She acknowledges that from the beginning of her employment Ms. Harvey told her that the politics around the co-operative were problematic. Ms. Wedley also testifies that Ms. Harvey repeatedly advised her “not to get too chummy with members”.

12Ms. Wedley testified that, except for a rocky relationship with one co-worker, she enjoyed her job and performed her cleaning duties well. Ms. Wedley testifies that Jim Pasnick, a maintenance staff member, disliked her because Mr. Pasnick’s friend, a man, was initially offered her job, but declined because of the low wage. Ms. Wedley testifies that she felt Jim Pasnick did not like her because “it was a vibe coming off of him, he didn’t warm up to me, he wanted his buddy to have the job”. She further alleges that Mr. Pasnick treated her in an unduly harsh manner constantly criticizing her work and refusing to assist her with the heavier tasks, which he was required to do as part of his job. There is no dispute that Ms. Wedley got along well with the other maintenance staff member, “Kees” Kroon, who was assigned the primary responsibility for her maintenance training.

13While there was some dispute as to when Ms. Wedley’s “on-call’ rotation duties actually commenced, it is uncontroverted that Ms. Wedley attended to maintenance on-calls by late summer 2003. Ms. Wedley testifies that she was willing and able to learn maintenance work. She states she did not have difficulties performing the tasks for which she had received training, which included installing smoke detectors, fixing faucets, changing locks and checking the fire alarm system. She notes that there was only a limited amount of time available during the midst of the team’s regular cleaning and maintenance duties to undertake maintenance on-call training.

14During her on-call rotations, Ms. Wedley was called back to Northview for maintenance emergencies, including plugged toilets, locked doors, boiler leaks and furnace problems. Ms. Wedley acknowledges that there were a number of occasions when she was on-call, but was unable to perform the maintenance work because she was not trained with respect to either the problem or equipment. She further acknowledges that this necessitated additional staff, usually Jim Pasnick, being called in or the expense of retaining a service contractor. When the issue of the extra expense this situation created was put to Ms. Wedley in cross-examination, she stated, “I myself questioned why am I on-call when I can’t do some of the jobs or half of the jobs”.

15Sometime in the fall of 2003, Ms. Harvey advised Ms. Wedley and Mr. Kroon that Ms. Wedley and Mr. Kroon were rumoured to be having an affair. Ms. Wedley testifies that the tenor of Ms. Harvey’s remarks were highly accusatory and that Ms. Harvey dictated that she stay away from Mr. Kroon. Ms. Wedley testifies that, at the time, she was 26 years of age and considered Mr. Kroon, a man in his 60s, to be a father figure. Ms. Wedley indicates that she abided by Ms. Harvey’s instruction to avoid Mr. Kroon for a few days. However, she eventually resumed communication and interaction with Mr. Kroon because this was necessitated by the nature of their work and because she considered the rumour and Ms. Harvey’s instruction to be unfair and insulting.

16Ms. Wedley testifies that around November 2003 she and the maintenance staff were advised by Ms. Harvey that the Board of Directors were considering hiring more maintenance staff, but that such changes would not affect their positions.

17Ms. Wedley acknowledges that starting in late August 2003 to late fall 2003, she received five performance-related memoranda from Ms. Harvey indicating growing concerns about the quality of her cleaning, her negative conversations and confrontational interactions with volunteers and members of the co-operative. In general, Ms. Wedley’s testimony regarding these memoranda was defensive - she either denied culpability or characterized the criticism as unfounded and exaggerated. Ms. Wedley agreed that, in November 2003, she was “severely reprimanded” over an incident involving conversations she had with two volunteers who were being considered for employment with Northview’s cleaning-maintenance team. Ms. Wedley acknowledges receipt of a memorandum, dated November 14, 2003 (Exhibit 8), which issued a “final warning” that further complaints would result in termination of her employment, however she insists she did not receive any other warnings prior to her dismissal.

18Ms. Wedley testifies that there was tension with respect to who was on-call over the Christmas 2003 break. Ms. Wedley recalls that Jim Pasnick was supposed to be on-call but he refused to do so and consequently, Ms. Harvey accepted responsibility to be on-call. Ms. Wedley testifies that despite this arrangement, some Board members, including the Board President, blamed her for failing to respond to on-call requests on December 24 and 25, 2003.

19Near the end of the work day on January 8, 2004, Ms. Wedley was called into a meeting with Ms. Harvey and the Assistant Manager, Jenny Godecharles. Ms. Wedley testifies that at this meeting Ms. Harvey informed her that the Board had decided to terminate her employment. When Ms. Wedley questioned why, Ms. Harvey responded that the Board would be hiring two men because more maintenance skills were needed. Ms. Wedley testifies that she stated, “It takes two men to replace me?” and Ms. Harvey replied, “I guess so.” Ms. Wedley was paid for the remainder of the week, on-call hours, vacation pay and an additional two weeks in lieu of notice.

20Ms. Wedley testifies that she was extremely distraught to lose her job and her distress was exacerbated by the fact that her husband was also unemployed at that time. Ms. Wedley insists that Ms. Harvey expressly told her that the Board intended to hire two men and this was extremely humiliating. Ms. Wedley immediately began to search for alternative employment. When looking through employment postings in a local paper on January 11, 2004, she spotted two job advertisements (Exhibit 14), titled “Cleaner/Maintenance Man” and “Maintenance Man”, which appeared to be seeking applicants for Northview’s cleaning and maintenance team. The job advertisement for the “Cleaner/Maintenance Man” position stated:

CLEANER/MAINTENANCE MAN

Required for housing complex

2 apt building & 77 townhouses

in North Oshawa

Successful candidate will have at least 10 years

Experience in cleaning, skilled in use of buffing

and carpet cleaning equipment and familiar with

use of all cleaning products, experienced in gar-

bage management. Excellent maintenance skills

required. Candidate must be capable and willing

to be “on call” to handle maintenance emergenc-

ies some evenings and weekends. (This is not

a live in position)

Fax resume to (905) 721-8382

21The advertisements confirmed Ms. Wedley’s belief that she had lost her job because she was being replaced by a man. This made her feel further humiliated and distraught. Ms. Wedley provided extensive testimony about the severe financial hardship her family suffered as a result of the loss of her salary and benefits coverage.

Robert Arnold

22Mr. Arnold testified that, on the day she was dismissed, Ms. Wedley returned home from work in tears and advised him that Northview was going to hire a man to do her job. Soon thereafter, Ms. Wedley showed him Northview’s job advertisement and she was “heartbroken” because she believed it was “the exact same job”. He describes Ms. Wedley as remaining upset and tearful for about two weeks. Although they both had lost employment in the past, this situation was the worst because the position at Northview was the best job Ms. Wedley ever had, as well as the highest paying, it was close to home and she was very happy there. While Ms. Wedley was called in on strange hours, he was unaware of her experiencing any problems during her employment with Northview. Mr. Arnold states that it took Ms. Wedley months to get her confidence back and they experienced serious financial struggles for about six to eight months after her termination.

“Kees” Kroon

23Mr. Kroon was employed by Northview for twelve years in a maintenance capacity. His duties included painting, dry walling, plumbing, heating and all kinds of repairs. Although Mr. Kroon officially retired from his employment with Northview at the end of September 2003, he continued to provide independent contract services to the co-operative five days a week for approximately nine months after his retirement. He worked regularly with Ms. Wedley on unit move-in preparations and they often had their breaks together. He indicates that Ms. Wedley’s cleaning was “good”. He states that he and Jim Pasnick provided Ms. Wedley with maintenance training and that Ms. Wedley was willing and able to learn and was proficient at what she had learned.

24Mr. Kroon recalls the tenor of the conversation about the affair rumour somewhat differently than Ms. Wedley. He states that Ms. Harvey informed them of the rumours and told them they should “stay away from each other”. Mr. Kroon indicates that everyone, including Ms. Harvey and Ms. Wedley, considered the rumour to be ridiculous. He acknowledges that Ms. Harvey was alerting them in order to avoid situations that could perpetuate the rumours.

25Mr. Kroon did not know if Ms. Wedley was warned about her performance and further unaware of any concerns she had about others in the workplace. He believed her relationship with Mr. Pasnick, Ms. Harvey and the members was “ok”. He considered the quality of the cleaning after Ms. Wedley’s departure to be “so so”.

Jo-Anne McDermott

26Jo-Anne McDermott has lived at Northview and has been a member of its volunteer Board of Directors since its establishment 17 years ago. For the past 10 years, she has held the position of President. Ms. McDermott testified that the dynamics of a co-operative are significantly different from rental occupancy because resident members are co-owners, who are responsible for electing a Board of Directors that direct the management of the co-operative and vote on communal issues.

27Ms. McDermott testified that in 2003 she was President of the Board, which consisted of seven women and three men. The Board met at least once a month and had the authority to make decisions on behalf of the membership regarding various matters, such as capital expenditures, building projects and staffing. The Board typically interviewed the candidates short-listed by the General Manager and was involved in all termination decisions, except where the General Manager must act pre-emptorily.

28Ms. McDermott notes that Ms. Wedley’s hiring was different because the Board did not interview the complainant. The Board had initially offered the job to a man, named Stephen Hayes, who declined the offer because of the low salary. The job was then offered to the Ms. Wedley based on Ms. Harvey’s familiarity with Ms. Wedley’s work as the contractor’s cleaner.

29Ms. McDermott states that in the fall of 2003 the co-operative’s age was showing in the increased number of maintenance work orders, heating and plumbing problems, and with the onset of winter the problems relating to the aging of the buildings seemed to worsen. Ms. McDermott explained that staff called onto the co-operative’s premises for maintenance emergencies accrued lieu time. On occasion, the Board compensated for lieu time when too many hours were accumulated. By late November, Ms. McDermott formally proposed the Board increase maintenance staff (Exhibit 24). This proposal was scheduled for discussion at the December Board meeting, but was deferred to the January 2004 meeting (Exhibit 25). Around December 2003, the Board decided to pay staff for lieu time because so many hours had accrued due to the growing incidences of maintenance on-calls.

30Ms. McDermott was aware that there had been conflict between Ms. Wedley and Jim Pasnick, but did not view it to be gender-related. Mr. Pasnick had been employed by Northview for 11 years and to Ms. McDermott’s knowledge there had never been complaints from any female employees about his behaviour. She describes the conflict between Ms. Wedley and Mr. Pasnick as similar to sibling bickering about who was going to do what work. She recalls witnessing one incident where Ms. Wedley and Mr. Pasnick argued over who should go into a unit to do the move-in preparation and clean-up.

31Ms. McDermott described a conflict she had with Ms. Wedley. One day in September 2003, she was passing by the common room, when another resident approached her and suggested she go into the common room because Ms. Wedley was in there chastising her husband. Ms. McDermott’s husband was constructing a display cabinet for installation in the common room and consequently there was construction mess on the floor. When Ms. McDermott entered, she heard Ms. Wedley reprimand her husband to the effect that “he better clean up after himself and that it was not her job to clean up after him”. Ms. McDermott states that she instructed Ms. Wedley to take her concerns to the General Manager; however Ms. Wedley continued to argue over the matter and thereafter communicated her anger to others not involved in the situation. Ms. McDermott states that this scenario was typical of Ms. Wedley’s confrontational attitude and “part of the difficulty with Caroline was that she felt she had to talk to everyone about everything that was upsetting her or that she didn’t agree with”.

32Ms. McDermott did not contribute to Ms. Wedley’s June 2003 probationary review because she states she had nothing noteworthy, positive or negative, to say about Ms. Wedley’s performance at that time. However, a substantial portion of Ms. McDermott’s testimony focused on her concerns regarding Ms. Wedley’s performance later in the year. In mid to late December 2003, Ms. McDermott authored a lengthy performance appraisal (Exhibit 9), which she circulated to the Board. While this December 2003 document details Ms. McDermott’s numerous complaints and criticisms in regards to Ms. Wedley’s performance, some of which the complainant may or may not be legitimately faulted for, two predominant themes are apparent. Ms. McDermott was clearly concerned about Ms. Wedley’s negative interactions with volunteers and members, as well as lack of deference towards Board Directors; and the costs associated with bringing in additional maintenance support during Ms. Wedley’s on-call rotations. In Ms. McDermott’s opinion, each of the concerns made Ms. Wedley unsuitable to continue to work at the co-operative and in the December document she repeatedly recommends that Ms. Wedley’s employment be terminated for these reasons.

33Ms. McDermott described the January 2004 Board of Directors meeting during which the decision to terminate Ms. Wedley’s employment was made. The Board discussed the co-operative’s increased maintenance needs due to the aging of the buildings and the increased work orders caused by frequent unit turnover and on-calls. Ms. McDermott notes that the Board also discussed Ms. Wedley’s performance. Ms. McDermott testifies that she and other Board members expressed dissatisfaction with Ms. Wedley’s cleaning. She states the Board determined it was in the co-operative’s interest to find someone with stronger maintenance skills because of the expense of double lieu hours and contractor services whenever Ms. Wedley was unable to address the maintenance on-calls.

34Ms. McDermott referred to the January 2004 Minutes of the Board of Directors meeting (Exhibit 26), which document an extensive discussion regarding the creation and recruitment of a new “senior maintenance person”, as well as a “cleaner/maintenance person”. Under the heading “Cleaning Person – Caroline Wedley”, the Minutes state that “[a]fter much discussion it was decided that the Co-op requires a cleaning person capable of handling most emergencies”. The Minutes record the decision to terminate Ms. Wedley’s employment and to hire “an experienced cleaner with strong maintenance skills at $14.00 per hour”.

35Ms. McDermott acknowledges there was no discussion regarding providing the complainant with additional maintenance training because this “was not an option” given the dissatisfaction with Ms. Wedley’s performance. Ms. McDermott acknowledges that, while the Board’s January 2004 Minutes recount a comprehensive discussion regarding increased maintenance needs, the Minutes are silent on the topic of Ms. Wedley’s performance. Ms. McDermott explains most of the meeting dealt with the maintenance issues and the need to reduce the costs associated with maintenance on-calls. When questioned why Ms. Wedley was not kept on as a cleaner, Ms. McDermott replied that “the positions were going to be different – more of an equal split of cleaning and maintenance and more than just weekend maintenance”. The Board directed the General Manager to advertise and hire for the “cleaning/maintenance” position as soon as possible.

36Ms. McDermott conceded she initially advised the Commission’s investigator that she believed the advertisement seeking a “cleaning/ maintenance man” was an error on the part of the newspaper. She could not explain why Ms. Harvey advertised for a man and is uncertain as to whether any members of the Board had reviewed or approved of the postings. Ms. McDermott testifies that the Board did not discuss hiring a man and did not direct Ms. Harvey to advertise for a man. Ms. McDermott referred to three witness statements (Exhibits 30, 31 and 32) made to the Commission investigator by members of the Board who attended the January 2004 meeting, all of whom note that the Board did not discuss Ms. Wedley’s gender nor express an interest in hiring men for the new positions.

37By mid-January 2004, the Board interviewed Stephen Hayes, the candidate originally selected in March 2003 and hired him for the cleaning/ maintenance position based on his janitorial work experience and high school training in electrical and building maintenance. Ms. McDermott acknowledges that Mr. Hayes’ resume (Exhibit 41) did not indicate any recent work-related maintenance experience.

Elsie Harvey

38Ms. Harvey has worked in the area of social and co-operative housing since early 1980’s. She was the General Manager of Northview for approximately 10 years, retiring in December 2005. Her retirement was short-lived as she continued to remain active by consulting and she currently works in social housing services. Ms. Harvey has spent much of her career promoting the participation of disadvantaged community members in housing.

39Ms. Harvey’s evidence regarding the early part of Ms. Wedley’s employment was consistent with the other witnesses. She confirms that Ms. Wedley was hired for the position of “fulltime cleaner” on the understanding that Ms. Wedley had basic maintenance skills and would receive maintenance training for her rotation on-call duties. Up until June 2003, Ms. Wedley was doing a “very good job”, but the quality of Ms. Wedley’s work and her relationship with staff and members deteriorated by the fall of 2003. When there were performance troubles with an employee, it was Ms. Harvey’s practise to first speak to the person before writing up the concern. Although she could not recall the exact details of the various incidents, Ms. Harvey believes that matters with respect to Ms. Wedley’s performance were serious given that she had documented concerns in writing. Ms. Harvey referred to several memoranda reproaching Ms. Wedley for performance-related issues.

40On August 28, 2003, Ms. Harvey wrote a one page memorandum to Ms. Wedley (Exhibit 4) confirming a meeting she had with the complainant and Jim Pasnick. The memorandum notifies Ms. Wedley that a copy would be put in her personnel file. The memorandum sets out the following:

• directs Ms. Wedley to stop talking about resident members in the presence of volunteers and to cease speaking to resident members except where it related directly to her work;

• reminds Ms. Wedley that she was responsible for all the cleaning and that volunteers provided her with assistance;

• notes that Ms. Harvey would work with Ms. Wedley in developing a system for daily cleaning and move-in preparations;

• confirms the expectation that Ms. Wedley would “work co-operatively with other staff members, including Jim Pasnick, and refrain from getting into arguments that can only do harm to teamwork”; and

• directs Ms. Wedley to get help from volunteers or Mr. Pasnick when moving heavy garbage bins. Ms. Wedley had raised a concern that Mr. Pasnick would not assist her with moving the garbage bins and Ms. Harvey had instructed him to do so.

41On the next day, August 29, 2003, Ms. Harvey wrote a brief memorandum to Mr. Kroon (Exhibit 34) confirming their conversation earlier that day about Ms. Wedley’s maintenance training. This memorandum indicates that Mr. Kroon had been providing training to Ms. Wedley, that Mr. Pasnick was expected to assist in this regard and that Ms. Wedley had shown herself “willing” and “quite capable”.

42Other memoranda to Ms. Wedley followed, dated September 30, October 9, October 20 and November 14, 2003, (Exhibits 5, 6, 7, 8), which recorded Ms. Harvey’s various concerns regarding Ms. Wedley’s deteriorating performance and negative interactions with others at the co-operative. The September 30^th^ memorandum specifically notes that Ms. Harvey advised Ms. Wedley when she started the job that the most difficult part would be the “politics” around the co-operative and it was absolutely necessary to steer clear of the “politics” to be able to work there. The October 9^th^ memorandum is specifically written as a “reprimand” for Ms. Wedley’s failure to follow instructions. Ultimately, as documented in the November 14^th^ memorandum, Ms. Harvey was compelled to severely reprimand Ms. Wedley and issue a “final warning” as a result of the complainant’s damaging conversations with two volunteers.

43Ms. Harvey testifies that sometime around the end of November 2003, it was decided that as a result of the numerous complaints about Ms. Wedley, the co-operative should undertake another review of her performance. Most of the reviews were negative (Exhibit 36). Ms. Harvey acknowledges that these reviews were never brought to Ms. Wedley’s attention because around the time Ms. Harvey collected and collated the reviews, the Board had met and decided to dismiss the complainant.

44Ms. Harvey testifies that she was the note-taker for recording the minutes of all the Board meetings. Ms. Harvey’s evidence regarding the content of the January 2004 Board meeting and the discussions giving rise to the decision to terminate Ms. Wedley’s employment was consistent with Ms. McDermott, except for one additional and salient insight. Ms. Harvey concurs with Ms. McDermott that the Board had discussed its concerns regarding Ms. Wedley’s performance. When questioned why this aspect of the discussion had not been recorded, Ms. Harvey explains that despite being unhappy with Ms. Wedley’s performance, it was nevertheless “a difficult decision to let somebody go”. The Board decided the best way to handle the termination was to focus on the increased maintenance needs as opposed to the complainant’s poor performance. In this way, Ms. Wedley could still collect employment insurance benefits. Ms. Harvey states that “they (the Board) didn’t want her to be denied U.I. - it was a good intention, they were trying to help her.” Consequently, Ms. Harvey did not include the discussion regarding performance in the Board’s Minutes and issued Ms. Wedley’s Record of Employment (Exhibit 13) citing “reorganization” as the cause for termination.

45Ms. Harvey testifies that she, along with the Assistant Manager, met with Ms. Wedley the afternoon immediately after the Board meeting to advise Ms. Wedley of the Board’s decision. Ms. Harvey testifies that she advised Ms. Wedley that her employment was being terminated because the Board was looking for a cleaner with stronger maintenance skills and wanted to hire a second maintenance worker. Ms. Wedley was extremely upset, crying for quite some time and tried to get Ms. Harvey to change her mind. Ms. Harvey states that she explained it was the Board’s decision and that the needs of the co-operative were changing. Ms. Harvey insists that she did not tell Ms. Wedley that the Board was looking to hire two men, but that she had said something to the effect that “we need somebody with stronger maintenance skills like Kees and Jim”. She believes that, because Ms. Wedley was so upset, Ms. Wedley misunderstood this explanation to mean the co-operative was looking to hire two men.

46Ms. Harvey confirms that she faxed the job advertisements on the same day as Ms. Wedley’s dismissal, but is uncertain as to whether the postings were reviewed by any Board members prior to transmission. Ms. Harvey is unable to explain how or why the wording of the advertisements identified the positions as seeking a “cleaner/maintenance man” and a “maintenance man”. She speculates that perhaps she had copied language from some other advertisement. She insists that she was never directed by the Board to hire a man and, even if she had been told to do so, she would not have obeyed that direction. Ms. Harvey testifies that she spent her whole career empowering people, especially women, and consequently it was not in her nature to discriminate against a woman. Ms. Harvey testifies that she felt like she had let the Board down and that she would have to take sole responsibility for the advertisements.

47On January 15, 2004, Ms. Harvey interviewed Stephen Hayes for the cleaner/maintenance position. Ms. Harvey’s interview notes (Exhibit 41) indicate that Mr. Hayes was “mechanically inclined” as a result of his four years high school training in small engine repair and building electrical. Ms. Harvey’s summary observations prepared for the Board’s interview process further indicate that she “found him to be quiet and unassuming”.

Job Advertisement (Exhibit 14)

48The respondents concede that the January 11, 2004 job advertisements are contrary to section 23(1) of the Code, which the Tribunal hereby finds. Although admitting that the job advertisements violate the Code, the respondents assert that there is no connection between Ms. Wedley’s dismissal and the discriminatory job advertisements. They submit the job postings constitute a technical breach of the Code because the discriminatory phrase “maintenance man” was simply a colloquial expression for the job title.

Relevant CoDE Provisions

49Section 5(1) and section 9, which come under “Part I – Freedom from Discrimination” of the Code, provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of … sex

6. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

50Section 23(1), which comes under “Part II – Interpretation and Applications” of the Code, provide:

23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

ANALYSIS AND DECISION

51The initial evidentiary burden rests with the Commission and the complainant - they must establish, on a balance of probabilities, a prima facie case that Ms. Wedley was discriminated against with respect to her employment on the basis of the prohibited ground of sex. A prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer”, see Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28.

52Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration. If the respondent is able to rebut the prima facie case, the burden returns to the complainant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground, see Almeida v. Chubb Fire Security Div. (1984), 1984 CanLII 5036 (ON HRT), 5 C.H.R.R. D/2104 (Ont. Bd. Inq.). The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent, see Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.).

Background of Alleged Unfair Treatment

53The Commission led the complainant through much evidence regarding three adverse situations which they suggest were gender-related and served as the backdrop to the discriminatory dismissal. The three alleged discriminatory circumstances were (i) the harsh conduct of Jim Pasnick, (ii) the provision of inadequate maintenance training and (iii) the accusation of an affair. I have carefully considered the evidence regarding these three circumstances; however, I am not satisfied this evidence supports a finding of unequal treatment because of gender for the reasons described below.

54Ms. Wedley’s own evidence attributed Mr. Pasnick’s behaviour as resentment flowing from the fact that she secured the cleaning job instead of his friend. The oral and documentary evidence indicates that the friction between Ms. Wedley and Mr. Pasnick revolved around who had carriage of work. This friction was not obvious to Mr. Kroon, nor discussed with Ms. Wedley’s spouse, Mr. Arnold. The above leads the Tribunal to conclude that, while Ms. Wedley perceived harshness from her co-worker, the evidence is insufficient to discharge the burden of evincing a link between the alleged mistreatment and the ground of gender.

55Ms. Wedley testified that she received training from Mr. Kroon in relation to a variety of basic repairs, however this training was not sufficient to deal with on-call boiler, plumbing and furnace emergencies. The oral and documentary evidence substantiates that Ms. Wedley’s maintenance training was underway by late August 2003 and that in the fall and winter months the co-operative experienced increasing unit turnovers, maintenance problems and building work orders. In her evidence, Ms. Wedley confirmed that there simply wasn’t enough time during the regular work week to incorporate further training. This evidence suggests that although Ms. Wedley received some maintenance training, regular cleaning and maintenance duties hindered the opportunity for greater training. This evidence does not support a finding that Ms. Wedley was treated adversely with respect to maintenance training because of her gender.

56Ms. Wedley was clearly offended by the affair rumour and had hard feelings towards Ms. Harvey for the “accusing” manner in which Ms. Harvey broached the issue. It is apparent from Mr. Kroon’s evidence that both he and Ms. Wedley were equally implicated in the unfortunate situation and jointly instructed to avoid each other so as to forestall further rumours. Mr. Kroon was candid and forthright and I accept his evidence in its entirety. As such, the evidence does not support the claim that there was an adverse disparity in how Ms. Wedley was treated with respect to the affair accusation.

57On the basis of the evidence before me, I am unable to find that the Commission and the complainant satisfied the evidentiary burden supporting a link between the alleged adverse circumstances to the prohibited ground of gender discrimination. I will now turn to consider whether the complainant’s dismissal was tainted by a consideration of her gender.

Allegations of Discriminatory Dismissal

58The Commission argued that there were three potential bases for the complainant’s dismissal: 1) her poor performance, 2) reorganization of the cleaning-maintenance work and/or 3) seeking a male replacement. The Commission accepted that it was likely all three bases were “real” and played some role in the decision to terminate Ms. Wedley’s employment. Relying on Velenosi v. Dominion Management, 1997 CanLII 14482 (ON CA), [1997] 148 D.L.R. (4th) 575 (Ont. C.A.) for the principle that the prohibited ground need not be the only reason for the action taken, the Commission submits the respondents violated Ms. Wedley’s right to be free from discrimination in employment because one of the three reasons for the dismissal related to the prohibited ground of sex.

59Conversely, the respondents argue that the evidence demonstrates that many of the performance problems experienced by the complainant were of her “own making” due to her confrontational attitude, and that the evidence of increased maintenance needs and the costs associated with extra on-call coverage corroborates that gender played no role in the decision to dismiss the complainant’s employment.

Reasons For Dismissal

60It is well settled law that in order for a dismissal to constitute an infringement of the Code, it is not necessary that the sole or predominant reason for the dismissal be a discriminatory factor, see Holden v. Canadian National Railway Company (1990), 1990 CanLII 12529 (FCA), 14 C.H.R.R. D/12 (F.C.A.). Even when there are legitimate bases for terminating the complainant’s employment, if one of the considerations is related to a protected ground under the Code, then the termination will be held to be a violation of the Code, see Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.). As such, this Tribunal must assess whether the complainant’s gender was among the factors considered or influencing the termination of her employment.

61The evidence is undisputed that mounting maintenance work, unit turnovers and on-call expenditures were serious concerns for the co-operative. By her own admission, Ms. Wedley noted that she didn’t understand why she was required to rotate on-call duties when she was unable to perform a number of the tasks. The November 2003 Board Minutes confirm the co-operative was contemplating increasing maintenance staff. This is buttressed by Ms. Wedley’s recollection that around November, Ms. Harvey advised the cleaning-maintenance team of the Board’s intention to increase maintenance staffing, as well as the fact that two volunteers were being considered for employment with the cleaning-maintenance team. Consequently, I find that increased maintenance needs and expenses incurred for on-call emergencies were the primary bases for the decision to terminate the complainant’s employment.

62It is clear that the complainant’s performance was also a significant concern and one of the reasons underlying Ms. Wedley’s dismissal. The oral and documentary evidence was replete with examples of Ms. Wedley’s negative interactions with volunteers and members. It is difficult for this Tribunal to accept Ms. Wedley’s testimony denying the concerns, particularly the criticisms recorded in the warning memoranda. In final submissions, the Commission suggested that Ms. Wedley’s defensiveness could be understood in the context that she was surprised to be confronted with such extreme criticism a number of years after the fact. Yet, Ms. Wedley fully acknowledged receipt of five performance-related memoranda over a period of four months in 2003. Although Ms. Wedley downplayed the concerns documented in the memoranda and repeatedly attempted to shift the blame to others, her explanations were confusing and did not persuade the Tribunal that the respondents’ concerns were unjustified. Given the evidence of deteriorating performance, this Tribunal finds that by November 2003 the respondents held significant concerns regarding the complainant’s work performance and that the complainant was alerted to these concerns.

63Based on my assessment of the foregoing evidence, I conclude that the decision to terminate the complainant’s employment was not tied to her gender. None of the factors triggering the decision to dismiss, namely the increased maintenance needs, costs for on-call coverage and the complainant’s deteriorating performance, were informed by or related to Ms. Wedley’s gender. There was no conflict between the complainant’s evidence, the documentary materials and the respondents’ evidence that concerns regarding building maintenance and Ms. Wedley’s performance were troubling the co-operative’s management and Board in November and December 2003 and that these matters were discussed at the January 2004 Board meeting. All of the evidence pointed to these non-discriminatory reasons as underpinning the decision to dismiss.

64This Tribunal fully appreciates that, given the context of an exclusively male maintenance team, “increased maintenance needs” could have been a pretext for masking the stereotypical belief that a woman cannot perform heavy or complicated maintenance tasks. However, there was no evidence before the Tribunal that intimated such a biased perspective operating directly or indirectly in the events leading up to the decision to dismiss. Rather, the evidence supports the contrary. The respondents hired Ms. Wedley as a full-time cleaner with occasional maintenance on-call duties knowing that she had only basic maintenance skills. The respondents undertook to train Ms. Wedley for maintenance on-call and that training was being intermittently provided. However, in the fall and winter months, the co-operative’s unit turnovers increased and maintenance problems worsened. It became clear that Ms. Wedley did not have the necessary skills to independently manage maintenance emergencies. Also around this time, the Board determined that greater maintenance support was required due to the co-operative’s aging building. However, the complainant’s deteriorating cleaning and negative interactions with volunteers and members overshadowed the entire situation, eventually prompting the Board to re-evaluate her performance along with restructuring the cleaning-maintenance work. Ultimately, the Board determined that Ms. Wedley’s job should be reconfigured to create “an equal split” of cleaning and maintenance duties to address the co-operative’s increasing maintenance needs. Despite Ms. Wedley’s belief that it was the “exact same job”, the “cleaner/maintenance” posting clearly indicates that the advertised position entailed more maintenance responsibilities over some evenings and weekends. The Board did not consider keeping Ms. Wedley in this new role because of the dissatisfaction with her overall performance. In the absence of evidence demonstrating a pretextual excuse, an inference of discrimination cannot be drawn from these circumstances.

65For all of the above reasons, I am not convinced that the complainant's gender was a factor in the respondent’s decision to terminate her employment. I find the explanation provided by the respondents, namely that the complainant was dismissed due to deterioration of her work performance and increased maintenance needs, to be reasonable, plausible and rational. Given the totality of the evidence, I have not been persuaded that the respondents’ explanation was pretextual. Nevertheless, the evidence does support the finding that the execution of the dismissal was tainted by gender.

Dismissal Meeting and Job Advertisement

66Ms. Wedley alleges that at the January 8, 2004 termination meeting she was advised by Ms. Harvey that she was being dismissed so that the Board could hire two men and, to her dismay, this expressed intention to discriminate materialized three days later in the discriminatory job advertisement. I find that respondents have not adequately answered this part of the claim.

67I accept the evidence of Ms. Harvey that the Board opted to characterize the complainant’s dismissal as “reorganization”, so that the dismissal would be on a “without cause” basis, in order to facilitate the complainant’s ability to collect employment insurance benefits. However, the respondents have provided tenuous explanations for the verbal exchange during the dismissal meeting and the creation of the job advertisements. Ms. Harvey acknowledged that, at the dismissal meeting, she may have said something to the effect that “we need somebody with stronger maintenance skills like Kees and Jim.” She further suggested that she may have copied the advertisement from another newspaper posting, but she clearly proffered this latter account as conjecture.

68A critical component in assessing credibility of a witness is whether their evidence is in “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”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at 357. Given this principle and the test articulated in Lannin v. Ontario, supra, I conclude that, with respect to the dismissal meeting and job advertisement, an inference of discrimination is more probable from the evidence than the explanation offered by the respondents.

69I find that it is likely that Ms. Harvey did tell Ms. Wedley that the Board was seeking to hire two men. I find that Ms. Harvey likely resorted to rationalizing the dismissal on the basis of gender and the need for greater maintenance skills so as to sidestep the difficult discussion of dismissal related to performance. At the time, it may have seemed like a less hurtful explanation than advising the complainant that she was dismissed for deteriorating performance. This is consistent with Ms. Harvey’s testimony that the Board Minutes focused on the increased maintenance needs and the Record of Employment was issued citing “reorganization” so as to avoid penalizing the complainant’s receipt of employment insurance benefits.

70Based on all of the evidence, particularly Ms. Wedley’s adamancy that she was told that the Board was intent upon hiring two men and Ms. Harvey’s acknowledgment that she may have said something to the effect that the prospective hires would be similar to the existing maintenance staff, it cannot be sheer coincidence or pure inadvertence that the job postings solicited two men. The evidence establishes that the job advertisements were faxed to the newspaper on the very day of Ms. Wedley’s dismissal. The language of the job advertisements is consistent with Ms. Wedley’s recollection of Ms. Harvey’s comments. The preponderance of the probabilities, based on the timing and language of the job advertisements, lead this Tribunal to conclude, on a balance of probabilities, that Ms. Harvey did refer to gender during the dismissal conversation and this line of discussion was carried through to the discriminatory advertisement.

71Thus, while gender was not a factor in arriving at the decision to dismiss the complainant, it was a feature in communicating the dismissal. I conclude there was a reasonable basis for Ms. Wedley to believe that she was being dismissed because of her gender. I find that it is probable the gender-related comments attributed to Ms. Harvey were made and that these comments ultimately manifested in the discriminatory job postings. As a result of the dismissal conversation, Ms. Wedley was led to believe that Northview preferred a male worker to fill her role and this caused her to feel less worthy as a woman. Notwithstanding any “good intentions”, Ms. Harvey knew, or should have known, that it was inappropriate to rely on Ms. Wedley’s gender as part of the dismissal explanation and this communication could have a harmful impact on the complainant’s sense of identity as a woman in the workforce. Given that gender was an element in the dismissal conversation and job advertisement, I find that the respondents infringed Ms. Wedley’s right to equal treatment in respect of employment without discrimination because of sex. I next consider the separate issue of the import of the discriminatory comments and job posting with respect to remedies.

Remedies

72The remedial provisions of the Code are contained in section 41, which reads in part:

Where the Tribunal, after a hearing, finds that a right of the complainant under Part 1 has been infringed...the Tribunal may, by order,

(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(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.

73This remedial power has been interpreted in Ontario human rights jurisprudence as creating several categories of remedies that can be ordered by a Tribunal. Under subparagraph (a), Tribunals have ordered both personal remedies, such as promotion or reinstatement in employment, and public interest remedies, such as the establishment of workplace anti-discrimination policies and staff training. Under subparagraph (b), Tribunals have ordered monetary compensation for specific losses, such as lost earnings, expenses incurred in job search, commonly known as “special damages”. Further, under subparagraph (b), the Tribunal has authority to order two kinds of monetary compensation for intangible losses, commonly referred to as “general damages”. The first type of general damages compensation provides for the “loss of the right to freedom from discrimination”, which recognizes the inherent value of the right to equal treatment and dignity of each person. Second, if the discriminatory conduct was engaged in “willfully or recklessly” and negatively affected the complainant’s emotional well-being, the Tribunal may exercise its discretion under s. 41(1)(b) to make an additional general damages award of compensation for the complainant's mental anguish, up to the statutory limit of $10,000.

Special Damages

74Relying on the case of Airport Taxicab Association v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.), the Commission argued that the complainant should be restored to the position she would have been in had the discriminatory act not occurred. Ms. Wedley testified that the close proximity of Northview to her home made it an ideal workplace and she expected to remain there long-term. The Commission asserts that, but for the discrimination, Ms. Wedley would have continued to work for Northview and consequently, Ms. Wedley is entitled to full damages for loss of income. The complainant seeks special damages compensation for loss of income from the time of her dismissal in January 2004 to the time of the hearing (less mitigation) totaling $66,095.39.

75I have concluded that, in the present instance, the violation of the Code emanates from the discriminatory nature of the dismissal conversation and job advertisement. As previously noted, the discriminatory act was not the decision to terminate the complainant’s employment but, more precisely, the manner in which the termination decision was communicated. I find that an order for special damages is not appropriate in the particular circumstances of this violation.

76Special damages are awarded to indemnify for financial losses, such as salary or expenses, flowing from the infringement of the Code. The infringement in this case did not give rise to wage loss because this Tribunal has found that the dismissal decision was based on non-discriminatory factors and would have taken place irrespective of gender. Ms. Wedley incurred no special damages because of the discriminatory dismissal conversation. In other words, absence the discrimination (although Ms. Wedley would not have been subjected to the humiliation of the discriminatory gender-related explanation), she still would have been dismissed.

77The Commission and the complainant did not present evidence of any specific special damages incurred because of the respondents’ action in posting the discriminatory job advertisement. As such, I find Ms. Wedley did not suffer lost opportunity damages due to the discriminatory advertisement because she would not have applied for the reconfigured cleaner/maintenance position. I make this finding based on Ms. Wedley’s own testimony, wherein she confirmed a statement made during the Commission’s investigation that she would never have applied for a cleaning job involving extensive maintenance duties because of her minimal maintenance experience. Accordingly, this Tribunal makes no award for special damages in regards to the discriminatory job advertisement.

General Damages

78I now turn to the question of what, if any, general damages are appropriate compensation for the discriminatory dismissal comments and job advertisement. On behalf of the complainant, the Commission sought $20,000 for general damages in recognition of the inherent value of Code-protected rights, as well as $10,000 for mental anguish damages.

79In assessing the quantum of general damages for the “loss of the right to freedom from discrimination”, Tribunals have considered the need to uphold the intrinsic value of the infringed right, as well as the complainant’s experience of discrimination, including such factors as humiliation, hurt feelings and loss of self-respect, see Sanford v. Koop (No. 2), (2005), 2005 HRTO 53, 55 C.H.R.R. D/102 (H.R.T.O.). Unlike the statutory limit of $10,000 for mental distress damages, there is no cap or ceiling on the amount of general damages that can be awarded for recognition of the “loss of the right to be free from discrimination”, see Shelter Corporation v. Ontario (Human Rights Commission), (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 (Ont. Sup. Ct.).

80The Commission cited the factors articulated in Sanford v. Koop, supra, as the prevailing principles for assessing the appropriate quantum of general damages. The Commission highlighted that most of those factors, e.g., humiliation, hurt feelings, loss of self-respect, self-esteem and confidence, as well as the experience of victimization and vulnerability of the complainant, were applicable to Ms. Wedley and evocative of her reaction to the discrimination. The Commission noted Mr. Arnold’s evidence that Ms. Wedley came home crying following the dismissal meeting, was distressed upon discovering the job advertisement and continued to be upset and tearful for about two weeks.

81The respondents urged the Tribunal to not exercise its power to award general damages, or alternatively submitted that the amounts sought were excessive and as such, the Tribunal should only award nominal general damages. The respondents averred that the upset experienced by Ms. Wedley was due to the loss of employment and that everyone experiences distress over losing a job. Although the respondents conceded that the job advertisement infringed the Code, they asserted that this was a technical violation because the job advertisement simply used “maintenance man” as the colloquial expression for the job.

82The Tribunal does not agree with the respondents’ submissions. The evidence established that Ms. Wedley was offended and embarrassed because of the discriminatory dismissal conversation. She felt demeaned by Ms. Harvey’s gender-related explanation. Although the proposition put forward by the respondents is accurate to the extent that everyone experiences distress with job loss, Ms. Wedley expressed obvious hurt and affront over the idea that she was being replaced because of her gender. Ms. Wedley’s testimony resonated with injury and insult engendered from the feeling of being victimized by discrimination.

83The evidence indicates Ms. Wedley’s feeling of victimization was compounded by the discriminatory job advertisement. I understand the respondents’ submission that the vernacular of “maintenance man” may be a casual idiomatic label for the job. However, the respondents’ submissions discount the import of such language when it is used as part of an employment recruitment campaign. When a male-oriented phrase is relied upon to designate a job title or describe the position, it has an exclusionary impact for women because it evinces a distinction based on gender and implies a preference as to the gender of the candidate. It further has the potential to reinforce negative stereotypes about the ability of women to do maintenance work and suggests that women cannot participate fully and equally in the workforce. The evidence clearly indicates that Ms. Wedley felt humiliated upon reading the job advertisement.

84In Sanford v. Koop, supra, the Tribunal noted that the quantum of damages should not be set too low, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”: at para. 34. Understanding that the Commission was seeking general damages in the amount of $20,000 for the infringement of Ms. Wedley’s rights arising out of the discriminatory dismissal (a claim which the Tribunal concludes has not been fully validated), the Tribunal accordingly finds that $5,000 is an appropriate award for general damages. An award of $5,000 sufficiently recognizes the magnitude of this complainant’s humiliation and loss of dignity as result of the discrimination, and signals the importance of the right to be free of discrimination in all aspects of the employment relationship, including at the point of notifying the worker about the dismissal decision.

85The Divisional Court in Papa Joe's Pizza v. Ontario (Human Rights Commission) 2007 CanLII 23487 (ON SCDC), [2007] O.J. No. 2499 (Ont. Sup. Ct. of Justice) noted that an award for mental anguish damages is discretionary. I do not exercise my discretion to order an award for mental anguish damages. Although they made a claim for mental anguish damages, the Commission’s submissions did not address the prerequisite element of the mental anguish award, namely that the infringement must be engaged in wilfully or recklessly. Given my findings limiting the Code violation to the discriminatory dismissal conversation and job advertisement, the question of whether these infringements were engaged in wilfully or recklessly remains outstanding. Further, I am not satisfied that the impact of the discriminatory dismissal conversation and the job advertisement gave rise to emotional distress distinct from that described in regard to general damages and subsumed in that award. Lastly, a number of the criteria relied upon by the Commission in attempting to substantiate the mental anguish claim, e.g., knowledge on the part of the respondent that the conduct was unwelcome, objections to the offensive conduct, frequency and intensity of the conduct, are not applicable to the present case. Accordingly, this Tribunal makes no award for mental anguish damages.

Public Interest Remedies

86With respect to public interest remedies, the Commission requested several orders. In sum, the Commission sought that Northview retain, at its own expense, an external consultant to: i) provide human rights training to all Board members and employees; ii) develop an anti-discrimination and harassment policy; iii) develop and implement a human right complaints procedure and iv) post Code cards. With respect to Ms. Harvey, the Commission sought an order requiring the personal respondent to undergo, at her own expense, human rights training facilitated by an expert approved by the Commission and that the Commission be informed once the training has been completed. The Commission submits that the Tribunal’s power to order the personal respondent to undergo human rights training at her own expense arises from the Tribunal’s authority under s. 41(1)(a) of the Code, to order a party who has contravened the Code to “do anything to achieve compliance with this Act … both in respect of the complaint and in respect of future practices”.

87The respondents took no position with respect to the public interest remedies directed at Northview, except to request this Tribunal consider the complexities of the small workplace. The respondents did take issue with the requirement that Ms. Harvey be required to undergo human rights training at her own expense. The respondents argued that the Commission’s request for a public interest order against Ms. Harvey is inappropriate because Ms. Harvey no longer works with the co-operative and therefore such an order does little to reduce the likelihood of future discrimination at the workplace that is the subject of the complaint.

88I am guided by a recent decision of this Tribunal which elucidates that “[p]ublic interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”, see Giguere v. Popeye Restaurant, 2008 HRTO 2, [2008] O.H.R.T.D. No. 2 at para. 91. The facts of this case clearly indicate that staff and members of Northview need to be sensitized regarding general human rights principles, and that there also needs to be a mechanism whereby individuals living, working or volunteering at the co-operative can voice their human rights concerns. Thus, after careful consideration of the facts, this Tribunal concludes that Northview should produce a human rights policy and enforce a human rights complaints process that is responsive to the distinctive dynamics of co-operative housing.

89Taking into consideration the respondents’ concerns, as well as the need to foster future compliance with the Code, this Tribunal hereby orders that, Northview develop, with the assistance of an external consultant retained at its expense, an Anti-Discrimination Policy and Human Rights Complaints Procedure for employees and members of the co-operative and, within four months of the date of this Order, Northview file a copy of the Anti-Discrimination Policy and Human Rights Complaints Procedure with the Commission for its approval.

90Throughout the hearing, both the corporate and personal respondent emphasized the unique aspects of co-operative housing, particularly the multi-faceted and sensitive relationship amongst staff, management, membership and the Board of Directors. Ms. Harvey’s long-standing professional experience regarding the unique housing, employment and management issues pertaining to co-operatives may be of assistance to Northview and its external consultant in developing the human rights policy and complaints procedure ordered above. As such, Northview is further ordered to provide to Ms. Harvey a draft copy of the Anti-Discrimination Policy and Human Rights Complaints Procedure. Northview is ordered, through its external consultant, to seek Ms. Harvey’s input with respect to any unique implications the policy and procedure pose for the co-operative setting.

91Similarly, it appears that Ms. Harvey would benefit from becoming better apprised about human rights protections and responsibilities. As such, Ms. Harvey is ordered to fully review Northview’s proposed Anti-Discrimination Policy and Human Rights Complaints Procedure. Ms. Harvey is ordered to provide, within two weeks of receipt of the draft policy and procedure, feedback to Northview’s external consultant and to file with the Commission her feedback and acknowledgment of the content of the Anti-Discrimination Policy and Human Rights Complaints Procedure.

92Northview is ordered that, upon receipt of the Commission’s approval of the Anti-Discrimination Policy and Human Rights Complaints Procedure, to promptly provide copies of this policy and procedure to all current and future employees, volunteers and members of the co-operative. Within three months of receipt of the Commission’s approval, Northview is further ordered to provide, with the assistance of an external consultant retained at its expense, training regarding the Anti-Discrimination Policy and Human Rights Complaints Procedure to all current employees, volunteers and members of the Board of Directors.

93Within three months of the Tribunal's decision, Northview is ordered to post Code cards, provided by the Commission, prominently within common areas of the co-operative, as well as in its management offices and staff work rooms.

Conclusion

94Although Ms. Harvey states that she is solely at fault for the job advertisements, it is clear that both discriminatory acts, namely the dismissal conversation and job posting, were carried out in her capacity as General Manager of Northview under the oversight and direction of the Board of Directors. Further, there was some evidence to suggest that the members of the Board may have, or should have, reviewed the job advertisement prior to distribution. Thus, pursuant to section 45(1) of the Code, I find Northview is both directly and vicariously liable for the discriminatory dismissal conversation and job advertisement. As such, Northview and Ms. Harvey are jointly and severally liable to pay Ms. Wedley the following amounts within 30 days of this Order:

(1) $5,000 as compensation for her loss of the right to be free from discrimination under sections 5(1) and 9 of the Code;

(2) Pre-judgment and post-judgment interest in accordance with the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended. Prejudgment interest shall run from the “date the cause of action arose”, that being the date of dismissal, January 8, 2004.

95Further to the deadlines set out in paragraphs 89-93, the Tribunal orders: Northview post Code cards, develop, circulate and implement, with the assistance of a paid, external consultant, an Anti-Discrimination Policy and Human Rights Complaints Procedure and that the policy and procedure be filed with and approved by the Commission. Ms. Harvey must review the policy and procedure, provide feedback to Northview through its external consultant and confirm her feedback and acknowledgement of the policy and procedure with the Commission. Upon Commission approval, Northview must train its current employees, volunteers and Board of Directors with respect to the policy and procedure.

96This Tribunal will remain seized for a period of 12 months from the date of this decision to deal with any issues with respect to the implementation of this Order.