Ravi DeSouza v. 1469328 Ontario Inc., 2008 HRTO 23

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ravi DeSouza Complainant

-and-

Ontario Human Rights Commission Commission

-and-

1469328 Ontario Inc. o/a Joshua Creek Golf & Tennis and Craig Young Respondents

DECISION

Adjudicator: Kaye Joachim Date: April 15, 2008 Citation: 2008 HRTO 23 Indexed as: Ravi DeSouza v. 1469328 Ontario Inc.

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@ontario.ca Website www.hrto.ca

APPEARANCES

Ravi DeSouza, Complainant ) On his own behalf Ontario Human Rights Commission ) Brian Smith, Counsel ) 1469328 Ontario Inc. o/a Joshua Creek Golf & ) Craig Young on his own behalf Tennis and Craig Young, Respondents ) and on behalf of the Corporate ) Respondent

INTRODUCTION

1Ravi DeSouza alleges that he was discriminated against in employment by the respondents, Craig Young and 1469328 Ontario Inc. o/a Joshua Creek Golf & Tennis (the “Club” or the “Joshua Creek Club”), because he has epilepsy. In particular, he alleges Mr. Young and the Club imposed unreasonable restrictions on his continued employment during the 2003/04 tennis season in response to his epileptic seizures. He further alleges he was not offered a position for the 2004/05 season because of his epilepsy. Mr. Young and the Club assert they made reasonable requests for information and imposed reasonable requirements on Mr. DeSouza following three epileptic seizures to ensure a safe working environment. The decision not to offer Mr. DeSouza a position for the 2004/05 tennis season was made entirely on the basis that his teaching and playing abilities did not match the needs of the Club.

2Sections 5(1) and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) prohibit discrimination in employment on the basis of disability. Epilepsy is expressly identified as a disability in section 10 of the Code.

3The issues in dispute are:

1. Did the respondents discriminate against Mr. DeSouza during the course of the 2003/04 season because of his epilepsy?

2. Did the respondents decide not to hire Mr. DeSouza for the 2004/05 tennis season because of his epilepsy?

3. If the respondents discriminated against Mr. DeSouza because of his epilepsy, what are the appropriate remedies under the Code?

The Hearing Process

4The hearing took place from February 25 to February 28, 2008 in Toronto. A number of witnesses testified. Other than Mr. DeSouza and Mr. Young, the witnesses adopted their written statements in chief and were cross-examined briefly. I found this manner of proceeding efficient and effective and I commend the parties for assisting in the expeditious introduction of this evidence. In addition, I commend Commission counsel for the even-handed presentation of the evidence and argument and his efforts to ensure that the respondents’ position was placed fairly before the Tribunal.

Credibility Assessment

5Most of the facts are not in dispute. I find that the key witnesses, Mr. Young and Mr. DeSouza, were both credible witnesses. Their versions of the events are consistent with each other. The key credibility issue turns on Mr. Young’s evidence, which conflicts, not with Mr. DeSouza’s testimony, but with two written documents he prepared. I set out my findings of credibility as the issues arise.

FINDINGS OF FACT AND LAW

Mr. DeSouza’s Epilepsy and Tennis Background

6Mr. DeSouza started to experience seizure activity related to epilepsy when he was eight years old. His seizures last a few minutes or less, during which time Mr. DeSouza experiences what he described as “absences” or “blackouts.” He has some awareness of what is going on around him but is unable to fully comprehend or respond. He was originally diagnosed as having “petit mal” epilepsy and in 2005 was subsequently diagnosed as having “complex partial” epilepsy. He has been seeing his current family physician, Dr. S. Leung, for many years and is also frequently seen by a neurologist. They jointly assist Mr. DeSouza in managing his epilepsy through medication.

7Mr. DeSouza earns his living teaching tennis. He holds a Coach 1 certification with Tennis Canada and an Instructor certification from the United States Professional Tennis Registry. Until 2003, Mr. DeSouza’s career in teaching tennis was primarily in the Mississauga Parks & Recreation community club system. Community tennis clubs are geared towards encouraging members of the community to learn to play tennis.

The Joshua Creek Club

8In the summer of 2003 Mr. DeSouza learned that the Joshua Creek Club, a private indoor tennis club, was opening in Mississauga and he contacted the Club to inquire about a position as a tennis instructor for the winter season.

9The Joshua Creek Club is owned by 1469328 Ontario Inc. The five owners of the Club, also referred to as the board of directors, were not tennis professionals and had little or no involvement in the Club’s operations. Mr. Young was hired to manage the Club. Among his responsibilities, Mr. Young hired administrative staff, recruited members, collected membership fees, and managed court bookings. Mr. Young operated the teaching component of the Club through his own numbered company, Joshua Creek Sports Inc., hiring and paying the instructors and taking a portion of their lesson fees. Mr. Young operated the Joshua Creek Club on this basis from 2003 to 2005.

10In 2006, Mr Young leased the tennis club premises directly from 1469328 Ontario Inc. and paid it a lease fee. Joshua Creek Sports Inc. took over the Club’s administration and teaching program.

The 2003/04 winter season at the Joshua Creek Club

11Mr. Young hired Mike Pietras, Atilla Nagy and Ravi DeSouza on full time contracts for the September 2003 to April 2004 winter season. All three men were certified tennis professionals. The Club paid them for their work in the office while Joshua Creek Sports Inc. paid for their work as tennis instructors.

12Mr. DeSouza ran the programs for junior players at the beginner and intermediate levels and provided private tennis lessons to all members, as required. His office duties included opening the Club, taking court bookings, checking the courts and performing other administrative tasks. Mike Pietras and Atilla Nagy coached the elite high performance players and also provided private tennis instruction and some office work.

13Several part-time tennis instructors were called in on an “as needed” basis to assist in running the various tennis programs and round robins. Two of these employees, Aly Zaver and Amr Ahmed, helped Mr. DeSouza run the junior program.

The seizure activity in November and December 2003

14In November 2003, Mr. DeSouza experienced an epileptic seizure at the Club while playing tennis with Aly Zaver. Mr. DeSouza described his experience as a brief absence or blackout, lasting a few minutes. Mr. Zaver reported to Mr. Young that Mr. DeSouza seemed to lose awareness and that he spoke in a strange voice.

15Later that month, Mr. DeSouza experienced a second seizure, again while playing tennis against Mr. Zaver. Mr. DeSouza described his experience as a brief absence or blackout, lasting a few minutes. Mike Pietras witnessed the seizure and was considerably upset and panic-stricken by what he saw. He ran and told Mr. Young Mr. DeSouza was pacing around, swinging his racquet, and speaking in a strange voice.

16There is some discrepancy between Mr. DeSouza’s perception of these two seizures (as minor absences or blackouts) and Mr. Zaver’s (as reported to Craig Young) and Mr. Pietras’ description of these seizures. As Mr. DeSouza’s perception abilities during a seizure are understandably significantly impaired and the descriptions reported to Mr. Young were not contradicted, I accept those descriptions over Mr. DeSouza’s.

17Mr. Young was concerned and telephoned Mr. DeSouza. Mr. DeSouza explained he had “absences” or “blackouts” lasting a few minutes and was taking medication for them. He did not specifically mention epilepsy or seizures. He talked about the various triggers that might contribute to the onset of a seizure. Mr. Young recognized the name of the medication and realized that Mr. DeSouza had epilepsy. He testified that he felt relieved at that point, since he now knew what was going on. Mr. DeSouza agreed Mr. Young appeared to be satisfied with his answer.

18In mid-December Mr. DeSouza had a third seizure just outside the Club office. During this seizure he fell or slid to the floor. While not witnessing the actual seizure, Mr. Young heard Mr. DeSouza shout out and realized what had occurred. He brought Mr. DeSouza to the office to recover. Several members of the tennis club witnessed the scene and were concerned.

The Club’s response to Mr. DeSouza’s seizure activity

19Mr. Young testified that he felt that he had to deal with the situation of Mr. DeSouza’s seizures. As a result, he wrote a detailed letter to Mr. DeSouza on January 5, 2004 and left it for him in the office, marked, “read at home.”

Dear Ravi:

I am putting this in writing to help clarify the situation and document some of the details of my concern as both a friend and an employer. I would also like to meet with in person or talk over the phone about the details of this letter.

You have had three seizures at the club to date, that I am aware of. I have determined through some research into the medication you have indicated you are taking, that this is a result of an epileptic condition. If I am incorrect please let me know and provide a thorough explanation of what is causing the episodes.

Your neglect to let me know about your condition from the outset of your employment and even after having seizures is an issue. After the second on court seizure I had to call you get an explanation. Your description of minor “black outs” or “absences” doesn’t fit with the reports of what happened on court that day, which were far more severe. A third seizure occurred when we were sitting having lunch together, this incidence seemed less severe than the second on court seizure, but it did involve you collapsing on the ground, seemed to come on without much warning and was not brought about by what you described as being your usual triggers. After this third seizure your reaction was to brush it off as if nothing happened, not to discuss what had occurred and how to handle it. If I wasn’t there, the members said they would have called 911. What would happen if this occurred with nobody around to help and you were injured in the fall?

I am worried about whether you are fully aware of severity of your own situation, whether you are taking the necessary precautions for your own safety and taking the all necessary steps and medication to control your seizures. Without the staff and I having accurate or full knowledge of your condition, we don’t have the awareness of how to help you in the event of a seizure.

The main concerns are for your well being and the potential implications of your having a seizure while on court or during a shift in the office. If you are to have a safe, successful working relationship at the club we need to address this issue with more openness, information and preparedness for the event that you continue to have seizures.

Your situation has been discussed with the board of directors and we ask that you to provide us with more detailed information on your condition, for our assessment of how it relates to your safety at the club and liability issues for us as employers. Until such time we must suspend you’re on court responsibilities. After the clubs review of your information we will reassess your situation. In the interim you may continue with the office portion of your work if you provide us with information on how to help you in the event of a seizure.

The club requires the following for our review:

1. A letter from your Doctor or Neurologist stating that he or she is aware of you recent seizure activity and their assessment of how safe it is for you to work as both a tennis professional and a member of the office staff. They must be made aware and consider the facts that you are often working alone and with groups of children. Their assessment must also take into consideration that the job is in part of a physical nature and that people around (tennis clients) may not be aware of the possibility of seizure occurrence and how to handle it.

2. Written information for staff members on how to deal with a seizure if one should occur.

3. Your ability to be open with, and provide information to anyone you interact with on a regular basis. Staff, club members and tennis students must know about your situation and know how to cope in the event of a seizure.

4. We also require your assurance that you are coping properly with your situation, taking all necessary medication, seeking regular medical council and avoiding triggers that may bring about seizure activity.

Please contact me to discuss this further.

Thanks

Craig

20Mr. DeSouza testified that he was shocked by this letter and understood his continued employment was in jeopardy. He felt Mr. Young was suggesting that he had done something wrong in omitting to advise Mr. Young about his epilepsy prior to being hired. In his experience, employers tend to overreact to epilepsy and he feared such an overreaction. He felt that since he had been playing and teaching tennis safely for years, he should not have to submit to Mr. Young’s demands. Nonetheless, he was eager to keep the job and decided he would co-operate with Mr. Young’s requests.

21Mr. Young suggested in argument that Mr. DeSouza’s reaction to this letter was exaggerated and unfounded. I do not agree. Although parts of the letter were solicitous, and expressed Mr. Young’s concern “as a friend” and concern for Mr. DeSouza’s health, there is also a clear concern for the Club’s “liability”. In my view, the letter expressed criticism of Mr. DeSouza for failing to disclose his epilepsy upon hiring, implied that Mr. DeSouza’s continued employment was in jeopardy, and required Mr. DeSouza to submit to numerous conditions to continue teaching at the Joshua Creek Club. For reasons discussed below, I find some of these requirements were unduly onerous. Thus, I find Mr. DeSouza’s testimony about his reaction to the letter reasonable in the circumstances and hence credible.

22Mr. Young and Mr. DeSouza met to discuss the four steps contained in the letter. Mr. DeSouza agreed to provide: a letter from his doctor, information for staff members on dealing with a seizure, and an assurance to Mr. Young that he was taking good medical care of himself so as to reduce the likelihood of further seizures.

23With respect to the third step, Mr. DeSouza did not believe requiring him to advise all staff and tennis students and all members of the club that he had epilepsy and advising them how to deal with the situation of an epileptic seizure was appropriate. However, Mr. DeSouza agreed to talk to the other staff members. Mr. Young testified that he never meant that Mr. DeSouza needed to tell all the members. He understood item 3 to mean that Mr. DeSouza should advise the other staff members whom he worked with regularly so that they could take appropriate action in case of another seizure. Mr. Young also wanted Mr. DeSouza to tell all his clients taking private lessons about his epilepsy in case of a seizure.

24Following this meeting Mr. Young immediately re-instated Mr. DeSouza’s on-court duties and Mr. DeSouza taught a lesson later that day. Mr. DeSouza did not lose any income as a result of the letter.

25Mr. DeSouza visited his family doctor, Dr. Leung, showed her a copy of the January 5, 2004 letter and requested a letter in response. Dr. Leung provided the following letter:

13 January 2004

To Whom It May Concern:

Re: Ravi Desouza

I have been Ravi DeSouza’s Doctor for over ten years and know him as a fully capable, talented and personable individual. Ravi is a tennis professional, which is excellent since physical activity like teaching and playing tennis is very safe and encouraged for maintaining good health. Epilepsy is not a psychological disorder or a disease and Ravi’s seizures are very mild since they are non-convulsive. Ravi is very dedicated to taking his medication and maintains a very healthy and positive lifestyle and does not abuse drug/alcohol or tobacco. The December 2003 seizure activity may have been triggered by a combination of him taking a new medication with lack of sleep and at times not eating properly.

In the event that Ravi may experience a seizure at the club, there is no need for staff, members and/or children to be alarmed. DO NOT call 911, since these seizures typically last for a few minutes and he may appear disoriented for that short time. Let the seizure typically take its course while speaking calmly and guide him away from any hazards. Ravi’s seizures are non-convulsive and non-spasmodic therefore there is no fear of liability since he will never fall quickly to the ground and/or risk injury to himself. To date, I have never had any injury reports of this nature from his family. Ravi’s health is monitored on a regular basis and he is committed to taking his medication, getting proper rest and maintaining healthy lifestyle choices.

If you have any further questions, please do not hesitate to contact me at the above number.

26Mr. Young testified that Dr. Leung’s letter satisfied the demands he had made of Mr. DeSouza and after that point he did not ask Mr. DeSouza for any further information nor ask him to comply with any further restrictions. At the same time, Mr. Young testified that Dr. Leung’s description of Mr. DeSouza’s seizures as “very mild” and that he would “never fall quickly to the ground” were inconsistent with what Mr. Pietras and Mr. Zaver had reported to him and what he himself had seen. Thus, Mr. Young questioned (to himself) whether Mr. DeSouza was accurately reporting his seizure activity to Dr. Leung.

27This discrepancy in perception about the nature of Mr. DeSouza’s seizures was the subject of much evidence that is, in the end, irrelevant to my decision. Mr. DeSouza conceded that he reported his seizures as he perceived them to his family doctor, and not how others had reported them to him. Thus, Mr. Young’s concern that Mr. DeSouza was not accurately reporting how others perceived his seizures was somewhat accurate. However, that makes no difference to the ultimate outcome of this complaint. If Mr. Young harboured secret concerns about the usefulness and reliability of Dr. Leung’s opinion, then he could have contacted Dr. Leung, as he was specifically invited to do in Dr. Leung’s letter. He did not do so.

28Mr. DeSouza diligently tried to keep Mr. Young advised of his condition and his ability to handle the job. Mr. DeSouza offered to speak to the board of directors about his condition, but Mr. Young advised that it was not necessary. Mr. Desouza brought in a follow up letter from his neurologist in March 2004. He also brought in some pamphlets describing epilepsy and how to deal with the condition. Mr. DeSouza testified that when he took the above actions Mr. Young seemed “disinterested”.

29Mr. Young agreed that Mr. DeSouza followed up with him diligently and was pleased Mr. DeSouza was being more open about his condition. What Mr. DeSouza viewed as “disinterest” is consistent with Mr. Young’s assertion that Mr. DeSouza’s epilepsy was no longer a concern to him.

Did the respondents discriminate against Mr. DeSouza during the course of the 2003/04 season?

30One of the issues in this case is whether the respondents’ reaction to Mr. DeSouza’s epileptic seizures amounted to a breach of the Code.

31After Mr. DeSouza’s two epileptic seizures on the tennis court, Mr. Young contacted Mr. DeSouza to inquire about the nature of the seizures. Neither the Commission nor Mr. DeSouza suggested that this inquiry was a violation of the Code. I agree. An employer is entitled to make reasonable inquiries about an employee’s health status in order to ensure the safety of its employees and clients.

32After the third seizure in a short space of time, Mr. Young wrote the letter of January 5, 2004, essentially imposing four conditions on his continued employment:

(i) medical confirmation that it was safe for Mr. DeSouza to continue to teach tennis in light of his frequent seizure activity;

(ii) written information for staff on how to deal with a seizure if one should occur;

(iii) a requirement that Mr. DeSouza be “open with” anyone he interacted with on a regular basis; and

(iv) an assurance that Mr. DeSouza was receiving appropriate medical care.

33The Commission and Mr. DeSouza did not take issue with conditions 1, 2 and 4 above. However, they argue that item 3 was not a reasonable requirement in the circumstances. I agree with their approach.

34I find that an employer is entitled to take reasonable steps to ensure the safety of its workers and clients. What would have been reasonable steps in this case and which steps crossed the line? Mr. DeSouza had experienced three seizures over a relatively short period of time. During one seizure he fell or slid to the floor. Several members of the club observed this seizure and were confused and concerned. Two of the seizures occurred while Mr. DeSouza was playing tennis. In one of those episodes, he was observed swinging his racquet and speaking in a strange voice. Some staff members believed, wrongly, that psychological issues might be at play. Mr. DeSouza worked regularly with young players as he was in charge of the junior and intermediate tennis programs. These are often taught in group lessons where Mr. DeSouza would be present on the same side of the court with the junior players. He also gave private lessons to adult or junior players, in which case they would be on the opposite court during the lesson.

35I find that there would be no danger to an opposing player when Mr. DeSouza plays with or gives lessons to a private client. At most, the person playing with Mr. DeSouza, on the opposite court, would be puzzled and concerned, and perhaps mildly inconvenienced, if Mr. DeSouza experienced a seizure during a lesson or game. However, they would be at no risk of injury.

36When Mr. DeSouza is teaching group lessons to juniors, he would be present on the same court with the students. In these circumstances there is the potential for some risk of injury to other club members. This risk is quite minimal, as the evidence has established that since 1995 Mr. DeSouza has never injured a student during group lessons. While swinging the raquet could potentially injury a player, this potential is both remote and the level of injury it could potentially cause is mild. It is true that the students, some of whom are children, might be concerned, puzzled or frightened by a seizure.

37Finally, there is the potential of injury to Mr. DeSouza. He could walk into a sharp object or fall or slide to the floor, or hit himself with the swinging racquet. This risk is quite minimal.

38Despite this extremely minimal safety risk, I agree it was reasonable for Mr. Young to seek information from Mr. DeSouza about how he should deal with the situation if Mr. DeSouza had another seizure at work. The seizures were causing confusion and concern among other staff and club members and those concerns needed to be addressed with the proper information. It is reasonable for an employer to want to know how to deal with an employee’s seizures, especially when the employee who is subject to the seizures is working with young children who might be concerned or frightened by an unexpected seizure. Dr. Leung’s letter of January 13, 2004 provided that information. Dr. Leung advised that in the case of seizure, the best course of action is to guide Mr. DeSouza away from any hazards and let the seizure take its course.

39However, Mr. Young went further than merely requesting information for himself. He wanted Mr. DeSouza to meet with all the staff with whom he regularly worked and explain that he had epilepsy and how to deal with the situation in case of a seizure. Mr. DeSouza testified that he did try to talk once with Mike Pietras but that Mr. Pietras seemed uncomfortable discussing the matter. Mr. Pietras agreed that they had had a somewhat awkward discussion. Further, Mr. DeSouza testifed that he asked to address a staff meeting on one occasion and Mr. Young refused to let him do so. Mr. Young did not recall that. I do not need to resolve that minor discrepancy, or determine whether Mr. DeSouza took adequate steps to advise his colleagues how to deal with the situation, because I find that it was not Mr. DeSouza’s responsibility to do so. The employer, not the employee, should take the lead in instructing those staff who need to know, and only those staff, how to deal with a seizure. Once Mr. Young had Dr. Leung’s letter, Mr. Young had sufficient information to instruct his staff how to deal with the situation should Mr. DeSouza have a seizure while working, on or off the court.

40I accept Mr. Young’s evidence that he was concerned about Mr. DeSouza’s privacy and that he believed it would be less invasive of Mr. DeSouza’s privacy if Mr. DeSouza spoke directly to the employees. However, it is the responsibility of the manager, not the employee, to provide proper instruction and direction to staff.

41Further I find that it was not reasonable to require Mr. DeSouza to advise all his private tennis clients in advance that he had epilepsy and advise them how to respond in the case of a seizure. As discussed above, there is virtually no risk of injury to the client during a private lesson. The evidence of Marino Aloysius, a private tennis client of Mr. DeSouza’s, was helpful on this point. Mr. Marino has taken over 80 private tennis lessons with Mr. DeSouza since 2000. Mr. DeSouza did not advise him in advance that he had epilepsy. The first time Mr. DeSouza had a seizure while playing was during the summer of 2003. The seizure affected the lesson for a few minutes. After the seizure, Mr. DeSouza explained what happened and they continued their lesson. In my view, this demonstrates that Mr. DeSouza can safely provide tennis lessons to private clients without advising them in advance of his epilepsy. In the rare situation where Mr. DeSouza has a seizure during a lesson, he can advise the client after the fact what happened and how the client should respond in the future.

42Although Mr. Young did not actively enforce the requirement that Mr. DeSouza advise all his private clients, in advance, of his epilepsy, I find simply imposing that requirement on him amounted to discrimination in employment on the basis of disability.

43In addition, the January 5, 2004 letter implicitly criticizes Mr. DeSouza for failing to disclose his epilepsy prior to his employment. The law is clear that a person with epilepsy does not have to disclose that information at the hiring stage where the epilepsy does not affect the person’s ability to do the job. The mere fact that a person may have a seizure does not, in and of itself, require the employee to give advance notice to the employer (Rapson v. Stemms Restaurants Ltd. (1991), 14 C.H.R.R. D/44). Thus, I find the reprimand contained in the letter of January 5, 2004 is also a form of disability-related employment discrimination.

Did the respondents decide not to hire Mr. DeSouza for the 2004/05 tennis season because of his epilepsy?

44The next issue is whether the respondents failed to offer Mr. DeSouza employment for the 2004/05 tennis season because of Mr. DeSouza’s epilepsy.

45Mr. DeSouza continued to perform his administrative duties and his on-court duties from January to April 2004 with no further seizure activity. Both parties testified that the epilepsy did not appear to be an issue for the remainder of the season.

46There is no disagreement between the parties that Mr. DeSouza was keenly interested in returning for the following season, that Mr. Young generally gave Mr. DeSouza positive comments about his performance, and that Mr. Young did not raise any concerns with Mr. DeSouza about his teaching or administration skills.

47The 2003/04 tennis season ended in April 2004. Mr. Young invited Mr. Pietras and Mr. Nagy back for the 2004/05 season commencing late September 2004. Mr. Young did not invite Mr. DeSouza back for the 2004/05 season.

48Mr. Young asserts that he did not hire Mr. DeSouza back because his teaching and playing ability were not a good match for the Joshua Creek Club. Mr. Young testified that he did not feel any obligation to hire back the 2003/04 employees and that his primary concern was to hire the best qualified tennis instructors to meet the needs of the Club. This evidence was not contradicted and accords with common sense. Mr. Young profits directly from running the teaching program. He has an interest in hiring the best qualified instructors, since the more lessons his instructors teach, the more money Mr. Young makes. I also note that since 2003/04 was the first year the Club was in operation, there was no past practice or pattern against which to assess Mr. Young’s hiring decisions. This is not a situation where an employer generally hires back employees who are suitable. This situation is more akin to the hiring of a new employee.

49On July 21, 2004 Mr. Young sent Mr. DeSouza a long email explaining that there would not be a position for Mr. DeSouza at Joshua Creek Club for the next season. The entire letter is set out below:

Hey Ravi

I had a couple of meetings with the club owners last week to plan for the coming season. I’ve been trying to get together with them for a while so this news comes a little later than expected. Our discussions included a full review of staff performance and the teaching programs. I’m really sorry to have to tell you but there won’t be a position for you at the club this season. It’s been a really difficult decision to come to because you have been a pleasure to meet and work with in so many ways. The group’s decision to not have you back is based on a number of things and I think it’s only fair if I outline them for you. I hope you can take the criticisms and suggestions constructively and not take offence. My intention is to give you some feedback that will help you develop as a teaching professional and make you fully aware of why this decision has been reached.

Restructuring of the teaching program

With the anticipated increase in membership the owners have required I allocate less time for private instruction and delete at least one person from the private teaching staff.

Restructuring of club administration.

Fewer desk hours will be available this season. The club is still at a point were things are very tight financially. The owners have required that I put in more time in the office this season. They also want to hire non-teaching, administrative staff at a lesser rate of pay and replace some of the hours that are being covered at the desk by teaching pros.

Failure to deal openly with the Epilepsy issue

The fact that you have epilepsy is not the issue. The difficulty you’ve had in dealing with it in an open manner has been of great concern. It was a real effort to find out what was going on even after two seizures on court. Last season you were given a letter with very specific requests, including making sure all the staff and the students you deal with one on one new about the condition and more importantly how to help in the event that you had a seizure. This issue has not been dealt with fully and openly.

Teaching

Your organizational abilities on court were very good and you were exceptionally dependable, but to be very honest, I think you need work with your teaching in the following areas:

1. Increase the level of fun in your classes. I did have a number of comments about this and witnessed it for myself. In the younger groups there should be more fun, less complex instruction and more relaxed discipline. The feedback I got back about these groups included consistent complaints along these lines.

2. Your ability to properly gear instruction to the level of the student, to breakdown a stroke and make relevant corrections and suggestions also needs some work. You seem to have a good knowledge of certain techniques and elements of teaching but I don’t have full confidence of your abilities to apply your know knowledge to students. As manager and head pro, I need full assurance in your ability to teach at a top level when recommending a student to you.

3. Playing ability is definitely not a prerequisite to being a good instructor, but a certain level is required in order to properly demonstrate strokes, provide pro-hits and instill confidence in the instructor’s ability. You’re at the level of a high end club player but not quite there in terms of the ability I feel is required to be deemed a high end club professional.

Administrative

There were more complaints and comments that you may have been aware of and not just from unreasonable members, who shall remain nameless. There were just too many members who were upset about how you enforced the rules. Whether you are fully aware of it or not, you have a very strict tone at times and a very rigid way of enforcing the rules.

Again, I’m really sorry that things have worked out this way and if at all possible would like all of us to remain friendly. If I didn’t have to work around the changes the club is imposing things might have been different. If you would like some playing privileges let me know.

I feel bad putting this is the form of an email but his is a tough thing for me as well and it’s is a much easier way of expressing everything that needs to be said. If you need to talk about it, feel free to call me

I do wish you all the best in finding something else and if it is any comfort to know, you are not the one who won’t be coming back this year. The changes at the club have led to some difficult decisions. If you need a letter of recommendation for another position, I’ll been quite please to put one together for you, and will focus on the positive abilities and attribute I have seen in you.

All the best,

Craig

50Mr. DeSouza testified that when he received the email he was shocked, humiliated, disappointed and angry. He felt it was very unfair that Mr. Young had not raised the administrative and teaching problems with him during the year, and given him a chance to improve or explain. In addition, he felt it was unfair of Mr. Young to accuse him of not dealing openly with the epilepsy issue when he (DeSouza) had followed every requirement Mr. Young had made and Mr. Young had not indicated that he needed any more reassurance. Mr. DeSouza testified that he was so upset by Mr. Young’s letter that he seriously questioned whether he should continue to work as a tennis professional. In his words, he “took a leave of absence” from tennis. He cut back on his tennis teaching during the summer and made no immediate efforts to find another winter tennis contract. In approximately September 2004, Mr. DeSouza decided he would remain a tennis professional. He returned to the City of Mississauga community club system.

51Mr. Young suggested in argument that Mr. DeSouza overreacted and exaggerated his reaction to the July 21, 2004 email. Mr. Young suggested that it was not a reasonable reaction for Mr. DeSouza to take a leave of absence from tennis for almost two months. I accept that Mr. Young’s email was couched in regretful and supportive tones.

52At the same time, Mr. DeSouza was very keen on returning to Joshua Creek Club for another season. He sent Mr. Young repeated emails during the summer indicating that he was eager to return for the next season and looking for an answer. Mr. Young agreed that he had left the decision to tell Mr. DeSouza for “too long” and that he should have told him earlier. Mr. Young agreed that he had never raised any of the concerns set out in the email with Mr. DeSouza and agreed that this was poor managerial practice. More importantly, the letter expressly refers to ”the epilepsy issue” as a factor in the decision. I find Mr. DeSouza’s reaction of shock, anger, disappointment and humiliation is consistent with what “a practical and informed person would readily recognize is reasonable in that place and in those conditions” (Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A)).

53Mr. Young’s email of July 21, 2004 lists several reasons why the Club decided not to hire Mr. DeSouza for the 2004/05 tennis season. Mr Young testified that despite the wording of his email, the real reason for not asking Mr. DeSouza to return was that his teaching and playing ability did not match the needs of the Joshua Creek club. I will address that issue first and then turn to the other factors mentioned in the email.

Mr. DeSouza’s playing and teaching ability

54Mr. Young testified that the newly opened Club had attracted a large number of high calibre junior and adult players. Mr. Young testified that he realized during the 2003/04 season that Mr. DeSouza did not play at the level of, and therefore could not teach, these clients. He did not advise Mr. DeSouza that his playing ability and teaching ability were not up to the standard required, because, he testified, there was nothing Mr. DeSouza could do about that. Mr Young candidly admitted that, in hindsight, he should have advised Mr. DeSouza about his concerns about Mr. DeSouza’s ability during the season rather than allowing Mr. DeSouza to harbour unrealistic expectations. Mr. Young also admitted that he was not an effective manager, preferring to avoid negative interaction with staff and putting off the difficult discussion with Mr. DeSouza about his future prospects until July 2004. I find that these frank admissions enhance Mr. Young’s credibility.

Teaching high calibre junior players

55In this hearing, the witnesses used the terms “high performance” junior players who were just starting to enter provincial or national competitions, while “elite high performance” players referred to juniors who had been competing for some time in provincial and national competitions and who held some ranking in the tennis system.

56The Commission called two former employers of Mr. DeSouza’s, Greg Socha and Dean Porcellato, who testified that Mr. DeSouza was an excellent instructor of beginner to intermediate community club tennis players. I accept their evidence because they had no personal interest in the outcome of these proceedings and they were open and candid on cross-examination. Both these witnesses testified that Mr. DeSouza had successfully coached junior players to the point where they could begin to enter provincial and national competitions. However, they both candidly agreed that junior players in a community club setting were generally not regular players in the provincial or national competitions and were largely unranked. Thus, the Commission witnesses established that Mr. DeSouza did not have experience teaching elite high performance players who are more often found in a private club than in a community club. This lack of experience is consistent with Mr. Young’s evidence that Mr. DeSouza lacked the experience and skills to teach these higher calibre junior players.

Playing ability

57Mr. Young testified that he had the opportunity to watch Mr. DeSouza’s tennis playing ability during the season and was disappointed to realize that Mr. DeSouza’s playing ability was not sufficient to enable him to play against or teach the higher calibre adult players the Club attracted. Mr. Young testified that approximately one-third of the club members played at a level of 3.5 or above, according to Tennis Canada’s ranking of playing ability (a scale of 0 – 7). This evidence was not contradicted. All the respondents’ and the Commission’s witnesses agreed that the rating process is extremely subjective, but the witnesses all rated DeSouza’s playing ability between 4 to 5 out of 7. In Mr. Young’s view, a teacher would need to be rated significantly higher than the student in order to provide quality instruction. In his view, an instructor who has a rating of 4 to 5 is not sufficiently qualified to teach players rated at 3.5 or above. His evidence on this point was also not contradicted. The three full-time employees hired for the 2004/05 season, Mike Pietras, Atilla Nagy and Amr Ahmed, all testified that they played against and/or watched Mr. DeSouza play tennis and that they were all significantly better players than Mr. DeSouza. The relative playing ability of Mr. DeSouza vis-à-vis Mr. Ahmed becomes particularly relevant later in this decision. I am cognizant of the fact that each of these witnesses has some continuing relationship with Mr. Young or the Club, which may have influenced their evidence. However, the fact that their rating of Mr. DeSouza’s ability was in keeping with the Commission witnesses, indicates that their evidence on this point was reliable. Further, their evidence about Mr. DeSouza’s playing ability was not contradicted by Mr. DeSouza in reply.

58I give particular weight to Mr. Ahmed’s opinion that Mr. DeSouza’s tennis playing ability did not match the needs of the high calibre members of the Club, in light of Mr. Ahmed’s extensive experience in managing private tennis clubs. Mr. Ahmed’s evidence on this point was not contradicted. In addition, he was very candid in distinguishing between those circumstances where he lacked knowledge of Mr. DeSouza’s abilities and those where he had personal knowledge of Mr. DeSouza’s abilities.

59In conclusion, I accept Mr. Young’s evidence, corroborated by that of Mr. Ahmed, that Mr. DeSouza’s playing and teaching abilities did not meet the Club’s needs vis-à-vis the high calibre junior and adult players.

Lack of fun in the teaching program and strict enforcement of the club house rules

60Young testified that the “lack of fun” in the classes and Mr. DeSouza’s strict enforcement of the club rules were not, in and of themselves, reasons not to hire Mr. DeSouza. They were simply minor concerns. Mr. Young testified that if these had been his only concerns about Mr. DeSouza’s performance, they would not have prevented him from hiring Mr. DeSouza again.

61Mr. Young testified that he mentioned these two points (lack of fun, overly strict enforcement of club rules) in the email of July 21, 2004 to offer constructive advice to Mr. DeSouza on how he could improve in his areas of weakness. The wording of the email lends credence to that assertion. The letter specifically states “My intention is to give you some feedback that will help you develop as a teaching professional.” While it would have been more constructive to offer this feedback during the season, the issue before me is not Mr. Young’s skill as a manager. Mr. Young candidly conceded that in hindsight he could understand why Mr. DeSouza would be upset about these criticisms of his performance after the fact and conceded that it would have been more constructive to tell Mr. DeSouza during the season. He attributed his failure to do so to his lack of managerial skills at the time and his reluctance to say anything negative face-to-face. This is confirmed by Mr. Young’s practice of putting his concerns in writing (the letter of January 5, 2004 as well as the email of July 21, 2004) rather than speaking to an employee in person. It is also consistent with the email which states ”I feel bad putting this in the form of an email but this is a tough thing for me as well and it’s is [sic] a much easier way of expressing everything that needs to be said”.

Restructuring the teaching program and Club administration

62Mr. Young testified that in July 2004, the board of directors told him they were concerned that the profits from the teaching program (which went to Mr. Young) should be cut back to increase profits from membership and court fees (which would go to the owners). The board of directors also suggested that Mr. Young could reduce office costs by doing more office work himself and using non-tennis professionals at a lower rate of pay to do office work. This evidence was not contradicted and it is consistent with common sense that the owners would want to increase activities that increase their profits and reduce activities which are not profitable to them.

63By late April Mr. Young had invited the other two full-time staff members to return for the 2004/05 season. In late August or September 2004, Mr. Young offered Mr. Amr Ahmed, a part-time worker from the 2003/04 season, Mr. DeSouza’s duties in the junior program and also offered him some office hours. Mr. Young decided against hiring non-teaching administrative staff at a lower rate of pay to do the office work because, despite the views of the board of directors, in his view, the tennis professionals were in the best position to schedule lessons.

64Thus, two of the factors mentioned in the July 21, 2004 email as reasons for not hiring Mr. DeSouza did not in fact come to pass. The full-time staff complement was not reduced from three to two and non-teaching staff were not hired to perform office hours at a reduced rate. Instead, Amr Ahmed was hired, initially part-time eventually moving to full-time, effectively replacing Mr. DeSouza in the 2004/05 season.

65The Commission submitted that this demonstrates that these factors, and indeed all the reasons set out in the email of July 2004, were a prextext to cover up that the real reason for not hiring Mr. DeSouza was his epilepsy.

66Mr. Young testified that he mentioned the reduction of administrative duties and the reduction of teaching staff to soften the real reasons (Mr. DeSouza’s lack of playing/teaching ability). In his view, lack of work would be less insulting than lack of ability. I accept Mr. Young’s evidence on this point, as it is consistent with the tone and content of the letter. Further, if Mr. Young were trying to hide the “epilepsy factor” why would he expressly mention it? Mr. Young had no obligation to hire Mr. DeSouza. Mr. Young could simply have told Mr. DeSouza that he was not being invited back. Instead, he spent considerable time crafting a lengthy email, which, contrary to his legal interests, specifically mentions the “epilepsy issue”. The fact that Mr. Young expressly mentioned the “epilepsy factor” supports my finding that this was just one of the factors in not hiring Mr. DeSouza for the 2004/05 season, but that there were other legitimate, non-discriminatory reasons for this decision.

Failure to Deal openly with the Epilepsy

67Mr. Young testified that, despite the clear wording of the email, Mr. DeSouza’s failure to deal openly with his epilepsy was not really a factor in his decision not to hire Mr. DeSouza for the 2004/05 tennis season. In Mr. Young’s opinion, Mr. DeSouza should been more “open” about his epilepsy, at least after he experienced two seizures at work. He felt that Mr. DeSouza should have approached him to explain the situation, rather than Mr. Young having to approach Mr. DeSouza. Also, Mr. Young believed that Mr. DeSouza should have followed his requests and met with each of the regular staff and private tennis clients and explained to them how to deal with the situation if he experienced another seizure. I have already stated that Mr. Young’s views in this regard are incorrect in law and that the imposition of these requirements on Mr. DeSouza in fact violates the Code.

68Ironically, Mr. Young’s frankness and earnestness on this point is both helpful and harmful to his case. It is helpful to his case because it underscores my views on Mr. Young’s overall credibility. The fact that Mr. Young expressly mentioned the “failure to deal openly with the epilepsy issue” in his July 2004 email, and maintained his disapproval of Mr. DeSouza’s perceived “lack of openness” at the hearing, contrary to his own legal interests, enhances his credibility. At the same time, Mr. Young’s frankness proves the Commission’s case that Mr. DeSouza’s epilepsy was at least one factor in Mr. Young’s decision not to hire Mr. DeSouza for the 2004/05 season.

69In the face of the clear words of the July 2004 email, and Mr. Young’s testimony at the hearing, I find that Mr. DeSouza’s failure to tell all staff and private clients about his epilepsy was a factor present in Mr. Young’s mind when he wrote the email of July 2004.

70Mr. Young appeared to believe that there is a difference between considering Mr. DeSouza’s “failing to deal openly with the epilepsy issue” and considering the fact that Mr. DeSouza had epilepsy. In his email he specifically states “The fact that you have epilepsy is not the issue.” Again, this frankness underscores Mr. Young’s credibility. At the same time, Mr. Young is simply wrong in law in his belief that he is entitled to consider an employee’s alleged failure to deal openly with a disability as a legitimate factor in assessing an employee’s suitability for employment.

71It is well-established in the human rights case law that if the prohibited ground (in this case disability) is a factor in the decision-making process, this amounts to a violation of the Code. (Velenosi v. Dominion Management (1997), 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.)). Accordingly, I find that, by taking into account his erroneous view that Mr. DeSouza did not deal appropriately with his epilepsy when he made his decision not to hire Mr. DeSouza for the 2004/05 tennis season, Mr. Young violated the Code.

72I have attempted to explain thoroughly in this decision why I found Mr. Young to be a credible witness, despite the contradiction between his oral evidence and his documentary evidence. This is not intended to cast any reflection on my assessment of Mr. DeSouza’s credibility. I stated at the outset and wish to emphasize here that I found Mr. DeSouza to be a thoroughly credible witness. None of his evidence was contradicted by any other witness. Mr. DeSouza’s belief that his epilepsy was the sole or the significant reason in his not being hired back in 2004/05 was reasonable in light of Mr. Young’s email of July 2004, Mr. Young’s failure to be open with Mr. DeSouza during the 2003/04 season about his concerns in regard to Mr. DeSouza’s playing and teaching ability, and Mr. Young’s failure to raise any concerns about Mr. DeSouza’s teaching or administrative skills during the 2003/04 season.

Remedy

73I have found that Mr. Young discriminated against Mr. DeSouza on the basis of disability when he imposed upon Mr. DeSouza a requirement to instruct all staff how to deal with a seizure and a requirement to tell all private clients about his epilepsy. The criticism of Mr. DeSouza for failing to advise of his epilepsy at the time of hiring is also a form of discrimination. Finally, I find that Mr. Young discriminated against Mr. DeSouza when he considered the “epilepsy issue” in deciding whether to hire Mr. DeSouza for the 2004/05 season.

74What remedies should flow from the above violations of the Code? The Commission sought general damages, special damages and public interest remedies, set out below.

General Damages

75The Commission asked for $15,000 in general damages for the breach of the Code, plus prejudgement and post-judgement interest on all monetary awards in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.

76I have previously reviewed Mr. DeSouza’s evidence of his reaction upon receiving Mr. Young’s January 5, 2004 email and his sense of injustice in having to prove that he was fit to play and teach tennis. Mr. DeSouza’s evidence on that point, although very understated, demonstrated significant upset and anger. As I stated earlier, the letter wrongly criticized Mr. DeSouza for failing to disclose his epilepsy at the time of hiring and imposed onerous conditions on his continued employment.

77Similarly, Mr. DeSouza’s reaction to Mr. Young’s statement that Mr. DeSouza’s failure to deal openly with his epilepsy was a factor in the decision not to hire him was one of considerable shock, disbelief and upset. That upset was exacerbated by the fact that Mr. DeSouza had been so diligent in providing ongoing medical updates had asked to speak to the board of directors and had brought in a pamphlet on epilepsy. Mr. Young’s express mention of epilepsy in the July 21, 2004 email caused Mr. DeSouza to doubt whether he should continue to work as a tennis professional and he took a self-imposed “leave of absence” from that type of employment.

78In these circumstances, I find that an award of $15,000 is an appropriate amount of compensation to address the breaches of Mr. DeSouza’s rights under the Code and the injury to his dignity and self-respect. In assessing that amount, I have considered that pre-judgment interest is generally payable upon monetary awards and intend that the $15,000 be inclusive of the pre-judgment interest component. However, I award post-judgement interest on the monetary awards in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.

79Mr. Young testified that all decisions relating to the management of the Club were made by him and that the board of directors of 1469328 Ontario Inc. always followed his advice. He accepted full responsibility for his actions on behalf of the Club. At the same time, Mr. Young was acting as an employee of 1469328 Ontario Inc. in relation to Mr. DeSouza’s office work. Section 45(1) of the Code provides that any action taken by an employee in the course of his or her employment shall be deemed to be an act of the corporation.

80However, Mr. Young’s numbered company (which is not a named respondent to this complaint) was the employer of Mr. DeSouza when he was teaching. In these circumstances, it is appropriate to order that Mr. Young and 1469328 Ontario Inc. be jointly and severally liable for the general damages award of $15,000.

Special Damages

81The Commission asked for monetary compensation for Mr. DeSouza’s lost earnings arising from the respondents’ failure to hire him for the 2004/05 season.

82In cases of the loss of opportunity to be considered for employment the Tribunal must compensate for the lost opportunity to compete for a position in a non-discriminatory fashion, while taking into account the fact that the applicant might not have obtained the position in any event (even absent any discrimination). In the federal jurisdiction it has been suggested that if there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event. (per Marceau J.A. in Canada (Attorney General) v. Morgan (Fed CA) 1991 CanLII 13184 (FCA), [1992] 2 F.C. 401; Chopra v Canada (Attorney General) 2007 FCA 268, [2007] F.C.J. No. 1134 (Fed CA).

83Another approach is to assess, on a balance of probabilities, whether the complainant would have obtained the position. If not, then no special damages would flow. If so, then lost wages resulting from the lost employment would flow.

84On either analysis (and I do not specifically endorse one or the other), in this case, I find that although Mr. DeSouza’s epilepsy was a factor present in Mr. Young’s mind when he decided not to offer Mr. DeSouza a position for the 2004/05 season, I am satisfied that he would not have offered Mr. DeSouza a position for the 2004/05 season in any event. I accept Mr. Young’s testimony that he would not have hired Mr. DeSouza for the 2004/05 season because Mr. DeSouza did not possess the playing and teaching ability that Mr. Young wanted for the Club. In particular, I find that Mr. Amr Ahmed, who was hired in 2004/05 to do much of the work Mr. DeSouza had previously done in the 2003/04 season, was significantly more qualified in terms of playing and teaching ability (see paragraph 57 above). In these circumstances, the complainant is not entitled to any lost wages. I find that the award of general damages of $15,000 that I have already made, fairly compensates Mr. DeSouza for his loss of the right to have his application considered in a non-discriminatory manner.

Public Interest Remedies

85The Commission did not seek any public interest remedies against 1469328 Ontario Inc. because it no longer operates the Club or any business. As mentioned in paragraph 10 above, Mr. Young, through his own numbered company, took over the administration and teaching program at the Joshua Creek Club in 2006. I agree that in these circumstances no purpose would be served in making any public interest remedies against 1469238 Ontario Inc.

86The Commission sought the following public interest remedies regarding Mr. Young:

1. That Mr. Young at his own expense, (i) create a workplace anti-discrimination policy and internal complaints procedure that addresses, among other things, disability and the duty to accommodate, and (ii) provide to the Commission a copy of the policy, together with written confirmation that the policy has been given to current employees and will be given (as it may be amended over time) to all future employees;

2. That Mr. Young at his own expense, (i) hire an external consultant to provide a mandatory training program on disability and the duty to accommodate for Mr. Young and any supervisory or managerial employees he hires, and (ii) provide written confirmation to the Commission that the training has been so provided;

3. That Mr. Young provide a copy of the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate to any of his management and supervisory employees involved in the hiring, accommodation and discipline of employees at the Club, and require that they read it;

4. That Mr. Young post Commission “Code Cards” in prominent and obvious locations in the Club that are accessible to all employees.

87Mr. Young did not oppose the imposition of items 1, 3, and 4 above in the event that I found a violation of the Code. However, Mr. Young objected to the Commission’s request that he hire an external consultant to provide training for himself and other supervisory or managerial staff. Mr. Young testified that in the process of dealing with this complaint, the Commission’s investigation process and the hearing process, he has learned about his obligations as an employer and a manager to accommodate a worker’s disability under the Code and that further training would be unnecessary. However, I am not satisfied that Mr. Young clearly understands how to interpret and apply the obligation not to discriminate on the basis of disability under the Code. Mr. Young testified at the hearing that he did not understand why his letter of January 5, 2004 and his email of July 21, 2004 could have reasonably caused Mr. DeSouza to believe he was being discriminated against because of his epilepsy. He expressed bewilderment about why Mr. DeSouza filed and maintained this complaint. I find that Mr. Young is still in need of further training on the meaning of discrimination related to disability and the duty to accommodate.

Orders

88Accordingly, I make the following orders:

(1) That Mr. Young at his own expense, (i) create a workplace anti-discrimination policy and internal complaints procedure that addresses, among other things, disability and the duty to accommodate, and (ii) provide to the Commission a copy of the policy, together with written confirmation that the policy has been given to current employees and will be given (as it may be amended over time) to all future employees;

(2) That Mr. Young, and any managerial or supervisory employees employed by him, attend, at Mr. Young’s expense a training program on disability and the duty to accommodate, and (ii) provide written confirmation to the Commission that the training has been so provided;

(3) That Mr. Young provide a copy of the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate to any of his management and supervisory employees involved in the hiring, accommodation and discipline of employees at the Club, and require that they read it; and

(4) That Mr. Young post Commission “Code Cards” in prominent and obvious locations in the Club that are accessible to all employees.

89I make the following order against Mr. Young and 1469328 Ontario Inc. jointly and severally:

(1) Within 30 days of this decision, the respondents shall pay $15,000, plus post-judgement interest in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43, to Mr. DeSouza as compensation for his loss of the right to be free from discrimination under sections 5(1) and 9 of the Code.