McDonald v. Mid-Huron Roofing, 2009 HRTO 1306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harry McDonald

Applicant

-and-

Mid-Huron Roofing

Respondent

DECISION

Adjudicator: Judith Keene

Date: August 25, 2009

Citation: 2009 HRTO 1306

Indexed as: McDonald v. Mid-Huron Roofing

Appearances by

Harry McDonald ) On His Own Behalf

Mid-Huron Roofing ) David Hart

INTRODUCTION

1The Application under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), filed on November 24, 2008, identified the area of discrimination as “membership in a vocational association”. The workplace at issue did not have a union or other association. The narrative in the Application made it clear that the actions alleged to have breached the Code took place in the context of employment, and the respondent’s representative agreed that he had understood the allegations to relate to employment and consented to amending the Application to remove “vocational association” and add “employment” as the area of discrimination.

2I have found a violation of the Code based on the facts and reasons set out below.

FACTS

3I heard evidence from the applicant Harry McDonald, his spouse Meghan Hickmont, the two principals of the respondent corporation (David Hart and his son Darren Hart), and Jason Chapman, an employee of the respondent who had a role in supervising and training the applicant. The parties differ in respect of the facts only in regard to a few matters which are of minor importance. Where there is disagreement, I indicate it below.

4The applicant was hired by the respondent corporation in mid-May 2008. The business employed 12-14 persons in the work in which the applicant was engaged. The respondent’s evidence shows that the applicant was averaging 35 hours per week. The respondent’s position is that employees often worked well in excess of 40 hours a week, and the applicant did not dispute this. The applicant’s employment was terminated on or about October 6, 2008.

5At the time he was hired or shortly thereafter, the applicant told his employers that his spouse was pregnant with their first child, and that she was having health complications in the pregnancy. The applicant’s spouse, Meghan Hickmont, testified that she began experiencing complications in her pregnancy in April of 2008. Her right kidney developed hydronephrosis and became essentially non-functional, with associated pain. She required heavy pain medication. She had to leave work on sick leave in April. By August, her other kidney was failing. In September, she developed gallbladder problems, including gallstones, which necessitated a cholecystectomy in October, shortly after her child was born.

6The principals of the respondent corporation did not dispute the nature of Ms. Hickmont’s medical problems nor that they were made aware by the applicant of many of the details of the his spouse’s medical condition during the course of his employment.

7During the period of her spouse’s employment, Ms. Hickmont had many medical appointments with specialists, in addition to the usual ante-natal appointments needed for uncomplicated pregnancies. She recalled that she had at least one appointment a week through most of the relevant period. She also had several hospitalizations of a week or less, more than one on an emergency basis, in Goderich and away from home, in London. Under cross-examination, she stated that her spouse did not attend every appointment (she attended “routine appointments” on her own), but that she wanted him there for the ones in which she was expecting “bad news”.

8The applicant attended several of Ms. Hickmont’s appointments and took full or partial days off work to attend primarily for this purpose on approximately fourteen occasions. This time was not paid time off.

9On Saturday, September 20, 2008, Ms. Hickmont was told by her doctor that she might be developing eclampsia, and that she must be admitted to hospital in London for monitoring, with the possibility that labour would have to be induced prematurely on the following Monday. In fact, induction proved to be necessary, and the baby was born on September 23, 2008.

10Except for the day the applicant was fired, there was no allegation that the applicant failed to request the time off in advance, give his reasons and get approval. David Hart took issue with “short notice”. His cross-examination of the applicant revealed that usually, Mr. McDonald had “about a week’s” notice of specialist appointments, but that other needs for absence arose with no notice. The applicant stated under cross-examination that he tried to give as much notice as possible, but that he also tried to limit the number of times he took unpaid leave to attend at the hospital or at medical appointments, so that he sometimes delay giving notice to see whether he was truly needed. The applicant maintained that where he himself had notice that he would be needed, he gave between two and five days’ notice.

11In mid-September, the applicant noticed a changed attitude in the workplace that seemed to indicate some resentment of his frequent requests for time off. On the evening of September 20 or 21, after Ms. Hickman had been told about the possibility of eclampsia and the need for admission to hospital, the applicant went to the senior Mr. Hart’s home to ask what was wrong at work.

12David Hart testified that the applicant told him on that evening that he would have to take a week off. The applicant testified that David Hart told him to go ahead and take the time to “deal with what you have to” but that after that, he should take “no more days off”. David Hart testified that he told the applicant that he should take “whatever time he needed to do what he had to do”, but that, when he returned to work, he should “focus on the job”. Clearly the difference in between “no more days off” and “focus on the job” could be significant, but Mr. Hart did not take exception to Mr. McDonald’s recollection. I accept on the basis of the evidence that, whatever the actual words used, Mr. McDonald was given to understand that he was not to take more time off once he returned to work.

13As noted above, the applicant’s son was born prematurely on September 23. The applicant was back to work by September 29.

14The date of the incident that resulted in the applicant’s firing was not clearly established, although the facts are largely undisputed. Both parties agreed that, on the day he was fired, the applicant was scheduled to work, and his newborn son was scheduled for a medical appointment. The applicant’s spouse was in severe pain from gallstones. The applicant testified that he left for work in the hope that his spouse could cope with the pain and get the baby’s appointment taken care of. In cross-examination, Ms. Hickmont said that she tried to cope on her own because she knew that there was bad feeling at work about the applicant taking time off.

15The applicant testified that Ms. Hickmont called him at work at 10:45 a.m. to tell him that she had “passed out” and had called an ambulance. Ms. Hickmont had called her mother, who agreed to take some time off her own work, but lived a 2-3 hour drive away. The pain became too great, and after the episode of faintness, Ms. Hickmont called the applicant at work, telling him that her mother had not arrived and that she had to get to the hospital to get treatment for the pain. She asked the applicant to take the baby to his appointment.

16The applicant attempted unsuccessfully to find a babysitter for his newborn son until Ms. Hickmont returned from the hospital. He told Mr. Darren Hart that he had to leave work to deal with a family medical emergency. At this point, there is a divergence in the evidence. The applicant asserted that he told Darren Hart that, if he could find someone to “watch our son they would be no more than 20 minutes and if I had to leave that I would be gone for about an hour or so”. Darren Hart stated that the applicant had told him that he would be gone only 20 minutes. The applicant stated that he got a phone call from Darren Hart just before he had to enter the doctor’s office with the baby, and that Mr. Hart told him that if he were not back at work in 20 minutes, he would not have a job to come back to. The applicant did not return at the time Mr. Hart wanted him back, and he was fired.

17The evidence of Darren Hart and that of the applicant conflicts in regard to what the applicant said before he left for the hospital. Clearly, Mr. Hart was busy, and may have misheard what was said. Mr. McDonald was under some stress trying to cope, and it appears that he made an attempt to estimate how long he would be gone when he really did not have enough information to predict this. In the circumstances, I find that it is most likely that, however much he might have wanted to get back to work, Mr. McDonald did not promise to be back in 20 minutes.

18When Ms. Hickmont’s mother arrived to take over care of the baby, the applicant asked her to drive him to the site where he knew Darren Hart would be, and he asked for his job back. This request was denied.

19I find on the basis of the evidence that the reason for Mr. McDonald’s dismissal was the time off he had requested and taken up to the day he was fired, with the incident involving emergency care of his newborn son the culminating incident. While Darren Hart and Jason Chapman referred to “some attitude problems”, mostly having to do with their opinions that Mr. McDonald requested raises that they considered inappropriate given his relatively new status on the job, both of the principals of the respondent corporation also indicated that Mr. McDonald was an excellent worker.

20The applicant was unemployed for eight weeks. I accept his testimony that he made efforts to find another job right away. He was unable to qualify for Employment Insurance as he did not have enough months of work in the relevant period to qualify. He was unable to meet his expenses. He and Ms. Hickmont had to borrow from Ms. Hickmont’s parents, and at one point asked the Salvation Army for assistance. The applicant obtained work in Chatham, but was still responsible for the lease of their home in Goderich, and therefore had to move in with Ms. Hickmont’s mother so as to be able to work in Chatham.

21In his Application, the applicant stated that his firing in these circumstances caused him “to break down in an emotional state”. He was depressed and anxious. He describes “going nuts from always thinking about finances”, getting “the idea that everyone looked at me as a bum”, feeling “like a failure for not being able to provide for my new family”, and feeling “like I have dragged Meghan into a hole”.

DISCRIMINATION ON THE GROUND OF FAMILY STATUS

22There is no suggestion here that the respondent disapproved of employees having families, or deliberately treated employees adversely because they had families. David Hart pointed out, and I accept, that his is a family firm, and that there were friendly social relations between the applicant and his spouse and others in the workplace, at least until just before the applicant was fired. David Hart and his family attended and contributed to a baby shower organized by the applicant. At more than one point in the hearing, David and Darren Hart both stated that the applicant was valued as an employee, and the applicant stated that David Hart was a great boss. However, that mutual esteem does not remove the question of whether there was a breach of the Code.

23For the purposes of the Code, discrimination is not confined to only those situations in which A is treated differently from B because of personal characteristics (grounds) listed in the legislation. Discrimination for the purposes of the Code can also occur when everyone is treated the same, without appropriate recognition of circumstances related to those personal characteristics. A requirement imposed identically on everyone can have the effect of denying the right to equal treatment to people with personal characteristics protected by the Code. For example, a requirement to work Saturdays that is imposed on all employees may be neutral or no more than inconvenient to most. However, that requirement clearly has an adverse effect on the right to equality of an employee whose religion requires Saturday Sabbath observation. In those circumstances, the employer may be found to have breached the right to equal treatment on the basis of creed: O’Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18.

24Section 11 of the Code states as follows:

(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

25The “requirement” at issue in this case is the requirement not to take time off work, or at least not to take more time than the applicant had already taken. More specifically, the requirement on the day the applicant was fired, according to Darren Hart, was that he take no more than 20 minutes off work.

26“Family status” is defined in section 10 of the Code as “the status of being in a parent and child relationship”. The Supreme Court of Canada has confirmed that the term "family status" used in the Code encompasses not only discrimination because A is a mother, father, daughter or son, but discrimination connected to the particular identity and circumstances of the complainant's spouse or family member: B v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403, 2002 SCC 66. There have been similar decisions interpreting the human rights legislation of other jurisdictions: Brossard (Town) v. Quebec (Commission des droits de la personne) [1988] 2 S.C.R. 279, 1988 CanLII 7; Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, 240 D.L.R. (4th) 479 (B.C.C.A.).

27The circumstances of the applicant’s family, which were known to the respondent at the time the decision was made to fire him, can be summarized as follows. The mother of his son had experienced a difficult pregnancy, was very ill, and was in severe pain. She had been required to stop work earlier than expected, and the couple had few resources. Their 12-day-old premature son had a doctor’s appointment, and at the same time his mother required treatment for severe pain from gallstones. The couple had no extended family immediately available to meet an emergency situation.

28Given his family status, the refusal to allow the applicant the time away from work needed for his son’s medical appointment had an adverse effect on the applicant. That adverse effect can only be justified under the Code if the respondent can establish that the requirement was “reasonable and bona fide”. The Tribunal may not find that the requirement is reasonable and bona fide unless it is satisfied that accommodating the applicant’s needs would cause “undue hardship” on the respondent.

THE DUTY TO ACCOMMODATE

29A respondent is not required to accommodate past the point of undue hardship, and sometimes, little or no accommodation may be possible. However, the person with a duty to accommodate must make a real effort to accommodate Code-related needs. Accommodation is a collaborative process: the person with a duty to accommodate has a duty to actively seek the information he or she needs, and must be prepared to consider and explore the possibilities. The person requiring accommodation must also cooperate in the attempt to find suitable accommodation.

30The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1, 1999 CanLII 652 (S.C.C.) (hereafter “Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129, at paras. 22 and 42–45. To meet the procedural part of the duty to accommodate, the respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. That involves obtaining all relevant information about the applicant’s situation, at least where it is readily available. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.)

31In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. The ADGA decision was confirmed on appeal: ADGA Group Consultants Inc. v. Lane, supra.

32The applicant had given the principals of the respondent corporation information about his situation, and clearly was willing to give any information needed. In these circumstances, the respondent had a duty to ascertain what the applicant needed, and give serious consideration to whether his family-related needs could be accommodated. The applicant might not have been able immediately to predict accurately how much time he might need to meet his family responsibilities, but he might have been able to reach a reasonable estimate of what his needs were likely to be by consulting with his spouse and her doctors about her prognosis, what her surgery would entail, and what the care of his premature son would require. In any event, neither David Hart nor Darren Hart took the time to ask the applicant about his needs; rather, they stated conclusions. David Hart’s position stated in September appeared to be that the applicant should return to work when he did not require accommodation. Darren Hart’s position on the date of the firing was that no more than 20 minutes’ accommodation would be allowed. In failing to enquire, and to give the applicant a reasonable opportunity to make a proposal for accommodation, the respondent failed to meet the procedural duty to accommodate.

UNDUE HARDSHIP

33The respondent appeared to take the position that the applicant’s absence for part of the day on the day he was fired was “the last straw”, and that undue hardship had been reached at that point. However, David Hart also stated some theories about what the consequences might have been if additional accommodation had been required in the future.

34Having failed to take the time to ascertain what accommodation would be needed and what plan might be possible (the procedural part of the duty to accommodate), the respondent is not in a position to do more than speculate as to whether the applicant would have required more time off than the time taken before he was fired. The respondent was also not in a position to know whether, had the applicant continued in employment with the respondent, he might have been able to give adequate notice of family-related absences in the future. Accordingly, the question to be considered in this case is whether the 14-16 absences taken by Mr. McDonald prior to the termination of his employment created undue hardship for the respondent.

35As noted above, the factors relevant to “undue hardship” are “cost, outside sources of funding, if any, and health and safety requirements”. Mr. Hart raised no issues about outside sources of funding or health and safety requirements. The inquiry therefore focuses on cost.

36The Supreme Court of Canada has confirmed Tribunal jurisprudence that states that employers cannot rely upon beliefs or impressionistic evidence in establishing undue hardship. See for example Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, 1982 CanLII 15, 132 D.L.R. (3d) 14 (S.C.C.) at para. 21, and Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 59 C.H.R.R. 276, 2007 SCC 15, at para. 226.

37In his Response to the Application, David Hart made the following statements about the effect of Mr. McDonald’s absences. “Teamwork…at the jobsites was affected…work assignments had to be adjusted, often at the last minute. With crew members not normally working together and being short staffed, their efficiency declined. Jobs weren’t completed on time because of the need to shuffle workers to accommodate [the applicant’s] absences. With decreased efficiency, a loss of productivity and revenue for the company resulted.”

38David Hart did not present financial records or other evidence that would quantify the cost to the company of the absences at issue. At my suggestion, in an attempt to approximate the cost, he gave evidence about what happens when a worker does not show up, as well as calling Darren Hart and Jason Chapman to speak to specific instances involving Mr. McDonald. At his request and with the consent of Mr. McDonald, I allowed him to recall Mr. Chapman at one point to give further evidence on this subject.

39Jason Chapman testified that Mr. McDonald was not just a labourer; he was being trained to do metal work. Not all of the employees could do this type of work, and I accept that it was therefore more difficult to replace Mr. McDonald when he was absent than it would be to replace a less skilled employee. Darren Hart recalled a job on July 11 or 14 in which Mr. McDonald left early. He said that while he expected to finish the job that day, they had to go back for an extra half-day to finish. He did not state how many employees were needed for the half-day. On cross-examination, he could not recall whether Mr. McDonald had been scheduled to work for all three days of that contract. Thus it is not clear that Mr. McDonald’s absence was the reason that the extra half-day was needed.

40Mr. Chapman gave evidence about the effects that can result from absenteeism, including not being able to quickly find a replacement with the right skills and having to use less-skilled employees who might make mistakes that would have to be fixed (or, worse, might make undiscovered mistakes that would affect the company’s reputation among customers), as well as possible loss of contracts. Turning to the specifics of this case, Mr. Chapman was able to speak to only one job that Mr. McDonald could not attend, which involved a week away from Goderich. Mr. McDonald was unable to attend for the first day, and Mr. Chapman did not think it worthwhile in the circumstances to make arrangements to get Mr. McDonald to the site for the rest of the days (apparently Mr. McDonald could not drive at that time).

41Neither of the principals of the respondent corporation nor Mr. Chapman suggested that any contracts had been lost as a result of the applicant’s absences. The closest to quantifiable specifics about the cost of accommodation here was the half-day extra work in July noted by Darren Hart. No figure was given as an estimate of the cost of the half-day, nor was it clear that the half-day was attributable to Mr. McDonald’s absence.

42I accept the evidence of the principals of the respondent corporation and of Mr. Chapman that the applicant’s absences caused some inconvenience and frustration, as well as some expense for the respondent. David Hart also mentioned a negative effect on morale. It is not clear that morale in the workplace can be considered in assessing undue hardship under the Code. The factors to be assessed are spelled out in section 11, and the applicable principles of statutory interpretation suggest that nothing other than those factors and any regulatory provisions be considered. Morale in the workplace has been suggested as a factor in assessing “reasonable accommodation” by the Supreme Court, for example in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 12 C.H.R.R. D/417. However, that decision and others were based on the human rights legislation of other jurisdictions, which are differently worded. As noted more recently by the Supreme Court in Meiorin, supra, at para. 63, and confirmed in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) (2008), 63 C.H.R.R. D/301, 2008 SCC 43, at para. 12, “[T]he various factors are not entrenched, except to the extent that they are expressly included or excluded by statute.”

43In regard to the testimony concerning workplace morale in this case, there are two relevant considerations to be applied. The first is that objections based on attitudes inconsistent with human rights are an irrelevant consideration: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at para 30. The second is that the respondent has some obligation in this regard. Mr. Chapman gave evidence to the effect that he did not believe that the applicant was really needed for medical appointments, saying something to the effect that “we just thought that Meghan wanted him around”, with the implication that Ms. Hickmont was being overly demanding. It appears that Mr. Chapman, who supervised Mr. McDonald, had no idea how serious the medical problems at issue were. If a respondent wishes to cite morale in the workplace as an element of undue hardship, it should also be able to cite its own efforts to quell inaccurate rumours that accommodation is being requested unreasonably. The Ontario Human Rights Commission’s Policy and Guidelines on Discrimination Because of Family Status, available at www.ohrc.on.ca, makes this suggestion:

Accommodation for persons identified by family status may in some cases cause resentment among others, who perceive these individuals to be receiving unjustified “perks” and privileges. Using an inclusive design approach to accommodation will address some of these concerns, since all may benefit from approaches that increase flexibility and choice. Given that all of us will be either the recipients or the providers of care at some point during our lives, accommodation for needs related to family status ultimately benefits us all. In any case, accommodation providers should take positive steps to educate their organizations about the Code, and ensure that accommodation seekers are not subjected to a poisoned environment.

44The Supreme Court has commented that “the use of the term ‘undue’ infers that some hardship is acceptable”: Renaud, supra, at p. 585; see also Gohm v. Domtar (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd. Inq.) at D/175-D/176). In this case, the respondent has been unable to provide other than “impressionistic” evidence of the type that was found insufficient to establish undue hardship in cases such as British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), supra, at para. 41 and Miele v. Famous Players Inc. (2000), 2000 BCHRT 5, 37 C.H.R.R. D/1 (B.C.H.R.T.). On the evidence, I find that the respondent corporation has not established that it accommodated the applicant to the point of undue hardship.

REMEDY

45Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

46Section 45.2(1) 1. authorizes awards of monetary compensation for infringement of the Code. This includes reimbursement of out-of-pocket expenses and other objectively quantifiable losses (such as lost salary, benefits and financial opportunities) arising from the breach of the Code. It also encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.

47Mr. McDonald seeks $45,000 in monetary compensation, which is not itemized in his Application. His Application mentioned rent paid for his home in Goderich when in fact he was living in Chatham to get work, termination fees for phone, hydro and internet and gas for driving while job-seeking, but he did not present evidence as to the amount of these costs at the hearing. On the evidence, he did establish that he was unemployed for eight weeks. He made reasonable efforts to mitigate his loss of employment.

48The respondent’s records of payment for the applicant show that he was employed an average of 35 hours per week, and was being paid $12.50 an hour when he was fired. Accordingly, I assess the applicant’s loss of wages at $3500. Having no evidence about the applicant’s other expenses arising from the firing, I am not in a position to make an award for those.

49Section 45.2 (1) 1. replaces a statutory provision that allowed monetary compensation for "loss arising out of the infringement," which included an award capped at $10,000 for mental anguish where the infringement was engaged in wilfully or recklessly. Over time, the Board of Inquiry established under the Code, now continued as the Human Rights Tribunal of Ontario, identified several types of “loss arising out of the infringement”. Adjudicators awarded compensation for the loss of the right to be free of discrimination and damages for loss of dignity and self-respect separately from damages for mental anguish.

50In Naraine v. Ford Motor Co. of Canada (No. 5) (1996), 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267 (Ont. Bd. Inq.), the respondents were found to have subjected the complainant to nine years of racial harassment and discrimination in a racially hostile working environment. In addition to compensation for lost income and benefits and other remedies, the tribunal awarded the complainant $20,000 in general damages for the infringement of his rights and $10,000 for mental anguish caused by the reckless contravention of the Code. This decision was upheld by the Ontario Court of Appeal in all respects but that of a reinstatement order: Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 21234 (ON CA), 41 C.H.R.R. D/349 (Ont. C.A.). That year, the Ontario Divisional Court, on an appeal of a human rights tribunal decision dealing with the discriminatory effect of limiting eligibility for rental accommodation by income, confirmed the power under the Code to award damages without any “ceiling” for the “intrinsic value” of the rights infringed contrary to the Code: Shelter Corp. v. Ontario Human Rights Commission, 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297, 39 D.H.R.R. D/111 (Ont. Div. Ct.).

51The Divisional Court, in ADGA Group Consultants Inc. v. Lane, supra, in approving an award for $35,000 for violation of the right to be free from discrimination, $10,000 for reckless infliction of mental anguish and $34,278.75 for the loss of salary that resulted from the violation of his rights, held that the following are among the factors the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. This last factor has been elaborated in other decisions as “seriousness, frequency and duration of the offensive treatment”; see for example Sanford v. Koop, 2005 HRTO 53.

52Quantifying intangible loss and distress is a difficult exercise. A number of Supreme Court of Canada decisions review the competing approaches in other areas of civil law that deal with this type of compensatory order; see for example, Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629; and Wallace v. United Grain Growers Ltd. 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701. There have been relatively few decisions under the new provision, s. 45.2(1) 1., and undoubtedly, the Tribunal’s approach to the new provision will continue to develop.

53The impact of the discriminatory action on the individual applicant clearly has considerable weight in arriving at a compensatory order, although the impact may be difficult to assess, both because of individual differences and because of ways of self-expression, some of which may be linked to personal characteristics protected under the Code. Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate compensation for injury to dignity, feelings and self-respect: see Hope v. Maplewood Painting, 2009 HRTO 595, and Hughes v. 1308581 Ontario, 2009 HRTO 341.

54The effect on the victim, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code; see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. The Tribunal has recognised that it should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a "license fee" to discriminate: (Shelter Corp. v. Ontario Human Rights Commission, supra, Gohm v. Domtar Inc. (No. 4), supra, at paras. 126–27, Gibbons v. Sports Medic Inc. (2003), 2003 HRTO 26, 48 C.H.R.R. D/98 at paras. 49 and 50, Baylis-Flannery v. DeWilde, 2003 HRTO 28, Sanford v. Koop, supra, and Boodhram v. 2009158 Ontario Ltd. (No. 2), 2005 HRTO 54, at para. 23.). In this regard, the Supreme Court has taken steps to avoid the erosion of the quantum of compensatory awards for intangible loss by ensuring that the original “cap” on such awards should be indexed to inflation; see for example the award confirmed by the Court of Appeal in McIntyre v. Grigg, 2006 CanLII 37326, 83 O.R. (3d) 161 (ON C.A.).

55In this case, I accept on the basis of his evidence that the applicant suffered considerable loss of self-respect, dignity and confidence. He was also clearly miserable and depressed for some time after his employment was terminated contrary to the Code.

56This case is clearly distinguishable from cases in which the applicant is vulnerable because of numerous personal characteristics and circumstances identified by the legislature as grounds of discrimination. In Hope v. Maplewood Painting, supra, for example, the Tribunal accepted that the complainant's gender, her status as a single mother and her aboriginal ancestry combined to render her particularly vulnerable to the conduct of the respondent. Having said that, the applicant in this case was vulnerable by reason of his family status; while he was not a single parent on an ongoing basis, his partner was seriously ill and unable to care for their newborn child on the day the applicant was fired for taking time off work to take the baby to his medical appointment.

57This case is also distinguishable from cases such as Naraine v. Ford Motor Co. of Canada, supra, and from other cases in which the applicant endures years of harassment, in respect of the elements of frequency and duration of the offensive treatment.

58Taking into consideration the effects upon the applicant as he described them and objective considerations noted above, I award $20,000 in monetary compensation for the intangible harm caused by the infringement of Mr. McDonald’s rights under the Code.

59Prejudgment interest is awarded from the date of the Application, November 24, 2008, in accordance with s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. The respondent shall have 10 days following the date of this Decision to make the payments described herein to Mr. McDonald, failing which postjudgment interest shall be payable in accordance with the rate established under the Courts of Justice Act.

ORDER

60The Tribunal makes the following orders:

a) The respondent shall pay $20,000 to the applicant as general damages for a violation of the Code;

b) The respondent shall pay $3,500 for loss of wages from October 5, 2008, to November 30,2008;

c) Prejudgment interest at the rate of 3.3% in accordance with s. 127 of the Courts of Justice Act, supra, is ordered on the payments set out in a) and b) above from the date the Complaint was filed (November 24, 2008);

d) Postjudgment interest in accordance with the Courts of Justice Act, supra, is ordered if the respondent fails to make the payments described in a) and b) above following 10 days of the date of this Decision.