Douglas Edwards v. Neoset Canada Inc., 2009 HRTO 1553

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N :

Douglas Edwards

Applicant

-and-

Neoset Canada Inc., Gregory Papas and Abdulla Omar

Respondents

case Resolution Conference DECISION

Adjudicator: Brian Sheehan

Date: September 25, 2009

Citation: 2009 HRTO 1553

Indexed as: Edwards v. Neoset Canada

AppearanceS BY

Douglas Edwards, Applicant ) Cecil Norman, ) Representative

Neoset Canada Inc., Gregory Papas ) No one appearing and Abdulla Omar, Respondents )

1This is an Application filed October 2, 2008 under section 53(3) of the Human Rights Code R.S.O. 1990 c. H.19 as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on February 20, 2007.

2In its earlier Interim Decision 2009 HRTO 726, the Tribunal, in light of the continued failure of the respondents to file Responses determined that the respondents had accepted the allegations set out in the Application and waived their right to further notice and to participate in the proceeding.

3A Case Resolution Conference was conducted on September 4, 2009, to provide an opportunity for the applicant to provide additional submissions, and to speak to the appropriate remedy.

Factual Background

4The applicant was hired in April 2006 by the corporate respondent, Neoset Canada Inc., in the position of an Installer.

5In December 2006, the corporate respondent announced that there would be changes regarding the health benefit plan coverage for employees. The possibility of employees having to obtain their own health benefit plan coverage was discussed.

6On January 4, 2007, at a staff meeting, Abdulla Omar, Installation Manager for the corporate respondent, announced that he had been in contact with Blue Cross regarding a potential health benefit plan. Mr. Omar indicated that he would meet with each employee to obtain information regarding their age; as the cost of the benefit plan would be impacted by the average age of the employees to be covered by the plan.

7On January 12, 2007, the applicant advised Mr. Omar that he was 53 years old. Mr. Omar suggested that due to the applicant’s age, the premium for a health benefit plan with Blue Cross may be increased. The applicant indicated that Mr. Omar started to treat him in an abrupt and disrespectful manner subsequent to his learning of the applicant’s age.

8On January 19, 2007, the applicant was called to a meeting with Mr. Omar where he was advised his employment was being terminated. No reasons were provided for his termination. Moreover, up until that point in time, the applicant submitted that he had never been warned, or spoken to, regarding any deficiencies in his work performance.

Was There a Violation of the Code?

9Based on the unchallenged evidence of the applicant, the allegations set out in the Application, and further expounded upon at the September 4, 2009 hearing, establish that there was a violation of the Code. In particular, the allegations suggest the respondents were concerned that the applicant’s age would increase the cost of premiums for health benefit coverage for employees. Shortly afterwards, on the heels of the applicant disclosing his age, he was summarily terminated. No reason was offered for the termination and there was no prior history of the applicant being warned of any deficiencies in his work performance. With no contrary evidence before the Tribunal to rebut those allegations, it must be concluded that the termination of the applicant was, at a minimum due in part to his age, and as such constituted a breach of section 5(1) of the Code.

The Appropriate Remedy

10The applicant was employed by the corporate respondent for approximately nine months. That constitutes a relatively short period of time. However, absent the discriminatory act of the respondents in terminating him in connection with his age he may have remained employed for an indeterminate period of time.

11At the time of his termination he was being paid $13.25 per hour; his gross weekly wages were approximately $764.00. In terms of the applicant’s obligation to mitigate his damages, the applicant initially received Employment Insurance benefits. Those benefits ceased as of May 21, 2007, when the applicant became disqualified for benefits for not attending certain information sessions.

12I find that an award of an amount equivalent to eight weeks of the applicant’s weekly salary is, in all the circumstances, appropriate.

13There can be little doubt that the loss of employment can normally be expected to exact a toll on an individual both financially and psychologically. In this case, the applicant, without any prior warning, saw his employment summarily terminated. It is, therefore, not surprising that his termination adversely impacted upon his emotional well being and state of mind. Additionally, the fact he was terminated may have hindered his ability to obtain other employment subsequent to his termination. In these circumstances an award in the amount of $5,000.00 is appropriate for the infringement of the Code and the injury to his dignity, feelings and self-respect suffered by the applicant.

14The facts do not, however, suggest that the individual respondents acted outside the scope of their authority or were not acting at the behest of the corporate respondent. Moreover, the actions of the individual respondents were not so egregious to warrant a finding that they should be found to be distinctly and individually liable. Accordingly, the liability in this matter rests solely with the corporate respondent.

Order

15The corporate respondent is ordered to pay the applicant:

(a) the sum of $6,112.00 representing lost wages, less applicable statutory deductions;

(b) the sum of $5,000.00 as monetary compensation for the loss arising out of the infringement of the Code; and

(c) post judgment interest on all of the above at the applicable rate under the Courts of Justice Act commencing 30 days from the date of this Decision.