Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Seguin

Complainant

-and-

Great Blue Heron Charity Casino

Respondent

DECISION

Adjudicator: Alison Renton

Date: June 30, 2009

Citation: 2009 HRTO 940

Indexed as: Seguin v. Great Blue Heron Charity Casino

APPEARANCES

Joanne Seguin, Complainant ) Guy Seguin, ) Representative

Great Blue Heron Charity Casino, ) Sarah Crossley, Respondent ) Counsel

INTRODUCTION

1In November 2002, Joanne Seguin (“Ms. Seguin”) commenced employment with Great Blue Heron Charity Casino (“the respondent”) as a part-time washroom attendant. She was assigned to clean the women’s washrooms. On the same date, Matthew Welts (“Mr. Welts”) commenced employment as a part-time washroom attendant. He was assigned to clean the men’s washrooms. Ms. Seguin and Mr. Welts had both signed an employment contract which subjected them to a ninety-day probationary period. On December 23, 2002, Mr. Welts was promoted to a full-time housekeeping position, without the respondent holding a job competition. At the time of the promotion, one of the duties of the full-time housekeeping position was cleaning the men’s washrooms.

2On August 20, 2003, Ms. Seguin filed a human rights complaint (“the Complaint”) with the Ontario Human Rights Commission (the “Commission”), alleging that the respondent discriminated against her in employment because of sex, contrary to sections 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On December 13, 2005, the Commission referred the Complaint to the Human Rights Tribunal of Ontario (the “Tribunal”) to be heard and decided.

3The Tribunal issued a decision, 2007 HRTO 33, (“the Tribunal’s 2007 decision”) and found the respondent’s conduct in not considering Ms. Seguin for the position because of her sex was discriminatory and contrary to the Code. In reaching this finding, the Tribunal found that there was a rational connection between the general purpose of requiring the housekeeping position to be male and ensuring that a man was available to clean the men’s washrooms, in order to respect the privacy of the male patrons and the safety of the female staff. The Tribunal also found that the respondent had no intention of discriminating against Ms. Seguin personally and that it adopted the requirement that a man had to be hired in the housekeeping position in December 2002 in the honest and good faith belief that it was necessary in order to ensure same-gender cleaning of the men’s washrooms. The Tribunal determined that a violation of the Code occurred because the respondent failed to consider any alternatives to ensure same-gender cleaning of the men’s washrooms to the point of undue hardship. The Tribunal’s 2007 Decision awarded Ms. Seguin a number of remedies.

4The respondent appealed the Tribunal’s 2007 decision to the Divisional Court on both the finding of discrimination and the remedies. The Divisional Court dismissed the appeal of the finding that the Code was violated, but allowed the appeal on the issue of remedy. The Divisional Court decision, (2008) 299 D.L.R. (4^th) 548,2008 CanLII 45003 (Ont. S.C.D.C.), stated that both the evidence and the submissions of the parties respecting the appropriate remedy needed to be reheard and remitted that issue to a different member of the Tribunal.

5The parties attended before the Tribunal again in 2009 and I heard evidence and submissions on the issue of the appropriate remedies to be issued by the Tribunal (“the 2009 hearing”) based upon the finding in the Tribunal’s 2007 decision that the respondent had discriminated against Ms. Seguin and violated the Code.

FACTS

6Ms. Seguin’s evidence consisted of her testimony addressing the remedies she was seeking, which had been identified in writing prior to the hearing, as well as a document entitled Appendix “A”. The respondent’s evidence was submitted via the affidavits of Vincent Balfour, Facilities Manager for the respondent (“Mr. Balfour”), and Cheryl Givelas, Human Resources Director for the respondent (“Ms. Givelas”), with documents appended to those affidavits which were marked as exhibits. While he was given an opportunity to do so, Mr. Seguin, Ms. Seguin’s representative, did not cross- examine Mr. Balfour or Ms. Givelas on their affidavits. Mr. Seguin advised that he wanted to cross-examine Mr. Balfour on an affidavit that was submitted to Divisional Court, but I ruled that he could not do so because that material was not before me and the opportunity to cross-examine on that affidavit was during the Divisional Court proceedings.

7Ms. Seguin gave evidence about the remedies she was seeking. Ms. Seguin testified that she knew she performed her part-time position well and that her supervisor would assign her functions beyond her part-time position. She testified that after she did not receive the promotion, she felt humiliated because Mr. Welts had received the promotion and she had not. She testified that when she did not receive the promotion, other employees made comments questioning her competency and she thought that their attitude and behaviour towards her changed. She testified that she began to feel worthless and wondered what she had done “to deserve this” when she was not promoted. She testified she felt a loss of self-worth, esteem and confidence and felt victimized and vulnerable.

REMEDY

8Ms. Seguin seeks $1,000,000.00 in damages.

Damages

9While Mr. Seguin did not reference a specific amount that was being sought for general damages, he submitted that Ms. Seguin was humiliated throughout the entire process, experienced hurt feelings and still feels that hurt today. He submitted that she lost self-respect, dignity, self-esteem and confidence and felt victimized. He submitted that the respondent’s actions were intentional towards Ms. Seguin and suggested the respondent was trying to bury “the truth” in these proceedings.

10Ms. Crossley confirmed that a violation of the Code occurred as a result of the respondent’s failure to consider Ms. Seguin for a full-time housekeeping position with duties that included cleaning the male washrooms, as determined by the Tribunal’s 2007 decision. She submitted that the Tribunal found that the practice of male staff cleaning the men’s washrooms and the female staff cleaning the women’s washrooms was adopted “in order to respect the privacy of the patrons and the safety of its staff” and she noted that Divisional Court did not alter this finding. She noted that at para. 41 of the Tribunal’s 2007 Decision, it stated, “there is, however, a clear requirement relating to one of the tasks of the housekeeping position that a person of the same gender must clean the washrooms”. She also submitted that the Tribunal found that the respondent’s decision to hire a male into the full-time housekeeping position was found to have been made in an honest and good faith belief that it was necessary to the accomplishment of its purpose. The Tribunal found there was no intention to discriminate against Ms. Seguin, and the requirement was in order to ensure same-gender cleaning for the safety of the respondent’s patrons and its employees.

11Ms. Crossley submitted that the appropriate range of general damages was between $2,500 and $5,000, as this was a single breach of the Code, was done in good faith for public decency reasons and to protect the privacy and safety of its patrons and staff. She referred to a number of decisions in support of her submissions. (Sanford v. Koop, 2005 HRTO 53; Huang v. 1233065 Ontario Inc. (o/a Ottawa Senior Chinese Cultural Assn.), 2006 HRTO 1; Pridham v. En-Plas Inc., 2007 HRTO 8; Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (Ont. Bd. Inq.); Barclay v. Royal Canadian Legion, Branch 12, 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486 (Ont. Bd. Inq.); Blainey v. Ontario Hockey Assn. (No. 2) (1988), 1988 CanLII 8886 (ON HRT), 9 C.H.R.R. D/4972 (Ont. Bd. Inq.); Rodley v. Barclay (1993), 1993 CanLII 16514 (ON HRT), 19 C.H.R.R. D/503 (Ont. Bd. Inq.); Piazza v. Airport Taxicab (Malton) Assn. (1987), 1987 CanLII 8586 (ON HCJ), 9 C.H.R.R. D/4548 (Ont. Div. Ct.).)

12Ms. Crossley also submitted that there was no basis upon which to award damages for mental anguish. She noted that the Tribunal found that the respondent had not violated Ms. Seguin’s rights in a wilful and reckless manner (see para. 61 of the Tribunal’s 2007 decision) and that the Divisional Court decision had not altered that finding. She submitted that there was no objective evidence, no medical documentation or any other documentation tendered in support of a claim for damages for mental anguish.

13I note that since Ms. Seguin’s Complaint was commenced, the Code has been amended, including the Tribunal’s remedial powers. The specific reference to mental anguish in the former s. 41(1)(b) of the Code has been removed and the Tribunal’s remedial powers have now been amended to permit the Tribunal to order monetary compensation for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect (s. 45.2). At the end of the day, the amendments to the Code, including the removal of the cap on damages for mental anguish, do not affect the amount of compensation I award.

14In assessing the amount of damages, there must be a degree of objectivity in evaluating the circumstances surrounding the violation of the Code. This principle was noted in Pridham v. En-Plas Inc., supra, at para. 48 which stated:

While general damages are designed to compensate for, among other things, humiliation, hurt feelings, loss of self-respect, dignity, self esteem and confidence, and the experience of victimization, relying solely on complainants’ descriptions of the degree of such losses is problematic in at least two respects. On the one hand, there is an obvious danger of the self-serving nature of such evidence. On the other hand, while two individuals may experience exactly the same degree of loss, one may be less willing, or able, to describe that loss in testimony. Thus, in my view, while the experience of such losses is subjective, the assessment of such losses must have a degree of objectivity to it.

15Based upon Ms. Seguin’s evidence, I accept that Ms. Seguin was personally affected when she was not promoted to the full-time housekeeper’s position and the position was, instead, given to another employee. I also accept that she experienced hurt feelings, which she still feels today, and lost self-esteem and confidence when she was not promoted as she felt that she was a good employee who performed her job well. But I have difficulty accepting that all of Ms. Seguin’s feelings arose because of the Code violation, rather than because she did not receive a position she felt she deserved for being a good, albeit short-term, employee who performed her part-time position well.

16I award $5,000 in monetary compensation for the loss arising from the infringement of Ms. Seguin’s rights under the Code and the injury to her dignity, feelings and self-respect. In awarding this amount, I have taken into consideration the objective facts that exist in this case together with the effects upon Ms. Seguin as she described them. The breach of the Code is an isolated one made about a month after Ms. Seguin commenced part-time employment with the respondent. The Tribunal’s 2007 decision and the Divisional Court decision found that the purpose of the standard was not to infringe Ms. Seguin’s rights, but, rather, was done in the good faith belief that it was necessary to ensure same-gender cleaning of the men’s washrooms in order to protect the privacy of its male patrons and the safety of its female staff. The breach occurred because the respondent failed to consider any alternatives ensuring that same-gender cleaning of the men’s washrooms to the point of undue hardship. This breach of Ms. Seguin’s rights was not done wilfully or done in a reckless manner (see para. 61 of the Tribunal’s 2007 decision). There was no medical evidence tendered. On May 9, 2003, Ms. Seguin received a new position as a Nevada seller with the respondent. This was a position with new people, new supervisors and more responsibility. Ms. Seguin resigned from her employment on May 23, 2003.

Loss of wages

17Ms. Seguin is seeking 100 percent of her lost wages from December 23, 2002, to February 25, 2009, at the full-time housekeeper’s salary. Ms. Seguin testified that theoretically she could still be working for the respondent in 2009 and until such point that she decided to retire.

18The respondent submitted that there was no evidence to substantiate any claim for loss of wages, despite repeated requests by the respondent and an Order from the Tribunal for Ms. Seguin to produce such evidence. In support of this position, she referred to various letters appended to the affidavits of Mr. Balfour and Ms. Givelas in which the respondent requested details about Ms. Seguin’s loss of wages claim.

19Further, and more important, the respondent submitted that Ms. Seguin had abandoned any claim for loss of wages after May 23, 2003, earlier in the proceedings and could not now seek entitlement to a loss of wages after May 23, 2003. The respondent referred to a letter dated April 23, 2007, from Ms. Crossley to the Tribunal, on which Ms. Seguin was copied, which was appended to Mr. Balfour’s affidavit, in which Ms. Crossley confirmed Ms. Seguin’s position that the loss of wages being claimed was from the time “Mr. Welts became full time until [Ms. Seguin] resigned her employment from the Casino”. The respondent also referred to Mr. Balfour’s affidavit, specifically paras. 6 and 7, which confirmed that Ms. Seguin was not seeking loss of wages after she resigned her employment from the respondent. Ms. Givelas confirmed this position in paras. 6 and 7 of her affidavit. Based upon this representation, Ms. Crossley submitted that Ms. Seguin could not now seek a claim for loss of wages beyond May 23, 2003.

20Mr. Seguin confirmed that Ms. Seguin had previously not sought a loss of wages after May 23, 2003. He submitted that with the Divisional Court decision, he thought that all remedies could be pursued. He agreed that he was expanding upon the loss of wages that had previously been requested because the respondent was “not telling the truth” and the issue was still ongoing.

a) From May 23, 2003 to the 2009 date of hearing

21There is no evidence before me to suggest that the respondent is “not telling the truth” as submitted by Mr. Seguin. The evidence is that, as of 2007, Ms. Seguin represented to the respondent and this Tribunal that she was not seeking any loss of wages beyond May 23, 2003 (see para. 4 of the Tribunal’s 2007 Decision). Therefore, Ms. Seguin is not able to claim loss of wages beyond May 23, 2003, until the 2009 hearing date. Even if I had allowed Ms. Seguin to pursue a claim of loss of wages beyond May 23, 2003, Ms. Seguin has not filed any evidence to establish that there is a loss of wages beyond May 23, 2003, and I would decline to order a loss of wages beyond May 23, 2003, on that basis.

b) From December 23, 2002 to May 23, 2003

22As a part-time Washroom Attendant, Ms. Seguin would have worked, on average, between 24 - 32 hours per week. A full-time Housekeeper would generally work 40 hours a week. The rate of pay for the part-time washroom attendant and the full-time housekeeping position was the same, $10.83 per hour. The rate of pay for the Nevada seller position was $10.50 per hour. Ms. Crossley submitted that the calculated difference between the full-time Housekeeper position and Ms. Seguin’s part-time Washroom Attendant and Nevada seller positions with the hours that she worked or was scheduled to work between December 23, 2002, and March 23, 2003, was 263 hours, which totalled $2,853.32.

23It is difficult to predict whether Ms. Seguin would have been promoted into the position of full-time Housekeeper instead of Mr. Welts in December 2002 if a job competition had been held. However, from the evidence presented, it was a possibility. At para. 25 of the Tribunal’s 2007 Decision, it was noted, “The staffing in the housekeeping department was quite fluid. It was common practice to move staff from a washroom attendant position to a housekeeping position”. Ms. Seguin testified that she was a good employee who was given functions by her supervisor beyond her part-time position. She received a new position in May 2003 and she testified it was in a new department, with different team people and different supervisors. She and Mr. Welts held the same position and had the same length of service. Even if other employees than Ms. Seguin and Mr. Welts were eligible to apply for the full-time Housekeeper position if a job competition had been held, as suggested by Ms. Crossley, which would have lessened Ms. Seguin’s chances of securing a promotion, the fact remains that there was a possibility as high as 50 percent that Ms. Seguin could have been promoted to a full-time Housekeeper position in December 2002.

24With a possibility as high as 50 percent of obtaining the full-time Housekeeper’s position, I award Ms. Seguin 50 percent of her lost wages from December 23, 2002, to May 23, 2003, at the full-time housekeeping salary, less the wages that she earned in the part-time washroom attendant and Nevada seller positions during this period. Based upon the evidence submitted by the respondent, this amount is $1,426.67. This amount was not challenged by Ms. Seguin.

Interest

25Ms. Seguin submitted that pre and postjudgment interest should be awarded in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. Mr. Seguin submitted that Ms. Seguin had been involved in this proceeding for over 6 years. Ms. Seguin submitted that interest should be based upon December 23, 2002, the date of the Code violation. Ms. Crossley submitted that neither prejudgment nor postjudgment interest should be awarded because of the amount of time it has taken from the filing of the complaint until the 2009 hearing date. Ms. Crossley submitted that it took almost four years from the date of the Complaint to the date the hearing commenced before the Tribunal. She submitted that the respondent complied with all the disclosure requests, which was not the case of the complainant, which resulted in preliminary motions and conference calls with the Tribunal. She submitted that as a result of the Tribunal’s 2007 decision not to allow the respondent to make submissions on remedy, the decision was appealed to Divisional Court, which resulted in further delay. Ms. Crossley submitted that if postjudgment interest were to be awarded, that it be awarded 10 days following the date of this decision so that the respondent would have a reasonable opportunity to comply with the terms of the decision. Ms. Crossley referred to several cases in support of her submissions (see Gogek v. Empry (1995), 95 C.L.L.C. 230-024 (Ont. Bd. Inq.); and Rodley v. Barclay, supra).

26This has been a lengthy proceeding for the parties as the Complaint was originally filed with the Commission in August 2003. The respondent did appeal the Tribunal’s 2007 Decision and that appeal was based upon two grounds: that no violation of the Code occurred and that issue of remedy was to be bifurcated. The Divisional Court decision confirmed that a violation of the Code did occur and the matter was remitted back to the Tribunal only on the issue of remedy.

27In the circumstances of this case, prejudgment interest is awarded from the date of the Complaint, August 20, 2003, in accordance with s. 127 of the Courts of Justice Act, supra. The prejudgment interest rate in effect in August 2003 was 5%.

28The respondent shall have 10 days following the date of this Decision to make the payments described herein to Ms. Seguin, failing which postjudgment interest shall be payable in accordance with the rate established under the Courts of Justice Act, supra.

Agent’s Fees

29Ms. Seguin sought her agent’s costs, which were unspecified, for the period that the Complaint has taken during the proceedings. Ms. Crossley submitted that the Tribunal has no jurisdiction to award legal costs and, by analogy, agent’s costs. She referred to Quereshi v. Ontario (Human Rights Commission), [2006] O.J. No. 172 (Div. Ct.) and Glover v. 571566 Ontario Inc. (o/a Cadillac Tavern), 2006 HRTO 14).

30The Tribunal has no jurisdiction to award agent’s costs and therefore no costs are awarded.

Orders for Future Compliance

31Ms. Crossley referred to the affidavit of Ms. Givelas (paras. 9 - 21) which described the policies, procedures and training pertaining to harassment and human rights that have been available to the respondent’s employees since 1999. Copies of the policies and procedures were appended the affidavit and details about the training sessions held and details about the individuals with backgrounds in human rights who conducted the training were also provided. Ms. Crossley also stated that in the time since Ms. Seguin filed her Complaint, the employees of the respondent are now represented by a union, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (“CAW-Canada Local 1090”). Appended to Ms. Givelas’s affidavit were articles 13 and 14 from the collective agreement titled, respectively, “No Discrimination” and “Respectful Workplace”, and specifically referred to the Code. Ms. Crossley submitted that this material demonstrates that the respondent is committed to maintaining a workplace free from harassment and discrimination and that no orders for future compliance should be ordered.

32Based upon the affidavit of Ms. Givelas setting out the policies, procedures and training about harassment, discrimination and human rights provided by the respondent’s employees, as well as the respondent’s acceptance at this hearing that the Code was violated, I do not feel it is necessary to make any orders for future compliance.

ORDER

33The Tribunal makes the following orders:

a) The respondent shall pay $5,000.00 to Ms. Seguin as general damages for a violation of the Code;

b) The respondent shall pay $1,426.67 as loss of wages from December 23, 2002 to May 23, 2003;

c) Prejudgment interest at the rate of 5% 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 (August 20, 2003);

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.