Arunachalam v. Best Buy Canada Ltd. (No. 2)

2009-01763-I

2010-09-16

2010 HRTO 1880

Ontario Human Rights Tribunal

CHRR Doc. 10-2530

Sashy Arunachalam

Applicant

v.

Best Buy Canada Ltd., Carl Cacheiro and Romielyn Navasero

Respondents

Date of Decision: September 16, 2010

Before: Human Rights Tribunal of Ontario, David A. Wright

File No.: 2009-01763-I

Appearances by:

Bruce Best, Counsel for the Applicant

Evan Van Dyk, Counsel for the Respondents

PREGNANCY — discriminatory treatment and harassment in employment — employment terminated — EMPLOYMENT — failure to conduct employer investigation — obligation to provide discrimination-free workplace — DISCRIMINATION — job performance as reasonable cause for discrimination — DAMAGES — damages assessed for injury to dignity and self-respect — determining quantum by considering previous awards — survey of the law — REMEDIES — human rights training — pregnancy and anti-harassment policies

Summary: The Human Rights Tribunal of Ontario found that Sashy Arunachalam was harassed because of her pregnancy while she was employed by Best Buy Canada. Ms. Arunachalam alleged that her supervisor and trainer, Romielyn Navasero, made discriminatory comments about her pregnancy on various occasions. She also alleged that she brought these comments to the attention of Jennifer Rattan, the Operations Manager, but Ms. Rattan did not properly investigate or take steps to deal with the harassment. Finally, she alleged that her pregnancy was a factor in her dismissal.

Best Buy denied that the comments were made, denied that Ms. Arunachalam had made specific allegations that required investigation, and claimed that she was not dismissed because of her pregnancy, but because of poor performance.

Best Buy is an electronics retailer. The complainant started work at a Toronto store in September 2008 as an "Operations Senior". Ms. Arunachalam informed Best Buy of her pregnancy at the time of hiring. The Operations Department is responsible for the cash handling in the store, including registers, customer service, payroll, banking, and purchasing of supplies. At the relevant time, the department consisted of a manager (Ms. Rattan), a supervisor (Ms. Navasero), two "Operations Seniors" and 20 customer service representatives.

Ms. Navasero was in charge of training Ms. Arunachalam. The Tribunal found that Ms. Navasero made discriminatory comments about Ms. Arunachalam's pregnancy. She insisted that Ms. Arunachalam tuck in her shirt although this was difficult and embarrassing because of her pregnancy. She suggested that the complainant should not have been hired because of her pregnancy, expressed concern about her ability to handle the work while pregnant, and asked whether she had taken the job to obtain pregnancy leave benefits. She also became angry with Ms. Arunachalam after she spoke to Ms. Rattan. These were vexatious comments that Ms. Navasero knew or ought to have known were unwelcome.

The Tribunal also found that Ms. Arunachalam did not make it clear to Ms. Rattan that she was making allegations that she was being harassed because of her pregnancy. Ms. Rattan understood that she felt her performance was being judged based on her pregnancy, and she spoke to Ms. Navasero about this.

Also, the Tribunal found that Ms. Arunachalam's pregnancy was not a factor in her dismissal. Ms. Arunachalam had difficulty learning to do the job, was slow in counting money and slow in preparing paperwork. The dismissal was not discriminatory.

The Tribunal awarded Ms. Arunachalam $4,000 as compensation for injury to dignity and self-respect caused by the harassment. It also ordered Best Buy to amend its employee handbook to clarify that harassment and discrimination based on pregnancy are prohibited, and to require Romielyn Navasero to complete a course on basic human rights principles.

See also (No. 1) (2010), CHRR Doc. 10-0252, 2010 HRTO 228.

CASES CITED

AGDA Group Consultants Inc. v. Lane (2008), 64 C.H.R.R. D/132, 2008 CanLII 39605 (Ont. Div.Ct.): 42, 49

Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229: 47

Dodds v. Sharks Sports Pub (2007), 60 C.H.R.R. D/249, 2007 HRTO 17: 42

Harriott v. National Money Mart Co. (2010), 70 C.H.R.R. D/1, 2010 HRTO 353: 42, 60

Khan v. 820302 Ontario Inc. (2010), CHRR Doc. 10-0302, 2010 HRTO 265: 42

McCarey v. Associated Newspapers Ltd. (No. 2), [1965] 2 Q.B. 86 (C.A.): 47

Sanford v. Koop (No. 2) (2005), 55 C.H.R.R. D/102, 2005 HRTO 53: 54

Seguin v. Great Blue Heron Charity Casino (No. 2) (2009), 69 C.H.R.R. D/325, 2009 HRTO 940: 52

Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111, [2001] O.J. No. 297 (QL) (Sup.Ct.): 44

Vaid v. Freeman Formalwear Ltd. (2009), CHRR Doc. 09-2940, 2009 HRTO 2273: 43, 61

Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, 2010 SCC 27: 46

Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701: 47

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.),1982, c. 11: 46

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 5: 6

s. 5(1): 23

s. 5(2): 23

s. 10(2): 6

s. 34: 1

s. 41(1)(b): 44

s. 45.2(1): 41, 63

INTRODUCTION

1In this application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant, Sashy Arunachalam, alleges that she was harassed and discriminated against on the basis of sex and pregnancy by the respondents in respect of employment.

2The applicant worked for the organization respondent, Best Buy Canada, for approximately one month in September and October of 2008. The personal respondent Romielyn Navasero was her direct supervisor. The personal respondent Carl Cacheiro was the General Manager of the store where she worked. The applicant alleges that Ms. Navasero made discriminatory comments about her pregnancy on various occasions when she worked with her. She alleges that when she brought these comments to the attention of Jennifer Rattan, the Operations Manager, she did not properly investigate the allegations or take steps to deal with them. Finally, she alleges that her pregnancy was a factor in her dismissal and the denial of proper training. The respondents deny that the comments alleged were made, deny that the applicant made specific allegations that required investigation, and state that Ms. Arunachalam was dismissed because of poor performance during her probationary period.

3The hearing was held on February 22 and 23, 2010. Six witnesses testified: the applicant, the personal respondents, Ms. Rattan, Janet McGowan, the District Loss Prevention Manager at the time, and Deena Marsh, the District Operations Manager.

BACKGROUND

4Best Buy is an electronics retailer. The applicant commenced work at a Toronto store in September of 2008 as an "Operations Senior". The Operations Department is responsible for the cash handling in the store, including registers, customer service, payroll, banking, scheduling, and purchasing of supplies. At the relevant time, it consisted of a manager (Ms. Rattan), a supervisor (Ms. Navasero), two "Operations Seniors" (Ms. Arunachalam and one other person) and approximately 20 customer service representatives. The "Rep 1" position is a cashier and the "Rep 2" position deals primarily with returns and exchanges.

5Ms. Rattan interviewed and hired the applicant for the position. According to Ms. Rattan, at the time the applicant was hired the store was "desperate" for an Operations Senior; there was only one person in the position and many stores have three. There is no dispute that during the interview, the applicant advised Ms. Rattan that she was pregnant.

HARASSMENT BASED ON PREGNANCY

6The relevant provisions of the Code are ss. 5 and 10(2):

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

7The applicant and Ms. Navasero worked alone together frequently, as Ms. Navasero was primarily responsible for training her. It is evident, as discussed in more detail below, that the applicant was having difficulty learning to do the work of her position, and that Ms. Navasero and others were assisting her with it and correcting mistakes.

The Applicant's Allegations

8The applicant described her relationship with Ms. Navasero as good until several days after she started. According to the applicant, Ms. Navasero asked her to tuck in the t-shirt on her uniform. The applicant explained she could not do so because she was pregnant. Ms. Navasero then asked several times whether Ms. Rattan knew she was pregnant when she hired her, and made clear that she was surprised that she would hire her when she knew she was pregnant. Ms. Navasero told the applicant to tuck in the shirt or wear a sweatshirt. The applicant adapted the sweatshirt by shortening it and stitching a circle around it.

9On another occasion, according to the applicant, Ms. Navasero said that Ms. Rattan had made a "mistake" by hiring her when she was pregnant. Ms. Navasero said that the work was stressful and she did not know if the applicant could handle it and did not know why Ms. Rattan had hired her for this position. She was asked if she had come to work at Best Buy to get pregnancy leave benefits. Ms. Navasero asked why she had left her previous job and whether she would be returning to that job, suggesting that she had taken the job at Best Buy to get pregnancy benefits.

10The applicant says that Ms. Navasero refused to train her on the Rep 2 job because she was pregnant. The applicant also alleges that Ms. Navasero said that since there were a large number of South Asian people working in the store, she must have gotten the job through influence. She said that Ms. Navasero said that it had taken her three years to get to the position Ms. Arunachalam was now in. The applicant did not pursue allegations of racial discrimination or harassment at the hearing.

11The applicant testified that she approached Ms. Rattan and told her that it seemed that Ms. Navasero "had an issue" with her pregnancy. She says that she told Ms. Rattan that Ms. Navasero was "commenting on" her pregnancy and had concerns about her maternity leave, and her previous job. She testified that Ms. Rattan said that Ms. Navasero must be worried about her. Ms. Arunachalam testified that Ms. Navasero later spoke to her in an angry manner, telling her she did not like it when people talk about her behind her back. She said her treatment did not change much after that time.

Ms. Navasero's Evidence

12Ms. Navasero denied that these events occurred. She said that she only spoke about Ms. Arunachalam's pregnancy with her when she brought it up. She testified that Ms. Arunachalam frequently spoke about issues in her personal life, including her pregnancy, which involved significant complications. She said she only spoke about the pregnancy two or three times during the whole period she worked with the applicant, and that she never discussed, in any way, the impact of the pregnancy on the workplace.

13Ms. Navasero testified that the only discussion they had about a t-shirt was on the day Ms. Arunachalam started. There were only extra large and medium t-shirts available. Ms. Arunachalam complained that the extra-large was too big and there was no large available. Ms. Navasero showed her how she could fold the t-shirt and then unfold it later in her pregnancy.

14Ms. Navasero said that she did ask when Ms. Arunachalam would be going on maternity leave but that it was a casual question like asking when her due date would be. She said that she did ask about Ms. Arunachalam's previous employment but it was a casual conversation because she was interested in what the work in that environment (a bank) was like. She testified that she did not make any comments about Ms. Arunachalam getting the Operations Senior position more quickly than she had. In fact, it did not take her three years to get that job but eight months, and she had worked at Best Buy for three years when they had the conversation. She denied that Ms. Rattan had advised her that Ms. Arunachalam had complained about differential treatment based on pregnancy.

Ms. Rattan's Evidence

15Ms. Rattan testified that Ms. Arunachalam had come to her and said she had the feeling that Ms. Navasero thought she could not do her duties or that Ms. Navasero thought that she would not work out because she was pregnant. They discussed it, and Ms. Rattan said that Ms. Navasero was concerned about her because she was brand new, and wanted to be sure she understood how busy it could be during the holiday season. Ms. Arunachalam told Ms. Rattan that she thought it was more than that, and Ms. Rattan obtained Ms. Arunachalam's permission to speak with Ms. Navasero about her concerns.

16Ms. Rattan testified that she talked to Ms. Navasero and told her that Ms. Arunachalam thought she was possibly not happy having her as Operations Senior due to her pregnancy. She asked Ms. Navasero if there was anything she said to her. Ms. Navasero said that the applicant kept asking to be trained on the Rep 2 position, and she was concerned that Ms. Arunachalam did not know what she was "getting into" with the job. Dealing with customers during the busy holiday season could be stressful for someone who was not pregnant, and Ms. Navasero was concerned that Ms. Arunachalam would be seven months pregnant at that time. Ms. Navasero told her that she kept emphasizing to Ms. Arunachalam how busy it would be during the Christmas season and wanted to ensure that she would be all right doing all the things that an Operations Senior had to do at that time while seven months pregnant. Ms. Rattan testified that she went back to Ms. Arunachalam and said that she had spoken with Ms. Navasero.

17Ms. Rattan testified that during a subsequent conversation with Ms. Arunachalam in which the applicant expressed her concern that she had not yet been trained on the Rep 2 position, Ms. Arunachalam again raised her "feeling" that this related to her pregnancy.

Findings Regarding Harassment

18The alleged harassment took place while Ms. Arunachalam and Ms. Navasero were alone together, and each has a different version of events. I must decide whether it is more likely than not that Ms. Navasero made the alleged comments based on pregnancy. Considering all the evidence, I find that Ms. Navasero did so.

19The most significant factor in support of this conclusion, in my view, is the evidence of Ms. Rattan. Ms. Navasero denied that she had concerns about the ability of pregnant employees to do their work and denied that Ms. Rattan had spoken to her about Ms. Arunachalam's concerns. Ms. Rattan's evidence contradicted both of these central points, since she did speak to Ms. Navasero about the concerns raised, and Ms. Navasero discussed with Ms. Rattan her concern that Ms. Navasero would have particular difficulty doing the work during the busy holiday season while seven months pregnant. These important contradictions cause me to doubt other evidence Ms. Navasero gave where it conflicts with that of the applicant.

20In addition, I take into account that Ms. Arunachalam made entries in her personal diary about the events at around the time they happened, which were introduced into evidence. Although the applicant's evidence in cross-examination established that the diary entries did not always refer to events that happened on the dates they appeared to discuss, I accept the applicant's explanation that she did not always write about events on the day they occurred, but that the notes reflect her thoughts and recollections around the time they occurred. The diary entries about work are interspersed with entries about other personal factors, and I find it unlikely that they were fabricated or invented after the fact. While I accept that they cannot be seen as a completely accurate account of what occurred and are coloured by the applicant's own perceptions, they lend credibility to Ms. Arunachalam's account of the events.

21Counsel for the respondents pointed to aspects of the applicant's testimony that were inconsistent with the evidence of other witnesses, such as the difference between her evidence and that of Ms. Marsh about how long they spoke on the phone about her dismissal. He also suggested that Ms. Navasero would not have said that it took her three years to become an Operations Senior when it took her only eight months to get to that position and she had been working there for three years. In my view, these are relatively minor inconsistencies that reflect normal failings in memory and do not detract from my conclusion that the comments were made.

22I do not accept that Ms. Navasero said that the applicant was not being trained on the Rep 2 position because she was pregnant. As detailed in the next section, I find that the applicant was not trained on the Rep 2 position because she was having difficulty learning other duties. Both Ms. Navasero and Ms. Rattan testified that she asked on numerous occasions to be trained on Rep 2, but that they wanted to wait until she had mastered the Rep 1 position, which she had not done. While Ms. Arunachalam inferred that the criticism of her performance was related to her pregnancy, I find that it is more likely than not that this comment was not made.

23In summary, I find that Ms. Navasero made various comments suggesting that the applicant should not have been hired because of her pregnancy, expressing concern about her ability to "handle" the work while pregnant, and asking questions about whether she had taken the job to obtain pregnancy leave benefits. I also find that Ms. Navasero became angry with Ms. Arunachalam after she spoke to Ms. Rattan about these issues, and told her that she did not like others talking behind her back. Finally, I find that Ms. Navasero insisted the applicant tuck in her shirt although this was difficult because of her pregnancy. These findings constitute harassment and discrimination based on sex and pregnancy contrary to ss. 5(1) and 5(2) of the Code. Ms. Navasero made vexatious comments that she knew or ought to have known were unwelcome and questioned the applicant's hiring and capability due to her pregnancy.

Duty to Investigate

24The applicant also argues that Ms. Rattan did not take reasonable steps to investigate Ms. Arunachalam's concerns once she brought them up. The parties have slightly different versions of what the applicant told Ms. Rattan. Ms. Rattan testified that Ms. Arunachalam raised a general concern that Ms. Navasero did not want her there and did not think she could do the work because she was pregnant. Ms. Arunachalam testified that she said that Ms. Navasero "had an issue with" and was "commenting on" her pregnancy.

25In my view, what is important to determining whether the employer failed in its duty to investigate is what Ms. Rattan understood or should reasonably have understood from the conversation. I accept her evidence that she did not understand Ms. Arunachalam to be making allegations that she had been harassed based on pregnancy. Ms. Rattan understood that Ms. Arunachalam was alleging, in a general sense, that Ms. Navasero was judging her performance based on her pregnancy. Ms. Rattan was conscious of her duty to investigate and deal with allegations of harassment. She spoke to Ms. Navasero about the allegations, and in my view, while taking steps to deal with the situation, there is no reason that she would minimize the allegations. Even as recounted by Ms. Arunachalam, the allegations were vague and did not make clear that she was alleging harassing comments that suggested she was not welcome in the workplace because of pregnancy.

26It is understandable that, out of a desire not to inflame the situation or experience reprisals, Ms. Arunachalam would decide not to tell Ms. Rattan the full extent of what had happened. However, having done so, Best Buy cannot be found to have violated the Code for not doing more than speaking with Ms. Navasero about the concerns and ensuring that pregnancy was not a factor. While it might have assisted if Ms. Rattan had probed more deeply and asked the applicant whether Ms. Navasero had said anything to give her the impression she was being judged based upon her pregnancy. This would have enabled Ms. Rattan to assure herself that the applicant's allegations were merely a suspicion about Ms. Navasero's motives for criticizing the applicant's work. However, I do not find that, in this context where Ms. Rattan knew the applicant was having performance issues, the Code was violated merely because she did not explore further the applicant's expressed suspicion that Ms. Navasero's criticism of her work was connected to her pregnancy.

DISMISSAL

27Mr. Cacheiro made the decision to dismiss the applicant and signed the letter that states that she was terminated for "probationary unsuitability". He testified that about a week and a half after she started work, Ms. Rattan and Ms. Navasero told him during brief conversations that she was not catching on to the training as well as they would. They told him that there were issues with cash handling, how she was doing the store opening and closing, her paperwork, and her rapport with the other associates. He testified that he told Ms. Rattan to make sure that she had appropriate training. After that time, he received feedback from them, from the other Operations Senior, and from some cashiers that the applicant's performance would improve a bit and then deteriorate and that it was "not up to par". He testified that on one occasion he observed her getting flustered and saying something to one of the cashiers in a forceful manner. He stepped in and urged her to calm down.

28Shortly before Ms. Arunachalam's employment was terminated, Best Buy received a call that appeared to come from her previous employer regarding her previous employment. Best Buy does reference checks after employees commence work, and its offers are clear that they are contingent on reference checks and background checks, and that there is a 90-day probation period.

29Mr. Cacheiro testified that he had already made the decision that Ms. Arunachalam's employment should be terminated based upon her performance before he received this information, and the applicant does not challenge his evidence that it played a very minor part in the decision. The decision was ultimately based upon feedback he was receiving from Ms. Navasero, Ms. Rattan and the other Operations Senior about the difficulties Ms. Arunachalam was having in doing the job.

30Ms. Rattan testified that she received feedback from the Reps that the applicant did not seem to be grasping the job as quickly as she could. She noted that the applicant was taking too long to count the tills and do the necessary paperwork. Accordingly, she arranged to have a shift with the applicant, which occurred about a week or two before the applicant was dismissed. She showed her how to do each step in the job, how long each should take, and tried to find out "what the problem was". Her impression was that "it just didn't seem like she was picking it up".

31Ms. Rattan testified that she continued to hear the same feedback from Ms. Navasero and the Reps after this training. They told Ms. Rattan that Ms. Arunachalam was not understanding the systems at the front register (the Rep 1 position) and continued to ask basic questions that had already been answered. As she had not fully understood the front cash system, Ms. Rattan did not believe that she was ready to be trained on the Rep 2 position doing exchanges and refunds despite her continual requests that this occur.

32Ms. Navasero testified that she received feedback from the cashiers that the applicant was having difficulty learning the work involved in being an Operations Senior. She was having difficulty learning the work done by the Rep 1s and Rep 2s, was slow in counting money and "cashing out" the Reps and was slow in preparing paperwork that had to be done in the morning. She testified that she observed some of these problems herself and received feedback about them from various other employees.

33In the days prior to the dismissal, Ms. Rattan spoke to Mr. Cacheiro and said she was concerned about Ms. Arunachalam's performance but hopeful things would improve. She told him that she had heard concerns from the Reps, as well as the other Operations Senior and Ms. Navasero. She said that although she wanted to make it work out with Ms. Arunachalam, she did not want to wait too long as the holiday season was coming and if the applicant had to be replaced, she did not want to waste too much time in doing so. Mr. Cacheiro did not consult her prior to the dismissal.

34I must determine whether the applicant's pregnancy was a factor in the decision to dismiss her. The applicant does not challenge the fact that Mr. Cacheiro made the decision to dismiss the applicant based upon what he understood to be performance concerns and that the purported reference from her previous employer played a minor part. However, she argues, Mr. Cacheiro's decision was based to a considerable extent on information he received from Ms. Navasero. Given the comments Ms. Navasero made about the applicant's pregnancy, it can be inferred, she argues, that her negative reports about her performance were affected by this attitude. Moreover, she argues that she was not given proper training by Ms. Navasero, and this was also influenced by her attitude toward the pregnancy.

35There is no question that Best Buy had the right to terminate the applicant's employment during her probationary period, so long as this did not violate the Code. The issue I must determine is whether pregnancy was a factor in this decision. In evaluating the evidence, I must be conscious of the fact that all the information about the reasons for her dismissal is in the possession of the respondent, and attentive to circumstantial evidence that might show that her pregnancy played a part in the decision. It is important to scrutinize carefully the evidence of the decision makers and be certain that the decision was not tainted by discrimination.

36I accept that the applicant was having significant difficulty learning to do the job. Ms. Rattan observed it herself when she worked on a shift with the applicant, and the Reps and the other Operations Senior provided similar feedback. Ms. Arunachalam's diary records that she had difficulty completing paperwork on certain days, and she suggested there and in her evidence that she believed she was receiving conflicting information from different individuals training her. In particular, she suggests that Ms. Navasero told her that the paperwork did not have to be prepared in the morning, while Ms. Rattan said that it did.

37While there are always differences in supervisors' approach to particular issues, Best Buy has a detailed operations manual available for the applicant to consult. She could also have dealt with any conflicts by taking the approach directed by Ms. Rattan, the more senior person. The applicant was hired in a senior position with considerable responsibility, and individuals in such positions are required to take initiative to learn the job. She was given training and assistance by various people, including Ms. Rattan who spent an entire shift assisting her in learning the cash handling and paperwork. It is clear to me on all the evidence, including the applicant's own evidence, that she was having difficulty understanding and doing the work, including the duties of the more junior Rep 1 cashier position, and I do not accept that this was because of Ms. Navasero training her improperly because she was pregnant

38Ms. Navasero did make comments about the applicant's pregnancy that I have found constituted harassment, and it is clear that she did have concerns that the applicant's pregnancy would affect her performance during the busy holiday season. Her evaluation of the applicant's performance was taken into account by Mr. Cacheiro together with that of others. I am alert to the subtle ways in which one individual's biases may be picked up by others, and the ways in which this may be reflected in Mr. Cacheiro's expressed concern about "rapport" with other associates. However, there is no evidence that Ms. Navasero's evaluation of the applicant's performance was any different from that of others, particularly influenced them, or that it was inaccurate.

39I find that Mr. Cacheiro made an objective appraisal of the applicant's work based on his own observation and the consistent feedback he received from employees observing the applicant's work, including Ms. Rattan and the other Operations Senior. The applicant has, accordingly, not met her burden of proof to show that her pregnancy was a factor in the dismissal. It has not been shown that the applicant's pregnancy was a factor in the termination of her employment, or that her pregnancy, as opposed to her performance, was a reason she was not trained on the Rep 2 position. Accordingly, the dismissal did not violate the Code.

40In light of my findings regarding harassment, the application as against Best Buy Canada and Romielyn Navasero is allowed in part. In light of my findings regarding the dismissal, the application is dismissed as against Carl Cacheiro.

REMEDIES

41Section 45.2(1) of the Code reads as follows:

45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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.

42The applicant seeks monetary compensation for injury to dignity, feelings and self-respect of $25,000. This submission was made based upon the applicant's theory that the respondents violated the Code through harassment, a failure to investigate, and a discriminatory dismissal. The applicant argues that comparable circumstances are those in Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 [reported 60 C.H.R.R. D/249] ($10,000 in general damages; $5,000 for mental anguish under previous Code provisions); AGDA Group Consultants v. Lane, 2008 CanLII 39605 [reported 64 C.H.R.R. D/132] (Ont. Div.Ct.) ($35,000 in general damages, $10,000 for mental anguish under previous Code provisions); Harriott v. National Money Mart, 2010 HRTO 353 [reported 70 C.H.R.R. D/1] ("Harriot") ($30,000 total); and Khan v. 820302 Ontario, 2010 HRTO 265 [CHRR Doc. 10-0302] ($25,000). Counsel for the applicant notes that while the other cases involved harassment and discriminatory dismissals, Harriott involved only harassment. He argues that the older cases must be relied upon with caution because, he argues, monetary awards are increasing. He argues that the most important factor is the impact on the applicant, and emphasizes that intent or motive should not be considered.

43Counsel for the respondent cites Vaid v. Freeman Formalwear, 2009 HRTO 2273 [CHRR Doc. 09-2940], noting that in that case, the Tribunal awarded $3,000 for pregnancy-based comments. He suggests that this case is less serious since there were no performance concerns in that case.

Damages For Injury to Dignity, Feelings and Self-Respect

44The approach to awards for damages for the intrinsic harm of discrimination has evolved in Code jurisprudence. Prior to the significant amendments that took effect in June 2008, the Code established a limit of $10,000 on damages for "mental anguish" which required a finding of wilfulness or recklessness on the part of the respondent (see s. 41(1)(b) of the Code as it read prior to June 30, 2008). Tribunal decisions, however, routinely awarded greater damages for intangible losses, awarding separate amounts for mental anguish as a result of findings of discrimination on different grounds and by different respondents. After the Divisional Court's decision in Ontario (Human Rights Comm.) v. Shelter Corporation, 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 (QL) [39 C.H.R.R. D/111] confirmed that this was permitted under the Code, amounts were awarded for "general damages", which were considered as separate from amounts awarded for mental anguish.

45The amendments to the damages provisions in the Code remove the need for the Tribunal to divide damages awards into amounts for mental anguish and for other intangible losses. They require the Tribunal to make a general evaluation of the circumstances of the Code violation and its effects to determine the appropriate monetary compensation for injury to dignity, feelings and self-respect.

46Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights and Freedoms in Vancouver (City) v. Ward, 2010 SCC 27 at § 27:

. . . Compensation focuses on the claimant's personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant's intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.

47The principle that intangible losses are compensated with monetary awards is not unique to statutory human rights law. For example, negligence law provides for damages for pain and suffering, "fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in a particular case": Ward, supra, at § 50; Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229. In the law of defamation, damages take into account injury to the plaintiff's feelings in light of the nature of the conduct of the defendant, see McCarey v. Associated Newspapers Ltd. (No. 2), [1965] 2 Q.B. 86 at pp. 104—05 (C.A.), cited with approval in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701 at § 105.

48While principles from other areas of law may be useful analogies, the Tribunal's approach to the exercise of its remedial discretion must be centered in the values of and statutory language in the Code. Code damages are meant to compensate, not punish, and Code violations, unlike some other areas of law, arise in a variety of very different social and legal contexts.

49Damages for Code violations, as in other areas of law, must be fair to both the applicant and respondent(s), given the violations of the Code found: see Ward, supra, at § 53. Damages under the Code must not be so low as to trivialize the social importance of the Code by effectively creating a licence fee to discriminate (see Lane, supra at § 152). At the same time, Code damages for intangible losses should not be "unduly high": see Ward, supra, at § 54, referring to the approach of courts in other jurisdictions to damages for violations of constitutional rights. The Tribunal should be attentive to the possibility of ongoing inflation of damage awards for non-pecuniary losses that was recognized in the tort context in Andrews, supra, in the 1970s. I do not agree with the applicant that an assumption that damage awards are "increasing" should affect the determination of awards.

50In a system in which many decisions on the merits are made each year, there is a particular importance that damage awards for intangible losses be consistent and principled. As the Supreme Court stated in Andrews, supra, at p. 263, in relation to the assessment of damages for intangible losses in negligence law:

. . . [T]here is a great need in this area for assessability, uniformity and predictability. In my opinion, this does not mean that the courts should not have regard to the individual situation of the victim. On the contrary, they must do so to determine what has been lost. For example, the loss of a finger would be a greater loss of amenities for an amateur pianist than for a person not engaged in such an activity. Greater compensation would be required to provide things and activities which would function to make up for this loss. But there should be guidelines for the translation into monetary terms of what has been lost. There must be an exchange rate, albeit conventional.

51Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled.

52I turn now to the relevant factors in determining the damages in a particular case. The Tribunal's jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 [reported 69 C.H.R.R. D/325] at § 16.

53The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

54The second criterion recognizes the applicant's particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 [reported 55 C.H.R.R. D/102] at § 34-38.

55These principles are not intended to comment on how the Tribunal would deal with a case where medical evidence shows an extreme degree of suffering in comparison to the nature of the event, a situation which I leave for another day.

Application to this Case

56The discrimination in this case came in the form of discriminatory comments and questions from a supervisor on several occasions over a period of several weeks. The comments questioned her commitment to her work, given her pregnancy, and suggested that newly hired pregnant employees did not have a place at Best Buy.

57On the other hand, Ms. Navasero was a supervisor, but one who, it appears, did not have the power to hire, dismiss or discipline the applicant. I have found that other than the comments and interactions with Ms. Navasero, there were no workplace consequences for the applicant as a result of her pregnancy. While these comments were hurtful, they are at the less serious end of the spectrum in terms of the type of discrimination found in Tribunal decisions.

58The applicant testified, and her diary records, the serious upset that the comments caused the applicant. I accept that it became difficult for the applicant to attend work with Ms. Navasero over some weeks in light of the manner in which she was being treated. Moreover, the applicant was in a particularly vulnerable situation because she had serious complications with her pregnancy and had to make very difficult personal choices as a result. In light of the difficult circumstances of her pregnancy, experiencing this harassment in relation to her pregnancy had a particularly serious impact on the applicant.

59While the conduct is at the less serious end of the spectrum, the impact in light of the applicant's particular personal circumstances was serious. Accordingly, in my view the award should be at the high end of the range for discriminatory comments made on a few occasions over a relatively short period of time.

60The cases cited by the applicant are, in my view, of little assistance as they involve conduct that is objectively much more serious. In all cases except Harriott the applicant or complainant lost a job, and Harriott involves conduct that is obviously much more serious than that here.

61Vaid, cited by the respondent, is of more assistance. In that case, the individual respondent had made various comments about an employee's ability to perform her duties as a result of her pregnancy, potential liability of the respondent for injury to her or her fetus, and may have said to the applicant that she should quit. The respondent also asked questions in the job interview about whether she was planning to start a family. The Tribunal found that these comments created an unwelcome and discriminatory work environment for the applicant in violation of the Code.

62In my view, the award in this case should be somewhat higher than that in Vaid in view of the particular impact on the applicant in light of her complicated pregnancy. I find that the appropriate award of damages for injury to dignity, feelings and self-respect is $4,000. Pre-judgment interest shall be payable on this amount from October 10, 2008. As the respondents argued that in the circumstances an award should not be made against Ms. Navasero and made clear that they accepted responsibility and would pay any award, no award is made against her.

Remedies for Future Compliance

63The applicant also asks that the Tribunal make an order for future compliance, pursuant to s. 45.2(1)3, that the respondent amend its policy on harassment and discrimination in its employee handbook to include an explicit reference to pregnancy. The policy reads in relevant part as follows:

Best Buy is committed to providing all employees with a positive work environment that is free of discrimination and harassment of any kind. Best Buy will not tolerate any conduct by an employee or others, that:

· Discriminates against, harasses, disrupts or interferes with work performance;

· Creates an intimidating, offensive or hostile environment; or

· Otherwise adversely affects an individual's employment opportunities.

This includes, but is not limited to, discrimination or harassment on the basis of race, ancestry, place of origin, colour, ethnicity, religious beliefs, sex, sexual orientation, age, marital status, family status, disability, and other protected grounds named in the applicable Human Rights legislation. These are important characteristics that make up a diverse workforce and contribute to a dynamic work environment.

64While the policy obviously includes pregnancy, this may not be clear to employees and managers not familiar with human rights legislation and jurisprudence. I agree that its inclusion in the list is important to ensure that Best Buy managers and employees understand their rights and obligations in this regard. I order that within three months, the Employee Handbook applicable to Ontario employees shall be amended to include a reference to the prohibition on discrimination and harassment on the basis of pregnancy.

65In my view, Ms. Navasero would benefit from further training on her obligations under the Code. Accordingly, I also order that she complete the Ontario Human Rights Commission's on-line training "Human Rights 101" (available at www.ohrc.on.ca/hr101) or equivalent training on basic principles of human rights, and confirm to the applicant's counsel within 60 days of this decision that she has done so.

ORDER

66The application as against Best Buy Canada and Romielyn Navasero is allowed in part. The application is dismissed as against Carl Cacheiro. The Tribunal orders as follows:

1. Best Buy Canada Ltd. shall pay the applicant the sum of $4,000 together with pre-judgment interest calculated in accordance with the Courts of Justice Act. Post-judgment interest shall be payable commencing 10 days from the date of this decision.

2. Within three months, Best Buy Canada's Employee Handbook applicable to Ontario employees shall be amended to include a reference to the prohibition on discrimination and harassment on the basis of pregnancy.

3. Within 60 days of this decision, Romielyn Navasero shall complete the Ontario Human Rights Commission's Human Rights 101 course or equivalent training on basic principles of human rights, and confirm to the applicant's counsel that she has done so.