HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kanella Loutrianakis
Applicant
-and-
Clair de Lune
Respondent
DECISION
Adjudicator: Sheri D. Price
Indexed as: Loutrianakis v. Clair de Lune
APPEARANCES
Kanella Loutrianakis, Applicant ) Jeffrey Shinehoft, Counsel
Clair de Lune, Respondent ) Nathalie Carignan,
) Representative
ii
INTRODUCTION
1The applicant, the store manager of the respondent’s Limeridge store, had a car accident on Friday, November 14, 2008 in which she was seriously injured.
2On Monday, November 17, 2008, the applicant informed the respondent that because of the injuries she had sustained, she would likely have to be off work until January 2009.
3She provided the respondent with a November 17, 2008 note from her family doctor indicating that she was unable to work because of her injuries pending reassessment by her doctor a week later; and a November 28, 2008 note from a specialist indicating that she needed to be off work until approximately December 15, 2008 because of her injuries.
4By letter dated December 3, 2008, the respondent terminated the applicant’s employment on the basis that she had been “unable to work” for 14 days and had therefore exceeded the 10 days of “unpaid job-protected leave” to which she was entitled pursuant to the Ontario Employment Standards Act, 2000, S.O. 2000 c. 41, as amended (“the ESA”).
5The applicant alleges that by terminating her employment and by treating her in the manner it did because of her inability to work, the respondent discriminated against her on the basis of disability in respect of employment, contrary to the provisions of the Ontario Human Rights Code, R.S.O. 1990, c H.19, as amended (“the Code”).
6Below, I find that the respondent discriminated against the applicant on the basis of disability contrary to the provisions of the Code and make orders to remedy the discrimination.
7The applicant testified on her own behalf and also called her husband as a witness at the hearing of this matter. The applicant’s direct supervisor, Katherine Dalcourt, and the former General Manager of Operations for the respondent, Nathalie Carignan, testified on behalf of the respondent.
BACKGROUND
8The facts are largely not in dispute.
9The applicant is a young woman who was hired as the store manager with Clair de Lune at its then new Limeridge location (“the store”) in or around Hamilton, Ontario in July 2008. The respondent is a designer and retailer of candles and home décor items.
10As store manager, the applicant’s duties included scheduling and supervising retail staff, receiving and displaying merchandise, posting signs regarding store promotions, and cleaning the store, among other things. She worked full-time, approximately 38 hours per week, Tuesdays to Saturdays.
11The applicant was supervised by the respondent’s District Supervisor for southwestern Ontario, Katherine Dalcourt (“the applicant’s supervisor” or “her supervisor”) who, according to the applicant, visited the applicant’s store one day per week, on average. At the time of the hearing, Ms Dalcourt testified that she was responsible for approximately 70 employees at nine stores in southwestern Ontario.
12At the time of the events giving rise to the Application, Ms Dalcourt reported to Nathalie Carignan, then General Manager of Operations with the respondent (“the General Manager”), who was based in Quebec.
13On Friday, November 14, 2008, the applicant was involved in a motor vehicle accident. Although it was not immediately apparent, the applicant was very seriously injured as a result of the accident.
14The applicant called the assistant store manager from the scene of the accident to tell her that she would not be able to work the next day and arranged for the assistant store manager to cover her scheduled shift. The applicant was taken to hospital by ambulance. Later, from the hospital, the applicant’s father called the applicant’s supervisor and left a voicemail message to the effect that the applicant had been in a car accident and was unable to work.
15On Saturday, November 15, 2008, the applicant was at home, recovering, when her supervisor called to inquire as to the applicant’s status. The applicant, in a great deal of pain and under sedation, was unable to come to the phone and so her father provided the applicant’s supervisor with information about his daughter’s condition.
16The applicant’s supervisor called the applicant again on Sunday, November 16, 2008 and left a message with the applicant’s father asking that the applicant, who was at her fiancé’s house, contact her personally as to her status.
17On Monday, November 17, 2008, the applicant had an appointment with her family doctor in follow-up to the accident. She called her supervisor after her doctor’s appointment and told her that she had seen her doctor, that she was in a lot of pain and unable to work and that she was to be reassessed in one week. She told her supervisor that she expected that she would probably not be able to return to work until January 2009.
18The applicant testified that her supervisor responded by asking the applicant what she wanted to do about her job in the circumstances and suggested the applicant resign. The applicant, who was already coping with injuries sustained in a car accident less than 72 hours earlier, responded that she really liked her job and she wanted to return to work when she was able. The applicant testified that her supervisor told her that if she did not produce a doctor’s note by 1:00 p.m. the following day, the respondent would consider the applicant to have resigned from her employment. The applicant’s supervisor did not contradict this evidence. Indeed, the supervisor’s email to head office dated November 19, 2008 confirmed that the applicant had told her that she would likely be unable to work until January 2009 because of her injuries. It also confirmed that the supervisor had told the applicant that the respondent would consider her to have resigned if she did not provide medical documentation substantiating her need to be off work.
19The applicant, wanting to keep her job, obtained a note from her family doctor and provided it to the respondent in advance of the deadline her supervisor had set. The note, dated November 17, 2008, said that the applicant was not able to work for medical reasons and that she would be reassessed in one week, on November 24, 2008.
20The applicant and her supervisor both testified that the only conversation they had following the applicant’s car accident was the one on November 17, 2008. The applicant testified that her supervisor never gave her a deadline for any further doctor’s notes. The applicant’s supervisor did not contradict the applicant’s evidence on this point.
21The applicant did provide her supervisor with an update as to her status following the November 24, 2008 reassessment by her family doctor. The applicant testified that she left a voicemail message for her supervisor on the evening of November 25, 2008, letting her know that she had been to the doctor again, that she was still unable to work and that she would provide the respondent with a further note after she had seen a specialist on November 28, 2008. The applicant’s supervisor confirmed that she received a voicemail message from the applicant on Tuesday, November 25, 2008. She could not recall the exact message, but testified that it was something to do with the applicant having gone to her doctor.
22As it turned out, however, by the time the applicant left her November 25, 2008 message, the applicant’s supervisor had already drafted a letter to the applicant which was to advise her that the respondent considered her to have resigned from her employment based on her failure to follow-up with the respondent following the November 24, 2008 medical reassessment.
23The applicant’s supervisor emailed the draft letter to the respondent’s General Manager, to whom she reported, at approximately 9:00 a.m. on November 25, 2008, the morning after the applicant’s medical reassessment.
24The applicant’s supervisor testified that in her view the applicant had exhausted the 10 days of leave to which she was entitled on account of her illness or injuries pursuant to the ESA from November 14, 2008 to November 25, 2008, and she was seeking to terminate the applicant’s employment on that basis. The supervisor also testified that she interpreted the applicant’s failure to provide a doctor’s note on the same day as her medical reassessment, November 24, 2008, as an indication that the applicant’s job “did not matter to her” and that “she was indeed resigning her position.”
25After receiving the draft letter, the General Manager spoke with the applicant’s supervisor a number of times to confirm whether the supervisor wished to terminate the applicant’s employment or whether she was willing to wait for the applicant to be able to return to work. The applicant’s supervisor told the General Manager that she preferred to terminate the applicant’s employment because the applicant was not meeting her expectations as a store manager. The supervisor testified that even if the applicant had not had gone off work due to disability, the respondent would have terminated her employment in the coming months anyway because it was not satisfied with her work performance.
26Before terminating the applicant’s employment, the respondent’s General Manager also sought to clarify the respondent’s obligations to the applicant by telephoning the Ontario Ministry of Labour. The respondent’s General Manager testified that she was advised by the Ministry of Labour that, pursuant to the ESA, employees were entitled to 10 days of unpaid emergency leave per year, and that once those days were exhausted, the employer was not obliged to provide any further leave. The General Manager testified that she understood that she was therefore entitled to terminate the employee’s employment after she had exceeded the 10 days of leave provided for in the ESA. The General Manager testified that she was also directed to a Ministry of Labour document available on the internet regarding employee entitlement to personal emergency leave which, in her view, confirmed her understanding.
27The General Manager also had her assistant contact the applicant to make further inquiries as to her status. According to the General Manager and the applicant, on November 27, 2008, the General Manager’s assistant telephoned the applicant to inquire as to the details of the November 14, 2008 car accident (how many vehicles had been involved, whether there had been a police report, at which intersection the accident had occurred, etc.) and also to make the applicant aware of the importance of providing medical documentation to substantiate her continuing absence from work.
28The applicant testified that she felt that she was being interrogated during the November 27, 2008 conversation with the General Manager’s assistant and that it reinforced the feeling she had following her November 17, 2008 conversation with her supervisor that the respondent did not believe that she had been in a car accident or did not believe that she was really injured. She testified that she told the General Manager’s assistant, that, as she had already told her supervisor in her November 25, 2008 message, she would obtain a note for the respondent from her specialist, a physiatrist, when she saw him the following day, on November 28, 2008.
29On November 28, 2008, the applicant faxed the respondent a note from her specialist, stating that the applicant was suffering from myofascial back and shoulder pain and that she needed to be off work one month from November 15, 2008 as a result.
30On December 3, 2008, the respondent sent the applicant a letter terminating her employment and providing her with one weeks’ severance pay:
You have been unable to work since your accident which occurred on November 14th 2008. By law you are entitled to take up to 10 days of unpaid job-protected leave each calendar year. As of today you have been out of work for a total of 14 working days and anticipate being back in one month. With that said, we have decided to proceed with your withdrawal from the position of store manager in the Limeridge location.
… We ask you to bring back to the store your keys and security card as well as any property of Clair de Lune you currently have in your possession within the next 24 hours. If we do not receive these items we will have no choice but to change the locks and you will incur the cost of this.
31The respondent acknowledged that it had received the November 28, 2008 note from the applicant’s doctor before it sent its December 3, 2008 letter to the applicant terminating her employment.
DECISION AND ANALYSIS
32There is no dispute between the parties that the applicant had a disability within the meaning of s. 10(1) of the Code at the time the respondent terminated her employment, and that she was unable to work during the relevant time as a result of her disability. The medical evidence submitted at the hearing, including the applicant’s November 17, 2008 and November 28, 2008 medical notes, also clearly established these facts.
33At the hearing, the respondent conceded that it had infringed the applicant’s rights under the Code by not accommodating the applicant’s disability-related need for a one-month absence from work. In an attempt to explain its conduct, the respondent submitted that at the time it terminated the applicant’s employment, it mistakenly believed that it was entitled to terminate the applicant’s employment pursuant to the terms of the ESA.
34The ESA provides that employees are entitled to 10 days of unpaid leave per year for certain reasons, including illness or injury; it also prohibits employers from terminating employees because they avail of such leave. Contrary to the respondent’s belief, however, there is nothing in the ESA which specifically authorizes employers to terminate employees who need to be absent from work for more than 10 days per year because of illness or injury. Even if there were, the Code has primacy over the ESA (s. 47(2) of the Code) and it requires employers to accommodate employees’ disability-related absences up to the point of undue hardship.
35The respondent submits that it did not intend to discriminate against the applicant on the basis of disability, and that it did not target the applicant because it did not wish to have any disabled employees in its employ. However, under the Code, the respondent’s intentions are not relevant to a determination whether the respondent infringed the applicant’s rights under the Code. Moreover, although the respondent may not have targeted the applicant based on a desire not to have employees with disabilities in its employ, it did, I find, treat the applicant in a disadvantageous manner precisely because of her disability. The respondent does not deny that the applicant’s temporary inability to work because of disability was the reason it terminated her employment when it did.
36As the respondent acknowledges, it did not accommodate the applicant’s need to be absent from work for a period of one month because of injuries she sustained in a car accident, nor did it consider whether it could do so without undue hardship. Rather, the respondent terminated the applicant’s employment because of her temporary inability to work because of her physical injuries. I find that the respondent subjected the applicant to disadvantageous treatment on the basis of disability, breached its duty to accommodate her disability-related needs to the point of undue hardship and infringed the applicant’s right to equal treatment without discrimination on the basis of disability.
REMEDY
37Having found that the respondent infringed the applicant’s right under the Code to be free from discrimination on the basis of disability, I turn to the question of remedy.
Monetary compensation
38As with other individual remedies, the purpose of ordering that monetary compensation be paid to an applicant is to attempt to restore the complainant to the position s/he would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination, and not to punish the perpetrator. When it comes time to determine a just and appropriate remedy, the focus is on the experience of the applicant and not on the party responsible for infringing his or her rights: Hughes v. 1308581 Ontario, 2009 HRTO 341 at para. 87. With that in mind, I turn to the applicant’s requests for monetary compensation.
Monetary compensation for injury to dignity, feelings and self-respect and for infringement of the right to be free from discrimination
39The applicant seeks $35,000.00 as monetary compensation for infringement of her right to be free from discrimination and for injury to her dignity, feelings and self-respect. The respondent, having conceded liability under the Code, submits that an award of $10,000.00 would be in accordance with the norm in cases such as this, and that $5000.00 would be more appropriate in the circumstances of this case.
40The applicant’s evidence about the impact of the respondent’s actions on her was uncontradicted, rich in detail, internally consistent and consistent with the preponderance of the evidence, free from exaggeration, and thoroughly plausible. I accept it as credible.
41The applicant testified that the manner in which the respondent treated her after she was seriously injured in the November 14, 2008 car accident, was devastating to her, all the more so because she was particularly vulnerable at the time. The applicant testified that during the relevant time frame, she was coping with serious injuries, severe headaches, and an inability to sleep for more than one to five hours per night. The applicant testified that the termination of her employment on December 3, 2008 was “another blow” – and a significant one – for her to deal with at what was already a very stressful and upsetting time in her life.
42The applicant testified that she experienced a great deal of stress and was also depressed as a result of the respondent’s discriminatory actions. The applicant testified that she enjoyed her job and the independence it gave her. She was very distressed to find out that she had been terminated and that she would not be able to return to her job when she recovered from the accident. She worried about her future and how she would find another job with a termination on her resume.
43She also testified that the manner in which the respondent demanded medical documentation from her during her telephone conversations with the respondent of November 17, 2008 and November 27, 2008, and the short deadlines for such documentation, made the applicant feel as if the respondent thought she was a liar and that she was not really disabled. She testified that the respondent’s actions made her feel “threatened.”
44She testified that because keeping her job was so important to her she did her best to co-operate with the respondent and to provide it with what it required, even though this put an extra strain on her at a time when she needed to rest and take care of herself. She testified that it was upsetting to her that the respondent did not appear to care about her needs, but only the needs of its business. The applicant testified that she commenced psychological counselling some months prior to the hearing to help her deal with her feelings about the manner in which the respondent had hurt her, among other things, and provided a medical report substantiating this.
45The applicant testified that the manner in which the respondent terminated her employment without any advance discussion or warning exacerbated her distress. She testified that right up to the date on which she was terminated, December 3, 2008, she was having daily discussions with the General Manager’s assistant about getting a benefits form completed by the respondent. She testified that, aside from the conversation on November 27, 2008, the General Manager’s assistant was friendly during all of their subsequent telephone conversations. She testified that it came as a shock to her when she received the respondent’s termination letter on December 3, 2008. She felt that the respondent had dealt with her in an underhanded and “sneaky” manner by not being upfront with her about its intentions. She testified that this compounded the stress she was feeling.
46She also testified she was also very upset by the respondent’s statement in the termination letter that the applicant had to return her keys and security card to the respondent within 24 hours, failing which the respondent would change the locks at the store and require the applicant to bear the cost associated with that. She testified that this reiterated her impression that the respondent thought that she was not trustworthy and that she might improperly re-enter the store. She testified that she herself could barely move at the time and so she had to inconvenience other people in order to comply with the respondent’s demand and to avoid having the respondent take money out of her pay to cover the cost of changing the locks.
47The applicant testified that she was intending to marry in May 2009 and she was counting on income from her job with the respondent to help pay for her wedding. The applicant testified that it was hard for her to tell her fiancé that she has lost her job because it put greater pressure on him to cover the couple’s financial responsibilities. She worried about how they would manage without her having a job to return to when she recovered, particularly since her fiancé’s employment contract was scheduled to end in February 2009, approximately two months after the applicant’s employment was terminated.
48The applicant’s husband confirmed the applicant’s evidence that the applicant was “devastated” by the respondent’s actions. He testified that she called him at work crying after she found out she had been terminated and that she went into a “deep depression” afterwards. He testified that she struggled to understand why the respondent had terminated her employment for something outside of her control.
49The applicant testified that she felt like a “low” person and found it degrading to have to tell her family and her medical caregivers assisting in her rehabilitation that she had lost her job and had no job to return to. She had to tell her doctors and other caregivers that she had been fired because they wished to focus their rehabilitation efforts on helping the applicant return to her job. She testified that when she told others that she had been fired, she felt that they thought she must have done something to deserve the respondent’s treatment.
50The applicant testified that, although she did not know it at the time, she would not have been able to attempt to return to work with the respondent until much later than she or her doctors had initially anticipated. She testified that she was unable to attempt to return to work until January 2010, and then, only on a part-time basis of 10 to 20 hours per week at most.
51This is significant because, had the applicant not been terminated on account of her absence due to disability, she would have continued to have some attachment to the workforce which would have been a major benefit to her in attempting to return to work in January 2010. Without such attachment to the workforce, the applicant would have to obtain a new job with a new employer, which, as of the date of the hearing, she had been unable to do despite significant efforts. The applicant testified that she felt “cooped up” and bored being around the house all day and it would have been very valuable to her to have been able to return to her job with the respondent on a part-time basis when she was able to do so. She testified that working would have assisted her in feeling better about herself and her contribution to her family. At the hearing, the respondent indicated that it likely would have had part-time work available for the applicant in the time frame that she was able to return to work, had she been an employee.
52Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C) at para. 153, the Ontario Superior Court commented on the factors to be considered by the Tribunal in arriving at an appropriate amount of monetary compensation for intangible losses relating to the infringement of the right to be free from discrimination and for injury to dignity, feelings and self-respect:
Among the factors that Tribunals should consider when awarding general damages are 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.
53Having considered the matter carefully, I find $17,000.00 to be an appropriate amount to order the respondent to pay the applicant as monetary compensation for the loss of her right to be free from discrimination and the injury to her dignity, feelings and self-respect. This is a significant sum but one which I find to be appropriate in light of the seriousness of the respondent’s actions and their significant impact on the applicant, who was particularly vulnerable at the time her rights under the Code were violated.
54I have no doubt, based on the applicant’s evidence and that of her husband, that the respondent’s actions leading up to and including the termination of the applicant’s employment caused the applicant a great deal of humiliation; distress; loss of self-respect; hurt and emotional upset. She was shocked to have been terminated based on factors beyond her control, namely her disability. The respondent’s actions caused her significant anxiety and contributed to her depression. Moreover, the respondent’s actions had negative practical consequences for the applicant who lost the opportunity to return to work when she had recovered sufficiently to do so. The lost opportunity to work at that point was significant in that it reduced the applicant’s quality of life and was a further injury to her dignity and self-respect as a financially contributing member of her family.
55In determining the appropriate amount of monetary compensation, I am also mindful of the fact that the respondent in this case treated the applicant in a particularly harsh manner. From the start, the respondent treated the applicant, who had never posed a problem in terms of attendance or punctuality, with undeserved suspicion and a level of officiousness which I find to have bordered on punitive. The respondent imposed unreasonable expectations regarding the provision of medical information on the applicant; and then terminated the applicant’s employment in spite of the fact that she had complied with the respondent’s demands. This militates in favour of a higher award of monetary compensation than might otherwise be the case, not because I seek to punish the respondent, but because, on the evidence, I am satisfied that the blatant nature of the respondent’s discriminatory actions exacerbated the injury to the complainant’s feelings, dignity and self-respect. See also Chan v. Tai Pan Vacations, 2009 HRTO 273 at para. 54 and Taranco v. Michedes, 2010 HRTO 128 at para. 26.
56Finally, I am not persuaded that the amount of monetary compensation owing to the applicant should be reduced because, in the respondent’s submission, it intended to terminate the applicant’s employment based on her performance anyway.
57First, the focus in determining an appropriate remedy is on the experience of the applicant. The distress the respondent’s actions caused the applicant were not somehow alleviated by the respondent’s alleged intention to terminate the applicant at some point, regardless of her disability. The respondent’s intention is therefore not an appropriate consideration in determining the amount of monetary compensation owing in the circumstances of this case.
58Second, the evidence fell short of establishing that, even if she had not become disabled, the respondent would have terminated the applicant’s employment based on her performance as store manager. The respondent gave the applicant a reprimand on October 14, 2008 for failing to follow proper procedures and policies. The applicant worked from October 14, 2008 to November 14, 2008, the date of the car accident, without any further reprimand, nor was there an actual plan to terminate her employment at the time she went off work due to disability.
59Moreover, the respondent submitted that the applicant would have had to have received at least three reprimands before being terminated. She had clearly not met that threshold, nor is there a basis upon which to conclude that she would have met that threshold had she continued to be employed by the respondent. The applicant testified that she was performing well at work overall, and that the feedback she had received from the respondent was mostly positive, even though the respondent had pointed out what she felt were a few minor problems (i.e. she and her staff had not been able to hang a particular promotion banner outside the store because it kept falling down).
60Further, the significance of the October 14, 2008 reprimand even to the respondent is questionable. The supervisor who gave the applicant the reprimand did not even recall having done so when she initially testified. By the second day of the hearing, and after hearing the applicant testify that she had received a warning from the respondent, the supervisor had gone through her documents and only then discovered the paper in question, which basically contradicted the testimony she had already given. The fact that the applicant’s supervisor was initially unaware of the reprimand leads me to conclude that she was not attuned to where the applicant was in the disciplinary process and therefore casts doubt on the proposition that the respondent intended to terminate the applicant’s employment.
Past and prospective wage loss
61Even if her employment had not been terminated by the respondent, the applicant was totally disabled from working for the respondent from the date of the accident to January 1, 2010, at which point she testified that she would have been able to attempt to return to work with the respondent on a part-time basis, 10 to 20 hours per week. The applicant seeks the sum of $1170.00 in monetary compensation for lost wages from January 1, 2010, to the date of the hearing, March 5, 2010. This sum represents what the applicant would have earned working for the respondent 10 hours per week during the above-noted time frame.
62The applicant also seeks to be compensated in respect of the prospective wage loss she expected to continue to incur as a result of the respondent’s actions following the hearing. The applicant asked that I order the respondent to compensate her for her prospective wage loss up to the point in time at which it would be reasonable to expect the applicant to have found alternate employment.
63I have found that the respondent terminated the applicant because she was temporarily unable to work on account of her disability, thereby discriminating against her on the basis of disability and breaching its duty to accommodate her up to the point of undue hardship, contrary to the Code. The applicant is entitled to compensation for the wages she lost because of the respondent’s actions.
64The applicant’s evidence was that she was fit to attempt a return to work on a part-time basis, within certain restrictions, as of January 1, 2010. That evidence was not challenged by the respondent and I find it to be credible for the same reasons I found the applicant’s evidence to be credible, in general. Even though the applicant did not put forward objective medical evidence regarding her ability to return to work, on the basis of the applicant’s own evidence, I am satisfied that the applicant would likely have been able to work for the respondent for 10 hours per week during the period from January 1, 2010 to March 5, 2010, had her employment not been terminated by the respondent. Accordingly, I find it appropriate to order the respondent to pay the applicant the sum of $1170.00 as monetary compensation for lost wages in respect of the period from January 1, 2010 to March 5, 2010, less statutorily required deductions and/or remittances.
65I decline, however, to order the respondent to compensate the applicant for the prospective wage loss she expected to continue to incur following the hearing. Although the applicant invited me to pick some date in the future at which point it would be reasonable to expect her to have found other employment, I find that I lack a sufficient evidentiary or other basis upon which to grant this remedial request.
Interest
66I also find it appropriate to award prejudgment interest on the amount of monetary compensation I have ordered for injury to the applicant’s dignity, feelings and self-respect and for infringement of the applicant’s right to be free from discrimination from December 3, 2008; and post-judgment interest on any part of such amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
67I also order prejudgment interest on the amount of $1170.00 ordered for lost wages from February 2, 2010, which is the midway point of the period during which such wage loss was incurred (i.e. January 1, 2010 to March 5, 2010): Vetricek v. 642518 Canada, 2010 HRTO 757 at para. 80. I also order post-judgment interest on any part of such amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
Orders to ensure Future Compliance with the Code
68The applicant also seeks an Order from the Tribunal directing that the respondent undergo training with a human rights expert on its duties under the Code, particularly with respect to its duty to accommodate employees with disabilities. Pursuant to s. 45.2 of the Code, the Tribunal has the power to make an order directing any party to the Application to do anything that, in the opinion of the Tribunal, would promote compliance with the Code.
69At the time of the hearing, the respondent had approximately 175 employees at 23 stores located throughout Ontario. As an employer, the respondent is clearly engaged in activities covered by the Code and has an obligation to be aware of and abide by its responsibilities under the Code. The respondent in this case acknowledged that it was not aware of its responsibilities under the Code.
70In my view, the respondent would benefit from training on its obligations under the Code. Accordingly, in accordance with the Tribunal’s remedial authority under s. 45.2 of the Code, I order that, within 60 days of the date of this Decision, the respondent retain an independent expert on human rights in Ontario to provide those members of its managerial staff who deal directly or indirectly with any of the respondent’s Ontario employees with training on its obligations under the Code with particular focus on the duty to accommodate employees with disabilities. I further direct the respondent to have those members of its managerial staff who deal directly or indirectly with any of the respondent’s Ontario employees complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of this Decision. The respondent should confirm to the applicant’s counsel within 75 days of this Decision that it has complied with these Orders regarding training.
ORDER
71The Tribunal orders as follows:
Within 30 days of the date of this Decision, the respondent will pay the applicant $17,000.00 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect as well as infringement of her inherent right to be free from discrimination on the basis of disability.
There shall be prejudgment interest on the above amount at the applicable rate under the Courts of Justice Act, R.S.O. c. C.43, from December 3, 2008 to the date of this Decision. Post-judgment interest is also payable on any part of this amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.
Within 30 days of the date of this Decision, the respondent will pay the applicant the sum of $1170.00, as monetary compensation for the wage loss she incurred during the period from January 1, 2010 to March 5, 2010, less statutory deductions and remittances required by law.
There shall be prejudgment interest on the above amount at the applicable rate under the Courts of Justice Act, R.S.O. c. C.43, from February 2, 2010 to the date of this Decision. Post-judgment interest is payable on any part of this amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.
Within 60 days of the date of this Decision, the respondent shall, at its own expense, retain an external expert in human rights to provide those members of its managerial staff who deal directly or indirectly with any of the respondent’s Ontario employees with training on the respondent’s obligations as an employer under the Code with a particular focus on the duty to accommodate employees with disabilities up to the point of undue hardship.
Within 30 days of the date of this Decision, the respondent shall have those members of its managerial staff who deal directly or indirectly with any of the respondent’s Ontario employees complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101).
The respondent shall confirm to the applicant’s counsel within 75 days of this Decision that it has complied with these Orders regarding training.
I remain seized to deal with any issues which may arise relating to the implementation of this Decision.
Dated at Toronto this 22nd day of October, 2010.
“Signed by”
Sheri D. Price
Vice-chair