Nemati v. Women’s Support Network of York Region, 2010 HRTO 327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shahrzad Nemati

Applicant

-and-

Women’s Support Network of York Region

Respondent

DECISION

Adjudicator: Judith Keene

Date: February 11, 2010

Citation: 2010 HRTO 327

Indexed as: Nemati v. Women’s Support Network of York Region

APPEARANCES

Shahrzad Nemati, Applicant ) Kumail Karimjee, Counsel

Women’s Support Network of ) Katherine E. Ford, Counsel

York Region, Respondent )

INTRODUCTION

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 4, 2008, alleging discrimination in employment on the grounds of race, colour, ancestry, place of origin and sex. The grounds of race, colour and sex were not actively pursued at the hearing in either evidence or submissions.

2The facts in this case involve a termination of employment, but the applicant also alleges breaches of the Code in regard to the way she was treated during her employment. The applicant states that her work was undervalued because of the personal characteristics cited as grounds of discrimination, including her origins in Iran. In this regard, she points to the facts that an outreach project that involved the Farsi-speaking community was terminated, and that the product of a translation project she undertook was not made available on the respondent's website. The applicant states that she did not receive the support and supervision she required as a new immigrant in her first job in Canada. She was denied a schedule change to take a course that she says she required to continue to do well in her chosen field, and the respondent did not take steps to reduce her isolation in the workplace. Finally, the applicant says that the respondent did not give her the assistance she required in dealing with a difficult co-worker.

3Prior to the hearing, I made an oral ruling that certain disputed employment records of an employee identified here as RF, which on review I considered arguably relevant to the subject-matter of the Application, be disclosed.

4After hearing the evidence, I have concluded that the respondent breached s. 5 of the Code, although not in respect of all of the allegations. My reasons follow.

FACTUAL BACKGROUND

5The applicant, Shahrzad Nemati, identifies herself as a non-White, Persian woman, who moved to Canada from Iran in 1998. She holds a Bachelor’s degree in psychology, and has certificates and diplomas in counselling and advocating for women and children among her qualifications, and she has studied in Arabic as well as English. Her first language is Farsi. When she came to Canada her English was very limited. She attended English as a Second Language classes. She was employed by the respondent from September 6, 2005 to January 30, 2008 as a Part-Time Counsellor.

6The respondent, Women’s Support Network of York Region (“WSNYR”), is a non-profit agency that provides counselling, support and education in the areas of sexual abuse and sexual violence. The respondent employed a staff of six to seven (two working part-time), as well as volunteer workers, during the relevant period. In its Response, the respondent noted that “the Applicant provided counselling services to women over the age of 16 years. This included providing education and counselling to students as part of WSNYR’s High School Outreach Program, which operates in 14 schools across York Region”.

7Evidence for the respondent was given by Michelle Smith, its Executive Director; Jeanne Faria, Program Manager and the applicant’s direct supervisor at the relevant time; Beth Jordan, a consultant for WSNYR; and Judith D’Sousa, the Chair of the WSNYR Board.

8Michelle Smith testified that she started as Executive Director in 2005, and that this was her first Executive Director position. Jeanne Faria is the Program Coordinator to whom the applicant reported. She replaced the applicant’s previous manager in 2007.

9Ms Smith stated that employees of WSNYR had the benefit of a detailed Employee Handbook and ARAO (anti-racism-anti-oppression) training. Beth Jordan testified that she believed that the applicant had taken part in the ARAO training she provided, but confirmed that the training had taken place on a date before Ms Faria had joined the WSNYR.

10Both Ms Smith and Ms Faria confirmed that the applicant was a very good counsellor who made a positive contribution. They had no performance or other disciplinary concerns, and but for the “failure to report”, for which her employment was terminated, the applicant would have continued her employment at the WSNYR.

11The parties agree about most of the facts. Where there are disputes about the facts, I have addressed them and provided reasons for my findings.

Undervaluing of the applicant’s work—cessation of outreach program and refusal to post translated materials

12The applicant submitted that in some cases, undervaluing of an individual's work by the employer can amount to discrimination in respect of employment.

13The applicant described herself as passionate about her work, and the evidence of both parties indicated that she is highly committed to human rights for women. She was delighted to find her job with the respondent, and felt that her work was part of her identity, not only as a woman but as a Persian woman “coming from a country that oppresses women”.

14In mid-January, 2006, the applicant started a project (“the Richmond Hill satellite office”) that was established in recognition of the fact that Richmond Hill has a substantial Farsi-speaking population. The Richmond Hill satellite office work started as a half-day a week and grew to one day a week. The parties agree that the applicant’s work with clients in the new office started slowly and increased, so that from September 2006 to the early months of 2007, the applicant’s day was occupied to much the same extent as it would have been in the main office in Newmarket. About half of her clients at Richmond Hill were Farsi-speaking.

15The applicant testified that she was worried that, at first, there were not many clients at the Richmond Hill satellite office, and she asked her then-supervisor, Ertha Taggart, whether she should be there. She stated that Ms Taggart told her that it was to be expected that there would not be many clients at first, and encouraged her to do outreach and liaison with local community agencies. She did this, and during any “downtime”, occupied herself with professional reading and with translating into Farsi some client education materials on “date rape” created by the respondent.

16In late 2006 or early 2007, the appellant’s supervisor, Ms Taggart, was replaced by Jeanne Faria. Shortly after she started as the applicant’s supervisor, Ms Faria did a six-month evaluation of the Richmond Hill satellite office. The applicant testified that Ms Faria “seemed to be looking for problems”, and she felt that Ms Faria didn’t understand the purpose of the satellite office. In July of 2007, the applicant was told that the respondent had decided to stop regular staffing of the Richmond Hill satellite office. A memo dated July 26, 2007 from Ms Faria to the applicant, confirming the decision as well as dealing with other matters, was placed in the applicant’s personnel file. The applicant was told that clients from Richmond Hill who did not have transport could be provided with bus tickets. The applicant stated that some clients from Richmond Hill did not go on with services from WSNYR.

17Alys Murphy, an employee of WSNYR from 2004 to 2006, was called as a witness by the applicant. Ms Murphy had implemented an earlier satellite office program for First Nations women on Georgina Island and in Sutton. She outlined the gradual process of building trust in a community not previously served by WSNYR. This included a substantial time commitment and the ability to deal with a very gradual approach by clients and failure to show up for half or more of all scheduled appointments. She testified that Ms Smith had told her in advance that she might “sit there for four months with no clients”, and that it was a process that required patience. WSNYR undertook expenses that included, in addition to Ms Murphy’s salary, an honorarium of $5000 for use of a space and the cost of ferry transport, which was at minimum $25 for each round trip. She stated that WSNYR was very supportive of this project, citing staff turning out for a health fair on the island and being awarded an eagle feather by Ms Smith.

18In the summer of 2007, the applicant e-mailed Ms Faria and Ms Smith, the Executive Director of the respondent, attaching the client education materials on “date rape” that she had translated into Farsi, and suggesting that the respondent might post the materials on its website. She received no response to her suggestion.

19In respect of the discontinuation of the Richmond Hill satellite office program, Ms Faria testified that the applicant was underused at Richmond Hill. She emphasized repeatedly the fact that WSNYR had a tightly limited budget and was anxious that its resources be used as effectively as possible. She stated that the cessation of regular presence at Richmond Hill was because there were too many client cancellations, and because the applicant’s time could be more fully occupied at the central office.

20Ms Smith testified that the decision to stop regular service had made sense in view of the cancellations, and was made purely to save staff resources and ensure the best use of staff time. On being asked to compare the situation in Richmond Hill to that on Georgina Island, she stated that Georgina was more isolated, that clients usually could not get off the island and that Georgina offered more opportunity than Richmond Hill for the counsellor to do informal outreach while not occupied with appointments.

21Ms Smith acknowledged that the applicant had requested that the client education materials on “date rape” that she had translated into Farsi be placed on the respondent’s website. Ms Faria did not recall this. Both indicated that no program materials were on the website. They also stated that the website was run on a “pro bono” basis by an outside contractor, and that the respondent was unable to change anything on the website except within a limited area dealing with events. Neither Ms Smith nor Ms Faria enquired as to whether posting program material would be possible.

Reduction of support, supervision, isolation in the workplace

22Prior to the change in supervision that occurred in late 2006-early 2007, the applicant had enjoyed bi-weekly supervision sessions. She appreciated the supervision and found it useful. Over the approximately ten months that she was supervised by Ms Faria, these sessions decreased drastically; she testified that she did not remember having more than three or four supervision sessions. In addition, her annual evaluation was not done, despite her reminding Ms Faria that it was due. She felt that she was lacking support necessary for her work. She testified that “when English is your second language, you need more guidance and support”.

23Both Ms Smith and Ms Faria confirmed that the applicant’s “annual” performance evaluation was not done, and that there were fewer meetings, far less formal supervision and essentially no documentation by Ms Faria, in contrast to her predecessor.

24The applicant’s evidence was that she requested that she receive more structured supervision and evaluation. Ms Smith and Ms Faria both initially denied that the applicant had in any way directly requested more support or complained of discrimination or oppression. However, in cross-examination, Ms Faria admitted that although she did not recall the applicant asking about evaluations and supervision, she might have done so. Ms Faria stated that she did not recall the applicant expressing a wish for formal evaluation and indicating that she needed more support in her work.

25Ms Smith admitted that an individual working in her first job in Canada might require a higher level of supervision and support. However, in cross-examination on this point, Ms Smith stated that she believed that “women can advocate for themselves” and that she expected that “women would speak to their own needs and seek the help that they need”. She also admitted that this may be more difficult for some employees than for others. Ms Faria did not agree that lack of formal supervision might have created a problem for the applicant.

26The applicant testified that she noticed a change in her interactions with Ms Smith in the autumn of 2007. In a clinical meeting, the applicant raised an incident in which someone approached her during her daughter’s birthday party to discuss abuse. Ms Smith said “I always tell people I work at Zellers – you have to be free sometimes”. The applicant was taken aback at this response, and felt that Ms. Smith had not understood what she was talking about, and was not being supportive. She stated she had raised the interaction at the birthday party to get guidance about what she should do in such circumstances, and “I could not say I work elsewhere—people in my community know what I do and I am very proud of what I do”.

27Ms Smith did not deny making the remark about telling others she worked at Zellers, although she indicated that she meant it to be a supportive remark. She stated that the context had been a discussion of working in a small community where everyone knew her professional background and felt free to consult her professionally at any time, outside as well as within working hours. Her remark was an attempt at “finding common ground” about the need for some self-preservation. She stated that she did not intend it to be taken as a suggestion as to what the applicant should do.

28By the autumn of 2007, the applicant was feeling increasingly isolated at work. The number of staff meetings and clinical meetings had decreased significantly. She testified that she missed these, as they were an opportunity to learn from others. Further, she felt that she did not have as much ability as others to communicate informally. Four of the staff had known each other for some time and went for coffee or lunch together. The applicant testified that she had made efforts to connect with people, including asking, before she went out, if anyone wanted coffee, and at least once bringing coffee without being asked. She testified that, at one point, she asked Ms Faria “why don’t you like me?”, and Ms Faria asked why she should think this. She said that she called Ms Faria twice on Ms Faria’s cell phone, once leaving a message, although she said it was not urgent. She stated that Ms Faria did not call back.

29In December of 2007, the respondent held a potluck dinner for staff, volunteers and board members. The applicant said that she arrived at work at about 8 AM, she saw Ms Faria at the door, and that Ms Faria asked “why are you here?”, said there was a storm coming, and urged her to leave for home right away. The applicant assumed the potluck was cancelled, went home, and did not return to work that day. The potluck was held despite the bad weather. The applicant found out about the potluck only two days later when someone who had been honoured at the potluck sent an e-mail of thanks for a gift. The applicant had not been involved in the gift and she “felt awful”.

30Ms Smith did not recall a conversation with the applicant about isolation within the office. She was aware from conversations with the applicant that she had few friends outside the office. Ms Faria did not recall the applicant saying anything in the nature of “why don't you like me?”.

31In regard to the potluck incident, the initial position of the respondent was that the applicant asked to leave early because of pending bad weather. In testimony, Ms Smith indicated that she had been the one to suggest that the applicant might wish to leave the office early. She said that she was prompted by concern for the applicant, whom she knew had had a car accident and who might be nervous about driving in a storm. Ms Faria did not recall having any conversation with the applicant that day.

32In 2007, the applicant was working toward a post-graduate degree on a part-time basis. At the end of June or beginning of July, 2007, the applicant asked Ms Faria for a change in one of her scheduled days of work, telling her that she had found a particularly useful course, and that she had canvassed her clients and ascertained that all were content to change from a Thursday to a Friday appointment. She testified that Ms Faria at first said “sounds OK; we’ll see”, but the next day had said that the change could not be accommodated at short notice. The applicant testified that, when she asked for an explanation, Ms. Faria said “I said no” in a rude tone.

33In regard to the applicant’s request to change one of her working days, Ms Faria testified that the reason for the refusal was short notice. Ms Smith corroborated Ms Faria’s view that Fridays were low-volume days and stated that she had understood from Ms Faria that the applicant needed a decision in two days. She did not consider this enough time to make a decision about a schedule change. Ms Smith indicated that another employee who had requested a change of work schedule for educational purposes had been refused, although she admitted that this request had involved a reduction of working hours. She noted that the applicant had been accommodated in respect of hours of work, in order to take a course, in the past.

Lack of support in dealing with a difficult co-worker

34Between the late summer of 2007 and the end of her employment at WSNYR, the applicant was having a great deal of difficulty with an employee, RF, who had been hired that year. She shared an office with RF, whom she found rude and disrespectful. RF criticised her, was sarcastic, told her “you don’t get it”, and on at least one occasion, talked to one of the applicant’s clients without letting her know.

35The applicant stated that she went to Ms Faria twice to discuss her difficulties with her co-worker. The first time, Ms Faria told the applicant to tell RF how she was feeling. The applicant testified that she talked to RF a couple of times about this behaviour, but relations did not improve. RF changed the subject and “denied saying what she had said”.

36The applicant consulted her doctor in mid-August, complaining of anxiety and stress relating to work.

37The applicant testified that the second time she approached Ms Faria about RF, she told her that she was fed up and couldn’t take RF’s behaviour. The applicant informed Ms Faria that, as English was her second language, it was difficult for her to have a conversation where she could freely express herself. Despite this, Ms Faria suggested that the applicant go for coffee with RF and try to resolve their difficulties one-on-one, and said that if the applicant did not do this, she would put a letter on the applicant’s file. The applicant asked “how can I resolve this when [RF] changes the subject? She does not understand me or me her”. Ms Faria asked her if she needed an interpreter. The applicant saw Ms Faria’s suggestion about an interpreter as a “put-down”, but said nothing.

38The applicant was aware that other employees were also having difficulties with RF. She had discussed RF’s behaviour with another employee, who had told her that RF was creating a toxic environment, and was aware that RF had queried her (the other employee’s) hours, and that Ms Smith had told RF to “stop or she would be put on probation”.

39In January of 2008, the applicant tried to effect conflict resolution with RF as directed by Ms Faria. It was not a success, from the applicant’s point of view. When she broached the subject of RF talking to her client, RF denied doing so.

40In a clinical meeting in January 2008, the applicant responded to “an open invitation to discuss issues” at a clinical meeting. She asked Ms Smith “how do you know that staff are actually applying ARAO principles? She testified that both Ms Smith and Ms Faria appeared annoyed at her for raising this question. “Michelle said ‘anti-racism is not just about race’ and the conversation ended”.

41The applicant testified that raising this question was her “next step” in dealing with her difficulties with Ms Faria and RF. She “wanted it discussed—this was a feminist organization but I was feeling oppressed—I was hoping to get support from Michelle”. When the issue was not discussed, “I had to think about the next step”. The applicant testified that there was no next step, as she was fired shortly afterward.

42Ms Faria testified that the applicant's difficulty with RF was a “personality conflict”, that she was “not sure what the core of it was” and that they had different styles of communicating. Ms Faria stated that the conflict went on for months, and that the applicant had come to her several times about the difficulties she was having with RF. In December of 2007, Ms Faria decided that RF and the applicant should follow the procedure set out in WSNYR’s Employee Handbook (at section 4.5 Conflict Resolution), in which a “first step” is a formal attempt to solve conflict on a one-to-one basis.

43Ms Faria denied that she had advised the applicant that if she did not comply with the conflict resolution proposal there would be discipline. However, respondent's documentary evidence includes a letter dated December 14, 2007, from Ms Faria “in response to a conversation Shahrzad had with me on Thursday, December 13, regarding a current conflict between herself and [RF]”. In a letter, Ms Faria instructs “you both” [the applicant and RF] to undertake a one-hour “private conflict resolution”. The letter states “that failure to do (sic) will have consequences, up to and ending in dismissal”.

44Ms Faria acknowledged that, at the time that she instructed the applicant in writing to deal with RF on a one-to-one basis, RF already had a history of failing to get along with other staff. In cross-examination Ms Faria admitted that all staff, including herself, had had difficulties with RF. Documentary evidence produced in the hearing included a memo from Ms Faria to RF and copied to RF’s employee file dated October 2, 2007. Among other issues, the memo refers to previous and recent inappropriate discussion and comments with other staff members. The memo notes that RF continued to be on probation, and concludes that there would be no future discussion regarding future “conflicts or breaches of boundaries”. Ms Faria indicated that in fact, RF's employment was terminated some time after that of the applicant.

45In cross-examination, Ms Faria described RF as unable to listen, to be respectful, to obey direction and to respect boundaries, and stated that she caused conflict. Ms Faria admitted that RF had been disrespectful to other staff. However, when discussing the applicant's allegations of disrespectful treatment from RF, Ms Faria stated that the applicant “was perceiving” communication from RF as disrespectful, implying that she did not necessarily conclude that RF was disrespectful to the applicant.

46Ms Faria testified that the applicant told her that negotiating with RF was difficult and that she mentioned having to mentally translate from Farsi into English. She recalled the applicant mentioning that it was difficult to express nuances. She said that she offered an interpreter because she perceived that she was being asked to assist with a “barrier”. Ms. Faria admitted during cross-examination that counselling required good English language skills, that the applicant had lived in Canada for a number of years, and that she had pursued graduate studies in English.

47The applicant’s conflict with RF was reported to Ms Smith by Ms Faria, and Ms Smith observed “tension” as well, stating that it went on “for many months”. She was involved, through her reporting relationship with Ms Faria, in the process of “encouraging” the applicant and RF “to work it out on their own”.

48Ms Smith admitted that she was aware that other employees, including Ms Faria, had difficulties with RF. She had intervened in these difficulties by disciplining RF. RF was on probation in respect of her actions toward other employees, in addition to other issues, at the time the applicant was having her difficulties with RF.

49In cross-examination, Ms Smith recalled the applicant raising the application of ARAO principles at the clinical meeting in January 2008. She stated that she was aware that the applicant's dispute with RF was heating up at that time and had escalated to the point of the applicant going to her supervisor. She was also aware that the applicant had tried to work things out with RF before that meeting. She did not follow up with the applicant as to what she had meant by her question about ARAO principles being followed.

50Both Ms Faria and Ms Smith were questioned about differences in the way WSNYR dealt with other employees’ complaints about RF, and the way it dealt with the applicant's complaints. In response to other employees’ complaints, Ms Smith and Ms Faria had disciplined RF. The disciplinary memo copied to RF’s employee file, dated October 2, 2007, refers to inappropriate discussion and comments with other staff members, and concludes that there would be “no future discussion” regarding future “conflicts or breaches of boundaries”. However, when questioned as to whether there had been a disciplinary letter to RF in regard to her behaviour with the applicant in November and December, Ms Faria admitted that there had not been a letter or further discipline, just the instruction to both to attempt a one-to-one resolution.

Termination of applicant’s employment

51The respondent’s position is that the applicant’s dismissal came about solely because of her failure to immediately report information she heard from one of her high school clients (“Client X”) at the Richmond Hill satellite office.

52The applicant testified that, at her first counselling session on November 27, 2007, Client X had wanted to discuss her low marks in school, and how upset she was that her parents had not told her of her grandmother’s death. The applicant testified that, close to the end of the time set aside for the appointment, she had reminded Client X that WSNYR deals with sexual assault. Client X then told her that she had been “sexually assaulted or sexually harassed at age 12”. The assailant was the son of friends of her father, and was the client’s age or a year older. The applicant testified that Client X told her that her parents knew about the incident, that her mother was “supportive”, but that “her father had cancer and she could not get any support from him”.

53The applicant saw Client X for two more sessions focussed on grief counselling in respect of the client’s grandmother. Then on January 23, 2008, Client X came to her and reported that her assailant had been enrolled by his father in the same school as Client X, and she had seen him there. The applicant testified that she started to discuss calling the police, and in the course of this conversation said “you’re over 16”, when Client X corrected her and said that she was not yet 16. The applicant testified that she knew she had a duty to report when anyone under 16 was at risk of harm. She told Client X that she would have to inform the Children’s Aid Society.

54When asked why she had not reported the information she heard in November that same month, the applicant said that she had thought that the client was over 16, and felt that Client X was not in need of protection. She repeated both reasons under cross-examination. She admitted that she certainly would ask the age of a young client now, but she stated that she had been told by colleagues at WSNYR that she should not ask the age of clients; that she “was not there to investigate”.

55The applicant said that the next day at work, Ms Smith and Ms Faria were out of town. She told RF about the situation with Client X and RF said that there was no urgency about reporting to the CAS. When the applicant contacted Ms Faria, (a total of six calendar days after the day of her interview with the client) she was told to cancel her high school sessions because this was a serious problem. She was sent home, then brought back later in the day. At an interview with Ms Smith and Ms Faria, she was told that they had no choice but to terminate her employment. She was later given a letter of termination.

56Ms Faria testified that she and the applicant discussed Client X, whom she understood to have been sexually assaulted in the past by her father's friend’s son, on January 29, 2008, the day before the applicant was fired. However, Ms Faria's recollection of what she was told differs from the applicant's version of the facts. Ms Faria stated that Client X's father knew about the assault and was “not supportive” and that Client X's mother did not know. During the conversation on January 29, Ms Faria realised that there had been no report to the CAS. Ms Faria immediately contacted Ms Smith.

57Ms Smith stated that Ms Faria informed her that the applicant had heard an allegation of sexual abuse of “a young woman almost 16” in November, 2007, and had failed to report to the CAS. The decision to terminate the applicant's employment was made by Ms Smith in consultation with Ms Faria. Ms Smith informed the Board of the decision.

58There are two material differences in the recollection by the applicant and the respondent’s representatives of events concerning the applicant’s termination. First, the applicant stated that she had not known that Client X was under 16 in November of 2007 when Client X told her that she had been “sexually assaulted or sexually harassed at age 12”. In her evidence, Ms Smith maintained that the applicant had known that Client X was under 16 in November of 2007. Second, the applicant testified that Client X had said that her parents knew about the incident, and that her mother was “supportive”. Ms Smith and Ms Faria testified that Client X’s mother was not aware of the “sexual assault”. (The terms “abuse”, “harassment” and “assault” were used by all witnesses; no evidence was led as to precisely what Client X had complained about.)

59In cross-examination, Ms Smith was reminded that the applicant said that she did not know that Client X had been under 16 in November of 2007, and only found this out in January of 2008. The applicant's counsel suggested that if the applicant had not been aware of Client X’s age until January, there had been no two-month delay in reporting. Ms Smith replied that, based on her conversation with the applicant on January 30, the applicant “was aware of the child's age”, and that this was why Ms Smith wrote in her notes “I know it was my fault”. She admitted that her notes did not state that the applicant had known the age of Client X in November.

60Ms Smith repeatedly stated that the failure to report had put the client’s “safety at risk”; had “put a child in danger”. She stated that she had no alternative but to fire the applicant. In cross-examination, Ms Smith testified that she did not believe that Client X could have been placed under the care of the boy who allegedly abused her, but she maintained that, as the son of a friend of Client X’s father, the abuser could have been “in proximity to [Client X] on several occasions”.

61Notes made by Ms Smith of the meeting dated January 30, 2008, and admitted in evidence comprise one hand-written page. The notes do not describe or refer to what is alleged to have happened to the client. The notes include the notation “I understand it’s my fault”, without attribution of the (apparent) quote.

62Ms Smith stated that Ms Faria made a call to the CAS to report the situation in respect of Client X. Ms Smith testified that there was no “fallout” arising from the applicant's failure to report; there was no reprimand from the CAS, and neither the high school nor any funders raised issues of concern. To Ms Smith's knowledge, neither Client X nor her parents raised concerns.

63In giving evidence about the decision to fire the applicant, Ms Smith and Ms Faria repeatedly stated that the applicant “broke the law”, referring to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “CFSA”). Ms Smith also stated that the applicant had breached WSNYR’s policy about the duty to report, and that the policy was “taken from” the CFSA. She stated that the applicant was aware of the duty to report, that the report must be made within 24 hours, that a report must be made if the client is “16 or less”, and that, in addition to a duty to report when there was a sexual assault, a duty to report arose if a person 16 or under was “living in a home with a known perpetrator”. She repeatedly stated that there is “no grey area” in the duty to report, and no questions of judgment.

64Ms Smith also testified that the respondent’s Employee Handbook set out “step-by-step what to do”, and described the Employee Handbook as “crystal clear to me” in respect of the duty to report.

65Ms Faria stated that a report must be made in respect of possible neglect or endangerment of a minor, which she defined as a person “under 16”. Ms Faria stated that it would not matter if the person was actually or apparently under 16. She stated that it was “sometimes” a question of judgment whether to report to the CAS

66Both Ms Smith and Ms Faria were asked to address differences in the way they dealt with RF (whom Ms Smith believed was not an immigrant, and who spoke English as her first language) and the applicant, in respect of disciplinary matters.

67Both Ms Smith and Ms Faria admitted that RF had breached client confidentiality, with Ms Faria confirming two serious breaches of client confidentiality by October 2, 2007. Breach of client confidentiality is a concern to WSNYR because it could put a client at risk of harm. Client confidentiality is considered fundamental policy. Ms Smith admitted that WSNYR’s Employee Handbook indicates that a breach of client confidentiality is cause for immediate suspension. The Employee Handbook also says that “the Executive Director will place staff members accused of…[breach of confidentiality regarding clients] on immediate suspension pending the outcome of an investigation”. Breach of client confidentiality is listed in the Handbook as “gross misconduct” which “may lead to immediate termination”. In the section which discusses client confidentiality, the Handbook says that the “board of directors will terminate the employment of any employee found to be in breach of a client’s confidentiality”.

68It appears on the evidence that the only disciplinary action taken in respect of the breach of confidentiality by RF was a one-day suspension. A letter dated May 14, 2008, documenting the one-day suspension cites breach of confidentiality as well as other behaviour considered to warrant discipline.

69The evidence of the respondent is that RF had breached confidentiality on at least one occasion by leaving a telephone message for a client, which was considered dangerous because a phone message can be picked up by someone who is abusing the client. On cross-examination Ms Smith stated that, in respect of that client, “the woman was not living with the abuser”, implying that the respondents considered the situation to pose less danger than it otherwise might have, or possibly no danger. She admitted that the information that the client was not living with the abuser had come to her from RF and that she had no other source of that information.

70The respondent’s Employee Handbook, in dealing with failure to report a situation in which a child might be in need of protection, contains no information as to whether failure to meet this obligation might be grounds for termination of employment.

LEGAL ANALYSIS

71The applicant’s position is that the respondent breached the Code in respect of employment in four ways. First, the respondent undervalued the work she did. Second, it denied her the support and supervision she required as a new immigrant in her first job in Canada, denied a schedule change to take a course that she required to continue to do well in her chosen field, and did not take steps to reduce her social isolation in the workplace. Third, it disadvantaged her in the way it required her to deal with a difficult co-worker, and fourth, it terminated her employment unfairly.

72Counsel for the applicant correctly acknowledged that the applicant, as well as proving her allegations, must establish a sufficient link between the actions and omissions of the employer and the personal characteristics cited by the applicant and listed under the Code.

73It is undisputed that, of a staff of six or seven during the relevant period, the applicant was the only recent immigrant, and the only person for whom English was a second language, and these facts clearly form part of the context in respect of all the allegations.

74Another important part of the factual background is that the applicant’s facility in English was, in some respects, disputed. The applicant indicated in testimony that she felt that she was fluent, and no longer needed to translate mentally from Farsi to English. However, she pointed out that she still occasionally has some difficulties communicating in English. She also indicated that she raises with clients her facility with English as a possible issue that might affect their communication. She stated that “sometimes I have to think a bit to answer”. On occasion during testimony, the applicant hesitated and made self-conscious or apologetic remarks that suggested that she was aware that she might not be communicating as clearly as she might have wished.

75The respondent’s evidence in large part reflected its position that the applicant did not suffer adverse employment conditions linked to her place of origin. However, as part of its evidence, the respondent pointed out a notation saying “needs some time to think as English is a second language” made by the applicant’s former supervisor in a note of her weekly supervision. In addition, the respondent’s evidence suggested that an offer of an interpreter was made as a sincere response to a perception that the applicant was having language-based difficulty.

76In R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, 92 C.C.C. (3d) 218, the Supreme Court of Canada, in the context of a discussion of the right to an interpreter in criminal proceedings, accepted the principle that linguistic competence takes colour from circumstances, and that stressful or complicated circumstances can lessen the ability to understand and communicate clearly in a second language.

77For the purposes of the discussion below, I conclude on the evidence that the applicant did have some difficulty with English during the relevant time, and that the respondents knew that this was the case. There is no suggestion in the evidence that the applicant was unable to do her job, but her language difficulties affected her ability to interact with her co-workers and to communicate in the manner that was expected within this workplace.

78At the same time, there appears to have been a corporate culture that included an expectation that employees would be outspoken if they had something to complain about. On more than one occasion in their testimony, Ms Smith and Ms Faria made remarks that suggested that they expected the applicant to be much clearer and firmer in expressing any needs she had. In respect of some aspects of this Application, Ms Smith and Ms Faria suggested that, had the applicant been experiencing the difficulties alleged, she would or should have made a formal complaint. Ms Smith stated that she believed that “women can advocate for themselves” and that she expected that “women would speak to their own needs and seek the help that they need”; “a strong woman would be more direct in asking for what she needed”.

79Since modes of self-expression can be heavily influenced by personal characteristics included as grounds under the Code, a corporate culture that requires a particular mode of self-expression can lead to actions or omissions that breach the Code.

Undervaluing of the applicant’s work—cessation of outreach program and refusal to post translated materials

80The applicant states that her work was undervalued because of the personal characteristics cited as grounds of discrimination. She points to the termination of regular service to the Farsi-speaking community at the Richmond Hill satellite office, and the respondent’s refusal to post to its website her Farsi translation of the “date rape” public education materials, as evidence of a breach of the Code. Her position is that, by demonstrating disregard for her work, the respondent demonstrated disregard or disrespect for her as a woman of Iranian Persian origin.

81There is uncontradicted evidence of unmet need for service to the Farsi-speaking community in Richmond Hill. There is also uncontradicted evidence that the respondent was prepared to spend significantly more time developing an outreach service program for First Nations women on Georgina Island, in 2005-6, than it did for Richmond Hill. Since this Application alleges discrimination in respect of employment rather than services, the question is whether the cessation of the Richmond Hill outreach program constitutes unequal treatment in respect of the applicant’s employment, in breach of the Code.

82It appears from the evidence that the Richmond Hill outreach program was conceived by the respondents as service to a community defined by geography rather than ethnicity, although clearly the applicant's unique ability to connect with the Farsi-speaking community was considered an asset. By contrast, the Georgina Island project was clearly from its inception directed toward the First Nations community on the island. There is no evidence that Ms Faria or Ms Smith, in making the decision to terminate the Richmond Hill outreach project, put their minds to the fact that the Georgina Island project was given more time, or that they went on to decide that the Farsi-speaking clients served by the Richmond Hill project did not deserve to have as much time expended on them as did the Georgina Island community. More importantly for this Application, there was also no evidence that the respondent considered that the applicant's work with the Farsi-speaking community was unimportant, or indicated that it was unimportant. The respondent did not deviate from its position that the cessation of the Richmond Hill project was purely a question of scarce resources.

83It appears that the decision to cease regular attendance at the Richmond Hill office was primarily that of Ms Faria. She was not employed by the respondent in the early days of the Georgina Island project. Ms Faria was new to her management position. There is no evidence that she ever considered the Georgina Island experience and what had been learned by WSNYR during that project in regard to investment of time and trust-building. There is uncontradicted evidence that Ms Faria was extremely concerned about efficiency in using the respondent’s very scarce resources. Ms Smith supported Ms Faria's decision. In testimony, she drew some distinctions between the relative needs of the Georgina Island and Richmond Hill client populations, but there was no evidence as to whether these views had influenced the decision to terminate the Richmond Hill project.

84The applicant is passionate about her work, and no one contradicts that she is highly committed to human rights for women, and that her commitment stems from her experience as a Persian woman “coming from a country that oppresses women”. I agree with the applicant that, if there is a clear enough connection between an employee’s work and personal characteristics of the employee and included in the Code, demonstrated undervaluing of the employee's work by an employer can amount to discrimination in respect of employment. Examples include the history of underpayment of certain work, because it is considered “women's work”. Both parties acknowledged that a difference in the respondent's attitude toward the Georgina Island project and the Richmond Hill project might be significant in an Application in respect of section 1 of the Code. However in my view, where a deliberate devaluation of an employee is alleged, there must be a closer connection between the allegation of differential treatment and the personal characteristics/grounds cited than the applicant has demonstrated in this case.

85Similarly, there is no evidence that the respondent's refusal to post the translated public education materials on its website amounts to discrimination in respect of employment under the Code. The respondent never posted program materials on its website, and consistently and credibly denied that it had the ability to do so.

Reduction of support, supervision, denial of schedule change, isolation in the workplace

86The applicant states that she did not receive the support and supervision she required as a new immigrant whose first language was not English in her first job in Canada. An important aspect of the applicant's situation is the difficulty of working in a language that is not her first language. There is no evidence that the applicant was deliberately denied the more structured supervision she required because of her race, colour, ancestry, place of origin and/or sex. Nor is there evidence relevant to section 11 of the Code that the requirement to work with little supervision caused the applicant to suffer adverse employment consequences, such as a negative performance assessment, that might have been avoided if she had received more supervision.

87The respondent states that there is no evidence concerning collective cultural traits that required accommodation in this case, as opposed to evidence of the applicant's personal needs that might arise entirely from her own personality. This is important in establishing a connection to the grounds set out in the Code without which an application cannot succeed. Bhadauria v. Toronto (City) Board of Education (1990), 1990 CanLII 12501 (ON HRT), 12 C.H.R.R. D/105 (Ont. Bd.Inq.).

88I agree with the respondent that the type of evidence that was adduced in Bhadauria as to cultural characteristics was not brought by the applicant in this case. However, the applicant did bring evidence, which I accept, that because of her place of origin, English is not her first language, and that this caused her some difficulties in meeting the respondent’s requirements which will be further discussed later. The language-related evidence is germane to her claim of discrimination on the basis of place of origin. Language has been accepted as an aspect of place of origin and ancestry. Most cases in which language has been considered as an aspect of place of origin involve situations in which lack of facility with English or French, or accent, is made an issue in employment. Adverse differentiation or adverse effect in employment associated with accent or language facility can breach of the Code. See for example: Cousens v. Canadian Nurses Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd.Inq.), Bains v. Ontario Hydro (1982), 1982 CanLII 4877 (ON HRT), 3 C.H.R.R. D/1136 (Ont. Bd.Inq.), Iancu v. Simcoe County Board of Education (1983), 1983 CanLII 4720 (ON HRT), 4 C.H.R.R. D/1203 (Ont. Bd.Inq.) A. v. Colloredo-Mansfeld (No. 3) (1994), 1994 CanLII 18420 (ON HRT), 23 C.H.R.R. D/328 (Ont. Bd.Inq.), Segula v. Ferrante (1995), 1995 CanLII 18168 (ON HRT), 27 C.H.R.R. D/412 (Ont. Bd.Inq.) and Espinoza v. Coldmatic Refrigeration of Canada Inc., (1995), 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 (Ont. Bd.Inq.).

89The applicant gave evidence, which I accept, about feeling socially isolated within the workplace. She made unsuccessful attempts to connect socially with co-workers that could not have gone unnoticed in a very small workplace. What is not clear, however, is the connection between the applicant's social isolation and the grounds of discrimination cited in the Application. There can certainly be situations in which individual actions and workplace practices causing social isolation might infringe the Code. However, social isolation can also be related to personality clashes, or to personal characteristics not protected by the Code, for example shyness, diffidence, or a habitually quiet demeanour.

90It is a significant circumstance that the only employee who was a recent immigrant, and the only person for whom English was a second language, was feeling socially isolated in this office. However, in this case, the applicant presented insufficient evidence that would link her race, colour, ancestry, place of origin or sex with her social isolation.

91In respect of the incident of the potluck dinner, the applicant clearly believes that she was deliberately excluded. The respondent takes the position that this is not true. In view of the uncontradicted evidence that a winter storm was pending, it was not remarkable that Ms Smith should have offered the applicant the opportunity to leave work. More importantly, for the purpose of this Application, I do not see sufficient evidence to suggest a link between the alleged exclusion and the grounds stated in this Application.

92Although I believe the applicant was sincere in her testimony, I do not accept her position that Ms Smith's remark about telling people in the community in which she worked that she worked at a retail store, rather than in social services, was intended as advice that she do the same. I accept Ms Smith’s evidence that this remark was intended as a humorous form of commiseration, on the subject of how difficult it can be to keep work from invading a person’s private social life. The applicant did not understand Ms Smith's remark as it was intended.

93Finally, I do not find a breach of the Code in the denial of a schedule change. The respondent gave uncontradicted evidence that it had accommodated the applicant’s education-related needs in the past, in respect of some flexibility in hours, and was consistent in its position that the reason for the denial was a perceived short notice.

Lack of support in dealing with a difficult co-worker

94The evidence shows that the respondents required the applicant to solve her own difficulties with an employee, RF, who was generally felt to be difficult to deal with. The respondents point to a written policy for conflict resolution that supported this requirement. Had this policy been consistently applied, it could in these circumstances have given rise to a claim under s. 11 of the Code. The issue of differential impact on the applicant and the respondent’s duty to accommodate would have required serious consideration. However, the evidence shows that other employees who had difficulty with RF were not required to deal with her on their own in accordance with the policy. In addition, RF was disciplined in respect of behaviour with other employees that appears similar to the behaviour experienced by the applicant. The evidence therefore indicates that, in respect of difficulties with RF, a requirement that was ostensibly applicable to all employees was applied only to the applicant. Others were exempted from the policy.

95As noted above, the applicant was quite clear in indicating to the respondent that she would have difficulties meeting the requirement because English was not her first language. I believe Ms Faria's testimony that her suggestion about an interpreter was made in response to a remark of the applicant to the effect that, in a conflict situation such as that which existed with RF, nuances of language are important and a native English speaker has an advantage. In any event, it is clear that both Ms Smith and RF understood that the applicant experienced difficulties from time to time related to English being a second language, and they admitted that she specifically raised this difficulty on being required to meet with RF to resolve their differences.

96Ms Faria’s suggestion about an interpreter was, at best, not helpful. In fact, given that the interaction contemplated by Ms Faria was two employees going out for coffee to discuss difficulties, the suggestion that an interpreter might be present seems incongruous. In hearing Ms Faria's testimony, I formed the impression that her suggestion may not in fact have been made as a serious proposal, but because Ms Faria was irritated that the applicant was questioning her direction. Certainly I did not understand it to be an offer of accommodation of the type contemplated by s. 11 of the Code.

97The respondent knew that RF was a difficult individual, and in fact had intervened by disciplining RF when she had caused difficulties for other co-workers. The applicant had clearly stated that part of her difficulty in dealing with RF stemmed from the fact that English was not her first language. Despite its knowledge of the applicant’s place of origin-related difficulties, the respondent placed a more onerous requirement on the applicant than it did on employees for whom English was a first language. In so doing, it breached s. 5 of the Code.

Termination of applicant’s employment

98As noted above, Ms Smith indicated that her sole reason for terminating the applicant's employment was her belief that the applicant had failed to make a timely report to the Children's Aid Society concerning an allegation by Client X of sexual assault, four years earlier, by an older child who was the son of a friend of Client X's father. She repeatedly stated that the applicant “broke the law” in not reporting, referring to the CFSA. She also stated that the applicant had breached WSNYR’s policy, as reflected in the respondent’s Employee Handbook, concerning the duty to report, which was “taken from” the CFSA.

99The Response to this Application stated that “WSN has strict reporting obligations surrounding information that may come forward from any child (i.e. any woman under the age of 18 years old) regarding sexual, or other, abuse. These reporting obligations arise from the obligations that WSN and its counsellors have pursuant to section 72 of the Child and Family Services Act.” (emphasis added)

100Ms Smith’s stated understanding of the law was that the duty to report arises if the child in question is “16 or less”, and that a report must be made “within 24 hours”. As a statement of the requirements of the CFSA, this is inaccurate in one important respect, and it understates the complexity of the legislation. Further, the information that the duty arises if the child in question is “16 or less”, and the requirement to make a report “within 24 hours” does not appear in the respondent’s Employee Handbook.

101In the Response, the respondent described the applicant's counselling job as a service to “women over the age of 16 years”. This understanding may be part of the reason why the applicant assumed that Client X was over 16. It may also be the reason why the respondent’s Employee Handbook, a copy of which was admitted in evidence, appears to address only situations in which a child of a client might be abused, rather than with abuse of clients who might be considered children themselves.

102The Employee Handbook states that “if a person has reasonable grounds to suspect that a child is or may be in need of protection, the person must promptly report the suspicion and the information upon which it is based to a Children's Aid Society”. However, the Handbook gives no information about the age at which a person is to be considered a “child”. Ms Smith stated that WSNYR had given employees no direction about assessing the age of a client, although she stated “we never direct not to ask age”. She agreed in cross-examination that adding a line asking the client’s age to the respondent’s intake form might make the situation clearer. The guidelines given by the Employee Handbook contemplate that the employee will receive information that triggers a duty to report over the telephone. The Employee Handbook does not specifically address any other situations in which information might be received, and contains no information about asking or assessing the age of a “child”.

103Section 3 of the CFSA defines “child” as “a person under the age of eighteen years”. However, Part III of the Act, which deals with child protection, modifies this definition for the purposes of the child protection provisions in subsection 37(1): “child” does not include a child as defined in subsection 3 (1) who is actually or apparently sixteen years of age or older, unless the child is the subject of an order under this Part” (emphasis added).

104Part III of the CFSA deals with child protection. The relevant parts of section 72 (1) states that the duty to report arises where “a person… has reasonable grounds to suspect” that

…

3. The child has been sexually molested or sexually exploited…by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.

4. There is a risk that the child is likely to be sexually molested or sexually exploited as described in paragraph 3.

105Despite Ms Smith's and Ms Faria’s stated views, neither the Employee Handbook nor the CFSA sets out an unambiguous protocol. Despite Ms Smith’s specific denials, there are clearly areas in which judgement must be exercised in regard to the duty to report. Both Ms Smith and Ms Faria described requirements that are more stringent than those that appear in their Employee Handbook and in the CFSA.

106The applicant consistently maintained that Client X had told her mother of the abuse by the son of her father's friend, and that Client X's mother “was supportive”. She also maintained that, at the time she heard the first complaint about past abuse from Client X, she thought Client X was over 16. At the very least, more information would have been needed by the respondent to come to an accurate conclusion as to whether the applicant breached the duty to report as set out either in its Employee Manual or the CFSA.

107It is not the purpose of this inquiry to come to a conclusion on this point. What is clear is that, in their hasty decision to fire the applicant, the respondent did not have enough facts to support its conclusion that the applicant had breached the duty to report under the CFSA.

108It is perfectly appropriate to err on the side of caution in respect of the duty to report, and the respondent did report right away. The question of determining whether the applicant had failed to meet her legal obligations or breached an employment policy, and, if so, what to do about it, was a separate issue.

109The respondent’s second stated reason for the termination was that the applicant had breached the policy set out in its Employee Manual. The policy does not state the rule the respondent claimed to enforce, and does contain many ambiguities. The respondent was on notice that the applicant had some difficulty with English. In these circumstances, failing to ask questions that would clarify the applicant’s understanding of the policy was unfair, and the respondent gave no evidence that would demonstrate a need for its rush to terminate the applicant’s employment.

110There is also evidence that, with respect to another employee who took an action on more than one occasion that was considered by the respondent to potentially endanger a client, the respondent was willing to take time to more fully explore the facts. As noted above, the infractions at issue in that case are listed in the Handbook as “gross misconduct” which “may lead to immediate termination”, and are later identified as breaches for which the respondent’s Board of Directors “will terminate” employment. However, in that case, the respondent decided to impose discipline instead of terminating employment.

111A respondent may make an unreasonable or unfair decision to terminate an individual’s employment; that alone does not demonstrate a breach of the Code. However, discrimination can be proven by inferences drawn from circumstantial and comparative evidence. In this case, the applicant who was the only recent immigrant in the workplace and the only person for whom English was a second language, was hastily dismissed from her job in what I find to be ambiguous circumstances. Comparing the evidence related to the two incidents, it appears that an employee with language difficulties relating to her place of origin was subjected to more severe discipline than an employee with no such difficulties, on the basis of a more ambiguously-worded employment policy, in a situation involving similar safety issues, and in circumstances in which the respondent had less information to support its conclusion on the facts and insufficient information to conclude that a breach of legal obligations or employment policy had taken place.

112In these circumstances, I find a breach of section 5 of the Code. In doing so, I do not find that the respondent was motivated by dislike of immigrants whose first language is not English—there was no evidence of such motivation. Nor is such motivation a finding a requirement for establishing a breach of the Code. As noted by the Supreme Court of Canada in Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18, and in numerous decisions since then, intent to discriminate is not a governing factor in construing human rights legislation. It is the result or effect of the alleged discriminatory action that is significant.

REMEDY

113Having found violations of section 5 of the Code, it is appropriate to consider remedy. The applicant has requested $12,012 in monetary compensation relating to loss of employment, reinstatement into employment with the respondent, $10,000 in “general damages”, and “human rights training for all managerial and supervisory staff of the respondent”.

114Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

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

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

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

115Section 45.2(1) 1. authorizes awards of monetary compensation for infringement of the Code. This includes reimbursement of out-of-pocket expenses and other objectively quantifiable losses (such as lost salary, benefits and financial opportunities) arising from the breach of the Code.

116The applicant states that she was unemployed for five months between February and the end of June of 2008. She testified that she made efforts to secure employment. She stated that she had an interview at a women’s centre which requested a reference from her previous employer. She was sure that no positive reference would be given and so she told this employer that her previous employer did not know her well. She did not get that job. In cross-examination, she stated that she started sending out her résumé between two weeks and one month after she was dismissed. She indicated that she sent her résumé to more than 10 agencies that did social service work within her region and got three or four interviews.

117The applicant is under a duty to use reasonable efforts to mitigate his or her damages. The effort must be more than minimal, but is to be judged in the circumstances of each case: Shepherd v. Pines Motel (June 8, 1993) No. 524 (Ont. Bd. Inq.). A one-month lapse between the dismissal and attempts to earn an income may be acceptable; as the effect of discriminatory dismissals can be debilitating, it is unjust to require the complainant to begin the job search immediately after dismissal; Waterman v. National Life Assurance Co. of Canada (No. 2) (1993), 1993 CanLII 16509 (ON HRT), 18 C.H.R.R. D/176 (Ont. Bd. Inq.).

118The respondent submitted that the applicant’s evidence of mitigation is sparse; however, the respondent did not specify what the applicant could have done that she neglected to do. The onus of proof regarding any failure to mitigate rests on the respondents: Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd. Inq.) at para. 131; Ayangma v. Eastern School Board and Ano., 2008 PESCAD 10 at para 74ff.

119In the circumstances, I find that there is no basis to reduce the period of time for which compensation will be ordered. The respondent did not dispute the calculation of $12,012 as wages that would have been received in the relevant period.

120Section 45.2(1) also authorizes monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code. Quantifying intangible loss and distress is a difficult exercise. A number of Supreme Court of Canada decisions review the competing approaches in other areas of civil law that deal with this type of compensatory order; see for example, Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629; and Wallace v. United Grain Growers Ltd. 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701. There have been relatively few decisions under the new provision, and undoubtedly, the Tribunal’s approach to the new provision will continue to develop.

121The impact of the discriminatory action on the individual applicant clearly has considerable weight in arriving at a compensatory order, although the impact may be difficult to assess, both because of individual differences and because of ways of self-expression, some of which may be linked to personal characteristics protected under the Code. Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate compensation for injury to dignity, feelings and self-respect: see S.H. v. M.[…] Painting, 2009 HRTO 595, and Hughes v. 1308581 Ontario, 2009 HRTO 341.

122The effect on the applicant, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code; see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. The Tribunal has recognised that it should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a "license fee" to discriminate: (Shelter Corp. v. Ontario Human Rights Commission, 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. 111, Gohm v. Domtar Inc. (No. 4), supra, at paras. 126–27, Gibbons v. Sports Medic Inc. (2003), 2003 HRTO 26, 48 C.H.R.R. D/98 at paras. 49 and 50, Baylis-Flannery v. DeWilde, 2003 HRTO 28, Sanford v. Koop, 2005 HRTO 53, and Boodhram v. 2009158 Ontario Ltd. (No. 2), 2005 HRTO 54, at para. 23.). In this regard, the Supreme Court has taken steps to avoid the erosion of the quantum of compensatory awards for intangible loss by ensuring that the original “cap” on such awards should be indexed to inflation; see for example the award confirmed by the Court of Appeal in McIntyre v. Grigg, 2006 CanLII 37326, 83 O.R. (3d) 161 (ON C.A.).

123In this case, the applicant testified that she felt “destroyed” about losing a job she loved, that was her first job in Canada. She stated that she sought medical attention for insomnia and stress, although she did not want to resort to medication. She felt fatigued and unable to care for her child; she felt that she was not functioning well in family life, and there was extra work for her partner. She felt ashamed about not being able to work and make money for her family, and she felt that she had created a poor example for her daughter. She stated that she tried to hide from her daughter the fact that she had been dismissed, by leaving the house at her usual time in the hope that her daughter would not notice that she was unemployed. She went to a university library as a place to go and keep busy, and she audited some lectures. At times she felt unable to do anything but sit and cry.

124The applicant's medical evidence shows that, having consulted her doctor for work-related stress and anxiety in August of 2007, she returned in March of 2008. The report from her doctor produced in evidence indicates several consultations in regard to anxiety and stress from March through the end of July 2009. The report notes both the termination of her employment and previous incidents at the workplace that had left the applicant feeling traumatised. The doctor’s report also notes complaints of palpitations that awoke the applicant from her sleep, and insomnia. The doctor’s report indicates that she refused medications, and indicates that she did not seek counselling because, as a social worker, she believed she should help herself.

125I accept on the basis of this evidence that the applicant suffered considerable loss of self-respect, dignity and confidence.

126Taking into consideration the effects upon the applicant as she described them and objective considerations noted above, I award $10,000 in monetary compensation for the intangible harm caused by the infringement of Ms Nemati’s rights under s. 5 of the Code.

127The applicant requested reinstatement into employment with the respondent. This was not stressed in the applicant’s final submissions, and it appears to me that an order of this nature would not be suitable, given the deterioration in relations between the applicant and the respondent, and the fact that the applicant has found other employment in the public service sector, which appears to be within her area of interest.

128Finally, the applicant asked that the respondent be ordered to undertake “human rights training for all managerial and supervisory staff of the respondent”. This type of order can and has been made by the Tribunal. However, in this case, I will not order that the respondent undertake the expense of human rights training in addition to the expense occasioned by the monetary orders noted above, for two reasons. First, the respondent obviously takes responsibility for educating its staff, having made commendable efforts in the past to undertake anti-racism training.

129The second reason is that, having heard the testimony of both a board member and managerial staff of the respondent, I believe that dealing with this Application and its result may in itself be sufficient to prompt the respondent to make further educational efforts without being ordered to do so. The respondent is quite obviously dedicated to human rights issues affecting women. In these circumstances, there may be some embarrassment in having been found to have breached the Code. But errors can be made by any person or organisation, particularly when their work is demanding and decisions are taken in haste. Individuals and organisations can learn from their mistakes, and I am confident that the respondent will come to a constructive response to this decision without the necessity of a further order that they undertake specific training.

ORDER

130The Tribunal makes the following Order:

(a) Within 30 days of the date of this Decision, the respondent is ordered to pay $12,012 to the applicant as compensation for wage loss from the date of termination to the date of re-employment.

(b) Within 30 days of the date of this Decision, the respondent is ordered to pay $10,000 to the applicant as monetary compensation for intangible loss arising from the infringement of her rights under the Code. This award is an award in the nature of general damages.

(c) The respondent shall pay the applicant pre-judgment interest on the sum in paragraph a) above, calculated in accordance with section 128 of the Courts of Justice Act, running from February 4, 2009.

(d) The respondent shall pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Order.