HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Colin Adams

Applicant

-and-

Knoll North America Corp. and Cam Truong

Respondents

case Resolution Conference DECISION

Adjudicator: Jennifer Scott

Date: February 18, 2010

Citation: 2010 HRTO 376

Indexed as: Adams v. Knoll North America

APPEARANCES BY

Colin Adams, Applicant ) Glen Morrison, ) Representative

Knoll North America Corp. ) Robert Dunford, and Cam Truong, Respondents ) Counsel )

INTRODUCTION

1This is the Decision determining the remedy in respect of an Application filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). On September 2, 2009, I issued a Case Resolution Conference Decision, 2009 HRTO 1381, finding that Knoll North America Corp. (the “respondent”) had discriminated against the applicant on the basis of race in employment. There was no finding of liability against the individual respondent, Cam Truong.

2On December 14, 2009, the hearing resumed to hear evidence and argument on remedy. The applicant claims $30,000.00 in compensation for the loss arising out of the infringement of his rights and $69,370.33 in compensation for 18 months of lost wages and benefits.

3Section 45.2 of the Code sets out the Tribunal’s remedial powers:

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

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

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

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

4It is well established that the Tribunal’s remedial powers are not punitive in nature. They are designed to both compensate applicants for the discrimination they have experienced, as well as to serve the public interest by eradicating discriminatory practices and educating the parties and the general public about the rights set out in the Code.

5The educative component of the Code’s remedial provisions is important in this case because it involves the unintentional application of a societal stereotype – that Black men have a propensity towards violence – in the context of employee discipline. While this stereotype may have been well known and familiar to the applicant, it was not consciously known or intentionally applied by the respondent. I accept that the respondent may not have been aware that its reaction to the applicant’s conduct on February 12, 2008 was influenced by racial stereotyping and accept further that society’s understanding of racial stereotyping in the context of employee discipline is continuing to evolve. However, one of the central purposes of the Code is to educate the parties and the general public about the impact of discriminatory practices regardless of how unintentional they may be. It is for this reason that the focus of the remedial analysis is on the effects of the discrimination.

MONETARY COMPENSATION

Injury to Dignity, Feelings and Self-Respect

6The applicant seeks damages of $30,000.00 for the loss of the right to be free from discrimination and for the mental anguish he experienced. He testified that he lost his dignity, self-esteem, confidence, friends from work and felt victimized by the discrimination. He also stated he is very “stressed out”, not functioning and experiences headaches. The applicant did not adduce clinical or expert evidence to support these alleged medical and psychological impacts of the discrimination.

7The respondent argues a small amount should be ordered for these intangible losses because the applicant has failed to provide the necessary evidence to support a significant award for compensation. The respondent states the applicant has not presented this evidence because he did not experience the effects that he claims. The respondent submits further that the award should be nominal because there is no evidence of victimization or vulnerability on the part of the applicant and because the discrimination was a one-time occurrence.

8In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the court held tribunals should consider the following subjective factors when awarding general damages: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment. In addition to the subjective effects of discrimination on an applicant, the Tribunal may incorporate an objective component to the quantification of monetary compensation by considering the circumstances surrounding the discrimination: see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; appeal dismissed 2010 ONSC 278. In assessing quantum, the Tribunal is mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a ‘license fee’ to discriminate (Sanford v. Koop, 2005 HRTO 53 at para. 34).

9This case involves a one-time occurrence that led to the termination of the applicant’s long-term employment with the respondent. Termination of employment, by its very nature, has a significant impact on a person’s feelings and self-esteem. Where it is done in a discriminatory manner, the impact is greater. The effects of the termination were exacerbated here because the applicant was left jobless with five children to support.

10In assessing the impact of the discrimination, a substantial award is required for several reasons. The racial stereotype that was applied was both serious and harmful. The applicant was constructed as being potentially violent when there was no history of him being violent in the workplace. He was, by all accounts, a well-regarded employee and yet his employment history was completely ignored when the isolated incident of February 12, 2008 occurred. When the applicant objected to being constructed as someone with an anger management problem, he was summarily dismissed. The impact of the termination coupled with the discriminatory construction of the applicant as someone to be feared is significant. In these circumstances, an award of $15,000.00 in monetary compensation for the infringement of the applicant’s right to be free from discrimination under the Code is appropriate.

Lost Wages and Benefits

11There is no dispute between the parties that the applicant required and was receiving accommodation from the respondent because of an injury to his right shoulder and left ankle. As a result of these injuries, the applicant’s machine operator position was modified in the following ways: he was not required to use a foot petal and he was able to sit when necessary. At a functional capacity evaluation conducted on November 16, 2007, four months before the termination, the applicant confirmed that with these accommodations, he was able to complete all of the tasks of his position. The functional capacity evaluation determined the applicant had certain restrictions in his ability to carry heavy weight, lift, use a foot petal, stand constantly, climb ladders and reach with his right arm.

12The applicant went on employment insurance after he was terminated in March 2008. In December 2008, he registered with a union, but could not continue because he could not pay the dues. The applicant contacted several acquaintances about plumbing and building jobs, and knocked on a few factory doors, but could not remember which ones. The applicant concedes that with the exception of one of these contacts, his job search started in 2009. At that time, there was a significant downturn in the economy making it difficult for him to find a job.

13The applicant asserts his physical restrictions made it difficult for him to do certain jobs. However, on an Employment Action Plan with the Ministry of Training, Colleges and Universities, completed in May 2009, he stated he was working “on call” for a plumbing company from April 2008, but had not been hired full-time. On the same form, he stated he was taking “odd jobs here and there”. The applicant signed the form attesting to its accuracy on May 25, 2009.

14At the hearing on remedy, the applicant stated the Employment Action Plan form was incorrect because he was not working: he was apprenticing to learn the job. Even if this was so, the information on the form demonstrates two things: the applicant had contacts in the job market that allowed him to undertake a more meaningful job search and he was physically capable of working.

15The respondent argues the applicant did not take reasonable steps to mitigate his losses following termination. It asserts the applicant could have prevented all losses by attending anger management counselling while preserving his right to assert his human rights at a later date. Alternatively, the applicant failed to mitigate his losses by not undertaking an appropriate job search.

16The applicant is under a duty to mitigate his losses by making reasonable efforts to obtain suitable employment. He cannot remain idle and then expect complete compensation for the period of his unemployment. The applicant is entitled to be compensated only for those losses that could not have been avoided and the respondent has the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22 at para. 265; A. v. Ruby’s Foods Services Ltd. (1992), 1992 CanLII 14245 (ON HRT), 16 C.H. R.R. D/394 at para. 45 (Ont. Bd. Inq.).

17The duty to mitigate does not include an obligation to accept a discriminatory condition of employment. As such, the applicant was not required to undergo anger management counselling as a condition of his continued employment. The applicant was, however, required to mitigate his losses by conducting an appropriate job search. I find the applicant did not even start to look for a job until 2009, ten months after termination, and even then, his job search was minimal and ineffective.

18While the applicant asserts his restrictions impacted his ability to find a new job, there is no evidence before me that he (a) genuinely tried to find a full-time job; and (b) the work that was available was not appropriate because of his restrictions. I am not prepared to assume that his restrictions resulted in an inability to find permanent work. An accommodated employee is still required to mitigate his losses and mitigation requires more than contacting two or three people and knocking on a few factory doors. It requires a legitimate and thorough effort to find new employment. This did not occur here.

20I find the applicant has failed to mitigate his losses. This finding is based on my assessment of his effort, which was almost non-existent. The applicant did not try to find a new job because he believed there was no point given the state of the economy and his physical limitations. He made this assumption at his peril. Had the applicant tried to find a job in March 2008, it is likely he would have been successful in a relatively short period of time. He was 49 years of age and the downturn in the economy had not yet occurred. The applicant had been working in the manufacturing setting for at least 12 years. While he had some physical restrictions, it is clear from the Employment Action Plan form that he was capable of working as he had been doing part-time work since April 2008, one month after termination.

21Upon finding the applicant failed to mitigate his losses, I must determine how long it likely would have taken for him to find another job had he tried to do so. There is no question that it would have taken the applicant some time. This represents his “unavoidable loss” and it is this loss that the respondent is responsible for. In the circumstances of this case, I find that it would have taken the applicant three months to find another job. I recognize that this is a somewhat arbitrary determination. However, in light of the applicant’s age, work history and the economy in March 2008, it is a reasonable period of time.

22I therefore find that the applicant is entitled lost wages for the period March 4, 2008 to June 4, 2008 in the amount of $10,301.40. The applicant is also entitled to his health and dental benefits during this period at a reimbursement rate of eighty percent. This entitles the applicant to an additional amount of $216.28. The applicant is not entitled to vacation pay because I find he would have taken his vacation during his employment. Similarly, the applicant is not entitled to a bonus or safety shoes because there is no evidence that he consistently received a bonus or that he was reimbursed for safety shoes on a yearly basis.

ORDERS

23Having found that the respondent violated sections 5 and 9 of the Code, the Tribunal makes the following orders:

1. The respondent shall pay the applicant $15,000.00 for loss arising from the infringement of his rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43 from the date of the Application;

2. The respondent shall pay the applicant $10,517.68 which represents all wages and benefits the applicant would have received from March 4, 2008 to June 4, 2008 had he not been terminated by the respondent plus pre-judgement interest on this amount in accordance with section 128 of the Courts of Justice Act from April 15, 2008, a date halfway through the period of loss.

3. The above monies are not payable until such time as the respondent’s application for judicial review of the Tribunal’s liability decision is completed. Post-judgement is calculated 30 days from that date if the respondent is not successful on the judicial review.