HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Steve Vetricek
Applicant
-and-
642518 Canada Inc. (Algonquin Careers Academy) and Des Soye
Respondents
DECISION
Adjudicator: Judith Keene
Indexed as: Vetricek v. 642518 Canada
Appearances by
Steve Vetricek, Applicant ) Amy Britton-Cox and Sharan ) Basran, Counsel
642518 Canada, Respondent ) Munyonzwe Hamalengwa, ) Counsel
1This is a Decision in respect of an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of disability.
2After hearing the evidence, I have concluded that the respondent breached s. 5 of the Code. My reasons follow.
Preliminary Matters
3At the outset of the hearing, some late disclosure issues on the part of both parties were dealt with.
4There was also an outstanding Request, which had been filed on November 6, 2009, soon after the applicant obtained counsel, to amend the Application to change the request for “general damages” to $15,000, to change the request for lost wages to extend from December 15, 2008 to the date of the hearing--December 15, 2009, identify the amount as $53,370.24, and add a request for pre-and post-judgement interest.
5The respondent opposed the Request to amend. However, it could not point to actual prejudice or unfairness of the type considered by the Tribunal in decisions such as Odell v. Toronto Transit Commission (No. 1) (2001) 2001 CanLII 26210 (ON HRT), 39 CH.R.R. D/200; 2001 CanLII 26210 (ON H.R.T.); Persaud v. Toronto District School Board et al. (No. 2), 2008 HRTO 12. The amendments were granted.
6There was also a Request to have the Tribunal hear the evidence of the applicant's doctor by conference call. There was no objection to this Request, and it was also granted.
Undisputed Facts and Statements
7I heard evidence from the applicant, Steve Vetricek, the applicant’s physician, Dr Eddie Lo, and the personal respondent, Des Soye, who testified that he is the President of the corporate respondent 642518 Canada Inc., which operates Algonquin Careers Academy (“ACA”). Many of the facts alleged in this case are undisputed. Where there is a dispute, I indicate it below.
8ACA offers diploma programs in various areas of health care, business and the travel industry. ACA had campuses in Ottawa, Mississauga, and Etobicoke during the relevant period of time. The Mississauga campus had 17 full-time-equivalent positions, with four of these staff, as well as the personal respondent, being employed in the administrative office.
9The Mississauga campus was the newest campus of the corporate respondent. It had relatively few students and the corporate respondent's plan was that the business should grow.
10The applicant began work at the corporate respondent’s Mississauga campus in December 2007 as an Admissions Representative. He was hired on a full-time contract with benefits entitlement for a one-year term to expire on December 5, 2008. The applicant testified that when he was hired, he frequently worked from 9 AM to 7 PM, and usually worked over 40 hours per week. The applicant's first contract stated that the applicant would receive a base salary of $32,500. The arrangement was that the applicant would receive a further 3% on every “student start” as defined by the respondent (with a threshold target of $780,000 that would net the applicant a further $23,400, and a 4% bonus for earnings that amount that could, if met, net the applicant a further $5600.
11Each of the contracts signed by the appellant had an appendix dealing with matters such as targeted annual compensation, base salary and incentive payments, that was signed on a later date than the contract to which it pertained.
12In addition to his employment with the corporate respondent, the applicant had a small business, which he had run for some years prior to his employment with the respondent. The applicant undertakes translation projects, finding translators as subcontractors. The respondents were aware of this business.
13During the applicant's employment his enrolment rate never went down; it increased from quarter to quarter. He believed that he met his annual targets.
14As noted above, the applicant's first contract was a one-year contract, signed on November 30, 2007, providing for employment from December 5, 2007. That contract was terminated early, in mid-August of 2008, and replaced by a contract for a little over one month, signed on August 13, 2008, providing for employment from August 25, 2008 to October 3, 2008. The second contract was also terminated early in favour of a third contract, for a year’s employment, signed on October 3, 2008, to run between October 3, 2008 and October 2, 2009. This third contract was terminated as of December 1, 2008.
15While the personal respondent testified that the applicant's performance in recruiting students was good at first, and “good to okay” from the middle to the end of his employment career with the corporate respondent, he also confirmed that he was “pleased” with the applicant's performance. He consistently denied any dissatisfaction with the applicant's performance, and repeatedly stated that performance was not the reason for either of the dismissals.
16In the spring of 2008, the applicant injured his left shoulder while boxing. He sought treatment for this injury. Via an e-mail of May 23, 2008, he requested a headset from the personal respondent for his use at the office. The applicant testified that he needed a headset because his shoulder was giving him pain when he used the telephone. The e-mail, however, does not identify any disability-related need for a headset, and on cross-examination the applicant could not be sure that he mentioned to his employer that his request for a headset was for medical reasons. The request was denied on the basis that the applicant's telephone had a hands-free mode. The applicant eventually bought his own headset.
17The applicant wore a clavicle splint at work during the summer of 2008. He stated that he might have mentioned to his employer that he was having pain, but did not want to imply that it was out of control. His pain did not interfere with performing his job.
18At the end of June of 2008, the applicant visited an acupuncturist for his shoulder pain. He had an extremely bad reaction to the acupuncture that included pain in most areas of his body. He was just about to go on vacation, but he spent his holiday at home trying to recover. He did not visit his doctor.
19When the applicant returned to work, he was still having pain. The pain was sufficiently bad that the applicant described himself as panicky and anxious. The applicant still had not recovered by mid-August. The applicant consulted his family doctor. His doctor advised him to take physiotherapy, do some swimming and reduce stress. The doctor also suggested anxiety medication, but the applicant did not want to take this. The applicant obtained a doctor’s note dated August 11, 2008 concerning his condition. The notes stated that he should only work for 4 to 6 hours a day until September 30, 2008.
20In mid-August of 2008, the personal respondent told the applicant that his employment would be terminated because of “restructuring”. The applicant produced the August 11 note from his doctor. After reading the note, the personal respondent wrote a letter of termination, but offered the applicant a new contract for part-time hours to run until the end of September 2008. The applicant agreed and signed the contract. He testified that he was very worried, as the contract had no benefits coverage and there was no guarantee that he would have work past September 30, 2008.
21The personal respondent testified that August termination interview had been businesslike and friendly, and that his decision to substitute a different contract for the termination was influenced by the doctor’s note produced by the applicant. When asked whether he was aware that the applicant may have been suffering from anxiety, he stated that he recalled some mention of anxiety concerning the applicant's apartment, which was too hot and noisy. He recalled that the applicant had told him that he was not sleeping well, and that the applicant was very upset about the bad reaction to the acupuncture treatment.
22The applicant continued to come to work and continued to enroll students. He did exercise and swimming and started physiotherapy. His health was improving somewhat. The applicant's work performance in September was extremely good, and in mid- October 2008, the personal respondent offered him a new contract for one year from October 2008 to October 2009. This contract qualified the applicant for health benefits.
23At the end of October at the applicant had not yet received his benefits card. He was anxious about this, as he had physiotherapy bills to pay. He made oral and then written enquiries by e-mail.
24The personal respondent did not respond to the applicant's e-mail. He stated in cross-examination that the applicant did not need a benefits card in order to make insurance claims under the corporate policy. He said that “this was a topic of conversation” and that he was surprised that the applicant had sent an e-mail. He stated that the applicant knew where the insurance claim forms were--he had been verbally “directed to the server several times”.
25On or about November 21, 2008, the applicant received compact disc copies of x-rays that had been ordered by his family doctor. He brought the x-rays back to the office at about 5 PM, looked at them on his computer and was quite disturbed by what they showed. He showed the personal respondent the x-rays and a report on the x-rays. He testified that he was feeling anxious and panicky. He said “Des, you have to see this”. When asked why he had shown his x-rays to his employer, he said that he thought they had a good relationship that he trusted him, and that he wanted to show the personal respondent that he needed his benefits card and package right away. The applicant did not receive the card until November 28, 2008.
26The personal respondent was unable to be precise about the actual date on which he decided for the second time to terminate the applicant's employment. His letter of termination is dated November 28, 2008, and there is a written annotation: “delivered Dec 1”. In cross-examination, he stated that he might have decided to fire the applicant as early as November 5, 2008, and that another termination, which took place on the Ottawa campus, was done in “mid-November”. (A letter adduced in evidence relating to this termination was dated November 17, 2008.) However, he testified that “a lot of things were happening during that period” and that this affected his ability to recall the date.
27The personal respondent confirmed that he had sent the applicant an e-mail on November 17, 2008 inquiring whether the applicant would be in to work between December 29 and December 31. When asked whether, at that point, he had not yet decided to terminate the applicant's employment, the personal respondent said that he was in fact planning to “let him go” at that point. He gave no explanation for enquiring as to whether the applicant would be at work between December 29 December 31.
28When the applicant came into the office on Monday, December 1, 2008, he tried to sign into the computer but his password did not work. The personal respondent walked by, asked to see him for a minute and terminated his employment. Once again, he said that he was restructuring.
29The applicant said that he was devastated by being laid off. He had been looking forward to Christmas. He now had to tell his family that he had been fired. He was unprepared for the sudden loss of income.
30He applied for and eventually received Employment Insurance, but he had to apply for social assistance in the interim, in order to avoid being evicted from his apartment for non-payment of rent. He found this very humiliating and damaging to his self-respect—“I guess I bought into society’s stereotypes about people on social assistance”.
31The applicant sought employment; at first looking for something that matched his experience, but, after six weeks, trying for anything just to keep busy. His estimate that he applied for 100 to 150 jobs was backed up with a detailed job-search record compiled in the course of meeting his eligibility requirements for Employment Insurance. When he was unsuccessful in obtaining permanent employment, the applicant applied for a job skills retraining program. He trained as a reflexology therapist, but made only about $500 from this work. He also got some work in September 2009 from an old friend who referred him to a restaurant that was hiring. He submitted a statement of earnings in evidence. The pay was so low that his earnings did not affect his Employment Insurance entitlement. He had two job interviews. One prospective employer checked his references including calling the personal respondent, but he did not get the job.
32The applicant had run his small business for about four years; this predated his employment with the corporate respondent. This business did not do well in the period after the applicant was fired. His income tax returns adduced in evidence showed a net loss of over $1500 in 2008. The applicant testified that, during 2009 to the date of the hearing, gross sales had been less than $5000. The applicant's testimony was supported by invoices submitted in evidence. For a few months prior to the hearing, the applicant had been attending school in an acupuncture and traditional Chinese medicine program sponsored by the Federal government through Employment Insurance. He testified that he would not have undertaken this program if he had been still employed by the respondent, but he felt he needed new skills as he had not found work.
Did the applicant have a disability, as defined by the Code?
33The respondent disputes that the applicant's medical problem constitutes a disability for the purposes of the Code. Counsel for the respondent argued that there is no disability unless an employee's performance is being affected.
34The Code defines disability in section 10:
In Part I and in this Part,…“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,…
35Plainly, the definition of disability is very broad, including “any degree of physical disability, infirmity…that is caused by bodily injury”. As with all statutory provisions that advance the purpose of human rights legislation, “disability” has also been defined broadly in the jurisprudence. As noted in Chen v. Ingenierie Electro-Optique Exfo Inc. 2009 HRTO 1641:
The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), [2000] 1. S.C.R. 665, 2000 SCC 27 [reported 37 C.H.R.R. D/271]. For example, if an employer believes that an employee's condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54 [CHRR Doc. 05-738].
36The medical evidence produced by the applicant, which was not contested by the respondents, included certain medical records, as well as testimony by conference call of the applicant’s physician, Dr Eddie Lo. Dr Lo testified that he had been the applicant's family doctor for 15 years. His testimony was directed to the applicant's condition when he was seen in the doctor's office on August 11 August 27 and November 21, 2008.
37Dr Lo confirmed his report, which stated that, on August 11, 2008, the applicant had complained of pain in his left shoulder (the acromioclavicular or AC joint) and left bicep muscle that had started sometime the previous June. The pain was moderately severe, and occasionally radiated to the neck. The applicant felt weakness and pain when using the left arm or neck or left elbow. Dr Lo also stated in testimony that the applicant told him, on 27 August 2008, that he was having panic attacks.
38Dr Lo's diagnosis was “strained and superimposed osteoarthritis of the acromioclavicular joint” of the left shoulder. He indicated in testimony that it was unusual to have arthritis in the AC joint, and thought it may have been due to the applicant's athletic activities, which included boxing. Dr Lo indicated that the applicant was treated with physiotherapy, muscle relaxants and analgesics. He gave the applicant a note indicating that for the period from August 11, 2008 to September 30, 2008, the applicant should not work more than 4-6 hours a day.
39An x-ray done on November 21, 2008 confirmed “mild to moderate degenerative changes at the AC joint”. Dr Lo confirmed in testimony that this meant permanent changes in that joint. His report concluded that the condition was stable and “should improve in time with exercise and physiotherapy. The symptoms tend to wax and wane with occasional flare ups. He can perform office work, but not for heavy duties.”
40In the light of this evidence, I find that the applicant had a “degree of physical disability or infirmity”, and therefore had a disability as defined by the Code at the relevant time.
Was the respondent aware of the applicant’s disability?
41Adverse treatment in employment for reasons that relate to disability is prohibited by section 5. In addition, when an employer has reason to believe that an employee is having difficulty with the requirements of his or her employment by reason of a disability, section 11 of the Code imposes both a procedural and a substantive duty to accommodate on the employer in respect of those requirements.
42The personal respondent indicated that he was unaware of the applicant's medical problems until August 11, 2008, when he was about to terminate his employment for the first time.
43The applicant stated that when he returned to work after a break in June of 2008, he was still having pain. He told the personal respondent what had happened, that he felt confused, stressed and anxious, and that he was in pain. The personal respondent suggested that the applicant take his remaining week of vacation to recover, and the applicant did so in the third or fourth week of July.
44In cross-examination, the personal respondent elaborated upon the information noted in his Response to the Application. He indicated that in the period between July 7 and July 16, 2008, the applicant was late for work several times and was absent from the office for blocks of time during the day. He did not show up to work on July 17 or 18 and did not call in. The personal respondent confirmed that he spoke to the applicant on July 21, and that the applicant told him that he had had a bad reaction to acupuncture. On cross-examination that personal respondent agreed that acupuncture is used as a treatment for various health conditions.
45The personal respondent confirmed that, after this conversation, the applicant used his remaining vacation time to recover from the acupuncture treatment. However, he did not agree that the applicant may have needed that time for medical reasons. He stated that the applicant “might have been” using the time for the small business that the applicant ran in his free time, or to look for another job.
46In giving his evidence, the personal respondent stressed that all of his business decisions related solely to the efficiency and profitability of the business. An assertion that he would have accepted, without question, a possibility that the applicant may have been taking time from his job to spend time on his own small business or to look for another job is sufficiently inconsistent with the rest of the personal respondent’s evidence to raise questions of credibility.
47The personal respondent recalled that the applicant had showed him his x-rays, and recalled that this had happened sometime after 17 November. When asked what impression he had formed from the x-rays, he replied that he had “no impression; no interest”. By his recollection, it was 7:30 in the evening when the applicant wanted him to look at his x-rays; he gave the impression, in giving his evidence, that he found the request irritating.
48The personal respondent also confirmed that the applicant had repeatedly inquired about his health benefits card, and that he had sent the personal respondent an e-mail on November 11, 2008, indicating that he needed to claim benefits insurance for massage and physiotherapy.
49I conclude from this evidence that the personal respondent was aware that the applicant was dealing with a disability no later than July 21, 2008, when he spoke to the applicant concerning his absences.
50It is also clear that the respondents had no reason to suppose that the applicant no longer had a disability prior to terminating the applicant's employment for the second time on December 1, 2008. The personal respondent confirmed that the applicant head shown him his x-rays and x-ray report on or about November 21, 2008.
Was disability a reason for either of the terminations?
51It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 1989; CanLII 97 (S.C.C.).
The August termination
52The applicant alleges that the reason for the termination in August was because the respondent was concerned about time taken for reasons connected with disability.
53The personal respondent denied that disability had been factor in the decision to lay off the applicant. The personal respondent’s explanation for the termination in August was that, despite having a new facility, sales were not good in July and August of 2008, and he was losing money. He had already terminated the employment of another employee in April of 2008, and taken on that employee’s work himself--he referred to this as “restructuring”. Later, he decided to reduce the Admissions Representative positions from two to one.
54The personal respondent’s stated reason for terminating the applicant is not in accord with the facts to which he testified. He cited reduction in business as his main reason. He repeated that his reason for the termination in August of 2008 was that the business was losing money, and he had to cut costs. He agreed that registrations in July and August of 2008 were “minimal”. However, he also agreed that he had hired a new employee (SJ, who, like the applicant, was expected to solicit and deal with new registrations), on 15 July 2008. He confirmed that no one other than the applicant was terminated in July or August of 2008.
55Rather than retaining the applicant, the personal respondent chose SJ, who had just been hired. When asked about this in cross-examination, he indicated that SJ has a Master's degree in Business Administration and a Bachelor of Science degree. This was relevant to him because the college had been provisionally accredited in July 2008 to offer a pharmacy-related course.
56There was some dispute between the parties as to whether the applicant's performance as reflected by enrolment statistics was superior to that of SJ, but the respondent unequivocally denied that comparative performance and enrolment figures were a factor in his choice of which employee to retain.
57The personal respondent noted in testimony that, in addition to the consideration of SJ's qualifications, he considered that there was a “reliability issue” in respect of the applicant, as the applicant had taken “extra” time off in July and August. On cross-examination, he confirmed that the applicant's absences in July and August were one of his reasons for the layoff.
58SJ’s qualifications may well have been one of the reasons why she was retained in employment instead of the applicant, despite being comparable in regard to performance and having less experience. However, one of the reasons why the applicant was laid off the first time is admittedly the disability-related absences in July and August, and this is enough to establish a breach of the Code.
59Counsel for the respondents referred to the second contract, the short-term contract signed after the August termination, as both evidence that the respondents did not discriminate because of disability, and as an accommodation of the applicant. On the evidence, there was no discussion of the applicant’s disability-related needs, so I do not find that the facts lead to this conclusion. It appears to me that the short-term contract was more in the nature of a trial period in which the respondents could assess whether the applicant was going to need to be absent from work, and whether his disability would affect his performance.
The December termination
60The applicant testified that his health improved somewhat in August. The personal respondent agreed that the applicant's work performance in September was extremely good, and that this was the main reason why he offered the applicant the third contract, for a year’s employment, signed on October 3, 2008, to run between October 3, 2008 and October 2, 2009. While he denied the suggestion that the applicant’s improved attendance was a reason for the new contract, he admitted that “attendance could be a factor”.
61In cross-examination, the personal respondent agreed that enrolments were also below expectations in September, October and November of 2008. He also agreed that the appendix to the applicant's third contract was not signed until October 14, 2008. He was asked, in cross-examination, why he would have offered a new one-year contract at a point when enrolments were down--he responded that he hoped that “we would continue to grow the school”. However, he reiterated that the reason for the December 1 termination was that enrolments were down.
62It is undisputed that, two months after the third contract was signed, the applicant showed the personal respondent his x-rays, and inquired about his health benefits. Shortly after, his employment was terminated. The applicant alleges that the termination in December occurred because the respondents were worried about the effect that disability might have on the applicant's performance and attendance in the future.
63The personal respondent was asked in cross-examination about the possible impact on the business if the applicant had needed to take long-term disability (LTD) under the benefits plan. He denied that there would be any financial impact on the business resulting from an LTD claim. When asked about other impacts such as the inconvenience occasioned by an employee being absent for a protracted length of time, he stated that he had no experience of LTD. While he admitted that an employee on LTD might have to be replaced, he stated that this “doesn't necessarily cost more”. However he admitted that there might be some impact on the business from an employee taking LTD.
64The applicant stated that during his December termination interview, the personal respondent said that, once again, he was going to keep SJ in employment instead of the applicant. The applicant said that he was surprised by this because, in October of 2008, the personal respondent had told him that he had planned to lay off SJ. When questioned about the applicant’s testimony about the alleged conversation in October, the personal respondent stated that he had no recollection of that conversation.
65Once again, the personal respondent’s stated reason for terminating the applicant is not in accord with the facts as stated. Enrolments were below his expectations in September, October and November of 2008, but he was willing to offer the applicant a new one-year contract in October in order to “grow the school”. I conclude in the circumstances that, on being shown the applicant's x-rays on November 21, 2008, Mr Soye was worried that the applicant was again going to need to be absent from work for reasons related to disability. This was a reason, if not the only reason for the termination of the applicant’s employment, and, as such, amounts to a breach of s. 5 of the Code.
66Counsel for the respondents laid considerable emphasis on the fact that the corporate respondent’s contracts of employment contain a clause that allows for termination without cause at any time. He also suggested that the courts have recognised a “business judgement rule” that would discourage a court or tribunal reviewing the actions of an employer under the Code. Counsel was unable to assist the Tribunal with any decisions to support this argument. In any event, there is considerable jurisprudence to support the argument that a respondent cannot “contract out” of the application of the Code; see for example Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, and Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 2003 SCC 42, [2003] 2 S.C.R. 157. The only qualification of that rule by the Supreme Court has occurred in the context of a decision involving Newfoundland’s human rights legislation, in which the Supreme Court allowed a contractual provision the effect of which was “to raise and further protect the human rights of the people affected”: Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC), [1996] 2 S.C.R. 3 at para. 26.
REMEDY
67Having found violations of section 5 of the Code, it is appropriate to consider remedy. The Application as amended requests $52,370 in monetary compensation for wages lost from December 15, 2008 to December 15, 2009, $15,000 in “general damages”, and pre-and post-judgement interest.
68Section 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:
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.
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.
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.
69Section 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.
70The 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.). The applicant has been unable to find more than casual employment since the date of his termination. He has made efforts to obtain employment, and has taken courses in the hope of adding skills to improve his employability.
71The 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. The personal respondent’s cross-examination did not raise anything that the applicant could have done that he neglected to do.
72In the circumstances, I find that there is no basis to reduce the period of time for which compensation will be ordered. The respondents did not dispute the calculation of $52,370 as wages that would have been received in the relevant period. The applicant testified that he had received $500 made through casual work as a reflexology therapist, and $55.87 from restaurant work, and this will be deducted from the amount for lost wages. The applicant will of course be responsible for any overpayment of Employment Insurance.
73Section 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.
74The 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.
75The 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.).
76In this case, the applicant testified that he felt “devastated” about losing his job, and experienced humiliation, distress and damage to his self-respect. He stated that he felt as though he were “on a downward slope”.
77I accept on the basis of this evidence that the applicant suffered loss of self-respect, dignity and confidence. The applicant’s counsel cited the decision in Pridham v. En-Plas Inc., 2007 HRTO 8 in a submission that an award for intangible loss should be higher where acts of discrimination are repeated, as it was in this case. The Tribunal in that decision found repeated acts of discrimination “can be presumed to give rise to greater general damages to an individual than a similar single act of discrimination” (at para. 49).
78Taking into consideration the effects upon the applicant as he described them and objective considerations noted above, I award $15,000 in monetary compensation for the intangible harm caused by the infringement of the applicant’s rights under s. 5 of the Code.
79Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the "date the cause of action arose". Based on the evidence, this cause of action arose when the first decision was made to terminate the applicant’s employment, in mid-August of 2008. However, there was no actual diminution in the applicant’s earnings until December 1, 2008.
80The Ontario Court of Appeal has held that prejudgment interest on damages for lost salary should not be awarded prior to the date such payments were due: see Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No. 13 at para. 27 (C.A.). With respect to the applicant’s damages for his loss of wages, I award pre-judgment interest on the full amount from May 15, 2009, the mid-point between December 1, 2008 and the date of the hearing. A link to the relevant rates of interest is provided on the Tribunal’s website, at the section on “The Law and Policies”.
81Finally, remedies under section 45.2(1)3 to “promote compliance with this Act” are appropriate in this case. The applicant has asked that the corporate respondent be ordered to develop a human rights policy and distribute it to all staff at the College. This appears to be a reasonable request, and will be part of the Order noted below.
ORDER
[82] The Tribunal makes the following order:
(a) Within 30 days of this Decision, the respondent shall pay $52,814.37 to the applicant for to the applicant as compensation for wage loss from the date of termination to the date of the hearing.
(b) Within 30 days of this Decision, the respondent shall pay $15,000 to the applicant as an award in the nature of general damages, for violation of his inherent right to be free from discrimination, and for injury to his dignity.
(c) The respondent shall pay the applicant prejudgment interest on the sums in paragraph a) from May 15, 2009 and b) from the date of this Decision calculated in accordance with section 128 of the Courts of Justice Act.
(d) The respondent shall pay the applicant postjudgment 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 Decision.
(e) Within three months of this Decision, the respondent shall develop a human rights policy and distribute it to all staff at the College. The respondent shall send a copy of the policy to the applicant care of his counsel at the Human Rights Legal Support Centre.
Dated at Toronto, this 6^th^ day of April, 2010.
“Signed By”
__________________________________
Judith Keene
Vice-chair```