HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Renee Stead
Applicant
-and-
Trehaven Golf & Country Club Inc., Joe Cvik
Respondents
decision
Adjudicator: David Muir
Date: April 13, 2010
Citation: 2010 HRTO 816
Indexed as: Stead v. Trehaven Golf & Country Club
APPEARANCES
Renee Stead, Applicant ) James E. Bowden,
) Counsel
Trehaven Golf & Country Club Inc., ) Joseph N. Tascona,
Joe Cvik and Barb Cvik, Respondents ) Counsel )
[1] This is an Application filed October 7, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In 2009 HRTO 830, I found that the applicant’s right to be from discrimination in employment had been violated by the respondents. The hearing was reconvened to hear the evidence and submissions of the parties on remedy. I heard the evidence of Renee Stead and Carol Dunn for the respondents, on the question of remedies.
[2] I will not repeat my findings from the decision on merits except as they are pertinent to the parties’ arguments on remedy and to my determination of the appropriate remedy. In this connection I note with respect to the decision to terminate the applicant’s employment and damages which may flow from that decision, the respondents rely on my finding that Carol Dunn, the daughter of the respondent Joe Cvik and a shareholder, was to return to take over the running of the golf course from her brother and sister-in-law and would be paid half of what the applicant had been paid (see para 17 2009 HRTO 830).
[3] Section 45.2 of the Code sets out the Tribunal’s remedial powers:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
Analysis
[4] The applicant is entitled to compensation for lost wages. She lost her employment in violation of the Code in a sudden and unexpected manner. The applicant’s employment was terminated on September 11, 2006. She was paid two weeks pay in lieu of notice to September 26. Accordingly her entitlement to compensation for lost wages runs from September 26, 2006.
[5] Perhaps the most consequent issue for both parties is the weekly quantum to which the applicant can rightly stake a claim. I have found as a fact that the respondent Cvik’s stated intention in September 2006 was to reduce costs by, amongst other things, paying the applicant’s replacement half of what had been paid to the applicant. The applicant states she was earning $800 per week. The respondents’ intention appears to have been to pay the applicant’s replacement $400 per week.
[6] The applicant argues there is no evidence of the actual weekly wages paid to Ms Dunn. The applicant also states that a cut in her pay would have been unlawful as a constructive dismissal. Accordingly, she claims her wage loss should be calculated at $800 per week.
[7] The evidence on this point is somewhat complicated by the fact that Ms Dunn was (and remains) a shareholder in the respondent business. However Ms Dunn, who gave her evidence in an entirely straightforward manner, testified that she drew a salary of $480 per week while the course was operating. This was later reduced when she moved into the residence on the course.
[8] I am satisfied that, had the respondents not violated the Code and handled the situation properly, the applicant would have been offered the option of staying on at a much reduced salary or perhaps in some alternative role. But I am equally satisfied that under no circumstances is it probable she would have retained her weekly salary of $800. The best she could likely expect was what Ms Dunn earned - $480. The other option was the much discussed beverage cart, but I find that as the season was winding down it is more likely than not that this would have been a less lucrative option for the applicant, at least in the Fall 2006.
[9] For how long is she entitled to be compensated? The applicant states that in all likelihood she would have been in receipt of her salary through the off season up to the start of the 2007 and from then full-time seasonal work during the 2007 and 2008 golf seasons. I do not agree.
[10] Rightly or wrongly the personal respondent perceived that the course was in trouble and took dramatic steps to remedy the situation. One of these decisions was to end the short lived practice of paying managers through the off-season. Because this had been a family owned and run business, the compensation of family members who worked at the course was not a straightforward labour/salary exchange. When the applicant began working this changed and, for at least one season, the applicant and her then husband were paid their salary through the winter months.
[11] Ms Dunn testified that the course ceased operations on November 12, 2006 and that no one was paid after that date. The applicant states that such an arrangement would have been unlawful and a constructive dismissal. Nonetheless I accept Ms Dunn’s evidence on this point and I find that, had the applicant been treated appropriately and had remained employed by the respondents, she would not have been paid after November 12, 2006 until the course re-opened in the Spring. Whether or not this decision amounts to a constructive dismissal is neither here nor there for purposes of this Application. Accordingly the applicant is entitled to lost wages in the amount of $480 per week for the 6 weeks between September 26 and November 12, 2006 which amounts to $2880 less the statutory deductions required by law.
[12] The applicant states the she is entitled to lost wages from her termination to the date this hearing began. The respondents state that their responsibility should end with the applicant’s successful application for a Self Employment Benefit Grant (SEEB) which paid the applicant a benefit of $28,762 for the period May 13, 2007 to May 10, 2008. The respondents state that after receiving the SEEB grant the applicant stopped looking for work that would produce income comparable with what she had earned at Trehaven.
[13] I do not agree with the respondents on this point and I find the applicant is entitled to be compensated for her lost wages through the 2007 golf season beginning April 11, 2007. Amongst the factors I have considered in coming to the conclusion include the following. The termination of the applicant’s employment was, as noted above, sudden and completely unexpected. The applicant is a 55 year old woman and, although clearly capable, has limited marketable skills. The applicant is a person with a disability although to what extent that limited her employment prospects is not clear. In this regard I note that she did not indicate that it would limit her hours of work on the SEEB application, however it is clear on the evidence that the applicant felt unable to work the very long hours that were sometimes required at Trehaven in the summer months and to that extent would have limited her job prospects.
[14] Further, I am satisfied the applicant made reasonable attempts to mitigate her losses. I also note that, in addition to losing her employment she was, as a consequence, required to leave her home and was de facto separated from her husband. The marriage ended not long thereafter and, while there is no basis in the evidence to conclude that the unlawful termination of the applicant’s employment was a significant factor in the dissolution of the relationship, the collateral consequences of the termination could not have helped her situation. While this consideration most closely relates to a non-pecuniary claim, I am satisfied that it would have impacted to some degree the applicant’s ability to look for and secure alternative work.
[15] Despite these circumstances the applicant immediately began a sustained effort to obtain gainful employment. In October 2006 she enrolled in a training course with a view to self-employment as “home stager”. She obtained temporary employment from some time in November 2006 until early January 2007. Contrary to the respondents’ submission that the receipt of the SEEB grant ends their responsibility, I find it is better understood as a further attempt to mitigate her losses. While in this program she started two businesses – one in 2007 and another in early 2008. These were not successful however it is clear that the applicant was attempting as best she could to re-establish herself in gainful employment
[16] I find that the applicant is entitled to lost wages for the 2007 golf season. The submissions of both parties assume that as of this point the applicant would not have been employed as a co-manager with her husband but might have been employed in some other capacity. Ms Dunn conceded that the applicant would have been useful as a worker around the course, working the beverage cart and helping out in the kitchen.
[17] The applicant does not dispute that the SEEB payments constitute mitigation limiting the respondents’ liability and the respondent did not dispute that the SEEB grant would have paid out $423 per week beginning May 13, 2007. The applicant is entitled to the difference between that amount and what she might have been able to earn as an employee of Trehaven.
[18] The applicant states that, extrapolating from the earnings of Barb MacAfee an employee who worked part of the 2007 season, she would have earned on average 641.88 plus tips per week. The applicant also states that tips would amount to $420 per week on average of the 27 weeks of the season. Including an amount for exigencies and deducting the SEEB receipts that applicant claims entitlement to $21,020.
[19] I am satisfied that the applicant could have earned what Barb MacAfee earned for the 2007 season. However I am not at all persuaded that in addition to a salary of $641 a further $400 or more in tips could be expected on average every week. The evidence on this point is extremely limited but common sense suggests that the season would build from opening day through the summer and then decline after Labour Day. Although tips in the suggested volume might be expected at the height of the summer months, I find that it is unlikely to be anything approaching that amount prior to Victoria Day and after Labour Day. I find that an average weekly amount of $200 in tips over the entire season from mid April to mid November appears more reasonable.
[20] As regards the respondents’ submission that tips are not compensable because they did not track them, I accept the evidence of the applicant that tips at the bar and beverage cart were par for the course, if for no other reason than common sense suggests it was so.
[21] The parties seem to agree that the season runs for approximately 27 weeks. I find therefore that the applicant is entitled to the difference between $841( being the total of the salary and tips she might expect to earn per week for full time work over the season) less the $423 received under the SEEB program for a total of $11,286 representing her lost wages for the period.
[22] I find that the respondents’ practical responsibility ends with the conclusion of the SEEB grant. I find in the circumstances of this case that the respondents’ responsibility should not be open ended and ultimately only terminated by the fortuitous, or not, timing of the hearing. I find that, while the respondents violated the Code, these are not circumstances where the consequence should be an ongoing liability. I find that the conclusion of the SEEB grant is the appropriate point to terminate that liability.
[23] The consequence of this conclusion is that the applicant is entitled to a further 4 weeks of wage loss from the beginning of that season to May 13 2008 the ending of the SEEB grant. Based on the same calculations as for the 2007 season there being no indication of a dramatic change in what an employee working at the course could have earned I find that this amounts to a further $1672.
[24] The applicant seeks her business losses incurred in the two unsuccessful business start ups while the applicant participated in the SEEB program. I have found that this program was an attempt to mitigate her losses with a substantial benefit to the respondents. On the other hand it was the applicant’s choice to mitigate in the manner that she did. I am not satisfied that it would be appropriate to make the respondent liable for the entire consequence of that decision. I find that the applicant is entitled to be compensated for half of her losses associated with the unsuccessful start-up of Design Essentials for the tax year 2007 - being one-half $8116 or $4058. The other business was begun in early 2008 and while it appears that there were some initial losses there also appears to have been some profit. In any case I am not persuaded that the applicant is entitled to be compensated for this loss given the limited evidence and my conclusion that the respondents’ responsibility for the applicant is not unending and should conclude with the end of the SEEB grant.
[25] The applicant seeks as well compensation for lost employment insurance benefits. In light of my conclusions above I find there is no basis for such a claim in this case.
[26] The applicant also seeks $10,000 damages for non-pecuniary losses.
[27] In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) the court held that tribunals should consider the following 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, it has also been held that it is appropriate to consider the surrounding circumstances and incorporate an objective component to the quantification of monetary compensation: see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.
[28] I find that a substantial award is warranted in this case. The applicant lost her job suddenly and quite unexpectedly. As noted above, not only did she lose her employment she was required to leave her home and was de facto physically separated from her husband. These are aggravating factors. On the other hand the applicant had not been employed by the respondents for a great length of time. In all of the circumstances I find that the applicant is entitled to an award of $10,000 inclusive of interest as compensation for her non-pecuniary losses.
[29] The applicant is also entitled to an order for pre-judgment interest on the award of lost wages and business losses in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, (the “CJA”). Pre-judgment interest on the lost wages portion of this Order will run from June 30, 2007 roughly the mid-point in the material period. Post-judgment interest on the award is payable, pursuant to section 129 of the CJA 30 days subsequent to the date of this Order.
[30] Finally the applicant submits that the respondents ought to be jointly and severally liable. The respondents object. Mr. Cvik was the final arbiter in this family owned and operated business – he is the business as the events surrounding the termination of the applicant made clear. He made the decision to terminate the applicant. I see no reason why he ought not to be jointly and severally liable with the corporate respondent.
[31] The Tribunal makes the following Orders:
The respondents are jointly and severally liable to pay $10,000 to the applicant for violation of her inherent right to be free from discrimination, and for injury to her, self-esteem dignity, feelings and self-respect.
The respondents are jointly and severally liable to pay the applicant, subject to deductions required by law for lost wages from September 26 to November 12, 2006: $ 2,880; from April to November 2007: $11,286; and, from April to May 13, 2008: $1,672. These amounts total $15,838.
The respondents shall pay the applicant $4,058 as partial compensation for business losses incurred in mitigating her losses.
The respondents shall pay the applicant pre-judgment interest on the amounts set out in subparagraph 2 and 3, from June 30, 2007.
The respondents are liable to pay the applicant post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Decision.
Dated at Toronto, this 13^th^ day of April, 2010.
“Signed By”
David Muir
Vice-chair```