HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Heather Knibbs
Applicant
-and-
Brant Artillery Gunners Club Incorporated, William Bourne and Elaine Bourne
Respondents
A N D B E T W E E N:
Stephanie Long
Applicant
-and-
Brant Artillery Gunners Club Incorporated, William Bourne and Elaine Bourne
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Knibbs v. Brant Artillery Gunners Club
appearances BY
Heather Knibbs and ) Sharan Basran, Counsel Stephanie Long, Applicants )
Brant Artillery Gunners Club ) William Bourne, Elaine Bourne, Incorporated, William Bourne ) Ray Paine and Jim Calder, and Elaine Bourne, Respondents ) Representatives )
ORAL AND WRITTEN SUBMISSIONS BY
Brant Artillery Gunners Club ) Michael White, Counsel Incorporated, Respondent )
INTRODUCTION
1The applicant, Heather Knibbs, who was a bartender with the Brant Artillery Gunners Club (the “Club”), filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 10, 2008, which alleged that between July and October 2008 the respondents harassed and discriminated against her because of her disability and subjected her to reprisal with respect to employment.
2Specifically, she alleged that, while she was on a medical leave, the respondents demoted her from full-time to part-time status, publicized confidential medical information about her, and laid her off. She also alleged that, after her legal counsel informed the respondents that they had violated her Code rights, the respondents retaliated against her by falsely accusing her of misconduct, including theft of money.
3The respondents filed a Response on December 16, 2008, which denied the allegations of harassment, discrimination and reprisal.
4Specifically, the respondents stated that they reduced Ms. Knibbs’s employment status from full-time to part-time based on operational needs, only posted publicly known medical information about her, and laid her off temporarily, not permanently. They also stated that she engaged in unacceptable conduct in the workplace, including possible theft of money.
5The applicant, Stephanie Long, who is Ms. Knibbs’s second cousin and was also a bartender with the Club, filed an Application under s. 34 of the Code on May 7, 2009, which alleged that between October 2008 and February 2009 the respondents discriminated against her with respect to employment because of her disability, sex, and association with a person identified by a Code ground.
6Specifically, she alleged that, after she took a medical leave of absence and became pregnant, the respondents prohibited her from performing her regular duties and reduced her work hours. She also alleged that, because of her association with Ms. Knibbs, they falsely accused her of stealing money and suspended her.
7The respondents filed a Response on June 8, 2009, which denied the allegations of discrimination.
8Specifically, the respondents stated that they assigned Ms. Long work hours based on health and safety concerns and operational needs. They also stated that they suspended her because they suspected that she, with the assistance of Ms. Knibbs, had stolen money from the Club.
DECISION
9Both Applications are upheld. I have decided that the respondents discriminated against Ms. Knibbs because of her disability and subjected her to reprisal with respect to employment. I have also decided that the respondents discriminated against Ms. Long with respect to employment because of her disability, sex, and association with a person identified by a Code ground.
BACKGROUND
10The Brant Artillery Gunners Club is a non-profit, war veterans’ organization in Brantford, which provides social, recreational and charitable activities for its members.
11The Club is managed by its Officers (President, 1st Vice President, 2nd Vice President, Secretary, Treasurer, and Sergeant at Arms) and Committee Chairpersons, who are elected by the membership. The Officers are known collectively as the Executive.
12William Bourne was the Treasurer and the Bar Committee Chairperson of the Club when the alleged incidents occurred. Elaine Bourne was the Secretary and the Manager of Nevada (an internal lottery) of the Club when the alleged incidents occurred. They are both retired teachers.
13The Tribunal issued an Interim Decision, 2009 HRTO 1419, which ordered that the two Applications be consolidated and heard together; that two Officers of the Club, Linda Conrad and Claude Alain, be removed as individual respondents to Ms. Knibbs’s Application; and that Ms. Long’s Application be amended to include the ground of reprisal. Notwithstanding the amendment, Ms. Long did not pursue the allegation of reprisal at the hearing.
14During the hearing, the Tribunal also ordered that Ray Paine and Jim Calder, who were the consecutive Presidents of the Club when the alleged incidents occurred, be removed as individual respondents to the Applications.
15The hearing of the Application took place over eight days. I heard the oral testimony of 10 witnesses: the applicants, the individual respondents, Ms. Conrod, Mr. Paine, Mr. Calder, two members of the Club, and Ms. Knibbs’s doctor.
16I also admitted into evidence a number of documents that were tendered by the parties, including the Club’s by-laws, rules and regulations, minutes of meetings, scheduling records, financial records, payroll records, Records of Employment, correspondence exchanged between the parties, medical records, and police reports.
PRELIMINARY ISSUE
17The parties completed presenting their evidence on the seventh hearing day. Closing arguments and submissions were scheduled to be heard on the eighth hearing day. At the beginning of that day, Michael White appeared and identified himself as recently retained legal counsel for the newly elected Officers of the Club. He requested that he be allowed to make oral submissions.
18I allowed him to make oral submissions in which, among other things, he requested an adjournment of the hearing. I denied his request for an adjournment, but directed him to provide written submissions to fully address the issues that he raised within two weeks. The other parties also provided written submissions in response.
19Mr. White submitted that the Tribunal has no jurisdiction to make findings against the Club because there was a lack of procedural fairness arising from the fact the Club was represented during the hearing by laypersons, who were acting in a conflict of interest.
20Specifically, he stated that the Tribunal’s Policy on Representation requires that parties be represented by a lawyer or paralegal, but the Club was represented by Mr. and Mrs. Bourne, who are laypersons without legal training.
21He also stated that Mr. and Mrs. Bourne were in a conflict of interest in representing the Club because they were alleged to be the main perpetrators of the acts complained of, and therefore had a motive to share liability with the Club, and little motive to protect the interests of the Club.
22He further stated that the Club had no opportunity to provide defences that pertain to its vicarious liability as distinct from the liability of Mr. and Mrs. Bourne.
23I disagree with Mr. White’s submissions. The Tribunal’s Policy on Representation and Rule 1.14 of its Rules of Procedure both state that parties may be represented by a lawyer or a paralegal, or be self-represented. As a matter of practice, it is not uncommon at Tribunal hearings for an organization respondent to be represented by an Officer, who may also named as an individual respondent.
24The Tribunal’s Notice of Hearing also set out the Tribunal’s Rules on disclosure of documents and witnesses, and non-compliance with the Rules, and provided the web link to the Tribunal’s Rules, Guides and Practice Directions. The Tribunal’s website has a number of guides and other documents to assist unrepresented parties, including the Respondent’s Guide and the Plain Language Guide.
25Moreover, at the outset of the hearing, because the respondents were self-represented, I spent a fair amount of time explaining the hearing process in plain language. I also informed the parties that, because the applicants were represented by legal counsel and the respondents were self-represented, I would extend the respondents considerable leeway in presenting their case. I specifically informed the respondents that, although I could not provide legal advice to them, I would provide them with information on the process, and answer their questions at any time during the hearing.
26During the hearing, in order to ensure that the respondents had a full and fair opportunity to present their case, I intervened several times to explain the process to them, including informing them what kinds of questions they should be asking witnesses, and what type of evidence they should consider presenting. I also questioned witnesses when I felt that the parties had not asked them relevant questions.
27Furthermore, in the respondents’ Responses to the Applications and correspondence to the Tribunal, Mr. Bourne indicated that he was acting on behalf of the Club, but for most of the hearing, Mr. Bourne, Mrs. Bourne, Mr. Paine, and Mr. Calder acted as a team in representing the Club. Messrs Paine and Calder, who presided over the Club when the alleged incidents occurred, actively participated in the hearing, and it was clear that they were not only defending themselves, but also the Club.
28When the respondents presented their evidence, it appeared that Messrs Paine and Calder were troubled by some of the conduct of Mr. and Mrs. Bourne, and they did not show up for closing arguments on the final hearing day when Mr. White appeared. That said, Mr. White did not explain in any detail, and I do not see, why the Club should not be vicariously liable for the conduct for Mr. and Mrs. Bourne. During his oral submissions, he indicated that his arguments were limited by the fact that he had not heard any evidence, and he proposed that the hearing start again from the beginning. I disagree. Even though Mr. White did not hear the evidence, he could have consulted with Messrs Paine and Calder, who did, in order to make more detailed submissions on this issue.
EVIDENCE
29The Club had two bars: one downstairs and one upstairs. The downstairs bar was the main bar for members and their guests, and was open daily. The upstairs bar was part of an auditorium, and was only open for special events, such as wedding receptions.
30The Club hired Ms. Knibbs as a part-time bartender in 2001, and she was promoted to full-time in 2006. Her full-time duties included bartending, counting inventory, ordering products, and scheduling shifts. Her employment contract guaranteed her at least 40 hours per week. She was the only full-time bartender at the Club.
31The Club also had part-time bartenders, whose duties were limited to bartending. Ms. Long became a part-time bartender in 2007. She also worked part-time as a support worker at a care giving centre.
32Ms. Knibbs assigned hours on the basis of seniority, and had priority in the allocation of shifts. She assigned full-time hours to herself first, and then assigned the remaining hours to part-time bartenders. Each shift only had one bartender.
33In his role as Treasurer and Bar Committee Chairperson, Mr. Bourne was the direct supervisor of the bartenders. His duties also included collecting time cards, issuing paycheques, dealing with leave of absence requests, and disciplining employees. In a 2007 memo that he sent to staff, he also stated that any employee concerns should only be addressed to him.
34The Club ran two internal lotteries: Nevada and 649. Nevada tickets were break-open, instant win tickets that could be purchased from a machine. Each bartender had a PIN number to open the machine, and was responsible for keeping a tally. At the end of a shift, the bartender would place the cash received for the tickets, the winning tickets, and the tally in a plastic bag. The plastic bag would be placed in a desk drawer in the office, where it would later be checked by Mrs. Bourne.
35The 649 lottery was less formal. It was a game that involved selecting and matching numbers, and the cash and tally were kept in the cash register of the downstairs bar.
36Between 2001 and 2008, Mr. and Mrs. Bourne filed numerous reports with the police about the theft of money, Nevada tickets and alcohol from the Club. They named several employees as suspects, but never named Ms. Knibbs.
37In 2006, the Club had the Nevada machine serviced, and obtained data on the PIN usage of each bartender. The Service Report indicated that Ms. Knibbs’s PIN had been used considerably more than any other PIN. Ms. Knibbs testified that her PIN use was higher because her PIN was shared with other bartenders. Ms. Conrod and Ms. Long both testified that they and other bartenders used Ms. Knibbs’s PIN when they worked at the bar. Mrs. Bourne testified that she was not concerned by Ms. Knibbs’s PIN usage at that time.
38In 2007, Mrs. Bourne discovered that 2005 Nevada tickets were missing. She identified three employees as suspects: W.B., B.W. and C.M. She testified that C.M. was generally suspected of stealing large amounts of money from the Club, and that W.B. and B.W. were suspects because they had keys to open the machine. She stated that she specifically suspected that B.W. had taken tickets out of the machine, given them to his wife, and his wife then cashed them in. She stated she did not suspect that Ms. Knibbs had taken the tickets.
39In cross-examination, Mr. and Mrs. Bourne admitted that Ms. Knibbs had good work performance, and they did not believe at that time that she was responsible for any of the thefts. Mr. Paine also testified that Ms. Knibbs performed “very well” in her job, and he never suspected that she stole anything.
40In recent years, because of factory closings and no smoking laws, the Club experienced a loss in revenue. In 2007, because of financial problems, the Executive of the Club had discussions about cutting expenses. The Minutes from a November 21, 2007 Executive meeting, which proposed reducing the number of hours that the bar was open, stated: “Heather gets 40 hours and the others split the rest of the time.” The Minutes indicate that a resolution was passed to this effect.
41Mr. and Mrs. Bourne and Ms. Conrod all testified that the Club continued to experience economic difficulties in 2008. Mr. Bourne stated that, because of the poor economy in Brantford, many members were unemployed and did not have disposable income to spend at the Club.
42Ms. Knibbs admitted that she knew about the Club’s financial difficulties, and was aware that her assigned hours may be reduced, but was assured by Ms. Conrod that she would retain 40 hours per week. The Club’s payroll records indicate that between January and June 2008, Ms. Knibbs regularly worked between 40 and 50 hours per week, and sometimes more than 50 hours per week.
43In May 2008, Ms. Knibbs’s father passed away. Following his death, Ms. Knibbs began feeling depressed, her diabetes worsened, and she became testy with co-workers. In late June 2008, she yelled and swore at Ms. Long in the Club, which resulted in Ms. Long filing a written complaint with the Club’s Executive.
44In May and June 2008, Mrs. Bourne discovered that money was missing from the Club’s Nevada and 649 lotteries. She did not report the missing money to the police, and admitted that at that time she did not believe that Ms. Knibbs had stolen the money.
45In mid-July 2008, Ms. Knibbs began a medical leave on the recommendation of her doctor. She informed Mr. Bourne that she was taking the leave because of problems with depression, diabetes and cholesterol resulting from the stress of her father’s death.
46Ms. Long testified that her assigned hours increased significantly at this time because she and another part-time bartender took over most of Ms. Knibbs’s shifts. The respondents’ time cards and payroll records corroborate her testimony.
47On July 17, 2008, Mr. Bourne issued a Record of Employment (“ROE”), which indicated that Ms. Knibbs was off work because of “illness”. Ms. Knibbs used the ROE to apply for Employment Insurance (“EI”) Sickness Benefits.
48On July 24, 2008, Mr. Bourne sent Ms. Knibbs a letter, which stated that the Club could not guarantee her full-time hours after September 2, and recommended that she collect “unemployment benefits”. In response to the letter, Ms. Knibbs called Mr. Bourne for clarification. He told her that the Club would only be able to assign her 20 hours per week, and could not even guarantee that.
49The letter also stated:
We have been told by our insurance company that before you return to work you must have a doctor’s certificate indicating that you have no symptoms of depression and that your diabetes and cholesterol problems are fully under control. This is to ensure that our liability insurance and our insurance on our employees will not be compromised. [Emphasis added]
50Mr. Bourne testified that the insurance company was very clear about this matter, but the respondents did not disclose their insurance policy or any other document from the insurance company that indicated that such a doctor’s certificate was required.
51In late July 2008, Ms. Knibbs submitted a doctor’s note to the Club, which stated that she was unable to return to work for medical reasons.
52On August 8, 2008, Mr. Bourne sent Ms. Knibbs a letter and a new ROE, which indicated that she was off work because of a “shortage of work”. The letter stated that the Club issued the ROE so that she could get “unemployment benefits”, which would be more money than the Club could pay her.
53In cross-examination, when asked whether he was aware that EI benefits would only replace 55 percent of Ms. Knibbs’s average weekly earning, Mr. Bourne admitted that he had “no idea” what the percentage would be, and that he was only guessing when he informed her that she could get more money from EI than the Club could pay her.
54The letter also stated that a posting about her was put up in the Club. The posting, which was enclosed, stated:
Attention members;
It has come to the attention of the executive that some of you are curious as to the status of Heather Knibbs.
Currently, Heather is on a medical leave. She has been suffering from symptoms of depression as a result of the passing of her father. This was causing some problems with the staff.
She is also being evaluated for her condition of level 1 diabetes. Also, she is being evaluated for a high cholesterol count.
She has to know whether she needs to take injected insulin to control her problem. She also has to have her cholesterol under control.
Our insurance company will not cover any employee who does not have complete medical clearance to work. Because of the nature of work here, it is possible she would be alone here. If she has a problem while she is alone and something serious happens, we would be liable and our insurance would not pay.
Heather is not terminated and when she comes back to work, she will be a part-time employee. It makes no sense now to guarantee anyone full time hours. Right now we can operate the club on 80 hours of labour…. [Emphasis added]
55The letter provided the following explanation for putting up the posting:
I was quite offended about a comment made here at the club that we were doing to you the same things we did to [C.M.]…. I have tried to be completely fair and I have had your back. That statement is completely unfair and if you must know, really pissed me off.
56C.M. was a former employee whom the Club had fired. Mr. and Mrs. Bourne suspected that she had stolen money from the Club, and she was one of the suspects in 2007 when Mrs. Bourne discovered that 2005 Nevada tickets were missing. C.M. subsequently sued the Club for wrongful dismissal.
57In his testimony, Mr. Bourne refused to identify who made the comment that offended him, but Mrs. Bourne testified that it was Ms. Knibbs’s family members.
58Mr. Bourne testified that he did not consider the information about Ms. Knibbs’s diabetes to be confidential because she had told other people about it. In cross-examination, however, he admitted that he did not know if she had told other people about her depression.
59Ms. Knibbs admitted that she told her family and friends about her diabetes, and her mother sometimes talked about it at the Club, but stated she did not consent to a public posting about her condition. She also stated that she was very private about the fact that she had depression. She testified that she felt sick to her stomach, personally invaded, in turmoil, humiliated, and embarrassed by the public display of private medical information about her. She also stated that immediately after finding out about the posting, her blood sugar levels shot up because of the stress, and she was nearly hospitalized.
60Mr. Bourne testified that he put up the posting on the bulletin board. In cross-examination, when asked what colour the bulletin board is, Mr. Bourne stated that he neither knew nor cared. When asked whether he was sure that he put up the posting, he stated: “I will say it was me.” When it was put to him that there were witnesses who saw Mrs. Bourne put it up, he stated: “If you say so.” In cross-examination, Mrs. Bourne confirmed that she, in fact, put up the posting.
61Linda Pellow and Rita Olmstead, who were members of the Club, testified that they attended the Club on August 13, 2008, and were appalled to see the posting. They stated there were at least 30 members in the Club at the time, and many of them were also appalled.
62Ms. Pellow also stated that she saw Ms. Long, who was working at the bar, go to the office and come back with a photocopy of the posting for a member who asked for one. Ms. Long testified that prior to her shift Mrs. Bourne told her that there were photocopies of the posting in the office, and directed her to provide a copy of the posting to any member who asked for one.
63Mrs. Bourne denied that she told Ms. Long to provide copies of the posting to members upon request. She admitted that she had left photocopies of the posting in the office, but stated that they were extra copies for the Executive, and were not supposed to be circulated to the membership.
64Ms. Pellow and Ms. Olmstead wrote a letter that opposed the posting of private medical information about Ms. Knibbs. The letter was signed by 47 people, and submitted to the Executive by Ms. Olmstead.
65Mr. Paine testified that Mr. and Mrs. Bourne did not consult with him about putting up the posting, and he was shocked when he found out about it. He stated that he could not understand why they had put it up because it was an invasion of Ms. Knibbs’s personal life. He stated that when he called Mr. Bourne to find out what was going on, he was assured that the situation had been taken care.
66On August 12, 2008, Ms. Knibbs delivered a letter to the Club, which directed Mr. Bourne not to post personal information about her. Mr. and Mrs. Bourne testified that they took down the posting when they received the letter. In cross-examination, Mr. Bourne admitted that he did not do anything else to remedy the situation, and did not contact Ms. Knibbs.
67Ms. Knibbs testified that over the next several weeks she called and left several messages for Mr. Bourne, because she wanted to clarify the status of her employment, but he never called her back. Mr. Bourne admitted that he received one message, and did not call her back.
68Ms. Knibbs also spoke with Mr. Paine. Mr. Paine testified that she told him that she had tried to contact Mr. Bourne, but was not getting a response. Mr. Paine then contacted Mr. Bourne, and Mr. Bourne assured him that he would call Ms. Knibbs. In cross-examination, Mr. Bourne admitted that he never called Ms. Knibbs, despite assuring Mr. Paine that he would do so.
69On September 4, 2008, Ms. Knibbs obtained a doctor’s note that stated that she was unable to work indefinitely. She sent the note to Mr. Bourne.
70On September 8, 2008, Ms. Knibbs’s legal counsel sent the Club a letter, which alleged that the Club had discriminated against Ms. Knibbs.
71On September 9, 2008, Mr. Bourne sent a response letter, which denied the allegation of discrimination. In the letter, he defended posting Ms. Knibbs’s medical information, and demoting her to part-time status, but admitted that he was mistaken if he said that she could not return to work until she had fully recovered from her illnesses. The letter also stated that if she decided to return to work, she would be welcome, but would only get part-time hours because the Club could only afford 60-65 staff hours per week.
72The payroll and time card records that the parties filed with the Tribunal are incomplete, but indicate that total staff hours dropped somewhat, but not dramatically, after Ms. Knibbs went on her medical leave. For the week ending June 14, 2008, which is shortly before Ms. Knibbs went on her leave, she worked 44 hours, and there was a total of 86.25 staff hours. From the time she went on her leave to the end of 2008, the total staff hours ranged from 62.5 to 103.65 hours per week, and averaged approximately 77 hours per week.
73The records also indicate that between mid-July and mid-October 2008 Ms. Long regularly worked more than 20 hours per week, and sometimes worked more than 30 hours per week. In cross-examination, when confronted with this fact, Mr. Bourne admitted that Ms. Knibbs had lost her priority in scheduling because she was not working. He stated that if she had come back to work, she may have regained her priority, and been offered more than 20 hours per week.
74Furthermore, the records indicate that three new part-time employees started working in the fall of 2008. In cross-examination, when confronted with this fact, Mr. Bourne stated that they were hired because the Club “needed people.”
75On September 22, 2008, Mr. Bourne sent a separate letter directly to Ms. Knibbs, which offered her 20 hours of part-time work. The letter also stated that all her non-bartending duties (ordering stock, inventory, and banking) had been taken over by the Executive with no charge to the Club. The letter also stated:
We must meet with you to address the five complaints lodged against you and the money missing from the Nevada. We would also like to talk about the money missing from the 649 game.
76Mr. Bourne testified that one of the complaints was the written complaint filed by Ms. Long in early July 2008. He stated that the others were oral complaints by Ms. Long and other employees that Ms. Knibbs was playing the Nevada lottery when she was working, and took all the best tips. The respondents did not name any of the other employees or call them as witnesses.
77In cross-examination, Mr. Bourne admitted that Ms. Knibbs was not a suspect when money went missing from the Nevada and 649 games earlier in the year, and no new information emerged after that. When asked to explain why he resurrected the issue, he stated that he did not know, and that it was “insignificant”.
78On September 24, 2008, Ms. Knibbs sent a response letter to Messrs Bourne and Paine, in which she agreed to attend a meeting. The letter was copied to the Canadian Corps Association, which is an umbrella group for veterans’ organizations. Mr. Bourne did not respond to her letter, and never set up a meeting.
79Mr. Paine testified that after he received the letter he called Mr. Bourne and told him to set up a meeting. Mr. and Mrs. Bourne, on the other hand, both testified that it was Mr. Paine’s responsibility to set up a meeting because he was the President. In cross-examination, however, Mr. Bourne admitted that in his role as Bar Committee Chairperson, he could have set up such a meeting.
80At the end of his testimony, Mr. Paine admitted that the lack of communication from the Bar Committee to Ms. Knibbs, which dragged on for months and left her status unresolved, may have amounted to discrimination on the basis of disability.
81Shortly after receiving Ms. Knibbs’s September 24 letter, Mrs. Bourne sent a letter to the Canadian Corps Association, which made the following comments about Ms. Knibbs:
I must warn you that she is not stable and has a history of being a liar to save herself. She also has a severe gambling problem so be prepared.
82Ms. Long testified that in early October 2008, Mr. Bourne and Ms. Conrod directed her not to speak with Ms. Knibbs. She stated that she was offended by their direction because Ms. Knibbs was a relative and a friend. Mr. Bourne admitted that he had a conversation of this nature with Ms. Long at a later date because Ms. Knibbs had filed an Application with this Tribunal, and Ms. Long was living with her.
83In early to mid October 2008, someone stole money from the Club. On October 14, 2008, the Bar Committee sent a letter to all staff, which informed them that the theft was an inside job, and they were therefore being assigned new alarm codes to enter the building, and were required to sign out keys at the beginning of a shift, and return them at the end of a shift.
84Although the Response to the Application stated that Ms. Long and another employee were suspected of the theft and the matter was reported to the police, in cross-examination, Mr. Bourne admitted that the other employee, who disappeared after the theft, was the main suspect, and the matter was never reported to the police. Ms. Conrod testified that two other employees were also suspects.
85Around the same time, the Bar Committee appointed Ms. Conrod to the position of bar manager, and assigned her both bartending and non-bartending duties, including scheduling, inventory, and ordering stock. Contrary to what Mr. Bourne stated in his September 22, 2008 letter to Ms. Knibbs, the Club paid Ms. Conrod to perform non-bartending duties.
86In October 2008, Mr. Bourne sent letters to Ms. Pellow and Ms. Olmstead, which stated that the petition that they had circulated was illegal, and that they would be disciplined by the Executive. The Executive took the position that their actions breached Article IX of the Club’s By-Laws, Rules and Regulations, which prohibits solicitation within the Club’s premises. Ms. Pellow testified that Article IX applies to selling wares, not circulating petitions.
87On October 13, 2008, Ms. Long injured her back at her other part-time job, and filed a Workplace Safety and Insurance Board (“WSIB”) claim. She was unable to return to work until October 20, 2008. After that date, she returned to her other job, where her employer provided her with light duties. Specifically, she served food to clients, but was not assigned any heavy lifting. She also met with Mr. Bourne, and requested similar light duties, but he refused to allow her to return to work.
88In cross-examination, Mr. Bourne admitted that Ms. Long could have served alcohol, operated the cash register, and done inventory. He stated that he refused to accommodate her request because she was unable to re-stock, move kegs, or operate the lift. When asked whether his position was that she had to do the whole job or nothing at all, Mr. Bourne responded in the affirmative. He also stated that an employer is not required to accommodate a part-time position.
89The respondents did not present any evidence that hiring someone to assist Ms. Long with her heavy duties would have caused undue hardship to the Club. Mr. Bourne’s Treasurer’s report to the Executive in April 2009 indicated that the Club made a profit in 2008. In this testimony, Mr. Bourne admitted that the Club made a profit, but stated that it arose in part because of the reduction of paid staff hours.
90Ms. Long fully recovered from her injury and was able to return to work without restrictions in mid-November 2008. While she was off, she found out that she was pregnant. She told Ms. Conrod about her pregnancy, who, in turn, told Mr. and Mrs. Bourne.
91Shortly thereafter, Mr. Bourne told Ms. Long that he would not allow her to work at night because it was not safe for a pregnant woman to work alone at night. As a result, her work hours were cut significantly. Mr. Bourne testified that he was merely exercising due diligence.
92On or about November 25, 2008, Ms. Long submitted a doctor’s note to Mr. Bourne, which stated: “Stephanie is pregnant and is due June 19/09. She is able to work nights.” After she submitted this note, she was scheduled for occasional night shifts, but her hours remained low. Mr. Bourne blamed Ms. Conrod, who he stated was responsible for assigning hours. However, Mrs. Bourne testified that she was concerned that if Ms. Long had to lift anything she may have miscarried.
93Around this time, Ms. Long experienced a number of difficulties with her pregnancy and in her personal life. Specifically, her doctor informed her that her baby may have spina bifida, the father of her baby refused to take responsibility for the pregnancy, and she had to leave her home because of difficulties with her family. In December 2008, when she had nowhere to live, Ms. Knibbs allowed her to stay at her house for one week.
94Ms. Long testified that she told Mrs. Bourne about the difficulties she was having, and the fact that she was staying with Ms. Knibbs. She stated that Mrs. Bourne told her that she should not be staying with Ms. Knibbs because she had filed a human rights Application against the Club.
95In her testimony, Mrs. Bourne did not address whether or not she told Ms. Long not to stay with Ms. Knibbs, but, in cross-examination, she admitted that she knew about the difficult circumstances that Ms. Long was in, including the fact that she was staying with Ms. Knibbs.
96In early January 2009, Mrs. Bourne discovered that two Nevada tickets from the missing 2005 batch were received and punched at the bar during Ms. Long’s shift. Ms. Long admitted that she had received and punched the tickets, but stated that she did not realize that they were old tickets, and could not remember who brought them to the bar. The pay out was $150.
97The Executive then held a meeting to discuss the matter. Mr. Calder testified that Mrs. Bourne, who was the Manager of Nevada, told the Executive that the municipal compliance officer for the Nevada lottery had advised the Club to suspend Ms. Long and report the matter to the police. He stated that the Executive decided to follow that advice.
98On January 25, 2009, the Executive sent Ms. Long a letter, which stated that she was suspended from work pending the results of a police investigation.
99On January 27, 2009, Ms. Knibbs delivered her Reply to the respondents’ Response to her Application by e-mail and courier.
100Ms. Long testified that she went to the police station on February 2, 2009, to try to clear her name, but was told that no complaint had been filed about her. A police report indicates that on the same day, an officer went to the Club to receive the complaint from Mrs. Bourne.
101Around the same time, Mrs. Bourne submitted a letter to the police, which explained what had happened with the two tickets, and then stated:
This stems from the fact [Ms. Long] was living at her cousin’s home, Heather Knibbs, who was working at the Gunners club as a part-time bartender during the 2005 license M442995. We the executive feel that Stephanie received the two tickets from Heather Knibbs who had access to those tickets on that license.
(…)
Heather Knibbs has a serious gambling problem where she has lost her home twice and could not pay her heating bill where the heat was turned off for 3 months.
(…)
Stephanie Long is a follower and could be easily swayed as she has financial problems as well as a drug habit.
(…)
[Heather Knibbs] currently has a protest against us with the Human Rights Commission…. Please note also she filed a human rights complaint against the Brantford Casino when she was employed there. She has been found to be a very good liar….
102Ms. Knibbs and Ms. Long denied that any of Mrs. Bourne’s allegations were true, with the exception of the fact that Ms. Knibbs had filed a human rights Application with the Tribunal against the Club.
103In cross-examination, Mrs. Bourne admitted that she did not have any direct evidence that Ms. Knibbs had a gambling problem, lost her house twice, could not pay her heating bills, or that she had filed a human rights complaint against the Brantford Casino. She stated that she was simply repeating what other people had told her. She stated that she believed that Ms. Long had a drug habit because she sometimes smelled of marijuana.
104The police officer who received Mrs. Bourne’s complaint wrote a report, which referred back to a 2007 report on the missing 2005 Nevada tickets:
In the original report of incident number 6436-07, several suspects were named, however, during that report neither Stephanie Long nor Heather Knibbs were specifically named.
105Although Mrs. Bourne initially testified that she suspected that Ms. Knibbs had been involved because of her high PIN usage in 2006, she later stated that she did not believe that Ms. Knibbs and Ms. Long had done anything wrong. She stated that she believed that someone else had taken the 2005 Nevada tickets, and cashed them in in January 2009. She also stated that, with respect to handling money, Ms. Knibbs was “honest to the penny.” She stated that the only reason that she reported Ms. Long and Ms. Knibbs to the police was because the municipal compliance officer for the Nevada lottery had told the Club to suspend Ms. Long and report the matter to the police. The respondents did not call the compliance officer as a witness.
106In cross-examination, when asked to explain why she had made such horrible accusations against Ms. Knibbs, she stated that it was because she and Mr. Bourne were being “defamed”. When she was specifically asked why she told the police that Ms. Knibbs had filed a human rights Application against her and the Club, she stated that she wanted the police to look into it.
107Mr. Calder testified that Mrs. Bourne told the Executive that Ms. Long and Ms. Knibbs were living together, but never mentioned that they were cousins, and did not make any of the personal remarks about them that she made in her letter to the police. He also stated that, in retrospect, the Executive probably should have reported the matter to the police, but not suspended Ms. Long.
108A police report indicates that on February 26, 2009, an officer attended at Ms. Long’s residence, and left two cards for her with his name, contact details, and the incident number. Ms. Long testified that she never received the cards.
109The police’s investigation of Mrs. Bourne’s complaint appears to have remained dormant until October 2009, when they were contacted by Ms. Long, who wanted to clear her name. A police officer interviewed Ms. Long and Ms. Knibbs, and wrote a report, which stated:
At this time, I don’t believe Stephanie Long did anything criminal in regards to this incident and she is not a suspect in this matter. Heather Knibbs was also attending and she did make a statement she had no involvement in this incident.
(…)
At this time, this report is marked closed, as well as the investigation.
110There is no evidence that anyone from the Club contacted the police about this matter between February and October 2009.
111Mr. Bourne testified that it was the police’s fault that Ms. Long was unable to return to the Club because they failed to conduct their investigation in a timely manner. He stated that “service” is not one of the words he would use to describe the Brantford Police Service.
112Neither Ms. Knibbs nor Ms. Long ever returned to work at the Club. Ms. Knibbs testified that the respondents’ discriminatory and punitive acts, specifically, demoting her from full-time to part-time status, telling her that she could not return to work until she was fully recovered and symptom-free, publicizing confidential medical information about her, laying her off, falsely accusing her of misconduct and theft, failing to respond to her telephone calls and request to set up a meeting, and submitting a report to the police with false allegations about her, deeply affected her.
113She stated that her health was steadily improving in July 2008, but when the above incidents occurred in August and September, her depression worsened significantly. She stated that the posting and the allegation of theft, in particular, made her feel physically ill, and devastated her emotionally. She stated she felt unable to return to work because she did not want to have to explain to members who saw the posting why she had been diagnosed with depression.
114Ms. Knibbs also stated that in 2009 someone anonymously sent Mrs. Bourne’s report to the police to her, and when she read it, she felt extreme fear.
115She further stated that, because she had a reduced income, her bills fell behind, she had calls from creditors, and she could not afford to buy test strips to measure her blood glucose level and manage her diabetes.
116Dr. Keith Auchinachie, who is Ms. Knibbs’s family doctor, testified that her diabetes and depression were improving in July 2008, but in August and September, her mental health went into sharp decline, and she was totally disabled until November 2008 because of depression. He opined that her father’s death was the main cause of her depression in July, but from August onwards, the main cause was her interactions with her employer.
117Dr. Auchinachie also stated that he advised her not to return to her position with the Club because his opinion was that a return would worsen her mental health. He stated that he was particularly concerned that the Club’s posting of confidential medical information about her could never be sufficiently repaired.
118Ms. Knibbs testified that in November 2008, she started looking for a new job, and applied for eight positions between November and January. She stated that in January 2009, she was interviewed for one of the positions, and was subsequently offered a job, which started in early April 2009.
119Ms. Long testified that the respondents’ discriminatory acts, specifically, failing to accommodate her request for light duties, refusing to allow her to work at night, reducing her work hours, suspending her, and submitting a report to the police with false allegations about her, caused her great stress and eliminated any remaining joy her in her life.
120She stated that, because of her difficult life circumstances at the time, particularly the fact that she was going to be a single mother, she needed to work as many hours as possible. She stated that, because of the respondents’ actions, she was worried that she would not have enough money for essential items such as diapers, a crib, baby formula, and a change table, and that her EI maternity/parental benefits would be reduced.
121As a result of her concerns, she stated that she started working as many hours as possible at her other job, and worked up to and including the day she gave birth.
ANALYSIS
Applicable Law and Issues
Human Rights Code
122The Application relates to sections 5, 8, 9, 10, 12 and 17 of the Code, which provide:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex… or disability.
(…)
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) 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,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;
(…)
(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
(…)
- A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
(…)
- (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Issues
123In this case, the main issues that I am required to determine are as follows:
(1) Did the respondents discriminate against Ms. Knibbs because of her disability?
(2) Did the respondents subject Ms. Knibbs to a threat of reprisal and an actual reprisal because she claimed and enforced her rights under the Code, and started a human rights proceeding?
(3) Did the respondents discriminate against Ms. Long because of her disability?
(4) Did the respondents discriminate against Ms. Long because of her sex?
(5) Did the respondents discriminate against Ms. Long because of her relationship, association and dealings with a person identified by a prohibited ground of discrimination?
Onus
124The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test (F.H. v. McDougall, 2008 SCC 53, at para. 46).
125The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent (Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536). If the applicant establishes a prima facie case of discrimination, the respondent must establish defences and exemptions on a balance of probabilities. Although an evidentiary burden to rebut discrimination may shift to the responding party, the onus of proving discrimination remains on the applicant throughout (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 112 and 119).
Credibility
126A great deal of the evidence related to the key issues is not in dispute. Where there is conflicting evidence between the parties, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]
127Accordingly, I have not considered each witness’s evidence in isolation, but rather, in the context of the totality of the evidence (F.H., supra, at para. 58).
128I found Ms. Knibbs and Ms. Long’s testimony to be credible. Their testimony was forthright, internally consistent, consistent with the documentary evidence, and consistent with the testimony of non-party witnesses. Overall, I found their evidence to be in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.
129I found the testimony of the non-party witnesses, Ms. Pellow, Ms. Olmstead and Dr. Auchinachie, to be credible for similar reasons.
130Where there was conflicting testimony between the parties, I did not find Mr. and Mrs. Bourne’s testimony to be credible. I noticed that whenever they were confronted with evidence that was potentially damaging to their case, they became evasive, changed their testimony, or blamed someone else. Their list of scapegoats was long: the insurance company, Mr. Paine, Ms. Conrod, the municipal compliance officer, and the police. Furthermore, it was obvious that Mr. Bourne was being untruthful when he testified that he, not his wife, put up the posting about Ms. Knibbs’ medical conditions. His willingness to lie tainted his entire testimony.
131I found the testimony of the other Officers of the Club, Ms. Conrod, Mr. Paine and Mr. Calder, to be generally credible, but it was obvious, particularly in the case of Messrs. Paine and Calder, that they were struggling to defend their own actions and the Executive’s decisions without endorsing the conduct of Mr. and Mrs. Bourne.
Did the respondents discriminate against Ms. Knibbs because of her disability?
132The first issue to consider is whether Ms. Knibbs had a disability. I find that she did. It is undisputed that she had diabetes and depression, which both fall within the Code definition of disability.
133The next issue to consider is whether the respondents’ decision to demote Ms. Knibbs from full-time to part-time status was discriminatory. I find that the decision was directly related to Ms. Knibbs’s disability-related leave, and was therefore discriminatory.
134It is undisputed that, prior to her leave, Ms. Knibbs’s employment contract guaranteed her at least 40 hours per week, she had priority in scheduling, the Executive passed a resolution that proposed reducing the number of hours that the bar was open but guaranteed her 40 hours per week, and she regularly worked more than 40 hour per week.
135It is also undisputed that, shortly after Ms. Knibbs went on a disability-related leave, the respondents demoted her from full-time to part-time status.
136In my view, the respondents failed to provide a credible non-discriminatory explanation for the demotion. I accept their evidence that there was a bona fide reason to reduce the total staff hours because of the Club’s financial situation, but the fact that the Club’s payroll and time card records show that total staff hours did not drop dramatically, and the Club hired three new part-time staff in the fall, did not explain the drastic change in Ms. Knibbs’s status.
137Furthermore, in my view, Mr. Bourne’s testimony that Ms. Knibbs had lost her priority in scheduling because she was not working was essentially an admission that her status changed because she was on a disability-related leave.
138The next issue to consider is whether the respondents’ requirement that Ms. Knibbs provide a doctor’s certificate that indicated that she had no symptoms of depression and her diabetes was fully under control before she would be allowed to return to work was discriminatory. I find that it was.
139An employer cannot refuse to allow an employee with disability-related needs to return to the workplace without first attempting to accommodate the employee’s needs up to the point of undue hardship. The accommodation process has been described as having both a procedural and a substantive component. The Ontario Divisional Court in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605, described these components as follows at paras. 106, 112, and 117:
The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.
The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee’s disability short of undue hardship. “Accommodation” refers to what is required in the circumstances to avoid discrimination. The factors causing “undue hardship” will depend on the particular circumstances of the every case. For example, undue hardship could arise due to excessive cost or safety concerns.
Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences “might” or “could” result if the claimant is accommodated.
140It is undisputed that, without giving any thought or consideration to the issue of accommodation, the respondents informed the applicant that she would be unable to return to work unless she was not ill or disabled in any way.
141The respondents simply took the position that they were following the direction of the Club’s insurance company. In my view, this explanation lacks credibility. I do not believe that an insurance company would give that kind of direction to a client, and I find it telling that the respondents failed to produce their insurance policy, or call a witness from the insurance company.
142Furthermore, Mr. Bourne later admitted that he was mistaken if he said that Ms. Knibbs could not return to work until she had fully recovered from her illnesses
143The next issue to consider is whether the respondents’ public posting of confidential medical information about Ms. Knibbs was discriminatory. I find that it was because it stigmatized her and poisoned her work environment.
144It is undisputed that the respondents put up a posting in a public area of the Club without Ms. Knibbs’s consent that notified the members that she had depression and diabetes; the posting was up for at least four days; a significant number of members saw and read the posting; and, while some of the members knew that Ms. Knibbs had diabetes, very few, if any, of them knew that she had depression. I accept her evidence the she felt sick to her stomach, personally invaded, in turmoil, humiliated, and embarrassed by the public display of private medical information about her.
145In view of the fact that Mr. and Mrs. Bourne wanted to inform the entire membership about Ms. Knibbs’s situation, I accept Ms. Long’s evidence that Mrs. Bourne also directed her to provide a copy of the posting to any member who asked for one. I cannot see any reason why Ms. Long would have provided photocopies to members unless Mrs. Bourne told her to do so.
146The respondents failed to provide a credible non-discriminatory explanation for the posting. They initially took the position that her medical information was not confidential because she had told other people about it, but Mr. Bourne eventually admitted that he did not know if she had told other people about her depression.
147Furthermore, although the respondents took down the posting after receiving Ms. Knibbs’s complaint about it, they did not take any other steps to repair or remedy the situation.
148The next issue to consider is whether the respondents’ decision to lay off Ms. Knibbs was discriminatory. I find that it was because the lay off would not have occurred if she was not on a disability-related leave.
149It is undisputed that the ROE that Mr. Bourne issued to Ms. Knibbs was essentially a lay off, and he then failed to return her phone message or follow Mr. Paine’s direction to call her to clarify the status of her employment.
150Mr. Bourne’s explanation that he issued the ROE so that Ms. Knibbs could collect “unemployment benefits” lacks credibility given his admission that he had “no idea” what percentage of her average weekly earning would be replaced by EI benefts.
Did the respondents subject Ms. Knibbs to a threat of reprisal and an actual reprisal because she claimed and enforced her rights under the Code, and started a human rights proceeding?
151In Noble v. York University, 2010 HRTO 878, the Tribunal set out the applicable principles on reprisal at paras. 30-31 and 33-34:
The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.” See: Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 4.
In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).
(…)
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
152The first issue to consider is whether the respondents’ demand to meet with Ms. Knibbs to address five alleged complaints lodged against her and money missing from the Nevada and 649 internal games was a threat of reprisal against her because she claimed and enforced her rights under the Code. I find that it was, given the timing of the demand and its lack of substance.
153It is undisputed that approximately two weeks after Ms. Knibbs’ legal counsel sent the Club a letter which alleged that the Club had discriminated against Ms. Knibbs, Mr. Bourne sent a letter directly to Ms. Knibbs that made the above demand.
154The respondents’ evidence about the five alleged complaints was vague and sketchy. Mr. Bourne did not clearly explain what each complaint was about, and did not name any of the employees (except for Ms. Long) who made the complaints, or call them as witnesses.
155Furthermore, Mr. Bourne admitted that Ms. Knibbs was not a suspect when money went missing from the Nevada and 649 games earlier in the year, he admitted that no new information emerged after that, and he was unable or unwilling to explain why he resurrected the issue.
156In my view, the respondents’ demand for a meeting was an intentional threat of retaliation because Ms. Knibbs had claimed and enforced her rights under the Code.
157At this juncture, I find that the cumulative effect of the respondents’ discriminatory actions and the threat of reprisal effectively ended Ms. Knibbs’s employment with the Club. In my view, the work environment and employment relationship were so poisoned by the respondents’ actions that Ms. Knibbs could not have returned to her position. On this point, I accept Dr. Auchinachie’s evidence that a return to her position at the Club would have worsened Ms. Knibbs’s mental health.
158The next issue to consider is whether Mrs. Bourne’s letter to the police in February 2009 was an act of reprisal against Ms. Knibbs because she started a human rights proceeding against the respondents. I find that it was because of its timing, its unsubstantiated allegations, and its direct reference to Ms. Knibbs’s human rights Application.
159It is undisputed that Mrs. Bourne delivered her letter to the police shortly after the respondents received Ms. Knibbs’s Reply to their Response. Mrs. Bourne also admitted that the allegations that she made against Ms. Knibbs were without substance and based on hearsay. Finally, the letter explicitly mentions the fact that Ms. Knibbs had filed a human rights Application against the respondents.
160In my view, Mrs. Bourne’s drafting and delivery of the letter was an intentional act of retaliation because Ms. Knibbs had started a human rights proceeding against the respondents.
Did the respondents discriminate against Ms. Long because of her disability?
161The first issue to consider is whether Ms. Long had a disability. I find that she did because she had back injury for which she filed a WSIB claim. This falls within the definition of disability under the Code.
162The next issue to consider is whether the respondents’ refusal to provide her with light duties was discriminatory. I find that it was because Mr. Bourne did not even attempt to accommodate her needs up to the point of undue hardship.
163Similar to the approach he took with Ms. Knibbs, Mr. Bourne took the position that Ms. Long had to do the whole job or nothing at all. He also stated that an employer is not required to accommodate a part-time position, which is erroneous.
164There is no evidence that Mr. Bourne gave any serious thought or consideration to the issue of accommodation, and the respondents did not provide any evidence that hiring someone for three to four weeks to assist Ms. Long with her heavy duties would have caused undue hardship to the Club
165Accordingly, I find that the respondents discriminated against Ms. Long because of her disability.
Did the respondents discriminate against Ms. Long because of her sex?
166The main issue to consider is whether the respondents’ decision not to let Ms. Long work at night and to cut her hours because she was pregnant was discriminatory. I find that it was because the evidence demonstrated that Mr. Bourne treated Ms. Long differently due to her pregnancy and relied on stereotypical views about the ability of pregnant women to work when he cut her hours.
167Mr. Bourne’s refusal to allow Ms. Long to work at night because she was pregnant was a form of direct discrimination. Mr. Bourne’s only defence was a bald assertion that he was exercising due diligence. Furthermore, even when Ms. Long provided Mr. Bourne with a doctor’s note that stated she was able to work at night, she still did not regain her pre-pregnancy hours.
168I do not believe that the respondents would have reduced Ms. Long’s hours if she was not pregnant. Accordingly, I find that they discriminated against her because of her sex.
Did the respondents discriminate against Ms. Long because of her relationship, association and dealings with a person identified by a prohibited ground of discrimination?
169The threshold issue to decide is whether this Tribunal has jurisdiction to consider whether the respondents discriminated against Ms. Long because of her relationship, association and dealings with Ms. Knibbs, who filed a human rights Application based on disability. Or to put it another way, is a person who filed a human rights application based on a Code ground the same as a person identified by a prohibited ground of discrimination?
170This Tribunal and its predecessor, the Ontario Board of Inquiry, have only considered and applied s. 12 of the Code in a small number of cases, and, as far as I am aware, never in the manner requested by Ms. Long in this case. See, for example, Giguere v. Popeye Restaurant, 2008 HRTO 2 (dismissal of an employee because her husband was HIV-positive), Barclay v. Royal Canadian Legion, Branch 12, 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486 (Ont. Bd. Inq.) (punishment of a member because she objected to racist comments about Black and Aboriginal people), and Jahn v. Johnstone (September 16, 1977), No. 82, Eberts (Ont. Bd. of Inquiry) (eviction of a tenant because of the race of the tenant’s dinner guest).
171In all these situations, the person whom the complainant had a relationship, an association, or dealings with was directly identified by a prohibited ground of discrimination, rather than the fact that he or she had filed a human rights complaint based on a Code ground.
172However, it is well-established that the Code is to receive a wide and liberal construction that advances its objectives. In University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, the Supreme Court of Canada stated:
In Ontario Human Rights Commission v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p. 547) that "[l]egislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary -- and it is for the courts to seek out its purpose and give it effect." This Court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, at p. 89, "must be so interpreted as to advance the broad policy considerations underlying it". These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which directs that "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."
This interpretive approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found.
173An overall reading of the Code shows that it has a broad purpose, to promote and protect human rights in Ontario, and to prevent and eliminate discrimination in services, goods and facilities, accommodation, contracts, employment, and vocational associations.
174Section 12 is an interpretive provision of the Code. It is obviously intended to catch situations where there is discrimination, but the victim’s circumstances do not fit squarely into the wording in Part I of the Code.
175In this context, my view is that a narrow reading of s. 12 would defeat the broad purpose of the Code.
176Turning to the issue to be decided, in my view, a person who files a human rights Application, and is, or is perceived to be, a person identified by a prohibited ground of discrimination, is, indirectly, a person identified by a prohibited ground of discrimination within the meaning of s. 12 of the Code.
177I therefore find that the Tribunal has jurisdiction to consider this matter. Ms. Long clearly had a relationship, an association and dealings with Ms. Knibbs through employment and family that the respondents were aware of. Furthermore, Ms. Knibbs was a person identified by a prohibited ground of discrimination because she filed a human rights Application based on disability, and was, in fact, a person with a disability.
178The next issue to consider is whether the respondents discriminated against Ms. Long because of her relationship, association and dealings with Ms. Knibbs when they suspended her in late January 2009, and Mrs. Bourne submitted a letter to the police about her in early February 2009. I find that they did because of the timing and sequence of the events, the unsubstantiated nature of Mrs. Bourne’s allegations, and the explicit references to the relationship between Ms. Long and Ms. Knibbs and Ms. Knibbs’s human rights Application in Mrs. Bourne’s letter to the police.
179I accept Ms. Long’s evidence that, after Ms. Knibbs filed a human rights Application with this Tribunal, the respondents directed her not to speak with Ms. Knibbs, and then, when she started living with Ms. Knibbs, not to live with her. Mr. Bourne admitted that he had a conversation of this nature with her, and her evidence fits with the contents of Mrs. Bourne’s letter to the police.
180Furthermore, it is undisputed that not long afterwards the respondents suspended Ms. Long, and Mrs. Bourne delivered her letter to the police. Mrs. Bourne ultimately admitted that the allegations that she made against Ms. Long were without substance. Moreover, the letter explicitly mentions the fact that Ms. Long and Ms. Knibbs were cousins, Ms. Long was living with Ms. Knibbs, and Ms. Knibbs had filed a human rights Application against the respondents.
181Accordingly, I find that by suspending Ms. Long and sending the police a letter with false allegations and incitements to criminally charge her, the respondents discriminated against Ms. Long because of her relationship, association and dealings with a person identified by a prohibited ground of discrimination.
182I also find that the cumulative effect of the respondents’ discriminatory actions, and the respondents’ failure to take any steps to resolve Ms. Long’s suspension, effectively ended her employment with the Club. In my view, the employment relationship was so poisoned by the respondents’ actions that Ms. Long could not have returned to her position.
LIABILITY
183Subsection 46.3(1) of the Code provides that for the purposes of the Code, with certain exceptions, any act or thing done or omitted to be done in the course of one’s employment by an officer, official, employee or agent of a corporation shall be deemed to be an act or thing done or omitted to be done by the corporation.
184However, since Mr. and Mrs. Bourne were directing minds of the Club, and were personally involved in the acts of discrimination and reprisal, I find that the respondents are jointly and severally liable for the above violations of the Code (Curling v. Torimoro [2000] O.H.R.B.I.D. No. 16, at para. 74; Reed v. Cattolica Investments Ltd. [1996] O.H.R.B.I.D. No. 7, at para. 89; and Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, at 92).
REMEDY
Applicable Law and Issues
185The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:
(1) 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.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
186Accordingly, the issues that I am required to determine are whether Ms. Knibbs and Ms. Long are entitled to monetary compensation or restitution, and whether the Tribunal should order the respondents to do anything further to promote compliance with the Code.
Monetary Compensation
Injury to Dignity, Feelings and Self-Respect
187Ms. Knibbs and Ms. Long each seek an award of monetary compensation for injury to dignity, feelings and self-respect. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Ontario Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate (ADGA Group Consultants Inc., supra, at para. 152).
188The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages (ADGA Group Consultants Inc., supra, at para. 153).
189In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
190I find that the respondents’ discriminatory treatment of Ms. Knibbs was serious. The respondents, despite being aware of Ms. Knibbs’s vulnerability because of the death of her father and her associated health problems, subjected her to a series of acts of discrimination based on her disability, a threat of reprisal, and an act of reprisal. These acts by the respondents exacerbated Ms. Knibbs’ disability and rendered her unable to work for several months, and incapable of returning to her job at the Club, where she had been employed for the past seven years.
191I find that the respondents’ reprisal, whereby an Officer of the Club intentionally tried to harm Ms. Knibbs by trumping up allegations to incite the police to investigate and charge her with criminal offences was particularly egregious. I accept Ms. Knibbs’s evidence that when she found out what Mrs. Bourne had done, she felt physically ill, emotionally devastated, and extreme fear.
192Recent decisions that have considered disability-related discrimination in the context of the termination of the applicant’s employment have awarded $45,000 (Lane v. ADGA Group Consultants Inc., 2007 HRTO 34), $35,000 (Krieger v. Toronto Police Services Board, 2010 HRTO 1361), $20,000 (Lopetegui v. 680247 Ontario, 2009 HRTO 1248), $15,000 (Mirashrafi v. Circuit Centre, 2010 HRTO 512), $15,000 (Vetricek v. 642518 Canada, 2010 HRTO 757), and $15,000 (Duliunas v. York-Med Systems, 2010 HRTO 1404).
193I find after considering Ms. Knibbs’s individual circumstances, including the impact of the discriminatory conduct on her already vulnerable mental and emotional state, the public humiliation that the respondents subjected her to through the public posting of her confidential medical information, the impact of falsely accusing her of misconduct and theft to the police, and the loss of her job, as well as similar cases, that $20,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect.
194I find that the respondents’ offensive treatment of Ms. Long was also serious. The respondents failed to accommodate her disability-related needs, which resulted in a loss of work hours. More seriously, knowing that Ms. Long was vulnerable as a soon-to-be single mother, the respondents cut her work hours because she was pregnant. To make matter worse, the respondents then suspended Ms. Long from her job and an Officer of the Club intentionally tried to harm her by trumping up allegations to incite the police to investigate and charge her with criminal offences. The further loss of work hours obviously caused her significant stress because of the impending birth of her baby and her future financial needs.
195I am not aware of any recent decisions that are the same or even similar to Ms. Long’s case, but recent decisions that have considered pregnancy-related discrimination in the context of termination of employment have awarded $15,000 (Maciel v. Fashion Coiffures, 2009 HRTO 1804), $10,000 (Guay v. 1481979 Ontario, 2010 HRTO 1563), $10,000 (Osvald v. Videocomm Technologies, 2010 HRTO 770), and $10,000 (Charbonneau v. Atelier Salon & Spa, 2010 HRTO 1736).
196I find that after considering Ms. Long’s individual circumstances, including the impact of the discrimination on her when she was in a vulnerable situation, the stress that she experienced as a result of losing work hours, and the loss of her job, as well as the cases cited above, that $13,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect.
Lost Income
197Ms. Knibbs and Ms. Long also each seek an award of monetary compensation for lost income. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory acts not occurred (Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.) and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.)).
198The applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment, and is only entitled to be compensated for those losses that could not have been avoided. The respondent, however, has the onus of proving the applicant’s failure to mitigate (Heintz v. Christian Horizons, 2008 HRTO 22, at para. 265).
199In the absence of discrimination, Ms. Knibbs anticipated returning to work on September 2, 2008. I find that she would have been assigned 40 hours of work per week as per the Executive’s November 21, 2007 resolution. Her last day of unemployment was April 2, 2009. As such, she had lost wages in the amount of $13,327.60 ($440/week x 30.29 weeks). According to her ROE, she received $100 per week in tips prior to her medical leave when she worked 44 hours per week. As such, she also had lost tips in the amount of $2,756.39 ($91/week x 30.29 weeks).
200Mr. Calder submitted that Ms. Knibbs did not fulfill her duty to mitigate her losses because she only applied for eight jobs. I disagree. It is undisputed that there was a recession at that time. In that context, I find that applying for eight positions between November 2008 and January 2009, being interviewed for one of those positions in January 2009, and starting that position in early April 2009, fulfilled Ms. Knibbs’s duty to mitigate her losses
201I therefore find that $16,083.99 is an appropriate award to Ms. Knibbs for lost income.
202Turning to Ms. Long, I find, based on her testimony and the respondents’ time cards and payroll records, that she worked an average of 26 hours per week prior to her back injury. According to her medical documentation, she was able to perform light duties between October 20 and November 10, 2008, but the respondents refused to allow her to work. As such, she had lost wages in the amount of $702.00 ($234/week x 3 weeks).
203I also find that she worked an average of eight hours per week between November 10, 2008, when she was fit to return to full duties, and January 25, 2009, when she was suspended from her job. As such, she lost 18 hours per week, and had lost wages in the amount of $1,782.00 ($162/week x 11 weeks),
204I further find that between January 25, 2009, when she was suspended, and June 13, 2009, when she went on maternity leave, she mitigated her damages by working six additional hours per week at her other job. As such, she lost 20 hours per week, and had lost wages in the amount of $3,600.00 ($180/week x 20 weeks).
205The respondents did not allege that Ms. Long failed to fulfill her duty to mitigate her losses.
206I therefore find that $6,084.00 is an appropriate award to Ms. Long for lost income.
207Ms. Long also requested an award for lost EI maternity/parental benefits as a result of having less insurable hours, but did not provide me with any numbers or documentation. I find that such an award is appropriate, and the exact amount should be worked out between the parties.
Interest
208Ms. Knibbs and Ms. Long requested pre-judgment and post-judgment interest on any award for monetary compensation. In my view, it is appropriate to award pre-judgment interest on the amounts for lost income.
209Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, prejudgment interest runs from the date the cause of action arose to the date of the order. Accordingly, I find that the respondents should pay Ms. Knibbs pre-judgment interest on her lost income from September 2, 2008 to the date of this Decision. I also find that the respondents should pay Ms. Long pre-judgment interest on her lost income from November 10, 2008 to the date of this Decision.
210Post-judgment interest is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision.
211The applicable interest rates may be found on the website of the Ministry of the Attorney General of Ontario:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp
Compliance Remedies
212Based on the evidence, it is obvious that the respondents do not understand their obligations under the Code. I have noted that the Responses to the Application indicate that the Club does not have a human rights policy.
213I therefore find it appropriate to order that the Club retain a consultant with expertise in human rights to assist in drafting and implementing a policy on harassment and discrimination, which will include, but not be limited to, components on disability, pregnancy, reprisal, association, and the duty to accommodate.
214I also find it appropriate to order that the Club’s Officers, Committee Chairpersons, managers, and supervisors complete the Ontario Human Rights Commission’s online training module on human rights (http://www.ohrc.on.ca/hr101/) and provide copies of the certificates of completion to Ms. Knibbs and Ms. Long.
ORDERS
215Accordingly, the Tribunal orders as follows:
Within 30 days of the date of this Decision, the respondents shall pay Ms. Knibbs $20,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.
Within 30 days of the date of this Decision, the respondents shall pay Ms. Long $13,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.
Within 30 days of the date of this Decision, the respondents shall pay Ms. Knibbs $16,083.99 as monetary compensation for lost income. Pre-judgment interest is payable on her lost income from September 2, 2008 to the date of this Decision.
Within 30 days of the date of this Decision, the respondents shall pay Ms. Long $6,084 as monetary compensation for lost income. Pre-judgment interest is payable on her lost income from November 10, 2008 to the date of this Decision.
Within 30 days of the date of this Decision, the respondents shall compensate Ms. Long for any lost EI maternity/parental benefits as a result of having less insurable hours. The exact compensatory amount should be worked out between the parties.
Post-judgment interest is payable on any amount of the awards of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision.
Within 90 days, the Club shall retain a consultant with expertise in human rights to assist in drafting and implementing a policy on harassment and discrimination, which will include, but not be limited to, components on disability, pregnancy, reprisal, association, and the duty to accommodate.
Within 90 days, the Club’s Officers, Committee Chairpersons, managers, and supervisors shall complete the Ontario Human Rights Commission’s online training module on human rights and provide copies of the certificates of completion to Ms. Knibbs and Ms. Long.
Dated at Toronto, this 30th day of May, 2011.
“Signed by”
Ken Bhattacharjee
Vice-chair