Graham v. 3022366 Canada Inc., 2011 HRTO 1470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Holly Graham

Applicant

-and-

3022366 Canada Inc. o/a Response Safety Security & Investigations

and Denis Condie

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: August 5, 2011

Citation: 2011 HRTO 1470

Indexed as: Graham v. 3022366 Canada Inc.

APPEARANCES

Holly Graham, Applicant ) Derek Van Dusen, Counsel

3022366 Canada Inc. o/a Response ) Denis Condie, Representative Safety & Security Investigations ) and on His Own Behalf

and Denis Condie, Respondents )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant, Holly Graham, alleges discrimination in respect of employment on the basis of sex. Specifically, she alleges that she experienced discrimination in scheduling and in being fired for reasons related to her pregnancy.

2Two respondents were named in the Application: the corporate respondent and former employer is 3022366 Canada Inc. o/a Response Safety and Security Investigations ("Response Security"); the other is the personal respondent, Denis Condie ("Condie"), owner and president of the respondent corporation. The respondents deny they discriminated against the applicant.

3During the hearing into this matter I heard evidence from the applicant and two of her former co-workers, Amanda Guillemette and Drew Silverman. On behalf of the respondents, I heard from the personal respondent, Denis Condie, as well as Micheline Gallagher, Ashley Bedard and Brendon Pacey, current and former employees of Response Security. Brendon Pacey is also the applicant's estranged former boyfriend and the biological father of the child born of the pregnancy that is at the heart of this Application.

THE LAW

4The relevant sections of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10(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.

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:

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

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

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

THE EVIDENCE

The Applicant's Position

5The applicant, Holly Graham, began working for Response Security as a mobile patrol officer in late 2007 after completing a two-year college program in security operations and a short stint at the City of Ottawa, where she worked for just under one year as a security dispatch officer and a supervisor.

6She gave evidence that she joined Response Security because she was more interested in working as a patrol officer for a security guard company than in a job that involved monitoring screens for 12 hours at a time.

7The job that the applicant did at Response Security involved regularly patrolling client sites during daytime and nighttime shifts and responding to alarms under a contract with the City of Ottawa. There were also a number of people in the company employed as site guards, others who did armoured delivery runs of money and a small office staff. The applicant did not work in those areas.

8She was happy in her work and, within months of starting the job, in March 2008, was promoted ahead of others who had been working there longer. She received a further promotion in April 2009 and continued to work in a supervisory capacity within the section of the company that provided the mobile patrol services.

9On May 6, 2009, the applicant found out she was pregnant. Over the next few days, she spoke to Brendon Pacey, the biological father, about the pregnancy. She says it was a difficult conversation because their relationship had ended by then. She also spoke to Micheline Gallagher, the office manager, about it over the weekend. Micheline advised her to tell the personal respondent about the pregnancy when she was next in the office.

10On the following Monday, May 11, 2009, the applicant spoke to respondent Condie in the presence of Micheline Gallagher and told him about her pregnancy. She says that within five minutes of hearing about her pregnancy, he told her that she would be taken off the schedule and told her that she would be given a letter the following day so that she could apply for short-term disability benefits.

11She was given a letter the following day, signed by Condie and Ashley Bedard that stated:

Due to health and safety issues from Response Safety Security & Investigations and on behalf of our company policy as soon as we are aware that a security guard has become pregnant we must take them off the schedule. Due to your condition of being pregnant Response Safety and Security & Investigations must effective immediately, remove you from your position of Mobile Patrol Officer. The position you hold is deemed a dangerous one. You have been trained in self defense and using an expandable baton, you wear a bullet proof vest and you are responsible for making arrests while on duty. It is a health & safety issue due to your condition to be continued to be employed as a security guard.

We suggest the following procedure as done in the past:

Due to your pregnancy you will go to your doctor and get a letter stating that he has reviewed your job description with you and due to your pregnancy it will put the baby in danger.

Your doctor at that time will suggest short term disability which will not affect your employment here at Response nor will it affect your benefits and impending maternity leave.

Please feel free to contact any Response managers with any future questions or concerns regarding procedures. At this time we would also like to congratulate you on your pregnancy and all the best wishes.

12She went to see her family doctor as she felt she had no choice and her doctor reluctantly agreed to provide a letter. She testified that she told her doctor that she had been removed from the schedule at work because of her pregnancy and was in need of some source of income.

13Although she did not think she was disabled, she felt that she would have to do something because her hours had been cut completely and she had no other source of income. She spoke to staff at Human Resources and Development Canada ("HRSDC") about a sick benefit claim under the Employment Insurance Act and was told by HRSDC that she was not eligible for sick benefits and that her maternity leave benefits would be impacted by working fewer hours or not working at all in the months leading up to the birth of her child.

14She called Micheline Gallagher and told her about the information she had received from HRSDC. Micheline Gallagher called her the next day and told her that Condie did not understand HRSDC's position at all and felt that perhaps they may need to meet again to further discuss issues. No meeting time was given and no concrete steps taken to schedule such a meeting. Similarly, there was no indication that she would be put back into the schedule.

15By this time, the applicant testified the initial shock that she had experienced at being removed from the schedule had evolved into extreme frustration, worry and upset. The failure of Condie to reverse his original decision to stop scheduling her for shifts was devastating to her financially, emotionally and mentally.

16She began looking for other work as she had no income coming in from any source as a result of having been taken off the schedule and because she had no idea when that state of affairs would change. She was exhausting her savings and needed to find work. She found some part-time retail sales work but was unable to earn enough money to meet her expenses.

17She says she contacted Micheline Gallagher several times to explain that she had found some retail work and was looking for other work as she needed the money. She acknowledges having a brief discussion with Ms. Gallagher about a dispatch position and said she would be interested in hearing more about it but was never given any details.

18The applicant also found an administrative position at another security company through a former co-worker. The job entailed general office work, interviewing and hiring new employees, assigning uniforms to them and updating the company's training program. She worked there from May 28, 2009, to July 3, 2009. The job ended because of the company needed fewer employees and she had been the last one hired.

19In mid-June 2009, an employee of Response Security came to the office and the following day she received an email from Condie terminating her employment because she had been found working in the offices of a business competitor.

20She says that she had an uneventful pregnancy with no health concerns. She experienced some morning sickness during her first trimester but it was not significant or debilitating. She continued to jog three to four times a week, play sports, move boxes and clean at work and at home. She did not change her fitness routine and her evidence is that she tried not to change her routine.

21She continued to work as many hours as she could get at the retail sales job earning minimum wage. She also found work with yet another security company over the summer months doing security work at fairs and actually volunteered with them past the summer months into the fall.

22Her view is that until late August or early September of 2009, she could have continued to work in her old patrolling job. She indicates that in September she would likely not have wished to continue working in the field and would have asked to be assigned to other duties if possible. However, before that date there was nothing in the job that was beyond her capabilities.

23The two former co-workers who gave evidence on her behalf, Drew Silverman and Amanda Guillemette, confirmed the requirements of the job and both testified that they had never had any physical altercations while on the job. They confirmed their understanding that if there was any sign of trouble, their expectation was that they would observe and call in the police.

24The applicant started receiving EI benefits from August 15, 2009, which switched to maternity leave benefits on November 29, 2009. Her child was born in January, 2010. Drawing on EI benefits has decreased the duration of maternity leave available to her and the nature of the sporadic and temporary jobs at which she was forced to work as a result of the respondents' decisions and the lower income earned reduced the amount of the maternity leave benefits she received.

25Since then, she has taken the aptitude and medical tests necessary to apply to join the armed forces and hopes to successfully complete that process shortly.

26The applicant testified that the summary decision to take her off the schedule, leaving her without income, and then terminating her employment when she had attempted to find some work to be able to continue to feed and house herself while dealing with her unexpected pregnancy alone had a devastating effect on her.

27Given that her relationship with Brendan Pacey, the biological father, had ended, the applicant was coming to terms with her unexpected pregnancy and facing the prospect of having her first child on her own. As a result, in her view, the impact of the respondent's conduct on her, both financially and emotionally, was exacerbated and amplified.

The Respondents' Position

28Respondent Condie testified that he was first made aware of the applicant's pregnancy during a brief meeting that he had with the applicant and Micheline Gallagher. He testified that it was his view that the applicant had already breached company policy by having a relationship with Brendan Pacey as the company has a policy prohibiting workplace relationships. Further, his view was that there was potential for danger in the applicant's job and that there would be a risk to the applicant, her unborn child and her co-workers if she remained on the job.

29He says that removing the applicant from the schedule was a decision made in accordance with company policy and upon consultation with his human resources specialist, Ashley Bedard. It was his evidence that following the initial meeting with the applicant, he and Ms. Bedard discussed a variety of options for the applicant such as laying her off work and encouraging her to collect sick benefits. However, putting her back onto the schedule was not one of the options discussed.

30On May 12, 2009, Condie acknowledges that he and Ms. Bedard provided the applicant with a letter, signed by both of them, to take to her doctor and that both he and Ms. Bedard testified that they believed the applicant could access sick benefits through EI without any detrimental impact on her ability to eventually collect maternity leave benefits.

31He indicated that there is a written policy that all pregnant personnel must be removed from patrolling jobs. He suggests that the job is akin to policing and all police departments take this step and he understands that light duties are provided to female police officers who are pregnant. He did not provide any documents or other confirmation from any source as to this point.

32While his witness, Brendan Pacey, said that he understood this was the case with police forces in general and his employer, the OPP in particular, he also was similarly unable to provide the source of his information and, additionally, was not clear about whether assignment to light duties was mandatory or simply an option available to pregnant women who requested accommodation during some stage of their pregnancy.

33Condie testified he believed he did the right thing for the applicant, her unborn child and her fellow coworkers by removing her from the schedule. He says that clearly the applicant's own physician also believed he was correct in asserting that the job was too dangerous for a pregnant woman because she wrote the note after being presented with his May 12th letter. He characterizes the applicant as a "willing participant" in that apparently from May 12 to May 19, 2009, both she and her doctor agreed that the job was too dangerous for a pregnant woman and believed, as he did, that it would be a detriment to the unborn child for her to continue in that job.

34He wondered what else he could have done and testified that his friends and other business owners said to him that it was "pretty nice to get her off so she can have a holiday until the baby comes".

35He also said that in fact he was trying to create a job for the applicant in the office that he felt was more suitable for her during the time in late May 2009 that she perceived he was doing nothing at all.

36He says he was setting up an entirely new call center operation in which he intended that the applicant would be working as a supervisor and had taken steps to interview people in that regard. He acknowledges that he did not personally share that information with the applicant but relied on Micheline Gallagher to do so. After he fired the applicant when he found her working for a competitor, he shelved those plans for expansion at some cost to the business.

37He testified that he was very upset and concerned when he discovered that the applicant had started working for a direct competitor. He says that she knowingly breached her employment contract and he was justified in terminating her employment once he found out about her actions. He states that the applicant had a duty to continue to communicate with the respondent company and that if she had she would have known that he was creating a job that he felt would be appropriate for a pregnant woman.

38He does acknowledge that the applicant was good at her job and indicates that he does not bear her any lasting ill will. He suggests that he is very short of staff and would love to have people with training return. He says that he does not hold a grudge and if she has "learned her lesson", she could come back.

DECISION

Breach of the Code

40When the applicant informed her employer of her pregnancy, she did not frame the conversation as a request for accommodation of a disability as she clearly did not view her pregnancy as a disability. However, for reasons of their own, the respondents chose to treat the announcement of the applicant's pregnancy as an announcement that she had a disability.

41The decision made by the respondents to remove the applicant from the schedule within minutes of being informed that she was in the early stages of a pregnancy was arbitrary and based on stereotypes and assumptions that are, in my view, unsupported by fact.

42The respondents' position that a pregnant woman could not perform the tasks required is similarly unsupported by the evidence; not only of the applicant and her witnesses, who are former co-workers, but also some of the respondents' own witnesses. Respondent Condie's explanation that the presence of a pregnant woman in the patrol car or "field" would cause her colleagues to take unnecessary risks, and is therefore a health and safety risk, is not a conclusion based on empirical data or fact, but rather on stereotypes that he, and perhaps some members of his present and former staff, labour under.

43Although he testified that there is a written policy of about 15 years' duration speaking to this issue, it is not mentioned in the response, nor was it disclosed during the exchange of arguably relevant documents or a copy provided to the applicant or the Tribunal.

44The continuing refusal to reverse that original and clearly discriminatory decision upon being told by the applicant that she was not, in fact, eligible for short-term disability income was, similarly, unresponsive, unhelpful and perpetuated the harm done to the applicant at a time when she faced pregnancy, delivery and parenthood as a single person with no other source of income or support.

45Finally, after weeks when the applicant clearly did not have any income from her full-time job because she had been removed from the schedule, the decision to terminate her employment because she had taken steps to mitigate her losses is yet another step in a chain of separate decisions that negatively impacted the applicant.

46For the reasons set out above, I am of the view that the applicant has established on a balance of probabilities a case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 9 and 10(2) of the Code and that the respondents have failed to prove a statutory defence or exemption for their decision to remove her from the work schedule, cut her hours and ultimately terminate her employment. The respondents did not dispute that they removed her from the work schedule and cut her hours because she was pregnant and they failed to provide any evidentiary basis to support their position that immediate removal from her employment position was a bona fide requirement that arose from pregnancy. I also find that, on a balance of probabilities, the applicant's pregnancy was a factor in the respondents' decision to terminate her employment.

Remedy

47In Arunchalam v. Best Buy, 2010 HRTO 1880, at paras. 52 to 55, the Tribunal summarized some of the considerations relevant to an assessment of damages to be awarded under s. 45.2 of the Code:

I turn now to the relevant factors in determining the damages in a particular case. 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.

These principles are not intended to comment on how the Tribunal would deal with a case where medical evidence shows an extreme degree of suffering in comparison to the nature of the event, a situation which I leave for another day.

48The Tribunal has decided the following cases in which it found that an employee's employment was terminated because of pregnancy contrary to the Code. In some of those cases, pregnancy was found to be the only reason for the termination. See Maciel v. Fashion Coiffures, 2009 HRTO 1804, Bickell v. The Country Grill, 2011 HRTO 1333, and Guay v. 1481979 Ontario, 2010 HRTO 1563. In other cases, pregnancy was found to be a factor in the reasons for the termination. See Osvald v. Videocomm Technologies, 2010 HRTO 770, and Charbonneau v. Atelier Salon & Spa, 2010 HRTO 1736.

49In the Tribunal's decision in Bickell, supra, the Tribunal commented as follows:

In this day and age it is still surprising to hear that a pregnant employee, who has medical documentation supporting that she can work the duration of her pregnancy, is being subjected to unilaterally imposed changes to her employment in the form of reduced shifts and hours, and is also terminated for no other reason but for her pregnancy.

50In my view, this case is similarly troubling.

51The applicant was employed in a job that she had been, by all accounts, performing competently for several years. She did not expect to have all sources of income withdrawn upon announcing her pregnancy.

52As a result of the conduct of the respondents, the applicant was put in the position of having to deal with uncertainty as to her source of income during the balance of her pregnancy, frustration at the respondents' unwillingness to accept that she did not view the pregnancy as a disability, the termination of her employment when she took reasonable measures to mitigate her losses, a subsequent unsettled period where she had to take on a variety of small, temporary jobs in order to stay afloat and, finally, having to resort to EI benefits earlier than she otherwise might have done and receiving maternity leave benefits at a lower rate and for a shorter period.

53In view of the impact that all the factors canvassed above had on the applicant at a time of particular vulnerability when she faced the prospect of having her first child on her own and without another source of household income available to her, I award $20,000 as monetary compensation for injury to the applicant's dignity, feelings and self-respect, to be paid to the applicant within 45 days of the date of this Decision.

54The applicant has asked that the respondents be made jointly and severally liable for payment of this amount and, as respondent Condie is the sole shareholder and director of Response Security, I find it appropriate in the circumstances of this case to do so.

55The information provided by the applicant regarding the actual amounts earned and concerning the losses suffered was not exact. In the circumstances, I order that the respondents pay the applicant the difference between what she actually earned and what she would have earned working full-time at the rate of pay being received when she was removed from the schedule until the date she began receiving EI benefits.

56Within 15 days of this decision, the applicant will provide the respondents with a total of her actual gross earnings from all sources from May 11, 2009, to August 15, 2009 and a calculation of what she would have earned had she continued in the corporate respondent's workplace. Within 45 days of this decision, the respondent is ordered to pay the difference between the two amounts, less statutory withholdings, to the applicant.

57Although the applicant asserted that she received a lesser amount of benefits under EI for both regular and maternity benefits as a result of the respondents' actions, she did not provide any evidence to substantiate the actual amounts received or how much she believed she would otherwise have received had the discrimination not occurred. As a result, I decline to make any order with respect to the time she received EI benefits.

58In order to promote future human rights compliance, I find it appropriate to order the respondents to takes steps to improve their knowledge and understanding of their rights and responsibilities under the Code. Accordingly, the personal respondent, Dennis Condie, and all employees of Response Security that perform supervisory or management functions shall take the eLearning module "Human Rights 101" that is found on the Ontario Human Rights Commission's website at www.ohrc.on.ca and confirm completion of same in writing to counsel for the applicant within 90 days of the date of this decision.

59Finally, the respondents shall prepare a written policy on the accommodation of pregnant employees and maternity/parental leave practices that is consistent with their obligations under the Code, the Employment Standards Act, 2000, S.O. 2000, c. 41, and provide a copy to counsel for the applicant within 90 days of the date of this decision.

ORDER

60Within 15 days of this decision, the applicant will provide the respondents with a total of her actual gross earnings from all sources from May 11, 2009, to August 15, 2009 and a calculation of what she would have earned had she continued in the corporate respondent's workplace.

61The respondents are jointly and severally ordered to pay to Holly Graham the following amounts within 45 days of this decision:

(a) the difference between what she actually earned and what she would have earned working full time at the rate of pay being received when she was removed from the schedule from May 11, 2009 and August 15, 2009, less statutory withholdings;

(b) $20,000 as compensation for injury to her dignity, feelings and self-respect;

(c) Prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, on the amount set out in (a) and (b) from May 11, 2009.

62In the event that the respondents fail to make the payments described in paragraph 61 above within 45 days of the date of this decision, the respondents shall pay post-judgment interest in accordance with the Courts of Justice Act.

63The personal respondent, Dennis Condie, and all employees of Response Security that perform supervisory or management functions shall take the eLearning module "Human Rights 101" that is found on the Ontario Human Rights Commission's website at www.ohrc.on.ca and confirm completion of same in writing to counsel for the applicant within 90 days of the date of this decision.

64The corporate respondent, 3022366 Canada Inc. o/a Response Safety and Security Investigations ("Response Security"), shall prepare a written policy on the accommodation of pregnant employees and maternity/parental leave practices. This policy shall be consistent with the respondents' obligations under the Code and the Employment Standards Act. Within 90 days of this decision a copy of the policy will be sent to counsel for the applicant.