HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lynn Coscina
Applicant
- and-
2253308 Ontario Inc. c.o.b. as Halton School of Equitation
Respondent
DECISION
Adjudicator: Ian R. Mackenzie
Indexed as: Coscina v. Halton School of Equitation
APPEARANCES and WRITTEN SUBMISSIONS
Lynn Coscina, Applicant ) Self-represented
1Lynn Coscina filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability.
2The respondent, Halton School of Equitation (2253308 Ontario Inc.), did not reply to the Application. In an Interim Decision issued on February 28, 2011 (2011 HRTO 430), the Tribunal determined that the respondent was deemed to have waived its right to notice or further participation in the proceedings. The respondent was also deemed to have accepted all of the allegations contained in the Application. The applicant was given an opportunity to file further documents and to make oral submissions. The Tribunal also determined that it would proceed to finally determine the Application based on the materials filed by the applicant. The applicant filed a medical note from her doctor and made oral submissions by teleconference call.
3The applicant worked for the respondent as a riding instructor for two to three hours a week, at the hourly rate of $16 an hour. She worked at Halton School of Equitation from 1994 until her termination of employment on September 1, 2010. The applicant is in receipt of Ontario Disability Support payments under the Ontario Disability Support Program (ODSP). Her disability is periodic panic attacks. She also suffers from migraines. She had been accommodated by the former owners of the Halton School of Equitation and was initially accommodated by the new owners. On occasion, she could not come to work because of a panic attack. She also required an assistant at the lessons who could take over, in case the applicant had to leave because of a panic attack.
4The respondent’s owner, Jennifer Urowitz, was aware that the applicant had a disability and was also aware that she was in receipt of ODSP, as she was required to report the applicant’s earnings to the ODSP.
5The applicant spoke to Ms. Urowitz in March of 2010 about an increase in her panic attacks that was affecting her ability to get to work. On May 19, 2010 the applicant called Ms. Urowitz to tell her that she could not come to work because of a panic attack. Ms. Urowitz texted her to say that she would need to find someone else to teach the lessons given by the applicant. On the following day, Ms. Urowitz offered her one-hour a week. The applicant ended up working for half an hour a week. In August of 2010, the applicant sent a letter to Ms. Urowitz, explaining her accommodation needs and included a letter from her doctor. On August 23, 2010, Ms. Urowitz sent an email stating that she could not reinstate the hours for the applicant and that this was “strictly a business decision”. At the teleconference hearing, the applicant stated that Ms. Urowitz sent a text message to her that stated “I can only be so understanding”.
6On September 1, 2010 she received a letter terminating her employment. The letter stated that “a few things are changing around here” and that the owner no longer had any hours to offer her.
7The applicant is limited in her ability to obtain new employment. She stated that she cannot travel very far from her home because of her disability. She has been able to obtain similar work with other stables but with less frequency.
8She stated that she was formerly earning approximately 200 dollars a month from her work at Halton School of Equitation. She now earns, on average, about 40 dollars a month. In her Application, filed in August of 2010, the applicant calculated her lost income as $1,064.40, from June 1 to August of 2010.
9At the teleconference hearing of this Application, the applicant advised that the Halton School of Equitation had recently moved from its location and its future status as an ongoing business was uncertain.
10The applicant provided a note from her doctor that stated that the applicant noted “a flare in her panic and anxiety symptoms.” The applicant also stated that her financial situation had suffered as a result of this loss of income.
Findings and Decision
11For the reasons which follow, I allow the Application.
12In the absence of a response from the respondent and the refusal of the respondent to participate in the proceedings, I am required to accept the allegations as set out in the Application as true.
13It is clear from the Application that the respondent was made aware of the applicant’s disability. In addition, the respondent was aware that the applicant was in receipt of ODSP. The applicant was accommodated up until May of 2010, when the respondent stated that “I can only be so understanding.” At that point, the applicant’s hours were cut to half an hour a week. On September 1, 2010 her employment was terminated. Although Ms. Urowitz stated in the termination letter that this was “for business reasons,” I have no further information from the respondent. In the absence of any further explanation from the respondent on the reason for the termination of employment, I accept that the termination of employment was because of the applicant’s disability. Additionally, in the absence of submissions or evidence from the respondent on the point, there is no basis to conclude that accommodating the applicant would have constituted an undue hardship for the respondent.
14The applicant initially estimated her loss of income from May 20, 2010 to the date of the initial filing of her Application (August 24, 2010) as $1,604.40. This is the loss suffered as a result of the reduction in hours. Subsequently, her employment was terminated. She estimated that her reduction in income as a result of her termination of employment was approximately $160 a month. She has now advised that in the weeks preceding the teleconference hearing, the Halton School of Equitation has closed. Her loss of income is therefore from September 1, 2010 until approximately October 1, 2011 (approximately 13 months). Her total economic loss is therefore $2,080 for the period from September 1, 2011 to October 1, 2011 plus the estimated loss in her Application of $1,604.40 for a total loss of $3,684.40.
15The Tribunal can order compensation for injury to dignity, feelings and self-respect: subsection 45.2 (1) of the Code.
16In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 the Tribunal stated (at para. 62):
A human rights damages award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination. The Divisional Court in ADGA Group Consultants Inc. v. Lane , (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Sup. Ct.), recently confirmed that, in order to compensate for the “experience of victimization”, an award of general damages is predicated upon a number of considerations including the overall impact of the discrimination on the complainant, the particular vulnerability of the complainant and the frequency and duration of the infringement.
17In Arunachalam v. Best Buy Canada 2010 HRTO 1880 (at paragraphs 52-54) the Tribunal noted the criteria that must be taken into account in determining the appropriate amount of compensation for injury to dignity, feelings and self-respect:
…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.
18The applicant reported an increase in stress and an increase in panic attacks following her termination of employment. The medical information provided by the applicant is a note from her doctor that states that she reported these increases in stress and panic attacks. There is no medical evidence to demonstrate that the discrimination caused an increase in panic attacks. I note that the applicant reported an increase in panic attacks before she asked for accommodation. I can accept that the loss of her employment was the cause of stress and may have contributed to panic attacks, however I do not have sufficient evidence to give this much weight.
19Although her participation in the labour market is limited because of her disability, I accept the fact that gainful employment is important to the applicant. Although the amount she worked was only two to three hours a week, the value of employment to the applicant was significant. The applicant had been working at the same establishment (although under different owners) for 16 years. The applicant also depended on this modest income for her financial needs. The loss of employment as a result of the failure to accommodate has had a significant impact on the applicant, both emotionally and financially. This loss of employment is therefore a significant component of the compensation for the injury to dignity.
20In addition, the manner in which the respondent advised the applicant that she could not be accommodated (by text message) and the failure of the respondent to discuss accommodation with the applicant increases the damage to dignity. These factors are significant in my determination of the appropriate damages to award..
21In Simpson, the Tribunal awarded $10,000 on the basis that (at para. 63):
…the applicant clearly suffered significant distress as a result of the respondent’s actions and the stress over her precarious work status heightened the anxiety that surrounded her health condition. The respondent’s failure to accommodate the applicant was a severe blow to the applicant’s self-esteem and undermined her sense of being as a valued and dedicated employee.
22I find that similar considerations are at play in this Application. In all of the circumstances, I have determined that an appropriate award for damages for injury to dignity, feelings and self-respect is $10,000.
23The applicant is also entitled to pre-judgment interest on lost income and post-judgment interest on all amounts ordered, in accordance with Courts of Justice Act.
24Accordingly, the Tribunal orders:
a. The payment of $3,684.40 for lost wages, plus vacation pay and less any statutory deductions;
b. The payment of $10,000 in respect of compensation for loss arising out of the infringement of rights, including injury to dignity, feelings and self-respect;
c. Pre-judgment interest on the net amount in sub-paragraph “a” above, payable from September 1, 2010 to the date of this Decision, in accordance with the Courts of Justice Act;
d. Post-judgment interest is payable on any of the above amounts not paid to the applicant within 30 days of the date of this Decision, in accordance with the Courts of Justice Act.
Dated at Toronto, this 28th day of October, 2011.
‘Signed by”
Ian R. Mackenzie
Vice-chair