Ashley Splane v. Ultimate Fitness and Trish Gill, 2011 HRTO 195

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley Splane

Applicant

-and-

Ultimate Fitness and Trish Gill

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: January 27, 2011

Citation: 2011 HRTO 195

Indexed as: Splane v. Ultimate Fitness

APPEARANCES

Ashley Splane, Applicant ) Self-represented

Ultimate Fitness and Trish Gill, Respondents ) No one appearing

1This Application was filed June 30, 2009 under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A hearing was scheduled for January 10, 2011 at 9:30 a.m. in Toronto. The applicant arrived at 10:15 a.m., explaining that the weather made her late. No one appeared for the respondents.

3The Tribunal is satisfied that the respondents were given notice of the hearing by Notice dated August 3, 2010. The corporate respondent acknowledged the Tribunal's correspondence and advised the Tribunal that since the company was insolvent they would not be attending the hearing. They did not file any documents establishing bankruptcy or any indication that there was a stay of proceedings against them. The personal respondent did not communicate with the Tribunal but advised the applicant that she would not be attending the hearing.

4I heard the evidence of the applicant.

5The applicant was hired as a receptionist/secretary for the corporate respondent on January 10, 2008. Her shift began at 5:00 a.m. but she was expected to arrive at 4:45 a.m. to ensure the premises were open by 5:00 a.m.

6The applicant testified that she was asked to shovel the walk and entrance way. Although she objected to this duty she did perform it. The applicant advised her immediate supervisor, the respondent Trish Gill, that she was pregnant and her due date was September 2008.

7On February 11, 2008 the applicant telephoned the personal respondent and advised her that due to cramping and spotting she would be going to the hospital and could not attend work.

8Later that day the applicant spoke to the personal respondent and advised her that she could no longer do shoveling due to her pregnancy. The personal respondent advised her that she was letting her go as she was unreliable (missed 3 days) and could not be counted on to attend.

9The applicant filed a human rights complaint on February 29, 2008. The respondent owner filed a response in March 2008 indicating that the personal respondent was the Assistant Manager. The response advised that the applicant had been late on many occasions. The response also indicated that the applicant advised them on February 11, 2008 that she had high blood pressure and that she may have to go on bed rest. The response stated that the applicant was terminated because the company needed a reliable employee, someone who was not consistently late or unable to make it in. The reason was not her pregnancy but her ability to make it to work and on time.

10In response, the applicant testified that she consistently arrived at 4:30 a.m. but did not punch in until after shoveling, so the computer records may have recorded a time after 5:00 a.m. She also testified that the computer was faulty and she could not always record her attendance properly, but she sent emails confirming her attendance each time.

11I find, based on the respondents' own response, that they terminated the applicant's employment when she advised them she had high blood pressure because they wanted a reliable employee and did not believe she would reliably attend work on time in light of pregnancy and high blood pressure.

12The applicant's evidence established that her high blood pressure was due to her pregnancy.

13I find that a factor in the termination of her employment was her pregnancy and this amounts to a breach of the applicant's right to be free from discrimination because of pregnancy, as guaranteed by section 5 of the Code.

14The applicant's uncontradicted evidence with respect to her monetary losses is that she was earning $400/week at the corporate respondent. She found another job in May 2008 at $9.00/hour for 13 hours/week ($117/week) until she took parental leave in September 2008 (approximately 4 months). As a result, the applicant lost $400/week or $1600 per month for a period of 3 months until she obtained new employment, for lost wages of $4800. In addition, the applicant lost a further amount of $283/week or $1132 per month for 4 months after she obtained new employment, for further lost wages in the amount of $4528. Combining these two, the applicant's total lost wages is $9,328.00.

15The applicant testified she would have received between $900 to $1050 month for 41 weeks (approximately 10 months) in parental benefits if she had remained employed with the respondent. Instead, she only received only $300/month, a monthly loss of $600 to $750/month. Her total loss of parental benefits is somewhere between $6000 and $7500. As the onus is on the applicant to prove her losses, I will use the lower estimate of $6000.00.

16I am satisfied that the applicant is entitled to $9328.00 in lost wages and $6000.00 in lost benefits. She is also entitled to pre-judgment interest, which I have calculated at the average rate of 1.65% per annum given the wide fluctuation of interest rates over the past few years. I have calculated the applicant's entitlement to pre-judgment interest on these awards to be in the total amount of $601.00.

17The applicant testified that she was extremely stressed by the financial situation resulting from the discrimination. I find that an award of monetary compensation of $5000 adequately compensates her for the injury to her dignity, feelings and self-respect. I recognize that this award is significantly less than the amount awarded in Maciel v. Fashion Coiffures, 2009 HRTO 1804, which involved a woman in a similar situation. Having reviewed that case, I find that the applicant's evidence relating to her reaction to the discrimination was significantly different. The applicant in this case gave only very brief evidence about her reaction to the discrimination and the effects of the discrimination.

18I find that the corporate respondent breached the applicant's right to be free from discrimination, contrary to section 5 and 8 of the Code. I order the corporate respondent to pay the applicant the following amounts within 30 days of the date of this Decision, failing which post-judgment interest shall be payable pursuant to the Courts of Justice Act:

• $9328.00 for lost wages;
• $6000.00 for lost benefits;
• $601.00 Interest on these amounts; and
• $5000.00 as damages for the injury to her dignity, feelings and self-respect.

19I am not satisfied that the personal respondent should be liable for these damages.