HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Myriam Llano
Applicant
-and-
Fairweather Inc. Group of Companies
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Llano v. Fairweather
APPEARANCES
Myriam Llano, Applicant ) Self-represented
Fairweather Inc. Group ) No one appearing
of Companies, Respondent )
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of disability, age, and record of offences. The Application also alleges reprisal or threat of reprisal.
2For the reasons set out below, I find that the respondent breached the Code and discriminated against the applicant on the basis of her disability. The Tribunal orders the respondent to pay the applicant $20,000 as monetary compensation for the injury to her dignity, feelings and self-respect arising from the infringement of her rights under the Code as well as to pay compensation for lost wages and benefits.
3There is no basis to conclude that the applicant was discriminated on the basis of a record of offences or that she was reprised against or faced threats of reprisal. At the hearing, the applicant presented no evidence in regard to either of these two grounds.
4Finally, on a balance of probabilities, I am not satisfied that the applicant’s age was a factor in any differential treatment she experienced.
THE RESPONDENT’S FAILURE TO ATTEND THE HEARING
5The Application was scheduled for hearing on March 14, 2011. The applicant attended the hearing at the prescribed date and time, but the respondent failed to appear.
6I am satisfied that the respondent had notice of the hearing. The respondent filed a Response and participated in a mediation facilitated by the Tribunal. The Tribunal issued a Notice of Confirmation of Hearing, which was sent to the respondent at the address provided by it and was not returned. When the respondent failed to file documents and provide witness lists within the timeframe required in the Tribunal’s Rules of Procedure, the Tribunal issued a Case Assessment Direction. This was also sent to the respondent and was also not returned.
7The Tribunal’s general practice where a party does not attend the hearing is to wait 30 minutes after the hearing’s scheduled start time before proceeding in the absence of that party. There was no reason to deviate from this process in the circumstances. The hearing began at approximately 10:00 AM on March 14, 2011, and was conducted in the absence of the respondent.
8Because the respondent did not participate in the proceedings, my findings of fact are based on documentary evidence filed by the applicant and the oral testimony of the applicant and her witnesses, Alana Rodrigues-Magalhaes, Marcia Mairena, and Vesna Kolovick.
OVERVIEW
9The applicant alleges that the respondent discriminated against her by failing to accommodate her disability. She states that, although it initially accommodated her by transferring her from the position of sales associate to cashier, the respondent unilaterally withdrew those accommodation measures and refused to provide further accommodation as of at least March 2009. Despite medical evidence that the applicant was disabled, the respondent placed her in the position of sales associate and required her to perform the full duties of that position, without any forms of accommodation.
10The applicant also alleges that she experienced discrimination on the basis of age. The applicant is 58 years old. She states that the respondent began to pressure more mature employees to leave its workforce. It did this by reducing their hours of work and making it financially impractical for them to continue their employment. The applicant argues that she was treated differently from younger employees in this regard.
THE FACTS
11The applicant has been employed by the respondent since 1996. She was initially hired as a sales associate. Beginning in 2002, she experienced back pain that impeded her ability do some of the more physical aspects of the sales associate job, such as carrying merchandise up and down stairs.
12The applicant states that, as a means of accommodating her back condition, the respondent transferred her to a cashier only position in 2002. She states that, in addition, her co-workers often assisted her with some of the more physical aspects of that job, such as bringing her merchandise to fold and tag.
13In 2003 and 2004, the applicant provided the respondent with the following two medical notes:
a. A note from Jeffery Tenenbaum, the applicant’s rheumatologist, dated September 26, 2003, which states:
cashier
Should sit part time during work hours
b. A note from Dr. Sharon Mintz, the applicant’s family physician, dated July 12, 2004, which states:
Due to chronic lower back pain Ms. Llano should sit at work for her job.
14The applicant testified that the respondent put accommodation measures in place based on information she provided orally to her managers and based on the 2003 and 2004 medical notes. The respondent did not ask her to provide more specific information regarding her limitations, nor did it ask her to complete a functional abilities assessment form between 2002 and 2009. The applicant states that the respondent did not request any additional medical information until March 2010, well after she began a medical leave of absence.
15The applicant testified that it was “well-known” that she required accommodation at work and that her back pain was ongoing. She states that not only did the respondent have the two medical notes on file, but also that she approached each new manager to advise of her condition and limitations. Alana Rodrigues-Magalhaes, who was a stock manager with the respondent from approximately 2006 to 2008 and a temporary assistant manager from March 2009 to August 2010, testified that she and other management staff were aware of the applicant’s disability and her need for accommodation.
16The applicant states that, beginning in 2004, she formed the impression that the respondent wanted to get rid of her. She states that, although she was a full-time employee, the respondent began to reduce her hours in 2004.
17The correspondence filed by the applicant indicates that there was a dispute about the applicant’s availability for full-time hours in May 2004. The respondent wrote that the applicant had not provided sufficient availability to allow it to schedule full-time hours. At that time, the applicant advised the respondent in writing that she was available to work full-time and that her “flexibility” was seven days and seven nights a week.
18The issue of the applicant’s availability to work full-time arose again in December 2007. The respondent advised her in writing that her very limited availability was causing hardship for others. The respondent stated:
Going forward we require all employees to work at least 2 evenings per week. We also require all employees to work one day on the weekend (....) Please accept this letter as your notice in writing of such. If for any reason you are not able to comply with our request, you must advise us in writing and we will take the position that due to our demands you are not able to continue to work with our organization. We truly value you and all of your support and we do not anticipate any departures due to this.
19At the hearing, the applicant disputed that her availability was limited in or around December 2007. She states that the schedule availability forms she completed at the time would have allowed the respondent to schedule her for full-time hours.
20It is not clear that the availability issue was ever resolved. In any event, the applicant continued to work as a full-time employee through to 2009.
21On January 20, 2009, the respondent wrote to the applicant and gave her notice that she would be a part-time employee effective March 31, 2009. The respondent cites “current business needs” as the basis for this decision; it does not raise any further concerns regarding the applicant’s availability to work.
22The respondent’s letter of January 20, 2009 states:
We would also like to advise you that our company no longer has cashier only positions. You will be a sales associate and expected to perform other duties besides cashier. (...)
If for any reason you are not in agreement and do not accept the new conditions, you must advise us in writing and we will take the position that you are not able to continue to work for our organization. We truly value you and all of your support and we do not anticipate any departures due to this.
23The letter attached a job description for the sales associate position, which includes duties such as the “execution and placement” of stock shipments, cleaning, replenishing merchandise, and unpacking shipments. The applicant testified that performing these duties would be inconsistent within the physical limitations caused by her disability.
24The applicant testified that sometime in early 2009 store management withdrew any existing accommodation measures. According to the applicant, staff who had been helping her with the more physical parts of the job were no longer able to do so when management was present in the store. Alana Rodrigues-Magalhaes and Vesna Kolovick, the applicant’s co-workers at this time, confirmed that accommodation measures were removed.
25The applicant assumed the role of sales associate as required in the January 2009 letter. The applicant testified that, although her physical disability made it very difficult for her to perform the full duties of a sales associate, she did what was requested of her. She states that, because of her disability, she had to refuse work on two occasions. She states that she was not disciplined or reproached either time.
26Alana Rodrigues-Magalhaes testified that the respondent’s approach to accommodation changed in approximately March 2009. The store manager at the time advised her that all employees were to be treated equally and that no one would be given special assistance or treatment.
27Ms. Rodrigues-Magalhaes stated that the respondent’s approach towards more mature employees changed at that time as well. She was involved in interviewing potential employees. She testified that management instructed her to prefer younger employees, between the age of 16 to 24. She was also told to enforce the respondent’s dress code, which required staff to dress consistently with current fashion trends. Ms. Rodrigues-Magalhaes testified that the respondent was trying to get rid of older employees and employees who had been working for the respondent for more than two years. She understood this to be because the respondent was trying to attract a younger clientele and because these more experienced employees were earning higher wages.
28On March 16, 2009, counsel for the applicant wrote to the respondent in response to its January 20, 2009 letter. Counsel took the position that the respondent’s letter of January 2009 constituted a failure to accommodate and a constructive dismissal.
29The respondent responded to counsel on March 19, 2009. It wrote:
We would like to inform you that Myriam to this day has not ever communicated with us that she has a current health condition nor has communicated to us that she requires to be on modified work duties.
I have gone through her history with us and we have nothing recent on file that indicates she has a health issue. The only letters I have on file from doctors is from 2004, which only indicate limited amount of standing and walking for a period of 3 weeks. I also noticed there is a request from a doctor dated September 26, 2003 indicating she should be setup as a part time worker, no apparent reason as to why. We are now in 2009.
As a company we have the right to restructure our organization in accordance to the business needs. We made a decision that we cannot afford to have cashier only positions. All cashiers have been trained to be sales associates.
30I have reproduced the two medical notes referred to in this letter in full and I am not satisfied that the respondent’s interpretation of them is a reasonable one. I do not understand either doctor to be stating that the applicant must work part-time hours nor do I understand them to specify the duration for the recommended accommodation measures.
31The applicant testified that she provided the respondent with updated medical information on or about February 18, 2009. In a note of that date, her family doctor wrote:
Mrs. Llano has suffered of chronic back problems since 2003. (...) She has been on light duties since (...) This condition is chronic, she needs to remain on light duties like she has been until recently.
32The applicant testified that the respondent ignored this medical note. It did not modify her duties, nor did it request further medical documentation or clarification regarding her limitations.
33The applicant has been unable to work since August 18, 2009, and has provided the respondent with a medical note from her family physician to that effect.
34On March 4, 2010, the respondent wrote to the applicant to advise her that the store in which she had worked would be closed due to restructuring. The respondent asked the applicant to advise when she is able to return to work “so that new arrangements and accommodations due to the closure” can be made. The respondent requested a current doctor’s note, an update of the applicant’s status, and a completed functional abilities form to facilitate a return to work.
35The applicant has not responded to the respondent’s March 4, 2010 letter.
FINDINGS OF FACT
36Based on the evidence before me, I make the following findings:
a. at the material times, the applicant had a disability within the meaning of the Code;
b. in 2003 and 2004, the respondent received medical documentation establishing that she had a disability and required some form of accommodation. The documents did not specify that the condition was chronic, but they did not place a time limit on its duration;
c. I accept the applicant’s uncontradicted evidence that she also provided oral and ongoing information to her manager about her disability and the nature of her limitations;
d. until 2009, the respondent accommodated the applicant on the basis of this information. It did not ask the applicant to provide further any medical information until March 2010;
e. the respondent put measures into place to accommodate the applicant’s condition from 2003 to 2009. These included placing her in a cashier only position and having other staff assist the applicant with the more physical components of her job;
f. with these accommodation measures in place, the applicant was able to fulfil the essential duties of the cashier position;
g. the respondent withdrew accommodation measures as of March 31, 2009;
h. when the respondent withdrew the accommodation measures, it knew that the applicant had been suffering from back pain in the past. Based on the information provided orally to the managers, it knew or ought to have known that the condition was ongoing. Despite this, it took no measures to determine the status of the applicant’s condition or disability-related needs in 2009;
i. the respondent did not discuss the withdrawal of the accommodation measures with the applicant. These were withdrawn unilaterally and the applicant was advised that, if she did not accept the revised conditions of work, the respondent would deem her unable to continue working for the organization;
j. I accept that the applicant provided medical documentation to the respondent on or about February 18, 2009, indicating that she must be assigned “light duties”; and
k. I accept the applicant’s uncontradicted evidence that the respondent ignored this medical evidence and did not offer her “light duties” or request more specific medical information regarding her limitations at that time.
ANALYSIS
The Code
37The relevant provisions 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.
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member 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.
17(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.
General Principles
38The initial onus of making out a breach of the Code rests with the applicant, who must establish a prima facie case of discrimination. To do so, the applicant needs to show that she was treated differently from other employees and that a protected ground was a factor in that differential treatment. If the applicant establishes these elements, the onus shifts to the respondent to explain or justify its decisions or actions based on non-discriminatory factors.
39It is sufficient for the applicant to show that a protected ground was a factor in the differential treatment. The applicant’s age or disability need not be the only or even a substantial factor in the decision to differentiate between her and other employees.
40The Code also imposes a duty to accommodate Code-related needs up to the point of undue hardship. The Supreme Court of Canada has held that the duty to accommodate has both a substantive and a procedural component. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1, (S.C.C.) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (S.C.C.), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129, at paragraphs 22 and 42–45.
41The substantive duty to accommodate requires the employer to make the modifications or provide the accommodation necessary (short of undue hardship) in order to allow an employee with Code-related needs to participate fully in the workplace. This may include modifying duties or hours or the workplace itself, up to the point of undue hardship. See, for example, Baber v. York Region District School Board, 2011 HRTO 213.
42The procedural duty to accommodate requires the respondent to take adequate steps to explore what accommodation is needed and to assess accommodation options. That involves obtaining relevant information about the applicant’s situation, at least where it is readily available. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).
43The duty to accommodate places obligations on the employee seeking accommodation as well. An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing her employer with a reasonable amount of information about her work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship.
44In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. The Tribunal’s decision was confirmed on appeal: ADGA Group Consultants, supra.
Duty to accommodate
Did the respondent have a duty to accommodate?
45As the Tribunal explained in Baber, supra, in order to trigger the duty to accommodate under s. 11 of the Code, the applicant must show that a neutral requirement of her employment had an adverse effect on her because of a Code-related ground.
46In this case, the neutral requirement at issue is the requirement that the applicant complete the full duties of a sales associate position without accommodation. The applicant suffered from back pain and I am satisfied that, because of her disability, she was unable to do the full duties of the position without accommodation. Requiring her to do so had an adverse effect on her on the basis of her disability
47The facts of this case are somewhat different from those in Baber. There, the Tribunal found that, although the applicant showed a preference for a particular assignment, she was not unable to perform her regular work assignment. In other words, she did not establish that the requirement that she perform her regular assignment had an adverse impact on her because of disability.
48In this case, I am satisfied that the applicant could not perform the full duties of the sales association position without accommodation. I note that the applicant, in this case, did not insist that she remain in the cashier only position. She did not insist on a particular form of accommodation in a particular position. Rather, based on the evidence before me, it appears that the applicant was prepared to consider and participate in other methods of accommodation within the sales associate position, provided they were within her limitations.
49In this regard, I note that she attempted to do the sales associate position from March 31, 2009 to August 2009 without accommodation. I also note the applicant’s counsel’s letter to the respondent of March 16, 2009, which asks that the respondent either confirm that the applicant’s employment would not be altered or, in the alternative, that satisfactory accommodation would be provided.
50For these reasons, I find that the applicant has made out a prima facie case of discrimination and has triggered the duty to accommodate under section 11 of the Code. As I have indicated, once the duty to accommodate has been triggered, the respondent employer has both procedural and substantive obligations. I consider each of these obligations in turn.
Procedural duty to accommodate
51The respondent has failed to meet its procedural duty to accommodate the applicant in two ways. First, it unilaterally withdrew existing accommodation measures in 2009, without considering the applicant’s Code-related needs and without consulting the applicant in this regard. Second, the respondent ignored medical information provided by the applicant in February 2009.
52From 2002 to early 2009, the respondent accommodated the applicant based on the information she had provided. This included two medical notes as well as oral updates. While the medical notes were certainly dated, there is no evidence before me that the respondent took any steps to inquire into the applicant’s condition in 2009 or to require updated medical information before unilaterally withdrawing existing accommodation measures. It is significant that the respondent threatened the applicant with termination if she did not accept new conditions of work, which did not include any accommodation measures.
53While the respondent is certainly entitled to restructure its organization to meet its business needs, the Code imposes an obligation on the respondent to consider whether that restructuring has an adverse effect on employees with disability-related needs and whether accommodation short of undue hardship is appropriate. In this case, there is no evidence before me that the respondent took any such steps.
54Even if the respondent did, for business reasons, do away with all cashier only positions, it had an obligation under the Code to determine whether the applicant required accommodation in the sales associate position.
55Second, the applicant provided updated medical information when asked to so by the respondent. Although this medical information, provided in February 2009, did not specify the applicant’s limitations, the respondent did not ask for follow up information until almost one year later, in March of 2010. By that time, the store was closed and the applicant had been on medical leave for approximately seven months.
56The respondent’s procedural duty to accommodate includes an obligation to react to the medical information provided by the applicant in February 2009. It may be that the information provided was not sufficient to establish what, if any, accommodation was required. It was certainly open to the respondent to seek more specific information regarding the applicant’s limitations at that time. However, under the Code, it was not open to the respondent to ignore the information provided or to dismiss it as insufficient without engaging in further discussions with the applicant.
57Accordingly, I find that the applicant was discriminated against in the context of his employment when the respondent breached its procedural duty to accommodate her.
Substantive duty to accommodate
58There is conflicting evidence before me regarding the legitimacy of the applicant’s transfer to the sales associate position. In its correspondence to the applicant, the respondent states that the transfer was for business reasons and that it had done away with all cashier only positions. The applicant states that, after transferring her, the respondent proceeded to hire at least two full-time cashiers.
59I do not need to resolve this factual dispute. While the applicant might have preferred to work as a cashier only, she has consistently been open to working as an associate provided that she was accommodated in this position.
60Based on the applicant’s position, I do not need to determine whether accommodation, in the circumstances, required that the applicant continue in the cashier only position. Rather, the issue is whether the respondent failed to accommodate the applicant in the position of sales associate.
61The applicant also performed the job of sales associate from March 2009 to August 2009 without any accommodation. She states that, with some assistance from her co-workers, she would have been able to continue to fulfil the essential duties of that position. To some extent, these kinds of accommodation had been provided in the past when co-workers had assisted her with the more physical aspects of the cashier job. She also testified that, when she worked as a sales associate from March to August 2009, she attempted to work as much as possible as a cashier. She suggested that, even if a full-time cashier only position was no longer available, the respondent could have accommodated her by allowing her to work on the cash as much as possible.
62In terms of accommodation measures, the medical evidence speaks only of periods of sitting and of “light duties”. Based on this information alone, it is difficult for me to determine whether the above-mentioned accommodations were appropriate or consistent with the applicant’s limitations.
63However, based on the evidence before me, I am satisfied that that applicant required some form of accommodation in the sales associate position. The evidence before me is that the respondent provided no accommodation whatsoever. Further, because the respondent did not participate in this proceeding, there is no evidence before the Tribunal that accommodating the applicant would amount to undue hardship.
64In the circumstances, I find that the respondent failed in its substantive duty to accommodate the applicant. Although it knew that the applicant’s disability impeded her ability to do all the duties of a sales associate, it provided no accommodation measures as of March 31, 2009.
Summary of conclusions regarding the duty to accommodate
65Based on the evidence before me, I find that the respondent failed in both its procedural and substantive duties to accommodate the applicant. I find also that the applicant cooperated in the accommodation process. She was responsive to requests for information and open to considering options for accommodation beyond the cashier only position.
Did the respondent discriminate against the applicant on the basis of her age?
66The applicant believes that the respondent’s treatment of her was, in part, related to her age. In this regard, she relies upon:
a. Ms. Rodrigues-Magalhaes’ evidence that the respondent’s approach to older workers changed in March 2009, that it sought to hire younger employees and force more mature employees to leave its workforce;
b. reductions in her hours of work, beginning in 2004; and
c. the applicant’s oral evidence that the store manager made a sarcastic comment that older people do not like loud music.
67The evidence before me does not establish on a balance of probabilities that the applicant’s age was a factor in the respondent’s treatment of her. I understand that the applicant felt mistreated, but there is not sufficient evidence for me to conclude that her age was a factor in this treatment.
68First, Ms. Rodrigues-Magalhaes gave evidence that, as of March 2009, age was a factor in the respondent’s hiring process. While she testified that she was involved in scheduling staff, she did not state that age was ever a factor in scheduling. In her evidence, she suggested that enforcement of the dress code was meant to have an adverse impact on older employees. However, there was no suggestion that the applicant’s attire was inappropriate or that she was adversely affected by the enforcement of the dress code. Ms. Rodrigues-Magalhaes did not otherwise explain how the respondent’s approach towards more mature workers applied to encourage them to leave the workplace or explain what, if any, impact it could have had on the applicant.
69I note that Ms. Kolovick also testified about the respondent’s position regarding mature workers. She testified that she overheard management discussing its approach, but she was unable or unwilling to identify the individuals involved in the discussions. As I explained at the hearing, I am not able to give any weight to this aspect of Ms. Kolovick’s evidence.
70The applicant alleges that her hours were reduced, beginning in 2004. This is well before the change to the respondent’s approach to older workers. In light of this and in light of Ms. Rodrigues-Magalhaes’ evidence, I am not prepared to infer that the applicant’s age was a factor in any reduction in the applicant’s scheduled hours.
71In regards to the comment about loud music, it is not clear to me that it was directed at the applicant. In the circumstances, I am not prepared to conclude that the comment constituted discrimination on the basis of age.
72Finally, the applicant gave evidence that the respondent did not pay out her vacation in a timely manner and that it withheld her and other employees’ pay for hours that they had worked. While these may not be proper employment practices, based on the evidence before me, I cannot conclude that the applicant was treated differently from other employees or that her age or disability were factors in regards to these issues.
Record of offences and reprisal or threat of reprisal
73The applicant did not lead any evidence regarding the allegation that she suffered reprisals or threats of reprisals based on her assertion of a Code-related right. She did not lead any evidence regarding record of offences. Accordingly, there is no basis for me to conclude that the respondent breached the Code on these grounds.
REMEDIES
74Having concluded that the respondent violated the applicant’s right to be free from discrimination under the Code, I must determine what remedy is appropriate.
75The Tribunal's remedial jurisdiction is set out in section 45.2(1) of the Code, which provides that the Tribunal has the power to order monetary compensation for injury to dignity, feelings and self-respect, to order restitution, and to direct any party to do anything that promotes compliance with the Code.
76At the hearing, the applicant requested damages for one year of lost wages and reinstatement of benefits. She is not seeking to return to work for the respondent.
77The applicant earned $11.53 per hour. According to correspondence from the respondent dated March 19, 2009, the applicant worked an average of 25 to 36 hours per week as a full-time employee.
78I am satisfied, based on the evidence before me, that, but for the discrimination, the applicant would have continued to be a full-time employee of the respondent, working on average 31 hours per week. She would have earned approximately $358 per week or $18,586 per year.
79The applicant testified that she attempted to mitigate her damages. She has depression, which she says was aggravated by the incidents involving the respondent. She states also that she has limited education and that her physical limitations prevented her from seeking the kinds of jobs she had held in the past, including retail sales and factory work. Nevertheless, the applicant states that she applied for five or six jobs in tourism. She also applied for a job and interviewed with a networking company.
80Beginning in August 2010, the applicant was accepted for a retraining program with Employment Insurance. She is retraining to be a social worker.
81I find that it is appropriate to award damages for lost income in the amount of $18,586. In this regard, I am mindful of the applicant’s age, her limited educational background, her depression and physical limitations, and her evidence regarding her attempts to mitigate her damages.
82The applicant testified that she relied on her employment benefit plan to cover most of the cost of prescription medication she requires. She has not had benefit coverage since September 2010 and she has relied on samples received from her physicians since that time. She states that, with the exception of $450 for emergency dental work, $200 for glasses, and $80 for an eye examination, she has not paid for services that would have been covered or partially covered by her benefits plan. The applicant testified that 80% of the dental fees and eye examination fees would have been covered by her benefit plan. She states that she would have received $100 per year to cover the cost of eyewear.
83It is not appropriate or feasible to require the respondent to reinstate the applicant’s benefit plan. However, it is appropriate to award the applicant $524 as compensation for the lost benefits. This represents 80% of the costs for dental fees (which totalled $450); 80% of the cost of optometrist fees (which totalled $80); and $100 for eyewear.
84Where an applicant establishes that the Code has been contravened, she is also presumed to be entitled to an award for injury to dignity, feelings and self-respect, which includes recognition of the inherent value of the right to be free from discrimination. The Divisional Court in ADGA Group Consultants, supra, confirmed that an award to compensate for the “experience of victimization” is predicated upon a number of considerations, including: the impact of the infringement; the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome. See also Baylis-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28.
85In the circumstances, I find that $20,000 is an appropriate award for injury to dignity, feelings and respect. In this case, the discrimination continued over a period of several months, during which time the applicant struggled to meet the demands of the position. The applicant had been a long-term employee, who felt vulnerable because of her limitations. The respondent’s treatment of her exacerbated her depression and impacted her feelings of self-worth.
ORDER
86Having found that the respondents violated the Code, the Tribunal makes the following orders:
Within 30 days of the date of this Decision, the respondent shall pay the applicant $20,000 for her losses arising from the infringement of her rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43, as amended, from the date of the Application;
Within 30 days of the date of this Decision, the respondent shall pay the applicant $18,586 less statutory deductions for her lost wages plus pre-judgement interest on this amount in accordance with section 128 of the Courts of Justice Act;
Within 30 days of the date of this Decision, the respondent shall pay the applicant $524 as compensation for her lost benefits plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, from the date of the Application; and
The respondent shall pay the applicant post-judgement interest on these amounts in accordance with the Courts of Justice Act calculated 30 days from the date of this Decision.
Dated at Toronto, this 18th day of March, 2011.
“Signed by”
Michelle Flaherty
Vice-chair
