Kohli v. International Clothiers, 2012 HRTO 153

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vandana Kohli

Applicant

-and-

International Clothiers, Malik Awan and Shafiq Bajwa

Respondents

DECISION ON REMEDY

Adjudicator: David Muir

Date: January 19, 2012

Citation: 2012 HRTO 153

Indexed as: Kohli v. International Clothiers

APPEARANCES

Vandana Kohli, Applicant ) Victoria Shen, Counsel

International Clothiers, Malik Awan, ) Malik Awan, Representative and Shafiq Bajwa, Respondents )

BACKGROUND

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"), alleging discrimination in employment on the basis of sex. In a previous decision, 2012 HRTO 21, dated January 5, 2012, I confirmed various findings made at the hearing of this matter on January 4, 2012. The matters determined or confirmed in 2012 HRTO 21 are set out below for context.

2The hearing of this case was scheduled to begin at 9:30 a.m., Wednesday January 4, 2012. A Notice of Confirmation of Hearing setting out the date had been sent to the parties in July 2011. There was no indication that the respondents were unaware of the hearing or the time it was scheduled to begin.

3At the time and place set for the hearing, no one was in attendance for the respondents. In accordance with the Tribunal's usual practice the hearing was adjourned for 30 minutes. At 10:00 a.m., the hearing resumed. None of the respondents were present. I was satisfied that the respondents had received proper notice of the hearing and the hearing proceeded in their absence.

4After some discussion with the applicant about how to proceed, the applicant was affirmed and adopted the Application Form, her Reply and a document entitled "Opening Statement" as her evidence. She was then questioned by her counsel and myself.

5At the conclusion of her evidence and following limited submissions by applicant's counsel, I made findings in respect of the allegations made in the Application. Amongst my conclusions were that the applicant had been passed over for promotion to Assistant Manager positions on two occasions, in November and December 2009, because she was a woman. I also concluded that the applicant had been told by her store Manager, the respondent Bajwa before either promotion possibility was known to her, in October 2009, that she was not suitable for an Assistant Manager position because she was a woman. I also found that when she challenged these decisions and the reasons for them to the District Manager, Mr. Awan, she was subject to reprisal by Mr. Bajwa by amongst other things dramatically reducing her hours of work, requiring her to work on weekends and stripping her of responsibilities she had been exercising in the workplace prior to her seeking to vindicate her rights to be free from discrimination under the Code. I also found based on her evidence that when she raised the issue with Mr. Awan, he did nothing to investigate the situation. Finally, I found that when she raised the issues again in writing with Mr. Awan and Mr. Bajwa in March 2010, the individual respondents turned the matter over to the corporate respondent's Human Resources Manager who purported to conduct an investigation but one which did not include talking to the applicant. I found that this was not an investigation at all.

6After making these determinations orally at the hearing, I asked for the applicant's submissions on remedy. Just prior to the applicant concluding her remarks, one of the respondents, Mr. Awan, arrived, stating that he was representing all of the respondents and stating that there had been a scheduling mix-up. I advised him that I had made decisions on liability and that we were hearing the submissions of the applicant on remedy and that when this was concluded I would hear from him. I summarized the applicant's position on remedy for the respondent.

7After the applicant had concluded her submissions on remedy, the respondent attempted to make submissions on the merits and to give evidence. I indicated again that I had made decisions on those issues and that that part of the hearing was concluded. I asked him what he proposed that we do, which prompted further submissions on the merits and further evidence. I indicated that I only wanted to hear his submissions on remedy at that point and that if he was asking me to re-open the hearing to entertain his evidence we would deal with that issue in writing after the hearing. Mr. Awan was clearly not in a position to respond to the remedial issues at the hearing. Accordingly I indicated that I would entertain the respondent's submissions on remedy in writing and reiterated again the applicant's position before me on the appropriate remedy. I indicated to the respondents again that I had found based on the evidence of the applicant and the documents entered into evidence, that the Code had been violated by the respondents. I further indicated that substantially all of the applicant's allegations in the Application and her Reply had been substantiated on the evidence and their submissions on remedy should take that as their starting point.

8In an Interim Decision 2012 HRTO 21, which included the above narrative, I indicated to the parties that although not expressly framed in these terms at the hearing, if the respondents' sough leave to re-open the hearing to tender evidence and make submissions on the merits of this Application given that those matters had been determined the only mechanism available to the respondents would be a Request for Reconsideration pursuant to section 45.7 of the Code and Rule 26 of the Tribunals Rules of Procedure.

9Accordingly I made the following Directions which I confirmed in 2012 HRTO 21:

a. Within seven days of the date of the hearing the respondents will deliver and file their submissions, if any, on remedy in light of my findings,

b. If the respondents wished to have the hearing re-opened to consider their evidence and submissions on the merits of the Application, they will deliver and file a Request for Reconsideration within seven days of the date of the hearing,

c. If further submissions are required the Tribunal will contact the parties.

RECONSIDERATION

10The hearing took place on January 4, 2012. As of the end of the business day January 18, the respondent had not provided any submissions as directed, nor had they filed a Request for Reconsideration. My findings on liability as set out in 2012 HRTO 21 stand and I turn now to consider the appropriate remedy.

DECISION ON REMEDIES

11In order to deal with the remedies issues further findings of fact must be made. On the basis of the uncontradicted evidence of the applicant, which I accept, there being no reason not to, I find that the applicant continued to work for the respondent for some period of time notwithstanding their treatment of her. In this regard the extent of the respondent's reprisal against her was significant. As indicated above the respondent cut her hours virtually in half, from a typical week of 30 to 32 hours down to weeks of 12 to 16 hours. Towards the end of her employment some weeks she would work fewer than 12 hours. In addition to this dramatic reduction in hours which the applicant stated, correctly in my view, would constitute a constructive dismissal at common law, the respondent Bajwa and Awan stripped her of her key holder status and made it clear in a way apparent to all who worked in the store that she was being punished by the employer for some transgression. Although the applicant had been working Monday to Friday, subsequent to her objections to being passed over in favour or a man the applicant began to be scheduled to work on Sundays, the one day of the week which she could spend with her husband who often worked a six day week. The applicant testified and I accept her evidence that the respondents knew that Sundays off were important to her for that reason. I accept her evidence. The applicant also testified that her humiliation was public, in that it could not have escaped notice that her status in the workplace had been significantly diminished. I accept her evidence on this point as well.

12Despite this treatment of her the applicant remained in the workplace. She testified that she needed the income to support her family. Accordingly the applicant remained an employee for many months after she filed this Application. She testified that she looked for other jobs and in September 2010 found work with another retailer but it was only part time and the times conflicted with the diminishing hours she received from the respondent and she quit that job. The applicant left her employment with the respondent employer in May 2011 when she found a position with another retailer. In her new position she earned more money and has taken on managerial responsibilities.

13The applicant testified that the treatment she experienced subsequent to the events of November and December 2010 made her ill. Although the diagnosis was only made shortly after she left this employer she testified that she developed symptoms of depression while employed by the corporate respondent. The applicant submitted medical information to support these claims and in the absence of any evidence to the contrary I accept this evidence.

14The applicant also gave evidence with respect to her earnings during the period as well as some evidence of the wages earned by an assistant manager. The applicant was able to provide pay stubs and other documentation with respect to her remuneration over the material periods. I am satisfied that the information is sufficient to determine the matters in issue in relation to remedy.

15Section 45.2 (1) of the Code provides as follows:

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

Monetary Compensation

16The applicant seeks damages for injury to her dignity, feelings and self respect. She also seeks compensation for lost income based on what she might have earned had she not been passed over for promotion to assistant manager and what she did earn as an employee of the respondent.

Non-Pecuniary Damages

17In assessing the appropriate compensation for injury to dignity, feelings and self-respect, there are two main considerations: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880. In Arunachalam v. Best Buy Canada, the Tribunal reviewed at paras. 52-54 the development of its approach to the assessment of damages:

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, 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, 2005 HRTO 53 at paras. 34-38.

The considerations discussed in Sanford v. Koop are:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant's loss of self-respect
• A complainant's loss of dignity
• A complainant's loss of self-esteem
• A complainant's loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

18The applicant is entitled to an award of damages under this head. I find that an award of $12,000 is the appropriate amount in these circumstances. I make that finding for the following reasons. The applicant was a good employee whose service was recognized by the respondent and was reflected in her increasing responsibility in the workplace. The applicant was a key holder and in effect an assistant manager for much of 2009. As it turns out the only reason that this status was not confirmed was that she was a woman and the respondent Bajwa chose to tell her so in October 2009. When she challenged their decision to deny her a promotion on two occasions the respondents engaged in a sustained effort to drive her out of the workplace. The respondents' treatment of her was more than enough, in my view, to justify her leaving the workplace, but I accept her evidence that because of her and her family's economic circumstances the applicant was left with little choice but to stay and endure the humiliation of remaining in their employ notwithstanding the evident diminution in her status and reduced income. Although the medical evidence offered was limited I also accept the applicant's evidence that the stress associated with working under the conditions imposed on her by the respondent made her ill.

Wage Loss

19Under the Code, a person whose rights have been infringed is entitled to monetary compensation for actual losses arising out of the infringement. The purpose of compensation is to restore a complainant as far as reasonably possible to the position that she would have been in had the discriminatory acts not occurred. In this case the applicant seeks the difference between what she could have earned as an assistant Manager and what she actually did earn with her reduced hours as a result of what I have found is a reprisal.

20I find that the applicant would have been made an assistant Manager but for the fact that she was a woman. The respondent Bajwa confirmed that this was the case in October 2009. In the absence of any evidence at all to contradict the applicant there is no other conclusion to come to. I find that the applicant is entitled to the difference between what she did earn and what she would have earned as an assistant manager from December 1, 2009 to her leaving her employment in May 2011. I find that she is entitled to this differential in wages for the entire period of her employment before leaving because I accept the applicant's evidence that after she concluded that the respondents were not going to take her concerns seriously she began to look for work and only remained in the corporate respondent's employ until she found suitable alternative employment. If she had not the result might have been different.

21The applicant claimed that as assistant manager she would have earned $36,270 over the period December 1, 2009 to May 31, 2011, on the basis that assistant managers earned $465 per week. The applicant provided documentary evidence to substantiate earnings of $12,683.41 over the same period. On that basis the applicant sought an award of $23,586.59 reflecting the difference between what she would have earned but for the discrimination less what she actually earned on her reduced hours. In the absence of any contradictory evidence from the respondents I accept the applicant's evidence as it relates to this issue.

Pre and Post-Judgement Interest

22The applicant seeks pre-judgement and post-judgement interest on the amounts claimed above. The applicant is entitled to an award of pre-judgement interest on the unpaid wages awarded calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, from January 1, 2011 roughly the mid point in time from the beginning of the period for which wages are owing to the date of hearing. The applicant is entitled to post-judgement interest on all monetary amounts ordered calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, from the date that is 60 days after the date of this Decision.

23The applicant submitted that the respondents should be jointly and severally liable for any monetary awards I make. I am not satisfied that this would be appropriate in these circumstances. I have no evidence, for example, that the conduct of the individual respondents, Mr. Bajwa's in particular, was not pursuant to corporate policy and in fact the response of the Director of Human Resources who purported to conduct an investigation of the applicant's concerns without speaking to her suggests that it might have been. In the absence of any evidence that the corporate respondent is not able to respond to the monetary award, I find that such an Order is not appropriate in this case.

Remedies to ensure Future Compliance

24The applicant sought an Order requiring the two personal respondents to undergo some human rights training. The applicant also sought an Order requiring the respondent to develop an anti-discrimination policy with an appropriate complaints mechanism.

25The applicant submitted that the evidence established that the individual respondents have little understanding of their obligations under the Code. Based on the evidence before me that conclusion seems inescapable. As indicated above the Manager of Human Resources became involved in this dispute and appears to have an equally uncertain grasp of the issues. Similarly the respondent does not appear to have an anti-discrimination policy at all. In their response the respondents provided an anti-harassment policy which did not include a complaints mechanism and did not provide any mechanism for situations such as exist here.

26I agree with the applicant that an Order for future compliance as suggested is appropriate in the circumstances. I also find it appropriate that the current Human Resources Manager for the corporate respondents should also receive some human rights training in order to better assist the corporate respondent's employees in performing their duties in accordance with the Code's requirements.

ORDER

27The Tribunal makes the following remedial Orders:

a. The respondent International Clothiers will pay to the applicant the sum of $12,000 in damages for losses associated with injury to her feelings, dignity, and self-respect, within 30 days of this Decision.

b. The respondent International Clothiers will pay to the applicant $23,586.59 in lost wages for the period December 1, 2009 to May 31, 2011.

c. The respondent International Clothiers shall pay to the applicant pre-judgement interest on the amounts set out in paragraph (b) above from January 1, 2011 in accordance with the Courts of Justice Act, R.S.O. 1990, c. C. 43, within 30 days of the date of this decision.

d. The respondent International Clothiers shall pay the applicant post-judgment interest on any accumulated principal and interest on the amounts set out above in paragraphs (a), (b) and (c) calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, from the date that is 60 days after the date of this Order.

e. Within 60 days of the date of this Decision, the individual respondents and the current Human Resources Manager shall complete the Ontario Human Rights Commission's online training module on human rights and provide copies of the certificates of completion to the applicant.

f. Within 90 days of the date of this Decision International Clothiers will retain an expert in human rights law to develop a comprehensive anti-discrimination policy which will include amongst other features an internal complaints mechanism.