HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anna Deane Applicant
-and-
Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Oscar Mosquera and Stephen Waldie Respondents
DECISION ON REMEDY
Adjudicator: Brian Cook Date: September 18, 2012 Citation: 2012 HRTO 1753 Indexed as: Deane v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Anna Deane, Applicant Self-represented
The Ministry of Community Safety and Correctional Services, Oscar Mosquera and Stephen Waldie, Respondents Jinan Kubursi, Counsel
Introduction
1This Decision is further to Decision 2011 HRTO 1863, dated October 18, 2011 (“the Decision on the merits”). That Decision found that the applicant had experienced discrimination in employment because of age, contrary to section 5 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision is the decision on remedy. It also deals with a request that the personal respondents be removed as respondents to the Application.
2The hearing on remedy was held on April 30, 2012. I heard evidence from the applicant, Dianna Seth and Carol Del Grosso, who are friends of the applicant, and Mr. Mosquera one of the personal respondents. The applicant and Ms. Kubursi, counsel for the respondents, made submissions. The applicant provided a copy of her written submissions.
Background
3The factual history that underlies this Application arises out of the end of the applicant’s long and successful career with the Ontario Public Service. As discussed in detail in the Decision on the merits, the applicant worked in secondment positions from 2000 until she retired in 2010. During those ten years her salary and responsibility levels increased in accordance with the various seconded positions she held. In the Ontario Public Service, when a secondment ends, the employee may return to her “home” position. By 2010, the salary and responsibility levels the applicant had achieved in the secondment positions significantly exceeded the salary and responsibility levels in her home position.
4In 2009, the applicant was working as a Community Safety Analyst in the Program Development Section of the Ministry of Community Safety and Correctional Services. Mr. Mosquera, one of the personal respondents, was the Manager of the Program Development Section.
5As discussed in detail in the Decision on the merits, the position that the applicant held in 2009 was posted as a permanent job. There was a competition. The applicant applied for the job but was not the successful candidate. She came fourth in the competition. The top three candidates were ultimately hired. Because the applicant no longer had a position in the Program Development Section, her option was to return to her home position, or apply for a different secondment. She decided to exercise her early retirement option instead.
6The Decision on the merits dealt with the applicant’s allegations concerning this chain of events. The applicant alleged that the personal respondents, and Mr. Mosquera in particular, pushed her into retirement even though this was not her preferred option. She alleged that the decision to establish a competition and to fill her position on a permanent basis instead of allowing her to continue to fill it on a secondment basis, was discriminatory. She alleged that the competition and interview process were discriminatory and that she should have been the successful candidate and that the reason she was not the successful candidate was her age and the fact that she was eligible for retirement. She also alleged that the Ontario Public Service Workplace Discrimination and Harassment Prevention (WDHP) Policy was not followed and that the respondents failed to properly and fairly investigate her complaints of discrimination.
7The applicant also alleged that on various occasions, Mr. Mosquera made comments that were intended to encourage her to retire. This included telling her about the advantages of retirement, having her speak to retired colleagues on his office speakerphone, and asking her if she was certain that she wanted to submit her application for the Community Safety Analyst position.
8For the reasons set out in the Decision on the merits, I concluded as follows, at paragraphs 133 – 135:
[T]he applicant was treated differently in employment because she was an older person who was eligible for retirement. The differential treatment consisted of comments that encouraged the applicant to retire and this constitutes discrimination on the grounds of age contrary to section 5 of the Code.
I have found that the applicant has not proved the other allegations of age discrimination.
In these circumstances, the applicant may be entitled to financial compensation for injury to dignity, feelings and self-respect. She is not entitled to reinstatement, compensation for lost wages, or adjustment to her pension because these are not damages that flow from the allegations that I have found the applicant has proved.
9Shortly before the hearing on the merits (held in July 2011), the respondents filed a Request asking that the personal respondents be removed as respondents. I determined that I was not prepared to deal with that request on a pre-hearing basis and that I wished to hear the evidence before deciding this issue.
10In the Decision on the merits, I concluded, at paragraph 20:
Having heard the evidence and in light of my conclusions, and in light of the fact that the corporate respondent has assumed full liability, it is not now necessary to deal with this issue.
11In December 2011, counsel for the respondents sent an email to the Tribunal asking that the request to remove the personal respondents be dealt with. I issued a Case Assessment Direction dated January 6, 2012, indicating that this issue could be raised at the hearing on remedy.
12The hearing reconvened on April 30, 2012, to hear evidence and submissions on the issue of remedy for the infringement of the applicant’s Code-protected rights. I also heard submissions on the respondents’ request that the personal respondents be removed as respondents.
The applicant’s evidence and submissions
13The applicant explained that she does not agree with the findings in the Decision on the merits that the infringement of her Code-protected rights was limited to comments Mr. Mosquera made to her that encouraged her to retire. She continues to believe that the recruitment process, as well as the interview process and the fact that she was not hired for the Safety Analyst position were discriminatory. The applicant did not, however, file a Request for Reconsideration.
14The applicant testified that the manner in which her career ended caused considerable stress and greatly impacted her life and her enjoyment of life. I have no reason to doubt this but I found in the Decision on the merits that the factors that led to the end of the applicant’s career were not discriminatory. The applicant did experience discrimination however as a result of the comments made by her manager which encouraged her to retire. The applicant is entitled to monetary compensation for the effects of that discrimination but is not entitled to compensation for the effects of the non-discriminatory factors that contributed to the end of her career.
15The applicant testified that she was particularly upset when Mr. Mosquera asked her if she wanted to withdraw her application for the Safety Analyst position. She said the pride that she took in her work was damaged and she felt a significant loss of dignity.
16Two friends called by the applicant as witnesses confirmed that their relationships with the applicant were negatively impacted by the totality of events experienced by the applicant at her work, although they continued to see the applicant socially. Ms. Seth testified that it was obvious to her that the applicant was unhappy at work and this was very unusual as she had historically loved her work. The applicant did not give details of what was going on at work but Ms. Seth understood that the applicant felt marginalized. She recalled that the applicant had been particularly upset about having to apply for her own job and that the applicant’s stress seemed to escalate when she was not a successful candidate.
17Ms. Del Grosso testified that the applicant was always a very outgoing person who enjoyed her job until Mr. Mosquera became her manager. Ms. Del Grosso understood from the applicant that her new manager was not interested in her work and only wanted her to retire. Ms. Del Grosso testified that the applicant told her that Mr. Mosquera had asked her to withdraw from the job competition and that the applicant was very upset and distraught about this. She also recalled the applicant telling her about the phone conversation with two of Mr. Mosquera’s acquaintances about the benefits of retirement. She recalled that the applicant was very upset when she was not the successful candidate in the competition and that the applicant did not want to return to her home position because of the associated loss of pay.
18The applicant testified that in addition to the emotional injuries (arising from both the Code and non-Code events) she also suffered a significant financial loss as a result of the events in 2008 and 2009. Again, however, the majority of the applicant’s testimony on this point related to the impact of the unsuccessful job competition which I have found did not infringe the Code. Accordingly, this testimony is not relevant to my determination of an appropriate remedial award.
19The applicant testified that she experienced significant injury to her dignity, feelings and self-respect as a result of the comments that Mr. Mosquera made and because the recruitment and interview process were discriminatory and she was forced to retire. The applicant submitted that she should be awarded monetary compensation in the order of $20,000 as compensation for the injury to dignity, feelings and self-respect that she experienced, and she referred to Decisions of the Tribunal where such compensation has been awarded.
The respondents’ submissions on the applicant’s entitlement to monetary compensation
20The respondents concede that, based on the findings in the Decision on the merits, the applicant is entitled to monetary compensation for injury to dignity, feelings and self-respect. Ms. Kubursi reviewed a number of Tribunal Decisions and suggested that the range of the award for compensation for injury to dignity, feelings and self-respect in this case could be between $1,500 and $7,500. She submits that the actual award should be in the lower end of this range. Ms. Kubursi noted that the Decision that seems most similar on the facts is Weiler v. Farncomb Kirkpatrick & Stirling Surveying, 2009 HRTO 528. In that case, an employee was asked on two occasions to identify the date by which she intended to retire. In that case the Vice-chair accepted that the applicant had felt pressured to set out retirement dates at a time when she was not thinking about retirement. The Decision indicates that the applicant’s evidence about how this impacted on her was “very brief”. The Decision awarded the applicant in that case $3,000 for injury to dignity, feelings and self-respect.
Conclusions on the applicant’s entitlement to monetary compensation
21Throughout the hearings in this matter, the applicant delivered her evidence in a credible, clear and straight forward manner. There was no indication that she exaggerated her evidence either in regard to the factual events underlying the Application or in regard to her evidence about the effects the work-related stress had on her.
22I accept that the applicant experienced significant injury to her dignity, feelings and self-respect as a result of the work-related events in 2008 and 2009.
23However, for the reasons set out in the Decision on the merits, only a portion of the applicant’s overall experiences at work in 2008 and subsequently involved an infringement of her Code-protected rights. As noted, the Decision on the merits found that the applicant was treated differently in employment because she was an older person who was eligible for retirement. The differential treatment consisted of comments that encouraged the applicant to retire and this constitutes discrimination on the grounds of age contrary to section 5 of the Code. However, the Decision on the merits found that the applicant’s other allegations of age discrimination, including her allegations that the job recruitment process, the interview process and the selection process were discriminatory, had not been established.
24The respondents submit that any comments that Mr. Mosquera made about retirement were not intended to be discriminatory. The respondents submit that Mr. Mosquera was trying to be helpful by ensuring that the applicant had full knowledge of the benefits of retirement to assist her in making decisions about what to do.
25On this point, I accept that Mr. Mosquera’s comments were not made with an intention to discriminate or disparage the applicant on the basis of her age and that they were well intentioned. However, under the Code, the primary focus is the effect on the applicant of the discriminatory actions. Even well-intentioned comments and advice can have unintended discriminatory effects. In this case, the applicant’s experience was that Mr. Mosquera made several remarks that seemed intended to encourage her to retire. As explained in the Decision on the merits, the result was that Mr. Mosquera’s well-intended comments and advice had an unintended discriminatory effect on the applicant.
26As a result, the applicant is entitled to some monetary compensation for the injury to dignity, feelings and self-respect that she experienced as a result of the comments that encouraged her to retire. But she is not entitled to monetary compensation for any injury to dignity, feelings and self-respect that she experienced as a result of the recruitment process, the interview process and the selection process. It is therefore necessary to apportion the effects of the applicant’s overall experience and the effects that can be attributed to the comments made by Mr. Mosquera.
27In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the Tribunal’s general approach to assessing compensation for injury to dignity, feelings and self-respect in the following terms, at paragraphs 52 – 54:
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.
28In a case like this, where there are both Code-related and non-Code-related factors that contributed to the overall situation and that impacted on the applicant’s dignity, feelings and self-respect, the assessment of the impact on the applicant is complicated by the need to apportion between the factors that are Code-related and those that are not.
The objective seriousness of the conduct
29In this case, the objective facts are that the applicant’s manager made a number of comments that caused the applicant to understand that her manager was encouraging her to retire. While these were well intentioned, they were nevertheless discriminatory in their effect.
30The applicant argues that she experienced a “poisoned work environment” in the sense that the combined effect of the events, actions and comments in 2008 and 2009 made it impossible for her to continue to work in the environment, causing her to go off on sick leave and ultimately retire. In my view, to the extent that the workplace became a “poisoned work environment” for the applicant, it became so because of having to apply unsuccessfully for her own job. In my view, the comments and suggestions about retirement were not such that they resulted in a “poisoned work environment”.
31In my view the impugned conduct in this case falls in the lower end of the objective seriousness spectrum.
The impact on the applicant
32As discussed above, I accept that the events in 2008 and 2009 caused the applicant considerable stress and distress. However, in my view, most of this resulted from the secondment process and the fact that the applicant was not a successful candidate for the job she had been doing. The alternative of returning to her home position was not tenable for the applicant.
33However, I accept that the comments that encouraged the applicant to retire affected the applicant and contributed to the stress and distress that she experienced and specifically resulted in injury to the applicant’s dignity, feelings and self-respect. I also accept that because of the applicant’s overall situation, including the impact of the non-discriminatory factors, Mr. Mosquera’s comments likely had a more significant impact than they would have had in isolation.
34The Tribunal’s jurisprudence suggests that in cases where the objective seriousness of the respondent’s conduct is at the low end and where the impact on the applicant is also at the low end, the monetary remedy to which the applicant is entitled for injury to dignity, feelings and self-respect is generally $5,000 or less, see for example: Thompson v Selective Personnel Ltd., 2009 HRTO 1224; Burns v Employers Choice of Staffing of Canada Ltd., 2009 HRTO 1255; Abott v Toronto Police Services Board, 2009 HRTO 1909; Patterson v Gowan Property Management, 2009 HRTO 2025; Haykin v. Roth 2009 HRTO 2017; Williams v Hudson’s Bay Company/Zellers 2009 HRTO 2168; Vaid v Freedman Formalwear 2009 HRTO 2273; Armstrong v Anna’s Hair & Spa 2010 HRTO 1751; Callaghan v 1059711 Ontario Ltd. 2012 HRTO 233.
35In this case, I have found that because of the applicant’s overall circumstances, the comments that suggested she should retire had a greater impact on her than might otherwise have been the case. In the circumstances of this case, I conclude that the applicant is entitled to monetary compensation in the amount of $7,000 for injury to dignity, feelings and self-respect.
Other remedies
36The applicant seeks additional remedies, including an order that the personal respondents undergo training, specifically with respect to age discrimination and that the respondent Ministry develop a specific age discrimination training program for all Ministry managers and staff.
37At the hearing on remedy, Mr. Mosquera provided testimony about his experience with the employer’s WDHP program. He testified that he has received WDHP training and that he has also received facilitator training and has conducted fact finding like the one conducted in this case by Dr. Prime. Mr. Mosquera testified that he is personally committed to a barrier free workplace. He considers himself to be an advocate for diversity in the Ontario Public Service (OPS) and has been active in an OPS diversity project. Mr. Mosquera indicated that as a person of Jamaican heritage he has personal experience with discrimination. He indicated that he is sensitive to age discrimination too as he himself is a grandfather and self identifies as an older employee.
38In my view, an order specific to the personal respondents is not necessary in this case. I accept that Mr. Mosquera has had appropriate training. I am also of the view that the experiences of this Application and the internal WDHP investigation process have sufficiently made Mr. Mosquera aware that even well intentioned comments and suggestions can have a discriminatory effect.
39The OPS WDHP deals with discrimination and harassment in respect of the Code, including the ground of age and in the circumstances of this case, I am not persuaded that any order respecting the WDHP or Ministry wide training is required.
The personal respondents
40The respondents ask that the personal respondents be removed as respondents. The respondents submit that even though the corporate respondent has accepted full liability, it is nevertheless important for the personal respondents that they be specifically removed from the style of cause of this Decision. The respondents indicated they are not seeking a reconsideration of the pre-hearing decision to not remove the personal respondents, and are not seeking a retroactive change to the Decision on the merits. The respondents advised that they are asking that the names of the personal respondents be removed from the style of cause in this Decision on remedy. The applicant opposes removing the personal respondents.
41On the basis of the Application, it appeared that there were allegations that, if true, might constitute harassment under the Code. A finding of harassment contrary to the Code can in certain circumstances lead to different findings with respect to liability as between corporate and personal respondents: section 46.3 (see also Ontario Human Rights Commission v. Farris, 2012 ONSC 3876, at paragraphs 31 – 33). Under section 36 of the Code, the parties to an Application under section 34(1) include the applicant and “any person against whom an order is sought in the application.”
42In the Application, the applicant sought an order against the personal respondents. The personal respondents were thus parties to the Application.
43The Tribunal may, however, remove a personal respondent if it appears that it is not likely that the Tribunal would in fact make an order against the personal respondent or find the personal respondent liable for the alleged discrimination. The considerations that the Tribunal typically applies are discussed in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at paragraph 42, and Persaud v. Toronto District School Board, 2008 HRTO 31, at paragraph 5.
44In this case, the respondents made a pre-hearing request to remove the personal respondents. I refused that request because, in the absence of evidence, it was premature to determine if there might be a finding of liability in respect of the personal respondents.
45If the Tribunal removes a personal respondent as a respondent, the person is no longer a party to the Application. If the Tribunal does not remove the personal respondent, the person is still a party to the Application.
46If the Application proceeds to hearing and there is a finding that the applicant did not experience harassment or discrimination contrary to the Code, all the named respondents are still parties to the Application even though the Tribunal has found that there is no liability because there has been no violation of the Code.
47If the Tribunal finds that the applicant has experienced harassment or discrimination contrary to the Code, the Tribunal may determine, on the basis of the evidence, that the personal respondent bears no liability and that the liability is borne only by the corporate respondent. In those circumstances, the Tribunal does not typically remove the personal respondent as a party. In any legal proceeding where there are a number of parties, it may well happen that only one of the named parties is found to be liable. This does not mean that the other named parties cease to be parties.
48In this case, there is no reason to remove the personal respondents as respondents at this stage of the proceeding. The respondent’s request that the style of cause be amended to remove the personal respondents is denied.
49In an alternative submission, the respondents ask that I clarify my findings of liability in respect of the corporate respondent and the two personal respondents. This is a reasonable request and to be clear, my findings in the Decision on the merits were as follows:
Mr. Waldie did not contribute in any way to the discrimination that the applicant experienced, which consisted of comments to the applicant by Mr. Mosquera.
Mr. Mosquera did contribute to the discrimination that the applicant experienced because he is the person who made the comments. The comments were not “harassment” as that term is defined in the Code, but they did constitute discrimination on the basis of age because they were comments that encouraged the applicant to leave her employment because she was eligible for retirement.
The corporate respondent is liable for the finding of discrimination under s. 46.3 of the Code and moreover has accepted full liability for any finding of discrimination.
50In light of the corporate respondent’s acceptance of liability and my findings on remedy, above, the monetary compensation payable to the applicant is payable by the corporate respondent only.
DECISION
51Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services shall pay the applicant the sum of $7,000 for injury to dignity, feelings and self-respect. Post-judgment interest shall be payable commencing 30 days from the date of this Decision in accordance with the Courts of Justice Act.
52The respondents’ request that the style of cause be changed to remove the personal respondents is denied.
Dated at Toronto, this 18^th^ day of September, 2012.
”signed by”
Brian Cook Vice-chair