Pilon v. Cornwall (City), 2012 HRTO 177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Anne Pilon

Applicant

-and-

Corporation of the City of Cornwall, Robert Menagh, David Dick and John Flannigan

Respondents

Decision on Remedy

Adjudicator: David Muir Date: January 25, 2012 Citation: 2012 HRTO 177 Indexed As: Pilon v. Cornwall (City)

1This is an Application filed on June 11, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In 2011 HRTO 1695, I determined that the applicant's right to be free of discrimination on the basis of disability was infringed by the respondents in various ways. The summary of my conclusions taken from the Decision are set out here:

Summary and Conclusions

For the reasons set out above, I have concluded that the respondents were in violation of their procedural obligations to accommodate the applicant on several occasions. First, there was their failure to properly investigate her complaint of May 4, 2004. The respondent City and Mr. Menagh similarly failed to do so when requested by the applicant in October and December 2005, for reasons that I have found does not excuse them from their obligation under the Code. Similarly, when provided with evidence that the applicant was ill due to the unresolved workplace issues, Mr. Menagh failed to make enquiries. Finally, the corporate respondent and Mr. Menagh failed in their procedural obligations in the manner in which the applicant's employment was terminated.

I have also found that the respondent City and Mr. Dick failed in their substantive obligation to accommodate the applicant to the point of undue hardship when requested to do so in the letter of May 4, 2004. This issue remained unresolved throughout the remaining months of the applicant's employment and played some role in the unravelling of the employment relationship in September 2005. The respondents did not claim that they were unable to accommodate the applicant as requested.

I have also concluded that the respondent employer and Mr. Menagh failed in their duty to accommodate the applicant to the point of undue hardship when they terminated her employment in the face of medical evidence that she could not return to work, without making any further inquiries of her. I find that the respondent employer and Mr. Menagh did not consider the disability issues and never turned their minds to their obligation to accommodate the applicant to the point of undue hardship. The respondents never claimed that the applicant's disability related needs at any point in this narrative could not be accommodated.

Finally, I also find that the respondent City, Mr. Flannigan and Mr. Dick condoned harassment of her by their failure to insulate her from the complaints of other employees that were related to her use of the washroom at times other than her formal break times. This was most acutely the case in May 2004 when she was told that an employee had made a complaint(s) about her washroom use, but was also present to a more limited degree in September 2005.

I have largely rejected the claim of the applicant that she was harassed by the respondents Mr. Flannigan and Mr. Dick throughout the time frame of this Application, except to the extent that both of these individuals communicated and vindicated the complaints of others about the applicant's washroom use. In particular, I have concluded that the efforts to manage the applicant in September 2005, while unsuccessful, were not harassment under the Code. Similarly the applicant's claim that it was harassment to assign her extra duties and ignore her pleas for a replacement for an absent co-worker, whether fair or not, do not engage the Code and were not harassment. I have also concluded that the manner in which the employer and Mr. Menagh managed the applicant through the fall and winter of 2005-06 was not harassment under the Code.

Similarly I have concluded that the evidence does not support the view of the applicant that various acts of the respondents, such as the removal of her telephone, the service of a summons, denial of short term sick pay and the other matters discussed above, were reprisals for her seeking to vindicate her Code rights.

BACKGROUND, SUBMISSIONS AND EVIDENCE

3Section 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 Tribunal, the party ought to do to promote compliance with this Act.

4The applicant's submissions focussed primarily on lost wages and remuneration she might have received had she remain employed by the respondent employer and flowed from the assumption that she would have remained employed there until she could retire at age 55. The applicant seeks the following relief:

a. Severance pay b. Loss of annual earnings to 2016 c. Future medical expenses to 2016 d. Statutory Holiday compensation e. Vacation pay calculations f. Medical expenses from 2005 to 2011 g. Financial loss in annual earnings from 2005 to 2011

5A hearing was held to hear the parties' submissions on the appropriate remedy. I heard from the applicant, who testified about her efforts to mitigate her losses since she left the workplace on September 15, 2005. The applicant had previously indicated that she did not intend to give evidence but opted to do so at the hearing. Consequently, her evidence was somewhat general and she had some difficulty recalling in detail her efforts to mitigate her damages. However, as with her evidence at the hearing on the merits of this case, there is no reason not to accept her evidence as being essentially truthful if somewhat lacking in detail.

6The applicant began to mitigate her damages long before her employment was terminated by the respondent employer on July 4, 2006. She sought and obtained part-time work late in the fall of 2005 and continued this work in adult education in the spring of 2006. The field of adult education had been an interest of the applicant's for some time. In furtherance of this potential long-term goal, the applicant enrolled in a certificate program in Adult Education at St. Lawrence College from which she graduated in the summer of 2006.

7When the employer refused to pay her short-term sick benefits and she was denied WSIA benefits, she applied for and received EI sick benefits for a period of time in 2005. In the summer of 2006 she tutored her son and a neighbour's child in exchange for the neighbour paying her son's swimming lesson fees. She also testified that she took on tutoring of others as part of her Certificate program at St. Lawrence College and to enhance her resume. In the Fall of 2006, she enrolled in a Human Resources Development Canada program for the self-employed. During this period the applicant received employment insurance benefits.

8In January 2007, the applicant set up a business to provide consultation and adult training. It was through this vehicle that the applicant continued to be employed by various school boards on a contract and largely part-time basis to the date of the hearing. The applicant also sought to upgrade her skills by taking courses. The applicant testified that she continued to network in an effort to solicit business and otherwise continued to look for employment. She applied for several positions, some with the City, beginning in September 2005 through 2006, 2007 and 2008, but testified that there was little work available in the Cornwall area over this time period.

9The respondents took the position that an order of lost wages beyond the hearing date was not appropriate. The respondents indicated that the question was what was a reasonable award in the circumstances, but took no precise position on what was reasonable. The respondent did not concede that an award to the date of hearing was appropriate. The respondents did argue that the applicant had not appropriately mitigated her losses and that this should affect the quantum of wage loss that could be ordered. The respondents took no position on the quantum of damages for injury to the applicant's dignity, feelings and self-respect but did state that the findings of liability were largely technical in nature.

ANALYSIS AND FINDINGS

Wage Loss, Loss of Benefits, and Lost Pension Contributions

10Under 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 determining compensation for lost wages that may flow from discriminatory termination, any award is subject to an applicant's duty to mitigate her losses by making reasonable efforts to obtain suitable employment. The onus of proving a failure to mitigate is on a respondent.

11I find that the applicant is entitled to an award of lost wages from September 15, 2005, to July 4, 2008. This award includes two distinct periods of employment, the first before her termination and the second for a period after the termination of the applicant's employment on July 4, 2006. The reasons for this award differ to some degree depending on the period in question.

12I find that the applicant is entitled to an award of lost wages for a period prior to the termination of her employment for the following reasons. In my Decision on liability, I concluded that the applicant left the workplace on September 15, 2005 for reasons flowing in part from the respondents' violation of the Code and for which they are responsible. Accordingly, the applicant is entitled to lost wages from September 15, 2005, to July 4, 2006, less any employment income earned during this period.

13I also find that the applicant is entitled to an award of lost wages for some period of time beyond the ending of her employment by the respondent employer on July 4, 2006. The question is how long a period of time is the respondent employer responsible for such damages. As indicated above, the applicant seeks lost wages and other remuneration to the date of hearing and beyond to when she could retire at age 55.

14As noted by the respondent, the Tribunal has not yet made an order of post-hearing wage loss. In my view such an award would be extraordinary and not likely to be made except in exceptional circumstances. One reason for this conclusion flows from my view that the obligation of the applicant to mitigate his or her damages runs together with a claim to damages for lost wages. It is obviously impossible to assess an applicant's ongoing efforts to mitigate a wage loss post hearing. As such, any award of post-hearing damages for lost wages would be almost entirely speculative in the majority of cases.

15The decisions the Tribunal has released since the advent of the new remedial provisions (set out above) provide no ready answer to the length of time for which wage loss damages might be awarded other than to repeat the suggestion that the common law of damages in employment cases is not the reference point (see Osvald v. Videocomm Technologies, 2010 HRTO 770, and, in particular, the decision of the Ontario Court of Appeal in Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347). This view flows from the language of section 45.2 and its predecessors, which clearly signals a different and likely broader approach to the fashioning of remedies.

16In my view, the applicant is entitled to lost wages for two years beyond the termination of her employment on July 4, 2006. My reasons for this conclusion are as follows. To re-state the obvious, the applicant's termination of the applicant was contrary to the Code and therefore unlawful. The applicant was employed by the City for 23 years. Her education is not extensive. Her formal post-secondary education consists of a one-year course as a computer operator at a private college, completed in 1981, and the Certificate in Adult Education referred to earlier which she completed just after her dismissal by the respondent. I also accept the applicant's assertion that employment akin to what she had with the City, in terms of remuneration in particular, was not readily available in the Cornwall area where she had lived for many years and had many connections. I do not think it reasonable, as the applicant stated herself, that she be required to accept work in a coffee shop as her first option.

17Contrary to the respondents' submission, I accept that the applicant adequately mitigated her damages. As set out above, the applicant began looking for work almost immediately after she became well enough to work in October 2005 and began working part-time in adult education at that time. The applicant has continued to work in the area of adult education since that time and has taken steps to make this venture a success.

18On the other hand, I do not agree with the applicant that she is entitled to damages for lost remuneration until 2016, when at age 55 the applicant could have retired from her employment with full pension. In addition to the issue of the speculative nature of a post-hearing award which I discussed above, I have also considered the fact that there were other, apparently significant, issues in the workplace that may have ended the applicant's employment with the respondent City in any case. As is clear from the Decision, there were other issues in this workplace that did not appear to flow from any human rights concerns. Most notably, in the summer of 2005 the applicant had raised a number of workload issues with the employer which were not resolved in a way satisfactory to her. Similarly, the applicant had been in an ongoing dispute with the employer about her remuneration and whether or not she was being compensated in an equitable way. These issues formed part of this Application but were dismissed in 2010 HRTO 680. In the end, it is not entirely clear that the applicant would have chosen to remain employed by the respondent City for the ten more years she needed to retire, despite the obvious incentives to do so.

19I have also considered the fact that the applicant has not requested reinstatement in assessing the length of time for which the respondent can be required to compensate the applicant. That said, the employer completely failed in its obligations to the applicant at every stage of the process beginning in May 2004, and is largely responsible for the unravelling of this employment relationship, and therefore this is only one factor that I have considered in determining the appropriate period of time for which lost wages damages should be awarded.

20I do accept the respondents' submission that the applicant has chosen to work in an area in which it appears she will be unable to earn the same income as she would have had she remained employed by the respondent City. As indicated above, the applicant had begun training to work in adult education before she left the workplace in September 2005 and had expressed an interest in working in the area of adult education to her supervisors and others prior to her leaving the workplace in September 2005; although she testified at the hearing that her interest in adult education did not necessarily mean leaving employment with the City, as there were training opportunities potentially there. Nonetheless, a respondent is generally not responsible for the career choices of a former employee. So the fact that the applicant after several years in her new career is unable to earn what she would have earned had she remained with the City does not require that the respondent make up that difference in perpetuity.

21The respondent did not expressly suggest a reasonable period of time for such wage loss award to run. The applicant as indicated has stated that the period should run to the date of hearing and beyond. In my view, a period of two years is a reasonable period of time for an employee of the applicant's background and length of service with one employer to re-adjust her goals and establish an alternate means of earning a meaningful living. Again, I appreciate that the applicant's income in her new field has not approached what she earned with the City, but in the absence of evidence that this was her only option and the factors considered above, I am unable to conclude that the respondents have ongoing responsibility for her choice of career.

22In summary, on the issue of damages for lost wages, I find that the applicant is entitled to an order for lost wages from September 15, 2005, to July 6, 2008, less other employment and business income earned during this period. Although I have some evidence of the gross quantum of income earned during these periods, I do not have detailed breakdowns of when income would have been earned. In light of the possible pension issues (and perhaps other considerations), which might be dependent on how such income is apportioned, I will leave it to the parties to work out the details of these payments and remain seized should there be difficulties in implementing this aspect of the Order.

23The applicant also sought compensation for the loss of benefits during this period. The applicant did not provide significant documentation of these expenses but estimated that the prescriptions and other items she would have claimed under the employer's extended health plan would have been approximately $2,000 per year. The respondent argued that the applicant had not tendered any documentary evidence to substantiate her claims for medical expenses under the plan. In the circumstances, while the applicant presented no documentary evidence to support this claim I am satisfied that she would have incurred medical expenses and I accept her evidence that this could be as much as $2,000 in a given year. In light of the limited evidence tendered, I find that the applicant is entitled to receive compensation for $3,000 in medical expenses incurred between September 15, 2005, and July 6, 2008.

24The applicant also sought compensation for lost pension contributions. At the hearing the respondent City stated that any period for which lost wages were ordered would be considered pensionable service and appropriate deductions and co-payments would be made into the pension plan. On the strength of that assertion, I find that no other order in this regard is required.

Severance Pay

25The applicant seeks compensation in the amount of four weeks' pay per year of service. Severance pay is generally understood as payment for the capital cost of lost employment – the cost associated with the loss of lengthy employment in the form of vacation entitlement, seniority where applicable and other elements of one's remuneration associated with length of service. I have no jurisdiction to award severance pay, as such; however, I have considered as part of the analysis of the other heads of monetary compensation the consequences for the applicant of losing her employment after 23 years' of service. Accordingly, I decline to make a separate damages award severance pay.

Vacation and Statutory Holiday Pay

26These amounts are captured in the award of lost wages made above. A separate order is not appropriate.

Non-Pecuniary Damages

27In 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, 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, 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.

28The 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

29The applicant is entitled to damages for the intangible losses she has experienced including losses to her dignity, feelings and self respect. In my view, a significant award of damages in justified in this case.

30The applicant was employed by the respondent for 23 years. She was a good employee, generally well-liked by her colleagues. She lost her employment through no fault of her own. The consequences of the loss of longstanding employment with a unionized public sector employer are evident. The legislature has sought to buffer the effects of such a loss in the form of severance pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA"), which the applicant did not receive. Based on her years of service, the minimum she would have been entitled to under the ESA was 23 weeks of salary, a not insubstantial sum. As I indicated above, while I have no jurisdiction to award severance pay, as such, I find it is appropriate to take into account that uncompensated loss in assessing the appropriate damages under this head.

31While the applicant provided no specific evidence of the subjective impact of the termination of her employment, the objective evidence of the circumstances of the termination indicates that damages for injury to dignity, feelings and self-respect is appropriate. The employer's treatment of the applicant was, while not malicious or vindictive, was at times atrocious. In particular, I note the employer's response to her formal complaint and request for accommodation in May 2004. As set out in more detail in 2011 HRTO 1695, the respondent employer's response was limited to one letter that did not address her concern in any meaningful way and in fact trivialized her entirely legitimate concerns. In addition, as I found in 2011 HRTO 1695, the respondent employer did not conduct a proper investigation of the applicant's concern. Instead, the respondent only conducted an informal review and unjustifiably determined that the applicant need not be informed of the review. As a consequence of the respondent's approach to her request for accommodation, the applicant was never certain that her disability-related needs would be accommodated and was required to live with that uncertainty until she left the workplace in September 2005.

32At that point the conduct of the employer, while still not malicious or vindictive, became significantly more aggressive. As set out in more detail in 2011 HRTO 1695, the respondent employer chose not to deal with the applicant's complaints of human rights issues on that basis. Notwithstanding the fact that he had no evidence other than the applicant was ill, the respondent Menagh denied the applicant's short-term disability claim because her doctor had suggested her illness was being caused by unresolved issues in the workplace. Later, when the applicant applied for EI sick benefits, the respondent Menagh challenged her claim again with no evidence other than the fact that she was ill and could not work. When asked by myself, the respondent Menagh conceded during the hearing that he had not considered this fact. The respondent employer and the respondent Menagh, in particular, ignored the applicant's request for further investigation of her concerns and although no proper investigation was conducted represented twice that an investigation had been undertaken. Finally, when the respondent employer chose to make contact with the applicant in late June 2006, they again ignored her concerns, and instead of asking for more information, which they could reasonably have done, declared that she had abandoned her position. The actions of the respondent employer and the respondent Menagh from the time the applicant left the workplace until she was terminated by the respondent employer in July 2006 were overly aggressive and entirely indifferent to the issues she had raised with them.

33The applicant provided no medical evidence of any particular psychological or emotional consequences she experienced as a result of the ultimate termination of her employment by the respondent. But the applicant did describe her upset and anxiety largely flowing from her uncertainty due to the respondents' inadequate response to her request for accommodation and treatment of her subsequent to her leaving work in September 2005.

34In all of these circumstances and considering the factors set out above, I find that the applicant is entitled to an award of damages of $20,000 for injury to dignity, feelings and self-respect that arose as a result of the manner in which the respondent City chose to end her longstanding employment with it and the manner in which the respondents breached their duty to accommodate the applicant.

Interest

35I find that the applicant is entitled to pre-judgement interest for lost wages and health expenses in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"). In respect of the award of lost wages the interest calculation shall run from January 1, 2007, approximately the mid-point of the period for which I have concluded wages are payable.

36I do not find it appropriate to award pre-judgement interest on the amount payable in damages to the applicant's feelings, dignity and self respect.

37The applicant is entitled to post-judgement interest on damages for lost wages, health expenses, and damages for losses associated with injury to her feelings, dignity, and self-respect

Remedies for Future Compliance

38The issues raised by this Application are largely systemic and flow largely from ignorance of the Code's requirements on the part of the City's managers. The respondent City, on every level of management involved in this case, clearly did not understand their obligations under the Code. In all the circumstances, I find that it is appropriate that the individual respondents be required to take some human rights training to assist them in responding to the kind of issues which arose in this case. Although I make no order in this regard, the respondent employer would be well-advised to consider training of its other senior management involved in this matter.

ORDER

39The applicant did not request that the respondents be made jointly and severally liable for any amounts Ordered and I see no reason in these circumstances not to make these Orders only against the respondent City.

40The Tribunal makes the following Remedial Orders:

a. The respondent City of Cornwall will pay to the applicant the sum of $20,000 in damages for losses associated with injury to her feelings, dignity, and self-respect, within 30 days of this Decision.

b. The respondent City of Cornwall will pay to the applicant her lost wages at the applicable rate from September 15, 2005 to July 4, 2008, less any employment and business income received by the applicant during this period and less any statutory deductions required by law. In this regard within 30 days of the date of this Decision, the applicant is directed to provide the respondent City with a statement of income from all sources earned including statutory benefits received for the period September 15, 2005 to July 4, 2008. Based on the information provided by the applicant, the respondent City of Cornwall is directed to pay the applicant her lost wages within 30 days of receipt of the applicant's statement. I remain seized of this aspect of the Order for 90 days from the date of this Decision in the event that there are any issues of implementation of this aspect of the Order.

c. The respondent City of Cornwall will pay to the applicant $3,000 for medical expenses incurred between September 15, 2005 and July 4, 2008.

d. The respondent City of Cornwall shall pay to the applicant pre-judgement interest on the amounts set out in paragraph (b) and (c) above from January 1, 2007, in accordance with the CJA, within 30 days of the date of this decision.

e. The respondent City of Cornwall 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 CJA, from the date that is 60 days after the date of this Order.

f. Within 60 days of the date of this Decision, the individual respondents 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.