HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Jeannotte
Applicant
-and-
1682298 Ontario Inc.
and Spearmint Rhino Consulting Worldwide Inc. LLC
Respondents
A N D B E T W E E N:
William Jeannotte
Applicant
-and-
1682298 Ontario Inc.
o/a Spearmint Rhino Gentlemen’s Club
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Jeannotte v. 1682298 Ontario Inc.
APPEARANCES
William Jeannotte, Applicant
Self-represented
1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide Inc. LLC, Respondents
No one appearing
1These are two Applications 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 with respect to employment because of disability and reprisal.
2The applicant was employed as a Disc Jockey (“DJ”) at the Spearmint Rhino Gentlemen’s Club operated by the respondents, commencing in May 2009. He has a mobility disability that requires him to use canes to move around. In the first Application dated December 28, 2009, the applicant alleges that in early September 2009, his shifts were cut because of his mobility issues and then he was threatened with lay off in the middle of October 2009 because of his disability. The applicant further alleges that the new club manager who was hired in August 2009 was openly hostile towards him because of his disability and created a poisoned work environment.
3In the second Application dated January 30, 2010, the applicant alleges that he experienced reprisal after he informed the club manager that he had filed a human rights application and had his shift changed from Mondays to Sundays, because the club manager was uncomfortable working with the applicant after he had filed his first Application. The applicant’s employment with the respondents was subsequently terminated on February 26, 2010.
4The hearing in this matter originally was scheduled to proceed on March 26 and 27, 2012. On March 26, 2012, counsel for the respondents appeared with the former club manager, who was named as a personal respondent at that time. The applicant also appeared but was ill. I stood the matter down for a period of time for the applicant to rest and see whether he felt well enough to proceed. When the matter resumed, the applicant advised that he was still not well enough to proceed, as he was having his fingers amputated in the next couple of weeks and was on painkillers and in a lot of pain. The respondents consented to the adjournment. At that time, and with all parties present, I re-scheduled the hearing to June 18 and 19, 2012.
5The hearing resumed again on June 18, 2012. The applicant and the former club manager appeared. No one appeared for the respondents. On the basis of the Responses filed, counsel had been retained by the respondents as their legal representative. As the legal representative for the respondents, counsel had agreed to the June 18 and 19, 2012 hearing dates at the previous hearing day on March 26, 2012. Further, by letter dated March 28, 2012, the Tribunal provided a Notice of Hearing to the parties confirming the June 18 and 19, 2012 hearing dates, which was sent to respondents’ counsel as the respondents’ legal representative.
6In the Notice of Hearing, the Tribunal stated under the heading “CONSEQUENCES OF FAILING TO ATTEND THE HEARING” (emphasis in original) that if a party failed to attend the hearing after receiving proper notice the Tribunal may: proceed in the party’s absence; determine the party is not entitled to further notice of the proceedings; determine the party is not entitled to present evidence or make submissions to the Tribunal; decide the Application based solely on the materials before the Tribunal; and take any other action the Tribunal considers appropriate.
7Prior to June 18, 2012, no notice had been received by the Tribunal indicating that counsel was no longer acting as the respondents’ legal representative or that notice should be sent to any other representative.
8On June 18, 2012 at 10:00 a.m., one half hour after the scheduled start time for the hearing, respondents’ counsel wrote to the Tribunal by e-mail to advise that he was no longer representing the respondents due to irreconcilable client relationship difficulties. Counsel further indicated that he did not know whether the respondents would be represented at the hearing by another representative. No representative of the respondents appeared at the hearing.
9I am satisfied that the respondents received proper notice of the proceeding. Their then legal representative was present at the hearing on March 26, 2012 and was aware that the matter had been adjourned to June 18, 2012, and also received a notice from the Tribunal confirming that the hearing would proceed on June 18, 2012. If a respondent decides to retain new legal counsel or represent itself in a proceeding before this Tribunal, it is the respondent’s responsibility to contact the Tribunal and the other parties and advise as to the name and contact information for any new representative or contact. While I appreciate from counsel’s e-mail correspondence that at some point his client relationship with the respondents ceased, this client relationship certainly was in existence on March 26, 2012 when counsel appeared before me as the respondents’ representative and there is no indication in counsel’s e-mail that he was not still the respondents’ representative two days later when he was sent the notice confirming the new hearing date. As a result, I find that the respondents had proper notice of the hearing on June 18, 2012 and failed to appear to present evidence in response to the Applications. Accordingly, I proceeded with the hearing in the respondents’ absence, in accordance with my authority to do so pursuant to s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
10At the hearing, the applicant withdrew the Applications as against the former club manager as a personal respondent, and the former club manager consented to the withdrawal. As a result, the title of proceeding has been amended accordingly.
REVIEW OF EVIDENCE
11At the time of the accident that led to his injury, the applicant was serving in the military. As he was waiting to ship out to Afghanistan in 2003, the applicant had his feet crushed when he was helping move furniture for a friend. The applicant’s feet did not heal properly, and it was discovered that there was an underlying issue of vasculitis. As a result of this condition, the applicant required the amputation of multiple toes in the summer of 2004. This is confirmed by letter dated February 23, 2010 from the applicant’s medical doctor, who also states that the applicant has a permanent disability. As a result of this permanent disability, the applicant has required the use of canes to move around since his toes were amputated.
12The applicant states that he has since been diagnosed more specifically with cryoglobulanemia, which is an immune system disorder that causes the body to send out antibodies when he is exposed to cold or reaches a certain level of stress and that cause him damage. In the spring of 2010, about two months after his employment with the respondents was terminated, the applicant lost his leg due to this condition. And this condition also caused the amputation of his fingers that the applicant underwent in the spring of this year.
13The applicant has been working as a disc jockey for about 23 years, since he was quite young. While his professional career was geared towards policing and the military, being a disc jockey was a job that he always had in the background and that he did as a source of extra money. When his injuries made it impossible for him to proceed with a military or policing career, being a disc jockey was all that the applicant was capable of doing that he had skill in.
14In addition to working as a professional disc jockey in radio stations and other venues, the applicant had worked as a disc jockey in adult entertainment clubs for many years prior to his employment at the Spearmint Rhino Gentlemen’s Club (“Spearmint Rhino” or the “club”). The applicant’s evidence is that he was considered to be one of the best in the business not just because of his voice, but because of how he treated the dancers and his policing background.
15The applicant started working as a disc jockey at Spearmint Rhino in May 2009. As a disc jockey, he played the music, acted as the MC, organized the stage shows, made sure the dancers were ready to go on stage, promoted the individual entertainers and generally provided an atmosphere for the club.
16The applicant states that he was originally hired by a man named “Eddie”, who was one of the corporate employees from Los Angeles. At that time, Eddie was managing the club. Eddie remained in this role until a club manager was hired in August 2009, following which Eddie returned to Los Angeles.
17The applicant states that he had an excellent relationship with the respondents prior to the hiring of the new club manager in August 2009. He states that the respondents were happy to have someone like him available who was professional, and that he got nothing but accolades prior to the arrival of the new club manager. The applicant states that the respondents were “more than pleased” with his work. He states that the respondents expressed to him that they were hiring him to eventually take over shifts from other disc jockeys who would be leaving over the summer.
18The new club manager arrived in August 2009. The applicant states that his initial introduction to the new manager was very professional, and the applicant looked forward to seeing what the new manager would bring to the environment.
19However, the applicant states that things started to deteriorate from then on. He states that he would catch the new manager watching him when he was getting up stairs with his canes, and he would catch the manager laughing with customers while looking at the applicant. The applicant states that the new manager also started micro-managing him, and changing his shifts around without telling him, which made the applicant’s life difficult because he has children.
20The applicant states that in early September 2009, the club manager cut his shifts back to two shifts per week. The applicant states that management had decided to change the club’s hours from 3 p.m. to close to 6 p.m. to close, which resulted in less shifts being available. However, as two other disc jockeys had left over summer, the applicant states that he was the only one who had his shifts reduced. The applicant believes that this was related to his disability because the club manager had been inquiring about the applicant’s mobility and asking him if he really needed two canes and if he would get better. The applicant also states that the club manager would get upset with him if he could not get a dancer fast enough and would have to play a “break song” (where no one is dancing on stage). While the applicant had a headset allowing him to communicate from the DJ booth with the doorman who could get the next dancer, the applicant states that he was having problems communicating with the doorman, who was not always available. As a result, the applicant at times needed to go out into the club with his canes to track down the next dancer and get her to the stage.
21The applicant states that the club manager called him into a meeting in the middle of October 2009 and told the applicant that he was laid off. The applicant states that the club manager gave three reasons for this decision. First, the club manager expressed his view that he did not think that the applicant wanted to be a DJ any more. The applicant states that he does not know why the club manager thought that, and that this is not true. Second, the club manager stated that the club hours had been reduced and they were hiring a full-time DJ to take over five of the remaining seven shifts per week. The applicant asked the club manager why the applicant was not becoming the full-time DJ, as this was the original arrangement he had made with the respondents when he was first hired and as he had been assured by the club manager that he would honour this arrangement. Finally, the applicant states that the club manager stated that the applicant’s mobility was an issue. The club manager did not think that the applicant could do five shifts per week with his disability, as the manager did not think that the applicant could go out and get the dancers. The applicant states that the club manager said that having the applicant working five shifts per week and going out on the floor with his canes would not be “good optics” for the club.
22The applicant states that prior to the arrival of the new club manager in August 2009, he had no problem performing his duties. He states that sometimes he would have difficulty finding a girl and would have to play a break song, but this was something that happened rarely and was not an everyday occurrence.
23The applicant states that in the meeting with the club manager in mid-October 2009, he asked the manager whether issues had been raised about his performance by any staff members, dancers or customers, and none were identified. The applicant states that to the club manager, it was just an issue of optics and the applicant not fitting in to how the manager wanted the club to be portrayed.
24The applicant states that he asked the club manager to reconsider, as there were a limited number of clubs in the area and it would be difficult for him to find another job. As a result, the applicant was offered one of the two remaining shifts – Sunday and Monday nights – which are the least remunerative nights of the week. Of these two choices, the applicant chose to work the Monday night shift.
25As the applicant believed that he had experienced discrimination because of his disability, he filed his Application on December 28, 2009. In this Tribunal’s process, an application is filed with the Tribunal and gets reviewed by staff for completeness before being served on a respondent. In the instant case, due to the need for some further information from the applicant, the first Application was not served on the respondents until March 1, 2010.
26On January 22, 2010, the applicant contacted the club manager and advised him that an Application had been filed with this Tribunal alleging discrimination in employment because of disability due to the reduction in the applicant’s shifts. The applicant states that in response, the club manager said that he would switch the applicant’s shift from Monday to Sunday night, as the club manager said that he was uncomfortable working with the applicant as a result of his human rights claim. The manager did not work on Sunday nights.
27The applicant states that on February 26, 2010, he was contacted by the club and told that they would no longer require him as a DJ as they were ending the Sunday night shift. The applicant states that he asked why the club could not give him an alternate shift, and the response was that his shift was on Sunday nights and they could not give him a shift during the week. The applicant states that he subsequently was told that the club re-opened on Sundays just a couple of weeks later, and he believes that the other part-time DJ who was working on Monday nights became the DJ when the club re-opened on Sunday nights.
ANALYSIS AND DECISION
28The relevant provisions of the Code are set out in s. 5(1) and 17, which state as follows:
(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, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(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.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person 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.
29No issue arises as to s. 17 of the Code in this proceeding, as the evidence before me indicates that the applicant was capable of performing the essential duties of his DJ position at the club notwithstanding his disability. He had been capable of performing these duties during the period from May 2009 to February 2010, and notwithstanding the amputation of his leg in the spring of 2010 and some of his fingers in the spring of 2012, has continued to perform work as a DJ at another club.
30“Disability” is defined in s. 10 of the Code in its relevant part as follows:
“disability” means . . . any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device . . .
31Based upon the evidence before me, I find that the applicant clearly has a physical disability within the meaning of the Code, both due to his medical condition of vasculitis or more particularly cryoglobulanemia and due to the amputation of his toes and his physical reliance on canes as a remedial appliance or device at the relevant time. Both of the latter are expressly referenced in the definition of “disability” as stated in the Code.
32In order to establish discrimination, the ordinary civil standard of proof, upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough) 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202. The applicant bears the onus of establishing a prima facie case of discrimination: Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. (“O’Malley”), 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. In the O’Malley case, the Supreme Court of Canada defined a prima facie case under human rights law as follows:
A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer.
33The prohibited ground need only be one factor and if there are multiple reasons, some of which are non-discriminatory, the respondent’s action still violates the Code: see Velenosi v. Dominion Management (1997), 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.); Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.).
34Intent or motive to discriminate is not a necessary element of discrimination: see O’Malley, supra at para. 14; Smith v Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC), [2005] O.J. No. 377 (Ont. Div.Ct.).
35In this case, the applicant has testified that the decision to reduce his shifts to two shifts per week in early September 2009 and the decision in mid-October 2009 to lay him off (which was then changed to allow him to continue working one shift) both were related to his disability.
36In relation to the decision in early September 2009, the applicant has indicated his belief that this decision was related to his disability due to the club manager’s questions about his disability and whether it would get “better” and because he had been criticized by the manager when, due to his disability, he had been unable to get dancers on stage quickly enough. The applicant also testified that he was the only DJ to have his shifts reduced at that time, despite assurances from the respondents that he would become the full-time DJ at the club and despite the new club manager’s initial assurances that he would honour this arrangement.
37While I appreciate and understand the applicant’s belief that his shifts were reduced in early September 2009 because of his disability, I am not satisfied that the evidence before me provides a sufficient reliable basis to support this belief. There is no dispute that, at this time, the club hours were changed from 3:00 p.m. to close to 6:00 p.m. to close, which meant that the club was no longer open in the afternoons. This would mean that there were less hours available for the DJs (as well as for other staff) and would necessarily result in a reduction in hours and shifts. Prior to the club closing in the afternoons, the applicant’s materials state that the DJs worked two shifts, one from 3 to 9 p.m. and the second from 9 p.m. to close. When the change was made to close in the afternoons, this resulted in their being only one shift per day from 6 p.m. to close.
38A review of the number of shifts worked by the applicant per week during the period from May to August 2009 indicates that the applicant worked two shifts per week on eight occasions, three shifts per week on six occasions, and four shifts per week on two occasions. From early September to mid-October 2009, the applicant then consistently worked two shifts per week. While there is no doubt that there was a reduction in shifts starting in early September 2009, I am not satisfied that this was due to the applicant’s disability as opposed to the change in club hours. There is no direct evidence from the applicant that the change was made due to his disability.
39In contrast, with regard to the decision to lay off the applicant in mid-October 2009 (which was changed to allow him to continue working one shift per week on Monday nights), the applicant provided direct evidence that the club manager told him that this was related to his disability. The applicant testified that the club manager said to the applicant that he did not think that the applicant could do five shifts per week with his disability, as the manager did not think that the applicant could go out and get the dancers. The applicant also testified that the club manager said that having the applicant working five shifts per week and going out on the floor with his canes would not be “good optics” for the club.
40In his evidence, the applicant stated that the club manager also gave two other reasons for this decision, namely that the manager did not think that the applicant was still interested in working as a DJ and that a decision had been made to hire a full-time DJ to cover five of the seven shifts per week. With regard to the former reason, the applicant’s evidence is that there was no basis for the manager to think this, and there is no evidence before me to the contrary. With regard to the latter reason, the question arises as to why a decision was made to hire someone else as the full-time DJ at the club as opposed to the applicant, who states that he had been promised this position. It was in exploring this issue, i.e. why the applicant had not been given the full-time DJ position, that the manager expressed his view that the applicant would not be able to work as a full-time DJ because of his disability and that the applicant’s disability would negatively affect the “optics” of the club. In any event, even if there were other reasons for the decision not to make the applicant the full-time DJ at the club, I find that the applicant’s evidence establishes that his disability was at least one of the reasons.
41I found the applicant’s evidence about the mid-October 2009 meeting with the club manager to be credible. His evidence was consistent with the allegations raised in his Application, and even in the absence of any evidence from the respondents, the applicant did not seek to embellish or exaggerate his evidence. Accordingly, I accept that the applicant has provided credible and reliable evidence upon which to establish a prima facie case of discrimination because of his disability.
42I am aware from the materials filed by the respondents in response to the Application that they assert that the applicant’s disability was not a factor in this decision and that there were other non-discriminatory reasons for this decision, including alleged performance issues with the applicant and a desire to hire a full-time DJ to be the “voice” of the club and who could bring in entertainers and customers. However, these are simply assertions which need to be proved on the basis of evidence led at the hearing. As the respondents did not appear at the hearing, they did not provide any evidence to counter or contradict the applicant’s evidence, which I have found to be credible. Accordingly, I have no basis in the evidence before me to accept the assertions made by the respondents in their materials.
43As a result, I find that the respondents to the first Application discriminated against the applicant because of disability contrary to s. 5(1) of the Code in the decision not to make him the full-time DJ and to only provide him with one shift per week on Monday nights. While the conduct that forms the basis of my finding of discrimination is the conduct of the former club manager, the respondents are deemed to be responsible for the former club manager’s conduct pursuant to s. 46.3 of the Code, which provides:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
The exceptions stated in this provision are not applicable here, as I have found discrimination contrary to s. 5(1) of the Code.
44There are two respondents to the first Application, namely 1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide Inc. LLC. I understand that 1682298 Ontario Inc. was the numbered company that ran the club, and Spearmint Rhino Consulting Worldwide Inc. LLC is the parent corporation located in Los Angeles. While in attendance before the Tribunal, the former club manager stated that he had been flown down to Los Angeles and hired in August 2009 by the President and Vice-President of the parent corporation. He stated that direction regarding the operation of the club came from the parent corporation’s head office in Los Angeles. While paycheques for club staff were paid from a bank account held by the numbered company, the former club manager stated that monies to cover payroll were transferred into the number company’s account from a bank account held by the parent corporation.
45On this basis, I find that the former club manager was an employee of the numbered company, but was also acting as agent for the parent corporation. As a corporation is liable not only for the actions of its employees in violation of the Code, but also for the actions of its agents, I find that both 1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide Inc. LLC are jointly and severally liable for the actions of the former club manager and hence for the violation of the applicant’s rights under s. 5(1) of the Code.
46The applicant also has raised an allegation that he experienced a poisoned work environment because of disability, on the basis of the actions of the club manager in staring at him while he worked, looking towards him and laughing with customers, micro-managing his work, scheduling him for shifts on short notice, and asking questions about his disability. While such conduct certainly could create a poisoned work environment, I am concerned about the lack of specifics or particulars provided by the applicant in relation to this alleged conduct. Accordingly, I do not make any finding in relation to this allegation.
47With regard to the allegation of reprisal, the applicant states that on January 22, 2010 he spoke with the club manager by phone and advised that he had filed a human rights application alleging discrimination because of disability. The applicant provided oral evidence about this conversation which was supported by an audiotape. The evidence establishes that the club manager, in the context of being informed that the applicant had filed a human rights application, had expressed his discomfort about continuing to work with the applicant, and as a result changed the applicant’s shift from Monday to Sunday nights.
48Section 8 of the Code provides as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
49In order to prove reprisal, an applicant must establish that the respondent engaged in an action or threat which was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate. Such intention may be inferred from the circumstances: Noble v. York University, 2010 HRTO 878, at para. 31.
50In the instant case, the evidence indicates that the applicant had instituted a proceeding under the Code at the time of the phone conversation on January 22, 2010, as he had filed an Application with the Tribunal by that time. Even though the Application had not yet been formally served on the respondents, the applicant in the phone conversation made the club manager aware of the Application. In response to this information, the club manager stated that he was uncomfortable continuing to work with the applicant and so changed his shift from Monday to Sunday nights, when the manager did not work at the club. On the basis of this evidence, which is uncontradicted, I find that the club manager engaged in the action of changing the applicant’s shift as a result of being informed of the human rights application and as a result of the manager’s discomfort about continuing to work with the applicant, which I find amounts to retaliation. I further find that the former club manager intended to retaliate against the applicant for instituting a proceeding before this Tribunal on the basis that it was this information that was the sole basis for the change in the applicant’s shift.
51Only 1682298 Ontario Inc. has been identified as a respondent to the second Application, which contains the reprisal allegation. For the reasons stated above, I find that the numbered company is liable for the actions of its employee, the former club manager, which resulted in reprisal and a violation of the applicant’s rights. Accordingly, I find 1682298 Ontario Inc. is deemed to be liable for reprisal against the applicant in contravention of s. 8 of the Code.
REMEDY
52This Tribunal’s remedial authority where a finding of discrimination has been made is derived from s. 45.2(1) of the Code which 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:
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.
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.
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.
53As part of the remedy for the discrimination he experienced, the applicant seeks compensation for lost earnings. This is part of the monetary compensation that this Tribunal can award for loss arising out of the infringement of the applicant’s rights under s. 45.2(1).1 of the Code
54The purpose of compensation is to place the applicant in the position he would have been in had the discrimination not occurred: see Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.); Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).
55Accordingly, in the instant case, I need to consider what position the applicant would have been in had the discrimination not occurred. The applicant’s evidence is that when he was hired to work at the club in May 2009, he was told that he would become the full-time DJ as the other part-time DJs left over the summer. His evidence is that the new club manager told him that he would honour this arrangement. However, as I have found above, in mid-October 2009, the club manager decided to hire someone else to be the full-time DJ at the club and reduced the applicant to one shift per week, which I further have found constituted discrimination against the applicant because of disability.
56In my view based upon the evidence before me, had this discrimination not occurred, I find that the applicant would have been made the full-time DJ at the club as of mid-October 2009, as previously had been agreed. Once again, as the respondents chose not to appear at the hearing, there is no evidence to the contrary. While the applicant in his evidence indicated that the club manager first expressed other reasons for not making the applicant the full-time DJ, I find that there is no basis in the evidence to support the club manager’s stated view that he did not think the applicant was interested in continuing as a DJ at the club and I find that the underlying basis for the club manager’s decision to hire someone else to be the full-time DJ was attributable to the applicant’s disability and the manager’s view of the negative impact of this disability on the “optics” of the club.
57As a result, I need to assess the applicant’s claim for lost earnings on the basis of the evidence before me as to what he more likely than not would have earned had he been given the full-time DJ position in or about mid-October 2009. Part of the disclosure to the applicant made by the respondents in this proceeding is a statement of the applicant’s per shift earnings from May 2009 to February 2010. The applicant originally was working 6 hour shifts, and then moved to working 8 hour shifts as of the latter part of July 2009. Had the applicant been made the full-time DJ in mid-October 2009, he would have been working 8 hour shifts. Accordingly, in my view, the appropriate basis upon which to calculate the applicant’s lost earnings is by taking the average amount per shift earned by the applicant during the period when he was working 8 hour shifts from late July 2009 to February 2010. The average per 8 hour shift during this period amounts to $227.24, including the base rate and tips. The applicant also was paid 4% vacation pay on his earnings, so that his gross earnings per shift amount to $236.33.
58The applicant states that his arrangement with the respondents to ultimately assume full-time DJ responsibilities was for him to be working four shifts per week, which is the amount he is claiming.
59The next issue is the period for which the applicant’s lost earnings should run. Based upon my findings above, I found that but for the discrimination, the applicant more likely than not would have assumed the position of full-time DJ at the club as of mid-October 2009. At the hearing on June 18, 2012, I was advised by the former club manager that the club had closed down about a year earlier, or in or about mid-June 2011. So the full period for which I find the applicant entitled to lost earnings runs from mid-October 2009 to mid-June 2011, or a period of 86 weeks. At four shifts per week, this amounts to 344 shifts.
60From this period, I need to deduct the shifts that the applicant actually worked at the club and was paid for by the respondents during the period from mid-October 2009 until he was terminated in late February 2010, which amounts to 13 shifts. The applicant testified that as of June 2010, he was able to find work as a DJ at another club working one shift per week, which would amount to a further 52 shifts that need to be deducted. Finally, I need to deduct shifts for four weeks for the period in the spring of 2010 when the applicant’s left leg was amputated and he would have been unable to work, which results in a deduction of a further 16 shifts. This leaves 263 shifts for which I find that the applicant is entitled to compensation for lost earnings, in the total amount of $62,154.79 (263 x $236.33).
61The applicant is under an obligation to mitigate his damages by seeking alternate employment. The applicant’s evidence before me is that he made efforts to find alternate employment, but with only about 30 clubs in the area and with the people at these clubs already looking for extra shifts, he was not able to find anything until June 2010 when he was able to get one shift per week at another club. The applicant states that he continued his efforts to find alternate employment since then, but has been unsuccessful. The applicant’s evidence is that he ultimately decided to try to start his own business, but this was only in the last couple of months before the hearing which is beyond the period for which I have found the applicant entitled to compensation.
62Apart from his income from the one shift per week at another club, the applicant states that he has had no other source of income during this period except for CPP disability benefits. In the absence of any contradictory evidence, I find that the applicant made appropriate efforts to mitigate his damages, and I decline to reduce the amount of compensation for lost earnings that I have calculated. If any repayment of CPP disability benefits is required as a result of my award, this is a matter to be addressed as between the applicant and the Canada Pension Plan and is not an amount for which the respondents are entitled to any deduction.
63The applicant is entitled to pre-judgment interest on the amount of compensation for lost earnings awarded, running on the full amount from the mid-point of the period for which this compensation was awarded (or from mid-August 2010) to the date of this Decision. This is a period of 26 months at the pre-judgment interest rate of 0.75% (which is the average of the pre-judgment interest rates published under the Courts of Justice Act applicable to the period in question), resulting in an award of pre-judgment interest in the amount of $1,010.02.
64The applicant also seeks compensation for injury to dignity, feelings and self-respect, or for the emotional or intangible loss he suffered as a consequence of the discrimination I have found he experienced, which I am entitled to award pursuant to s. 45.2(1).1 of the Code. In this regard, the applicant states that, coming from being in the military to becoming a disabled person, he is not fragile but he is sensitive. He states that experiencing discrimination left him feeling like his confidence and abilities had been questioned and like he was completely useless. This has been particularly hard for him when dealing with his relationship with his two daughters. He states that he has experienced a lot of stress having to go through this ordeal after he had established an arrangement with the respondents beforehand to become the full-time DJ at the club, and then to have this denied to him because of his disability.
65The Code requires a general evaluation of the circumstances of the Code violation and its effects to determine appropriate monetary compensation for injury to dignity, feelings and self-respect: see Arunachalam v. Best Buy Canada 2010 HRTO 1880. Compensation for injury to dignity, feelings and self-respect must not be so low as to trivialize the social importance of the Code by effectively creating a licence fee to discriminate: see ADGA Group Consultants v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) at para. 152.
66I have considered awards made by this Tribunal in other cases where an applicant’s employment has been adversely affected because of disability, particularly Stead v. Trehaven Golf & Country Club, 2010 HRTO 816 and Wappler v. Geo Holiday Services, 2010 HRTO 1465, where the amount of $10,000 was awarded as compensation for injury to dignity, feelings and self-respect. In particular, I see the applicant’s circumstances in this case as being somewhat similar to the circumstances in the Stead case, where a termination of employment was sudden and unexpected but where the applicant had not worked for the respondent for a lengthy period of time, and also to the Wappler case, where the finding was based on a single incident of discrimination but where this resulted in a termination of employment.
67Accordingly, when weighing the objective seriousness of the respondents’ conduct which I have found to be in violation of s. 5(1) of the Code and the emotional impact on the applicant, I find that $10,000 is an appropriate amount to award as compensation for injury to dignity, feelings and self-respect. Given the relatively minor impact of the violation of the applicant’s rights under s. 8 of the Code, I decline to make any compensatory award arising out of that infringement.
68As the club is now closed and I am advised that the respondents do not have any other active operations in Ontario, I decline to make any order pursuant to s. 45.2(1).3 of the Code.
ORDER
69By reason of the foregoing, I hereby make the following order:
a. the respondents 1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide Inc. LLC are jointly and severally liable and shall pay to the applicant the sum of $62,154.79 as compensation for lost earnings;
b. the respondents 1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide Inc. LLC are jointly and severally liable and shall pay to the applicant the further sum of $1,010.02 as pre-judgment interest owing on the foregoing amount;
c. the respondents 1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide Inc. LLC are jointly and severally liable and shall pay to the applicant the further sum of $10,000.00 as compensation for injury to dignity, feelings and self-respect; and
d. pre-judgment interest shall run at the rate of 3.0% per annum on any amount unpaid within 30 days of the date of this Decision.
Dated at Toronto, this 11th day of October, 2012.
“signed by”
Mark Hart
Vice-chair