Vallee v. Fairweather Inc., 2012 HRTO 20

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlotte Vallee

Applicant

-and-

Fairweather Inc.

Respondent

Decision

Adjudicator: Michelle Flaherty

Date: January 5, 2012

Citation: 2012 HRTO 20

Indexed as: Vallee v. Fairweather Inc.

WRITTEN SUBMISSIONS

Chalotte Vallee, Applicant ) On her own behalf

1The applicant filed an Application on July 15, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment based on disability and age. She alleges that these prohibited grounds were factors in the respondent's decision to eliminate her position as district sales manager.

2The respondent has failed to file a Response, although it has repeatedly been directed to do so. On December 2, 2011 the Tribunal issued an Interim Decision, 2010 HRTO 2170, ordering that the respondent is deemed to have waived all rights to notice or participation in these proceedings and is further deemed to have accepted all of the allegations set out in the Application.

3Because the respondent did not participate in the proceeding, my findings of fact are based on the Application filed by the applicant. The applicant waived her right to make oral submissions before the Tribunal and she indicated that, besides her Application, she did not wish to provide any further written materials.

4For the reasons that follow, I find that the respondent breached the Code and that the applicant's age and disability were factors in the respondent's decision to eliminate her position. However, the Tribunal does not have sufficient information upon which to determine remedy. As set out in further detail below, the applicant is directed to provide specific further information to the Tribunal in this regard.

THE FACTS AS ALLEGED BY THE APPLICANT

5The applicant is currently 58 years old. She was employed by the respondent from 2009 to June of 2011 as a district sales manager. She states that she earned $80,000 per year in this position.

6The applicant states that the respondent underwent some restructuring beginning in 2010, which made her working conditions difficult. She states that, on June 28, 2010, her doctor gave her a sick note and recommended two weeks' rest. This medical leave was ultimately extended to June 2011.

7The applicant states that when she contacted her superior in June 2010 to advise him of her sick leave, he commented that she had had a negative attitude. The applicant states that she felt guilty about taking time off.

8The applicant further states that, during her sick leave, the respondent held a meeting and advised staff in attendance that, going forward, they were only to hire "young, dumb, and good looking" employees.

9The applicant makes a number of allegations that relate to how she believes others were treated unfairly. For example, she alleges that one individual was fired by the respondent because she did not meet the "young, dumb, and good looking" criteria. She also states that some of the individuals who worked with her were treated inappropriately and that working conditions, generally, were difficult. It is clear that the applicant disagrees with many of the decisions made by the respondent. She states that the work environment was distressing to her, that she felt powerless to bring about change, and that it caused her anxiety.

10The applicant began receiving long-term disability benefits in December 2010. She sought to return to work in approximately June 2011. She states that her doctor and the LTD provider's doctor supported her return to work.

11On June 15, 2011, however, the respondent advised the applicant that her position had been eliminated because of restructuring. The applicant states that, although her position was eliminated, the respondent maintained some of its other district sales manager positions.

12The applicant states that during the discussion about the elimination of her position, her superior suggested that she had "abandoned" him. The applicant states that the respondent offered her an alternate position, as an outlet store manager. She states that this position did not match her "success, skills, and experience". The applicant declined the alternate position.

13The applicant alleges that she was punished and demoted for being off sick. She also states that she did not meet the respondent's "young, dumb, and good looking" criteria.

FINDINGS OF FACT

14Based on the material filed by the applicant and the allegations contained therein which the respondent, by virtue of Interim Decision 2010 HRTO 2170, was deemed to have accepted, I make the following findings of fact:

a. The applicant is 58 years old. She was employed as a district sales manager by the respondent from 2009 to June 2011;

b. The applicant's work environment in 2010 was difficult and caused her stress;

c. The applicant had a disability that prevented her from working between June 2010 and June 2011;

d. The applicant states that her disability arose or was worsened because of workplace stress. However, there is no basis for me to conclude that this workplace stress or any workplace issues directly involving the applicant constituted discrimination within the meaning of the Code. While the applicant was clearly dissatisfied with the respondent's decision-making, during the period that lead to her disability leave in June of 2010, the applicant does not allege that she was treated differently from others because of a Code-related ground;

e. When the applicant advised her superior that she required a period of medical leave, he commented that she had had a negative attitude in the past;

f. While the applicant was on disability leave, the applicant's superior communicated to staff a message to hire only "dumb, young, and good looking" employees;

g. Beginning in 2010, the respondent was restructuring and a number of employees who worked with the applicant lost their jobs;

h. In June 2011, when the applicant attempted to return to work following her period of disability, the respondent advised her that her position had been eliminated because of restructuring;

i. When she attempted to return to work following her period of disability, the applicant's supervisor stated that he had felt abandoned by the applicant; and

j. The respondent offered the applicant alternative employment, as an outlet store manager, which she declined as she considered it to be a demotion from her position as a district sales manager.

ANALYSIS

The Code

15The relevant provision of the Code is as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

General Principles

16The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists. (See Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.) To do so, the applicant needs to show that she was treated differently from other employees and that a protected ground was a factor in that differential treatment. If the applicant establishes these elements, the onus shifts to the respondent to explain or justify its decisions or actions based on non-discriminatory factors; however, the onus of proving discrimination remains on the claimant throughout (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at para. 119).

17As I have indicated, the respondent has not participated in this proceeding. To be successful in this matter in the absence of any explanation or justification from the respondent, it is sufficient for the applicant to show that a protected ground was a factor in the differential treatment. The applicant's age or disability need not be the only or even a substantial factor in the decision to differentiate between her and other employees.

Was a prohibited ground a factor in the decision to eliminate the applicant's position?

18The applicant argues that the respondent's "dumb, young, and good looking" hiring policy and the supervisor's comment at the outset of her medical leave and her return from leave establish that her age and disability were factors in the decision to eliminate her position.

19While I note that the information before me concerning the "dumb, young, and good looking" staffing practice is hearsay, this evidence is admissible in Tribunal proceedings and can properly be considered in rendering my decision: see Cugliari v. Telefficiency Corp., 2006 HRTO 7.

20The Tribunal has repeatedly held that some forms of discrimination can be quite subtle and difficult to prove: see Sinclair v. London (City), 2008 HRTO 48, and Dhamrait v. JVI Canada, 2010 HRTO 1085. In regards to allegations of subtle discrimination, the Tribunal's conclusion will turn upon the inferences that can be drawn from the circumstances. Thus, the legal issue before the Tribunal is whether or not an inference of discrimination is more probable than not based on all of the evidence before it: see Couchie v. Ontario (Municipal Affairs and Housing), 2011 HRTO 689.

21The difficulty in this case, of course, is that I must determine whether there has been a breach of the Code based only on the applicant's materials. I do not have the benefit of responding materials and the applicant has not had the opportunity to question the respondent's witnesses in regards to the elimination of her position.

22The existence of widespread layoffs and the fact that the respondent did not replace the applicant are factors that may suggest a non-discriminatory basis for the elimination of the applicant's position. However, other circumstances, including the "dumb, young, and good looking" hiring message and the supervisor's comments analogizing a medical leave to an abandonment, suggest that the respondent took issue with the applicant's disability and her age. I note also that, while the applicant was laid off, the respondent did not eliminate all district sales manager positions.

23In the circumstances of this case, based only on the materials before me, I am prepared to infer on a balance of probabilities that age and disability were factors in the respondent's decision to eliminate the applicant's position. In reaching this conclusion, I am influenced by the supervisor's comment analogizing the applicant's medical leave to an abandonment. While the applicant has not demonstrated that the "dumb, young, and good looking" hiring practice was directly applied to her, I am prepared to infer that it informed the respondent's staffing practices and that the applicant's age was a factor in the respondent's decision to select her for lay off.

24Accordingly, the applicant has established a prima facie case of discrimination. Based on the material before me, there is no basis to conclude that the respondent's decision to lay off the applicant can be justified based on non-discriminatory factors. As such, the applicant has satisfied her onus to prove, on a balance of probabilities, discrimination in employment.

Remedy

25The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:

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.

26The applicant is requesting that the Tribunal award her approximately $200,000 in lost wages. She also seeks a number of public interest remedies, including a policy change and human rights training.

27The applicant's materials do not provide the Tribunal with the information it requires in order to determine what remedy to award in the circumstances. Within three weeks of this Decision, the applicant will file written submissions with the Tribunal setting out the following:

a. Whether she has secured alternate employment since filing the Application and, if so, the position she has secured, the date she began work and the remuneration she receives (annual salary);

b. The efforts she made to mitigate her losses, in particular a list of all of the jobs to which she applied and the results of each application process;

c. The date upon which the respondent offered alternate employment to the applicant and the salary it offered;

d. A breakdown of any severance or remuneration the applicant received from the respondent following the termination of her employment, including copies of any letters or cheque stubs; and

e. T4 slips for the years 2009 and 2010 and a breakdown of any employment income earned in 2011.

28If the applicant fails to file the information as directed, the Tribunal may determine the appropriate remedy based only on the materials already filed.