HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Ong
Applicant
-and-
Poya Organics & Spa Ltd and Alex Thomas
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Ong v. Poya Organics & Spa Ltd
APPEARANCES
Lisa Ong, Applicant
Lori Mishibinijima, Counsel
New Directions Aromatics (Poya Organics & Spa Ltd. Tanya Thomas and Alex Thomas , Respondents
Eshiva Eisenberg, Representative
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of pregnancy.
Procedural Matters
2A hearing was held on September 27, 2012 in Toronto. At the time and place set for the hearing the respondent Alex Thomas was not in attendance and I was advised that he was on his way. In accordance with the Tribunal’s practice and hearing no objection from the applicant the hearing was adjourned until Mr. Thomas arrived or 10:00 whichever occurred first.
3The hearing commenced at 10:00 a.m. I offered, as I usually do, the parties an opportunity to discuss a resolution of the case either on their own or with my assistance as a mediator/adjudicator under Rule 15A. The respondent did not wish to engage in settlement discussions and the hearing proceeded.
4At the outset of the hearing the applicant sought to amend the Application by the inclusion of new or revised remedial requests. The applicant had advised the respondents of this request by letter in mid-August 2012. The respondent did not object and the amendment was granted. See remedial requests below.
5For their part the respondents made a request for an Order removing the two individual respondents as well as a second organizational respondent from the Application. The applicant agreed to the respondents’ request that the second organizational respondent be removed as she was satisfied that this entity was not the employer of the applicant and this order was made orally at the hearing. The style of cause is amended accordingly.
6The applicant was not prepared to consent to the removal of the personal respondents, particularly Mr. Thomas, who is the owner of the entity which had employed the applicant. Applicant’s counsel from the Human Rights Legal Support Centre indicated that the Centre has had increasing difficulty in enforcing remedial orders against some respondents where there is a close identity between an organizational and personal respondent. In all of the circumstances I reserved on the respondents’ request.
7The respondents also queried whether or not the respondent Tanya Thomas (hereafter “Ms. Thomas”) needed to remain at the hearing. I advised the respondents that it appeared to me based on the materials filed by the parties that each of the individual respondents were important material witnesses and I expected that I would hear the evidence of both of them. The respondents indicated that it was not their intention to call either Mr. or Ms. Thomas. I indicated that despite my view of the need for their evidence if there was no intention of calling them Ms. Thomas was entitled to remain but she was also free to go if she chose to do so. Both Mr. and Ms. Thomas remained for the duration of the hearing.
8I heard from the applicant and then Denise Smith for the respondent. After hearing the evidence of the applicant and Ms. Smith, I again queried whether I would be hearing the evidence of either or both of Mr. or Ms. Thomas. It was again indicated that the respondents had not intended to call either as a witness but that Mr. Thomas would give evidence if necessary. The applicant did not state an objection to the individual respondents giving evidence but she did indicate that there had been no indication that they would be giving evidence and no will-says had been filed as required by the Tribunal’s Rules. I acknowledged this concern but advised the parties that without the evidence of Mr. Thomas it seemed to me at that point that the respondent had no case at all and that fairness required that the individual respondents be allowed to give evidence if they wished to do so. I also indicated that if the applicant needed further time to prepare a cross-examination that request could be made at the appropriate time. The respondents then confirmed that Mr. Thomas would give evidence after the lunch break. Mr. Thomas gave evidence and was cross-examined. The respondents called no further evidence.
9At the request of the applicant I allowed her to be recalled to respond to the new evidence of Mr. Thomas.
10After the applicant’s submissions were concluded Mr. Thomas asked to speak. I allowed him to do so despite the fact that he was represented at the hearing. Mr. Thomas made a number of remarks about the process to the effect that he had been totally unprepared for it and he now wanted to be allowed to call further evidence. I denied his request at that stage and indicated that it was too late, the evidence was all in; the applicant haven been called to give evidence twice because of the respondents failure to comply with the Tribunal’s Rules about identifying their witnesses before hand. The respondents then continued with the closing submissions and the hearing concluded.
11In the end I heard from the applicant, Ms. Smith and Mr. Thomas. Ms. Thomas did not give evidence. Three other witnesses with potentially material evidence were not called by the respondents. The respondents stated that they believed they had summonsed one of them, Suzanne Plourde, but she had not appeared. The respondent was unable to produce a summons for this witness. Another witness, Sebastian Bula currently an employee was not called. Annie Thomas (hereafter “Annie Thomas”) who was the applicant’s de facto supervisor was also not called.
Evidence
12The applicant began her employment with the organizational respondent on March 28, 2011. She had responded to an advertisement for an accounting clerk. The job advertisement was entered into evidence. The position paid $12.00 per hour and required a high school education with some college or technical training. The job duties were described as preparing journal entries, manage accounts receivable, manage accounts payable and prepare bank reconciliations.
13The applicant was interviewed by Mr. Thomas and hired by him. She testified that she was told by Mr. Thomas that there was a serious backlog in bank reconciliations and that this was to be a priority for her. The applicant testified that she and Mr. Thomas discussed her lack of familiarity with Business Views, accounting software that the employer used. According to the applicant Mr. Thomas told her that she should not worry about this because he would retain someone to train her in the use of this software. At some point, likely prior to the applicant’s start date, Ms. Plourde was retained for this purpose according to the applicant.
14The applicant testified that she spent the first three days of her employment in the warehouse familiarizing herself with the company and the products it produced and marketed. She testified that on her second day she attended at the office, with Ms. Plourde and three other employees including Annie Thomas, for training on the use of Business Views. The applicant testified that of the two hours per week the employer provided she had the benefit of about an hour of training because of the time spent responding to the questions of the others participating in the training. These sessions continued for four or five more weeks until the applicant was told of her dismissal from employment.
15After about five weeks of employment the applicant learned that she was pregnant on May 6, 2011. She testified that she left a message with Ms. Thomas, the daughter of the owner Mr. Thomas and responsible for human resources matters, that she needed to go to the doctor that day but would return to the office after her appointment. The applicant testified that she attended her physician and was told that she was pregnant and was due to give birth in December 2011. She returned to the office about 3:00 o’clock and coincidentally encountered Ms. Thomas in Mr. Thomas’ office and told her of her news. According to the applicant Ms. Thomas said that she would inform both Annie and Mr. Thomas. The applicant also testified that Mr. Thomas said that the respondent used essential oils which can be dangerous for the baby. The applicant testified that Ms. Thomas stated that the respondents might have to look for an enclosed space for the applicant to work in and would talk to Annie and Mr. Thomas about this as well.
16The applicant testified that to make up the time lost for the doctor’s appointment she worked into the evening on May 5, 2012. Later that evening she informed Ms. Smith the night supervisor of her pregnancy. Ms. Smith testified that she overheard the applicant and another employee talking. At the urging of this other employee and Ms. Smith, the applicant told Ms. Smith that she was pregnant. Ms. Smith testified that the applicant appeared reluctant to talk about her pregnancy and seemed somewhat unhappy about the news. Ms. Smith issued a standard form letter to the applicant advising her of the fact that the employer uses essential oils which may be harmful to the unborn child and requests that the employee discuss the matter with their doctor. Ms. Smith testified, and there is no evidence to the contrary, that she did not advise either of Mr. or Ms. Thomas of the applicant’s news.
17The applicant testified that the following day, sometime before the lunch hour that she was asked by Ms. Thomas to come to a meeting with her and Mr. Thomas. The applicant states that Mr. Thomas congratulated her on her news but explained to her that the company could not have any interruptions during her maternity leave and therefore they did not want her to continue working. The applicant testified that they offered her one week’s notice and that the termination would be without cause.
18The applicant states that later that day she spoke to Annie Thomas, who she believed was her direct supervisor, about her situation and her need for more hours to be able to obtain EI benefits when the baby was born. The applicant testified that she told Annie Thomas that given her due date was some time off, she could continue to work and train a replacement for her during her maternity leave. According to the applicant Annie Thomas said that she was happy with the applicant’s work and would speak to Mr. Thomas about the applicant’s situation over the weekend. On Monday May 9, 2012 the applicant approached Annie Thomas and asked her what Mr. Thomas had decided. According to the applicant, Annie Thomas told her Mr. Thomas had said that they needed someone to be there all the time which the applicant could not do. The applicant testified that Annie Thomas told her that the respondents could not keep her on and the weekly training sessions would stop. The applicant testified that she responded by saying that she would have to begin looking for work and Annie Thomas said that was fine.
19The applicant advised Annie Thomas of a doctor’s appointment on May 10 which she attended. The applicant testified that she told her doctor about what had happened at work. Her doctor, she testified, told her that the respondents could not fire her because she was pregnant. The applicant also contacted the Ministry of Labour and received some advice.
20The parties are agreed that on Thursday May 12th, 2011 the applicant was offered part time employment with the employer by Ms. Thomas. The applicant testified that she told Ms. Thomas that she would consider it but she had other interviews already scheduled. She agreed that she was asked to keep the respondents advised of her work situation and said that she would. She also agreed that she never communicated with the respondents again. When asked why she did not accept the offer of part time work she testified that she had been offered a position with TD Financial in April 2011 and had turned it down because she felt comfortable working for the respondents and hoped that it would be the beginning of long term employment. However she testified that after begging them to keep her on to earn her 600 hours without success she no longer felt comfortable working with the respondents.
21At this meeting with Ms. Thomas the applicant was asked and did sign a document reflecting the fact that the respondents had offered her part-time work which she had not accepted.
22The applicant testified about her job search efforts from her termination until July 2011. The applicant testified that she stopped looking for work at that point because she did not think that she would be successful in finding work because she was obviously pregnant at that stage.
23Mr. Thomas who is the owner of the respondent corporation testified that he made the decision to hire the applicant. Although it indicates that the position is one of an accounting clerk with limited quantifications, Mr. Thomas testified that he was actually recruiting an internal auditor with a degree in economics who was capable of preparing financial and management reports. He testified that he hired the applicant because her resume indicated that she could perform these tasks and that she had a degree in economics. He testified that the website he used to advertise the position required the use of drop down menus which did not allow him to draft a job advertisement that reflected the actual requirements and qualifications required of the successful candidate.
24Mr. Thomas testified that he spent up to an hour a day with the applicant for the first five days of her employment. He testified that it was clear to him on day one that the applicant was completely incapable of performing the duties for which she had been hired. He described her as “hopelessly incompetent,” “clueless” and “she had no idea”. Despite his view of her competence he agreed that he never told the applicant that she was not performing adequately or gave her an opportunity to remedy her deficiencies. He testified that he did not do so because the situation was hopeless and there would be no point in doing so. He testified that although she was to report to him she did not actually do so after the first five days of her employment. He testified that he had very little contact with the applicant after the first few days but testified that he was told by Sebastian Bula, an employee, that the consultant Suzanne Plourde had reported to him that the applicant was incompetent. He testified that he never spoke to Suzanne. He also testified that there was an email from the consultant Suzann Plourde dated March 30, 2011 stating Ms. Plourde’s view that the applicant was not competent and should be replaced.
25Ms. Plourde did not give evidence. The respondents relied on a letter prepared after the Application was filed and apparently signed by a Suzanne Plourde. The letter indicates that Ms. Plourde who had been providing accounting consulting services for the respondents for some time, was hired in late March 2011 to train a new employee Lisa Ong. The letter goes on to state that on March 30th, 2011 she sent an email to the respondents confirming her view that the applicant was not the “right fit for the task at hand”. A similar letter signed by a Sebastian Bula was entered into evidence as well.
26When asked by the applicant where the email of March 30th was, Mr. Thomas responded that it was in his office. When asked why it had not been produced he responded that the applicant had not asked for it, but said he could produce it now if the applicant wished. I directed at that point that the respondent should make reasonable efforts to produce the email if they could and despite its late production I would consider it. The email was never produced.
27Mr. Thomas testified that when he decided to terminate the applicant he did not know that she was pregnant. He testified that he made the decision two or three days before the May 6, 2011 termination meeting with the applicant. He did not offer any explanation for the timing of his decision. He testified that he told Ms. Thomas to prepare a termination letter and when the letter was prepared to call a meeting with the applicant and provide it to her. It is agreed that this meeting occurred on May 6, 2011. He testified that nothing was said during this meeting as it is company policy to not say anything to an employee at a termination meeting. He testified that he simply handed the applicant the termination letter and nothing was said.
28Another letter prepared in anticipation of this hearing and apparently signed by Ms. Thomas was relied on by the respondents. It indicates that the writer terminated the applicant on May 6, 2011 on Mr. Thomas’s instructions. The letter further indicates that when Ms. Thomas terminated the applicant on May 6, 2012, neither she nor Mr. Thomas were aware that the applicant was pregnant and when management became aware of her pregnancy they offered her alternative employment.
29Mr. Thomas testified that he understood that the applicant spoke with Annie Thomas later that day (i.e. after the alleged termination meeting) and revealed that she was pregnant and that she needed 600 hours to entitle her to EI benefits. Annie Thomas approached him and asked if there was anything the respondents could do for her. Mr. Thomas testified that he also met with the applicant later that day and explained the reasons for her termination. He testified that he told the applicant that she was not capable of doing the job and that he needed to hire someone to replace her, but he was prepared to talk about “possibilities”. He testified that she seemed to appreciate this at that point.
30It is agreed that on May 12, 2012, Ms. Thomas met with the applicant and offered her part time work. This discussion is documented with the applicant being required to sign the record of the discussion referred to earlier. The applicant’s last day of work was May 13, 2011.
31In her reply evidence which I allowed because of the respondents failure to identify the fact that Mr. Thomas would give evidence or provide a will-say until after the applicant gave her evidence, the applicant denied meeting with Mr. Thomas on the first day of her employment. Instead, she testified, she met Olga, another employee of the organizational respondent, and spent the first three days in the warehouse. She then reported for work at the office for the remainder of her first week. The applicant denies meeting with Mr. Thomas at all in the first week although she may have seen him in the office. She testified that she never met with Mr. Thomas formally during her employment until the termination meeting on May 6, 2011. The applicant denied meeting with Mr. Thomas later in the day on May 6, 2011, after the termination meeting that morning. She denied ever being told that the reason for her termination was incompetence. The applicant also testified that the issue of financial reporting was discussed in the interview. The applicant testified that she told Mr. Thomas that she had reviewed financial and management reports but had not prepared them. The applicant testified as well that she met with Suzanne on her second day of work, March 29, 2011 for the first time.
Findings and Analysis
32The Application is allowed. I find that the primary if not the only factor in the decision to terminate the applicant’s employment on May 6, 2012 was the fact that the respondents had learned of her pregnancy and would be taking a leave from her employment in December 2011. I make this finding for the following reasons.
33As is often the case the resolution of this dispute depends in large part on the evidence of the parties and which is accepted as being more credible. In this case after carefully considering all of the evidence of the witnesses before me I prefer the evidence of the applicant over that of Mr. Thomas. The evidence of Ms. Smith was not particularly helpful to the resolution of any of the issues in the case.
34In evaluating the evidence of the two key witnesses who gave evidence I considered the factors cited in a leading case on credibility often cited in Tribunal Decisions. In Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]
35There were a number of problems with the evidence of Mr. Thomas when compared with that of the applicant.
36The applicant’s evidence was given in a straightforward manner and was very often more detailed than that of Mr. Thomas. She was able to describe conversations in detail. Mr. Thomas was not. For example the applicant was able to describe the job interview she had with Mr. Thomas in some detail including what was discussed in terms of his expectations of her and the duties required of her. Mr. Thomas, when asked by me, could provide no details at all about what was said and although the interview was said to have lasted at least one half hour, Mr. Thomas could only remember one question that he would have asked the applicant.
37The most profound difficulties with Mr. Thomas’ evidence arise when it is considered on its own terms. While the applicant’s evidence was internally consistent and in harmony with the preponderance of the probabilities involved in the situation, these individuals found themselves in, Mr. Thomas’ evidence was not in a number of important ways.
38For example Mr. Thomas testified that when he terminated the applicant nothing was said to her. He testified that this was his policy to avoid emotional outbursts and the like. It strikes me as implausible that this is the respondent employer’s invariable practice when dismissing an employee.
39Mr. Thomas also testified that he asked Ms. Thomas to prepare the usual termination letter and to schedule the termination meeting when it was done. As it turns out the letter was not ready until the day after it became known to several in the workplace that the applicant was pregnant. The termination letter is a form letter. It is not clear why it took two or three days to prepare. Ms. Thomas did not give evidence to clarify why this would be the case.
40Mr. Thomas also testified that he required that all significant meetings with employees be documented. Yet there is no documentation of the interview or the termination meeting with the applicant nor is there any documentation of the fact that he met with the applicant each day of her first week. Most significantly there is no documentation of the meeting he claims to have had with the applicant the afternoon of May 6, 2011 where he testified that he explained the reasons for her termination. I did not find his explanation that this latter meeting was informal persuasive in all of the circumstances. I also find it significant that the one meeting that is documented is the meeting where the respondents offered the applicant part time work which she did not accept.
41Mr. Thomas also attempted to explain the disconnect between the skills he claimed he required from the applicant and the job requirements outlined in the job advertisement. Mr. Thomas testified that he posted the job advertisement on a jobs website which would not allow him to input the actual qualifications for the position. When pressed on an obvious element of the job advertisement that he had crafted he conceded that he could have used this space to include reference to the actual job qualifications. I find Mr. Thomas’ evidence about the limitations on his inability to create a remotely accurate job description implausible, but in any event it is clear that even on his evidence there was some ability to create a more accurate job description.
42I also consider it very significant that despite Mr. Thomas’ claim that he knew the applicant was “incompetent” and “a hopeless case on day one,” i.e. March 28, 2011, he did nothing about this for almost 6 weeks but at the same time he continued to pay a consultant $200 per hour to train her to perform work that he had decided she was incapable of performing. I note that the applicant’s salary was $480 per week. The consultant was charging him $400 per week. He was unable to provide a credible explanation for the disconnect between his view of the applicant’s ability to meet his expectations and this apparently needless expense.
43In coming to the conclusions I have about the merits of this case, I have also considered the fact that several individuals with material evidence did not give evidence. In addition to Tanya Thomas, Annie Thomas was a material witness and would almost certainly, on the respondent’s theory, have evidence to give in support of the respondents’ case. She was not called as a witness. In addition, as described above, Mr. Thomas claimed to have consistent reports of the applicant’s incompetence from Ms. Plourde, the consultant, via Sebastian Bula. Neither Mr. Bula nor Ms. Plourde testified. Whether I draw an adverse inference or not from the failure to call any of these potential witnesses, as urged by the applicant, the fact is that these individuals almost certainly had presumptively corroborative evidence of the central planks of the respondent’s case and I do not have their evidence except in the form of letters created by some of them well after the fact.
44For all of these reasons I prefer the evidence of the applicant over that of the respondents. The applicant appeared credible and was able to relate a coherent narrative of events describing her hiring, her job duties as well as her interactions with Ms. Plourde, Annie Thomas, the individual respondents and others in the workplace in the various meetings she had with them. Her testimony was unwavering when pressed by the respondents and was, as I have indicated above, internally consistent and in accordance with the usual and expected course of events. The same can not be said of the evidence of the respondents.
45I find that the applicant discovered she was pregnant on May 5, 2011 and informed the respondents. I find that this information was communicated to Mr. Thomas sometime between the afternoon of May 5 and the morning of May 6, 2011. It is possible that Ms. Thomas told him as she told the applicant she would, or perhaps she told Annie Thomas who passed on the information to her husband. At the time Ms. Thomas lived with Mr. Thomas and Annie Thomas. I find that when confronted with this news Mr. Thomas made a decision to terminate the applicant immediately. In this regard I am not prepared to give any weight to the letter of Ms. Thomas in which she claims that neither she nor Mr. Thomas was aware of the fact that the applicant was pregnant. As discussed above in paragraph 28 this letter was prepared after the Application was received by the respondents and in anticipation of this hearing. Although such documents can be taken into evidence, normally little weight can be attached to their contents particularly when their content purports to speak to central issues in the case and their authors are available to give vive voce evidence.
46As previously indicated I was not persuaded by Mr. Thomas’ evidence that he knew on day one that the applicant was completely incompetent and a “hopeless case” In this regard I have also considered the letters of Mr. Bula and Ms. Plourde filed by the respondent despite the fact that their authors did not give evidence. Such documents are not normally given any weight. However even if I were to accept their contents as accurate they show only that perhaps Ms. Plourde had identified that the applicant was not “the right fit for the task at hand”. It is not at all clear what Ms Plourde thought the issues. were. I note that Mr. Thomas states he was seeking an internal auditor capable of providing financial and management reports and yet he advertised for an accounting clerk who was paid little more than minimum wage. Perhaps Ms. Plourde was simply acknowledging the disconnect between the skills of the individual who applied for the job of an accounting clerk and the actual needs of the organization. At the end of the day the contents of these documents do not speak to or explain why Mr. Thomas chose to terminate the applicant when he did, if as he claims, he knew that she was “a hopeless case from day one”.
47The respondent also took the position that the Application should be dismissed because the applicant did not comply with the respondents’ human rights policy and make a formal written complaint before filing the Application. The applicant testified that she was not aware of the human rights policy in this workplace. In any event there is no obligation on the part of a human rights claimant to first exhaust internal remedies or processes before filing an Application.
48In summary I find that the applicant was terminated when she was because the respondent Mr. Thomas became aware of the fact that she was pregnant. This is a violation of section 5(1) of the Code. Based on the evidence I find that both individual respondents were aware of the fact that the applicant was pregnant at the time of her termination. However it is clear from the evidence of Mr. Thomas that he made the decision to terminate and Ms. Thomas may only have been a passive observer of these events.
Removal of the Individual Respondents
49Rule 1.7(b) of the Tribunal’s Rules of Procedure provide that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue. The Tribunal expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
50Having regard to the factors above and the principles set out in Persaud, I find it appropriate to remove Tanya Thomas as a personal respondent. In particular, I have not found that the individual conduct of Ms. Thomas was such that it is appropriate to award a remedy specifically against her. To the extent that her actions may have contributed to the discriminatory termination of the applicant, I find that they were taken in the course of her employment with the corporate respondent and I find it is appropriate that the corporate respondent be held liable for such actions.
51In contrast to my findings with respect to Ms. Thomas, I find that given all of the circumstances, including the fact that Mr. Thomas is the owner of the organizational respondent and made all of the decisions respecting the applicant’s termination, it would not be appropriate to remove him as a party to the Application. I have found that Mr. Thomas’ individual actions were in fact a central issue in the applicant’s termination and in these particular circumstances it is appropriate that liability for the violation of the Code that has occurred be joint and several as between Mr. Thomas and the organizational respondent.
Remedies
52Section 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:
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.
53The applicant sought the following remedies:
a. Pecuniary losses pursuant to 45.2(1)1: lost wages from May 16, 2011 to December 2011; lost EI parental and maternity benefits till December 2012 and an ongoing award to the date of the Tribunal’s Order;
b. Non-pecuniary losses for damage to dignity, feelings and self-respect in the amount of $20,000;
c. Public Interest Remedies pursuant to section 45.2(1)3 requiring the respondents to implement a human rights policy and provide training to the owner management and staff in the new policy.
54The respondents stated that the Application should be dismissed and hence no remedies were appropriate. They also submitted that they had gone above and beyond the call of duty when they offered the applicant part time employment.
55Following my findings above I find that the applicant is entitled to lost wages to July 26, 2011 when she stopped looking for work. In coming to this conclusion while I understand the applicant’s frustration with her treatment by the respondents and her inability to find work, it remains that for a claim to ongoing wages to be maintained there is a corresponding ongoing duty to mitigate. In the circumstances I am not prepared to accept that the applicant was entitled to cease looking for work in late July 2011.
56On the other hand I do not accept the respondent’s view that the applicant was required to accept their offer of part time employment and in failing to do so should not be entitled to any lost wage award. In coming to this conclusion I considered firstly that this is a small family run business. The management team are husband, wife and daughter and were living in the same home at the time. I accept the applicant’s evidence that after turning down an offer from a large bank, and then begging to be kept on until she could take her leave and receive EI benefits, the applicant felt she could not continue to work in the environment created by the respondents. In all of the circumstances I find that this was not unreasonable.
57The applicant was terminated effective May 13, 2011 and the last job application was July 26, 2011. I find that the applicant is entitled to lost wages of $480 per week from May 13, 2011 to July 29, 2011 a period of 11 weeks, ($5280) less deductions required by law. It follows from this conclusion that the respondent is not responsible for any shortfall in the applicant’s Employment Insurance Entitlement.
Damages for Injury to Dignity, feelings and self-respect
58This employment was the applicant’s first for some time. She had two children at home and unbeknownst to her when she took the job with the respondents she was pregnant. She was offered another position with a major financial institution but turned it down in mid-April preferring to stay with the respondents. The applicant was then unceremoniously terminated and was told that it was because she was pregnant. This was undoubtedly upsetting for her and that upset was still apparent at the hearing.
59On the other hand the applicant gave little evidence of any ongoing impact of this episode on her and her family. She did testify that they did incur some debt over the time she has not been employed. However I also observe that she has not yet begun to renew her search for work. I note as well that the applicant had been out of the workforce for some time and was just returning to the working world. She was not the sole supporter of her family and although her termination was unlawful she was in a less vulnerable place than others in her situation. In my view an award of $12,000 for damages for injury to her feelings, dignity and self-respect is appropriate in all the circumstances.
60In terms of public interest remedies the applicant made no submissions in support of the requests that were made. In the absence of any submissions in support of such remedies I am not inclined to make such an order.
61The applicant sought pre and post judgement interest. In the circumstances both awards are appropriate.
Order
62The respondents’ request to remove Tanya Thomas as an individual respondent to the Application is granted and the style of cause shall be amended accordingly.
63The Tribunal makes the following Remedial Orders:
a. The respondents Poya Organics Ltd and Alex Thomas are jointly and severally liable to pay to the applicant the sum of $12,000 in damages for losses associated with injury to her feelings, dignity, and self-respect, within 30 days of this Decision.
b. The respondents Poya Organics Ltd. and Alex Thomas are liable to pay to the applicant her lost wages at the applicable rate of $480 per week from May 13, 2011 to July 29, 2011 ($5280) within 30 days of the of this Decision less any statutory deductions required by law.
c. The respondents Poya Organics Ltd and Alex Thomas are jointly and severally liable to pay to the applicant pre-judgement interest on the amounts set out in paragraph (b) above calculated as of June 15, 2011 in accordance with the Courts of Justice Act, R.S.O. 1990, c. C. 43, within 30 days of the date of this decision.
d. The respondents Poya Organics Ltd. and Alex Thomas are jointly and severally liable to pay to the applicant post-judgment interest on any accumulated principal and interest on the amounts set out above in paragraphs (a), (b) and (c) calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, from the date that is 60 days after the date of this Order.
Other Matters
64Subsequent to the final hearing in this matter but before the release to the parties of the decision and reasons above the Tribunal received correspondence from the respondent Alex Thomas seeking the re-hearing of the Application. The respondent states that I was clearly biased in the manner in which I conducted the hearing and relies on the following alleged circumstances:
a. I refused to allow Tanya Thomas to give evidence. The respondent asserts that both he and Tanya Thomas anticipated giving evidence and were unaware that they had to provide advance notice of this fact;
b. The respondent asserts that I upheld every single objection of the applicant and denied every single objection of the respondents;
c. That I had decided the case before the lunch break when I said to the parties that without the evidence of Alex Thomas the respondents have no case, although there was sufficient documentary evidence to support their case. The respondent asserts that bafflingly I refused to allow Tanya Thomas to testify when the request was made. The respondent also asserts that I questioned him and expressed doubt about an answer he gave concerning access to the company’s computers.
d. The respondent asserts that their key witness did not attend the hearing despite being summonsed and this was detrimental to their case since I did not seem to accept the “Affidavit” from this witness (Suzanne Plourde). Accordingly, state the respondents, they were not able to submit the ‘compelling & irrefutable evidence’ that the applicant’s incompetence was the sole reason for her termination. The respondents state that they wish to legally subpoena this witness to the second hearing.
e. The respondents assert that while the Tribunal provided qualified and experienced counsel to the applicant they had to retain their own representation. The respondents assert that their representative was not qualified and experienced and accordingly they were not able to present their case properly.
65The respondent’s request for a re-hearing is denied. The respondent’s assertions amount to an allegation of a reasonable apprehension of bias on my part and I will deal with it on that basis. For the reasons that follow I am not satisfied that there is any reasonable basis for the respondents’ assertion of bias and in all of the circumstances it would be unfair to re-adjudicate the case.
66The legal test most often referred to in considering whether there is a reasonable apprehension of bias was set out in by De Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
67The central assertion of the respondent is that I denied the respondents’ request(s) to allow Tanya Thomas to give evidence. The respondent’s assertions on this and the other points raised are selective and inaccurate. As can be seen from my reasons for decision above the issue of whether or not the respondents Tanya Thomas and Alex Thomas were to give evidence or even be in attendance at the hearing was a live one from the outset of the hearing. Indeed it had been an issue raised by the respondents well prior to the hearing where Ms. Thomas in particular had requested clarification of her need to be at the hearing. At the hearing the respondents made it clear that it was not their intention to call either Mr. or Ms. Thomas.
68Despite the respondents position I indicated on at least two occasions that it seemed to me that the two individual respondents were key material witnesses. I also, as recorded above, did indicate to the parties prior to the lunch break that without the evidence of Mr. Thomas the respondents had no case and that fairness required that I hear from him if he wished to give evidence notwithstanding the failure of the respondents to list him as a witness or provide a will-say for him.
69The respondents only requested that they be allowed to call Tanya Thomas after hearing the applicant’s final submissions where she asked me to draw an inference from amongst other gaps in the respondents’ case, the fact that Tanya Thomas was not called. I did rule that at that point it was too late to call evidence. In all of the circumstances the ruling was appropriate.
70Contrary to the respondent’s assertions I did not allow every single objection of the applicant and deny every single objection of the respondent. There were very few objections. However I did overrule Mr. Thomas’ objection to being asked if Tanya Thomas, his daughter, was living with him at the time of the applicant’s termination. I ruled that the question was relevant and proper. Mr. Thomas answered the question.
71There were other objections made by the respondents but these were issues that should have and in some instances were raised in final submissions and not proper objections to the questions and answers at the time. In any event, the fact that in a hearing determinations of an adjudicator have been made against one party is not evidence of bias.
72The respondent asserts that I questioned Mr. Thomas and expressed some scepticism about his answer that he did not have access to his company’s computers. I did suggest to him that it seemed unusual to me that this would be the case and invited his response. Similarly I asked several questions of the applicant. For example I asked her about her resume which seemed to indicate that she had performed the role of internal auditor years previously and had prepared management reports and suggested to her that the resume might be misleading, inviting her response. The Tribunal’s Rule 1.7(m) allows the Tribunal Member presiding at a hearing to ask questions of a witness in a hearing. The fact that I asked questions of the witnesses of both parties is not evidence of bias. It is also not evidence of bias that the Member presiding at a hearing express doubt or scepticism about an answer and invite the witness’ comment.
73Finally the respondent asserts that I had decided the case before the lunch break despite the incontrovertible evidence they had already presented in documents such as the letters of Ms. Plourde and Mr. Bula. The claim by the respondent that I indicated that without Mr. Thomas’ evidence the respondents had no case is accurate. It seemed to me at the time and it remains my view that fairness required that I point this out to the parties while there remained an opportunity for the respondents to respond to my concern. It is not incumbent on a party to call all of the evidence available to it and there are all sorts of reasons why a party chooses to not call a witness. However as I indicated at the time it seemed to me that fairness required that if he wished to do so Mr. Thomas should give evidence. This is consistent with the powers granted to the Tribunal by the Code and the Tribunal’s Rules.
74The threshold test for a reasonable apprehension of bias is a high one. It should not be easy for a party unhappy with the progress of a proceeding to derail it by making unfounded allegations of bias. See Guilmouldinov v. Ontario College of Teachers, 2009 HRTO 2130. I do not find that the circumstances described above would cause a reasonable well-informed person to believe that there was a reasonable apprehension of bias in this case. Given this conclusion these aspects of the respondent’s request must be denied.
75The other aspects of the respondent’s request – that the Tribunal provided qualified and experienced counsel for the applicant and they had to find their own representative who was not so qualified, and that a witness did not attend – are not reasons at this stage for a re-hearing.
76The Tribunal did not provide the applicant with counsel. The lawyer representing the applicant is an employee of the Human Rights Legal Support Centre which is a separate stand-alone entity unconnected to the Tribunal. The availability and choice of representative are not matters that the Tribunal normally has any involvement in with respect to either applicants or respondents in human rights proceedings and accordingly there is no basis upon which such choices could give rise to any reasonable apprehension of bias on the part of the Tribunal.
77In my view it is not appropriate at this stage, nor am I satisfied that it would be fair, just or expeditious to re-hear this case because the respondent(s) believe that their representative did not do an adequate job of advancing their case. As for the failure of one witness to attend the hearing; I note that the respondents indicated at the hearing that they “believed” that this individual had been summonsed but were not sure and could not produce a summons. It is not clear how this vague assertion would justify a re-hearing of the case. As can be seen from my reasons above there were a number of witnesses other than Ms. Plourde who did not give evidence but might have. At the end of the day this case was not determined by the absence of Ms. Plourde’s evidence but largely on my conclusions about the credibility of Mr. Thomas who made all of the decisions about the applicant’s employment and its termination.
78For all of these reasons the respondent’s request is denied. I find that there is no basis for requiring the re-hearing of this matter.
Dated at Toronto, this 8th day of November, 2012.
“signed by”
David Muir
Vice-chair