Favuzzi v. 1140782 o/a Weedman, 2012 HRTO 2253

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Favuzzi

Applicant

-and-

1140782 o/a Weedman, Tim Tamblyn and Cathy Tamblyn

Respondents

DECISION

Adjudicator: Kevin Cleghorn

Date: December 3, 2012

Citation: 2012 HRTO 2253

Indexed as: Favuzzi v. 1140782 o/a Weedman

APPEARANCES

) Robert Favuzzi, Applicant ) Self-represented ) 1140782 o/a Weedman, Tim Tamblyn and ) Cathy Tamblyn, Respondents ) Self-represented )

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age. The Application alleges that the applicant experienced discrimination when his employment was terminated specifically due to his age.

ISSUE FOR DETERMINATION

2I must determine the following after consideration of all of the evidence:

Was the applicant’s age a factor in the decision by the respondents, or one of them, to terminate him from his employment?

FACTS AND BACKGROUND

3Robert Favuzzi (hereinafter the “applicant”) resides in Thunder Bay, Ontario. He was born on June 15, 1967, and is currently 45 years of age. He completed a college program in spring of 2010 and wanted part-time or full-time work. His tutor, Kevin Czinkota, advised him that he worked for Cathy and Tim Tamblyn, the owners of the Weedman, a seasonal lawn and garden maintenance operation. The applicant went to the Weedman office on Simpson Street in Thunder Bay to discuss employment with Tim Tamblyn in April or May of 2010 after a referral by Mr. Czinkota. He was hired and given a uniform. He was to be paid $10.25 per hour for a forty-hour work week, although the actual hours to be worked depended upon completion of the jobs assigned in a given day. He would not receive overtime pay. The applicant was advised that he could be working on the telephone at the office or “in the field” pulling weeds. He did not want to do “heavy duty work”. The applicant commenced work on April 23, 2010, and put in 5.5 hours that day at a baseball field operating a seeder. On April 26, 2010, he aerated a number of yards. The applicant was working with Mr. Czinkota. He noticed that Mr. Czinkota was being offered $20 per job to do work on the side, i.e. not for the Weedman. They were under time constraints each day and had to complete, on average, eight jobs or assignments per day.

4The applicant indicates that the pattern was the same each day. He would work on the assigned Weedman jobs and Mr. Czinkota would do side jobs during part of those days. Some of the yards that he worked on were difficult due to hilly terrain. Mr. Czinkota, when he did assist with the Weedman jobs, was very rough on the equipment. The applicant states that they completed all Weedman jobs within 7-8 hours each day. The applicant was responsible for the larger aeration machine and Mr. Czinkota operated the smaller one. He argued with Mr. Czinkota about the propriety of him doing side jobs. Notwithstanding that, he claims that Mr. Czinkota was happy with his performance. The applicant was not permitted any breaks during his work days. Breaks occurred during the drive from job to job. Mr. Czinkota was upset with the applicant at times. His upset stemmed either from the threat made by the applicant to tell Mr. Tamblyn about the side jobs he was doing each day or due to the breakdown of the machine being operated by the applicant on one particular day. He heard Mr. Czinkota make reference to him as “Old Man”.

5On April 29, 2010, Mr. Tamblyn informed the applicant that he was doing a good job. Later that same day, after working at Weedman for five days, the applicant went to see Mr. Tamblyn in the office. He was terminated at that time. The applicant states that he was advised specifically, at least twice, that it was because he was “too old”. Mr. Tamblyn told him that he hired “young punks” to work for him. The applicant mentioned to Mr. Tamblyn that Mr. Czinkota was doing side jobs. He was angry about the reason cited for his dismissal. The applicant went home that night and informed his wife, Cheryl Favuzzi, about the events of the day. Ms. Favuzzi did not believe him. He then had a telephone conversation with Mr. Tamblyn, which his wife listened in on, during which Mr. Tamblyn again expressed regret but cited the applicant’s age once more as the reason for his dismissal.

6Mr. Tamblyn attended at the applicant’s home three days later to give him his pay cheque and to retrieve his uniform. Both the applicant and Ms. Favuzzi came to the door. The applicant stated to Mr. Tamblyn at that time, “I can’t believe that you are firing me because I am too old”. He also expressed surprise to Mr. Tamblyn that he was taking Mr. Czinkota’s word over his. The uniform was returned to Mr. Tamblyn. Mr. Tamblyn gave the pay cheque and the applicant’s Record of Employment to Ms. Favuzzi. The Record of Employment stated that the applicant had quit. Another Record of Employment was later issued in its stead which said that the applicant was dismissed. The applicant contacted his Workplace Safety and Insurance Board (hereinafter “WSIB”) adjudicator, Leena Bava, to discuss the situation. She informed him that he could not be dismissed because of his age. The applicant then contacted Cathy Tamblyn at Weedman to discuss being reinstated. He informed her that he would take the matter to the Human Rights Tribunal if he was not reinstated. He was not reinstated and has never worked for Weedman again.

7The applicant described the Weedman operation as having 6-8 employees, all of whom appeared to be in their 20’s. There was no discussion about the Weedman’s hiring practices with any other employee. He never worked the telephones during his employment tenure and was literally on his feet all day. He described no other issues of a disciplinary nature or performance nature during his time at the Weedman. He received no complaints about his work or work ethic. There was no discussion about working a probationary period nor was there ever negotiation and/or execution of a formal employment contract.

8Cheryl Favuzzi testified on the applicant’s behalf. She corroborated the evidence of the applicant. She advised that in a telephone conversation with Mr. Tamblyn on the day of the applicant’s termination, he stated that the applicant had indeed been terminated because he was too old. She informed Mr. Tamblyn that that was illegal. She repeated that statement in person when Mr. Tamblyn attended at the Favuzzi home three days after the termination. She confirmed that both Mr. and Ms. Favuzzi were very disturbed by the applicant’s treatment and the reason given for his termination.

9Timothy Tamblyn testified on his own behalf. He stated that the applicant had been recommended to him by Kevin Czinkota. He had limited involvement with the applicant after he was hired. He was told by Mr. Czinkota that he could not work with the applicant. He terminated him on the basis of Mr. Czinkota’s recommendation. Mr. Czinkota had worked for the Weedman for four or five summers. The applicant informed him about Mr. Czinkota’s side jobs after his termination. He denies making any reference to the applicant’s age as the basis for his termination at any time. Mr. Tamblyn indicates that the applicant initially sought $3,000 to make this “all go away”. The applicant then made a demand during a telephone tirade for $30,000 or “WSIB would come after them”. Mr. Tamblyn acknowledges that he ordinarily hires university students for the Weedman since it involves seasonal, minimum wage and physical work. The season runs from the first week of May until late August or early September. The Weedman has had employees older than the applicant working for it from time to time.

10Mr. Tamblyn described his conversation with Mr. Czinkota about termination of the applicant as being short, less than one minute. He described all of the jobs at the Weedman as being physically demanding. Teams of two persons are involved in aeration. The teams also do fertilization and overseeding of lawns. During the week of the applicant’s employment, Mr. Tamblyn had received no complaints about his performance. He did advise the applicant personally that he was doing a good job. Mr. Tamblyn testified that the applicant would be hard to get along with because of his personality. Personalities matter because of the length of time that employees would spend in the truck together. Mr. Tamblyn suggested that, as a manager, the difficult issues that he deals with primarily relate to employee interactions and/or the clash of personalities. He stated that employee training lasts about eight weeks and that the applicant could not have worked on his own.

11Mr. Tamblyn denied that the speaker phone conversation between himself, the applicant and Ms. Favuzzi ever happened. He describes the meeting at the Favuzzi home for the exchange of the pay cheque and the uniform as lasting about thirty seconds and that it did not include any discussion about the applicant’s age. While there was nothing about the dismissal that related to the applicant’s age, he also acknowledged that the dismissal was in no way related to poor performance. He did not believe the applicant when he claimed that Mr. Czinkota was working side jobs.

12Catherine Tamblyn also testified on her own behalf. She had limited involvement with the applicant. She was introduced to the applicant at the conclusion of his initial interview. She was not involved in his termination in any way. Her responsibilities in the business are more on the administrative end of things. She rarely speaks to Mr. Czinkota. Ms. Tamblyn was informed by Mr. Tamblyn that Mr. Czinkota would not work with the applicant. She listened to a message on the office answering machine the day after his termination in which the applicant demanded money or the “WSIB would take (Weedman) to court”. There was a further telephone conversation between her and the applicant shortly thereafter in which the applicant described what had happened from his perspective and again demanded money or “they would lose their business”.

THE LAW

13Section 5 of the Code provides 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.

14The sole issue is whether the applicant’s age played any role or was at all a factor at the time of his termination from employment. The applicant must prove on the balance of probabilities that the respondents, or one of them, did indeed discriminate against him based on his age.

15It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

16The respondent’s decision to terminate the applicant’s employment when he was told that he was performing well raises justifiable concerns in his mind that there was another basis for his termination. The sole question is: was the applicant’s age in any way a factor in the decision to terminate his employment?

17Much of the evidence and facts in this case were not in dispute. The respondent asserts that the decision was based on legitimate business reasons, i.e. to avoid having to deal with the inevitable personality clashes that were anticipated.

18I agree, to a point. I find the testimony of the applicant and his wife to be credible and rely on the test established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357, against the evidence heard and presented, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour 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 a 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.

I find that Mr. Tamblyn made the decision to terminate the applicant in small part because of his age. I prefer the evidence of the applicant and Ms. Favuzzi over that of Mr. Tamblyn because of the significance of the matter to them and to the extent that the treatment of the applicant angered them. This is supported by the totality of the applicant’s actions in terms of his complaints to his WSIB adjudicator and his follow-up telephone calls to the Weedman office (one telephone message and one telephone conversation with Cathy Tamblyn). The events would not have had the same significance to Mr. Tamblyn in that, from his point of view, he was merely dismissing a short-term employee who had personality issues. There is some evidence that the applicant’s age was a factor in the decision, directly or indirectly. Mr. Czinkota’s use of the description “Old Man” in reference to the applicant is one example. The fact that Mr. Tamblyn relied solely upon Mr. Czinkota’s advice to terminate the applicant, and that the age of the applicant formed part of the basis for Mr. Czinkota’s reason for his recommendation, is another. The repeated references to age as the reasons for his termination by Mr. Tamblyn, whether he completely believed it or not, suggest strongly that age played some part in the termination of the applicant, albeit a small part. The respondent has not provided a non-discriminatory explanation for why the applicant, in particular, was selected for termination in the face of a good performance and when the applicant could have been teamed with someone other than Mr. Czinkota. I am mindful of the possibility that Mr. Czinkota’s recommendation to terminate the applicant may have resulted from his concern over the reports of him doing the side jobs. The age issue, while it may have been a smokescreen, was a factor in the decision to terminate the applicant nonetheless. By accepting his recommendation, Mr. Tamblyn was adopting Mr. Czinkota’s rationale for the decision to terminate the applicant based, in part, on his age. His statements to the applicant and/or Ms. Favuzzi in that regard buttress that finding. That is enough for the applicant to succeed on his application.

19The applicant offered no evidence of anecdotal comments from anyone in the workplace about age-based harassment, hiring practices or termination. This is not fatal to his application because in an environment of primarily twenty-year-old employees doing seasonal work, it would not have been an ordinary topic of conversation. It is undeniable that the workplace consisted of younger people, understandable as that might be because of the nature and duration of the work and the rate of pay accorded to it. While the age of the applicant was apparent on his hiring, it seems that the recommendation of Mr. Czinkota for the applicant’s hiring and firing was definitive each time. I find that the applicant’s age was a factor in Mr. Tamblyn’s decision-making at the time of the termination, regardless of whether it was driven by Mr. Czinkota or not.

20The applicant has therefore met his onus to establish that a breach of the Code has occurred on the balance of probabilities. The decision to terminate him was based, in part, upon a prohibited ground of discrimination under the Code.

REMEDY

21Section 45.2 (1) of the Code reads as follows:

On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Damages for Injury to Dignity, Feelings, and Self-respect

22There were no specific submissions on remedy by any party. The applicant asked in his application for $30,000 for lost wages. He did not request damages for injury to dignity, feelings, and self-respect. He sought reinstatement to the job and education for the human resource person at the Weedman on human rights issues.

23I propose to award damages based upon my consideration of the evidence and the nature of the discrimination in this instance. The applicant provided little, if any, evidence about the impact of this matter upon him, save and except for indicating that it angered and upset him. He did not provide any information about how, if at all, he mitigated his damages. It is unknown to me if he received any income replacement such as WSIB benefits or employment insurance benefits, or obtained alternate employment during spring and summer of 2010 or thereafter.

24The Divisional Court held in Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 at paras. 43-44, that there is an “intrinsic value” attached to the right to be free from discrimination, and that not only is there no ceiling on general damages awards (now damages for injury to dignity, feelings, and self-respect), but that the awards should not be so low as to trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate.

25The applicant endured discrimination. It was not the most significant act of discrimination when considered in the context of other cases, but it was quite significant to him. His employment may have been terminated for other appropriate reasons sooner or later. His age was one factor that resulted in the premature termination of his employment. The applicant may or may not have lasted for an entire season based upon his own choice or if he obtained more remunerative employment. His employment was short-term; the act of discrimination was isolated and occurred in a circumstance where another justifiable reason may have been legitimately given for the termination. No evidence was offered by the applicant as to significant, long-term psychological harm to him, or even short term harm for that matter.

26The relevant principles on damages were summarized as follows in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 46 and 51-54:

Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects.

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled.

I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

27In light of the foregoing, I find that $1,000 is an appropriate award for injury to dignity, feelings, and self-respect.

Lost Wages

28The Code allows the Tribunal to make the applicant “financially whole”, which in this instance, represents recovery of some lost wages. I do not propose to award the applicant an entire season of lost wages (approximately sixteen to seventeen weeks) as it was not reasonably foreseeable that he would have worked that entire time. It would also require me to assume that he had no other employment or income replacement during that time, which I cannot do in the absence of evidence in that regard.

29I find that it is appropriate in this instance to award four weeks of wages, or the amount of $1,640, as damages for lost wages.

Pre- and Post-Judgment Interest

30The applicant has been denied access to this money during the course of this process. He shall have pre-judgment interest, in accordance with section 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Since his application is dated April 30, 2010, pre-judgment interest is awarded at 0.5 percent per annum, from May 14, 2010, to allow time for service. See: Hom v. Impact Interiors Inc. (1993), 1993 CanLII 16449 (ON HRT), 23 CHRR D/345 at para. 17 (Ont. Bd. Inq.); rev’d (1995) 1995 CanLII 18145 (ON CTGDDC), 23 CHRR D/348 (Ont. Div. Ct.); rev’d (1998), 1998 CanLII 17685 (ON CA), 35 CHRR D/477 (Ont.C.A.).

31He shall also have post-judgment interest, in accordance with section 127 of the Courts of Justice Act, supra. It is hereby awarded from thirty days after the date of this Order, at 3.0 percent per annum.

Public Interest/Future Compliance Remedies

32It is unclear what the applicant was seeking in this regard. I do not consider it to be of any value in this instance for there to be a specific public interest remedy for one isolated incident of discrimination. This decision should serve as the necessary resource for the respondent, 1140782 o/a Weedman, to adjust its practices in the future to avoid any additional breaches of the Code.

Liable Party

33I have not found that there were any actions by Ms. Tamblyn that infringed the Code and accordingly the application is dismissed as against her with no findings of remedial liability.

34I have found that Mr. Tamblyn dismissed the applicant for reasons which included his age, contrary to the Code. In Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at paras. 51 and 52, Sachs, J. stated :

In assessing whether this reasoning would provide a rational basis for the outcome that is in dispute, it is important to keep in mind two of the fundamental principles of human rights law that were outlined earlier in these reasons. First, a finding of corporate liability is not meant to act as a shield against a finding of individual liability where the acts of the individual constitute a violation of the Code. Second, the focus of human rights legislation is to provide an effective remedy to the complainant. One measure of effectiveness is the degree to which the damages can be collected.

Staubach had been inoperative for seven years when the Tribunal rendered its decision. For this reason there should be concern as to whether Staubach could pay any remedy in the form of damages. It is true that inoperative corporations may still have assets. However, after seven years, they often do not and if they do not their assets have likely been distributed to their owners. In this case those owners are Mr. McKeague and Mr. Leonard.

35Weedman is a seasonal venture. It may be challenging to collect any award from a corporation that is, effectively, inoperative in the winter. The decision to terminate the applicant, and the execution of that decision, was performed by Mr. Tamblyn, the person who is the operating mind of the corporation. Mr. Tamblyn, in his individual capacity, is, therefore, remedially liable. The employer of the applicant was the respondent, 1140782 o/a Weedman, and by virtue of s. 46.3(1) of the Code the corporate employer is also liable for the infringement. Tim Tamblyn and 1140782 o/a Weedman are jointly and severally liable for the damage award in this instance.

ORDER

36The respondents, Tim Tamblyn and 1140782 o/a as Weedman, are ordered to pay to the applicant, Robert Favuzzi, on a joint and several basis, the following amounts within thirty days of this Order:

(a) $1,000 as general damages;

(b) $1,640 as compensation for his wage loss; and

(c) Pre-judgment interest on these awards, commencing on May 14, 2010, fixed at 0.5 percent per annum, and post-judgment interest on all of the above under section 127 of the Courts of Justice Act, supra, fixed at 3.0 percent per annum, commencing thirty days from the date of this Order.